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| Shane Martinez |
Farm workers have been prohibited from unionizing in Ontario since 1943. A brief exception to this came about in 1994 when the province passed the Agricultural Labour Relations Act. The legislation was repealed late the following year when a new government came into power and decided to strip farm workers of any union organizing and collective bargaining rights. The United Food and Commercial Workers Union (UFCW) immediately launched a constitutional challenge, arguing this exclusion was an infringement of sections 2(d) and 15(1) of the Charter.
Six years later the case made its way before the Supreme Court of Canada. In Dunmore v. Ontario (Attorney General) 2001 SCC 94, the court asked whether s. 2(d) imposed a “positive obligation on the state to extend protective legislation to unprotected groups” in order to make the freedom to organize meaningful. The majority answered this question in the affirmative, siding with the UFCW and finding essential protections needed to be provided to ensure that workers could meaningfully exercise their s. 2(d) freedom of association. Having found a s. 2(d) violation, the majority declined to embark on a s. 15(1) analysis.
Ontario did not welcome farm workers into the fold of the existing Labour Relations Act (LRA), but instead implemented the Agricultural Employees Protection Act (AEPA). While the AEPA states that farm workers have the rights to “assemble” and join an “association” through which they can “make representations” to their employers, it provides none of the empowering protections that unionized workers enjoy under the LRA.
Notably, the AEPA does not provide for the certification of an exclusive bargaining agent, nor does it oblige an employer to engage in negotiations for a collective agreement. The legislation also does not provide farm workers with any right to strike. The absence of these and other key features effectively ensures that the AEPA does not allow workers to wield influence over their working conditions within Ontario’s agriculture industry.
The UFCW contended that the AEPA violated ss. 2(d) and 15(1) of the Charter, again bringing the matter to the Supreme Court of Canada in Ontario (Attorney General) v. Fraser 2011 SCC 20. The court surprised many by holding that s. 2(d) did not require Ontario to provide a particular form of collective bargaining rights to agricultural workers, as “what is protected is associational activity, not a particular process or result.” The court again declined to consider a section 15(1) argument, remarking that “Until the regime established by the AEPA is tested, it cannot be known whether it inappropriately disadvantages farm workers. The claim is premature.”
Largely absent from the Fraser decision was any discussion about who exactly is working on farms in Ontario. Historically the province has had difficulty finding people within it to labour on farms doing dangerous, physically draining and underpaid work. Since 1966 it has responded to this challenge by relying on the Seasonal Agricultural Worker Program (SAWP). The SAWP is a federally run program that brings tens of thousands of racialized migrant farm workers from Mexico and the Commonwealth Caribbean to work on Canadian farms for up to eight months at a time. These workers are among the most economically dispossessed people in the global south, forced by their circumstances to leave their families and work in Canada to meet basic needs back home.
The systemic vulnerabilities characterizing the lives of SAWP participants have received increasing attention over the last decade. Employment contracts are negotiated solely between government representatives and the farm industry; migrant farm workers have no seat at the table whatsoever. Once they arrive in Canada, SAWP participants lack labour mobility on account of being tied to a single employer.
They usually work long hours for six days a week, earning minimum wage in gruelling conditions, almost entirely cut off from Canadian society. These workers are also required to live in housing provided by their employer, often in poor and overcrowded conditions due to the bunkhouses being excluded from the scope of Ontario’s Residential Tenancies Act.
Migrant farm workers frequently receive insufficient training on workplace hazards, or go without access to proper safety equipment. Injuries and deaths among SAWP participants are not uncommon, yet Ontario has never held a coroner’s inquest into the death of any migrant farm worker. Many of these workers have good reason to be hesitant about raising their voices though. SAWP contracts contain a repatriation clause that allows an employer to terminate a worker’s employment for any reason and have them immediately removed from Canada (potentially leading to them being banned from the SAWP altogether).
A well-documented culture of fear prevails on many farms as a result of this, sometimes with tragic consequences when workers feel that they cannot safely speak out about abusive or dangerous conditions lest they risk losing their jobs. The totality of this situation is such that the AEPA provides no meaningful protection of migrant farm workers’ freedom of association, leaving them in a precarious position should they try to take action to improve their working conditions.
It does not appear that any of this was given attention by the court when it determined in Fraser that relegation to the AEPA was a Charter-compliant alternative to unionization. Indeed, the unique reality of migrant farm workers received only a fleeting acknowledgment in the dissent of Justice Rosalie Silberman Abella when she noted that the absence of exclusive bargaining rights in the AEPA was “particularly undermining for particularly vulnerable employees.”
She went on to quote from professor David M. Beatty, who observed that agricultural workers are “among the most economically exploited and politically neutralized individuals in our society,” and that “because they are heavily drawn from a migrant and immigrant population, these workers face even more serious obstacles to effective participation in the political process.”
In the more than 10 years since Fraser, a wealth of scholarly research has developed about the highly racialized dynamics of the SAWP and its impact on migrant farm workers. During this time courts and administrative tribunals have also repeatedly recognized the severe systemic vulnerability and disadvantage that these workers face.
The AEPA’s legacy is that it has gone unused by migrant farm workers wishing to collectively organize their workplaces — a testament to its failure to meaningfully protect the most marginalized. It is also noteworthy that while non-racialized Canadians and racialized migrant farm workers may be subject to the same inferior provisions of the AEPA, it is the latter that experiences differentiated vulnerability as an adverse effect of having little more than a veneer of associational rights. All of this reveals the plight of racialized migrant farm workers in a new light, raising novel section 2(d) and 15(1) Charter arguments distinct from those raised in Dunmore and Fraser.
While the issue of farm worker unionization could be litigated yet again, it should not have to be. Appreciation for the contributions of migrant farm workers can be shown by each of us calling upon Ontario’s legislature to repeal the AEPA and include these workers under the LRA. Perhaps in this way, by helping them get a seat at the bargaining table, we can begin to adequately express our gratitude for all that they bring to our own tables.
Shane Martínez is a criminal defence and human rights lawyer at Martínez Law, and an adjunct professor of Prison Law, Policy & Reform at Osgoode Hall Law School. He can be found on Twitter @martinezdefence.
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