Wednesday, January 23, 2013

Public-sector wage freeze? Not likely.

The Edmonton Journal has a story this morning examining the notion that public sector wage freezes might be one option for the Alberta as it attempts to balance its budget.  The Fraser institute is for it, the Alberta Union of Provincial Employees is against it, and the government is non-committal. Missing from the story are three good reasons why public sector workers will likely resist a wage freeze. 

The first two centre on members appetites for a wage freeze (which are basically zero). First, even a modest increase foregone today has significant lifetime effects. For example, if a worker forgoes a $2000 wage increase today, the worker will be missing that $2000 from her wage package every year for the rest of her career. Further, future increases will compound on a lower number. Over a career, the aggregated lost-wages for a worker can equal an entire year of pay. Nobody is going to agree to that to help out a government that has spent 40 years screwing workers.

Second, a wage freeze doesn’t resolve what is basically a failure in the government’s business model. It simply allows the government to put off addressing this problem. Come next year, the same problem will still exist and the government will be back looking for another wage freeze. This is a bit like buying someone with an addiction to low taxes alcohol a bottle "just this one time".

The third reason is contextual. It will be very difficult for the government to force a wage freeze on unions. The basic principles of arbitration, recent Charter decision around government interference in collective bargaining, the political implications of layoffs for an allegedly centerist government that needs to maintain services to maintain political support, and the government turning down a province-wide wage-freeze offer in teacher bargaining (a pretty stupid move) seems to limit both the ability and the will of the government to force a wage freeze.

EDIT: After some more thought and discussion, there are a couple of more reasons unions won't be doing this. First, many unions already gave wage freezes and even took wage furloughs over the past few years (AUPE, UNA, my own union...). And government managers just had two years of hard freezes--no cost-of-living increases and no progression of the salary schedule. Clearly freezes haven't resolved the problem. More freezes simply aren't going to help.

Second, freezes turn public-sector employers into a special class of taxpayer. Not only do public servant bear the same tax increases or service cuts as every other taxpayer, but they also bear special costs through foregone income. In this way, wage freezes are a special form of taxation saved just fir public servants.

-- Bob Barnetson

Monday, January 21, 2013

Regulatory study finds gaps in Alberta

A new report has come out comparing Alberta’s regulatory scheme to that of other provinces from the perspective of operating a business.  Despite this government-commissioned puff-piece study being (gasp!) generally positive about Alberta, the report has a few interesting things to say:

Employment standards: 
  • The information provided by the Employment Standards office in Alberta is assessed as inconsistent, with the answers to specific questions sometimes varying depending on the individual. ” 
  • Alberta’s investigation officers are assessed as “not sophisticated.”

Health and Safety: 
  • Alberta is assessed as being “ineffective at policing,” with low rates of prosecution and convictions relative to other provinces.

Labour relations: “
  • The Alberta Labour Relations Board is assessed as “not funded proportionate to its importance,” reducing its ability to meet timelines.
  • Among the four provinces, Alberta is assessed as being most employer-friendly, while Saskatchewan is assessed as being the most union-friendly among the four provinces.”

It is mildly surprising that even an employer-focused study funded by the government to show how good Alberta is highlights that Alberta's OHS system is ineffective at preventing injury.

-- Bob Barnetson

Movement on farm safety

The Wildrose Agricultural Producers (WRAP) held their annual general meeting in Banff January 14-16.  WRAP is the largest producer funded general farm organization in Alberta. At this meeting, I’m told two resolutions were passed:
Farm Labour Resolution 2013-10Be it resolved that WRAP approach the WCB to discuss inclusion of agricultural employment under the WCB Act Farm Labour Resolution 2013-11Be it resolved that WRAP on behalf of healthy child development and agricultural workplace safety, supports legislated child labour standards for all paid child farmworkers
The WCB application is not entirely surprising. WRAP has been highlighting the liability protection aspect of workers’ compensation to its members for several years. And the settlement in Kevan Chandler’s death recently put Tongue Creek Feeders into bankruptcy. If WRAP’s application to the WCB to make workers’ compensation mandatory to the entire industry is successful, it will achieve industry-wide liability coverage without giving non-subscribing farms any competitive advantage.

