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Does the Right to Associate Require Employers to Bargain a Collective Agreement?
April 14, 2009

The Supreme Court of Canada recently granted leave to appeal a decision of the Ontario Court of Appeal affecting bargaining rights for farm workers in that province. The Ontario Court’s decision found that the Ontario government violated the farm workers’ right to associate under the Canadian Charter of Rights and Freedoms by failing to include in a statute granting the workers the right to unionize, a provision requiring employers to negotiate collective agreements with the workers’ unions.

Historically, farm workers in Ontario were precluded from unionization. While this was remedied by statute in 1994, a change in government the following year resulted in the repeal of that legislation. The matter was appealed to the Supreme Court of Canada, which in 2001 found that the exclusion of farm workers from the Ontario Labour Relations Act violated their s. 2(d) Charter right to associate. In response to that decision, the Ontario government introduced the Agricultural Employees Protection Act, permitting farm workers to unionize. However, the Act did not expressly require employers to engage in collective bargaining with the union or to reach a collective agreement.

Following the enactment of the AEPA, the United Food and Commercial Workers organized the employees at an Ontario mushroom factory and attempted to negotiate a collective agreement with the employer. When the employer refused to bargain, the UFCW challenged the constitutionality of the AEPA on the basis that it did not include provisions that would facilitate reaching a collective agreement with an employer. The UFCW was unsuccessful at trial and appealed.

The Court of Appeal held that the government had violated the employees’ Charter right to freedom of association by failing to include provisions in the AEPA which required employers to engage in collective bargaining. The Court found that, absent such express requirement, unions were unlikely to be able to obtain a collective agreement.

The Supreme Court of Canada’s decision will be of interest to employers, as it should answer the question of whether the Charter right to associate or unionize includes the right to require collective bargaining resulting in a concluded collective agreement.

Fraser v. Ontario (Attorney General), 2008 ONCA 760

Attorney General of Ontario v. Michael J. Fraser, 2009 CanLII 15013(SCC)