Tuesday, January 31, 2017

Phoenix payroll debacle and the incorporation thesis

In February 2016, the federal government rolled out the Phoenix Payroll system for a significant portion of the federal public service (about a third of its ~300,000 workers). This roll out has been plagued with problems.

Workers are not getting paid. Or are getting under paid. Or over paid. Or being asked to return more in over payments than they were paid in total. One person has lost their home, others have missed mortgage, and loan payments.

The exact scope of the problem is hard to tell. One report last summer suggested 82,000 errors had been reported between February and July of 2016. At present, it appears there remains a backlog of 8000 cases from that period and another 13,000 high priority cases have emerged since then. There are also an undisclosed number of lower priority cases. Basically this is a disastrous roll out that has overwhelmed the ability of the federal government’s payroll office to resolve in a timely manner.

Last week, the case of an Alberta summer student hit the news. The student worked in Waterton Parks last summer. She’s owed $5-6k (one of >1500 summer student cases), had to move back in with her parents and postpone her studies. The government’s problem resolution system clearly doesn’t work:
She says trying to get answers about her paycheques during the summer was hard. She recalls dialing the phone number she was given up to 30 times a day and not having anyone pick up. 
"Since then, I have called probably about three times a month and still they have no answers for me. They don't have my personal files … they just pass my information along."
So she went to the media with her problems, alleging “…Parks Canada staff told her not to speak to the media because she might not be hired back next summer…”. Whether this statement was intended as helpful advice to a young worker (it is likely correct) or a threat, clearly the student decided to ignore it. After all, why would she want to work for an employer that can’t or won’t honor its most basic obligation: to pay for work done?

One of the issues this cases raises is the way that the “work now, grieve later” principle that underlies modern labour relations leaves workers essentially powerless. While the union representing many federal workers (PSAC) has pursued a number of strategies (legal, media) to resolve the problem, its members’ most effective tool for pressuring the government to resolve problems (a work stoppage) is rendered illegal.

Now a work stoppage won’t magically resolve the pay problems. But it would likely motivate the employer to (1) make more of an effort to resolve the issue, and (2) to hold senior decision makers to account for this disaster. By contrast, playing nicely has led to members asking why they have a union if it can’t get action on such a basic violation of the workers’ employment contract.

In this dynamic, we see the incorporation thesis at work: unions and labour laws play a key role in managing worker discontent by channeling workers’ collective efforts in non-disruptive (and, in the short term, completely ineffective) dispute resolution mechanisms. This is good news for employers (work continues uninterrupted) but bad news for workers.

-- Bob Barnetson

Friday, January 27, 2017

Labour & Pop Culture: White Collar Hollar

This week’s installment of Labour & Pop Culture is “White Collar Hollar” by Stan Rogers. The song is sung as a field holler (sometimes called a field call), historically sung by workers and slaves, which is an unusual style to hear these days.

The song (unusually) recounts and critiques the experience of a harried data wonk (using now antiquated 1970s terminology).
Then it's code in the data, give the keyboard a punch
Then cross-correlate and break for some lunch
Correlate, tabulate, process and screen
Program, printout, regress to the mean
The song is notable because it touches on the quiet desperation of white-collar workers (most class conscious songs tend to be about blue- and pink-collar jobs). Interesting, the worker’s dreams remain the same: freedom from the grind.
Someday I'm gonna give up all the buttons and things
I'll punch that time clock till it can't ring
Burn up my necktie and set myself free
Cause no'one's gonna fold, bend or mutilate me.

Well, I rise up every morning at a quarter to eight
Some woman who's my wife tells me not to be late
I kiss the kids goodbye, I can't remember their names
And week after week, it's always the same

And it's Ho, boys, can't you code it, and program it right
Nothing ever happens in the life of mine
I'm hauling up the data on the Xerox line

Then it's code in the data, give the keyboard a punch
Then cross-correlate and break for some lunch
Correlate, tabulate, process and screen
Program, printout, regress to the mean

Then it's home again, eat again, watch some TV
Make love to my woman at ten-fifty-three
I dream the same dream when I'm sleeping at night
I'm soaring over hills like an eagle in flight

Someday I'm gonna give up all the buttons and things
I'll punch that time clock till it can't ring
Burn up my necktie and set myself free
Cause no'one's gonna fold, bend or mutilate me.

