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Guest Blog: Roy Adams on the Fraser Case and the Recent ILO Decision Finding Against the Province of Ontario

This is the second “Guest Blog” by Professor Emeritus (McMaster) Roy Adams on the Fraser v. Ontario decision (here is his first).  This one considers the  just released decision of the ILO Committee on Freedom of Association adamsdealing with the same facts and issues raised in the Fraser case. I noted that decision yesterday.

Here is Roy’s take on the ILO decision and its relevance to the pending SCC decision in Fraser v. Ontario. [Here is a Word version of Roy's piece]

On the ILO’s Committee on Freedom of Association’s decision with regard to Agricultural Workers in Ontario

By

Roy J. Adams

adamsr@mcmaster.ca

With regard to Canadian labour relations the most important as yet unsettled court case is undoubtedly Fraser v. Ontario which has to do with the bargaining rights of agricultural workers in Ontario.

In response to a 2001 Supreme Court decision (Dunmore), the Ontario government introduced the Agricultural Employees Protection Act (AEPA) purportedly to protect the freedom of association rights of farmworkers. Because it provided for neither mandatory bargaining, nor the right to strike (or any alternative dispute resolution procedure such as arbitration) the United Food and Commercial Workers (UFCW) went back to court. That case eventually found its way to the Supreme Court who heard arguments regarding the situation in December 2009 but has not yet issued its decision (for more detail see David Doorey’s The Canadian Charter of Rights and Freedoms and Workplace Law: A Guide for Beginners)

In March of 2009 the UFCW also filed a complaint with the International Labour Organization’s Committee of Freedom of Association. As a member of the ILO, Canada is bound by that organization’s constitution including its Freedom of Association principles.  Those who feel that those principles are not being respected may file a complaint with the CFA.

Although the Ontario government asked the CFA to postpone its decision until after the Supreme Court issued its own, the CFA said it could wait no longer and thus dealt with the issue in its November meeting. In recent decisions the Canadian Supreme Court has found ILO jurisprudence to be a persuasive interpretative source. It has also stated that Canadian workers should be able to depend on international human rights documents (including the decisions of their interpretative bodies presumably). For both of those reasons, CFA decisions command more attention than they have historically.

Should the Supreme Court continue to find the jurisprudence of the CFA persuasive, it will – subsequent to this CFA decision – do precisely what I argued in an earlier blog that it should do (see “On the Impending Supreme Court decision in Fraser v. Ontario)” posted both on David Doorey’s Workplace Law Blog on April 12, 2010 and in revised form here (14 June 2010). It will reject the arguments of both the UFCW who wanted it to uphold an Ontario Appeals Court decision and those of the Ontario government who wanted it to uphold the legality of the AEPA.

Let’s deal with the government’s position first. The basic argument of the Provincial Government is that its constitutional responsibility is to refrain from interfering with the formation of collective bargaining relationships. It insists that it has no duty to foster such relationships. That position, the CFA made clear in its agricultural workers decision, is not consistent with international human rights principles. Under international law it is the responsibility of governments to “encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.” (CFA Case 2704)

In Dunmore the Canadian Supreme Court, after an historical review of agricultural labour relations, concluded that farmworkers had no real chance of exercising their constitutional rights without government assistance. In BC Health the Court stated that “The Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.” The ILO constitution is an international treaty and with respect to freedom of association an international human rights document. If the SCC remains true to the standards it enunciated in Dunmore and BC Health it must reject Ontario’s laissez faire argument. Ontario must effectively protect the rights of agricultural workers to bargain collectively. The AEPA is not getting that done. Instead, as the CFA noted: “neither the Government nor the complainant have referred to any successfully negotiated agreement since the Act’s adoption in 2002…”

Now for the union’s position. The UFCW would have the SCC endorse the decision of the Ontario Appeals Court. The problem (as I argued in my previous blog article and in an article published in Canadian Labour and Employment Law Journal entitled “Fraser v. Ontario and International Human Rights”), is that the Appeals Court decision is offensive to international human rights standards. Chief Justice Winkler’s decision requires the Ontario government to introduce a “majoritarian exclusivity” regime that would “eradicate” the possibility of non-majority union representation. In its decision the CFA concedes that “Appropriate machinery can be adapted to national circumstances” but only if “the principles reflected above are fully respected.” One of those principles is the “right of representative organizations to negotiate, whether these organizations are registered or not.” In its Ontario farmworker decision the CFA did not elaborate the definition of “representative organizations” but the meaning of that term is to be found in the CFA’s digest of decisions.