It is not clear which industries (under Schedule A of the workers’ compensation regulation) this application will apply to. For example, farming, farm contracting (such as haying), feedlots and fertilizer spreading are all listed as separate industries. It is also unclear if the WCB will approve such an application. Making coverage mandatory for a high-claim industry may entail some short-term costs (until premiums and experience rating catch up). There may also be significant long-term risk for the accident fund around occupational disease.

On January 17, WRAP president Lynn Jacobson appeared on the CBC Eyeopener to discuss child labour standards. The child labour resolution is a bit vague. My sense is that it means striking the child labour law exemption for farms contained in s.3(e) of the Employment Standard Code.  (The remaining exemptions (minimum wage, over time, vacation pay) would all remain in effect.) This would make it illegal to employ anyone who should be in school during school hours and it would trigger limits on the kind of employment allowable for those under age 15.

While this resolution is certainly a morale victory for those lobbying against child farm labour (specifically, the Farmworkers Union of Alberta and Liberal MLA David Swann), the question remains whether this resolution entails any meaningful protections for most child farm labourers. As Jacobson mentions in his interview, the child labour restrictions would likely not apply to children working on their parents’ farm. Jacobson doesn’t explain this but the gist is such children would not be “entitled to or in receipt of wages” which appears to be the relevant test to trigger the prohibition. In this way, such a change would be unlikely to affect on WRAP members (or their children).

This change also does not address the lack of basic safety rights for all farmworkers (e.g., right to know about hazards, right to refuse unsafe work) caused by the farming and ranch exemption under the Occupational Health and Safety Act.

So who would these restrictions apply to? In the interview, Jacobson dances around the issue. He notes that WRAP is concerned about large commercial operations or corporate farms that are employing child labour as part of their work force. He also eventually agrees that those portions of the agriculture industry where there is hand-labour (e.g., berry picking, fruit picking, hoeing in fields) is the target.

But who are these producers? I’ve honestly no idea. But an editorial by the Lethbridge Herald hints that the target may include various religious communities (e.g., Hutterites, Mennonites) that employ children in their fields:
Changing demographics in southern Alberta also play a role, as growing numbers of Mennonites from Mexico and South American countries increase the need for more formalized legislation, and raises an issue school boards, the province and local municipalities are hesitant to address - education. 
 Similar comments are evident in the Vauxhall Advance:
In the M.D. of Taber, with a growing population of Mennonites from Mexico and southern Alberta, the issues of child labour and schooling have long been sacred cows, and have generated much discussion among local political leaders and school-board officials. Those discussions are continuing, and higher levels of government are also being involved.
“Last week, we met with the minister of education,” said M.D. of Taber Reeve Brian Brewin, who added the home-school issue is also getting distorted. “It’s no education we are getting worried about, not home education.” 
And in the Taber Times:
Unfortunately, I have firsthand knowledge of children as young as eight grading potatoes and cleaning out cattle liners on farms. I have seen the crippled hand of a thirteen year old from a potato grading accident. These are not the farmers children, who years ago missed some school to help with the harvest. These are children whose father works as a farmhand, and due to cultural norms, allows his children to work for these operations. These families are predominately from Mexico and in this area, are usually referred to as Mexican Mennonite families. … The children then go to work on the farm their father works on. As difficult as this is to believe in this day and age, this practice is common all over Southern, Central and Northern Alberta.  
And the Vauxhall Advance again:
But perhaps it is the elephant in the room that no one seems to want to talk about in the pre-dominant underage farm labour found here in southern Alberta with Low German Mennonites.
 As mentioned in this week’s Vauxhall Advance as well, is the discussion on home schooling which is common among Mennonite households where often Mennonite children, some not yet in their teens, are taken out of the education system to help out with farming.
While proving nothing, these comments suggest that we need to be mindful of both the economic and moral incentives of these resolutions. Restricting child labour, while likely a good thing, may also reduce a competitive advantage that religious groups have over traditional producers.

