Despite realpolitik, new farm worker safety rules are a significant win

Last week, the Alberta government announced new Occupational Health and Safety (OHS) rules affecting 14,000 paid farm workers on 4,200 Alberta farms and ranches. These rules represent a significant win for farm workers by setting out minimum safety requirements.

The announcement of new OHS rules concludes at two-and-half-year struggle over the degree to which Alberta's employment laws should apply to paid, non-family workers on farms and ranches.

The Notley government's 2015 extension of basic workplace rights to farm workers corrected perhaps the most egregiously wrongful employment policy of Alberta’s former Progressive Conservative governments. Alberta's long-standing refusal to allow this very vulnerable group of workers to, for example, know about the hazards in their workplace or refuse unsafe work, contributed to the high rate of injury in this dangerous occupation.

The rollout of workplace rights for farm workers in Alberta has been a lengthy process:

• Mandatory workers' compensation coverage for paid, non-family farm workers came into effect in early 2016. Since then, some 1,860 claims for injuries have been accepted by the Workers' Compensation Board.
• A set of industry-dominated technical working groups hashed out the recommendations for how the Employment Standards Code, the Labour Relations Code, and the OHS Code would apply on Alberta's farms and ranches.
• In January of 2018, most employment standards rules began applying to paid, non-family farm workers. The notable exceptions were the continued absence of rules around hours of work, rest periods, and overtime. These exceptions create a heightened risk of fatigue-related injuries.
• Also in January of 2018, paid farm workers gained the right to join a union and collectively bargain, although none have yet been certified.
• The rules about paid child labour on farms still need to be sorted out.

Alberta's new OHS rules will come into effect on December 1, 2018. While advocates for farm worker rights have much to celebrate, it is important to be mindful of Alberta’s poor record of enforcing its OHS laws and a number of troubling exceptions granted to the farm lobby, particularly the ongoing use of legacy (i.e., old) equipment.

The legacy loophole

In all other industries, a professional engineer must certify equipment that has been modified or is being used in a way that does not comply with the manufacturer's specification. This certification requirement is intended to ensure that the modification to or "off-label" use of the equipment is safe. Similarly, powered equipment over 700 kg must have rollover protection.

These requirements have been relaxed for farms and ranches in the new OHS regulations. Safe work procedures (i.e., “Be careful!”) can be substituted for actual rollover protection. And a "competent" person—who does not need to be an engineer—can give the okay around modifications to or off-label use of equipment.

Competent is defined as "adequately qualified, suitably trained and with sufficient experience to safely perform work without supervision or with only a minimal degree of supervision." In practice, this will mean that someone with experience using that piece of equipment (likely the employer) can sign off that modifications or off-label uses are safe.

This is a troubling a definition of competency. The ability of farmers to meaningfully assess the capacity of a piece of equipment to perform work without risk of mechanical failure or to determine what off-label uses are safe is suspect, as most lack the education and skills of professional engineers.

Further, farmers have a conflict of interest in making such determinations. If a farmer decides equipment is unsafe, this will entail additional costs to the farmer in the form of repairs, replacement of the equipment, or more complex and likely slower operating procedures. These reasons are why every other industry requires a truly competent and disinterested third party to certify equipment.

The certification of legacy equipment is a particularly important issue in farming because equipment often remains in use for decades. Along the way, user manuals get lost (so farmers may not know what the original manufacturer specifications were), safety standards change (i.e., many tractors don't have roll bars or cages), and equipment gets modified, repurposed, and otherwise subjected to "emergency repairs" in the field.

Of course, not all legacy equipment is unsafe or is used in ways that are contrary to manufacturer specs, but some legacy equipment will have modifications or alternative uses that are unsafe. For example:

• A guard might be cut off a machine to make it easier to clear a jam, perhaps while the machine is running.
• The bucket of a front-end loader may be used as a lift to allow a worker to change a light bulb.
• Rollover protection may be cut off, shortened, and reattached by a farmer with rudimentary welding skills in order to allow a tractor to fit through a barn door.

