ILO rules "good faith" not good enough to guarantee labour rights of Ontario agriculture workers

International Labour Organization which sets international labour standards concurs with UFCW Canada human rights complaint and calls on Ontario government to amend cynical farm worker legislation

March 28, 2012 - The International Labour Organization (ILO) has concurred with UFCW Canada that current Ontario legislation needs to be amended so that Ontario agriculture workers can exercise their Charter rights in the workplace. On Wednesday, the agency of the United Nations which sets international labour standards concluded 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 follows a complaint filed in 2009 by UFCW Canada that the AEPA violated the human and labour rights of Ontario agriculture workers under ILO Convention No. 87– Freedom of Association and Protection of the Right to Organize (1948); and ILO Convention No. 98 – Right to Organize 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 Wayne Hanley, the National President of UFCW Canada. "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 Harris/Eves government in 2002 — agricultural employees can join or form associations but are excluded from joining unions. They can make representations to their employer, but the employer is not obliged to act. In 2008, in the wake of a UFCW Canada Charter challenge, the Ontario Court of Appeal ruled the AEPA violated the Freedom of Association rights of Ontario farm workers under Section 2d, of the Charter of Rights and Freedoms. In April 2011, the Supreme Court of Canada reversed that decision, and said the AEPA provided freedom of association — given the assumption the employer would act "in good faith".

But according to the ILO, good faith is not good enough. "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 therefore concludes that the AEPA would need to be amended to ensure respect of these principles."

"Not once since the AEPA was enacted in 2002, has any group of workers managed to use the AEPA to bargain with their employer," says Hanley, the leader of Canada's largest private-sector union, which for more than two decades has led the campaign for justice for Ontario agriculture workers, and in association with the Agriculture Workers Alliance (AWA), operates ten agriculture worker support centres across the country, including four centres in Ontario. "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."

"We agree with the ILO that it is time for the Ontario government to step up to the plate and do the right thing," says the UFCW Canada leader. "We have worked with, and for, Ontario farm workers for two decades. More than 8,000 Ontario agriculture workers are now members of the AWA.  We invite the government to sit down and consult to amend the legislation and right a situation that currently is wrong, unfair and an international embarrassment."