Perry Work Report: work&labour news&research, February 6, 2015

February 6, 2015

Announcement:

Inaugural Sefton-Williams Memorial Lecture

The inaugural Sefton-Williams Memorial Lecture takes place on Thursday, March 19th at 7p.m. and is entitled Inequality and its Discontents: A Canadian Perspective. Speakers are Armine Yalnizyan, Senior Economist for the Canadian Centre for Policy Alternatives and Miles Corak, Professor of Economics at the University of Ottawa.

Please register here for this free lecture.

 

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Canadian Workers Have a Fundamental Right-to-Strike

In a 5-2 ruling, “[t]he Supreme Court of Canada has declared the right to strike to be fundamental and protected by the Constitution, thus handing organized labour its second stunning victory this month.”

The two dissenting judges, Justice Marshall Rothstein and Justice Richard Wagner “suggested that the majority was blind to the realpolitik of labour negotiations in which governments do not hold all the cards. They also said the majority’s view of labour relations was stuck back in the early days of the Industrial Revolution, when workers were powerless.”

"But in a blistering response Justice [Rosalie] Abella said the right to strike is essential in evening the playing field between workers and employers.’ In essentially attributing equivalence between the power of employees and employers, this reasoning, with respect, turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying.’"

"She said the reasoning of the two dissenting judges ‘drives us inevitably to Anatole France’s aphoristic fallacy: The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.’”

The Globe and Mail, January 30, 2015: “Canadian workers have fundamental right to strike, top court rules,” by Sean Fine

"After winning power in 2007, the Saskatchewan Party introduced the new law, which says employers and unions must agree on which workers are deemed essential and cannot legally strike. If the two sides can’t agree, the government gets to decide who is an essential worker. Writing for the majority, Justice Rosalie Abella said that power violated section 2(d) of the Charter of Rights and Freedoms, which protects freedom of association."

"Friday’s ruling comes after just two weeks after the Supreme Court’s landmark labour relations ruling in a case involving rank and file officers of the RCMP. The Supreme Court overturned a previous ruling of its own from the 1990s which upheld an exclusion that barred the Mounties from forming unions like federal public servants, who gained the right to collective bargaining in the late 1960s."

CBC News, January 30, 2015: “Essential services law deemed unconstitutional by Supreme Court”

Judgments of the Supreme Court of Canada, January 30, 2015: “Saskatchewan Federation of Labour v. Saskatchewan”

SCC Case Information: 35423

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Supreme Court Ruling May Strike Major Blow to Anti-Union Laws Across Canada

"The Supreme Court of Canada just struck a major blow to conservative efforts to erode unions by protecting their right to strike."

"The court gave Saskatchewan one year to fix its Essential Services Act, which the conservative Saskatchewan Party introduced after winning power in 2007."

"Their landmark ruling could bolster challenges nationally and in other provinces:

  • The Public Service Alliance of Canada has called on the federal government to respect the Supreme Court’s new decision by repealing Bill C-4, calling it a ‘victory for workers.’
  • Nova Scotia passed a similar essential services law last year for health care workers, joining a number or provinces with such legislation, including British Columbia and Newfoundland and Labradour.
  • The Ontario Superior Court of Justice will hear PSAC’s constitutional challenge to the federal law (Bill C-4). Other federal unions are now expected to join that legal challenge or launch their own.”

"The Supreme Court majority ruled that Saskatchewan’s law violated the right to ‘freedom of association’ under the Charter of Rights and Freedoms."

PressProgress, January 30, 2015: “Supreme Court ruling may strike major blow to anti-union laws across Canada”

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Social Rights, Labour Rights and the Constitution: A Cautionary Tale from Canada

"The Charter proclaims the equality of members of specific named groups -- the ‘usual suspects’, and those identified by the Court as ‘analogous’. After thirty plus years of brilliant litigation victories by equality-seeking groups, immigrants still work at a discount of about 10% from native-born employees; women’s wages lag men’s by 13%; and aboriginal wages lag those of non-aboriginals by 33%. Overall, Canada’s gini coefficient, a standard measure of inequality, increased between 1981 and 2010 by 19.4%. (After taking into account the effect of taxes and social transfers, the increase was still 13.5%.)"

"What lessons should we draw from this huge discrepancy between what the constitution seems to require and the outcomes that social, economic and political forces have produced? What should we make of labour’s thirty years of setbacks, of its declining power, influence and affluence, despite unusually sympathetic treatment by Canada’s highest court? What should we say about the steep rise of inequality in a country whose constitution was amended just three decades ago to enshrine equality as one of its fundamental values?"

