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Bill 26 strips farm workers' basic employment rights

Farm workers were granted basic employment rights beginning in late 2015 when the former New Democratic government enacted the Enhanced Protections for Farm and Ranch Workers Act (colloquially referred to as Bill 6). Farmers and conservative politicians were extremely hostile to Bill 6, asserting that basic employment rights would imperil the viability of agricultural operations. Despite the absence of evidence that Bill 6 harmed any farms, the United Conservative Party (UCP) promised to eliminate basic farm worker rights if elected.

On November 20, the Kenney government fulfilled this promise when it introduced Bill 26 (the Farm Freedom and Safety Act). This bill strips Alberta agricultural workers of many basic employment rights. Specifically, it precludes farm workers from unionizing, reduces the occupational health and safety protections for workers, makes workers’ compensation coverage optional, and expands exceptions to employment standards. These changes will be particularly harmful to women and children employed on Alberta’s farms and ranches.

Labour Relations

Bill 26 amends the Labour Relations Code to exclude farm and ranch employees from the definition of employee. This exclusion effectively precludes these workers from forming or joining a trade union. This exclusion is contrary to Section 2(d) of the Charter of Rights and Freedoms, which protects workers’ freedom to engage in associational activity.

In 2001, the Supreme Court of Canada (SCC) decided (in Dunmore v Ontario (Attorney General)) that completely excluding agricultural workers from the ambit of Ontario’s Labour Relations Act (LRA) was unconstitutional. Specifically, the vulnerable nature of farm workers means that, farm workers were “substantially incapable of exercising their fundamental freedom to organize without the LRA’s protective regime.”

If challenged, those portions of Bill 26 that exclude agricultural workers from forming or joining a union will almost certainly be struck down as unconstitutional. A Charter challenge is, however, unlikely because a challenge normally requires a factual case to get started. Specifically, it requires a live case of farm workers who have attempted to exercise their associational rights (e.g., collectively bargaining) and failed.

As far as I know, there have been no efforts to unionize or collectively bargain in Alberta’s agricultural industry. This reflects the vulnerability of farm workers as well as the small size and transient nature of most farm workforces. The exclusion of farm workers from the ambit of the Labour Relations Code by Bill 26 makes it unlikely any will try in the future because they would have no protection against termination for organizing and no capacity to strike to enforce their collective bargaining demands. This, in turn, means no challenge is likely to arise.

Injury Prevention

Although Bill 26 is silent on the matter, the government has indicated that farms will no longer be subject to the detailed safety rules set out in the Occupational Health and Safety Code. The rudimentary safety rights set out in Occupational Health and Safety Act would continue to apply.

Injury Compensation

At present, farms and ranches with paid, non-family employees must enroll their workers in the workers’ compensation system—like virtually every other employer in every industry across Canada. Workers’ compensation coverage provides wage-loss, rehabilitation, and fatality benefits to workers. Workers’ compensation also precludes workers from suing their employers if the worker is injured.

Prior to 2015, such coverage was optional and relatively few farms purchased it. Some farms purchased private injury insurance. A 2015 study commissioned by the former Progressive Conservative government found that relying on farmers to purchase private insurance left a significant number of farm workers uninsured or underinsured and the private premiums were more expensive than were workers’ compensation premiums. Private insurance also left farmers open to civil suits when injuries or fatalities occurred.

Bill 26 makes two changes to workers’ compensation. First, it allows farmers to choose to carry either workers’ compensation coverage or private insurance coverage. The scope and nature of the private insurance coverage will be determined by regulation. Consequently, the private insurance may not necessarily provide injury-compensation benefits equivalent to those provided by workers’ compensation. Workers may be required by their employer to pay a portion of private insurance premiums (often called co-pay).

Second, Bill 26 exempts any farm with 5 or fewer employees from the requirement to carry any insurance. Further, family members and workers who have been employed for fewer than 6 consecutive months do not count towards the total of 5 employees. This criterion (see Scope of Exclusions below) means that vast majority of farm workers are likely to be under- or uninsured against injury. Employers may still provide insurance or they may leave it to workers to secure their own insurance coverage.

A less obvious concern is that allowing farmers to purchase private insurance in lieu of enrolling in workers’ compensation may open the door to a greater role for private-sector insurance providers in other industries. Some US jurisdictions allow for the private provision of workers’ compensation insurance. This typically results in poor outcomes for injured workers because private providers seek to minimize claims in order to maximize profitability.

Employment Standards

In 2015, farms and ranches employing paid, non-family workers were made subject to most of the provisions in the Employment Standards Code. The Employment Standards Code sets minimum standards around wages, vacations and statutory holidays, various job-protected leaves, and the termination of employment.

Bill 26 makes two main changes. First, farms and ranches that employ 5 or fewer workers are entirely excluded from the ambit of the Code. This means that none of the basic employment rights that every other worker has apply to workers on these farms. Again, family members and workers employed for fewer than 6 consecutive months do not count towards meeting the 5-person threshold. This change has the effect of excluding most farms from the ambit of the Code (see Scope of Exclusions below) and thereby strips most employment protections from most farm workers.

The effects of this exclusion will be significant for farm and ranch workers on farms with 5 or fewer employees. For example, there will be no minimum wage, vacation time, statutory holidays, or required termination notice for these workers. Excluded workers under 18 will continue to have no limits on what sort of work they can do, under what conditions, and for how long because child labour laws don't apply. Excluded workers will have no access to job-protected parental, compassionate care, family responsibility, or domestic violence leaves, all of which are disproportionately accessed by female workers.

