By Michael J. Hughes
When Alberta's NDP government was elected in May 2015 it was widely reported that there was to be a review of various legislation pertaining to labour and employment laws in the province. Since then formal announcements about legislative reform have been awaited with bated breath. On November 17, 2015, with the introduction of Bill 6 in the Alberta Legislature, the Provincial Government announced that it would turn its attention to the agriculture sector.
Bill 6, the Enhanced Protection for Farm and Ranch Workers Act, expands the ambit of a number of statutes in Alberta to include traditionally excluded agricultural workers. Previously, the farming and ranching industry was excluded from the application of numerous pieces of legislation governing workers in Alberta, but Bill 6 includes the following changes:
- Occupational Health and Safety Act - OHS investigators are entitled to review injuries, accidents and deaths occurring on farms, and farmers are open to OHS charges under the OHS Act;
- Employment Standards Code - The application of various minimum employment standards to farm workers, such as minimum wage and vacation entitlements;
- Labour Relations Code - The unionization of farm workers is no longer prohibited; and
- Workers' Compensation Act - Mandatory WCB coverage for agricultural workers.
In its initial form, the Enhanced Protection for Farm and Ranch Workers Act placed the 63,000 workers on Alberta's 43,000 farms and ranches in an identical position to those in other industries in the province. While at first blush, such consistent treatment may not appear objectionable, however Bill 6 has not been warmly received by thousands across Alberta. Many opponents contend that while farm workers deserve to work in safe and fair conditions, the legislation was introduced without adequate consultation, that too many details would be addressed through regulation (and therefore be beyond legislative scrutiny), and, as initially presented, the bill failed to take account of the unique family-run nature of many of Alberta's farms and ranches. Similarly, the legislation appeared to disregard the traditional community approach to farming in in Alberta, in which family members are active on the farm and neighbours help neighbours with various tasks.
A number of rallies in opposition to Bill 6 have drawn large crowds across the province, 35,000 members joined a Facebook group opposing the legislation within days of the tabling of the Bill, and over 10,000 individuals signed a petition against Bill 6 in only four days of circulation. In fact, the pushback encountered by the Provincial Government with respect to this new legislation was significant enough to influence a series of both "clarifications" and amendments to the bill.
On December 1, 2015 the Government announced that WCB and OHS legislation would not apply to individuals volunteering on family farms, but only to paid farm workers. On December 10, 2015, this was formalized through amendments to Bill 6, which provided that the OHS Act and Workers' Compensation Act would no longer be applicable insofar as the work on a farm or ranch is performed by family members of the farmer or volunteers.
Premier Notley indicated that this was always the goal of the legislation, and that the perceived broader scope of the law was the result of an "unfortunate lack of knowledge" on the part of government officials who were addressing questions during public meetings. Similarly, Labour Minister Lori Sigurdson commented that it was not the "government's intention to interfere with what family members, friends and neighbours have always done on the family farm." Critics of the legislation might be forgiven for their skeptism, though, as a fact sheet with respect to the impending legislative amendments on Alberta's WCB website indicated that the Bill would, indeed, apply WCB and OHS legislation to family members and volunteers on farms and ranches. This fact sheet was removed from the WCB website as the furor over Bill 6 grew.
Even with the proposed amendments in place, it is not entirely certain that Bill 6 will exempt from the legislation all incorporated family farms even if they have no paid employees who are not family members. Certainly, a family farm operated by a corporation in which all shareholders are family members will be exempted. However, it is common, for tax and succession planning purposes, for family farms to be set up such that various family members establish holding companies that are then shareholders in the corporate entity operating the farm. There is risk that Bill 6, as amended, could be interpreted in a manner such that exemption is inapplicable where the corporation operating the farm has corporate shareholders, even if those corporate shareholders are themselves held by members of the same farm family.
Moreover, while the amendments to Bill 6 may exempt family members working on family farms from the direct application of OHS legislation, such individuals will certainly be indirectly impacted by the OHS Act. On farms staffed by both family members and paid non-family members, OHS officers may investigate and issue stop work orders with respect to unsafe conditions, or use of tools or equipment that the OHS officer considers unsafe or not in compliance with the OHS Code. Family members would have to comply with any such stop work orders. Furthermore, family members are not exempted from the definitions in the OHS Act for the purposes of s. 2(2). That is the section which states that workers must take reasonable care for their own safety and for the safety of other workers present while they are working.
Beyond issues pertaining to application of OHS and WCB legislation, resistance to Bill 6 has also developed amongst those who maintain that it is "labour legislation disguised as farm safety legislation". Commentary arising from the public consultations that have occurred to date has done little to dislodge that presumption. By way of an example, at a Government-facilitated public forum in Grande Prairie, one of the questions posed to attendees addressed whether or not there were "times of year, reflecting the agricultural cycle, when a strike or lockout would cause critical economic harm." Seemingly obvious answers aside (harvest/calving season?), it is troubling to many that such queries presuppose the application of the labour system set out in the Labour Relations Code to farms and ranches. Likewise, the Government posed questions such as "What can the government do to help develop a collective bargaining framework that works for farmers and ranchers in Alberta?" This question once again presupposes the application of a particular labour relations framework. It is notable that in Ontario while agricultural workers can unionize, the regular collective bargaining process in that province's labour legislation does not apply; there exists only the ability for unionized agricultural workers to make representations to employers, but with no duty to bargain and no process for strikes or lockouts.
The application of the Employment Standards Code in this context is also, not surprisingly, problematic with respect to the paid work by family members on farms. For example, there are various potential issues pertaining to work by family members under the age of 15, as the Employment Standards Regulation currently limits the variety of work that can be performed by individuals in that demographic. Additionally, the Regulation also limits the work of those under 15 to two hours on a school day, and none of that work can occur after 9:00 PM. There are a variety of occasions annually - again, particularly for seeding or harvest - when such restrictions simply may not be feasible on family farms. Such issues could potentially be addressed by a distinction in the legislation between smaller family-run farms and larger corporate operations, but no such dividing line has been publicly proposed by the Government thus far.
Of course, the Government could gain clarity on all of the foregoing issues by further consulting Alberta's farmers. Unfortunately, the Government passed Bill 6 with relatively scant consultation with the very stakeholders most impacted by it.
Further technical consultations are planned for 2016, which are to lead to more regulations to flesh out applicable OHS requirements for farms and ranches, and to specifically deal with how employment standards and labour relations laws will operate in the agricultural context. It remains to be seen if more meaningful consultation will take place, and lead to more sensible legislative outcomes. While it is hoped that there will be further opportunities to influence the shape of the new law for the better, it is hard to be optimistic about this result, given the rocky start with Bill 6.