-- Bob Barnetson

Tuesday, January 24, 2017

Why might an employer fight a losing grievance?

I was recently involved in a discipline arbitration on the union side. The grievance centred on the employer failing to provide particulars when disciplining a worker.

Particulars are the who, what, when, where and how of an incident for which the employer seeks to discipline a worker. That is to say, particulars set out the facts and events the employer is relying upon (and, in an appeal, will need to prove) in order to impose the discipline.

The collective agreement read (emphasis added):
7.5 When the appropriate Executive Officer considers that cause exists to warrant discipline… the Executive Officer shall give written notice that discipline is being applied, [giving particulars thereto, including specific details of the incident(s) leading to this disciplinary action] to the President, to the Association President in confidence, and to the Staff Member.
Particulars are important because a worker needs to know what they have been accused of in order to decide whether to appeal the discipline and to successfully mount such an appeal. The requirement for particulars is consistent with the principles of natural justice, one of which is the right to a fair hearing:
The right to a fair hearing requires that individuals … be … given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case.
In this case, the employer didn’t provide any particulars (or even clearly identify why the worker was being disciplined) in the disciplinary letter. The employer declined to remedy this violation of the collective agreement during the grievance process, and off we went to arbitration (nearly a year later).

The arbitrator ruled last week that the particulars were inadequate to meet the requirements of Article 7.5. The disciplinary letter was then returned to the employer for revision.

Assuming the employer intends to proceed with the discipline (given the delay), it will need to issue a new letter with adequate particulars. The worker can then decide whether or not to appeal the discipline.

During the hearing, the employer conceded from the get-go that its letter was defective and invited the arbitrator to direct a new letter be issued. What this tell us is that the employer knew it was in the wrong.

The question this raises is why the employer didn’t just correct the obvious deficiency, either when the matter was first raised in the grievance process (a year ago) or at any time up to the start of the hearing? After all, the whole point of the grievance process is to resolve minor disputes and errors about the administration of the collective agreement.

In the hearing, the employer broadly asserted that it was reluctant to resolve the grievance because it was concerned the union would use such a correction against the employer.

Instead, the employer took a loser case to hearing and spent a lot of money (I’d guess $20k in hearing costs plus the staff time) during a period of tight budgets. And the (fairly predictable) result was (1) an arbitration decision that reflects poorly on the HR shop, and (2) the union will likely use the decision in other related litigation.

So, not resolving the grievance didn’t prevent the employer from being damaged. In fact, it probably resulted in a worse outcome than settling, since (1) the arbitration decision is a public document (whereas settlements usually contain reciprocal gag orders) and (2) a negotiated agreement could have included terms addressing whatever the employer's fears about settlement were.

It is interesting to speculate about why the employer decided to run a bum case because the possibilities highlight the political nature of labour relations (i.e., labour relations decisions are not just technical decisions). Some possible (and not mutually exclusive) explanations are:
  1. The employer may have believed that losing was better than any settlement it might have achieved. I can’t comment on this because settlement discussions are private.
  2. The employer may have been acting irrationally. For example, in a bad bargaining relationship, it is not uncommon for the parties to fight even when better options are available.
  3. The employer may have sought to inflict costs on the union (because it costs money even when you win…) in order to dampen the union’s appetite for future grievances. This assumes that cost is an important factor in union decision making. In my experience, unions more often decide which grievances to fight based upon (1) the prospect of winning, (2) internal union politics, and (3) whether the grievance is necessary to rein in bad employer behaviour. 
  4. There may have been some behind-the-scenes politics on the employer side that we are not privy to. Employers are not monolithic structures and interpersonal politics (around power and face and blame) can influence their decisions, especially if the decision-making structure itself is not clear or decision-making power is broadly distributed within it. For example, maybe the employer was bluffing or just plain erred when it issued the original disciplinary letter and, subsequently, found itself unable to provide particulars of misconduct that it could substantiate in an appeal? (I don't know this to be true--it is just a speculative example.) In such a case, the demand for particulars by the union would then create a very difficult set of internal politics that might result in decision paralysis. 
Overall, this speculation suggests that the practice of labour relations is best understood through a multi-disciplinary lens that allows us to consider legal, psychological and political factors. All of these things can contribute to how grievances are handled by each side.

