Roy Adams on the Impending Supreme Court Decision in Fraser v. Ontario
In its BC Health Services case, decided in 2007, the Supreme Court enunciated the standard that the Charter should be presumed to provide at least as much protection of freedom of association rights as is found in the international human rights documents to which Canada has bound itself. If that standard is fairly applied the SCC will reject the arguments of both appellant and respondent in the case of Fraser v. Ontario concerning the freedom of association rights of agricultural workers in Ontario. The solutions sought by both parties in arguments before the Supreme Court in December 2009, offend international standards and thus are not minimally acceptable under the court’s self-imposed standard.
The incidents giving rise to the case trace to events that occurred in the 1990s. A few years after an NDP government instituted statutory bargaining rights for agricultural workers, a conservative government removed those workers from coverage. The UFCW, the main union attempting for organize Ontario farmworkers, went to court and in 2001 won a groundbreaking decision (Dunmore v. Ontario). The Supreme Court found that the action of the conservative Ontario government made it nearly impossible for agricultural workers to organize. The Ontario government, in response, introduced the Agricultural Employees Protection Act (AEPA). That act minimally secured farmworkers’ right to organize but gave them no explicit right to bargain and no protected right to strike. The AEPA was upheld by a lower court but, subsequent to the Supreme Court’s Health Services decision constitutionalizing a “procedural right to collective bargaining,” the Ontario Court of Appeal overturned it.
The appellant court ordered the Ontario government to institute legislation for farmworkers containing the key elements of the Wagner Act Model – the legislative scheme in effect for most private sector workers, including agricultural workers, across the country. The key elements specified by Chief Justice Winkler were bargaining in good faith, majoritarian exclusivity, and a dispute resolution mechanism for settling bargaining impasses and contract grievances. The court indicated that it would be satisfied if the province substituted binding arbitration for the right to strike.
The Parties’ Positions
The Ontario government appealed the decision to the Supreme Court. The respondent was the UFCW. There were a lot of interveners including the federal government and several provincial governments.
Ontario argued that the Court of Appeal erred in holding that the legislature is obliged to provide farmworkers with “a particular labour relations model” thus “transforming a legislative labour policy choice into a constitutional imperative.” Instead, the SCC should allow the AEPA to stand because “nothing in the AEPA impairs collective bargaining between employee associations (which can include trade unions) and farm employers.” Nor has the UFCW established a positive rights claim because it provides evidence of only two cases in which agricultural employees tried unsuccessfully to organize.
The UFCW on the other hand argued that the AEPA, instead of being benignly permissive, “orchestrates, encourages and sustains” violations of Charter protected rights. The SCC should fully affirm Chief Justice Winkler’s decision because “the only group of Ontario farm workers that has ever successfully unionized and engaged an employer in collective bargaining did so under [Wagner Act Model] bargaining legislation that was in place for 17 months in 1994-1995.” The attributes of the Wagner Act Model identified by Chief Justice Winkler are the minimum needed in the Canadian context, counsel for the UFCW argued, to make freedom of association accessible for farmworkers.
The International Standards
As it has developed under international law, freedom of association at work has taken on a very specific character. There is near universal recognition that in the context of work freedom of association means the right to organize and bargain collectively. Moreover, a rich body of jurisprudence has evolved with regard to the right to organize and bargain and that body of international law is nearly universally recognized as establishing the global standard. It requires most basically that states “promote” collective bargaining. Tolerating it or refraining from interfering with it is not sufficient to fulfil that human rights obligation. Moreover, international standards are clear that all workers have a right to organize without being interfered with, a right to bargain collectively and a right to strike.
Why Ontario’s Position Is Inconsistent with International Labour Standards
If the SCC applies its self-chosen standard – that Canadians should be able to rely on their international human rights at a minimum – it will reject Ontario’s argument and require that the province take positive steps to ensure that agricultural workers are able to exercise their rights. Not a single collective bargaining relationship has come into existence under the AEPA and the history of agricultural workers’ attempts to organize indicates that there will be no collective bargaining in Ontario agriculture unless the state acts positively.
