by Emily Leedham
As the Co-op Refinery’s unionized workforce enters their third month of a lockout, Federated Co-operatives Ltd. (FCL) is expanding on-site camps for replacement workers. Unifor 594 refinery workers have been fighting rollbacks to their pensions and savings plans.
“If they’re bringing in extra camps to house these workers, it’s for one reason, and that’s because they don’t expect the mediator to get a deal,” Kevin Bittman, president of Unifor 594 told the Regina Leader-Post on Thursday.
After weeks of Unifor prompting, Saskatchewan Premier Scott Moe appointed mediator Vince Ready to assist the union and FCL in finding a settlement. Bittman says 594 will move forward with the mediation in good faith – even though it will not be binding like the union requested. FCL CEO Scott Banda’s opposition to binding arbitration has made 594 wary of the outcome.
“If [Ready] can’t get us a deal, it’s because Scott Banda doesn’t want to end this lockout.” Bittman said in a press conference Wednesday.
The mediation period will last for 20 days beginning February 18th.
Charles Smith, University of Saskatchewan professor and co-author of Unions in Court: Organized Labour and the Charter of Rights and Freedoms, says it’s hard not to infer Moe is siding with the Co-op by refusing binding arbitration.
“You step back and just think, wow, here are energy workers standing up for their livelihoods, the things that the Conservative premiers have said they stood for -and not a single one has come out in support of Unifor,” he tells RankandFile.ca. “And I find that really, really concerning and surprising.”
Nearly one month ago, Unifor National flew about 500 of its members from across Canada to participate in a blockade of the refinery on January 20th. This action was in response to a December 24 court injunction which ruled the 594 workers could only delay vehicles exiting and entering the refinery by 10 minutes. The union believed this injunction infringed on the workers’ constitutional right to picket.
That same night, 50 Regina Police Service officers attempted break the blockade at Gate 7 of the refinery. Though fourteen people were arrested, including Unifor National President Jerry Dias, the blockade remained intact.
On February 6, FCL sought an unprecedented $1 million fine, plus $100,000 daily fines against the union for breaking the injunction, as well as jail time for Bittman and 594 VP Lance Holowachuk.
“This is a wounded employer who’s very angry and seeking, you know, pretty harsh sanctions, that are, as far as I can see, unprecedented in Saskatchewan – if not Canadian labour history – at least in the last 30 to 40 years,” Smith says.
Justice Neil Robertson of Regina’s Court of Queen’s Bench announced his verdict on Wednesday, February 12. Unifor 594 was fined $250,000 for breaching the injunction. Executives faced no jail time, but VP Howolachuk was sentenced 40 hours of community service. Robertson also ruled the blockades must be removed, and Unifor complied, taking down the final blockade at Gate 7 later that day.
The blockades at the other gates, however, were dismantled by the Regina Police Service well before Robertson made his decision. The RPS also removed the worker’s warming trailers, heaters and lights, which the police referred to as “structures and debris” in a statement on February 7th:
“This is part of a plan to restore a safe physical environment which will support peaceful, lawful and safe picketing by members of Unifor Canada, Local 594 and their supporters, in accordance with the December 24, 2019, Queen’s Bench Court Order by Justice J. McMurtry.”
Weak OH&S enforcement compromises worker safety
Sean Tucker, a University of Regina professor specializing in Occupational Health and Safety (OH & S), remarked on Twitter that taking away workers’ heaters and washrooms on the picket line was heavy handed and inhumane.
He also believes the health and safety risks of the Refinery’s on-site camp for replacement workers are being overlooked by the City and the province, highlighting a weak OH&S system that ultimately benefits employers at the expense of worker safety.
The on-site camp doesn’t square with the Refinery’s own opposition to a proposed residential development ten years ago, he tells RankandFile.ca. At the time, the Refinery said there were potential health and safety concerns for residents living too close to the plant.
“How can that be, that the Refinery says, 10 years ago, that this residential development is too close to us and we don’t want it there – but they’re allowed to have a work camp with hundreds of workers there living there like literally right next to the plant?” Tucker asks. “I don’t understand that. I don’t understand the approval process, the City’s been mum on all of this, so it’s one of the unanswered questions from this dispute.”
FCL’s aggressive pursuit of hefty fines and jail time against Unifor 594 also stands in contrast to the fines leveled against the Refinery after the 2011 explosion, which injured 52 workers, including six workers who were seriously injured.
Kim Janvier and Irene Rombaut were two refinery workers who suffered serious burns and PTSD as a result of the explosion.
“There was this big boom, and I remember cringing…I looked up and there was this big fireball coming down at me,” Janvier told the Canadian Press.
“I knew I was on fire,” Rombaut told the CBC. “My chest was hurting. My face was hurting. My neck was hurting. My ears were hurting. I had earplugs in and I was worried my ear plugs were melted into my head.”
Janvier and Rombaut said there were warning signs all around, but were dismissed when they pointed these safety concerns out to management, including the corroded pipes that would ultimately cause the explosion:
“At one point we were told not to cause a spark or hit them or anything, because if a bird crapped on there they would break. That’s how brittle they were,” Janvier told CBC. “And that came straight from an operator at Co-op.”
Tucker attended the Consumers’ Co-operative Refineries Limited’s (CCRL) court sentencing in 2015. CCRL was fined $200,000 for “failing to ensure that all work at a place of employment was sufficiently and competently supervised .
