The UN agency responsible for formulating international labour standards, including labour rights, agrees with a Canadian union that Ontario’s farm worker legislation should be amended.
The International Labour Organization (ILO) concluded on March 28 that Ontario’s Agricultural Employees Protection Act (AEPA), "is insufficient to ensure the collective bargaining rights of agricultural workers under the principles of freedom of association."
The ILO ruling is the result of a 2009 complaint filed by the United Food and Commercial Workers (UFCW) union of Canada that the AEPA violated human and labour rights of Ontario agriculture workers under ILO Convention 87 – Freedom of association and protection of the right to organise (1948); and ILO Convention 98 – The right to organise and collective bargaining (1949).
"The ILO's conclusion is consistent with our position that the AEPA provides no teeth for Ontario farm workers to exercise their fundamental workplace right to meaningful representation," says UFCW Canada president Wayne Hanley. "Unless the AEPA is amended, agriculture workers in Ontario will continue to be some of the most vulnerable and exploited workers in the province, and excluded from the rights and protections that other workers in the province have the freedom to exercise."
Under the AEPA — brought in by the Mike Harris/Ernie Eves government in 2002 — agricultural employees can join or form associations but are prohibited from joining unions. They can make representations to their employer, but the employer is not obliged to act.
In 2008, in the wake of the UFCW’s challenge based on the Canadian Charter of Rights and Freedoms, the Ontario Court of Appeal ruled the AEPA violated the freedom of association rights of Ontario farm workers under Section 2(d) of the Charter.
In April 2011, however, the Supreme Court of Canada reversed the appeal ruling in the Fraser decision. The AEPA provided freedom of association — given the assumption the employer would act "in good faith," the court said.
But according to the ILO’s most recent decision, “good faith” might not cut it:
“Collective bargaining implies an ongoing engagement in a give-and-take process, recognizing the voluntary nature of collective bargaining and the autonomy of the parties. In the Committee's view, the duty to consider employee representations in good faith, which merely obliges employers to give a reasonable opportunity for representations and listen or read them — even if done in good faith, does not guarantee such a process,” the ruling reads. “The Committee therefore concludes that the AEPA would need to be amended to ensure respect of these principles.”
Only the federal government has the authority to ratify ILO conventions into Canadian law, but the implementation of many conventions falls under federal, provincial and territorial jurisdictions, given the division of powers under the Canadian Constitution. Canada says its long-standing practice with respect to ILO conventions dealing with matters under federal, provincial and territorial jurisdictions has been to ratify ILO conventions only if all jurisdictions consent with ratification and agree to implement the conventions without reservation in their respective jurisdictions.
Unless Ontario farm worker legislation is amended, human rights basic human rights will continue to be violated, the UFCW says.
"As for good faith, the record on the AEPA speaks for itself, as every day farm workers are fired, threatened, or shipped out if they raise a concern about their safety or treatment," says Hanley. "We agree with the ILO that it is time for the Ontario government to step up to the plate and do the right thing (…) We invite the government to sit down and consult to amend the legislation and right a situation that currently is wrong."
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