"So if labour wants to protect its gains and recoup its losses, it will have to struggle harder, not litigate more frequently."

Canadian Studies Program/School of Law, UCLA, November 5, 2014: “Social Rights, Labour Rights and the Constitution: a cautionary tale from Canada,” by Harry Arthurs, York University (16 pages, PDF)

Labour Law Research Network [website]

Charles Smith also cautions against the power of the courts to advance the rights of working people.

"As I have argued elsewhere, it is difficult to contemplate how judicial decisions alone can fundamentally transform society. Recognizing a constitutional right to strike will not lay the foundation for further changes in government or lead to a more democratic economy. Historically, it is difficult to find evidence where the rights of working people have been substantially advanced by courts or judges. In fact, judges are generally more comfortable as members of the ruling classes within the state and thus present obstacles to furthering the rights of workers."

rankandfile.ca, February 3, 2015: “The Politics of the Constitutional Right to Strike,” by Charles Smith

"Ask a Canadian to name the four ‘fundamental freedoms’ guaranteed in the Charter and you will hear plenty about freedom of religion and freedom of expression, but likely very little about freedom of peaceful assembly and freedom of association. That may be about to change."

The Globe and Mail, February 3, 2015: “SCC labour rulings not revolutionary: it’s the Charter going to work,” by Eric Adams

But that may be a little optimistic.

"Saskatchewan Premier Brad Wall says the province could use the notwithstanding clause if it can’t rewrite a labour law agreeable to both the province and the Supreme Court of Canada."

The Globe and Mail, February 4, 2015: “Saskatchewan could use opt-out clause in labour ruling, Premier Wall says”

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Long Form Census -- Righting a Ridiculous Wrong

"Whether you prefer your government big or small, pretty much everyone agrees you need good information to have 'smart' government. Matt Galloway spoke with Armine Yalnizyan, she is one of our business commentators."

CBC’s Metro Morning, January 30, 2015: “Long Form Census” (audio, runs 4:48 min.)

"The bill in question seeks to restore the compulsory long-form census. It was tabled by an opposition MP, Liberal Ted Hsu, which means there is almost no chance it will pass. But it should. This is an opportunity to right a wrong.”

“Opposition has come from think-tanks of every political persuasion, business leaders, charities, public administrators and basically anyone with a PhD. Thanks to a deliberately sabotaged census, we know less about Canada in 2011 than we did about Canada in 2006. Who thinks that’s a good idea?”

“What’s more, conducting a halfwitted census turned out to be more expensive. The 2011 voluntary household survey increased errors, reduced accuracy, chopped the response rate by 30 per cent -- and cost an extra $22-million. Congratulations: The Harper government figured out how to spend more for less.”

The Globe and Mail, February 3, 2015: “Globe editorial: The census: Little knowledge is a dangerous thing”

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Can You Be Fired for Negative Social Media Comments about Your Employer?

"The Supreme Court of British Columbia’s ruling in Kim v. International Triathlon Union (International Triathlon Union) is the first reported court decision to consider termination of a non-union employee for postings made on a social media platform.”

"By contrast, labour arbitration decisions addressing the discharge of unionized employees for misuse of social media have become common over the past several years."

"International Triathlon Union suggests that the courts will apply traditional employment law principles (e.g., cumulative cause and progressive discipline) to cases involving the misuse of social media by non-union employees."

"However, this approach leaves some uncertainty as to the role of factors familiar from labour arbitration decisions, such as the nexus between social media postings and the workplace, and actual or potential harm to an employer’s reputation resulting from the public nature of comments on the Internet."

Blakes, January 29, 2015: “New challenges for old laws: B.C. Court considers employee misuse of social media,” by Eleni Kassaris and Skye McGinley

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StatsCan's Survey Methodology Journal Turns 40!

“Survey Methodology, a semi-annual journal published by Statistics Canada, explores various aspects of survey methods used by statistical agencies. Since its first issue 40 years ago, Survey Methodology has published 761 papers. Some of these papers have been cited more than 900 times in journals indexed by Google Scholar.”

