Charter – Freedom of Association –
Collective Bargaining – Agricultural Workers
In this case, the Supreme Court of Canada upheld the
constitutionality of Ontario's special labour relations
regime for agricultural workers. In doing so, the court affirmed
its decision in Health Services and Support –
Facilities Subsector Bargaining Assn v British Columbia, 2007
SCC 27 ("BC Health Services")
as to the role of freedom of association in collective
The Agricultural Employees Protection Act,
2002, SO 2002, c 16 (the "Act")
excludes farm workers from the regular provincial labour relations
regime, but grants them rights to form and join an
employees' association, to participate in its activities,
to assemble, to make representations to the employers, and to be
protected against interference in the exercise of those rights. The
Act requires farm employers to give such associations the
opportunity to make representations concerning employment
conditions. Employers must then listen to or read those
representations. The Agriculture, Food and Rural Affairs Appeal
Tribunal, rather than the Labour Relations Board, would hear
disputes about the application of the Act.
Justice Farley, writing at first instance and without the
benefit of the Supreme Court's BC Health Services
decision, upheld the Act. The Court of Appeal for Ontario allowed
the appeal, holding that freedom of association in this context
required: (1) a statutory duty to bargain in good faith; (2)
statutory recognition of majoritarian exclusivity; and (3) a
statutory mechanism for resolving disputes in the bargaining,
interpretation and administration of collective agreements.
Majoritarian exclusivity is the principle that only one
group of employees, chosen by the majority, represents all
employees. These became the issues before the Supreme Court.
Eight justices allowed the appeal, while Abella J. dissented.
Chief Justice McLachlin and LeBel J., who together wrote the BC
Health Services decision, wrote the majority opinion. They
affirmed that freedom of association requires a process of
engagement that permits employee associations to make
representations to employers, and that employers must consider and
discuss those representations with employees in good faith. The
Act, properly interpreted, provides such a process.
The majority also held that freedom of association is infringed
when it is substantively impossible for such a process of
engagement to occur. Freedom of association does not, therefore,
require a particular type of process, or indeed any conclusion to
that process. For this reason the Act was constitutional even
though it did not provide for majoritarian exclusivity, a statutory
dispute resolution mechanism, or a statutory duty to bargain in
good faith. Justice Abella agreed with the majority's
approach but would have held that the Act unjustifiably infringed
freedom of association and was unconstitutional.
The majority's judgment confirms the existence of the
fine line between constitutionally protected procedural rights of
collective bargaining and unprotected substantive rights. Employers
must discuss and consider employee representations in good faith
but need not reach agreement with employees.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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