November 20th, 2008
At a time when York University and the University of Windsor have experienced disruptions due to labour disputes, it seems unusually timely that the Ontario Court of Appeal would deliver a resounding re-articulation of the right to collective bargaining as found in s. 2(d) of the Charter. On its face, the decision in Fraser v Ontario, 2008 ONCA 760 [Fraser] extends the right to collectively bargain to Ontario’s traditionally shunned agricultural workers. A deeper reading, though, delivers a broad application of the Supreme Court of Canada’s (“SCC”) landmark decision in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia,  2 SCR 391 [BC Health Workers].
Ontario’s agricultural workers have until 2002 been largely exempted from all labour legislation meaning they had no protected right to organize, collectively bargain, or resolve labour disputes. In the words of the trial judge in Fraser, agricultural workers are “poorly paid, face difficult working conditions, have low levels of skills and education, low status and limited employment mobility.” Meanwhile, attempts at organizing unions were met with the worst of employer intimidation and union busting techniques, and any attempts at collective bargaining were invariably met with indignation on the part of farm employers.
In 2001, however, the SCC ruled in Dunmore v Ontario,  3 SCR 1016 that the right to freedom of association in s. 2(d) of the Charter includes a right to organize into labour associations and unions. It further ruled that in some circumstances, s. 2(d) places a positive obligation on governments to protect that right by enacting appropriate legislation. In 2002, the legislature satisfied this requirement to the least extent possible by enacting the Agricultural Employees Protection Act, 2002, SO 2002, c 16 [AEPA], which protected the right of agricultural workers to form “associations” and to make representations to their employers about working conditions. Notably, it did not provide for a right to collective bargaining, it did not require employers to listen to employee submissions in good faith, and it provided no mechanism to resolve disputes arising from any bargaining, should it occur. In the experience of the United Food and Commerical Workers Union (“UFCW”), who attempted to organize several groups of agricultural workers, such bargaining sessions rarely lasted more than 15 minutes.
The UFCW unsuccessfully challenged this new legislation, but in the intervening period prior to appeal, the SCC released its landmark decision in BC Health Workers. That decision significantly expanded the scope of s.2(d) to include the right to collective bargaining and placed an obligation on governments to negotiate in good faith with their public sector workers. In so doing, the SCC described the right to collectively bargain as “the most significant collective activity through which freedom of association is expressed in the labour context.” However, as noted in an earlier post by Professor Judy Fudge, the BC Health Workers decision left a number of questions unanswered. In particular, the case did not concern a claim for a positive right to legislatively protected collective bargaining so it left open the question of whether private-sector workers might be entitled to state-protected rights to bargaining under the Charter. It also left open the door to whether s. 2(d) would protect the right to strike.
The Fraser decision goes a long way to help answer some of those questions. The unanimous 3-judge panel headed up by Chief Justice Warren Winkler together with Eleanor Cronk and David Watt ruled that s. 2(d) places a positive obligation on the government of Ontario to enact legislative protections for the collective bargaining rights of agricultural workers. It struck down the ALRA as unconstitutional and gave the Ontario government 12 months to devise legislation that protects this new right. But the court went further. It also ruled that the s. 2(d) right to collective bargaining requires a mechanism for resolving disputes about the interpretation and application of collective agreements, and it requires a recognition of a single representative bargaining body, similar to the exclusivity enjoyed by a unions in other industries. The court stopped short of recognizing a right to strike, however, but noted twice that the appellants had not made this request. Instead, the Court of Appeal found that s. 2(d) includes a right to a “mechanism for resolving impasses in bargaining.” Noting that “the bargaining process is jeopardized if the parties have nothing to which they can resort in the face of fruitless bargaining,” Justice Winkler seems to indicate that under s. 2(d) unions have a right to some form of recourse should the bargaining process collapse, but leaves the enumeration of what that might be to the creativity of the legislature. Instead, his judgment states mysteriously that “there exists a broad range of collective bargaining dispute resolution mechanisms” and explains that it is up to the legislature to craft the specifics of an appropriate law.
It is virtually certain that the Attorney General will appeal the decision in Fraser, leaving many of the questions left open by BC Health Workers yet to be decided. Nonetheless, with a unanimous decision written by the Chief Justice of the Ontario Court of Appeal, and a recent history of pro-labour decisions from the SCC, we may see yet another major expansion of s. 2(d) at the country’s top court. On the other hand, an economy in recession might throw weight behind the agricultural industry’s claim that unions are bad for business. In the meantime, though, labour disruptions at major universities notwithstanding, it looks like unions and collective bargaining are here to stay.[filed: Fraser (2008) Labour and Employment]