Here are the key principles included in that digest.

1. Under Canadian labour statutes a union must acquire majority support in an appropriate bargaining unit in order to gain government backing for union recognition.

The ILO recognizes the legitimacy of that procedure for the designation of an exclusive bargaining agent. But the existence of such a procedure must not deny workers’ alternative forms of union recognition where there is no exclusive agent. Here is the language from one of the CFA’s decisions: “With regard to a provision that stipulates that a collective agreement maybe negotiated only by a trade union representing an absolute majority of the workers in an enterprise, the Committee considered that the provision does not promote collective bargaining. . .” (CFA Digest of Decisions, 2006, para. 978).

2. Under ILO principles unions may establish representivity (and have access to relevant machinery requiring recognition to bargain collectively) even if they regroup substantially less than 50% of the relevant workers.   Although the low end is somewhat ambiguous, it is quite clear that any government that requires unions to demonstrate 50+% support as the sole means of acquiring recognition does not fulfil its duty to promote collective bargaining. More CFA language: “with regard to a provision that stipulates that a collective agreement may be negotiated only by a trade union representing an absolute majority of the workers in an enterprise, the Committee considered that the provision does not promote collective bargaining. . .” (CFA Case 2303)

3. Even if the union represents only a handful of workers in a situation where there is no exclusive bargaining agent, it should be recognized (and machinery should be in place to promote such recognition) at least for its members only. The CFA again: “if there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members.” (also from Case 2303).

What does all this mean for Canadian labour relations?

First, if the Canadian Supreme Court remains true to the standards it set out for itself in recent decisions it will require Ontario, at a minimum, to effectively protect the ability of farmworkers to bargain collectively. There are two obvious ways that Ontario might respond. First, the province could simply put farmworkers back under the general provincial Labour Relations Act. It if does so, the representivity issue will remain unsettled. Second, it might revise the AEPA (which does not require that a workers’ organization have 50% support to make representations to an employer) to oblige employers to bargain collectively even with nonmajority unions. The repercussions of its doing so could be interesting.

In either event one of the issues raised by this case will not be settled. The CFA made no mention of the right to strike and, at its December 2009 hearing, it was clear that some of the SCC justices were reluctant to get into that issue at this point. Ontario could give farmworkers a right to strike and thus take the specifics of this case out of the court system, but probably won’t. Under either a revised AEPA or the LRA, the government will probably require that impasses in agriculture be settled by reference to binding arbitration. A committee in the Bob Rae era recommended that form of dispute resolution and the UFCW has declared itself willing to accept such a scheme. Since arbitration will satisfy organized labour (and likely both the province and agricultural employers) further court proceedings will be unlikely. But if the issue does somehow find its way back to the SCC, the Court will have a difficult decision. Arbitration of agricultural industry impasses does not comply with international standards (see my article in Canadian Labour and Employment Law Journal) but the SCC might find it to be justifiable nevertheless. And so the right to strike will still be up in the air.

The brief history of the case is this: when Ontario introduced its general collective bargaining law after World War II it excluded agricultural workers. In the early 1990s Ontario’s Bob Rae government brought them under the law but the subsequent Conservative government of Mike Harris kicked them out again. The United Food and Agricultural workers took the case to court and in the 2001 Dunmore decision, won. The reluctant Conservatives introduced the Agricultural Employees Protection Act that protected the right of agricultural workers to form associations and to make representations to their employer but did not require collective bargaining and did not provide for the right to strike. The UFCW went back to court, lost at the first level but “won” at the appeal level in 2008 subsequent to the Supreme Court’s constitutionalization of collective bargaining in its 2007 BC Health Services Case.

I put “won” in parentheses because what it won is problematic from both a constitutional and international human rights law perspective. The appeal court ordered Ontario to introduce a “majoritarian exclusivity” regime similar to that available to workers under the general labour relations statute in which union recognition and the establishment of collective bargaining is contingent on the union demonstrating majority support in an appropriate bargaining unit. In practice this legal regime makes highly improbable the formation of bargaining relationships outside of that format but the AEPA left open the possibility of non-majority union representation and even for the appearance of more than one union being formed at a single workplace. Chief Justice Winkler ordered to Ontario government to “eradicate” that possibility.  The Ontario government appealed the Appeal’s Courts decision but the Supreme Court has not yet handed down a decision.

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