The Right To Associate And Negotiate: The Supreme Court's Recent Pronouncement

In its long awaited Fraser1 decision the Supreme Court has clarified the scope of protection that exists under the Canadian Charter of Rights and Freedoms (the Charter) for collective bargaining activities. The Court rejected arguments put forward by the union representing agricultural workers that a particular form of collective bargaining2 is required for a labour relations scheme to be compliant with the Charter. In its ruling, the Court found that a differential labour relations scheme for the farm industry falling outside of the scope of the Ontario Labour Relations Act (LRA) is constitutional.

HISTORY OF FARM WORKERS' LABOUR RIGHTS IN ONTARIO

The current labour legislation for farm workers in Ontario has a long and litigious history. From 1943 to 1994 farm workers were excluded from the LRA. In 1994, an NDP dominated Ontario legislature extended union and collective bargaining rights to farm workers for the first time. A year later, the new conservative government re-legislated the exclusion of farm workers from the labour relations regime. This amending legislation was challenged in the Supreme Court decision of Dunmore3 on the basis that it infringed the right of freedom of association under s. 2(d) of the Charter. The Supreme Court made the landmark ruling that collective bargaining is a fundamental right protected under the Charter by freedom of association, and that the amending legislation infringed this right by substantially preventing workers from collectively organizing themselves. The Supreme Court gave the legislature 18 months to make its legislation compliant with the Charter. The legislature responded with the Agricultural Employees Protection Act, 2002 (AEPA).

The AEPA created a separate labour regime protecting the right of farm workers to form employee associations, to participate in their activities, to assemble, to make representations to their employers on the terms and conditions of employment, and the right to be protected against interference, coercion and discrimination in the execution of their rights. Despite these protections, the United Food and Commercial Workers Union (the Union) claimed that the legislation failed to provide:

statutory protection for majoritarian exclusivity, a statutory mechanism that would resolve bargaining disputes and interpret collective agreements, and a statutory duty to bargain in good faith. The Union claimed that these shortcomings in the legislation were a violation of s...