It is unclear how the Conservative government will respond to this set of resolutions. Tory MLAs have always maintained they will enact regulations when agricultural producers tell the government they want them. Here are a small sample of these kinds of comments from former Ministers of Agriculture:
It’s about the producers’ desire. I know that if the producers, in their wisdom not ours, were to come forward in a majority view to the minister of agriculture, he would bring that forward to this table (Shirley McClellan, May 18, 2006).
 I will do exactly what the agriculture community asks for. Now, I’m responsible for dozens of operations, whether it’s cattle, hogs, grain, maybe the AAMD and C. None of these people have come to me asking for these regulations that you’re asking for (George Groenveld, April 29, 2008).
 I had it reinforced for me again this morning in a meeting that I had in Trochu, Alberta, with a group of 25 agricultural producers when I asked them right flat out how we could help them and they said: no more regulations. I said: are we moving in the right direction with our farm safety instead of workmen’s compensation and occupational health and safety? They said: absolutely; this is what we want (Jack Hayden, March 15, 2011).
So the industry (or at least the biggest general producer group) has now asked for more regulation. So will the government enact child labour laws in agriculture?  And, given the limited scope of the protections in the WRAP motions, will doing so make much of a difference in farm safety? It will be interesting to see how these issues play out over the next few months.

-- Bob Barnetson

Tuesday, January 15, 2013

Sabbatical plans

Today is my last day of work before starting an eleven-month sabbatical. I expect that blog posts will continue while I’m off. For example, below is a picture I snapped from my (home) office the other day. Anyone want to guess what the guy is doing wrong?

Well, he’s up more than three metres off the ground, standing on an icy (note ice dam) and pitched roof with no fall protection. Not as bad at the two guys I saw on a roof with a 45-degree slope the other day: one guy was crouched on top of the peak, holding onto a nylon strap (with one hand—the other was in his pocket because it was cold) that was supporting the other guy who was shoveling down lower on the roof. But neither is really being safe!

I have a bunch of projects lined up for the next year. I’m currently examining the narratives used by MLAs to explain the persistence of workplace injuries throughout the 2000s. The same data set will then be used to examine the narratives that justify workers’ compensation exceptionalism related to firefighters and farm workers.

Teacher bargaining is in the news and a buddy and I are examining the educational impact of the 2002 teacher strike in Alberta. I’m hopeful we can finally move this analysis forward. A different partner and I also have some data on how politicians construct migrant workers that I’d like to do the analysis on.

And I have a couple of other articles ideas—examining cost transfer associated with injuries among migrant workers and the policy implications of non-status migrant workers access to health care. Should be a busy sabbatical!

-- Bob Barnetson

Monday, January 7, 2013

Government intervention in teacher bargaining?

The Calgary Herald ran an interesting story over the weekend about teacher bargaining. A second effort at achieving a province-wide contract with teachers (whose contracts expired at the end of August) failed this fall. Teachers offered a mix of pay freezes and low increases over four years but wanted significant gains in working conditions. When these weren’t forthcoming from the government (in theory because they might hose rural small school boards), negotiations devolved back down to individual school boards and locals of the Alberta Teachers’ Association (ATA).

On December 19, Education Minister Jeff Johnson set a letter to school boards. I cannot find a copy of that letter anywhere on the GOA website or online (maybe someone wants to help me out?). According to the Herald, Johnson told School boards that, when they sign a deal, he wants details of the deal at least 10 days before they ratify it, including the costs and how it will be funded.

While the government likely needs information about the cost of any deal once it is ratified, demanding it before the deal is ratified and demanding details about how it will be funded is something of a strange request. Aren’t local school boards elected bodies able to enter into binding contracts?

This may be some messaging designed to make school boards think twice about signing a deal they cannot afford in the expectation that the government will bail them out to avoid the political fallout from teacher layoffs and school closures.

Yet the lead time required (10 days before ratification) hints at that the government is not just messaging. Rather, it suggests that the government may intervene in school board ratification processes. Why else would the government need 10 days of lead time?

This kind of micromanagement is fairly typical of the Alberta government and reflects that, by taking away school boards’ ability to tax back in the 1990s, the real employer of teachers is the government. The sham of “independent” school board bargaining is simply a political ploy to deflect blowback when the government’s budgetting causes distress.

The government’s explanation for this demand is: 
“(The minister) just wants to make sure that he’s aware as boards move forward in their negotiations, because one agreement could have an impact on every agreement in the province,” education department spokeswoman Leanne Niblock said.
This explanation rings false. Dispute resolution in education is by strike/lockout so the settlements in one school district have little impact on the settlements in the next… unless the parties somehow end up at arbitration, where an arbitrator will look at comparable agreements to scope out a reasonable settlement.

