TYLER OLSON, DREAMSTIME

The Most Unsafe Workplace in Alberta

Why farm workers have so few rights or protections

By Bob Barnetson

On June 18, 2006, Kevan Chandler entered a grain silo on the Tongue Creek Feeders lot, near High River. Grain had encrusted the sidewall of silo number seven—a building 90 feet high and 30 feet in diameter. Chandler tried to knock the grain loose so another employee could shovel it out. When the crust finally let go, Kevan Chandler was smothered.

Chandler was one of Alberta’s 20 farm fatalities in 2006, 16 of which were work-related. Sixteen work-related fatalities is a pretty average year on Alberta farms. While such deaths are tragic, it’s the non-fatal farm injuries that are the real story. Alberta doesn’t track non-fatal farm-work-related injuries, but a reasonable estimate (based on injuries in other, less dangerous occupations) is about 5,000 serious injuries (whereby workers can’t do some or all of their job the next day) and 50,000 minor injuries on farms each year.

This estimate excludes most occupational diseases—diseases rarely reported, because they often don’t appear until years after exposure to pesticides, naturally occurring substances, or conditions of work. They include osteoarthritis and low-back pain, eye, skin and respiratory issues, hearing loss, reproductive problems and birth defects, leukemia and skin cancer, Parkinson’s, and infectious diseases carried by animals or found in the soil. As one young Alberta farm worker told the Alberta Workers’ Health Centre (AWHC) about inhaling chemical fumes, “It’s a farm, so it’s hard not to get hurt.”

Indeed, farming is one of Canada’s three most dangerous industries. Philippa Thomas knows this. In 2006 Thomas cut her thumb while working in a stable in Cochrane. The cut became infected and led to a rare and debilitating nerve disease. She can no longer work and requires heavy medication for pain. Thomas’s employer—like most employers of Alberta’s 12,000 farm workers—wasn’t subject to basic health and safety laws. This means Thomas had no legal right to know about the hazards in her workplace and no right to refuse unsafe work. Alberta is the only province that excludes farm workers from these rights.

“Alberta farm workers live and work in 19th-century conditions,” says Gil McGowan, president of the Alberta Federation of Labour. “They have almost none of the rights and workplace protections that every other worker in this province has won over the past 100 years. I think the average Albertan would be appalled to see what [farm] working conditions are like.”

For example, Alberta excludes farm workers from employment standards such as minimum wage, overtime and vacation pay, rest periods and child-labour prohibitions. Farm workers are also precluded from unionizing, and farm employers do not have to carry workers’ compensation insurance. Workers such as Thomas, whose employers aren’t insured, can only hope for compensation if they sue their employers—a slow, expensive and risky proposition.

Alberta farmers resist regulation because they don’t believe that rules governing other workplaces are appropriate or workable for farms. According to Lynn Jacobson, president of the Wild Rose Agricultural Producers (WRAP), “We definitely can’t live with the type of rules that are in the oil industry or the industrial workplace. They just don’t apply to farms, and if they did, they would just be so onerous that we’d never be able to comply. We need to be able to set safe working standards [and] to be part of the drafting of those regulations.”

Yet after a decade of discussion, nearly 200 farm worker deaths and tens of thousands of injuries, no such regulations have emerged. Farm worker advocates are tired of waiting. “The Occupational Health & Safety (OHS) exclusion leaves workers exposed to a higher risk of death, disease and dismemberment,” explains Eric Musekamp, president of the Farmworkers Union of Alberta (a voluntary association that is denied the rights of other unions). “But it also serves to denigrate farm workers’ humanity. When coupled with the exemptions from other labour laws, we have a climate where the boss doesn’t have to worry about protecting workers’ safety or health or about providing a rest break, day off or overtime pay. This is a lower standard of care than is needed to protect the family dog or the livestock or even the fauna and flora on the farm.”

“It’s embarrassing that Alberta is so out of step with every other province,” adds McGowan. “It damages our province’s reputation and confirms the worst stereotypes that other Canadians have of us.”

A central question in the debate over farm worker safety is whether OHS regulations can save lives. Would OHS rules have saved Kevan Chandler? This is impossible to answer definitively. The 2008 fatality inquiry conducted by Judge Peter Barley recommended including farm workers within the ambit of OHS legislation. Barley’s recommendation reflects that health and safety coverage would give farm workers the right to refuse unsafe work. It would allow the province to investigate injuries and make regulations to address hazards. Had farming been subject to OHS for 10 years prior to Chandler’s death, these rights and rules may well have saved the man’s life.

