Farm and union leaders probe the grey areas in the Supreme Court's labour relations decision

by SUSAN MANN

One thing they don't want is agricultural workers having the right to strike. They'd also prefer that the government write a whole new agricultural labour relations act instead of just reinstating the one the Tories threw out in1995 or putting agriculture under the current Labour Relations Act, which governs other industries. Moreover, they also want a say in whatever the government comes up with.

The United Food and Commercial Workers Union (UFCW) began the challenge to Ontario's exclusion of farm workers from labour relations laws in Ontario court seven years ago. The exclusion was upheld there and also in Ontario's Appeal Court, where the union took the case after losing the first round. In March, 2000, the Supreme Court agreed to hear the case, a decision the union saw as extremely significant because the court doesn't hear all cases that are brought to it.

"We had legislation under the NDP that allowed workers in the agricultural industry, and specifically the industrial agricultural industry, the right to organize, be represented by unions and to bargain collectively," Fraser explains. "The Harris government took that right away and we believe the Supreme Court said that you do can't that and they have the right to bargain collectively."

The UFCW has taken the position that, in the case of Highline Produce Ltd. in Leamington, it organized those workers before the NDP law was struck down and it still represents those employees. The employer has a responsibility and obligation to negotiation a collective agreement with the union on behalf of the employees.

But there are a lot of grey areas in the 66-page Supreme Court decision. "It didn't come out and say one way or the other," in a brief summary says vegetable grower Ken Forth, who has 14 years of experience dealing with agricultural labour matters.

Forth, who farms in the Lynden area near Hamilton with his father, Elgin, and son, Kenny, is past chair of the Labour Issues Co-ordinating Committee (LICC) and the current chair of the Ontario Fruit and Vegetable Growers' Association labour section. He has represented farm employers in negotiations with the countries participating in the foreign worker program, and he runs the agricultural section of the Workplace Safety and Insurance Board.

The LICC is a coalition of 14 farm organizations that represents the interests of Ontario farm employers. It was formed in 1991 to develop farm employer consensus on employment and labour-related matters and to present their collective positions to government. Lawyers for LICC pored over the Supreme Court decision and provided members with a two-page summary and their opinion of it.

LICC representatives expect to meet with OMAFRA and Labour Ministry officials sometime this month to see if they can have input into "what will work for us," says chair Hector Delanghe. "We can't have anything with strike action in it," says Delanghe, who has been involved in agricultural labour matters for 18 years. On his farm south of Chatham in Kent County, he grows 14 different crops, including apples, peaches, pears, plums, strawberries, nectarines, soybeans, tomatoes and wheat.

"This is living organism time," Forth says. "These are dairy cows and peaches and broccoli and chicken. They will die if not cared for literally on an hour-by-hour basis. Somebody has to address that."

Union focus is on the big employers
At the other end of the spectrum are the views of the UFCW, which thinks agricultural workers should have the right to strike. "I believe the Supreme Court is saying that these people should be treated the same as people working in any other industry who have the right to strike," says Michael J. Fraser, UFCW's national director.

"These guys want to have their cake and eat it too," he adds. "First of all, they don't want their employees to have the right to bargain collectively. Then, if they're forced to, which they're going to be by the Supreme Court, they're going to say, 'Then they can't have the right to strike.' They can't have it both ways."

But Fraser says the union isn't interested in organizing small family farms. "We are looking at industrial settings and clearly there's a difference between that and a family farm."

Another grey area is which workers are covered by the decision. For example, migrant farm workers who come to Ontario for about eight months from Jamaica, the Caribbean and Mexico are covered by federal legislation. But will the Supreme Court decision also cover them? "There certainly is an overlap on the issues, but I think there are some differences," he says.

UFCW says it's focusing its efforts on employers like Highline Produce Ltd., a mushroom production facility which employs 200 workers It sees a big difference between industrial agricultural operations that employ 200 people and small family farms that have maybe one hired employee.

Even though farm leaders have an idea of what they don't want in a new agricultural labour bill, they still haven't worked out yet what features they'd like to see. "The bottom line is we want to be competitive with other jurisdictions," Forth says, meaning other parts of Canada and the United States.

Are farmers worried any new agricultural labour legislation will lead to increased costs? "We're always worried about costs because we can't afford to be out of step with our competition," he says.