School boards and the ATA could end up at arbitration if they agreed to do so. This is unlikely but not an impossible outcome—an arbitrated settlement allows both the ATA and the school board to blame the arbitrator for the settlement. And, if the settlement is beyond the capacity of the school board to fund, it allows the board some leverage with the government.

The other way school boards and the ATA could end up at arbitration is if the government enacts back-to-work legislation, thereby forcing strikes and lockouts to arbitration. The government did this in 2002 following a large strike that created a political (rather than an educational) emergency. The resulting awards favoured teachers and the government took a lot of heat when it balked at funding them.

My sense is that Johnson’s letter is meant to influence local bargaining by heightening the pressure on school boards to settle within their means. It is also a signal that the government will intervene to sink agreements signed by school boards (some of whom have cash in the bank and might make a rich agreement to avoid the political emergency of a teacher strike) that might skew provincial settlements upwards.

Admittedly, reading government intentions from press releases is a tricky business. It is easy to see a conspiracy where we might just have a rookie minister reacting to the embarrassment of the ATA walking away from a provincial deal and the minister’s PR flak trying to cover the minister’s ass when the media comes calling. Yet this move by the government is pretty consistent with the government’s history of intervening in collective bargaining to minimize settlements and avoid the political consequences associated with labour disputes.

-- Bob Barnetson

Thursday, January 3, 2013

Government heavily dinged for age discrimination

An interesting Alberta human rights decision came across my desk right before the holidays. In Cowling v Her Majesty the Queen in right of Alberta, a former contract employee complained the province had discriminated against her on the basis of her age. The remedies awarded by the Alberta Human Right Commission along with the potential political implications of seeing the Department of Employment and Immigration (now Human Services) dinged for discrimination make this a good read.

In short, Cowling was a long-term contract employee in Mediation Services. After several renewals as well as eight years of satisfactory performance assessments and performance bonus awards, she found her contract (after being renewed for ever shortening periods) was allowed to lapse. When she applied on a permanent posting for basically the same job but at a lower classification, neither Cowling (who was obviously qualified) nor any of the other candidates were hired. The position was then reclassified as a manager (basically duplicating Cowling’s former job), there was confusion regarding the closing date, Cowling did apply because of the confusion, and a younger applicant landed the job. He then left and the job remains open (five years on).

The testimony and documents often conflict. They hold important lessons about the importance of a paper trail and the importance of being alive to notions of adverse effect discrimination. The upshot (according to the commission) is that the government discriminated against Cowling on the basis of her age.
[172] …Ms. Cowling was advised that her position was not being continued because the respondent was redefining her position with one what could apparently ensure services “over the long term” and that the position would be a “growth” or “developmental” position. Ms. Cowling was not advised at any time that she did not have qualifications or suitability for this position or that the position required mediation training, and no such requirement was noted in the job advertisement or departmental documents. In the absence of any contrary information as to why Ms. Cowling was not successful in the position, all of the above evidence supports a reasonable inference that Ms. Cowling’s age was a factor in her inability to secure this long-term “developmental” or “growth” position. Prima facie discrimination has been established.
The government’s defense was unconvincing, according to the tribunal:
[175] Mr. Kennedy and Mr. Mitchell testified that Ms. Cowling was not a good “fit” for the position as she did not have the skills or potential to be a mediator. First, there is no convincing evidence that mediation skills were a clear requirement for the position. …

[177] Alternatively, even if one accepts that mediation skills were required for this position, the evidence supports that Mr. Kennedy and Mr. Mitchell did not fairly assess Ms. Cowling’s mediation skills. Neither of them had seen her mediate or provided her with an opportunity to further develop her hands on mediation skills. … While Mr. Mitchell, who in my respectful view had significantly inferior qualifications to Ms. Cowling in the area of dispute resolution, was provided opportunities by Mr. Kennedy to expand his mediation training, Ms. Cowling was inexplicably denied many of these opportunities, such as regularly sitting in on mediations for learning and furthering her mediation training. Neither was she provided guidance that could have helped her to overcome any perceived weaknesses identified by her supervisors.