Statistics Canada’s Researcher’s Blog, February 3rd, 2015: “Survey Methodology turns 40!” by Susie Fortier

Statistics Canada’s Survey Methodology Journal [website]

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Benefits Legislation in Canada 2015

"This document summarizes Canadian legislation affecting benefits plans (except Nunavut and Northwest Territories). Canadian legislation covers a broad range of social and tax measures directly affecting employer-sponsored protection provided to employees."

Mercer, revised December 2014: “Benefits Legislation in Canada” (48 pages, PDF)

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Toronto & Montreal -- The Best Cities to Live in the World

"Toronto and Montreal are the world’s two best places in the world to live, the Economist says, citing a range of measures including safety, livability and cost."

"The ratings are included in the Economist Intelligence Unit’s latest safest cities index, in which Toronto and Montreal rank first and fourth, respectively, for safety among North American safest cities."

"For its overall best-places-to-live rating, the Economist used an ‘index of indexes,’ pulling together its city rankings for safety, livability, cost of living, environment, democracy and food security."

The only category which Toronto didn’t make the top 10 globally? Cost of living.

The Safe Cities Index 2015 White Paper can downloaded here (42 pages, PDF).

CBC News, January 30, 2015: “Toronto, Montreal best places to live, Economist says”

The Economist -- Safe Cities Hub [website]

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Uber and the Sharing Economy

"Earlier this week, New York Times columnist Farhad Manjoo predicted that Uber’s biggest impact on the world would not be in transforming transportation, but in changing the labor market and the way we think about work. He may be right. Uber’s explosion is the envy of employers everywhere. And those employers are well aware that Uber became a $40 billion company by operating as if its drivers are not Uber employees.”

"Efficiency, however, is in the eye of the employer. Before this labor revolution can take place, Uber will have to prove its world-changing business model isn’t screwing over drivers. Two lawsuits, one against Uber and one against Lyft (a smaller, rival e-hailing company), filed on behalf of drivers are currently winding their way through San Francisco federal court. The suits argue that drivers are employees entitled to be reimbursed for expenses like gas and vehicle maintenance that they are currently paying out of pocket."

The Verge, January 30, 2015: “Before Uber revolutionizes labor, it’s going to have to explain these embarrassing emails,” by Nitasha Tiku 

"It’s also unclear how much longer Uber will be able to legally sustain its contractor-dependent model. Late last week, a federal judge said that Uber’s drivers might have to be treated as employees instead of independent contractors, which would change a lot. But even taking all that uncertainty into account, you know what’s a quick way to undermine your claims about building a new and sustainable work model? Announcing two weeks later that you are building a research facility to develop the technologies that will eventually render all of the people employed in that new work model obsolete."

Slate, Feb. 2, 2015: “Uber Wants to Replace Its Drivers With Robots. So Much for That ‘New Economy’ It Was Building,” by Alison Griswold

Uber, February 4, 2015: “Uber and CMU Announce Strategic Partnership and Advanced Technologies Centre”

Sharing Economy?

"The implications of the so-called ‘sharing economy’ have been hotly debated in the news media, and the research world is now beginning to weigh in with deeper analysis. One central area of argument relates to whether the sharing economy is simply bringing more wage-earning opportunities to more people, or whether its net effect is the displacement of traditionally secure jobs and the creation of a land of part-time, low-paid work. It’s a debate that continues to play out across communities in the United States, forcing reporters to weigh competing claims and varying in tone from boosterism to warnings of the new economy’s ‘dark side.’"

Harvard’s Shorenstein Center on Media, Politics and Public Policy, January 29, 2015: “Uber, Airbnb and consequences of the sharing economy: Research roundup”

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Instagram's Graveyard Shift Solidarity

"The photograph that Markisha McClenton posted on Instagram is a self-portrait, a close-up that is muted in dim light. She might be on her way to work. She might be coming home. Her workdays begin and end in the dark, and they are dark in between."

"This is the ghost world of #graveyardshift (#nightshift’s sister hashtag), whose workers file into Instagram every evening. These pictures may be clever or maudlin, silly or harrowing or sad. ‘Desperate’ is a word that comes to mind, but so does ‘resigned.’ And even ‘resistance.’ Sometimes it’s in the form of a gag, a ridiculous pose; sometimes it’s in the form of a gaze so steady that it seems to warm the fluorescent panels framing so many of these pictures. The hashtag itself is a form of solidarity."

The New York Times, January 22, 2015: “Instagram’s Graveyard Shift,” by Jeff Sharlet

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The Return of Fair Pay in the U.S.?

