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On November 17, 2008, the Ontario Court of Appeal unanimously ruled that agricultural workers in Ontario have a constitutional right to bargain collectively with their employers. This decision brought an end to an exclusionary system of labour relations in the Ontario that denied substantive rights to some of the province’s most marginalized workers. However, like virtually all other legal rulings, it did not come without its limitations.
This paper explores the history of Ontario’s labour laws as they relate to agricultural workers, examines the way these laws have been interpreted by the judiciary, provides an overview of the most recent case affirming the right of agricultural workers to bargain, and analyzes the likely effects of the Court of
Appeal’s recent decision. In so doing, it provides commentary on the relationship between the labour movement, human rights and the legal system more generally, and provides specific commentary on this situation as applies to agricultural workers in Ontario.
This paper is informed largely historical institutionalism, an approach which illuminates how political struggle and political actors are influenced by institutional settings (Thelen and Steinmo, 1992; Hall and Taylor, 1996). As such, it analyzes various state and societal institutions which shape how political
actors- in this case the Canadian labour movement- defines their interests and structure their power in relation to that of other groups (Thelen and Steinmo, 1992: 2). The first part of the analysis begins with an overview of the relationship between the Ontario legislature, agricultural workers, and collective bargaining
rights and highlights the struggles of their reliance on the legislature for progressive change. The second part of the analysis is predominantly legalistic and identifies the Charter and the Supreme Court of Canada as central institutions within the Canadian polity. It then examines the relationship between the labour movement and these institutions in recent years. An analysis of this struggle contains important theoretical implications for the labour movement. This study not only highlights both the uses and limitations to the
construction of labour rights as human rights, it also forces a re-evaluation of the increasingly legalistic strategy employed by the labour movement.
In recent years, the Canadian labour movement has focused significant attention on the constructing labour rights as human rights (D. Fudge, 2006; Adams, 2006; NUPGE/UFCW, http://www.labourrights.ca). The notion of labour rights falling under the rubric of human rights builds on the popularity and salience of rights discourse in Canada, and is accelerated by decisions in a number of Charter challenges. As a result, the construction of labour rights as human rights necessitates that the labour movement should actively embrace the Canadian Charter of Rights and Freedoms, International Labour Organization (ILO) decrees and accords, and other human rights codes as tools to further the rights of working people (Adams, 2008). At the same time, the labour movement has been less reliant on its social democratic allies in the New Democratic Party (NDP) and traditional forums such as workplace action and public protests as
vehicles for social change. While these strategies remain, to varying degrees, viable avenues for the labour movement, rights-discourse and Charter-based arguments have become increasingly important. In short, the Canadian legal system, and specifically the Supreme Court of Canada, has been the institution in which labour has fought its most important battles in recent years.