Farm workers denied union representation; employers enjoined to bargain in good faith
The constitutional right to collective bargaining that many thought was guaranteed through several previous Canadian court rulings, most notably B.C. Health Services, is now in doubt following a landmark Supreme Court of Canada decision.
The SCC ruled last week that an Ontario law restricting the right of farm workers to bargain collectively is constitutional. The Court said the Agricultural Employees Protection Act (AEPA) provides them with a “meaningful” process to come together as a group to negotiate with employers, even if that process is not in the form of collective bargaining.
The decision is a harsh blow to the union movement which has long argued the Act was unconstitutional because farm workers do not have the same collective bargaining rights as other employees in the province.
“We took a beating with this decision,” said Stan Raper, national co-ordinator for the Agricultural Workers Alliance with the United Food and Commercial Workers. “We’re in shock.”
The challenge was launched by three Ontario farm workers, the UFCW and its national director Michael Fraser. It revolved around a mushroom farm near Windsor, Ont. where workers voted to join the UFCW but couldn’t make any headway bargaining with their employer for a contract.
Raper said the problem with the AEPA, as demonstrated in that situation, is that it doesn’t require employers to negotiate with workers.
“They say, ‘We hear you but that’s all we have to do. There’s nothing to compel us,’” he said. “The Supreme Court just looked at the AEPA description and compared it to 2(d) in the Charter [freedom of association] and said, yes, it’s covered.”
Farmers argued the nature of their industry can’t support a collective bargaining process that would allow strikes or other job action. They’re “delighted” by the ruling, according to Ken Forth, chair of the Labour Issues Coordinating Committee, a group comprised of agricultural growers and producers in Ontario, and a broccoli farmer in Lynden, Ont. just outside Hamilton.
“If a mini-van sits half built in a plant during a strike, you can still build it when it’s over. On a farm, you can’t milk the cows. There’s a six day window to pick peaches. The fact is there won’t be a farm when it’s over,” he said.
He noted the AEPA has checks and balances to keep employers — and employees — from being unfair.
Aside from the immediate question of the constitutionality of the statute, the SCC decision has also narrowed and called into question the previous B.C. Health Services decision — which could once again transform the legal landscape in Canada.
The Court said only legislation that “makes good faith resolution of workplace issues between employees and their employer effectively impossible” would violate section 2(d) of the Charter — a much narrower view than the view taken in B.C. Health Services.
“The Court is saying it doesn’t want labour law to be constitutionalized,” he said.
John Craig, a lawyer with the firm Heenan Blaikie in Toronto who represented the Ontario Federation of Agriculture at the SCC hearing, said “The courts are aware of the complexities of labour relations and realize they’re a matter for legislatures.”
Two of the justices felt the B.C. Health Services ruling should be reversed, while the majority suggested it should at the least be more narrowly interpreted.
Craig said there needs to be “a serious rethink” now in how that decision is applied to future cases, including an appeal of a 2009 ruling that struck down a section of the RCMP Act that prevented Mounties from forming a union. That case has been on hold pending the farm worker decision.
