Friday, May 6, 2011

Adams on Canadian Fraser Freedom of Association Case

Canadianflag The Supreme Court of Canada handed down the Fraser farmworker freedom of association decision last week. Roy Adams (McMaster (Hamilton, ON) has graciously agreed to share his thoughts about the decision on this blog.

Here's a taste:

On April 29th the Supreme Court of Canada finally handed down its decision on the bargaining rights of Ontario farm workers. In Ontario (Attorney General) v. Fraser the court split 5-2-1-1. Lots of descriptions of the various opinions will no doubt soon appear on the web. This comment focuses almost entirely on the majority decision.

The majority overturned the decision of the Ontario Court of Appeal written by Ontario Chief Justice Warren Winkler. That court had ruled Ontario’s Agricultural Employees Protection Act (AEPA) to be unconstitutional because it did not provide for union recognition based on “majoritarian exclusivity,” the general principle found in labour relations acts across the country, and because it failed to specify a dispute resolution mechanism for disputes over contract negotiations and for the settlement of contract interpretation disputes and because it did not explicitly contain provisions requiring good faith bargaining.

In its Fraser decision, the Supreme Court found that Judge Winkler had gone too far in requiring the province to legislate the major provisions of the “Wagner Act Model” found in general private sector labour legislation across the country. The major deficiency that the majority found in the AEPA was the absence of a clause that explicitly requires agricultural employers confronted by “representations” made by an employee association to engage in a “good faith” process. The majority of the court “affirmed that bargaining activities protected by s. 2(d) [the Charter’s freedom of association clause] in the labour relations context include good faith bargaining on important workplace issues...” which are “not limited to a mere right to make representations to one’s employer, but requires the employer to engage in a process of consideration and discussion to have them considered by the employer.” (para. 40). The majority went on to say that “One way to interfere with free association in pursuit of workplace goals is to ban employee associations. Another way, just as effective, is to set up a system that makes it impossible to have meaningful negotiations on workplace matters.” (para 42) . . . .

My reading of the majority decision is that the Tribunal is now required to assess any dispute about the operation of the relevant paragraphs against the bargaining in good faith guidelines outlined by the SCC in Health Services (2007). “Section 2(d),” the majority in Fraser said referring to Health Services, “requires the parties to meet and engage in meaningful dialogue. They must avoid unnecessary delays and make reasonable effort to arrive at an acceptable contract...” (41) Although in referring to the operative clauses in the AEPA 5(6) and (7), the majority conservatively said that “any ambiguity” should be “resolved by interpreting them as imposing a duty on agricultural employers to consider employee representations in good faith,” they also said (again referring to general principles established in Health Services) that 2(d) creates a “right to collective bargaining.” Although some employer-side law firms are making much of the phrase “consider employee representations in good faith,” I think that when read in its entirety the decision means that the government, through the Tribunal, must do more than require the employer to read demands “in good faith,” say “no” and move on.

You can read the rest of Roy's insightful comments about this important decision on worker's freedom of association rights at this link.

PS

the Supr Crt of Canada handed down its farmworker freedom of assn decision last week. Yesterday I posted a comment on line about that decision.

https://lawprofessors.typepad.com/laborprof_blog/2011/05/adams-on-canadian-fraser-freedom-of-association-case.html

Commentary, International & Comparative L.E.L., Labor Law | Permalink

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Comments

Lessons to be learned:

The time may be coming, if not quite ripe, for us (that is U.S. unions) to take note of some things we have too long ignored.. Recently, and potentially fortunately, we learned that other nations, including specifically Canada, do a better (and less expensive) job with health care than we do,)

It Ought to be relatively easy for us to take note of what unions and unionism means to our sisters and brothers north of the border. In many cases thay are members of the same unions as we -- UFCW and Carpenters, SEIU and Teamsters, Miners and Steelworkers, -- indeed every union which has the temerity to include the term INTERNATIONAL in its title.

Most Canadian unions, were organized by U. S. organizers, going back at least as far as William Sylvis’ Iron Molders' Union of North America (note the name!) established in 1859. The Canadians, copied our Wagner Act, word for word, then, enforced it -- as if they meant it. In a 1980 Unfair Labour Practice case involving Steelworkers and Radio Shack the company was fined $100,000 (when that was real money) for doing nothing worse than they do here, routinely. We, in 2010, were pleading, unsuccessfully, for EFCA and a fine up to “$20,000 -- and only in extraordinarily egregious cases!

The Canadian Supreme Court recently handed down a decision (Fraser Fredomof Association) regarding union bargaining rights worth our examining. The aspect of the case on which I wish to focus the attention of U.S. unionists (particularly in the public sector) is the section of the Candian Constitution (their “Charter” and it’s freedom of association clause) upon which they have built a structure incuding,“ a dispute resolution mechanism for disputes over contract negotiations and for the settlement of contract interpretation disputes and ... provisions requiring good faith bargaining.”

Our Constitution recognizes a Similar though Broader right in the First Amendment, “Congress shall make no law ... abridging... the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (The government referred to originally was federal, the 14th Amendment broadened it to include states.)

Do not mistake me, I am Not suggesting that This U.S. Supreme Court will find Any rights for workers to organize (assemble) and bargain with (petition) their employer (the government.) I am suggesting that we wake up and wonder howcum other modern economies manage to protect their workers -- while doing better than we economically

Responding to a petition by folks peacebly assembled is conventionally known as “collective bargaining”. It requires “good faith” as that is understood by the Canadians (and also, the International Labor Organization.)

Unless and until we attack our attackers as UNAmeican, as against the Constitution, as Totalitarian, we will not begin to take back the high ground of defending American freedom. Leo Gerard noted this when he spoke in 2005 in the hall of SEIU Local 32BJ shortly after the president of Local 100 of the Transport Workers Union had been released from jail. He said, “The Taylor Law, any law which punishes workers for striking and jalls their leaders - is Stalinist!”

The above is the principle lesson for us to learn from the Canadian Supreme Court, but there is another. The Court ruled:

“...the associations do not have to seek certification as exclusive bargaining agents. Nor do they have to win the support of a majority of the relevant workers. These parameters are perfectly consistent with international human rights law as embodied in the international labour standards of the International Labour Organization- standards..[.on which all] workers ought to be able to rely.”

“...the Wagner Model with its ‘majoritarian exclusivity’ will not get the job done. Insisting that unions attract a majority of the relevant workers in order to engage in good faith bargaining clearly offends international standards.

My additional comment notes: “majoritarian exclusivity” is Not Only not consistent with “international labour standards”, it is a real obstacle to rank-and-file democracy, militancy and real participaton,. Our current winner-take-all system, combined with mandatory membership/dues payment, has been partly responsible for the passivity we see among so many union members which is reflected not only in a lack of a vibrant democracy but a weakness in participation which has left our movement relatively disarmed when faced with the current brutal frontal assault to extinguish it.

Some of us have watched with awe and envy as workers (and students!) have rebelled against the capitalist attack on their standards in Italy and France and throughout the “developed” world. The lack of a legal status for a minority group within a workforce, the kind of right to choose among several organizations (or none) which I found in a clothing factory in Milan, may be a portion of the problem. It is worth at least noting that “majoritarian excusivity is not the “international standard.

Martin Morand

212/866-2120

Posted by: martin Morand | May 9, 2011 9:53:29 AM

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