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“Farm workers are one of the most vulnerable groups of workers in Canada. How the Supreme Court could deny them access to effective collective bargaining in order to achieve fair wages and working conditions is beyond me.” – James Clancy
Ottawa (29 April 2011) – The leader of one of Canada’s largest unions is disappointed and surprised with the decision from the Supreme Court of Canada today upholding legislation in Ontario that denies farm workers the right to collective bargaining.
“The Supreme Court of Canada (SCC) has turned its back on one of the most vulnerable groups of workers in Canada by ruling that farm workers are not entitled to the same workplace rights as almost all other Canadian workers”, said James Clancy, president of the 340,000-member National Union of Public and General Employees (NUPGE). “Farm workers in Ontario are one of the lowest paid group of workers in the country and often face deplorable working conditions. How the Supreme Court could deny them access to effective collective bargaining in order to achieve fair wages and working conditions is beyond me.”
Clancy was reacting to the Supreme Court decision to uphold the constitutionality of the Agricultural Employees Protection Act (AEPA) introduced in 2002 by the former Conservative government. The legislation provides farm workers the limited right to organize but makes no mention of the associated right to collective bargaining.
The decision marks the latest chapter in a 20 year struggle by the United Food and Commercial Workers – Canada (UFCW) to achieve labour rights for the 80,000 domestic and migrant farm workers in Ontario. The AEPA is the second attempt by the Ontario government to deny farm workers the right to collective bargaining. The first attempt was made by the Mike Harris government in 1995 when it amended the Labour Relations Act to exclude farm workers from joining a union. That legislation was ruled unconstitutional in 2001 by the SCC.
“The decision is indeed disappointing”, noted Clancy. “While I take some comfort in the fact that the majority of justices continue to maintain the view that s. 2(d) of the Charter confirms the constitutional right of all Canadians to collective bargaining, I fail to understand how the Court can conclude that the AEPA protects that right for farm workers.
The Supreme Court defines collective bargaining as “a process of collective action to achieve workplace goals, requiring engagement by both parties.”
“Based on this definition, I fail to see how the majority of justices can make such a leap by ruling that the AEPA allows farm workers to engage in collective bargaining”, noted Clancy.
He referred to Justice Abella’s dissenting judgment which expressed “great difficulty” with the majority decision for “stretching the interpretative process” of AEPA to conclude employers in the agricultural sector have a duty to engage in meaningful discussions with their employees in good faith and make reasonable efforts to reach an agreement.
“This interpretation is simply unworkable,” Clancy stated “because the legislation provides no remedy to force employers to be compliant with their duty to follow those basic principles of collective bargaining.
Justice Abella suggested the majority’s decision does not meet the standard of the SCC’s 2007 B.C. Health Services decision when the AEPA is “scrutinized for its compliance to the principles of collective bargaining”. She noted that there is no reference in the legislation to basic collective principles such as “negotiate”, “good faith”, “engage”, “dialogue”, “consultation”, “accommodation” and “union”. Justice Abella further points out, “Nor does the key word ‘bargaining’ appear.”
“One thing this decision does reinforce for the labour movement in Canada is that we can not afford to sit around and rely on the courts to defend labour rights.”
“We must continue to work diligently to ensure that the basic workplace rights of all Canadians are not only protected but enhanced. Ultimately, we need progressive labour law reform right across the country. This must remain a central focus of labour’s political agenda today and well into the future.”
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
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Supreme Court of Canada Fraser decision