Supreme Court Set to Rule Soon on Rights of Farm Workers
Adams, Roy J., CCPA Monitor
IMPORTANT LEGAL DECISION PENDING
In its ruling on the B.C. Health Services case, decided in 2007, the Supreme Court stated that the Charter of Rights and Freedoms should be presumed to provide at least as much protection of freedom of association rights as is found in the international human rights documents to which Canada has bound itself.
If that standard is fairly applied, the Supreme Court will reject the arguments of both appellant and respondent in the case of Fraser v. Ontario concerning the freedom of association rights of agricultural workers in Ontario. The solutions sought by both parties, in arguments before the Supreme Court last December, offend international standards and thus are not minimally acceptable under the Court's self-imposed standard.
The incidents giving rise to the case trace to events that occurred in the 1990s. A few years after an NDP government instituted statutory bargaining rights for agricultural workers, the Conservative government of Mike Harris removed those workers from coverage. The United Food and Commercial Workers (UFCW), the main union attempting to organize Ontario farm workers, went to court and in 2001 won a groundbreaking decision (Dunmore v. Ontario). The Supreme Court found that the action of the Conservative Ontario government made it nearly impossible for agricultural workers to organize.
In response, the Harris government introduced the Agricultural Employees' Protection Act (AEPA). That act minimally secured farm workers' right to organize, but gave them no explicit right to bargain and no protected right to strike. The AEPA was upheld by a lower court, but, subsequent to the Supreme Court's Health Services decision constitutionalizing a "procedural right to collective bargaining," the Ontario Court of Appeal overturned it.
The appellant court ordered the Ontario government to institute legislation for farm workers containing the key elements of the Wagner Act model - the legislative scheme in effect for most private sector workers, including agricultural workers, across the country. The key elements specified by Chief Justice Winkler were bargaining in good faith, majoritarian exclusivity, and a dispute resolution mechanism for settling bargaining impasses and contract grievances. The court indicated that it would be satisfied if the province substituted binding arbitration for the right to strike.
The Ontario government appealed the decision to the Supreme Court. The respondent was the UFCW. There were a lot of interveners, including the federal government and several provincial governments.
Ontario argued that the Court of Appeal erred in holding that the legislature is obliged to provide farm workers with "a particular labour relations model," thus "transforming a legislative labour policy choice into a constitutional imperative." Instead, the SCC should allow the AERA to stand, the province argued, because "nothing in the AEPA impairs collective bargaining between employee associations (which can include trade unions) and farm employers." The province also claimed that the UFCW had failed to establish a positive rights claim because it provided evidence of only two cases in which agricultural employees had tried unsuccessfully to organize.
The UFCW, on the other hand, argued that the AEPA, instead of being benignly permissive, "orchestrates, encourages, and sustains" violations of Charter-protected rights. The Supreme Court, the UFCW claimed, should fully affirm Chief Justice Winkler's decision, because "the only group of Ontario farm workers that has ever successfully unionized and engaged an employer in collective bargaining did so under [Wagner Act model] bargaining legislation that was in place for 17 months in 1994-1995."
The attributes of the Wagner Act model identified by Chief Justice Winkler are the minimum needed in the Canadian context, counsel for the UFCW argued, to make freedom of association accessible for farm workers. …