THE EMPLOYERS' EDGE
Agricultural Employers Should Rejoice Over Recent SCC Decision – For The Most Part
Our earlier blog on the landmark ruling of the Supreme Court of Canada in Ontario (Attorney General) v. Fraser referenced the Court’s rejection of the notion that the freedom of association as guaranteed by the Charter required that labour legislation provide the traditional or any particular model of collective bargaining. Rather, apart from commenting that the process envisioned must be “meaningful”, the decision on the nature of the collective bargaining process to be afforded to workers is something to be left to the legislatures.
The legislation in dispute in this case was the Ontario government’s Agricultural Employees Protection Act (“AEPA”). This legislation was being challenged by the United Food and Commercial Workers as not giving farmworkers the collective bargaining and labour relations protections afforded to employees covered under traditional labour relations legislation and, in particular, the Ontario Labour Relations Act.
The Supreme Court of Canada, however, held that the following elements of the AEPA met the constitutional requirements established by previous decisions of the Court: the right of employees to join and to have associations/groups make representations to employers on behalf of members; employers were required to listen, read and acknowledge having read such representations; and a tribunal was established for the resolution of disputes. Further, the Court implied that dialogue between the association/employee groups and employer representatives must be done in “good faith” in order to give meaning and purpose to the statute together with a tribunal that should pursue a meaningful and purposeful interpretation of the legislation.
The AEPA does not, however, contain a dispute resolution mechanism in the event of a bargaining impasse as reflected in traditional labour relations legislation so the employee representatives will be significantly restricted in terms of how far bargaining issues can be advanced. Accordingly, trade unions and associations representing employee groups in this sector will see this as something of a hollow process with no substantive protection or mechanism to advance the claims of its members – as it will not take much for an employer to say “no” in good faith. However, employers in the agricultural sector should not simply disregard the good faith process envisioned or refuse to recognize employee representatives as the Supreme Court of Canada has directed the tribunal responsible for the administration of the legislation that the collective bargaining process is intended to be meaningful (even if there is no legislated dispute resolution mechanism or protections in the event of impasse).
It should also be noted that because the Court chose not to adopt or require a traditional North American model of labour relations in considering the scope of freedom of association rights, the door has been left open for minority union representation of employees and therefore multiple bargaining representatives with whom an employer may be required to deal. For Canadian employers and trade unions or associations to whom the AEPA applies, this represents a departure and new challenge to workplace collective bargaining at a time when employee satisfaction and motivation to achieve productivity improvements in an international marketplace are increasingly important. Though for some, this may also be an opportunity.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.