Interim Report - Report No 358, November 2010

Case No 2704 (Canada) - Complaint date: 23-MAR-09 - Closed

Allegation: The complainant organization alleges that the Agricultural Employees Protection Act, 2002 (AEPA), of the Province of Ontario denies collective bargaining rights to all agricultural employees

1. 335. The complaint is contained in a communication dated 23 March 2009 from the United Food and Commercial Workers Union – Canada (UFCW Canada). In communications dated respectively 30 March and 6 April 2009, the Canadian Labour Congress and UNI Global Union associated themselves with the complaint.
2. 336. The Government sent its observations in communications dated 9 October 2009 and 8 October 2010.
3. 337. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 338. In a communication dated 23 March 2009, the UFCW Canada alleged that the Ontario Agricultural Employees Protection Act, 2002 (AEPA), violates ILO principles concerning freedom of association and collective bargaining as embodied in the ILO Constitution, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the ILO Declaration on Fundamental Principles and Rights at Work of 1998. The complainant alleged that, under the AEPA, agricultural employees could join and form an association but are denied the right to collective bargaining. Moreover, agricultural employees cannot unionize under the Ontario Labour Relations Act (OLRA) since the Act does not apply to employees within the meaning of the AEPA.
2. 339. The complainant stated that the right to unionize and to bargain collectively are guaranteed to workers since the Collective Bargaining Act of 1943. These rights remain guaranteed for all Ontario workers under the OLRA adopted in 1995. Workers with specific labour relations statutes have more or less the same statutory protection concerning their collective bargaining rights. However the complainant asserted that agricultural workers have been, and continue to be, denied both the right to unionize and to bargain collectively.
3. 340. The UFCW Canada recalled that agricultural workers were granted rights in line with those of agricultural workers throughout Canada when the Ontario Government enacted the Agricultural Labour Relations Act (ALRA) SO in 1994. The ALRA gave agricultural workers the right to organize and to bargain collectively under a comprehensive statute administered by the Ontario Labour Relations Board. This Act was adopted after two years of consultation conducted by a task force on agricultural labour relations with the Government, employers’ groups and workers’ representatives. These consultations led to a consensus that unionization and collective bargaining were possible in the agricultural sector. The ALRA came into force in June 1994 but was repealed in November 1995 by a newly elected Provincial Government which at the same time enacted the OLRA denying to agricultural workers the right to unionize and to bargain collectively.
4. 341. The repeal of the ALRA and farm workers’ exclusion from the OLRA were the subject of a decision by the Supreme Court of Canada in December 2001. The Court ruled that, under the Canadian Charter of Rights and Freedoms, the Government had a duty to enact legislation that provides the protection which is necessary to ensure that farm workers can meaningfully exercise their freedom of association. The Court gave 18 months to the Government to remedy the legislation. As a result, the Government of Ontario enacted the AEPA, which came into force in June 2003. According to the complainant, in introducing the new Act, the Minister of Agriculture and Food confirmed that the proposed legislation did not extend collective bargaining rights to agricultural workers.
5. 342. The complainant specified that, under the AEPA, agricultural employees had the right to join or to form an employees’ association, the right to participate in lawful activities of an employees’ association as well as the right to make representations to their employers, through an employees’ association, respecting the terms and conditions of their employment. However the UFCW Canada denounced the fact that, while the AEPA provides that the employer shall give an employees’ association “a reasonable opportunity to make representations”, the employer only has the obligation to listen to the representation if made orally or read to them if made in writing. The complainant regretted that the AEPA does not impose any obligation on an employer to bargain at all.
6. 343. The UFCW Canada indicated that in 2004 it launched a court challenge against the AEPA on behalf of 300 agricultural workers of a mushroom factory in the town of Kingsville, Ontario, when the employer refused to engage in a collective bargaining process. The complainant also referred to the ruling of the Supreme Court of Canada in the decision delivered on 8 June 2007 concerning British Columbia’s Health and Social Services Delivery Improvement Act. The complainant underlined that on that occasion the Supreme Court made a clear assertion that the Government of Canada has not only a moral but a legal obligation to live up to its international commitments as enshrined in ILO Conventions and Declarations.
7. 344. Finally, while it referred to principles established by the Committee of Freedom of Association concerning the promotion of collective bargaining as an essential element of freedom of association, the complainant recalled the conclusion reached in a previous case examined by the Committee against the Government of Ontario and concerning the exclusion of a number of workers from collective bargaining and involving the Government of Ontario (see Case No. 1900, Report No. 308, paragraphs 139–194). The Committee ruled that such exclusion violated ILO standards.