Forth sees a big difference between unionizing a factory next to a large metropolitan area and a family farm. "This is the farm. This is where we live. This is where we raise our kids."

In its preliminary position released Feb. 12, LICC says it believes the Supreme Court decision is aimed at protecting the constitutional freedom of the individual farm worker as opposed to the institutional rights of trade unions. It considers that the Supreme Court decision requires the Ontario government to provide protection for farm workers so they have the freedom to form and maintain associations, the freedom to assemble, the freedom to participate in the lawful activities of associations, the freedom to make representations and the right to participate in all of these activities without interference, coercion or discrimination. The court did not instruct the Ontario government to pass legislation to provide for union certification, a duty to bargain collectively or recognition of the right to strike.

In striking down the province's exemption of farm workers from labour relations laws, the Supreme Court has given the provincial government 18 months to pass new legislation. If the province does nothing, the LICC says it's the Ontario Labour Relations Act that will apply to the agricultural sector. But that's something farm employers don't want to see happen.

Less conciliatory now
However, the UFCW, which at press time, was requesting a meeting with Labour Minister Chris Stockwell, believes that the government should respond promptly. "Whether they're having a leadership contest or not, they're still in government," says Fraser.

Agricultural leaders don't want the province simply to reinstate the Agricultural Labour Relations Act passed by the NDP government in 1994. That act was developed with input from farmers and union representatives. The bill gave year-round farm and horticultural workers the right to organize and bargain collectively, but it prohibited strikes or lockouts. It also provided for a structured process of negotiations, mediation and, as a last resort, arbitration to resolve disputes.

Even though farmers had input into that bill, it was really developed with a deadline in mind. "The deadline had to be met and that's pressure," Delanghe says. "It still wasn't what we really thought would work in agriculture, but we had to say yes."

The union also wanted features in that NDP bill that in the end weren't included. One of those features was the right to strike for agricultural workers.

Last time, the government, UFCW and farm leaders all sat down together to work out details of the agricultural labour bill and compromises were made by both farm employers and union representatives. This time, UFCW says it wants to talk to the government about what will be in the bill and it's not opposed to talking to the other stakeholders. But it's less inclined to be conciliatory now.

"The fact of the matter is that the Supreme Court has said what the Conservative government did is wrong," Fraser says. "We tried to tell them that. So we're a little less likely to want to reach accommodations in light of the fact that, after seven years fighting in the court, we were successful and they weren't."

Another who feels that reinstating that old NDP act isn't in the cards is Brian Coburn, the provincial agriculture minister at press time. "It did more harm to agriculture than it helped."

Coburn says the government understands the conditions under which farmers operate and is well aware that crops have to be harvested when they're ready, that agriculture is not an 8-5 job, is weather-dependent and has its peaks and valleys. It will consult both with farm leaders and the union. "I'm quite adamant our farmers need flexibility to deal with the unpredictable situations they've got to deal with," says Coburn, who was surprised and disappointed by the Supreme Court decision. "In my humble opinion, it's not in touch with what happens out in the farmers' fields or in the agricultural workplace." BF

Migrant workers - a vital and beneficial pool of labour

by SUSAN MANN

They're part of the foreign worker program, which began in 1966 with Jamaica and now includes Trinidad and Tobago, Barbados, the Eastern Caribbean and Mexico.

It's a government-to-government program. But, in 1984, the federal government began downloading services and said the farm community should pay to administer the program. At that time the farm community formed the Foreign Agricultural Resource Management Service (FARMS) to administer the program. Farmers pay a fee of $32 per worker to cover administration costs.

FARMS also has its own travel agency used exclusively for the foreign worker program. But it's still the federal Human Resources Development Canada (HRDC) that approves farmers so they can get workers.

Up until the mid-1960s, farmers could rely on immigrants for their basic work force. But many of the migrants arriving in Canada these days are professionals and aren't interested in starting out in this country by working on farms. In addition, they can get year-round employment in factories and other businesses.

Workers participating in the foreign worker program see an opportunity, says vegetable grower Ken Forth, "in the wages that they are able to get in Canada so they can go home and raise their standard of living in their own countries. That's why it works. They see an opportunity and it helps us to stay competitive."

Last year, 15,800 people came in as part of the foreign worker program, with about 85 per cent going back to the same farm year after year. The majority of agricultural positions in Ontario are still filled by Canadians. The foreign worker program simply supplements farmers' labour needs, says Andrea Proctor, co-ordinator of the Farm Labour Pool Niagara in St. Catharines.

