Court favours bargaining rights for farm workers; province considers next steps

Monday, November 17, 2008

by SUSAN MANN

Ontario’s farmers are waiting to see if the province’s Attorney General will appeal a court ruling that invalidates the law prohibiting farm workers from bargaining collectively.

Ken Forth, chair of the agricultural industry’s Labour Issues Coordinating Committee, says they’re not happy with Monday’s Ontario Court of Appeal decision. But “we’re also not pushing the panic button yet because this isn’t over.”

Michael Forman, spokesman for the United Food and Commercial Workers Union Canada, says farm workers have been denied their rights now for 60 years and the province should remedy that as soon as it can.

“To delay the process further by appealing to the Supreme Court just continues what has already been an historical discrimination against these workers,” he says. “It’s a waste of taxpayers’ money too.”

It’s the UFCW Canada that appealed Ontario’s Agricultural Employees Protection Act to the Ontario Court of Appeal in May, saying the law violated Ontario farm workers’ constitutional rights under the Canadian Charter of Rights and Freedoms. The Ministry of the Attorney General defended the law.

In a written decision, the three Ontario Appeal Court justices concluded that the Agricultural Employees Protection Act “substantially impairs the capacity of agricultural workers to meaningfully exercise their right to bargain collectively.” The justices gave Ontario’s government 12 months to determine how “it will protect the rights of agricultural workers to engage in meaningful collective bargaining.”

“It is up to the Legislature to assess the options, taking into account constitutional, labour relations and other factors and to design a constitutionally acceptable model,” the court said in its decision.

Brendan Crawley, spokesman for the Attorney General, says the government will review the court’s decision carefully to determine its next steps. The government has 60 days to decide if it will appeal the decision to the Supreme Court of Canada.

OMAFRA also plans to review the decision. “It will take some time to review it and ensure that we fully understand it,” says Sherry Persaud, spokesperson for Agriculture Minister Leona Dombrowsky.

“We’re going to take the time we need to review this decision just to make sure we find the best way forward for all involved in Ontario farming,” she says.

Forth says their preference would be for the Attorney General to appeal the decision to Canada’s Supreme Court.

“There’s a whole bunch of problems in this thing,” Forth says.

One is allowing collective bargaining in the farm sector could drive up costs. Forth says Ontario farmers have to compete in the world market where farm workers get only a $1 day, while he pays his workers $125 a day.

“I’m being told that’s not enough,” he says. “I have no way of passing any food costs on because the food costs are determined by the cheapest price landed in Toronto from anywhere.”

The province passed the Agricultural Employees Protection Act in 2003 after the Supreme Court ruled in 2001 that Ontario’s Labour Relations Act violated farm workers rights to freedom of association guaranteed under the Charter of Rights and Freedoms. Before that farm workers were excluded from labour relations laws under the Labour Relations Act.

Mark Wales of the Ontario Federation of Agriculture says the current court case was the fifth one in about 11 years. The union lost four of those cases.

“The Supreme court ruled previously that collective bargaining is not a Charter right,” Wales explains. But now three Appeal Court judges disagreed, primarily because of a case involving health care workers in British Columbia.

“Clearly there the justices said their ruling was not about collective bargaining being a right but that the government of B.C. did not have the right to take away collective bargaining rights that they had already granted to their public servants,” Wales explains.

The union sees the B.C. health care workers ruling in a different light. Forman says that decision makes it clear workers have a constitutional right to unionize and bargain collectively. BF