B. The Government’s reply

1. 345. In its communication of 9 October 2009, the Government transmits a communication from the Provincial Government of Ontario which first indicated that a case is before the Supreme Court of Canada on behalf of the UFCW Canada to have the AEPA declared unconstitutional on the grounds that it infringes freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. The Provincial Government explained that the appeal was scheduled to be heard on 17 December 2009. The Provincial Government considered that, in light of the similarities of the issues involved in both the domestic constitutional challenge and the complaint brought before the ILO, as well as the evolving nature of freedom of association in Canadian constitutional law, the ruling of the Supreme Court of Canada may affect the nature of the Government’s response to the complaint and possibly its approach to the issue in general. Therefore, the Provincial Government requested the Committee to defer its examination of the case until after the Supreme Court of Canada has rendered its decision.
2. 346. The Provincial Government indicated that, in light of its request to defer consideration of the complaint, it did not intend to provide a comprehensive response to the complaint, but would outline briefly the rationale for the AEPA and point out some inaccuracies contained in the complaint.
3. 347. With regard to the allegation that the AEPA contravenes Conventions Nos 87 and 98, the Provincial Government reminded that Canada has not ratified Convention No. 98. As concerns the purpose of the AEPA, the Provincial Government indicated that the Act provides an alternative labour policy that suits the circumstances of farm labour and the sector’s unique characteristics. The AEPA contains provisions very similar, if not identical, to the OLRA provisions that establish the right to organize and that prohibit unfair practices from the employer that would interfere. In addition, the Act compels employers to consider the representations of employees’ associations and allows for an application to be made for an order allowing access to farm property where employees reside for the purpose of attempting to persuade them to join an employees’ association.
4. 348. Contrary to the allegations of the complainant, the Provincial Government asserts that nothing in the AEPA impairs any collective bargaining between employees’ associations, including trade unions, and farm employers. Parties in the agricultural sector in the Province of Ontario are free to collectively negotiate terms and conditions of employment without interference. Furthermore, the Provincial Government specified that employees are free under the AEPA to choose whatever form of association best represents their interests and are free to cooperate with other associations or unions since the AEPA does not give one association the exclusive right to represent all agricultural employees. The Provincial Government underlined that the AEPA is consistent with the principle of the voluntary nature of collective bargaining as an essential aspect of freedom of association established by the Committee on numerous occasions.
5. 349. The Provincial Government concluded in expressing the hope that, should the Committee decide to proceed with the examination of the complaint, the clarification made will assist the Committee in providing interim conclusions pending a further submission once the domestic appeal before the Supreme Court of Canada is resolved.
6. 350. In a communication of 8 October 2010, the Government of Ontario confirmed that the Supreme Court of Canada heard the appeal on 17 December 2009; however it was unknown when the Court would release its decision. The Provincial Government reiterated that it reserved the right to provide a comprehensive response following the decision of the Supreme Court.

