A labour law professor says employee fatigue management should be the government’s purview, not an issue dealt with in labour negotiations.
Scheduling and fatigue management were among the major sticking points in the recent conflict between Canada’s railways and the Teamsters Canada Rail Conference, the union representing the two railways’ workers.
Bruce Curran, who teaches law at the University of Manitoba, suggested the negotiations were doomed from the start.
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“I’m definitely of the opinion that the federal government should implement what you could call fatigue management system regulations, which are a little bit more systemic and broader spread than the current set of regulations,” he said.
Canada came to the brink of a transportation crisis in August after labour negotiations stalled between employees and the nation’s two major railways.
In 2020, the federal government implemented1 the Duty and Rest Period Rules for Railway Operating Employees.
That was a positive step, Curran said, but the rules were prescriptive, limited to operating employees and didn’t contain the kind of systemic solution that is needed.
The federal government has been working with Transport Canada for several years to develop fatigue management system regulations, but Curran says the process is taking too long.
Transport Canada initiated consultation with industry stakeholders that ended in 2022. While the agency has published possible inclusions for the eventual regulations, there has been no further action.
Railways have reduced their workforces in recent years in the name of increased efficiency, Curran noted. They began instituting precision scheduled rail unloading, a streamlining policy that shifted focus from building the longest trains possible to instead have more continually moving trains.
“Part of this was to substantially reduce the workforce and engage in an efficient and lean operation,” Curran said, adding that railways may be pushing back on some pushed for fatigue management provisions because it hampers that efficiency.
Current provisions from the railways likely meet the letter of Canada’s Duty and Rest Period Rules for Railway Operating Employees, he said, “but the workers’ position is that meeting the strict letter of these rules is not enough.”
Fatigue research
Research in the last few decades has underlined fatigue-related declines in worker performance, including attention, vigilance and general cognitive functioning, Curran noted.
He pointed to research that suggests workers who have been up for 17 hours can be as impaired as a drunk driver with a 0.05 blood alcohol level, and a full 24 hours without sleep is comparable to a 0.1 blood alcohol level.
Those numbers come from Canadian Centre for Occupational Health and Safety, and have also been cited by farm safety groups when addressing fatigue during seeding or harvest.
“Since 1990, there have been over 30 catastrophic rail accidents in Canada,” said Curran. “In virtually all of them, the fatigue has been identified as at least a contributing factor.”
Fatigue and the rail dispute
Curran speculated that if Transport Canada regulations had been in place before this year’s negotiations, and if current rules around fatigue had been clearer, the two sides might have been closer to resolving their stalemate.
Instead, the federal government intervened once trains stopped on Aug. 22. Labour minister Steven MacKinnon referred the matter to binding arbitration, halting the union’s strike action and the railways’ lockouts. On Aug. 30, Reuters reported that the union had filed its challenges.
“With respect to binding arbitration, it tends to deal well with those issues where there’s a small, narrow range of issues that are financial in nature,” Curran said. “It doesn’t tend to do particularly well where there’s a large range of complex non-financial issues at stake.”
