Ok, I’m just kidding. But here is my Labour Law exam question for the week. Could the Ontario government do this? It is a question I was discussing with some students recently, and is kinda of related to the subject matter of the Western Labour Law Conference I posted about recently: The Future of the Wagner Act
Refresher: The Agricultural Employees Protection Act creates a model of labour relations very different than the Labour Relations Act.
The AEPA protects the right of agricultural workers to form associations and engage in “collective bargaining”, while the LRA is the general model dating from the 1940s that allows most Ontario workers to form or join “trade unions”, engage in collective bargaining, strike, et cetera. The LRA model provides many more rights to workers than the AEPA, but all of those rights are linked to the presence of a “trade union”, and the rights to collective bargaining and to strike depend on a majority of employees of an employer supporting a “trade union”. In other words, under the LRA, you have no right to collective bargaining and to strike unless a majority of your coworkers also want to exercise those rights, and a trade union supported by a majority of employees becomes the exclusive representative of all of the employees (even those that did not want to be represented by a union).
Under the AEPA, there is no right to strike. Not ever. An agricultural worker can be fired for striking. Nor is there a right to have differences sent to an arbitrator for a neutral decision. Instead, the only rights employees have are to form employee associations (or join trade unions) and, through that association or union, make “collective representations” to their employer, which must then listen in good faith to those representations, and then is free to completely ignore them. Unlike under the LRA, there is no requirement for a majority of employees to support the association or union–as little as two workers out of 100 can form an association and make collective representations to their employer. “Minority” unions or associations are fine. But no matter how much employee support the association has, at the end of the day, the employer is only required to listen to the employees’ concerns “in good faith”. The employer need not “bargain” with the association, and there is no method for the employees to strike or access arbitration to try and force the employer to agree to their requests.
The Supreme Court of Canada recently ruled that the AEPA conforms the Charter of Rights and Freedoms in Ontario v. Fraser.
So the question for the labour law exam is whether Canadian governments could now use the AEPA as the prototype for the future of collective bargaining law?
If the Feds are tired of labour disputes, and feel that their voters would support them on this, can they just repeal the collective bargaining provisions in the Canada Labour Code and replace them with a new labour relations statute that grants all workers the limited rights that are available to agricultural workers under the AEPA?
If not, what stops them from doing this?
If so, should they do this? Is there some non-legal reason why this would be a bad move for a government that does not like collective bargaining and strikes?