-- Bob Barnetson

Friday, January 20, 2017

Labour & Pop Culture: Working Class Man

This week’s installment of Labour & Pop Culture is “Working Class Man” by Jimmy Barnes. This song was written by Journey’s Jonathan Cain and appeared in the regrettable 1980s comedy Gung-ho.

The song fits into the valourization of blue-collar workers category. The imagery in the video is of steel mills and farms and men at work. Women are “little women” who will one day be the man’s wife.

There is some hint of distrust in government and the belief that a work ethic will allow him to get ahead (both themes in the heartland rock of the 1980s). There are the usual nods to blue-collar touchstones, including God, Elvis, Vietnam, blue jeans, and fathers. It is not lyrically complex but it speaks to the stereo-typical working-class worker in 1980s America (although the song was really only a hit in Australia).

It would be interesting to rewrite the lyrics to speak to today’s working class, mostly likely female workers of colour in precarious and often multiple urban service industry jobs. Would we see mainstream rock songs with images of and lyrics about cleaners and fast food workers, maybe without citizenship status and perhaps single parenting in crowded apartment blocks?

Probably not because those lyrics and images don’t really feed the myth that workers can get ahead by dint of their hard work. Indeed, service-industry work is rarely seen as hard work (even though it is) warranting pride. And certainly there is no pathway mooted for these workers to become yeoman farmers (at least in America…) after they have paid their dues as a wage slave.

Working hard to make a living
Bringing shelter from the rain
A father's son left to carry on
Blue denim in his veins
Oh oh oh he's a working class man

Well he's a steel town disciple
He's a legend of his kind
He's running like a cyclone
Across the wild mid western sky
Oh oh oh he's a working class man

He believes in God and Elvis
He gets out when he can
he did his time in Vietnam
Still mad at Uncle Sam
He's a simple man
With a heart of gold
In a complicated land
Oh he's a working class man

Well he loves a little woman
Someday he'll make his wife
Saving all the overtime
For the one love of his life
He ain't worried about tomorrow
Cause he just made up his mind
Life's too short for burning bridges
Take it one day at a time
Oh oh oh he's a working class man
Oh oh oh he's a working class man

Oh yeah
Yes he is
Well he's a working class man
Ma ma ma ma ma ma ma ma ma ma ma ma ma ma ma
I tell you he's a working class man

(Working class)
(Working class man)
Yes he is

(Working class)
(Working class man)
I wanna tell you he's a working class man

(Working class)
(Working class man)
Ma ma ma

(Working class)
(Working class man)
I got to tell you he's a working class man

(Working class)
(Working class man)
Yeah he is

(Working class)
(Working class man)

-- Bob Barnetson

Tuesday, January 17, 2017

Mandatory flu shots for health-care workers?

A perennial OHS issue is whether or not health-care workers (HCWs) should be compelled to get an annual flu shot. Paula Simons tackled this issue last week for the Edmonton Journal. Her arguments (implicit or explicit) for the government mandating vaccinations among HCWs are basically three:
  1. We require HCWs to be vaccinated for many diseases (such as mumps, measles and rhubella) and should do so for influenza as well.
  2. Immunization of HCWs can reduce the incidence and effects of influenza among patients. 
  3. Failing to get vaccinated is unethical behaviour for HCWs.
I spent some time looking through the research related to this issue. Before talking about that, I want to be clear that (1) I get a flu shot, (2) I have no time for anti-vaccer arguments, and (3) I’m not an expert in the efficacy of flu shots or influenza transmission.

From what I can tell, vaccination seems to prevent influenza some of time (overall, it is about 60% effective), including among HCWs. This finding seems pretty widely accepted; if you are interested, here is a study.

This is a significantly lower rate of effectiveness than MMR vaccinations (which are about 90% effective).  Opponents of mandatory influenza vaccination note the much lower effectiveness of the influenza vaccine undermines the argument for mandatory flu shots.