C. The Committee’s conclusions

1. 351. The Committee notes that this case concerns the alleged exclusion of agricultural workers from access to collective bargaining through the adoption of the AEPA. The Committee observes from the complainant’s communication that it had also launched a court challenge against the AEPA in 2004 on behalf of agricultural workers of a mushroom factory when the employer refused to engage in a collective bargaining process. The key issue of the domestic court challenge is whether the AEPA infringes freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms.
2. 352. The Committee notes the Provincial Government’s statement that presently the case is before the Supreme Court of Canada which heard the appeal on 17 December 2009. However, it was unknown when the Supreme Court would render its decision. Therefore, given the similarity of the issues involved in the two proceedings and the fact that the result of the appeal heard by the Supreme Court may affect the nature of the Government of Ontario’s approach to the issue in general, the Provincial Government requested that the Committee defer its consideration of the complaint until after the Supreme Court of Canada has rendered its decision.
3. 353. As concerns the Provincial Government’s request that the full examination of this case be postponed pending the outcome of the constitutional challenge raised by the UFCW Canada and which, at that time, was about to be heard by the Supreme Court of Canada, the Committee wishes to recall that, although the use of internal legal procedures is undoubtedly a factor to be taken into consideration, it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, Annex I, para. 30].
4. 354. However, the Committee had been sensitive to the Provincial Government’s arguments and decided to postpone the examination of the case until its November 2010 session with the expectation that in the meantime the Supreme Court of Canada would render its decision on the constitutionality of the AEPA. The Committee recalls that the initial Court challenge was brought in 2004 and has yet to be resolved. It also considers that its examination of the present case on the basis of long-established principles can be of assistance in the national consideration of the issues in question. It is in this spirit, and in accordance with its earlier decision not to postpone the case beyond its November 2010 meeting that the Committee will proceed with its examination of the substantive points raised in the case.
5. 355. The Committee notes the complainant’s allegations that the rights to unionize and to bargain collectively have been guaranteed to workers in the Province of Ontario since the Collective Bargaining Act of 1943. These rights remain guaranteed for all Ontario workers under the Labour Relations Act enacted in 1995. While workers with specific labour relations statutes have more or less the same statutory protection concerning their collective bargaining rights, agricultural workers are alleged to have been and continue to be denied both the right to unionize and to bargain collectively. In particular, the complainant alleged that the AEPA violates ILO principles concerning freedom of association and collective bargaining as embodied in the ILO Constitution and relevant Conventions. While taking due note of the Provincial Government’s reminder that Canada has not ratified Convention No. 98, the Committee recalls that the purpose of the procedure on freedom of association is to promote respect for trade union rights in law and practice, therefore complaints lodged with the Committee can be submitted whether or not the country concerned has ratified the freedom of association Conventions [see Digest, op. cit., para. 5].
6. 356. The Committee takes note of the complainant’s allegations that under the AEPA agricultural employees have the right to join or to form an employees’ association, the right to participate in lawful activities of an employees’ association as well as the right to make representations to their employers, through employees’ associations, respecting the terms and conditions of their employment. However, the Committee observes that, according to the complainant, the AEPA only provides that the employer shall give a reasonable opportunity for representations and listen to or read them, without any obligation imposed by the AEPA to bargain at all. The Committee notes that the Provincial Government for its part considers that the AEPA provides an alternative labour policy that suits the circumstances of farm labour and the sector’s unique characteristics. The Committee notes the Provincial Government’s statement that the AEPA contains provisions very similar, if not identical, to the OLRA that establishes the right to organize and prohibit unfair practices from the employer that would interfere. Finally, the Committee notes that in the Provincial Government’s view nothing in the AEPA impairs any collective bargaining between employees’ associations, including trade unions, and farm employers. Parties in the agricultural sector in the Province of Ontario are free to collectively negotiate terms and conditions of employment without interference. The Committee notes that for the Provincial Government’s part the AEPA is consistent with the principle of the voluntary nature of collective bargaining as an essential aspect of freedom of association established by the Committee on numerous occasions.