The lack of basic workplace rights for Alberta farm workers goes back to the beginning of the 20th century, when farmers successfully lobbied government to exclude their labourers from workers’ compensation and from safety and minimum-wage legislation. Farmers also colluded with governments to underpay or not pay the harvest workers who flocked to Alberta each fall. Not much has changed for farm workers in the last 100 years, but since Chandler’s death a growing chorus has demanded better regulation of farm safety.

For example, last summer Liberal MLA Dr. David Swann raised the issue of child labour on Alberta farms. The employment of 10- to 14-year-olds to cultivate and harvest crops such as fruits, berries and potatoes—jobs with significant hand-labour components—is entirely unrestricted in Alberta. More broadly, farm worker advocates and opposition parties have demanded basic safety rights for all farm workers. Premier Alison Redford promised protection for paid farm workers in 2011, but her Conservative caucus continues to stall.

“It’s embarrasing that Alberta is so out of step with every other province. [A lack of rules] damages our reputation.”Gil McGowan, Alberta Federation of Labour

Tory MLAs commonly assert that farm education can reduce injury rates. “We’re trying to make sure that farmers have the right information about what is safe practice and what are some of the issues they should be aware of on-farm so that we don’t have this number of fatalities,” said then-Minister of Agriculture, Food & Rural Development Doug Horner in 2006.

Alas, no evidence suggests that education reduces injuries. A 2008 University of Saskatchewan study found an education-based farm-safety program yielded no observable improvements in practices, hazards or injury outcomes. Other researchers have reached similar conclusions, examining the Canadian Agricultural Safety Program and several US efforts. Continuing to advocate for such a demonstrably ineffective approach raises troubling questions about the government’s sincerity when its ministers say things like “any time we have a farm fatality or a farm accident, it’s one time too many. Our goal is to have zero.”

At the same time as they advocate education, MLAs downplay the efficacy of regulation. Then-premier Ed Stelmach (himself a farmer) noted in 2007 that “…just because we have regulations does not mean that somebody is going to follow them. We have many regulations. We have many laws. We have laws that say that people should stop at a stop sign, and they don’t. [Should we] put a policeman at every intersection in this province to prevent people from not following the rules?” In short, Stelmach was asserting that regulation wouldn’t work because farmers won’t obey the law.

Yet US, Australian and Irish experiences suggest farm safety legislation—when actively enforced by the government—can lower injury rates. And lots of evidence shows “legislating common sense” can reduce injuries. Examples include mandatory bicycle helmet and child car-seat use and prohibitions on firearms, domestic violence and drunk driving. The question is not whether farm safety can be regulated. The question is whether there is any political will to enforce the law in rural Alberta.

Conservative MLAs have also used the (confusing) notion of the “family farm” to resist demands for regulation. “Farms are unique in that they are worksites, they’re homes and they’re places where families live, work and play. So they can’t be treated the same way as a construction site,” according to Horner. Some farms are certainly both workplaces and homes—but this need not impede or preclude regulation.

Governments across the country regulate all manner of farms successfully, so why can’t Alberta? In fact, Alberta does regulate some (relatively safe) farms such as greenhouses, mushroom farms and nurseries, some of which are mixed-use worksites. Yet Alberta doesn’t regulate many relatively dangerous farming operations, such as feedlots—operations that are often single-use locations. This suggests the whole “unique worksites” angle is a red herring.

The PCs also draw a distinction between so-called “family farms” and “corporate farms.” But what is a family farm? Is it a small farm (whatever “small” means)? Is it also (or alternatively) a farm staffed by a family and/or operated as a sole proprietorship? Is a corporate farm a large farm? Or one that employs waged labour? Or an incorporated operation? Conservative MLAs haven’t explained this difference.

There is little data to help us out. In 2006 Alberta had 49,431 farms—down 7.9 per cent from 2001. Farm size went up by 8.8 per cent, particularly in farms over 1,600 acres. Growth in farm receipts is almost exclusively on farms with gross income of over $500,000. These changes suggest an increasing number of large-scale, capital-intensive farms. Highland Feeders is a good example. This former family grain farm east of Edmonton has gone from 50 head of cattle in 1983 to 36,000 head today with annual revenue of $60-million. Yet Highland is still a family-run operation.

