Friday, May 6, 2011
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.