[178] … However, during the latter part of her tenure, the evidence supports that even though mediation training was set out in Ms. Cowling’s learning plan, Ms. Cowling was held back by Mr. Kennedy from opportunities to increase her practical experience and knowledge in mediation.

[179] Alberta also submits that Ms. Cowling was not a good “fit” in that Ms. Cowling had a somewhat confrontational nature unsuited to a mediator. … Mr. Kennedy and Mr. Mitchell point to Ms. Cowling’s demeanour during contract negotiations held during this period of time when they knew that Ms. Cowling was experiencing tragic personal circumstances, as evidence of Ms. Cowling’s personal unsuitability to be a mediator. Mr. Kennedy also acknowledged, in cross-examination that when negotiating a contract, as opposed to simply continuing as a permanent employee, the contract employee must negotiate and attempt to get the best deal. I do not find the evidence of Ms. Cowling’s demeanour during these contract negotiations, given her personal circumstances and her desire to negotiate a good contract, to be of such a confrontational nature that would support a credible justification that Ms. Cowling was not a good “fit” for the LR 2 position.

[186] Mr. Kennedy was on the interview panel that certified Ms. Cowling in the position of LRO 3 in 1999. For eight years, her contracts were renewed. She regularly received bonuses for being assessed as “fully meeting expectations.” Ms. Cowling repeatedly asked how she could enhance her performance yet Mr. Kennedy had nothing to offer and could not provide her with any recommendations in that regard. From this evidence and the evidence supporting that Ms. Cowling’s qualifications in the LRO 3 position met the qualifications of the LRO 2 position, one can reasonably conclude that Ms. Cowling did very good work, was an efficient member of the branch and was indeed a good “fit” in the position and with colleagues in the branch.

[188] The other reason Alberta puts forward as the reason Ms. Cowling did not get the job is that the organization legitimately needed to replace Ms. Cowling’s position with a “growth” or “developmental position,” and age was not a factor in this replacement.

[189] …The documentary evidence revealed that Mr. Kennedy and Mr. Mitchell developed plans that clearly appeared to exclude the possibility of Ms. Cowling continuing to work in the branch not only because of the descriptive terms used as noted above throughout the documentation but also because of the sequence of steps taken in the proposed plans which suggested that employee age was part of the reasoning in the decision to restructure the branch.

[192] Alberta argued that Ms. Cowling was considered a viable candidate during the interview process. However, the information consistently supports that Mr. Kennedy and Mr. Mitchell went through the motions of including Ms. Cowling in the candidate pool for the LRO 2 competition but with no intention of hiring her no matter the outcome. (Transcript pages 316 to 318) The information further supports that Alberta included Ms. Cowling in the interview process because Mr. Kennedy and Mr. Mitchell were concerned it would look bad and have a negative impact on morale in the branch if Ms. Cowling was left out of the process.

[197] Indeed the series of events demonstrated that the “long term” needs of the branch apparently could be met by someone who was in the LRO 3 position and who had the qualifications of Ms. Cowling. This series of events supports the view that the Respondent was looking for someone other than Ms. Cowling, someone distinguished by a younger age, who could ostensibly continue working for the branch for several years to come.
Ouch. This is a pretty damning indictment of the government’s actions--both at the time and in failing to settle this when presented with the facts. Given that Mediation Services is a neutral office that assists labour and employers to settle their differences, it will be interesting to see how this decision will affect the perception of Mediation Services by organized labour.

The remedies ordered are also fairly exceptional.

The Commission ordered the government to offer Cowling reinstatement on a one-year contract to either her old position or a comparable position. The commission then noted:
After the expiration of the one-year contract, Alberta can determine the need for Ms. Cowling’s services; however Ms. Cowling’s age cannot be a factor in future decisions not to renew her contract.
Explicitly noting that the government ought not violate the law in its administrative work (no kidding!) is a pretty big slap to the government.

The commission also ordered five years of wages paid (discounted by 30% for the contractual nature of the job). It also ordered $15,000 in general damages and interest and Cowling’s costs.

All in, these remedies are likely about a $500,000 hit. The level of remedy and the use of reinstatement is pretty uncommon. Overall, quite a decision.

-- Bob Barnetson