Any provincial government planning to follow Ontario’s lead in banning
farm workers from forming or joining unions got a wake-up call just
before Christmas.
The Supreme Court of Canada threw out the Ontario ban. It also
challenged the “farms are different” argument often used to justify
excluding agricultural workers from general workers’ rights.
“The reliance on the family farm justification ignores an increasing
trend in Canada towards corporate farming and complex agribusiness and
does not justify the unqualified and total exclusion of all
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agricultural workers from Ontario’s labour relations regime,” ruled the
court, which voted eight to one to overturn a section of Ontario labour
law.
The Ontario law was a piece of 1995 legislation that removed the right
of farm workers to unionize. The 1995 law, enacted by the Progressive
Conservative government, reversed a 1994 law, enacted by the New
Democratic Party government, which had first given agricultural workers
the right to unionize. Previously farm workers had never had the right
to form unions.
The Supreme Court declared that the 1995 Ontario law went too far in
completely banning unionization, but said some more limited
restrictions might be acceptable.
“The evidence establishes that many farms in Ontario are family-owned
and operated, and that the protection of the family farm is a pressing
enough objective to warrant (some Charter of Rights and Freedoms
provisions),” the court ruled.
The court also said there are some unique aspects to farming.
“Agriculture occupies a volatile and highly competitive part of the
private sector economy, experiences disproportionately thin profit
margins and, due to its seasonal character, is particularly vulnerable
to strikes and lockouts.
“It is reasonable to speculate that unionization will threaten the
flexibility and co-operation that is characteristic of the family
farm,” the court said.
“Yet this concern is only as great as the extent of the family farm
structure in Ontario and does not necessarily apply to the right to
form an agricultural association. The notion that employees should
sacrifice their freedom to associate in order to maintain a flexible
employment relationship should be carefully circumscribed, as it could,
if left unchecked, justify restrictions on unionization in many sectors
of the economy.”
The court found that giving workers the right to unionize would not
threaten the family farm structure. It has given the Ontario government
18 months to change the law.
While the court did not clearly spell out what restrictions could be
placed on farm workers’ rights, it gave a clearer idea of what basic
rights they must be given.
“At a minimum, these principles require that the statutory freedom to
organize … be extended to agricultural workers, along with
protections judged essential to its meaningful exercise, such as
freedom to assemble, freedom from interference, coercion and
discrimination, and freedom to make representations and to participate
in the lawful activities of the association.”
