Workers' Forum Online

In the middle of summer in the midst of a global pandemic, the Alberta government launched a major assault on working people through the review of two major pieces of labour legislation, the Occupational Health and Safety Act (OHS Act) and the Workers' Compensation Act. The review was launched only a few days after the same government introduced Bill 32, Restoring Balance in Alberta's Workplaces Act, 2020, which passed on July 29.[1]

Workers' Forum is providing information about the review of both the OHS Act and Workers' Compensation legislation. Everything in the government review is to attack workers' rights, dignity and voice, and to serve the narrow private interests of the rich employers who constantly complain of red tape and administrative burdens when it comes to health and safety at the workplace.

Close attention has to be paid to the process and methods through which the government is abdicating the responsibility of the state to care for the health and safety of all. The process systematically concentrates power in the hands of the executive to dictate a course of action which is partisan to narrow private interests. To finagle the passage of its anti-worker legislation, in both these cases, as well as for the passing of Bill 32, the government posted online surveys and guides for written submissions all of which are processed behind closed doors. It calls this process "consulting" with the people.

The OHS Act introduction to the survey says, "Your feedback will help us determine what changes may be needed in the OHS Act to improve processes for employers and workers."

The form of the survey is a set of questions for respondents to answer. Written submissions were also accepted. Neither the results of the surveys nor the written submissions are to be made public but rather become the private property of the Ministry of Labour and Immigration.

The questions the review asked are manipulative, suggesting that any recognition of rights and any protection of the workers must be eliminated as a block to economic recovery and employers who are called "job creators."

The OHS Act survey closed on August 12 and has since disappeared. No one who responded has been able to look at their own responses or change or complete the survey after that date. Instead they received a terse email: "This survey is closed. Thank you for your interest." Workers consulted by Workers' Forum say they expect that now manipulated responses will suddenly appear and be cited to reinforce any anti-worker changes contained within the legislation.

The times call for public discussion, formal consultations and presentations. These are not mere formalities but comprise a prelude to governments introducing legislation or amendments to legislation which can be perceived as being legitimate and fair. The process the government is using is self-serving and perceived to constitute outright attacks on the rights of working people in the name of expediency in reopening the economy.

It is becoming increasingly evident that narrow private interests are dictating the removal of any limitations on the rich becoming richer. They dictate that no former institution, organization, tradition or way of proceeding with government work must be allowed to stand in the way of serving their private interests.

This creates a most dangerous situation for workers' working and living conditions and their right to a say over issues that affect their lives. In fact, the seizure of the government executive by powerful private interests threatens the society as a whole and the people's capability to identify problems and present their views and pro-social solutions and to claim what is theirs by right. The private interests that have seized control of the government executive want to sweep away any hindrance to becoming richer and more powerful at the expense of the people including their health and safety.

Alberta workers are mobilizing against this attempt to silence them and trample on their rights. Workers' Forum is calling upon all Canadian workers to join these mobilizations to fight for the rights of all and hold the Kenney and similar governments to account for their anti-worker and anti-social activities.

Through mass mobilization, working people can defend their dignity, defeat these attacks on their rights and open up a path for their voice and needs to become decisive in the affairs of society.

Note

Review of Alberta's Occupational
Health and Safety Legislation

The Occupational Health and Safety Act (OHS Act) is a major component of Alberta labour legislation. The Act states that its purpose is the promotion and maintenance of the highest degree of well-being of workers, the prevention of worksite incidents, injuries, illnesses and diseases, and the protection of workers from factors and conditions adverse to their health and safety. According to the Act, workers have three basic rights regarding their health and safety: the right to know about workplace hazards that may impact their health and safety; the right to participate in health and safety matters in the workplace; and the right to refuse work which is unsafe or which they are not competent to do safely.

The review of the OH&S legislation was conducted through a survey with questions provided by the Ministry of Labour and Immigration. In the introduction of the survey, the Ministry states its intention to make major changes to the Act to lessen the prescriptive nature of the Act to give more flexibility and responsibility to the parties at workplaces.

The document says: "While legislation establishes and sets basic standards, the government is responsible to develop and enforce the law but not manage OHS in individual workplaces. Legislation sets the framework to ensure the health and safety of a work site through the direct participation of work site parties."

In fact, the entire survey is based on a desire of employers and contractors to lessen what they consider regulatory and prescriptive burdens so they can trample on those rights of workers that are formally recognized in the Act.

Joint Health and Safety Committees

The OHS Act prescribes that an employer must establish a joint work site health and safety committee if the employer employs 20 or more workers and work is expected to last 90 days or more.