In some countries the state has induced employers to recognize and bargain with workers’ organizations without passing legislation compelling that end. Presumably Ontario could do the same thing. But Canada’s current reality is that employers recognize no duty, legal or moral, to recognize and bargain with worker organizations unless compelled by the state to do so. Were the Supreme Court to generously interpret both the letter and spirit of international collective bargaining law, it would require Ontario to put in place a policy that would lead to the appearance and effective practice of collective bargaining as the predominant means of establishing terms and conditions of employment.
Why the Court of Appeal’s Response is Inconsistent with International Labour Standards
To be consistent with international law, the SCC must also reject the Winkler solution. It offends international standards by insisting that the only way for farmworkers to acquire bargaining status is through a process of majoritarian exclusively. The international standards permit the application of the principle of majoritarianism as a method for confirming an exclusive agent. But workers who prefer to organize in formats other than exclusive agency retain their right to do that. In short, if workers want to set up “minority unions” or “non-statutory” unions and through them bargain collectively they have a international human right to do that.
Absent legislation, the human rights obligation of the employer is to “voluntarily” recognize and bargain with all legitimate worker organizations at least on behalf of their own members. Where there is no exclusive agent the employer should attempt to negotiate a collective agreement applicable to all relevant employees with the “most representative” union or with a coalition of unions.
The international standards are quite clear in specifying that laws requiring workers to demonstrate majority support in a relevant unit in order to acquire bargaining rights while denying other options do not promote collective bargaining and thus do not meet the basic human rights obligation of governments. Chief Justice Winkler’s statement that non-statutory unionism must be eradicated is particularly offensive to human rights sensibilities.
With that said, it should be noted that majority decision to certify an exclusive agent does, in fact, legalize the exclusion of minority unions in that particular context. The international oversight committees have found that to be a permissible exception from the general norm. But to require the certification of exclusive agents as the sole means of establishing collective bargaining across industries or across the entire economy, is a gross violation of worker rights. Indeed, it seems to me that the failure of Canadian governments to provide support and protection to non-statutory unionism effectively “orchestrates, encourages and sustains” the denial of collective bargaining to the majority of Canadian workers.
The Winkler solution also fails to rise to international standards in suggesting that binding arbitration is an acceptable substitute for the right to strike of agricultural workers. International standards permit the substitution of arbitration for the right to strike of narrowly defined essential workers – but agricultural workers are not included in that category.
The SCC may also reject the Winkler solution because, as argued by the appellant, it offends domestic standards that the court has established for itself. In earlier decisions the court clearly said that workers are not entitled to any specific legal regime. They are entitled to general, generic rights – a “procedural right to collective bargaining” - that might be promoted and protected with a broad range of legislative options or might, with appropriate government encouragement, be effectively instituted without the need for concrete legislation. As pointed out by the appellant, the Winkler solution looks an awful lot like the constitutionalization of a peculiar (and none too common internationally) legislative approach to the regulation of labour relations.
The Best Solution
From an international human rights perspective, the SCC’s best Fraser solution would be for the court to strike down the AEPA and to state that the Charter protects the right of farmworkers to organize, to bargain collectively in any format with which both they and their employers are comfortable and to strike without putting their jobs in jeopardy or being punished for doing so and that the onus is on the Ontario government to formulate a policy that will effectively protect and promote those rights.
Presented with such an order, Ontario may very well put agricultural workers under the LRA and the courts may acknowledge that action as an adequate response. That would be too bad. Experience across Canada indicates that only a small minority of agricultural workers have been able to organize and bargain collectively under Wagner Act Model legislation. Acceptance of the Wagner Act Model as the constitutionally permissible default (for which some writers have argued) will continue to frustrate the international human rights vision of collective bargaining as the predominant means of establishing terms and conditions of employment.
Finally, I should say that I do not intend these comments to be a prediction. I do not know what the SCC will do. Nor am I saying that the court must apply international jurisprudence (as one commentator has misrepresented me as asserting in another context). The court has voluntarily established a standard for itself. What I have done here is to express my opinion of what it must do if it is to remain true to that standard.