Canadian Farm Workers Court Setback but Workers’ Rights Advance

VancCANADA-POLITICS/ouver The election news was hard last night, even though there was a lot of “on the one hand, and on the other hand,” because the Conservative, hard right party won a majority and a 5-year guarantee on federal political control.  On the other hand, the New Democratic Party (NDP) after 50 years became the official opposition party for the first time, perhaps inadvertently assisting a default choice by many to the Conservatives, and some were heartened by the election of the first Green Member of Parliament.  More of this will shift into clearer focus in coming days.  Many currently feel environment, drug, health, social services, and other programs are in severe jeopardy.

I wondered about what shape workers might find themselves in.  Unions will certainly be in the sightlines, but fortunately not at the level we see in the state-by-state assault in the USA.  No small reason continues to be the court rulings by the Canadian Supreme Court around the fundamental rights to “associate,” which includes unionize, and because of historic decisions in BC Health Services to find protection for collective bargaining in the Charter of Rights that establishes the basic guarantees and freedoms on the Canadian people.

Several days ago the Canadian Supreme Court in fact issued a critical decision on a case brought by the UFCW concerning collective bargaining rights for 80,000 agricultural farm workers in Ontario.  Reading the press reports, especially the headlines, Joe Canada would think that unions and farm workers were dead meat.  Indeed the decision went against the UFCW’s pleading by an 8-1 vote of the Court, so it was certainly not a “win” for farm workers.  Nonetheless the headlines saying that farm workers were now denied the right to form or belong to unions were 100% wrong.

When looking at the actual decision and the analysis of legal scholars as opposed to ideological hacks in a news environment in which there is no labor press any more, what really happened was that the Court refused to agree that there should be specific guarantees to the “outcomes” for collective bargaining for farm workers, even while upholding the continued Charter rights for them to be involved in the “process” of collective bargaining.  The UFCW had attempted in court to establish that the specific act governing agricultural employment in Ontario was so substandard that it diminished rights more recently clarified by seminal decision in BC Health Services. The Court decided overwhelmingly that they did not believe the Charter rights were adversely affected by a different “bargaining” regime for farm workers.  The UFCW on its own website though furious, made the right call that tactics would simply have to move from the legal front to the political front, which is quite true.

Looking past the tactical setback for farm workers, there is in fact good news for other unorganized workers in Canada, if unions and others were up to the organizing struggle.  The decision, except for the lone dissident voice on the court, reaffirmed the earlier decision and guarantees established in BC Health Services, and that’s huge, especially since this new decision includes many of Stephen Harper and his Conservative Party’s new members on the Court.  In my reading that’s huge!  The vast majority of the Court argued that they were comfortable that BC Health Services was decided correctly and after only four years saw no reason to believe that there were negative impacts from the decision that warranted reconsideration.

Professor Sara Sinn of the York University Law School in Toronto seemed to be the only voice that rang true.   Even looking at the farm workers she argued that this was a “battle” lost, but the “war” still heavily engaged with workers continuing to prevail on the basic rights and guarantees of the Charter.   Perhaps it is not even a matter of business and conservative press control, but simply laziness that made so many others miss the call here?

More importantly, the clock continues to tick without enough folks in unions and on the side of labor hearing the time pass.  Nothing remains the same forever.  There continues to be a huge opportunity created for the unorganized in Canada in BC Health Services, but we are simply not taking advantage of the big green light saying “Go!”

Maybe if we were, the Court might decide differently.  Under Harper and the Conservatives new members coming on the Court in coming years will not be grinning our way.  Unless we seize the opportunity now, it could be lost forever.

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