2015 Roundup: What a Year it's Been

There are, needless to say, an enormous number of stories and cases that come out in a given year. I don't intend to even attempt to give a thorough or fulsome "year in review" here, but I would like to revisit some of the things I've posted about in 2015.

Essential Services Legislation

In labour law, the year started off with a bang when the Supreme Court released Mounted Police Association of Ontario v. Canada (Attorney General) (which declared that workers have a right to join an independent union), Meredith v. Canada (Attorney-General) (which upheld a government-imposed rollback on wage increases for RCMP officers), and Saskatchewan Federation of Labour v. Saskatchewan (which recognized that workers have a constitutional right to strike and struck down Saskatchewan's essential services law). It's still not clear what impact these cases will have in the long term, though Alberta, at least, engaged in consultation on a new essential services law in October, to bring its law in line with the standards set out in Saskatchewan Federation of Labour.

The Saskatchewan government also introduced amendments to The Public Service Essential Services Act (the Act which had been struck down in Saskatchewan Federation of Labour) which have since been passed by the Legislature (though the new legislation isn't yet in effect). The Saskatchewan Federation of Labour seems to approve of the new law. A summary by employer-side law firm Macpherson Leslie & Tyerman is here; union-side lawyer Greg Fingas discusses the new law here. Perhaps the best summary, though, is this tweet from Eric Adams at the University of Alberta:

Striking down a law is often just the beginning in the life of a law. The sky did not fall. https://t.co/6T3UhxI7FW

— Eric Adams (@ericadams99) October 15, 2015

That said, MPAO, Meredith, and Saskatchewan Federation of Labour were really just completing the legal journey that began in 2007 with the B.C. Health Services case, and B.C. Health Services, while undoubtedly significant, didn't send Canadian labour relations flying arse-over-teakettle. But unions are undoubtedly more assertive in challenging labour legislation in court; unions in Nova Scotia, for instance, will be launching a Charter challenge against the recently-passed Bill 148, The Public Services Sustainability (2015) Act, which restricts, among other things, wage increases in the public sector. We can expect further challenges to labour legislation, but I suspect (as I've said before) that the overall impact of the 2015 cases will be relatively modest.

Alberta: Bill 6

2015 ended with a bang, too, with much furor (including, apparently, death threats aimed at Premier Rachel Notley) over Alberta's Bill 6, The Enhanced Protection for Farm and Ranch Workers Act, which extends to paid farm workers similar protections as other workers under workplace legislation: occupational health & safety, workers' compensation, labour relations, and labour standards. Bill 6 recently received royal assent on December 11, 2015, but with the significant amendment that the new protections found in Bill 6 will no longer apply to family members or unpaid workers.

(As an aside, I posted a while back about Bill 6 and that post got some traffic from a forum where people were discussing the Bill. The question of OH&S and WCB coverage for farm workers in Saskatchewan came up. Someone kindly posted a link to this blog as a source of information, but with the comment that "...but it's not very clear." A  humbling reminder.)

You said it, inspiremybusiness.com.au.

 
As the Alberta Government's website states:

Who’s affected

Alberta farm and ranch producers with paid employees who are not the owner or related to the owner will be affected by Bill 6.

This means that family members can continue to contribute to farming operations as they always have, and neighbours can still volunteer to help each other out

Still, paid farm workers in Alberta will now probably have the most extensive protections of any jurisdiction in the country. (Though this will still be subject to regulations - which might limit the application of some provisions on farms.) As I mentioned back in November, in Saskatchewan we don't have mandatory WCB coverage for farms, nor are farm workers entitled to many labour standards. Ontario farm workers (including fruit pickers) can't unionize effectively under the misleadingly-titled Agricultural Employees' Protection Act. So it will be interesting to see how Bill 6 develops in 2016 as the Alberta government crafts its regulations.


Federally: Bill C-377 and Bill C-525

Federally, the new Liberal government has blocked, and has promised to repeal, the intrusive (and likely unconstitutional) Bill C-377, which would have required unions to disclose publically (not just to their members) employee salaries, donations to political and social causes, contracts with businesses or other organizations, amounts spent on legal fees and strike support...the list goes on. Bill C-377 was, like the Conservatives' pointless fight over niqabs at citizenship ceremonies, a mean-spirited jab at people and groups that the Conservatives seemed to feel were good political targets. And like the niqab ban, it had effectively no practical value beyond, I suppose, rallying the Conservative base. Professor Adams, again, suggested that the legislation ran afoul of the division of powers between the federal and provincial governments (it's ostensibly a tax measure - federal jurisdiction - but intrudes into the regulation of all unions regardless of jurisdiction); others have suggested that it will undermine solicitor-client privilege (since unions would have to disclose legal fees and, likely, legal representation), infringe upon the privacy of union employees and those dealing with unions, and violate the Charter protections of freedom of association and freedom of expression. Prof. David Doorey pointed out that it singled out unions for greater and more detailed financial disclosure (and, again, public disclosure) than other organizations such as charities. Bill C-377 is a bloody mess, legally, practically, and constitutionally, and should have died the usual ignominious death of a private member's bill. Thankfully, it's on the way out.

