Labour Rights: A Democratic Counterweight to Growing Income Inequality in Canada

AuthorDerek Fudge
Labour Rights: A Democratic
Counterweight to Growing
Income Inequality in Canada
Derek Fudge
A. Introduction
The Supreme Court of Canada’s 29 April 2011 decision in Ontario (AG)
v Fraser,1 upholding the constitutionality of the 2002 Agricultural Em-
ployees Protection Act (AE PA), was both disappointing and astounding.
The decision marked the latest chapter in a decades-long legal strug-
gle by the United Food and Commercial Workers (UFCW) Canada
to achieve labour rights for the 80,000 domestic and migrant farm
workers in Ontario.2
The disappointment over the decision is because the Court
turned its back on one of the most vulnerable groups of workers
in Canada by ruling that farm workers are not entitled to the same
collective bargaining rights as almost all other Canadian workers.
Ontario is the most intensive agricultural province in Canada, and
the agricultural sector’s workforce is one of the lowest paid groups
of workers in the country and often face deplorable working con-
ditions.3 With the exception of management employees and certain
categories of professional employees, Ontario farm workers are the
1 2011 SCC 20 [Fraser].
2 For more detail on UFCW Canada’s longstanding campaign to improve working
conditions and to obtain labour rights for agricultural workers in Canada , see
UFC W, History of Agricultural Workers in Canada, online: UFCW Canada www.ufcw.
ca/index.php?option=com _content&view=article &id=2012&Itemid=250& lang= en.
See also Eric Tucker’s chapter in this volume.
3 Fraser v Ontario (AG), 2008 ONCA 760 at paras 67–69.
Labour Rights 235
largest occupational grouping in Canada to be denied access to ef-
fective collective bargaining rights.
It is diff‌icult to fathom how the Supreme Court could deny this
vulnerable group of workers access to a statutory framework for col-
lective bargaining available to virtually all other workers. But upon
close examination of the facts of the case and the decision, one can
see how Fraser got lost in a much larger political battle in which big
business and governments used the case as a way to argue the Su-
preme Court had gone too far in the BC Health Services case4 in pro-
tecting collective bargaining rights under section 2(d) of the Cha r te r.
It is this larger political battle that is my focus in this chapter,
which takes an unabashedly pro-labour stance on the need to pro-
tect collective bargaining and other key labour rights, such as the
right to strike, as part of the constitutional guarantee of freedom of
association. The chapter begins by showing how governments and
employer organizations from across Canada ignored the issue in dis-
pute—the right of agricultural workers to bargain collectively—in
order to launch an assault on the precedent established in 2007 in
BC Health Services that collective bargaining was a constitutionally
protected right. It then proceeds to show how the Charter has failed
to provide a robust and secure shield against governments deter-
mined to roll back workers’ hard won collective rights to bargain col-
lectively and to strike. After brief‌ly recounting the concerted assault
on trade union rights that began in the 1980s, I turn to demonstrate
the important contribution that unions make toward building a more
just and equitable society. Given the signif‌icance of trade unions for
providing greater income equality in Canada, I argue that it is critical
for the labour movement and its allies to launch a vigorous defence
of labour rights. I describe some of the initiatives that my union, the
National Union of Public and Government Employees (NUPGE), has
taken to demonstrate how important unions and labour rights are
for a vibrant democracy and sustainable economy.
Used as an Attempt to Roll Back
BC Health Services
In many respects, the Supreme Court’s ruling in the Fraser case end-
ed up not being about agricultural workers and their right to bargain
collectively; rather, it ended up being about BC Health Services, which
had established that freedom of association protected in the Charter
4 Health Services and Support—Facilities Subsector Bargaining Assn v British Columbia,
2007 SCC 27 [BC Health Services].

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