Introduction: Farm Workers, Collective Bargaining Rights, and the Meaning of Constitutional Protection

• Author: Judy Fudge
• Pages: 1-29

1

CHAPTER ONE

Introduction: Farm Workers,

Collective Bargaining Rights, and

the Meaning of Constitutional

Protection

Judy Fudge

A. Farm Workers, Freedom of Association, and the Supreme

Court of Canada

On 29 April 2011, the Supreme Court of Canada released its much-

anticipated decision in Attorney General of Ontario v Fraser.1 It was

the f‌irst case after Health Services and Support—Facilities Subsector

Bargaining Association v British Columbia2 in which the Supreme

Court addressed the scope of constitutionally protected collective

bargaining rights. It was also the third decision in twenty years that

the United Food and Commercial Workers Union Canada (UFCW)

had obtained from the Supreme Court of Canada as part of the

campaign it began in the late 1970s to secure collective bargaining

rights for agricultural workers, workers who historically have been

recruited from groups located at the margins of the labour market.3

Fraser dealt with a constitutional challenge to an Ontario statute on

the ground that it violated agricultural workers’ freedom of associa-

tion and right to equality by excluding them from the statutory pro-

tection that is available to virtually all other private sector workers

1 Ontario (AG) v Fraser, 2011 SCC 20 [Fraser].

2 Health Services and Support—Facilities Subsector Bargaining Assn v British Columbia,

[2007] 2 SCR 391 [Health Services].

3 See Er ic Tucker’s chapter and Wayne Hanley’s chapter in this collection for a his-

tory of the litigation and the attempt to organize farm workers in Ontario.

Judy Fudge2

and by failing to provide them with alternative legislative support for

meaningful and effective collective bargaining rights.

For the union that instigated the litigation, Fraser is a defeat.

Eight of the nine judges agreed that the Agricultural Employees Pro-

tection Act (AE PA)4 met the constitutional standard regarding free-

dom of association, although they did so for three very different

sets of reasons. For the labour movement and its advocates, Fraser

is ambiguous. The majority aff‌irmed that “section 2(d), interpreted

purposively and in light of Canada’s values and commitments, pro-

tects associational collective activity in furtherance of workplace

goals. The right is not merely a paper right, but a right to a process

that permits meaningful pursuit of those goals.”5 On the other hand,

Fraser marks the end of an emerging consensus among members of

the Supreme Court that the types of collective activities by workers

protected by the constitutional guarantee of freedom of association

should be expanded incrementally. The Court is badly divided over

the scope of protection that freedom of association provides to the

traditional labour right to bargain collectively.

Two stories are intertwined in the four judgments that make up

the Court’s decision—the story of the farm workers and their union’s

attempt to obtain rights at work available to other working people

in Ontario, and the tale of judicial discord over the meaning of free-

dom of association in the context of work. The f‌irst is more specif‌ic,

and it focuses on the features of the actual dispute that drove the

litigation, while the second is jurisprudential and institutional, and it

concentrates on how the Supreme Court of Canada has interpreted

freedom of association in the context of claims by unions for consti-

tutional protection of the rights to bargain collectively and to strike.

Appeal-level adjudication, especially of constitutional questions,

requires courts to attend to the specif‌ic facts and context of a dis-

pute, and at the same time, to articulate a consistent and principled

approach to interpretation. The tension between these two levels of

decision making in Supreme Court of Canada cases mirrors the ten-

sion between a just decision in the particular case and the need for

legal certainty that is inherent in judicial decision making. In Fraser,

what is remarkable is the extent to which, in three out of the four

sets of reasons, the focus is almost exclusively jurisprudential and

institutional; the distinctive legal treatment of agricultural workers

is barely visible.

4 SO 2002, c 16 [AEPA].

5 Fraser, above note 1 at para 38.