Report in which the committee requests to be kept informed of development - REPORT_NO363, March 2012

1. 388. The Committee last examined this case at its November 2010 meeting, when it presented an interim report to the Governing Body [358th Report, paras 335–361 approved by the Governing Body at its 309th Session (November 2010)].
2. 389. The Government sent its observations in communications dated 21 April and 18 May 2011 and 8 February 2012.
3. 390. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 391. At its November 2010 session, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) The Committee continues to consider that the absence of any machinery for the promotion of collective bargaining of agricultural workers constitutes an impediment to one of the principal objectives of the guarantee of freedom of association: the forming of independent organizations capable of concluding collective agreements. The Committee requests the Government to take the necessary measures to ensure that the Provincial Government puts in place appropriate machinery and procedures for the promotion of collective bargaining in the agricultural sector and requests it to keep it informed of the progress made in this respect. Appropriate machinery can be adapted to national circumstances provided the principles reflected in the conclusions are fully respected.
   • (b) The Committee requests the Government to provide the decision of the Supreme Court of Canada concerning the constitutionality of the AEPA as soon as it is handed down and to indicate any implications this decision may have on the question of bargaining rights in the agricultural sector of Ontario.

B. The Government’s reply

1. 392. In its communication dated 21 April 2011, the Government transmits a communication from the Provincial Government of Ontario which indicates that the key issue before the Supreme Court is whether the Agricultural Employees Protection Act, 2002 (AEPA) infringes freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. According to the Provincial Government, since the issues raised before the Supreme Court are very closely related to the present case, the outcome of the proceedings before the Supreme Court may affect the nature of the Government of Ontario’s response to this case and possibly its approach to the issue in general. The Provincial Government was, therefore, not in a position to provide further comments nor to respond to the Committee’s recommendation to put into place appropriate machinery and procedures for the promotion of collective bargaining in the agricultural sector.
2. 393. In its communication dated 18 May 2011, the Government transmits a copy of the decision of the Supreme Court of Canada with respect to the constitutionality of Ontario’s AEPA. It also indicates that the Provincial Government is examining the implications of the Supreme Court decision and will provide additional details at a later date. In a communication dated 8 February 2012, the Provincial Government refers to the Supreme Court decision and states that, under the AEPA, as properly interpreted, agricultural employers are also obliged to consider workers’ representations, issues and concerns in good faith. The Provincial Government indicates that at this time there are no plans to amend the current legislation.

C. The Committee’s conclusions

1. 394. The Committee notes that this case concerns the alleged exclusion of agricultural workers from access to collective bargaining through the adoption of the AEPA, of the Province of Ontario.
2. 395. The Committee notes that the Provincial Government indicates, prior to the release of the ruling with respect to the constitutionality of Ontario’s AEPA, that since the issues raised before the Supreme Court are very closely related to the present case, the outcome of the proceedings before the Supreme Court may affect the nature of the Government of Ontario’s response to this case and possibly its approach to the issue in general. The Committee also notes that, after examining the implications of the Supreme Court decision, which was handed down on 29 April 2011, the Provincial Government concluded that, under the AEPA, as properly interpreted, agricultural employers are obliged to consider workers’ representations, issues and concerns in good faith and indicates that at present there are no plans to amend the current legislation.
3. 396. At the outset, the Committee wishes to emphasize that it does not have the mandate to assess the application by the national courts of the national legislation and the Canadian Charter of Rights and Freedoms; but that its mandate rather consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 6]. In this regard, the Committee has been called upon to set out its considerations in relation to the conformity of the AEPA with internationally recognized principles and not in relation to its constitutionality. The Committee trusts that its examination of the present case can be of assistance in the national and provincial consideration of the issues in question.
4. 397. The Committee notes that, in its ruling of 29 April 2011, the Supreme Court of Canada rejected the Ontario Court of Appeal’s position that the AEPA is unconstitutional and that section 2(d) of the Charter requires that enactment of laws that set up a uniform model of labour relations imposing, inter alia, a statutory recognition of the principles of exclusive majority representation. The Supreme Court ruled, firstly, that the AEPA does not infringe the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms holding that section 2(d) of the Charter protects the right to associate to achieve collective goals, that in the labour relations context this requires a meaningful process of engagement that permits employee associations to make representations to employers which employers must consider in good faith, and that the AEPA, properly interpreted, meets these requirements. Secondly, the Supreme Court found, in relation to the Ontario Appeal judgment, that the Ontario legislature is not required to provide a particular form of collective bargaining rights to agricultural workers in order to secure the effective exercise of their associational rights.
5. 398. The Committee wishes to highlight that, while finding that the AEPA does not infringe freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms, the Supreme Court has also indicated that “the AEPA does not expressly refer to a requirement that the employer consider employee representations in good faith; however, by implication, it includes such a requirement”, and that “any ambiguity in s.5 should be resolved by interpreting it as imposing a duty on agricultural employers to consider employee representations in good faith, as a statute should be interpreted in a way that gives meaning and purpose to it provisions and Parliament and legislatures are presumed to intend to comply with the Charter”. In this regard, the Committee welcomes the finding of the Supreme Court that agricultural employers have the duty to consider employee representations in good faith, but it is of the opinion that this duty, whether implied or explicit, is insufficient to ensure the collective bargaining rights of agricultural workers under the principles of freedom of association. In this respect, the Committee recalls that 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 Committee also wishes to recall the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations, and recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., paras 934–935]. In this regard, and with reference to its previous conclusions [see 358th Report, paras 357–360], the Committee emphasizes once again that “one of the main objects of the guarantee of freedom of association is to enable employers and workers to form organizations independent of the public authorities and capable of determining wages and other conditions of work by means of freely concluded collective agreements” [see Digest, op. cit., para. 882]. The Committee therefore concludes that the AEPA would need to be amended to ensure respect of these principles.
6. 399. The Committee expresses its particular concern over the relevancy of the simple provisions permitting representations in the AEPA, given that there does not appear to exist any successfully negotiated agreement since the Act’s adoption in 2002, nor has there been any indication of good faith negotiations. The Committee therefore continues to consider that the absence of any express machinery for the promotion of collective bargaining of agricultural workers constitutes an impediment to one of the principal objectives of the guarantee of freedom of association. The Committee also observes that there appears to be no provisions recognizing the right to strike of agricultural workers, which would inevitably impact on the ability of agricultural workers to bring about a meaningful negotiation on a list of claims. In this regard, the Committee recalls that it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests and highlights that the agricultural sector does not constitute an essential service in the strict sense of the term [see Digest, op. cit., paras 521 and 587].
7. 400. The Committee therefore requests the Government to take the necessary steps so that the Provincial Government of Ontario review the AEPA in full consultation with the social partners concerned with a view to providing the measures or machinery appropriate for full and meaningful collective negotiations in the agricultural sector, including by guaranteeing that agricultural workers may take industrial action without sanction. To this end, and while emphasizing that there are many different collective bargaining systems around the world which are compatible with freedom of association principles, the Committee invites the parties concerned to identify the unique characteristics and circumstances of this particular sector that have a bearing on collective bargaining and to review the measures taken in other provinces when considering the appropriate measures necessary to promote collective bargaining in the agricultural sector in Ontario. The Committee requests to be kept informed of the views of the social partners and of the progress made in this respect.