The Ministry finds this clause of the Act to be too restrictive for the parties and inhibits the parties' ability to act with innovation and flexibility at the work place. The solution proposed by the Ministry is the introduction of the concept of "low risk work site" in the Act. On such sites, the requirement for a joint OHS committee would not apply. The survey asks respondents to comment on the conditions under which a work site could be declared a "low risk work site."

It is important to keep in mind that whatever responses the Ministry receives to this question are not provided in any form so are not subject to public scrutiny. It is a pragmatic manoeuvre to justify the changes that the Ministry and the private interests want to make. The fact that such a question is even raised in the midst of the global COVID-19 pandemic, where there is clearly no such thing as a "low risk" site, shows the self-serving and dishonest nature of government executives and the financial oligarchs and that the aims of what they are attempting to impose on society are anti-social. It shows too that the refusal to hold public discussions on how serious problems facing society can be provided with solutions is harmful to society. The fact is that no matter what problems face a society, alternatives which are safe are within our reach. It is not a foregone conclusion that people have to die from COVID-19 or any other pandemic. They can be protected and the economy does not have to be shut down. But none of this is discussed.

Right to Refuse Dangerous Work

Another major example is the issue of dangerous work and a worker's right to refuse dangerous work, a basic right that is formally recognized by the Act.

"The right to refuse is intended to address situations where the right to know and the right to participate have failed to address a health and safety concern. In Alberta, workers have the right to refuse work that presents a danger. Employers cannot penalize workers for refusing to work or otherwise complying with their obligations under the OHS Act. A worker may refuse work that may endanger themselves. However, the OHS Act does not define 'danger' or place limitations on refusals where other workers or the public may be endangered. Providing more clarity in the OHS Act will help balance the protection of workers and others who may be impacted by a work refusal."

"1. How can 'danger' be better defined to provide more clarity as to when the right to refuse unsafe work applies?

"Are there circumstances in which the right to refuse unsafe work should be limited? Please explain and provide examples.

"How can the process outlined in the OHS Act be streamlined to provide work site parties with more flexibility to address work refusals in the workplace."

The right to address unsafe conditions with a refusal to work is negated when governments pass laws which decree that a work site is safe. The attempt is to make any refusal of what an individual or a union or other collective considers unsafe illegal. First, no public opinion is created to justify the foundation of a law which is passed. Then, if an individual or collective takes action based on their conscience of how they discern their interests are served, they are criminalized. The levels of confusion, anxiety, anarchy and violence soar as a result.

The fact is that in a modern society it is the responsibility of governments to protect the polity and all its members and insist that employers do likewise no matter who they be. The same duty falls on every member and collective of society. If governments abdicate their responsibility and protect employers who also abdicate their responsibility then it is the duty of individuals and their defence organizations to step in. That governments are making it illegal to do so merely shows the kind of battle the workers have in front of them. It reveals the need for workers to hold forums amongst themselves where they can discuss how these matters pose themselves, so that no one is forced to fend for herself or himself without the weight of their peers organized to back them up.

Today, taking stands for what is just requires upholding principles as a matter of right. Upholding the dignity of labour, opposing the anti-social agenda to pay the rich, fighting for the rights of all, are all positions of principle which open the path for a society which advances by humanizing the natural and social environment. The working people must establish for themselves the principled basis for their demands and unite their peers in action to realize them.

The government executive seems to want to take the route of the Harper government which, in 2014, amended the Canada Labour Code so that the Minister of Labour, who is bound by the code to investigate the exercise of a right to refuse, may decide not to investigate if the Minister considers that the matter is trivial, frivolous or vexatious, or that the continued refusal to work is in bad faith. In that case, the worker who refused to do the unsafe work is considered to be in contravention of the Labour Code and is penalized.

The Harper government also introduced a new definition of danger in the Labour Code, which says that a danger is "any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered." The imminence of the threat is what was added. Who decides the limitations on the right to refuse unsafe work is critical because it is on this basis that judgements are made to vindicate or penalize a person or collective for exercising their right to refuse unsafe work. When a minister or government usurps the power to decide whatever they want in a manner that they cannot be held to account by those who are affected by the decision, and when everything becomes a matter of litigation in courts of law and the decisions reached by the courts are also manipulated, it is a sure sign of tyranny.