Before being able to get offshore workers, farmers first have to demonstrate to HRDC that they need workers and meet the program's criteria. "You can't just walk in and say, 'Give me off-shore workers,'" explains Peter Buis, the Niagara representative for FARMS and a Niagara-area peach and grape grower. "There is a process." Employers in tobacco, nursery, canning, processing, vegetable, greenhouse, field fruit and flowers all qualify for off-shore labour, says John Marchio, manager of the Human Resources Centre in St. Catharines.

The first step in recruiting offshore workers is for growers to contact a Human Resources Centre and fill out a human resource plan. They must outline how they've filled their labour requirements in the past, what has changed, what difficulties they're encountering and what steps they're taking to look for Canadians.

"If the employer has made reasonable efforts to attract Canadians and has been unsuccessful in getting qualified Canadians for the job, we will consider their offshore request," Marchio says.

"We're going to do everything we can to encourage what labour there is around," says fruit and vegetable grower Hector Delanghe

"It's a Canadians first program."

However, it's often hard for farmers to get local workers because the jobs are only available for six to eight months and people prefer the year-round jobs available in service, construction and other industries.

The Mexican program is slightly different than the Caribbean one. The daily amount farmers can deduct per worker to cover airfare, accommodation and local transportation to the store every week is $2.75. (Most workers buy and cook their own food, so farmers don't supply meals.) For Caribbean workers, the daily deduction is $3.20 per worker for every working day to a maximum of $425 per worker for the season. Farmers are able to recover about 40 per cent of the airfare they pay for Caribbean workers, but not for Mexicans.

It costs farmers more to bring a Mexican worker in because of the lack of competition in the airline industry. But the wage rate for Mexicans is the same as for the Caribbean, which is $7.20 an hour. Accommodations provided must pass an inspection by the local Health Department.

Dwindling farm labour
For those critics who think offshore workers take Canadians jobs, Forth says there simply aren't enough Canadians to do the work. In addition, the foreign workers lead to the creation of full-time jobs in the transportation, packaging and service industries. "We did a study called 'In Pursuit of Reliable Labour' which shows that, for every foreign worker that comes into the country, 2.1 full-time jobs for Canadians are created," he says.

Ontario agriculture has lost about 20 per cent of its workforce force during the past three years for a variety of reasons, say farm leaders. In 1999, there were about 100,000 workers on farms in the province. But last year that number dwindled to about 80,000, says Forth, who is chair of the labour section for the Ontario Fruit and Vegetable Growers' Association.

One reason for the decline is increased mechanization on farms. Another is that "farmers are doing a lot more work themselves because the bottom line is not there," Forth says. On his farm, which has 750 acres of fresh market vegetables and strawberries, they used to have a full-time employee year-round. The full time position has been eliminated. Now, they generally hire about 30 seasonal workers. About 20 are earmarked for the farm and the rest work in the roadside marketing business. Forth makes use of a combination of local labour, including men, women and students, and about 14 workers from the foreign worker program to staff his operation. "We have a pretty stable work force in the 14 Jamaicans that we have," he notes. "One guy has worked for us for about 30 years. Lots have worked for us for 20 years." In some parts of the province, such as Niagara, local labour has become increasingly hard to find. The tourist, hospitality and construction industries, particularly with the opening of the Niagara Falls casino, took a large number of the workers that the Farm Labour Pool Niagara would normally send out to farms, says co-ordinator Andrea Proctor. "That will continue."

There's also been a shift of agricultural workers into the greenhouse industry. That's due to the longer growing season, nicer conditions and the potential for full-time employment, she says.

"Farmers need quality workers who have a commitment to the success of the farm," says Keith Robbins, communications director for Ontario Pork. He notes that the available farm labour force isn't huge, farmers have to look at people in related fields, such as people who are interested in working with animals that may have gone to work in a Humane Society. They also have to make sure they have a good retention program, such as sharing weekends so employees don't have to work every weekend.

Hector Delanghe, chair of the Labour Issues Co-ordinating Committee, says that where he farms south of Kent county there's a good source of local labour in university students, who work in the spraying and cultivation areas and on the packing line. But when it comes to field harvesters, they have a hard time finding local people who will do that work. "With the rest, we're doing pretty good." BF