The evidence on whether vaccinating HCWs affects patient outcomes (since HCWs are not the only source of patient infection) is mixed. Some research supports this position, particularly when looking at elderly patients in geriatric facilities (example and example). Yet, every study has limitations. A systematic review of the literature (which controls for the quality of studies) concludes:
Our review findings have not identified conclusive evidence of benefit of HCW vaccination programmes on specific outcomes of laboratory-proven influenza, its complications (lower respiratory tract infection, hospitalisation or death due to lower respiratory tract illness), or all cause mortality in people over the age of 60 who live in care institutions. … This review does not provide reasonable evidence to support the vaccination of healthcare workers to prevent influenza in those aged 60 years or older resident in LTCIs.
This systematic review is not without controversy (it sets a high bar, for one). That said, it stands for the proposition that there is (as yet) no conclusive proof that vaccination programs reduce the incidence of influenza or its effects among older patients in long-term care facilities. I didn’t see any similar studies on effects among other patient groups or other kinds of helath-care facilities. Such studies may exist, I just didn’t find any in my search. Given this data, I think we can conclude the jury is out on the effectiveness of HCW vaccination on patients.

The final argument is essentially a moral one: if vaccination may reduce transmission to patients, then health care workers should be compelled to be vaccinated. As Simons puts it:
In a time of anti-vaccine hysteria, we need health-care workers to set an ethical example. We need them to demonstrate respect for science and for logic.
Setting aside that HCWs are not responsible for refuting anti-vaccer non-sense (that would be journalists’ jobs…), as we’ve seen above, the science on the effectiveness of mandatory flu shots for HCWs is not settled. Rather than engage with this nuanced issue, Simons opts for an ad hominem attack on HCWs:
But it’s time to stop making excuses for health workers who just can’t be bothered, or who think they’re invincible, or who just have some vague prejudice against vaccines.
As Jason Foster and I note in Chapter 5 of our new OHS textbook, the other side of this argument is that mandatory vaccinations interferes with the rights of HCWs to control their own health. Simons largely dismisses this concern, briefly noting “Forcing people to be vaccinated does sound coercive” and moving on to propose just that.

Health-care employers frequently advocate mandatory immunization. Presumably, they do so in pursuit of patient safety. Yet, this position is hard to square with the lack of evidence that vaccination affects patient outcomes. Some workers note that health-care employers have many motives for policies, including reducing sick leave claims.

Some employers (including the province of British Columbia) have attempted to manage this issue by giving workers a choice: get immunized or wear a mask when interacting with patients. This may be a more reasonable approach than the mandatory vaccinations that Simons advocates. An interesting question for those who like evidence-driven policy is what evidence of reduced rates of influenza has the BC experiment yielded?

-- Bob Barnetson

Friday, January 13, 2017

Labour & Pop Culture: Dirty Hands

This week’s installment of Labour & Pop Culture is the Battlestar Galactica episode “Dirty Hands”. I recently coauthored a paper on the absence of unions in science fiction with Mark McCutcheon and this was one of the few examples we found of unions in the (huge) canon of SF. I never really watched the new BSG (I prefer my Cylons robotic and my flight suits corduroy—see right) but this was a good episode.

The crux of the plot is declining fuel quality and quantity endanger the fleet’s ability to evade the Cylons. Responding to Dickensian working conditions aboard the fleet’s refinery ship, the refinery workers sabotage its operation by hiding crucial parts, a tactic thwarted via imprisonment and psychological torture. A replacement director of the refinery is converted to the worker’s cause and calls a general strike, which is averted first by threats of killing supporters and then by accommodation of some of the workers’ demands by the authorities.

In this episode, we see fleet Admiral Adama use the coercive powers of the state—including imprisonment, threats, and torture—to contain illegal strike action. Yet, having achieved his goal, Adama then sees the need for a political solution, wherein workers’ consent to their conditions of work is necessary to maintain long–term stability.

This portrayals of state activity may reflect the pluralist view of labour relations (i.e., workers and employers have legitimately conflicting interests and the state referees to preserve social stability) or the radical (i.e., the state colludes—or is one and the same as—with the employer to contain worker dissatisfaction).

