On April 29, 2011, the Supreme Court of Canada weighed in again on the issue of collective bargaining rights. In Ontario (Attorney General) v. Fraser (“Fraser”), the court was asked to determine whether or not Ontario’s Agricultural Employee Protection Act (“AEPA“), met the province’s obligations to protect farm workers’ rights to bargain with their employers. Although this decision relates to a challenge to Ontario labour legislation, it is of interest because of the discussion of the constitutional nature of collective bargaining rights, first enunciated in an earlier Supreme Court of Canada decision from British Columbia – Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia (“Health Services“).
Background to Fraser
Agricultural workers in the province of Ontario have almost always been excluded from that province’s labour relations legislation, including the current Labour Relations Act (the “LRA“). In 2001, the Supreme Court of Canada held in Dunmore v. Ontario (Attorney General) (“Dunmore“), that the Ontario government had a positive duty to enact legislation that would give agricultural workers the freedom to organize. In response, the government enacted the AEPA in 2002.
The AEPA excluded farm workers from the LRA, but granted agricultural workers the right to form employee associations that could make representations to employers regarding the terms and conditions of their employment. It also required employers to allow such representations to be made and to read/listen to them. It did not, however, provide for a mechanism by which bargaining impasses could be resolved. Neither did it provide for a duty to bargain in good faith, a feature of most labour relations legislation in Canada.
Challenge to the AEPA
In Fraser, the union argued that the AEPA violated Section 2(d) of the Charter by failing to provide agricultural workers with meaningful collective bargaining rights similar to those enjoyed by other workers under the LRA. At trial, the Trial Division dismissed the union’s challenge on the basis that the AEPA complied with the Court’s decision in Dunmore. On appeal, the Ontario Court of Appeal agreed with the union that the AEPA was unconstitutional as it did not give agricultural workers the right to bargain collectively in a meaningful way. The court of appeal arrived at its decision on the basis of Health Services, in which the Supreme Court held for the first time that collective bargaining was protected by Section 2(d) of the Charter).
In overturning the Court of Appeal’s decision and holding that the AEPA did not violate Section 2(d) of the Charter, the majority of the Supreme Court engaged in a detailed analysis of the AEPA within the framework of Dunmore and Health Services. In its discussion, the majority noted the following principles with regard to the right to collective bargaining as guaranteed by the Charter:
- Health Services does not guarantee a particular model of collective bargaining or a particular outcome.
- Section 2(d) protects a right to collective bargaining in a derivative sense i.e., it protects the right to associate to achieve collective goals.
- There is no need for a uniform model of labour relations legislation as no particular type of bargaining is protected.
- Section 2(d) protects associational activity, not a particular process or result.
Applying the principles stated above, the Supreme Court noted that the essential question was whether the AEPA failed to protect the right to have meaningful association to achieve workplace goals. In answering “No”, the Supreme Court stated that the AEPA gave agricultural workers the right to associate to achieve collective goals by: providing for employee associations which could then make representations to the employers, and requiring employers to read/listen to the representations. The Supreme Court also noted that while the AEPA did not expressly state that employers had to consider the representations in good faith this good faith requirement was implicit in the legislation.
Impact of Fraser
Many scholars argue that Fraser is a reflection of the ambivalence of the Supreme Court towards viewing labour rights as human rights and that it sends the message that the right to collective bargaining as protected by the Charter is minimal in that it only protects a right to a general process of “good faith” bargaining.
Moving forward, it will be interesting to see how the Fraser decision will play out in the labour relations arena. Unions will not be satisfied with a minimalist “good faith” bargaining model that does not provide for the right to strike in the event of a bargaining impasse. In the meantime, the reality is that approximately 80,000 Ontario farm workers are probably not much better off than they were prior to Dunmore and the enactment of the AEPA.