The questions posed on the matters of concern with regard to occupational health and safety are all self-serving and of a calibre to make sure the government and employers cannot be held to account as concerns what constitutes duties as defined and required by a modern democratic society. They reveal a government intent on further abdicating its social responsibility and permitting employers to do likewise. Attacking workers' rights in the name of flexibility and reopening of the economy is not acceptable. The very idea of using a survey as a consultation on matters of life and death, especially at this time of the COVID-19 crisis, is unacceptable and should be opposed.

Occupational Health and Safety:
The Experience of Cargill Workers

When the Cargill plant in High River re-opened after a COVID-19 outbreak it was the workers' union, UFCW Local 401 which met the returning workers with masks and safety information.

Under current legislation in Alberta, Occupational Health and Safety (OH&S) is responsible for enforcing compliance with provincial legislation. The legislation states enforcement is through "education, work site inspections, and other enforcement measures" including "proactive inspections and responding to complaints and incidents at provincially regulated workplaces."

The Alberta government's recent review of OH&S legislation is based on neo-liberal mantras that speak about the need for "flexibility," to rid the legislation of "burdensome" and "over-prescriptive" regulations that inhibit "innovation." A central aim of the review is to smash any public authority responsible for establishing and enforcing standards in the public interest and replacing it with rule by narrow private interests.

The experience of workers at the Cargill meat packing plant in High River, Alberta and their community reveals what such an aim and catch-phrases and self-regulation serving private interests mean in real life. Not until hundreds of workers tested positive for COVID-19 with many becoming sick and two workers and a family member dying from the virus did OH&S finally "inspect" the worksite. It did not inform the union of the inspection as required by law; it did not speak to a single worker and did not inform or convene the worksite OH&S Committee. No one from OH&S actually went into the plant. The "inspection" was carried out by Cargill management who showed the OH&S inspectors part of the plant with a video camera, at a time when the kill floor was not even operating.

Despite the claims of "everyone" being involved in the inspection, the company called the shots. It actively worked to exclude the workers and the union from even receiving information, never mind upholding their right to participate in making decisions about health and safety issues.

OH&S followed the directives of a premier who was hell bent on keeping the meat packing plants open. It imposed no penalties on Cargill for what is widely perceived by Albertans as gross negligence. OH&S concluded everything was fine and did not order the plant to shut down to avoid contagion until such a time alternatives were put in place which protect the workers within that specific working environment.

The actions of the workers and their union finally forced Cargill to act, albeit reluctantly. For as long as it could, Cargill resisted implementing the measures the UFCW Local 401 proposed. It resisted closing the plant, and pressured workers to return to work during the quarantine period. As a consequence, almost 1,000 workers tested positive, two workers and a family member died, and the virus was transmitted to many in the community who became sick as well.

Throughout the stressful ordeal, government has permitted Cargill to act with impunity. The organized resistance of the workers, their affirmation of their right to refuse unsafe work, their courage in speaking out and exposing the conditions at Cargill, and the determined work of UFCW Local 401 finally forced the company to shut down and to bring in the safety standards and equipment they demanded, which brought the pandemic under control at the plant.

To working people, the problem with current health and safety at the plant and throughout Canada is clear. Consultations are phony, warranted conclusions about the matter at hand are not drawn or seen to be drawn, and decision-making power has been usurped by narrow private interests. From the vantage point of those who hold class privilege and wield power to serve their narrow private interests, laws are needed which impede any resistance whatsoever on the part of the workers. Ruling elites say the problem is with workers who are lazy, greedy or unreasonable and blame them and their actions for endangering the safety of others, the economy and so on. They say that exceptional times require exceptional measures which justify the removal of regulations that are "over-prescriptive," "burdensome" and so on. They declare "flexibility" is required to remove obstacles to "innovation." The more excuses they give, the more the need to remove them from office in favour of those who bring in a pro-social agenda is revealed.

Exceptional circumstances require that standards and protocols in fact be upheld and used to find a way forward. To remove them willy nilly in the name of high ideals is in fact the prescription for anarchy, violence and terrorism, not security, coherence and unity of the people to face the dangers calmly. As it stands what is required today is to strengthen health and safety protocols to protect workers, their families and communities and the country as a whole.

Cargill workers have emerged from this ordeal with a heightened sense of their collective strength to defend their rights. They are remaining pro-active and vigilant to ensure safety precautions continue to be implemented. By speaking out and defending their rights, Cargill workers have drawn attention to problems existing long before the pandemic, conditions that threaten their health, safety and well-being. They are demanding, in essence, the right to have an effective voice and the power to decide what serves the interests of working people and the broad interests of society.