This radical interpretation of “Dirty Hands” might be preferable given that the union’s leader, after abandoning a strike and securing minor improvements in working conditions, is wined and dined by the president in her luxurious cabin. This scene implies that the union leadership has been coopted by the political elite.

It is notable that the episode uses a strike as a plot device: strikes and corrupt union officials are pretty much the only two instances where unions are mentioned in contemporary books, TV series, or movies. I couldn’t find any related video of “Dirty Hands” so, instead, I leave you with the opening sequence from the 1978 Battlestar Galactica television series.

-- Bob Barnetson

Tuesday, January 10, 2017

News round-up: Farm WCB, child labour, and dead workers

A few interesting things went down last week in Alberta labour issues. The government announced the results of the first full year of mandatory WCB coverage for paid farm workers. The short version is that the number of operations covered jumped from 1756 in 2015 (when coverage was optional) to 3629 in 2016. There was no estimate of what percentage of operations have taken out the mandatory coverage.

In 2016, 793 farm injuries were accepted. The most number of accepted injuries came from feedlots (192), then hay/grain/crop farming (131) and beef producers (106). In 2015, there were 339 claims accepted.

Looking at the these numbers, it is important to be mindful that (1) these injuries represent only the most serious injuries (where there was wage loss or medical aid beyond first aid required)—most injuries do not have to be reported to the WCB—and (2) even among injuries that should be reported, there are going to be unreported injuries (40% non-reporting is the best estimate I have seen).

Add in farms that haven’t taken out WCB coverage and we can be confident that the true level of injury to paid farm workers is appreciably higher than these numbers indicate. Looking at the type of injury, the Calgary Herald reports:
Nearly a quarter of the claims, 199, were strains or sprains, with 153 superficial wounds, 165 open wounds and 106 cases of fractures, dislocation or nerve damage. There were 170 other injury claims, as well as three accepted farm fatality claims.
The most notable response was from the Wildrose that seemed to walk back promises to repeal Bill 6 by saying the Wildrose would provide replacement legislation, perhaps allowing farmers to choose between WCB or some sort of private alternative.

Staying with agriculture, the Parkland Institute posted a piece I wrote about proposed exemptions around hours of work and child labour for farms. The most interesting reaction to this was that report that triggered the blog post disappeared from the employer lobby group website it had been posted on!

The union-positive website rankandfile.ca also posted a two-part interview they did with me (part 1 and part 2 here). This interview canvasses a wide variety of labour issues in Alberta and (I hope) heralds new attention to labour issues in Alberta.

Finally, APEGA levied a $10,000 fine and a $150,000 contribution on Canadian Natural Resources Ltd as a result of engineering problems that lead to the deaths of two foreign workers in 2007. This fine is trivia (CNRL's revenue in 2015 was $13 billion) and likely is less than the cost of proper engineering work would have been.

This announcement likely concludes the various investigations into this incident where an unqualified employee did the engineering work on tanks that fell apart while being assembled due to high winds. This incident also revealed that one of the other companies involved in this project was stealing the wages of the foreign workers that had been brought in to do the work. Good work, "job creators"... .

-- Bob Barnetson

Friday, January 6, 2017

Labour & Pop Culture: How to have an Accident at Work

This week’s installment of Labour & Pop Culture is a 1959 safety video featuring Donald Duck that my colleague Jason Foster ran across while revising IDRL 308. The video subscribes to the careless worker myth: essentially that worker inattention and irresponsibility are the main cause of workplace injury. Apologies in advance for the sexism and racism in the six-minute film.

Donald’s behaviour is clearly ridiculous and the movie ignores the insanely unsafe conditions in the factory he works in! It isn’t clear to me who funded this cartoon or who the intended audience was (all I could find was that it was a theatrical short). You can see more modern version of this theme in this 2008 Alberta video from the Bloody Lucky series.

An interesting question is why is the myth of the careless worker so persistent (it dates back about 100 years)? As I note in my book The Political Economy of Workplace Injury in Canada, American companies used the careless worker myth in the 1920s to counter opposition to the introduction of leaded gasoline. Lead poisoning among workers making the tetraethyl lead additive made people leery of leaded gasoline. General Motors, DuPoint and Standard Oil responded to critics, in part, by blaming injuries on workers not following safety precautions.

