Labour Issues Coordinating Committee 45 Speedvale Avenue East, Unit 7 Guelph, Ontario, N1H 1J2 T: 519 836-5495 ext 227 105-355 Elmira Road North, Guelph, ON, N1K 1S5 E: [email protected] T: 519-763-6160 E: [email protected] February 26, 2018 Hon. Patty Hajdu, Minister of Employment Workforce Development and Labour House of Commons Ottawa, Ontario, Canada, K1A 0A6 Dear Hon. Patty Hajdu: Re: Educating Seasonal Agricultural Worker Program workers on legislated rights Training farm workers about their legislated rights has been identified by the federal government as a focus area. As farm employers, we agree with the principle of training workers on their rights. However, we feel very strongly that this training, particularly for workers on the Seasonal Agricultural Worker Program (SAWP), should be presented in an unbiased, neutral fashion, and not delivered by representatives from organized labour and other special interest groups. Those organizations have no direct role in our agricultural workplaces or in the administration of legislation. Past experience has proven that confrontational approaches and provocative claims based on selective truths are not constructive and should not be part of a training program for workers on their legislative rights. The attached background document demonstrates our concern with this approach. It is our recommendation that a cooperative approach involving employers, appropriate government agencies, worker consulates and workers could enhance the current training structure, which has proven to be successful over many decades. Language, cultural influences, and varying literacy levels are already accommodated for under the current structure; flexibility in training techniques and location are a must. We look forward to meeting with you to develop a cooperative approach to moving forward on this issue. Sincerely, Ken Linington Alison Robertson Policy Advisor, LICC Executive Director, OFVGA Cc: Rt. Hon. Justin Trudeau, Prime Minister of Canada Hon. Lawrence MacAulay, Minister of Agriculture and Agri-Food Hon. Jean-Yves Duclos, Minister of Families, Children and Social Development Hon. William Francis Morneau, Minister of Finance BACKGROUND Ontario Labour Relations Act/Wagner Act Ontario’s Labour Relations Act was established in the early 1940s. It mirrors the Wagner Act in the United States that was developed during World War II to resolve labour problems in manufacturing i.e. Ford Motor Company. The Act is highly confrontational; its main drawback is the loss of time and associated financial burden. It is significant that the International Labour Organization of the United Nations does not support or recommend the Wagner Model of collective bargaining because it is so confrontational and costly. The Wagner model is used only in Canada and the United States. Ontario’s Labour Relations Act was designed to balance the power between the employer and the worker in the workplace. The unique circumstances found in farming would swing the balance of power in favour of the worker. The unique circumstances include: i) care and maintenance of biological processes; ii) unpredictable impact of climatic and environmental conditions; iii) the seasonality of the industry; iv) need for a flexible management style; v) the family orientation of the business; v) functioning in a global market. As a result, farm workers were exempt from the Act. The provincial NDP government of Bob Rae (1990) made an ideological decision to remove the farming exemption but there was no ground swell of farm workers demanding change. The NDP government acknowledged the vulnerability of farm employers to strikes and developed the Agricultural Labour Relations Act (ALRA). The ALRA prohibited strikes and lockouts in favour of final offer arbitration. Labour Issues Coordinating Committee (LICC) The Labour Issues Coordinating Committee (LICC) is a coalition of agricultural commodity and farm organizations representing the interests of Ontario farm employers. It was formed in 1991 to develop consensus in the farm employer community on employment and labour-related issues, and to represent their collective positions to government. United Food and Commercial Workers International Union (UFCW) After the United Farm Workers Union of Cesar Chavez in California gained popularity in the 70s, the UFCW focused on farm workers in Ontario. They were ineffective until the NDP started to negotiate with farmers (LICC) around the ALRA. Union leadership threatened the lives of farm negotiators and their families if they did not support the development of the ALRA. Just as the union started to develop certification campaigns in the hatchery and mushroom commodities, the Rae government fell. The Conservative government of Mike Harris repealed the