Once again, the International Labour Organization (ILO) has concluded that a Canadian government has passed laws that violate international law. Here is a Press Release from the UFCW, the union that has been advocating on behalf of agricultural workers.
This time it is the Agricultural Employees Protection Act that falls short of Canada’s legal obligation to protect freedom of association by failing to grant agricultural workers a meaingful right to collective bargaining and to strike. Expect the Liberal government to completely ignore this slap on the wrist. For reasons that aren’t clear to a lot of people, including me, the Liberals and the Conservatives still insist that employees of giant agricultural multinationals should have no right to collective bargaining, even though they have these rights in other provinces.
Although the AEPA falls short of the ILO’s standard of freedom of association, the Canadian Supreme Court ruled last year that it does not violate Section 2(d) [freedom of association] of the Canadian Charter of Rights and Freedoms (see Ontario v. Fraser). The ILO rules that the SCC’s approach in Fraser falls short of ILO standards. That’s interesting because the SCC keeps saying that Section 2(d) should be interpreted consistent with the ILO’s interpretation of ‘freedom of association’. Clearly, the SCC still has some learning to do on the scope of the ILO’s version.
Here is the ILO’s Committee on Freedom of Association Report on the AEPA (it begins at page 100). Its key findings are summarized here:
398. The Committee wishes to highlight that, while finding that the AEPA does not infringe freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms, the Supreme Court has also indicated that “the AEPA does not expressly refer to a requirement that the employer consider employee representations in good faith; however, by implication, it includes such a requirement”, and that “any ambiguity in s.5 should be resolved by interpreting it as imposing a duty on agricultural employers to consider employee representations in good faith, as a statute should be interpreted in a way that gives meaning and purpose to it provisions and Parliament and legislatures are presumed to intend to comply with the Charter”. In this regard, the Committee welcomes the finding of the Supreme Court that agricultural employers have the duty to consider employee representations in good faith, but it is of the opinion that this duty, whether implied or explicit, is insufficient to ensure the collective bargaining rights of agricultural workers under the principles of freedom of association. In this respect, the Committee recalls that collective bargaining implies an ongoing engagement in a give-and-take process, recognizing the voluntary nature of collective bargaining and the autonomy of the parties. In the Committee?s view, the duty to consider employee representations in good faith, which merely obliges employers to give a reasonable opportunity for representations and listen or read them – even if done in good faith, does not guarantee such a process. The Committee also wishes to recall the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations, and recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., paras 934–935]. In this regard, and with reference to its previous conclusions [see 358th Report, paras 357–360], the Committee emphasizes once again that “one of the main objects of the guarantee of freedom of association is to enable employers and workers to form organizations independent of the public authorities and capable of determining wages and other conditions of work by means of freely concluded collective agreements” [see Digest, op. cit., para. 882]. The Committee therefore concludes that the AEPA would need to be amended to ensure respect of these principles.
The Committee’s recommendation
401. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
The Committee requests the Government to take the necessary steps so that the Provincial Government of Ontario review the AEPA in full consultation with the social partners concerned with a view to providing the measures or machinery appropriate for full and meaningful collective negotiations in the agricultural sector, including by guaranteeing that agricultural workers may take industrial action without sanction; to this end, and while emphasizing that there are many different collective bargaining systems around the world which are compatible with freedom of association principles, the Committee invites the parties concerned to identify the unique characteristics and circumstances of this particular sector that have a bearing on collective bargaining, and to review the measures taken in other provinces when considering the appropriate measures necessary to promote collective bargaining in the agricultural sector in Ontario. The Committee requests to be kept informed of the views of the social partners and of the progress made in this respect.
Do you think that the Liberal Government in Ontario should do what the ILO is asking, and amend the laws to grant agricultural workers the right to collective bargaining and to strike?