7. 357. As concerns the allegations of exclusion of agricultural workers from collective bargaining established by virtue of the AEPA, the Committee notes the complainant’s contention that the employers concerned are not under any legal obligation to bargain with employees’ associations or to engage in any bargaining whatsoever regarding the terms and conditions of employment of agricultural workers. The Committee recalls that it had already examined a case concerning the denial of the right to collective bargaining to certain categories of workers in the Province of Ontario, including agricultural and horticultural workers (see Case No. 1900, 308th Report, paragraphs 139–194). In this regard, the Committee referred to the preliminary work for the adoption of Convention No. 87 which clearly indicated 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]. It consequently requested the Government to take the necessary measures to ensure that these workers enjoy the protection necessary, either through the OLRA or by means of occupationally specific regulations, to establish and join organizations of their own choosing, and to take the necessary measures to guarantee for them access to machinery and procedures which facilitate collective bargaining. Fully recognizing the importance it places on the voluntary nature of collective bargaining, the Committee recalls that the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association. [see Digest, op. cit., para. 925]. The Committee also recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. Finally, in many instances the Committee has pointed out the importance which it attaches to the right of representative organizations to negotiate, whether these organizations are registered or not [see Digest, op. cit., paras 880 and 884].
8. 358. The Committee, observing in particular that neither the Government nor the complainant have referred to any successfully negotiated agreement since the Act’s adoption in 2002, nor even to any good faith negotiations engaged in, continues to consider that the absence of any machinery for the promotion of collective bargaining of agricultural workers constitutes an impediment to one of the principal objectives of the guarantee of freedom of association – the forming of independent organizations explicitly capable of concluding collective agreements. It requests the Government to take the necessary measures to ensure that the Provincial Government puts in place appropriate machinery and procedures for the promotion of collective bargaining in the agricultural sector and requests it to keep it informed of the progress made in this respect. Appropriate machinery can be adapted to national circumstances provided the principles reflected above are fully respected.
9. 359. Furthermore, the Committee notes that an appeal was lodged by the UFCW Canada challenging the constitutionality of the AEPA before the Ontario Court of Appeal which gave rise to a ruling acknowledging the right for Ontario farm workers to a legislation that protects their ability to bargain collectively, and that ruling has been appealed by the Ontario Government to the Supreme Court of Canada. The Committee requests the Government to provide the decision of the Supreme Court of Canada concerning the constitutionality of the AEPA as soon as it is handed down and to indicate any implications this decision may have on the question of bargaining rights in the agricultural sector of Ontario.
10. 360. The Committee notes that the complainant made reference to the decision rendered on 8 June 2007 by the Supreme Court of Canada concerning British Columbia’s Health and Social Services Delivery Improvement Act, which the Committee has noted during its examination of Case No. 2173. At that time, the Committee duly noted the conclusions reached by the Supreme Court that “the protection of collective bargaining under section 2(d) of the Canadian Charter of Rights and Freedoms is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole” and that “recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirm the values of dignity, personal autonomy, equality and democracy that are inherent to the Charter” and expressed the hope that the settlement reached in one sector following the decision of the Supreme Court would serve as an inspiration for the settlement of grievances in other sectors. The Committee therefore hopes that the explicit linking of these fundamental rights by the Supreme Court will assist in the development of appropriate mechanisms for the guarantee of collective bargaining in the agricultural sector of Ontario.

The Committee's recommendations

1. 361. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee continues to consider that the absence of any machinery for the promotion of collective bargaining of agricultural workers constitutes an impediment to one of the principal objectives of the guarantee of freedom of association: the forming of independent organizations capable of concluding collective agreements. The Committee requests the Government to take the necessary measures to ensure that the Provincial Government puts in place appropriate machinery and procedures for the promotion of collective bargaining in the agricultural sector and requests it to keep it informed of the progress made in this respect. Appropriate machinery can be adapted to national circumstances provided the principles reflected in the conclusions are fully respected.
   • (b) The Committee requests the Government to provide the decision of the Supreme Court of Canada concerning the constitutionality of the AEPA as soon as it is handed down and to indicate any implications this decision may have on the question of bargaining rights in the agricultural sector of Ontario.