"[It] was big news when, last month, Aetna’s C.E.O., Mark Bertolini, announced that the company’s lowest-paid workers would get a substantial raise -- from twelve to sixteen dollars an hour, in some cases -- as well as improved medical coverage."

"[Bertolini] explicitly linked the decision to the broader debate about inequality.... ‘Companies are not just money-making machines,’ he told me last week. ‘For the good of the social order, these are the kinds of investments we should be willing to make.’"

"Since the nineteen-seventies, a combination of market forces, declining union strength, and ideological changes has led to what the economist Alan Krueger has described as a steady ‘erosion of the norms, institutions and practices that maintain fairness in the U.S. job market.’ As a result, while companies these days tend to pay lavishly for talent on the high end -- Bertolini made eight million dollars in 2013 -- they tend to treat frontline workers as disposable commodities."

The New Yorker, February 9, 2015: “A fair day’s wage,” by James Surowiecki

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Barbie, Mickey Mouse, Optimus Prime, Thomas the Tank Engine: Who Else Continues to Exploit Toy Workers?

"Intense business competition and demand for cheap products drives toy companies to suppress manufacturing prices. Toy sellers, especially international brand companies, have largely moved their manufacturing base from their home countries to developing countries in Asia and Latin America to utilize cheap labor."

"In order to mitigate investment risk, instead of building their own factories in these regions, toy companies often contract their manufacturing to local factories via intermediary supply chain firms. Supplier factories have little choice but to accept the production price put forward by the toy company. Sometimes, in order to receive the business, factories will even reduce the cost further."

"But toy companies maintain strict demands on material and product quality, so labor costs ultimately become the only flexible factor. Workers, situated at the bottom of this system, are forced to bear the cost."

China Labor Watch, November 18, 2014: “Executive Summary: Barbie, Mickey Mouse, Optimus Prime, Thomas the Tank Engine: Who Else Continues to Exploit Toy Workers?”

China Labor Watch, November 18, 2014: “Barbie, Mickey Mouse, Optimus Prime, Thomas the Tank Engine: Who Else Continues to Exploit Toy Workers?” (66 pages, PDF)

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Global Population: A Story of Drinkers, Genocide and Unborn Girls

"Men now outnumber women on the planet by 60 million, the highest ever recorded. Preference for sons in India and China is driving the trend, but those two countries are not the only ones struggling with an imbalanced population.”

"The most gender imbalanced states in 2013 were all found on the Arabian Peninsula, Qatar being the most extreme. Less than one quarter of all people who lived in Qatar in 2013 were women. Those countries have attracted a lot of migrant workers for male-dominated industries, especially after oil prices started rising in the 1970s and the industry grew. Millions of men, mostly from South Asia, came to work on the Arabian Peninsula, but weren’t allowed to bring their spouses and children with them, thus throwing gender ratios off balance."

Quartz, January 2015: “World Sex Map: A story of drinkers, genocide and unborn girls,” by David Bauer

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Book of the Week

Kill the Messengers: Stephen Harper's Assault on Your Right to Know, by Mark Bourrie. Toronto : HarperCollins Canada, 2015. 386 p. ISBN 9781443431040 (hardcover)

From the publisher: "Ottawa has become a place where the nation's business is done in secret, and access to information -- the lifeblood of democracy in Canada -- is under attack. It's being lost to an army of lobbyists and public-relations flacks who help set the political agenda and decide what you get to know. It's losing its struggle against a prime minister and a government that continue to delegitimize the media's role in the political system. The public's right to know has been undermined by a government that effectively killed Statistics Canada, fired hundreds of scientists and statisticians, gutted Library and Archives Canada and turned freedom of information rules into a joke. Facts, it would seem, are no longer important. In Kill the Messengers: Stephen Harper's Assault on Your Right to Know, Mark Bourrie exposes how trends have conspired to simultaneously silence the Canadian media and elect an anti-intellectual government determined to conduct business in private. Drawing evidence from multiple cases and examples, Bourrie demonstrates how budget cuts have been used to suppress the collection of facts that embarrass the government's position or undermine its ideologically based decision-making. Perhaps most importantly, Bourrie gives advice on how to take back your right to be informed and to be heard. Kill the Messengers is not just a collection of evidence bemoaning the current state of the Canadian media, it is a call to arms for informed citizens to become active participants in the democratic process. It is a book all Canadians are entitled to read -- and now, they'll get the chance."

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