Employers can, of course, voluntarily comply with employment standards. But the reason governments enshrine these rights in legislation is that employers typically do not voluntarily comply with such standards. One consequence of eliminating these rights is that paid farm work will become even less attractive than it already is, thereby likely heightening the existing farm labour shortage.

Further, Bill 26 extends the definitions of agricultural operations to include mushroom farms, sod farms, nurseries and green houses. This change increases the number of workers whose rights have been taken away. The small number of farm workers on farms with 6 or more workers (and thus who continue to fall within the ambit of the Code) continue to have no protections around hours of work and rest periods, or access to overtime provisions.

Scope of Exclusions

The government has not released any public estimates of how many workers are employed in operations of five and fewer employees and, thus, will be excluded from employment standards and mandatory injury insurance. The best source of data on agricultural employment is Statistics Canada’s Agricultural Census. We can use this data to estimate the impact of Bill 26.

The 2016 Agricultural Census suggests there were 33,498 paid farm workers employed on 9,565 farms, yielding an average of 3.5 workers per farm. These workers are evenly split between full-year and part-year (i.e., seasonal) positions. Of the 9,565 farms that employed paid workers, 3,472 farms (36.3%) employed solely part-year workers. The other farms employed some combination of full-year and part-year workers.

The Census data does not perfectly map onto the categories proposed in Bill 26. For example, the Census totals include paid family members (other than owner/operators), who are explicitly excluded from the calculations in Bill 26. And the category of part-year employment does not perfectly map onto the “employed for six consecutive months” criterion of Bill 26. Further, the average number of employees is likely to mask significant differences between a small number of large and/or labour-intensive operations (with more than 3.5 workers each) and a very large number of operations with fewer than 3.5 workers each.

That said, we can draw some tentative conclusions based upon this data:

  • Almost all employees on farms that employ only part-year workers will be excluded from employment standards and mandatory injury insurance because these employees will be excluded from the employee count due to the short duration of their employment and, thus, will push the farm below the “more than 5” threshold.
  • Many workers on farms with at least some full-year employees will also be excluded because the farm will still be below the “more than five” threshold.

I would estimate that Bill 26 will exclude workers on 80% of farms from basic employment rights guaranteed in legislation and the requirement to have at least some form of injury insurance.

Absence of Rationale

Bill 26 will have a significant deleterious effect on farm workers, who are already economically vulnerable. Oddly, there is seemingly no compelling reason to make these changes. In the press release announcing Bill 26, the government asserts that the bill “fulfils the government’s commitment to consult with farmers and ranchers to build farm workplace legislation that works for them.”

This rationale ignores that the purpose of employment legislation is primarily to protect workers from, and attenuate the consequences of, exploitative and injurious work. Bill 26 entirely ignores the primary purpose of employment law. Instead, the government emphasizes the need to minimize the direct and indirect costs of regulation for employers in order to address the “damaging policies of the previous government to ensure sustainable farms.”

There is, however, no evidence that the provision of basic employment rights to farm workers in 2015 resulted in significant economic harm to agricultural employers. For example, there has been no change in the trajectory of farm numbers, which has been slowly diminishing since the 1940s (mostly through the consolidation of smaller, unviable farms into larger ones).

Obfuscation of Effect

The government’s press release goes out of its way to obscure the actual impact of Bill 26:

  • Allowing farmers to purchase inferior or no injury insurance (thus leaving workers vulnerable to being uninsured or underinsured) is framed as “allow[ing] employers to have choice".
  • The elimination of basic employment rights (e.g., minimum wage, child labour laws, job-protected parental leave) for most farm workers is framed as “reducing regulatory costs” and the practical impact on workers is ignored.
  • Precluding workers from forming or joining a union (thereby violating workers’ freedom of association) is not even mentioned.
  • Eliminating most detailed safety rules (which will make farms less safe) while retaining only the most rudimentary of safety rights is framed as “ensur[ing] basic safety standards on all farms”.

Overall, the government’s communication about Bill 26 has been heavily torqued and the impression it gives about Bill 26’s impact is misleading.

Analysis

Overall, Bill 26 has three broad effects. First, its strips farm workers of basic employment rights enjoyed by every other worker in Alberta. This includes the right to join or form a union, the right to be enrolled in workers’ compensation, and (for 80%) the possession of basic employment standards rights. It also eliminates the application of most safety rules.

Second, the elimination of farm workers’ right to join or form a union violates these workers’ Charter freedom to associate.

Third, these changes will reduce costs to agricultural employers by transferring them to workers in the form of poorer working conditions. Ironically, a bill touted to “help get Albertans back to work” makes paid farm work less attractive and may further intensify the agricultural labour shortage.

In rolling out Bill 26, the government has intentionally hidden the negative consequences of the bill and ignored the absence of a defensible rationale for these changes. It is difficult to see the changes as anything other than political pandering to farm operators and their allies while punishing vulnerable workers.

Bob Barnetson

Dr. Bob Barnetson is a professor of labour relations at Athabasca University. His research focuses on the political economy of workplace injury, farm workers, and child labour in Alberta. He’s the author of The Political Economy of Workplace Injury in Canada (Athabasca University Press, 2010), co-editor of Farm Workers in Western Canada: Injustices and Activism (University of Alberta Press, 2016), co-author of Health and Safety in Canadian Workplaces (Athabasca University Press, 2016), and author of Canada’s Labour Market Training System (Athabasca University Press, 2018).

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