The maximum fine for violations at the time was $300,000. CCRL was also fined an $80,000 victim surcharge under a different piece of legislation, bringing the total penalty to $280,000.
Tucker shared an excerpt from the court transcript where the Court and CCRL (Mr. Gates) deliberated over fine payment:
The Court: So far as when this should be paid…
Mr. Gates: It’s simply a matter of administratively giving us time.
The Court: Is four months sufficient?
Mr. Gates: Thirty days is more than sufficient.
The Court: Well I’ll set the time at two months, which then gives some margin. I do not anticipate this being an issue.
“And just the tone of that, it just was really nothing for them at all,” Tucker recalls. “This was a company with very deep pockets so I just was surprised that it wasn’t the maximum – also that it hadn’t been pursued under the Criminal Code as well.”
In addition to OH&S law, employers can be charged under a section of the Criminal Code called the Westray Bill for incidents resulting in serious injury or death. But since the Bill was passed in 2004, only eight cases across Canada have resulted in convictions. Only two of these convictions resulted in jail sentences for an employer or supervisor – the rest of the penalties are fines.
The maximum fine for OH&S violations in Saskatchewan was increased to $1.5 million in 2015, but no employer has come near to being fined the maximum – even for workplace fatalities.
In 2017, twenty-five year old Jesse Hoehn was crushed to death between a front-end loader and another vehicle while working for Langenburg Redi-Mix in Eyebrow, Saskatchewan.
Hoehn’s mother said he had expressed workplace safety concerns to her before the incident.
His employer was fined $400,000 for two OH&S violations, plus a $160,000 victim surcharge, totaling $560,000. This is the highest fine any employer has paid for an OH&S violation in Saskatchewan – falling well below the $1.5 million maximum. His employer was also not criminally charged under the Westray Bill.
Tucker says there is also a provision in OH&S law that allows the Crown to ask the judge to sentence employers up to two years in prison for egregious violations but, to his knowledge, it has never been used in Saskatchewan.
Refinery workers have little recourse outside of the Workers’ Compensation Board, he adds, as they have to sign extensive Non-Disclosure Agreements preventing them from speaking openly about safety incidents and do not have the right to sue their employer.
“What I found in talking to workers is that there’s, even with such a long and bitter dispute at the refinery, there’s still a great reluctance to share what happens inside the refinery and speak about their injuries for fear of repercussions,” he explains.
After the 2011 explosion, Tucker says FCL CEO Scott Banda sent Rombaut a handwritten note pledging he would work to ensure there would be no more serious incidents at the Refinery.
Yet in 2013, there was another explosion – which was later determined to be preventable. In 2014, a CBC investigation revealed the number of leaks and spills had tripled compared to 2013.
“Someday, if things don’t change, if there’s not a new plan, a new course of action, a new public accountability there, someone’s going to die,” Tucker told CBC in 2014.
Mike Carr, Saskatchewan’s OH&S Deputy Minister at the time, also spoke to the CBC saying, “To be blunt, we have a culture that is more focused on getting it done than getting it done safely.”
Athabasca University labour studies professor Bob Barnetson has worked with Tucker on OH&S research. He provided this statement for RankandFile.ca:
“Saskatchewan has one of Canada’s highest rates of fatalities and serious injuries. Employers who kill workers on the job usually face paltry fines, often levied years later, and no risk of jail time. This pattern sits in stark contrast to the immediate arrests and heavy fines imposed on workers for disrupting an employer’s business after it locks out its workers. This contrast shows you that the law and the state is on the side of employers.”
Labour laws abstract, not moral absolutes
According to Smith, FCL has conflated the law – which is abstract and subject to interpretation – with an absolute moral right in its public rhetoric against the union.
“The law says “X,” so anyone who questions it or pushes back against it is deemed [by FCL] to be morally wrong,” he explains. “And we know that it’s much more complex than that.”
He also believes the premier failed to acknowledge Unifor’s blockade as an expression of worker’s legitimate grievances against restrictive labour laws – and instead chose to escalate tensions by invoking law enforcement.
Framing the law as a moral absolute intends make workers feel powerless against it, he argues. This can also have a chilling effect on broader union militancy while empowering employers across all sectors to use the same tactics to suppress wages and pensions.
“I think that the role of the provincial government and its inability to understand the complexities of working people’s lives is really on display here,” he states. “This government seems to be completely incapable of recognizing the nuance of what it means to be a working person in 2020.”
Despite the law’s constrictions, Smith notes: “Unifor should feel proud they have avoided being broken by all these legal instruments up to this point – and that’s a testament to their solidarity.”
As both parties return to the table via mediation next week, Tucker believes FCL’s animosity towards the union could impact refinery safety well after the lockout ends. He emphasizes workers need to return to an environment where they can be completely focused on process safety – that environment will be compromised if workers experience heightened stress in the workplace.
“If Federated Co-op comes into negotiations – and there will be negotiations soon – and if they’re out for blood, and if they’re out to totally humiliate and decimate 594, if that’s their mindset going into their negotiation, I would say they need to rethink that – and think about what’s going to happen inside the plant…Whatever antagonism or feelings people have towards each other, they have to go back to work with each other and work in this safety sensitive environment. “