The 2014 death of farmworker Stephen Murray Gibson illustrates the consequences of a permanent exemption from meeting manufacturer specs and other standards. Gibson was killed after becoming entangled in an unguarded power take off (PTO), a drive-shaft that spins at high speed to transfer power from a engine to some other equipment. Fatigue may have played a factor in his death—he had been working for 28 days straight—but an important root cause was the unguarded PTO. According to the fatality inquiry, the employer, "… bought from a neighbour a 40- or 50-year old grain roller and PTO. The roller has three safety shields on it; the PTO, although it would originally have had a safety shield, at the time Mr. Hamilton acquired it, did not. No manual came with the equipment, either."

Given that farm equipment can often stay in use for decades, allowing employers to approve modifications or uses that deviate from manufacturer's specs means generations of farm workers will continue to be exposed to unremediated hazards. This is unacceptable in any other industry because the result will be an increased chance of worker injury or death.

Not only do Alberta's new OHS rules allow this practice to continue, but they also allow unsafe legacy equipment to be sold on to other farmers. When questioned during the press conference about why the government would allow this to happen, the labour minister at least had the decency to look uncomfortable as she deflected the question by saying annual certification of legacy equipment was not practicable.

The realpolitik of farm safety

The assertion that addressing unsafe legacy equipment is not practicable is simply untrue. Where such equipment has been modified or is used outside of manufacturer specs (or the specs are no longer available), the government could have required certification by an engineer within a reasonable time period. Equipment that failed certification could have been required to be brought into compliance or retired within another reasonable time period. The rules about annual recertification could have been relaxed to require recertification only when the equipment or use changes.

Instead of implementing some kind of sunset clause on hazardous equipment, the government effectively took a pass. The result of this choice by the government will be more injured and killed farm workers.

My belief is that this decision represents a political saw-off between the government and the farm lobby. Producer groups sought to minimize the financial impact of Bill 6 on farms. Consider, for example, their recommendations around the application of the Employment Standards Code which seek to grind wages and eliminate regulation on hours of work. Producers also talked the government into funding much of the cost of compliance with the new rules. Individual producers are eligible for up to $10,000 in government grants to improve safety, and the new industry safety association (AgSafe) also got $170,000 in start-up money.

In general, producers agreed to relatively low-cost OHS rules (such as hazard assessments), while pushing back on higher-cost requirements. These higher-cost requirements (for which farmers got blanket instead of case-by-case exceptions) include the certification of legacy equipment, the provision of adequate washroom facilities in remote locations, installation of rollover protections on tractors, and structural changes to allow effective fall protection when working on bins and other structures.

Basically, the farm lobby is trading workers' health and lives to maintain their members' profit margins. This is at once economically understandable and morally reprehensible.

The government's willingness to grant exceptions that will lead to these kinds of injuries reflects that they want the support of producer groups in the run-up to the 2019 election. Specifically, the Notley government wants to deny Jason Kenney the opportunity to campaign against Bill 6. Having all provincial farm groups say the new rules are reasonable and should not be rolled back will help the NDP in its efforts to get re-elected for a second term. The government can now declare victory on farm safety and close this difficult file.

To be fair to the government, it took a lot of political courage to provide basic employment rights to farm workers. It was courage that more than 40 years worth of conservative governments couldn't muster, and workers died as a result.

These new OHS rules do contain the potential to make farm workers significantly safer on the job, but whether farms and ranches actually become safer depends upon the degree to which the government meaningfully enforces these rules. Based on the government's OHS record in other industries, I'm skeptical that we'll see much enforcement except when a worker is seriously injured or killed (i.e., after it's too late). And, unfortunately, the exceptions the government allowed under these rules mean workers will continue to be needlessly injured and killed by unsafe legacy equipment.

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Photo credit: Scott Goodwill on Unsplash.