Commentators suggest effects of ruling may not be as dire for unions as first believed
It’s been almost six months since the Supreme Court of Canada handed down its ruling in Ontario (Attorney General) v. Fraser, a case involving a constitutional challenge by farm workers around their exclusion from the province’s Labour Relations Act, and the debate continues about what the decision means for both employers and workers.
The SCC ruled in April that an Ontario law restricting the right of farm workers to bargain collectively is constitutional.
The Court said the province’s 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 shift away from the SCC’s previous decision in Health Services, which held that workers have a constitutionally protected right to bargain collectively, including the right to unite and present demands collectively to an employer.
Many on the labour side, including the UFCW which orchestrated the Fraser case, see the decision in April as a setback because it doesn’t define “meaningful” and, furthermore, doesn’t compel employers to negotiate with workers.
Since then, there has been much debate in legal circles about the implications of this case, with many arguing it could be a turning point for labour relations in Canada.
In a recent series of blog posts about Fraser on Thecourt.ca, Chris Hunter argues “the majority (of justices) actually came to the right conclusion, albeit improperly.”
In an interview, he explains that while the court came to the right decision on a policy basis, the struggle was justifying it in the context of a Charter right. He argues that whether or not an employer has an obligation to respond to an employee association’s demands has no actual bearing on the freedom of farm workers to associate.
“There’s still a duty to bargain in good faith which is especially important with the balance of power in favour of employers,” he says. “But what’s not clear is why your freedom of association puts specific obligations on me as an employer.”
Hunter argues it would have been inappropriate for the court to endorse a specific model of collective bargaining, namely the Wagner model, which is why this decision could be seen as progressive.
“It’s progressive because it’s somewhere in the middle of the road,” he says, noting the polarization of viewpoints held by the Court likely mirrors the feelings of Canadians.
Hunter adds the decision also puts the onus on legislators, not the courts, to define “meaningful” collective bargaining.
“To be meaningful, there needs to be statutory dispute resolution, for example,” he says, noting that it falls in the purview of governments. “This decision does signal to the legislative branch that the bar for collective bargaining is much broader than what it has been previously.”
Hunter adds that courts, by their very nature, are cautious, especially when dealing with Charter freedoms.
“Slowly but surely over time the courts will define ‘meaningful’ through their decisions on a case by case basis,” he says.
Roy Adams, a professor at Osgoode Law School at York University, also suggests the case could be an impetus for change. In a blog post, he writes that employers and unions should be allowed, and encouraged, to negotiate their own bargaining structures and processes.
He also argues in favour of the provincial government revising the AEPA to include, at a minimum, the right to strike.
“In international law, the right to strike is an essential element of the right to collective bargaining,” he writes. “In short, Ontario farm workers (indeed, all workers even those not represented by certified trade unions) have a right to strike that needs to be effectively protected by Canadian governments.”