The definition of a “family farm” was further confused in 2008 by then-Minister of Agriculture & Food George Groeneveld: “Corporate farms or industrial… are still managed pretty much by families; in fact, in the feedlot industry pretty much entirely.” So, corporate farms are also family farms—but only when rhetorically convenient for Conservative MLAs.

With the family farm mired in definitional contradictions, government MLAs then began focusing on the unique nature of the agricultural workforce. Then-Minister of Employment & Immigration Thomas Lukaszuk stated in 2010 that “…a farming environment is not your regular, standard industrialized environment. You have family members working. You have relatives working. You have neighbours helping neighbours.” Basically, Lukaszuk was arguing that the presence of friends and family makes uniform safety regulations unworkable.

Lukaszuk’s assertion ignores that many businesses, such as restaurants, residential construction firms and convenience stores, employ immediate and extended and sometimes unpaid family members and neighbours. All of these businesses are regulated. Many types of farming operations are also regulated despite the “friends and family” complication—again we return to greenhouses, mushroom farms and nurseries. Again, other jurisdictions somehow manage to regulate farms, so why can’t Alberta?

Interestingly, only 18 months earlier, Lukaszuk had voted against a motion to protect paid farm workers while exempting family members and other unpaid labourers. One reason government members gave for not supporting this amendment was because it differentiated among workers based upon their family and employment status. Yet little more than year later, the government resisted regulation because it didn’t adequately differentiate.

There is certainly merit to the idea that everyone should have the same rights. But the paradoxical effect of refusing to distinguish among groups of farm workers in order not to deprive any group of farm workers of rights is that all farm workers are deprived of statutory safety rights. And depriving all farm workers of rights means treating them differently from every other worker in Alberta.

MLAs also cite concern about the cost of safety regulation to the agricultural community. For example, in the wake of the 2003 “mad cow” disease outbreak, then-Minister of Human Resources & Employment Mike Cardinal was reluctant to impose safety regulations on farms: “Agriculture continues to face many challenges due to the fact that we have to export most of our agricultural products. Therefore, when it comes to agriculture, agriculture cannot afford at this time, because of the status there, to have too many standards imposed on it.”

With BSE well behind him in 2010, Lukaszuk expressed similar reservations about Judge Barley’s 2008 recommendation to regulate health and safety on farms. “The Minister of Agriculture & Rural Development and I… will make recommendations that achieve two things: keep our farmers safe but also keep them in business, because the only way to make sure that a farmer doesn’t get hurt is just to put him out of business, and we are not willing to do that.”

Of course, no evidence suggests the cost of health and safety regulations would bankrupt farmers. Farmers in other jurisdictions are able to bear this cost. Most troubling is the basic premise of Lukaszuk’s assertion: Governments should protect workers only when the business can afford it. More bluntly, Lukaszuk is arguing that profit is more important than workers’ health. How is this position consistent with the government’s stated goal of no agricultural fatalities or injuries? Interestingly, cost concerns are rarely raised around other forms of farm regulation, such as for chemical application, handling and disposal; animal health; food safety; water pollution; hazardous-waste disposal; decommissioning of land; and surface reclamation of oil and gas sites on farm property.

Saying “farmers can’t afford regulation” displaces concern about worker safety with concern about farm bankruptcy. In this way, the desire of farmers (i.e., “farmers don’t want regulation”) is transformed from a bald statement of self-interest into an unverifiable (but plausible) rationale (“they can’t afford it”).

Why do MLAs go to such lengths to avoid regulating farms? “It’s a direct result of the demand from the farm lobby that the government not extend any labour legislation to the ag industry,” says Musekamp. “The farm lobby has provided the PCs with funding, logistical support and votes.”

“We definitely can’t live with the types of rules in the oilpatch or industrial workplaces. They just don’t apply.” Lynn Jacobson, Wild Rose Agricultural Producers

In effect, the Conservatives are beholden to rural voters because they can’t form government without rural support. MLAs are surprisingly candid about this. In 2006, then-Deputy Premier Shirley McClellan (herself a farmer) indicated farmers direct government policy on things like safety and injury compensation coverage. “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. He represents them extraordinarily well. But I must inform the hon. member, being a part of the agricultural community myself, that they are very independent thinkers, and they like to make their decisions and ask us to carry out policy they believe is in their best interest.”

It is revealing to reread McClellan’s statement after substituting, say, “coal mine operators” for “agricultural producers.” How does this statement sit with you now? Do you like the idea of coal miners having no right to refuse unsafe work? How about having no restrictions on child labour in coal mines? Why are farms different?