Fraudulent Review of Workers' Compensation

The Alberta government on August 14, closed the window for submissions to its Workers' Compensation Legislative Review 2020, which began on July 10. The government carried out the entire exercise like a thief in the night. On July 10 the Ministry of Labour and Immigration posted a "written submission guide" for the review with a 30-day timeline for submissions, without either a press release or a public announcement.

The review document states, "The [Workers' Compensation System] must remain sustainable, affordable, and fair in order to benefit workers and employer, both now and in the future."

The review states that an extensive review of the Workers' Compensation Act and system took place in 2016 and 2017, and substantial changes were made to the Act and system in 2018, implementing many of the recommendations of the review panel. The guide then states, "Since implementation, several stakeholders have raised concerns about the affordability, sustainability, and administrative burden of the new system." Buzz-words of the anti-social offensive such as "stakeholders," "sustainable," "reducing administrative burden" and "cutting red tape" are used to cover up the aim of making changes to the compensation system that experience has shown are totally unsustainable as concerns the health and safety of the population and the natural environment.

The workers' compensation system was a "historic compromise" in which workers gave up the right to sue their employer if they were injured or became ill in the course of their work in return for being looked after when they were injured. Under the system, workers cannot sue their employers, yet many injured workers are pushed to the margins of society and forced to fend for themselves. They often have to rely on social assistance or Assured Income for the Severely Handicapped (AISH). This violates the rights of workers and permits employers to evade and deny their responsibilities.

The online survey presented 19 topics that respondents were asked to discuss and give opinions. From the topics provided for discussion, the United Conservative Party is clearly responding exclusively to complaints and demands of "stakeholders" -- i.e. narrow private interests, to reduce benefits and reduce or eliminate the responsibility of employers for injuries to workers and unhealthy working conditions. The problems of small employers which could be provided with solutions are mixed up with the refusal of the conglomerates to take up their social responsibilities.

The pandemic has brought to light the urgency to meet the demands of injured workers for a workers' compensation system that provides every worker who is injured or becomes sick as a result of their work, full coverage for the entire time they are unable to work.

Alberta experienced the largest outbreak of COVID-19 in workplaces in all Canada. At Cargill alone, 981 workers tested positive with more than 1,500 cases linked to the plant. It is said that this was the largest outbreak in any plant in North America but in fact reporting from the U.S. meat packing and other plants is yet to be properly rendered.

Health care workers and workers in food production and processing have been and are at much greater risk of contracting COVID-19 than the general population. Many problems facing workers with compensation claims have been in need of correction for a long time. The COVID-19 pandemic has revealed even more -- as shown by the situation in health care and food processing -- the pressing need for pro-social reform.

The reopening of Alberta schools has also shone a light on the fact that Alberta teachers are not covered by workers' compensation. Moreover, the situation for substitute teachers is extremely precarious, as they not only have no Workers' Compensation coverage, but no paid sick leave or disability benefits.This is a situation that must be addressed and remedied without delay.

The review that the Alberta government conducted for the benefit of the global oligarchs who want to have free rein to trample on the rights of workers to healthy and safe working conditions is clearly designed to make sure the workers cannot act as an organized force to defend their rights and the rights of all. It has nothing to do with a discussion on what is needed to protect human beings and their society. The foregone conclusions that the government's questions and methods prompt will not make the government legislative agenda legitimate. The process does not confer the consent of the governed. It must not pass!

Workers have rights as the producers of all wealth, and the only legitimate objective of a review of the workers' compensation system would be to ensure that the rights of workers are upheld. The aim must be workers' compensation for injury and suffering work-related health problems, not employers' compensation.

Workers' Compensation Legislative Review 2020

The guide asks for opinions on 19 issues, most of which pertain to changes made to Workers' Compensation Board (WCB) legislation in 2018. In many instances, a space for respondents indicates whether they want to keep the status quo, modify a benefit or condition, or eliminate it altogether.

Workers' Forum Summarizes the Issues in the Review

- Earnings Cap: WCB benefits are now based on 90 per cent of earnings with no cap. Should a maximum insurance earnings cap be reinstated?

- Cost of Living: Cost of Living (COLA) adjustments now provide full COLA. Should they be reduced?

- Presumptive Coverage: Should presumptive coverage for traumatic psychological injuries be retained, removed or modified? When a worker is diagnosed with a psychological injury following one or more identified traumatic events in the workplace, the injury is presumed to be work-related unless proven otherwise. The guide states that as a result of this change, the number of claims accepted for traumatic psychological injuries has increased by 40 per cent.

- Health Benefits: Should employers be required to continue health benefits for workers while on WCB?

