It comes a no surprise that the International Labour Organization (ILO) has once again condemned the Ontario government for violating international human rights laws. There have been more successful complaints against Canada for violation of freedom of association before the ILO than against any other country in the 
world. Makes you so proud to be Canadian, doesn’t it, eh?
This time, the offending statute is the Agricultural Employees Protection Act, 2002. That is the statute at issue in the case Fraser v. Ontario, which was argued almost a year ago before the Supreme Court of Canada, and yet no decision has been issued.
Here is the decision of the ILO’s Committee on Freedom of Association.
You will recall that the AEPA grants agricultural workers a right to form and join a union, protections against employer threats and intimidation in response to the exercise of these rights, and right for these employees to approach their employer collectively and ask to bargain conditions of employment collectively. However, the employer can listen and then tell the workers to take a hike, and the workers have no right to engage in a lawful strike like most other private sector workers in Canada. The Ontario Court of Appeal ruled that the statute violates Section 2(d) of the Charter (freedom of association), because it fails to ensure the employees’ right to collective bargaining and to some form of dispute resolution, such as interest arbitration. That is the decision now before the Supreme Court.
The ILO decision is interesting this time round. The Committee notes that under ILO law, collective bargaining must be a “voluntary” process. The Ontario government argued that the AEPA allows for voluntary bargaining, since employees have a right to ask employers to voluntarily bargain with them as a collective. According to the Government, the fact that the employers can respond to this request by telling the employees to go chew on a cucumber is consistent with the “voluntary” nature of collective bargaining.
The ILO Committee responded by saying that the fact that no collective bargaining at all is taking place in the agricultural sector is continued evidence that in practice there is not real entitlement to bargain under this legislation.
The Committee continues to consider the absence of any machinery for the promotion of collective bargaining of agricultural workers constitutes an impediment to one of the principle objectives of the guarantee of freedom of association: the forming of independent organizations capable of concluding collective agreements. The Committee request the Government puts in place appropriate machinery and procedures for the promotion of collective bargaining in the agricultural sector.
This decision seems to confirm that the ILO believes that the Ontario government has an obligation to create a duty to bargain on the employer, rather than just a duty to listen to the employees. This reasoning is consistent with opinions expressed by the Supreme Court of Canada in the B.C. Health Services decision, where the Court ruled that “freedom of association” includes a duty to bargain in good faith.
Should we expect the Supreme Court of Canada to reach a similar decision–that Section 2(d) ensures that the machinery be put in place by Canadian governments to ensure that employees are able to actually capable of concluding collective agreements? If so, then perhaps the Ontario Court of Appeal decision in Fraser will be upheld.