Recent consultations have yielded little progress. The government appointed a 15-member Farm Safety Advisory Council in 2011. The council is dominated by agricultural producers, and its inaugural report sat under wraps for more than a year. Finally released in March this year, the report recommends the status quo.

Farm worker advocates have mixed views about the prospects for major changes. “We were hopeful before the last election, “ says the AFL’s McGowan. “But recent conversations with government members and bureaucrats lead us to believe that the traditional forces opposing legislative reform have reasserted themselves. The premier is not going to challenge the agribusiness lobby, because of their influence in ridings important to Conservatives’ electoral prospects.”

Musekamp disagrees. “The issue has now devolved into a political calculation,” he says. “Much of the farm lobby is now Wildrose. Our premier and ag minister are not farmers and, as lawyers, may very well understand and respect the law. This new dynamic in Alberta politics, I believe, will make the difference.”

To be fair, rural Alberta and agricultural producers are not universally opposed to regulation. In January the Wild Rose Agricultural Producers—Alberta’s largest farm organization—voted to seek extension of child labour laws to farms. They don’t expect this to affect the children of farmers, however, only child employees, so many children will still be able to drive a combine or run an auger. And thus we will still end up with situations like this one, described to the AWHC by a young farm worker: “I was stuck fencing with a 12-year-old using five tons of equipment, with no way to contact for help. I was the oldest one there. That’s retardedly unsafe.” You know it’s bad when a 15-year-old boy is the voice of reason.

WRAP continues to resist extending basic safety rights to workers. While compromises may be available—such as exceptions for farms employing fewer than five workers—the private nature of government/farmer consultations makes it impossible to know what farmers might accept. Interestingly, exclusion from safety-related regulation is not always to a farmer’s advantage. For example, in 2012 Kevan Chandler’s widow reached a settlement over his death; she’d sued for negligence. As a result of that settlement, Tongue Creek Feeders declared bankruptcy and laid off approximately 40 workers. Had the employer been forced to carry workers’ compensation insurance, Chandler’s death would not have driven it under. This advantage underlies WRAP’s recent decision to seek mandatory workers’ compensation coverage for farmers.

Our new premier and ag minister are lawyers and, as such, may very well understand and respect the law.” Eric Musekamp, Farmworkers Union of Alberta

The workers’ compensation exemption for farm employers also raises complex policy questions. For example, medical costs from workplace injuries are initially borne by the healthcare system. If an employer has workers’ compensation coverage, the Workers’ Compensation Board reimburses the healthcare system for these costs and increases employers’ premiums. When employers don’t have workers’ compensation coverage, taxpayers foot most of the bill. In 2011 this represented at least an $4.5-million (and perhaps as much as $8-million) transfer in injury costs from employers to the government. Workers without coverage also chip in, paying for their own painkillers, physiotherapy and wheelchairs.

Similarly, workers who experience wage loss due to compensable injury have those wages (partially) reimbursed by the WCB, with the cost passed on to employers. Workers whose employers do not carry workers’ compensation must bear the wage loss themselves, unless they are eligible for some other form of social benefit, such as employment insurance or income support. Philippa Thomas is a prime example: Since her injury, she has been unable to work and her pain medication costs top $14,000 a year. Few workers have the means or tenacity that Chandler’s widow did, to successfully gain compensation.

For its part, the government seems content to let the issue run. For example, when questioned in October 2012 about when the government would grant farm workers the same safety rights as every other worker in Alberta, Minister of Human Services Dave Hancock said, “We’re working on it,” and then criticized Liberal MLA Dr. David Swann for asking corporations to apply their ethical procurement guidelines and refuse to buy Alberta potatoes grown and harvested by child labourers.

Two months later, Premier Alison Redford told the Edmonton Journal, “We’re going to put in place the right approaches at the right time”—but declined to say what “the right approach” is or when “the right time” will be. She also said, “We’re not going to find ways to avoid making commitments, but we are going to do the right thing, and sometimes those are short term, sometimes they’re medium term and sometimes they’re longer term.” What that meant (if anything) became clear in January 2013 when the government confirmed that no legislation would be forthcoming in the spring session. Such delay and evasion is of little comfort to farm workers and their families who daily face the spectres of poverty, injury and death in Alberta’s barns and fields. #

Bob Barnetson is an associate professor of labour relations at Athabasca University. He lives in Edmonton.

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