All bets off on delivery of farm worker hearing decision

Saturday, May 24, 2008

by SUSAN MANN

Stan Raper, a spokesperson for the United Food and Commercial Workers Union Canada (UFCW), calls the appeal a “landmark.” The union filed the appeal after an Ontario Superior Court judge rejected its claim two years ago that the Agricultural Employees Protection Act was unconstitutional.

The Ontario Attorney General argued against the appeal, heard on Wednesday and Thursday. The Ontario Federation of Agriculture had intervener status at the hearing.

Raper says that a question posed by one of the three judges from Ontario’s Appeal Court during the hearing indicates the judges favour striking down the current Agricultural Employees Protection Act. The judge had queried how long it would take to implement a new agricultural labour relations law (12 months was the response).

The judges could potentially order the Ontario government to establish a new law enabling farm workers to join unions and bargain collectively.

Ken Forth, chair of the agricultural industry’s Labour Issues Coordinating Committee, disagrees with UFCW’s assessment. He was at this week's hearing in Toronto and he’s been to several similar hearings. He says in his experience, judges have never indicated during a hearing what their decision will be.

Forth didn’t attach any significance to that particular question, noting it was just one of hundreds the judges asked. Judges “ask questions because they don’t want to do a lot of presuming. They want to know the facts.”

The farm employer’s perspective was the same as always, Forth notes. “We’re different than factories. We have a unique industry that has to do with living organisms, weather and all that kind of stuff that isn’t necessarily there in the industrial workplace.”

Forth was pleased with how the farm employer side was presented. “Our people gave a clear view of agriculture.”

The issues raised by UFCW Canada in this case were the same as they were 10 years ago, he notes.

Raper’s also proposing two recent Supreme Court of Canada rulings on union issues in other provinces have made it clear farm workers have the right to form unions and bargain collectively under Canada’s Charter of Rights and Freedoms.

One decision from 2001 involved agricultural workers in Ontario. It ruled “an agricultural worker is entitled to the freedom of association, whether they’re on a family farm or a corporate farm.” The other, in 2007, involved hospital workers from British Columbia. Both decisions leave little leeway for any court in any province to make a decision other than farm workers have the right to form unions and bargain collectively, Raper says.

The two sides also had differing opinions on when the decision would be handed down.

Raper says the judges “indicated they would be making a fairly quick decision.” Normally decisions can take up to six months “but our lawyer indicated to us that it would probably be within a two-month time frame.”

Forth says the judges didn’t say anything about how long it would take for a decision. Their lawyers told him the courts are currently busy and recent decisions have taken three to four months.

Forth believes the length of time will depend on if all the judges interpret the issues in the same way. “If every one of them sees it exactly the same way, maybe it will be faster.”

According to a UFCW news release, the appeal was made on behalf of three employees at the Kingsville-based Rol-Land Farms mushroom operation. In 2003, workers at Rol-Land had voted to join the union. The UFCW claims the provisions under the Ontario’s Agricultural Employees Protection Act prevented a union certificate from being issued. BF