ALRA and re-instituted the exemption of farm workers in the LRA. The UFCW challenged the Ontario law, claiming it did not comply with the Charter of Rights and Freedoms. The case, named after a farm worker (Tom Dunmore), ultimately made it to the Supreme Court of Canada. Dunmore Ruling The court felt the total exclusion from all aspects of the LRA did prevent workers from their “rights of association”, but it did not remove the exclusion from the collective bargaining regime found in the Act. The Rights of Association are not limited to just the collective bargaining model found in the LRA. The Court gave the Ontario government 18 months to remedy the concern. Evidence placed before the court by the UFCW did not withstand scrutiny. James White and Associates prepared an extensive document claiming farm owners were getting extremely wealthy off the backs of poorly paid workers. Under the discovery process it was clear that the White report did not use Generally Accepted Accounting Principles. White delivered the report that he was contracted to deliver. Agricultural Employees Protection Act 2002 (AEPA) Farm workers’ collective interests are protected by the AEPA. It reflects the Rights of Association found in the Charter. Some other key differences include: i) no duty to bargain; ii) no exclusive representation; iii) different dispute resolution mechanism (no strikes/lockouts, no grievance structure). The AEPA went beyond the Charter requirements by offering: a) an obligation on the employer to listen/respond to workers concerns; b) a dispute resolution structure; c) the burden of proof on the employer in claims of discrimination; and d) granting union organizers access to private farm property where workers are resident. The AEPA reflects a European model to labour relations/collective bargaining which is viewed as the international norm. Rol-Land Farms and Fraser cases The UFCW went to three farms and tried to organize workers under the LRA when they clearly knew farm workers were exempt. All three farms appealed the attempt. The UFCW (Fraser Case named after the president of the UFCW Canada) then challenged the Ontario government, claiming the AEPA did not comply with the Canadian Charter of Rights and Freedoms. The Ontario Superior court supported the government's position, arguing the union did not try to function under the AEPA. The Rol-Land Farms case was an attempt to reinstate workers who were viewed as union supporters. The Rol-Land Case went before the dispute resolution structure (OMAFRA Agricultural Tribunal). Before the employer’s perspective was heard, the union claimed the tribunal was biased because it used the Attorney General’s expertise. The union challenged the authority of the tribunal before Divisional Court. They then withdrew from the case. In 2011, the Supreme Court of Canada ruled (Fraser Case) that the AEPA complied with the Charter. It was clear that the Charter does not identify a specific model (LRA) to obtain the Rights of Association found with the Charter. MedReleaf Case UFCW attempted a certification vote of a marijuana growing operation. The vote failed, so they went to the Ontario Labour Relations Board claiming unfair labour practices by the employer. The OLRB stated that growing marijuana was farming (not medical workers) and that they had no jurisdiction in the case. UFCW then took their concerns to the OMAFRA Agricultural Tribunal arguing that the tribunal and the AEPA did not comply with the Charter of Rights and Freedoms. The case remains before the tribunal. Other There are countless examples where unions and related special interest groups deliver misinformation and false claims about employers, governments and workers to advance their interests. Some of those examples include: Hampstead fatalities March 2012—a sad traffic accident involving foreign nationals El Contrato documentary 2003—filming was done under false pretense and no investigative journalism to show the perspective of other stakeholders Tigchelaar Berry Farm—claims of farmers having power to deport workers and compared the farm to the Holocaust in Germany during the Second World War. Gender Discrimination—claims before the Human Rights Commission without permission of the worker Migrant Dreams documentary 2016—lots of accusations but business and employer names blurred. Employer perspective, government administrators perspective and worker consulate perspectives where not included. OHCOW Brock Health Conference 2017—OHCOW Board of Directors dominated by organized labour Summary Farm employers want to work within the laws of the country, and support the concept that workers should be trained on their legislative rights. Employers would participate in a cooperative approach involving appropriate government