The Agricultural Employees Protection Act is (still) not working. Why?

Written by Roy Adams, Professor Emeritus, McMaster University

Issued in two parts by the Agriculture, Food and Rural Affairs Appeal Tribunal (AFRAAT), the MedReleaf case concerns issues under Ontario’s Agricultural Employees Protection Act (AEPA). Part one, released in 2018, rejected allegations of unfair labour practices by the employer. In Part two, released on June 17, 2020 and discussed here by Allison Braley-Rattai on July 2, 2020, AFRAAT declined to find the Act unconstitutional. 

After five years of legal maneuvering in the shadow of Supreme Court decisions granting legal protection to the rights to organize, bargain and strike, MedReleaf workers still have no collective agreement. According to AFRAAT’s Phase two decision, that state of affairs is due, “not to a failure of the AEPA…” It is due instead to “intransigence” by the Union of Food and Commercial Workers (union). A careful reading of both Phase one and Phase two decisions suggests a more complicated and nuanced conclusion.

In Phase one of this case AFRAAT ruled against unfair employer interference despite MedReleaf’s public opposition to becoming unionized (which the Tribunal condoned as unremarkable), its refusal to accept the union’s representative status despite clear evidence that initially at least 40% of MedReleaf’s employees wanted the union to represent them, the severance of several union supporters subsequent to the union seeking representation rights and the employer’s unwillingness to negotiate in good faith over proposals put forth by the union for the establishment of key elements of their bargaining relationship. 

The proposed bargaining framework contained elements that the Wagner Model requires such as the conditions under which  strike/lockout would be appropriate, the use of arbitration to settle contract disputes and dismissal for just cause. In its decision, the Tribunal decided that  “these traditional labour issues are inconsistent with the act.” 

That rationale is not convincing. Essentially every union-management relationship must have a means to regulate these issues. Since the AEPA neither provides direction on them nor forbids their inclusion in a negotiated agreement it was perfectly appropriate for the UFCW to put them forth.  

On the other hand, MedReleaf’s refusal to accept the UFCW’s demand to be recognized as “exclusive bargaining agent” was warranted. The Act clearly says that any group of employees may form or join an association or union of their choice. Exclusive representation would render that option impossible. 

Still, the unavailability of exclusive representaion put the union in a difficult position. MedReleaf wanted the UFCW to name those it represented. The union, not unreasonably, feared that revealing the names of its supporters would endanger their employment security. In a general statement, the Tribunal declared that “This employee information is to remain confidential and not to be used for reprisal of any form.” Unfortunately, extensive research in Canada and the U.S. indicates that employers commonly find ways to sanction union supporters despite prohibitions against the practice. For its part, the union presented evidence that it represented a substantial minority of MedReleaf’s employees to the Ontario Labour Relations Board in a failed certification application. MedReleaf would not accept that evidence. After considerable wrangling over legitimate membership evidence, the company finally agreed to a meeting which quickly produced an impasse. 

Reading between the lines of the decision, both employer and Tribunal seem to assume that the union may negotiate only for its own members and that was certainly a stumbling block. Contemporary firms of any size typically have in place compensation schemes and other policies that apply to all employees in defined positions. Under such circumstances, for an employee organization to accomplish anything it must negotiate the parameters of that structure. The solution under international law is for employers to recognize the right of minority unions to negotiate contracts for all relevant employees provided they are not challenged by another legitimate union. If so, either a coalition of those unions or the “most representative” of them should have the authority to negotiate the contract. In the MedReleaf case, the union did not ask for this reasonable concession, nor did the employer put it in play.  

The union’s traditional recourse at impasse is to strike. In this case the union didn’t do that. Its stated reason was that to engage in a walkout, absent a right to reinstatement, would be tantamount to severing the employment relationship. Maybe, but maybe not. 

Had the union struck and dismissals occurred, the UFCW might have requested a reinstatement order from the Tribunal. Might the Tribunal have agreed? 

In a very convoluted paragraph in its Phase 2 decision (107) the Tribunal seems to suggest that in appropriate circumstances it might have the power to “order employee reinstatement and compensation” should they be subject to employer “job action” for “exercising their right to withdraw services.” On the other hand, in para 97 it states clearly that it finds “no support in the authority of Fraser, Mounted Police or SFL” for the proposition that a statute must contain “protections for employees exercising their right to strike.”

This logjam need not have happened. In the absence of guidance in the AEPA itself, the employer had the option of adhering to the spirit of Canada’s international freedom of association obligations and to the spirit and letter of the Supreme Court’s 21^stcentury Freedom of Association jurisprudence. By doing so MedReleaf legitimately could have refused exclusive representation. On the other hand, it should have negotiated a strike procedure with the union including a reinstatement right. It should have agreed to discipline only for just cause, a norm self-evidently appropriate in a just and democratic society. It should have agreed to arbitration or another mutually acceptable device to settle disputes during periods when strikes were forbidden. With no other union in sight, it should also have negotiated, in good faith, compensation for all of its relevant  employees. 

Would the union have accepted such a deal? I don’t know, but it would have achieved most of what it sought. Would such a deal have met constitutional muster? Being consistent with international standards on which the Supreme Court has said workers have a right to rely, its answer would most likely would have been a resounding “yes.” 

Wagner Model thinking has inculcated the notion that all aspects of labour relations must be legalized. But in many nations the government insists that labour and management themselves come up with mutually acceptable approaches to critical issues. It is within the power Canadian governments vigourously to promote constitutionally-compliant resolutions to issues raised by this case such as the one suggested above. 

By its membership in the ILO and other international human rights initiatives, Canada has promised effectively to promote collective bargaining. All Canadian workers are entitled to have in place policies that deliver on that promise. Instead, the practice and procedure of collective bargaining has been declining for several decades now. Unless the obstacles identified here are overcome, it is likely to continue to do so.  The prime culprit in this tragedy is not the SCC as Braley-Rattai suggests, but rather provincial governments and their agencies who continue to tolerate obstructionist employer behavior. By their dogged loyalty to a failed Wagner-Act Model, trade unions are also complicit in the continued subjection of the majority of Canadian workers to subordination and authoritarianism. 

Roy Adams, “The Agricultural Employees Protection Act is (still) not working. Why?” Canadian Law of Work Forum (July 3 2020): https://lawofwork.ca/?p=12826