In this case, carelessness was not root cause of worker injuries and death—exposing workers to a toxin at work was. Indeed, analysis of injury causation suggests unsafe conditions, not carelessness, are the cause of most accidents. Injury mechanisms are well known to employers, as are many ways to prevent injuries. The problem is that eliminating or containing hazards is expensive. It is cheaper and much easier to blame the victim

Focusing attention on the victim protects cherished beliefs or powerful actors. We do this all the time. Victims of sexual assault were (and are) often blamed for their injury. Blaming rape victims is easier than grappling with seemingly intractable issues like the objectification and victimization of women by social and legal forces. Similarly, it is easier to blame workers than grapple with the idea that injuries are the byproduct of employer decisions.

-- Bob Barnetson

Tuesday, January 3, 2017

Research: Safety crimes in Alberta's O&G industry

Last week I had a chance to re-read an MA thesis I have been saving for awhile. “Bloody Oil: A Critical Discourse Analysis of Safety Crimes in the Alberta Oil and Gas Industry” comes from the Department of Criminology at UOttawa.

This study is notable in two ways. First, it conceptualizes safety violations as crimes (rather than regulatory offences). Framing the injury of workers as a crime sits uneasily with the mainstream view of occupational injuries as uncommon, unpreventable, and (regrettably) economically necessary.

The idea that workplace injuries are caused by so-called accidents reflects that the “perps” are upstanding members of the community (corporations) doing legitimate work where responsibility for the injury is often diffuse and hard to see. Shooting someone in the head is murder. But decapitating someone on the job because of a decision to delay cable replacement is an accident. Added to this is the widely accepted notion that “workers accepted the risk” when they took the job and responsibility for injury is subtly shifted to the worker.

Second, it applies this framing to Alberta’s oil-and-gas industry, the upstream portion of which (basically dinosaurs to the refinery gate) has a real cowboy culture. You can see an analysis of that culture in the book chapter “Working hard and staying safe: Drilling rig hands in Alberta”.

The economic importance of the oil-and-gas industry in Alberta meant that the conservative government largely turned a blind eye to workplace safety (to be fair, the Tories did a poor job on workplace safety in general). The study examines court documents, fatality reports, and safety awareness campaigns to tease out how serious injury and death are officially conceptualized.

The upshot of the study is that injuries are typically framed as the fault of the worker. Blaming the worker has a long pedigree (as we’ll see in Friday’s post) and the careless worker myth has been evident in many Alberta safety campaigns over the years. If the worker is to blame, then the employer must be (mostly) innocent and there is little reason to identify root causes of injury found in the structure of work. Where remediation is possible, it is focused on worker behaviour.
In a way, workers face a catch-22 in comparison to employers who are described in more general or descriptive terms: if a worker is well-trained and experienced, they have no excuse for not being able to avoid harm; if they are un-trained or inexperienced, then their carelessness is simply and quickly used as an explanation for what occurred. (p.61).
Injuries are also represented as non-serious and non-violent offenses. Investigations generally don’t look for root causes (found in the structure of work), instead focusing on proximate causes of injury. Where employers are found to have violated the law, they often receive creative sentences, whereby they make a socially beneficial donation (which is tax deductable) and then look to be good corporate citizens. The level of the fine and that it is levied on the corporation (rather than an individual) may also attenuate the impact of the fine on future behaviour. This, in turn, reinforces treating injury events as regulatory offences, rather than as crimes. Injuries are caused by accidents, rather than a chain of decisions leading to an unsafe workplace.

Overall, this is a very useful piece of research. It examines in depth how serious injuries and fatalities in the oil-and-gas industry are dismissed as unavoidable accidents that are likely the fault of the worker anyhow. We see a similar framing in newspaper reports of workplace injury, which dial down public concern by noting that injuries are under investigation or before the courts or are simply human tragedies (for which no one is really at fault).

The question going forward is whether Alberta’s New Democratic government will adequately resource and politically empower OHS inspectors to raise the cost of injury to employers to the point where employers make structural changes in their workplace.

-- Bob Barnetson