The Ministry of Labour's fight to hide Employment Standards violations makes a mockery of the Freedom of Information process

July 20, 2009

Update: Since publication of this editorial the Ministry of Labour has reviewed its decision to not waive the records production fee, and has decided to comply with the Commissioner's order.

For three years now, the BC government has been fighting requests to disclose Employment Standards enforcement records. Whither freedom of information, public accountability and transparency?

I am an independent public policy researcher, part of an academic and community research team investigating how changes to employment standards have affected BC's vulnerable farmworkers.

Since 1994, when the Employment Standards Review revealed a consistent pattern of violations and abuses of employment standards and workplace safety for farmworkers, it has been clear that standards need to be improved and additional resources put into enforcement.

In a report to the Minister of Labour in 2001, the Agricultural Compliance Team of the Employment Standards Branch characterized farmworkers as "one of BC's most vulnerable work forces." Yet shortly thereafter, the government substantially reduced the minimum employment standards for farmworkers and cut the Agricultural Compliance Team.

In order to assess how these cuts and changes have affected farmworkers, our research team needs access to Ministry enforcement records that will reveal what complaints and investigations have taken place in this sector, what violations have occurred and what penalties have been issued to employers. Although the Employment Standards Act permits the publication of violations, the Ministry has never published a list of violators.

In July 2006, I submitted a Freedom of Information request for Employment Standards Branch enforcement records. Here is the sordid story of what has happened to this public interest information request:

The Ministry of Labour responded to my initial request by unilaterally extending the 30-day deadline for a response allowed under the Freedom of Information and Privacy Act by 44 days. Two months later, I was told by the Ministry that I would have to pay in advance an initial fee of over $4,200 and agree to pay any additional actual costs for the Ministry to retrieve the requested records.

Unable to pay these high and indeterminate costs, I asked the Ministry for a fee waiver (as permitted under the Act) on the basis that a clear public interest would be served by providing these public records to our research project at no cost.

The Ministry rejected my fee waiver application on the grounds that "there is no pressing or urgent need to disclose these records in the public interest at this time." In November 2006 I applied to the Office of the Information and Privacy Commissioner for a review of the Ministry's fee waiver denial. Ten months later, the Commissioner decided that my complaint should be the subject of a formal inquiry.

In June 2009 - 15 months after the inquiry - the Information and Privacy Commissioner finally issued a decision in my favour, rejecting all of the Ministry of Labour's main arguments and ordering them to comply by August 5. The Ministry, however, is now challenging that decision and has requested that the Commissioner reconsider. The clear indication given by this latest action is that the Ministry will stonewall this process indefinitely.

In arguments to the Commissioner during the inquiry the Ministry characterized the documents requested as records of "administrative contraventions" and therefore of limited use. The Commissioner concluded on this point that the Ministry drew "subjective conclusions that risk trivializing issues affecting the lives of farm workers."

Furthermore, the Commissioner dismissed the Ministry's contention that "the tight regulatory framework and monitoring [of Employment Standards] have had their desired effect, which is to minimize the exploitation of farm labour workers" as not being the last word on this matter. Indeed, there was no evidence to support this contention of the Ministry, which was made less than one year after the tragic highway crash of a van transporting farmworkers that resulted in three deaths and eight critical injuries attributed to violations of safety and employment standards.

The Commissioner further concluded that the Ministry of Labour had failed to "respond to the applicant openly, accurately and completely."

All public policy researchers and legislators should be alarmed by and raise objections to these unceasing efforts of the provincial government to undermine the purposes of the Freedom of Information and Privacy Act and to block the disclosure of public documents in the public interest.

David Fairey is a Labour Economist and a co-author of the 2008 publication Cultivating Farmworker Rights: Ending the Exploitation of Immigrant and Migrant Farmworkers in BC (co-published by the Canadian Centre for Policy Alternatives, Justicia for Migrant Workers, Progressive Intercultural Community Services Society and the BC Federation of Labour).