November 20, 2008

A ruling by the Ontario Court of Appeals (OCA) handed down on November 17, 2008 will open the door for Ontario’s farm workers to exercise their newly found constitutional right to bargain collectively.  The Court held that the province’s Agricultural Employees Protection Act (AEPA) did not go far enough to protect farm workers’ collective bargaining rights under the Charter of Rights and Freedoms and was therefore unconstitutional. Ontario was given 12 months to change its legislation to conform to the decision.

The case pitted the United Food and Commercial Workers Union Canada, a union that had been unsuccessfully trying to bargain on behalf of farm workers, against the province’s Attorney General and the Ontario Federation of Agriculture.

Farm workers in Ontario have been traditionally excluded from the province’s
Labour Relations Act (LRA) which gives other workers the right to form unions for the purpose of bargaining collectively with employers.  Some of the reasons given for this exclusion are the importance of protecting family farms, the perishability of agricultural products which allegedly makes the industry especially vulnerable to work stoppages.

In 2001 the Supreme Court of Canada ruled in Dunmore v. Ontario that workers had a constitutional right to organize and that the exclusion of farm workers from the LRA violated this right. In response to the decision Ontario enacted the AEPA in 2002 which gave farm workers the right to form associations which could take their concerns to employers.

But unlike the LRA, the AEPA does not impose on farmers the obligation to bargain with workers’ unions in good faith, nor does it include mechanisms to resolve disputes when bargaining reaches an impasse. These omissions have effectively prevented farm workers’ associations from successfully bargaining collectively.

This situation was destined to change after the Supreme Court’s 2007 decision in Charter: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia.  In that case the court held that not only was the right to unionize constitutionally guaranteed under the Charter of Rights and Freedoms, but so was the right to engage in meaningful collective bargaining.

Basing itself on this decision the OCA struck down the AEPA and rejected arguments that the legislation was crucial to protect agricultural production and the family farm.  The Court was unconvinced that the unique characteristics of the industry (that is was time sensitive, seasonal, and produced perishable goods) required special protection  given  that collective bargaining had been extended to almost every other class of workers in Ontario, including those in other industries faced with similar problems.

The OCA’s decision is available in full from the Court’s website.

To read more about the plight of farm workers in the province please see the recent Toronto Star Op-Ed piece: “Migrant workers reap bitter harvest in Ontario.”