Decision on agricultural workers' bargaining rights still months away

Thursday, December 17, 2009

© AgMedia Inc.

by SUSAN MANN

Ontario farm groups are looking for a clear ruling from the Supreme Court of Canada to finally put to rest the long-standing question of whether agricultural workers should have the right to bargain collectively.

It could be six months to a year for the Supreme Court to rule on whether Ontario’s Agricultural Employees Protection Act is constitutional.

In 2008, the Ontario Court of Appeal ruled that the Act, in place since 2003, should be struck down. The decision supported the United Food and Commercial Workers Union Canada’s appeal that the Act was unconstitutional because it denies farm workers their collective bargaining rights. These are guaranteed under Canada’s Charter of Rights and Freedoms, the union says.

Ontario’s Attorney General appealed the November, 2008 Court of Appeal ruling to the Supreme Court. Mark Wales, Ontario Federation of Agriculture vice-president, says if the Supreme Court’s ruling clearly states the province’s Act is constitutional “then it’s end of story. If they say, ‘Yes it’s constitutional, but,’ then you have to deal with the ‘but.’”

Wales was at the one-day Supreme Court hearing before nine justices in Ottawa Thursday. The Federation was one of several groups with intervener status, including the Attorneys General from Canada and several provinces, the Canadian Labour Council and the Canadian Civil Liberties Association. Ken Forth, chair of the agricultural industry’s Labour Issues Coordinating Committee, says they believe farm workers have the right to freedom of association and that it’s a constitutional right. (The Act does allow farm workers to form associations and even hire a union to represent them).

“Nobody believes that collective bargaining and all those other things can be institutionalized. We don’t believe they can become part of legislation.” Forth, who was also at the hearing, notes the Act could work just fine but “it never had a chance.” The Act was in place for only two years before the Union started its court challenge. “It never really had a chance to work or not work.” Unlike some industrial workplaces where there could be strikes or lockouts, there isn’t a confrontational atmosphere on farms, he explains. “In a family operation, confrontational isn’t going to work.”

Forth says of the farms he’s familiar with workers and farmers work side-by-side at the same job each day and they cooperate with each other. Union spokesman Stan Raper says they argued the November 2008 Appeal Court ruling should stand and “farm workers should get legislated protection.”

Raper says workers’ right to strike was discussed at the Supreme Court hearing but the justices didn’t want to hear too much about it. “That’s something the legislative parties have to deal with.” Ontario tried to argue the case was really about the province’s right to determine its own legislation, he says. “All the interveners were trying to divert the Supreme Court to some hysteria around what this could potentially mean.”

The Union argued the case was strictly about “farm workers in the province of Ontario” and there shouldn’t be any more read into it than that. Raper says they’re hopeful they’ll win. “We don’t go into these things expecting to lose.” BF