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Canada’s highest court rules against farm workers

Kerry Preibisch

The Supreme Court upholds Ontario law denying agricultural workers collective bargaining rights.

Olivia Chow stands with UFCW demonstrators
Photo: Tania Liu
The United Food and Commercial Workers of Canada (UFCW) rallies on May 2, 2009 in Toronto.

On April 29, 2011 the Supreme Court of Canada delivered a devastating blow to Ontario’s farm workers when it sided with the provincial government to continue denying them the right to join unions and bargain collectively. The decision from Canada’s highest court constitutes a dead end, at least for now, to the decades-long legal battle to extend statutory labour rights protection and collective bargaining to farm workers, including the one-quarter to a third of this workforce composed of temporary migrant workers from Latin America and the Caribbean.

For 17 years, Ontario’s agricultural lobby has tenaciously protected their industry from the threat of unionization, revived in 1994 when a New Democratic Party provincial government passed the Agricultural Labour Relations Act (ALRA) to extend trade union and collective bargaining rights to agricultural workers. In 1995, a newly elected Conservative administration repealed the ALRA, prompting the United Food and Commercial Workers of Canada (UFCW) to take the Ontario government to the Supreme Court of Canada for violating freedom of association under the Charter of Rights and Freedoms. The Court agreed, obliging Ontario to draft new legislation. The resulting Agricultural Employees Protection Act (AEPA) allows farm workers to form associations, but not collectively bargain. After trying unsuccessfully to represent workers under the Act, the UFCW then challenged the constitutionality of the legislation in the Ontario Superior Court. In 2006, the judge dismissed the claim, leading the UFCW to take the Attorney General to the Ontario Court of Appeal which ruled in favour of the UFCW. The Ontario government subsequently appealed to the Supreme Court of Canada. The court upheld the law, ruling that the AEPA allows for “meaningful dialogue”: while the Charter grants workers the right to form associations and to discuss work conditions with employers, it does not prescribe a particular model of collective bargaining or outcome.

The court decision affects thousands of Latin American and Caribbean migrants and their families who earn their livelihood in Ontario, where two-thirds of migrant farm workers to Canada are employed. It is likely, however, that this strong endorsement of differential rights for farm workers will be felt nationwide. In essence, the court's  judgment disregards the sharp power differential between agricultural workers and their employers. The court's perspective is at odds with social indicators that place farm workers at the bottom of Canada's occupational ladder, with fewer protections than other workers. Many analysts agree that degraded working conditions in agriculture are responsible for the labour shortages that have plagued the sector for over a century. Since 1966, such shortages have been filled with temporary migrants, first through the Seasonal Agricultural Workers Program (SAWP), then the Pilot Project for Occupations Requiring Lower Levels of Formal Training (2002), and finally, the Agricultural Stream of the Pilot in 2011. From 264 migrants 45 years ago, these programs now bring some 35,000 international migrants to Canada annually for work in the farm and food industry.

While all farm workers have precarious jobs, migrants face additional challenges. Although they are accorded many of the same rights as Canadian citizens and permanent residents, they cannot enjoy these rights equally. For example, migrant farm workers are issued work permits that are valid only with a specified employer, which implies that dismissal is often synonymous with deportation. In addition to being easily disposable, migrants have few, if any, opportunities to permanently immigrate to Canada.

The recruitment criteria of temporary migration programs also play a role in creating a more vulnerable workforce. Employers choose countries with high rates of poverty to supply them with migrants. Within those countries,  participants are selected on political or economic grounds. Sending countries require applicants to have dependents, low education levels, and little or no assets. Additional mechanisms are implemented to compel migrants to fulfill the demands of their employers and return home at the end of their contracts, such as the employee evaluations required by Mexico and the forced savings scheme imposed by Caribbean countries.

Researchers, advocates and the media have demonstrated that migrant farm workers' vulnerability in the labour force is not merely theoretical. Migrants have been deported or prevented from returning to Canada for refusing unsafe work, becoming pregnant and defending their rights, among other reasons. Migrant-sending governments are often complicit in practices designed to subordinate workers to their employers. Most recently, evidence has emerged to corroborate allegations that the Mexican government blacklists union supporters. The Ontario government's refusal to extend the right to join unions and bargain collectively to farm workers —an increasing share of whom are international migrants— can only perpetuate and legitimize their marginalization in the labour force.

The Supreme Court ruling ends a lengthy and expensive legal campaign financed by Canada's largest private sector union, UFCW, but it may also mean a change of course for migrant rights activism and the politics of agriculture and food production in Canada. UFCW's failed legal bid to access a potential 80,000 members may lead to a refocusing of its current campaign for agricultural workers' rights. Apart from pushing for change through the courts, UFCW engages in a number of other strategies, including operating 10 agricultural worker centres nationwide, organizing workers and negotiating collective agreements in other provinces, and promoting public awareness. The legal defeat in Ontario may lead UFCW to scale back its activity in the province, including the four support centres, in favour of building their base elsewhere.

The setback in securing equal labour rights may also breathe oxygen into human rights campaigns that pressure the most powerful players in global supply chains —fast food companies and supermarkets— to adopt codes of conduct and pay fair food premiums that are passed to farm workers. This strategy proved successful for the Coalition of Immokalee Workers in Florida. Canada's growing reliance on migrant labour and the consequent exploitation endemic in temporary migration programs has given rise to a vibrant social movement around migrant rights (including migrant-led organizations) that may galvanize around a fair food campaign. While the Supreme Court decision closes the door on one battle, it is likely that another window is opening, one that may hold new promise for migrant activism and food politics in Canada.

Kerry Preibisch is Associate Professor at the University of Guelph specializing in international labour migration, global agro-food systems, and temporary migration programs.

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