"The farm workers case unfortunately seems to have been lost in a larger political battle beyond their control.”
Toronto (31 May 2011) – The conclusion of the majority of Supreme Court of Canada (SCC) justices on the Fraser decision is “troubling from a number of perspectives”, according to Paul Cavalluzzo, lead counsel for the United Food and Commercial Workers of Canada (UFCW) who argued the case before the Supreme Court.
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.
Cavalluzzo was speaking yesterday 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 denied UFCW’s claim with the majority of justices ruling that the AEPA is constitutional by implying the legislation provided a duty to bargain.
Cavalluzzo pointed out the SCC majority position was not even argued by the government of Ontario or any other party.
“Indeed, the government argued against this position by submitting that the Charter could not impose a duty to bargain on agricultural employers because they are in the private sector. Up to and including the argument in the Supreme Court, all parties and the courts below operated on the understanding that the law did not impose a duty to bargain.”
“The former Harris government never intended to confer collective bargaining rights on farm workers. Indeed, in introducing the legislation in the legislature the Minister of Agriculture stated that the AEPA did not confer collective bargaining rights on farm workers. All of the government written materials in support of the legislation said the same thing.”
He also pointed out that both Justices Abella and Rothstein, in their separate opinions, held that the language in the Act could not be stretched to imply a duty to bargain when the law only imposes on the employer a duty to listen to employee representation if given orally or give a written acknowledgement that the employer received representations in writing.
“In my view, Justices Abella and Rothstein are correct that the AEPA cannot be read to imply a duty to bargain,” noted Cavalluzzo. “As these two judges said, if the BC Health Services case is upheld, as it was by the majority, the inevitable result is that the AEPA is unconstitutional. It is for this reason that Justice Rothstein described the majority's conclusion as ‘entirely novel and unprecedented’."
Cavalluzzo noted that while the majority's ruling noted the relevance of international law and the International Labour Organization (ILO) decisions in informing the interpretation of s. 2(d) of the Charter of Rights and Freedoms, they failed to refer to two ILO rulings concerning the AEPA in the record of evidence. “Both of these ILO decisions found the legislation violates Canada's obligations under international human rights law by failing to provide agricultural workers with collective bargaining rights."
In concluding his remarks, Cavalluzzo noted that "the farm workers case unfortunately seems to have been lost in a larger political battle beyond their control.”
“Big business and governments used the farm workers case to argue the BC Health Services case had gone too far in its protection of collective bargaining rights under s. 2(d) of the Charter. A reading of the judgments reflects this in that most of the judgments deal with whether BC Health Services should be overturned rather than to the extensive record before them which demonstrated the plight of farm workers as one of the most vulnerable groups of workers in Canada."
Several other speakers presented both their analysis of the decision and its implications for the labour movement at yesterday’s seminar. Within the next several weeks CFLR will be publishing a report on the seminar.
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
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