As we all get ready for summer and the wonderful fruits and vegetables grown in Ontario, it is important to think about the labour conditions and rights of Ontario farm workers. While many people have idealized conceptions of the “family farm”, the modern reality is that most agricultural enterprises are large industrial businesses operating year round. Greenhouse and mushroom facilities in particular are far more akin to manufacturing plants than they are to ‘Old Macdonald’. Currently there are no unionized farm workers in Ontario because they have been legislatively prevented from joining unions and engaging in collective bargaining.
On April 29 the Supreme Court of Canada handed down its long-awaited ruling pertaining to farm workers’ collective bargaining rights in Ontario. The decision in Fraser addressed the constitutionality of the provincial Agricultural Employees Protection Act (AEPA). The Court found that the Act was constitutional only by engaging in judicial gymnastics and reading into the legislation provisions that substantially alter it. At the same time, the constitutional protection for freedom of association has been watered down.
Workers on the increasingly industrialized farmscape of southern Ontario have been seeking to bargain collectively for decades. Ontario and Alberta are the only provinces to prohibit collective bargaining for farm workers. Seemingly all other provinces are able to extend collective bargaining rights to farm workers without creating chaos on the farm. This anomalous situation was rectified in 1994 when the NDP government enacted the Agricultural Labour Relations Act (ALRA), extending trade union and collective bargaining rights to farm workers. Sadly, the following year the new Conservative government repealed the ALRA thereby excluding farm workers from collective bargaining rights. This repeal was challenged on the basis that excluding workers from collective bargaining violates the freedom of association contained in s. 2(d) of the Charter of Rights and Freedoms. In Dunmore, the Court agreed that this repeal was unconstitutional. In response, the Conservative government enacted the Agricultural Employees Protection Act.
This latter Act allows agricultural workers the right to form associations and to make representations to employers. Employers must listen to the representations. However, on the face of the Act there is no requirement to engage in good faith discussions or negotiations. There is certainly no acknowledgement of majoritarian exclusivity (i.e., the requirement to recognize the union selected by the majority as the sole and exclusive collective bargaining agent), nor a requirement to come to an agreement, nor any process for dealing with an impasse.
Subsequent to the adoption of the AEPA, workers at the Rol-land Farms Limited mushroom factory in Kingsville asked the United Food and Commercial Workers’ Union to represent them. More than 70% of the 200 workers employed signed union cards. In a secret ballot vote held pursuant to the Labour Relations Act, 75% voted in favour of the Union as their agent. In response, Rol-land created a company led “employees’ association” and refused to meet the Union. They informed their workers that the Union would never be recognized. They refused to respond to a request from the Union to meet.
At the same time, workers at Platinum Produce, an industrial greenhouse in Chatham, also asked the UFCW to represent them. The Employer agreed to meet the Union. This meeting lasted 15 minutes. The Union followed up with written proposals for a collective agreement. That meeting lasted 5 minutes. Platinum Produce has not responded to the proposals nor made any other communications regarding terms and conditions of work.
As a result, UFCW took the government to court alleging that the AEPA violated section 2(d) of the Charter, freedom of association.
While Fraser was making its way through the court system, the Court issued an important ruling in BC Health. The BC Health ruling made it clear that freedom of association includes “a process of collective action to achieve workplace goals....[requiring] the parties to meet and bargain in good faith on issues of fundamental importance in the workplace” In addition, the Court found that employees’ constitutional right to collective bargaining “imposes corresponding duties on the employer. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation.”
Clearly neither Rol-land nor Platinum engaged in any kind of good faith discussions. One reason is the AEPA itself does not require, at least on its face, anything other than listening to representations. In fact, as Abella, J states in her withering dissent, “we find that the following language is missing in action: ‘negotiate’, ‘meet’, ‘good faith’, ‘engage’, ‘exchange’, ‘dialogue’, ‘consultation’, ‘consideration’, ‘accommodation’, and ‘union’. Nor does the key work ‘bargaining’ appear.”
The Court made the AEPA square with the Charter by implying or reading into the Act’s provisions a requirement of employers to consider and discuss employee representations in good faith. According to the Court, the parties must engage in “meaningful dialogue” because this is a derivative right required to give meaningful expression to the constitutionally protected freedom of association.
The Court was reluctant to find that the AEPA was unconstitutional because the Union had not taken its complaints to the Agriculture, Food and Rural Affairs Tribunal. The Court argued that until the Tribunal has an opportunity to rule on matters like “meaningful dialogue” and make remedial orders, the Court cannot ascertain that the AEPA violates section 2(d).
What does this ruling mean for agricultural workers in Ontario? Likely, very little. The real test of the AEPA will come when complaints are filed to the Tribunal. If the Tribunal imposes on employers an obligation to meet the Union, to engage in negotiations in good faith, we may see some improvement. However, the fact is that the Act, even on the Court’s read, still permits employers to deal with multiple representatives (including “company unions”), does not require the parties to attempt to reach an agreement and does not provide a process to resolve impasses. These are all vital parts of any viable labour relations regime.
As you flip your marinated portabella mushroom on the BBQ, think about the fact that the workers who grew that mushroom are condemned to live in a 19th century labour relations regime solely because their factory is deemed “agricultural.” You should also consider the fact that a large portion of farm workers in Ontario are also oversees migrant workers denied many of the basic benefits and protections of Canadian workers. If most farm workers from the Annapolis Valley to the Okanagan are able to form unions, why can’t the folks in Kingsville and Chatham? I think the Court here got it wrong. What do you think?
The Fraser decision is a pull back from the more courageous decisions in Dunmore and BC Health. I fear that the Court has substituted “paper rights” for real rights which will thus leave unprotected some of the most vulnerable workers in our economy.
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