Bill C-525, which would have made it harder to unionize (and easier to decertify, i.e. de-unionize) for employees under federal jurisdiction, is also on the chopping block.

Locally: Saskatoon Transit

But in Saskatoon, the dramatic labour dispute between city transit workers and the City of Saskatoon (said dispute being the impetus to start this here blog) ended the year not with a bang, but with (kind of) a whimper: the City of Saskatoon and Amalgamated Transit Workers Union, Local 615, came to an agreement on the compensation owed to the workers who had been illegally locked out. But they still haven't agreed on a contract.

And on a non-labour-related note:

Trinity Western University

Meanwhile, Trinity Western University's quest for a law school continues. In January, the Nova Scotia Supreme Court declared that the Nova Scotia Barristers' Society could not deny accreditation to graduates of a TWU law school. That decision is currently under appeal. Then, in July, the Ontario Divisional Court upheld the Law Society of Upper Canada's decision not to approve accreditation for any law school at TWU unless and until TWU revokes its "Community Covenant" (at least as far as law students would be concerned). That's currently under appeal, too.

Then, a couple of weeks ago, the B.C. Supreme Court quashed the decision of the Law Society of B.C. to refuse accreditation to TWU law grads. No word yet from the Law Society on whether it will appeal.

Regardless, it seems likely that TWU's journey will be to the Supreme Court - again - especially if the various Courts of Appeal come to contradictory conclusions.

And that's it! A brief and limited, but hopefully interesting, year roundup. I didn't get a chance to use Anti-Union Ogre in this post, sadly, so I'll have to settle for this.

Farm Workers and Workplace Law

Alberta's farm industry will soon join the 21st century and farm workers will gain a variety of rights they did not formerly hold, including protection under occupational health and safety legislation, the ability to bring workers' compensation claims, and the right to unionize under Alberta's labour relations legislation.

These changes are contained in Bill 6, The Enhanced Protection of Farm Workers Act, currently before the Alberta Legislature. The Alberta government's summary of the changes can be found here. Jennifer Koshan of the University of Calgary provides an excellent commentary here (including numerous useful and illustrative links) on ablawg.ca.

The opposition Wildrose Party, predictably (it's their job to oppose after all), takes issue with the changes, insisting that "proper consultation" must take place - though they don't suggest what they might do differently in terms of farm workers' rights (other than, one supposes, not changing anything from the status quo).  The party appeals to nostalgia for the "family farm", despite farming becoming increasingly industrial and centred around large operations. 

Now, I'm not addressing one way or t'other whether 45 days is sufficient time to consult on these changes, either practically or constitutionally. But extending OH&S protections to the farm industry, at least, is not a new issue. Judge Peter Barley of the Provincial Court of Alberta, in a 2009 public fatality inquiry, recommended that OH&S be extended to paid farm workers, Alberta being  the last province in the country to grant those protections. Former Alberta Premiers Ed Stelmach and Alison Redford both promised to do so, but didn't deliver.

The other changes involve workplace provisions that are less universal across Canada; Ontario agricultural workers, for instance, have only limited rights to unionize under the anemic Agricultural Employees Protection Act; Saskatchewan farm workers have access to trade union legislation but aren't covered by workers' comp. Occupational health and safety coverage for farm workers, at the very least, would be a good first step - though extending only that protection does have some potentially interesting ramifications on workers' comp, depending on funding formulas, as set out below. Nonetheless, the coming changes (which may still change based on the consultation process) aren't new when one looks across the country.

MEANWHILE, BACK IN SASKATCHEWAN...

Unlike Alberta, Saskatchewan farm workers are covered by occupational health and safety legislation - we don't have an exclusion for agricultural workers under Part III (OH&S) of The Saskatchewan Employment Act. Similarly, agricultural workers aren't excluded from the labour relations portion (Part VI) of the SEA, so they can certify a bargaining agent (i.e. unionize) under the SEA like other workers.