- Interim Relief: Should Interim relief for hardship available to workers and employers be continued or removed from legislation? The guide reports 98 requests for interim relief while awaiting a decision, 96 from workers and 2 from employers, with only 15 requests granted.

- Reinstatement of Injured Workers: Should employers be obligated to reinstate injured workers when they are ready to return to work? The information provided suggests that the government may exempt small employers and impose a post-accident time cap. It notes the employer's legal duty to accommodate, and that a worker's only recourse is through a human rights complaint, which take an average of 793 days to resolve in Alberta.

- Termination of Modified Work: The guide notes that some stakeholders are demanding that a worker fired for cause should lose their WCB benefits. The comments in the guide indicate that the Ministry is not interested in pursuing this particular, obviously illegal, proposal.

- Should all fund "surpluses" be returned to employers? The surplus is defined as the amount in excess of the fully-funded ratio (114-128 per cent). Surpluses can now be used for health, safety and disability management initiatives, as well as being returned to the employer.

- Request for reconsideration: 2018 legislation introduced a three-step process for reconsideration of the decisions of the Appeals Commission. Should the legislation revert to a one-step process?

- Time Limits for Appeals: Workers now have two years to appeal a decision of the WCB review board to the Appeals Commission. Should the time limit remain or revert to one year?

- Benefit of the Doubt: This language was added in 2018. The guide suggests the change was not substantive and does not need to be revised.

- Industry Associations: Should legislative oversight of the seven industry health and safety associations funded through mandatory dues paid by employers be retained or is such oversight "intrusive?"

- Occupational Injury and Disease Advisory Committee: The Committee was established in 2018, at which time the list of occupational injuries and diseases had not been updated for four decades. Should it be retained or removed?

- Choice of an Independent Medical Examiner: A worker can now choose an independent medical examiner from the roster maintained by the Medical Panels Office rather than being assigned a doctor. The guide suggests this does not cause delays or problems however it neglects to mention that a worker's ability to choose is quite often a farce since in some specialties only one physician is on the roster.

- Selection of WCB Board and WCB Review Panel: The Board and periodic review Panel are now chosen from nominations put forward by organizations representing workers, employers and the public. The comments indicate that the government plans to return to selection by government alone.

The final question is, "Do you have any suggestions for streamlining the Act and associated regulations for reducing red tape, regulatory and/or administrative burdens, while still supporting injured workers?"

Montreal Demonstration for Regularization
of Status of All Essential Workers

Montreal
Saturday, August 22 -- 10:00 am
Ministry of Immigration, Francization and Integration
1200 Saint-Laurent Blvd
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Stand Up for Dignity invites you to come out and join us. This demonstration is part of the intensification of our actions until the federal and provincial governments reconsider their position and propose a regularization program that includes ALL essential workers who have sacrificed themselves for Quebec and Canada during the pandemic.

Cross Country August 23 Day of Action
Demands Status for All

The ruling elite have concocted categories of people based on state-determined criteria -- citizens, permanent residents, temporary workers seeking permanent status, temporary workers with no right to seek permanent status, guest foreign workers, foreign students with and without the right to seek permanent status who pay huge sums to study in Canada and have the right to work while they study, undocumented workers in a state of legal or civil death, and others. The division of the people into these categories allows the ruling elite to super-exploit those accorded fewer rights, a situation that is exacerbated by the COVID-19 pandemic. These divisions serve to deprive the people of a consciousness of what is happening which, in turn, seeks to weaken the resistance of the working class and its ability to defend all its members.

On August 23, join with working people across the country to take a bold stand in defence of the rights of all! Full and permanent immigration status for all. No more racism, no more deaths, no more exploitation, STATUS NOW!

Sherbrooke
2:00-4:00 pm
Constituency Office of MP Élisabeth Brière,
1650 Rue King Ouest
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Montreal
2:00-5:00 pm
Festive marches will take place in four neighbourhoods:
Parc Ex, Montréal Nord, Côte des neiges and downtown.
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Toronto
2:00-4:00 pm
Immigration and Refugee Board and the
Canada Border Services Agency Offices, 74 Victoria St.
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Windsor
3:00-5:00 pm
Immigration and Refugee and Canada Border Services Agency Offices,
1250 Walker Rd.
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Regina
1:00 pm
Constituency Office of MP Michael Kram,
2723 East Quance St.
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Vancouver
3:00-5:00 pm
Citizenship and Immigration Offices, 877 Expo Blvd.
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Join Mobilizations Which Defend the Rights of All!

Note

Review of Alberta's Occupational Health and Safety Legislation