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“For the Court to suggest that a mere right to have bargaining proposals considered in good faith amounts to an extension of real and meaningful bargaining in the Canadian context is to ignore both labour history and collective bargaining reality.”
Ottawa (7 June 2011) – As a result of the Supreme Court of Canada’s (SCC) recent decision on Fraser, agricultural workers unfortunately will not have access to meaningful collective bargaining, according to well-known labour lawyer, Steven Barrett, who represented the Canadian Labour Congress (CLC) as an intervener before the Supreme Court.
Barrett was speaking last week at The Labour Movement after Fraser seminar sponsored by the Canadian Foundation for Labour Rights (CFLR). The seminar, attended by some 30 prominent labour law academics, union-side labour lawyers and union leaders, was organized by CFLR to discuss the implications of the recent SCC Fraser decision on the Canadian labour movement.
The SCC’s Fraser decision, which was released April 29, concerns the Agricultural Employees Protection Act (AEPA) which UFCW challenged as unconstitutional for its denial of collective bargaining rights to farm workers in Ontario. The SCC denied UFCW’s claim with the majority of justices ruling that the AEPA is constitutional by implying the legislation provided a duty to bargain.
According to Barrett, for the Court to suggest that a mere right to have bargaining proposals considered in good faith amounts to an extension of real and meaningful bargaining in the Canadian context is to ignore both labour history and collective bargaining reality.
“It may be that freedom of association does not, as the Court held, require for all times a particular model or process for collective bargaining. However, to exclude a group of vulnerable and marginalized workers from a uniform model of collective bargaining that has been enacted by legislatures across the country is to exclude them from the possibility of collective bargaining, as that term is understood by labour experts, neutrals, and lawyers from both the union and management bars.”
Barrett pointed that the decision may reflect a reluctance by the Court to interpret and apply the freedom of association guarantee in a manner which requires legislatures to positively enact certain essential provisions of the Wagner Act or any labour relations model.
However, according to Barrett, “the unions were not, as the majority suggested, arguing that this model is perfect, or constitutionally required for all time. What they argued was that the effect of denying agricultural workers – a particularly marginalized and vulnerable group – access to a statutory framework for collective bargaining available to virtually all other workers, and relegating them to an inferior and restrictive regime, means that agricultural workers have been denied any meaningful ability to engage in collective bargaining.”
Barrett also added that the Court's reluctance to require positive legislative protection "should not extend to legislation which restricts or overrides free collective bargaining, as it did in B.C. Health Services – that is when there is not a claim to positive legislative protection, but to protection from legislative interference with free collective bargaining.
“Given what is happening to public sector workers in the US (including Wisconsin), and the possibility of more conservative governments in Canada, freedom of association still extends a constitutional shield against legislation which attempts to prohibit or restrict workers – public sector or otherwise – from engaging in free collective bargaining.”
Barrett’s analysis of the SCC Fraser decision covered several other major areas. A detailed summary of his presentation will be included in a report of the May 30 seminar which the CFLR will be publishing in the next several weeks.
CFLR
The Canadian Foundation for Labour Rights (CFLR) was established by the National Union of Public and General Employees (NUPGE). CFLR is a national voice devoted to promoting labour rights as an important means to strengthening democracy, equality and economic prosperity here in Canada and internationally. The key objectives the Foundation has established for itself are to create greater public awareness and understanding of labour rights as a key critical component of human rights and build effective political momentum and public support for progressive labour law reform. CFLR
NUPGE
The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE
More Information:
Fraser decision “troubling” according to lead counsel for UFCW
CFLR seminar on Fraser decision – agenda and speakers’ bios