(from wikipedia.org)

But  Saskatchewan can't be too smug in this regard. The Saskatchewan Employment Act still excludes farm workers - specifically, under s. 2-3, "those employees whose primary duties consist of actively engaging in farming, ranching or market gardening activities" - from most of its labour standards provisions, including those relating to overtime, vacations, and hours of work. (This exclusion, notably, doesn't apply to some of the more "industrial" types of agriculture such as egg hatcheries, greenhouses, commercial hog operations, and bush clearing - s. 2-3(2).)

And Saskatchewan still doesn't cover farm workers under its workers' compensation scheme. Section 3(1) of our Workers' Compensation Act, 2013 states:

This Act applies to all employers and workers engaged in, about or in connection with any industry in Saskatchewan except:

(a) the farming or ranching industry...

 This is despite a 2011 report commissioned by the government that recommended that agricultural workers be included under workers' compensation; or, rather:

Recommendation 1: The Workers' Compensation Act, 1979 apply to all employees in Saskatchewan with no exclusions. (p. 10)

When The Workers' Compensation Act, 2013 replaced the 1979 Act, however, the exclusion remained. Farming and ranching employers can choose to join the scheme and pay in to workers' compensation, but they're not required to. (And I suspect uptake is quite low; one article suggests that  voluntary WCB coverage in Alberta's agriculture industry is only about 3.3%.)

There are, by the way, a large range of workers who remain excluded from our WCA, as set out in The Workers' Compensation Act Exclusion Regulations, 2014. This includes such diverse industries and occupations as commercial fisheries, dairy farms, clergy, circus performers (!), door-to-door salespeople, "sports players" and, needless to say, academics. For some, there may be easily identifiable reasons. But for agricultural workers, it seems to be mostly historical - despite the fact that, as the 2011 report mentioned above states at p. 8:

Less than one-eighth of Saskatchewan’s working population live on a farm, but the agricultural sector accounts for over one- third of all work- related fatalities. Looking at the severity of injuries, each year over 200 injuries occur in the agricultural sector that are serious enough to require hospitalization

It's not all one-sided, naturally. WCB coverage means that farming operations who employ workers  will need to pay WCB premiums, though those premiums are tax deductible. Interestingly, in 2011 at least, the OH&S department was funded through Workers' Compensation. In other words, agricultural workers received the same protections under OH&S as other workers, but their employers did not have to pay WCB premiums and, therefore, didn't contribute to paying for those OH&S protections. I must admit I don't know if this funding formula has changed, but it's another interesting wrinkle. The Committee of Review, again, at p. 8:

OHS does try to provide some safety services in this excluded sector and spends over $50,000 per year on a media campaign and safety guide for agriculture and ranching. However, the high injury and fatality rates imply limited effectiveness for these efforts, the cost of which, like all OHS expenditures, is borne entirely by employers’ premiums in WCB covered industries. Many employers in agriculture do not pay for any of the publicly delivered safety or prevention services they receive. The high injury and death rates indicate that more such services are needed. Employers now covered by WCB should not be asked to pay for services in sectors that do not themselves contribute. This creates the perception of unfairness.

Furthermore, as an employer, if you're not covered by workers' compensation legislation, injured workers can sue you if the injury was a result of your negligence. This is the trade-off under the so-called "Meredith Principles", upon which workers' compensation is based: employers collectively  share the cost of funding the compensation system, in exchange for being immune from potentially damaging lawsuits and court actions in the event of a workplace injury. Now, it's possible that there may be liability insurance available, and maybe farm employers are content with the fact that litigation is expensive enough that most people won't sue. But, again, this isn't an easy or one-sided question.

And, finally, exclusion under the WCA isn't tied to the size of the farm. It doesn't matter if you're a small family operation or a massive farming concern.

However, I think it's safe to say that the question of workplace rights for workers is not as simple as "big government vs. the family farm".

UNIONS!

That said, there are certainly those who do think this is "big government vs. the family farm" or even "unionized workers vs. the family farm". I would be remiss if I did not mention that, in addition to its stated concerns about consultation (which may have some validity), the Wildrose Party has engaged in the expected anti-union histrionics. Said Wildrose Party MLA Wayne Anderson:

"It's very disappointing that they have not gone out to the stakeholders and had conversations with the farmers and the farming community. It's really unfortunate because they've gone to their union people first, and asked them about it. And of course the W-C-B (Workers Compensation Board) and the O-H-S (Occupational Health & Safety) are looking to add more to their payroll, you know more unionized employees, but unfortunately the farmers and the farming community has yet to be included in any conversations with this government."

I'll just leave this here.