Just before Christmas, the Supreme Court of Canada ruled that Ontario legislation denies freedom of association to agricultural workers and ordered the province to remedy the situation. The decision has potentially profound implications, not only for Ontario, but also for all Canadian jurisdictions.

Before last week, Canadian governments interpreted their constitutional responsibility as requiring them to refrain from forbidding any group of workers to organize and bargain collectively. Their position was that, as long as they fulfilled that minimum condition, how they dealt with the situation of any particular group of workers was a matter of political discretion. Left-leaning governments had the right to pass legislation making it easier for workers to organize, but rightwing governments had the right to withhold positive government support. After the Supreme Court’s Dunmore decision, that position is history.

It is commonly believed that those not covered by the major labour-relations acts in the provinces are forbidden to organize and bargain collectively. That’s not true. Those excluded may, and sometimes do, organize despite the lack of government protection.

In a recent report to the International Labour Organization, the federal government was criticized by the International Confederation of Free Trade Unions because, in Canada, there are agricultural workers, domestic workers, architects, dentists, land surveyors, lawyers and doctors who are “excluded from the legal framework protecting trade union rights.” The federal government did not deny the allegation, but it maintained that those workers “are nevertheless entitled to negotiate with their employers on a voluntary basis.” Moreover, said the feds, “such voluntary negotiations routinely take place in Canada, for example, by the Alberta and Ontario Medical Associations which negotiate physicians fees.”

With respect specifically to agricultural workers, the federal government reported that, “no jurisdiction prevents the establishment of, and workers joining, associations designed to further the interests of agricultural workers, and employers can voluntarily recognize and negotiate with such associations.”

After the Dunmore decision, that policy stance is no longer sustainable. Canadian governments, said the court in an 8-1 decision, have a constitutional responsibility positively to ensure that all workers may, without fear of reprisal, exercise their freedom of association. Even though the Ontario legislation did not absolutely forbid agricultural workers from organizing, it was plainly clear to the Supreme Court that its intent and effect was to discourage them from doing so. Instead of guaranteeing workers’ rights, it put them on ice.

The court did not require the Tories to include agricultural workers under the province’s general legislative framework. It simply said that the Ontario government must adopt a policy stance that has both the intent and result of effectively protecting the constitutional right of agricultural workers to organize in their interests.

The decision has potentially profound implications for the way that Canadian governments conceptualize their role in the industrial relations arena. As crystallized in a recent federal government report entitled “Seeking a Balance,” governments see their appropriate role to be that of a kind of referee between the competing interests of established unions and employers for the allegiance of unorganized workers.

Michael Fraser, national director of the United Food and Commercial Workers, challenged Ontario Premier Mike Harris about the implications of this decision for family-farm workers. Harris asserted that the intent of the impugned legislation was to protect the family farm. Fraser, who represents the union that’s most active in organizing Ontario farm workers, said that his organization wasn’t after family farms. It is, instead, interested in organizing large-scale farm factories.

However interesting that discussion may be, it is not to the point. The Supreme Court’s decision says that all Canadian workers have a fundamental right to organize themselves, and that governments have a constitutional duty to protect that right. Whether or not established unions have any interest in particular workers is irrelevant.

Today, everyone would recognize as absurd a government policy that attempted to balance the interests of slaves in freedom against the interests of slave owners in cheap labour. But that issue was the subject of serious debate in the British Empire 200 years ago and in the United States up to the 1860s.

Perhaps after this decision, Canadians will begin to see as equally absurd a government policy that seeks to achieve a balance between the interests of managers in maintaining arbitrary control of enterprise governance (as well as acquiring relatively cheap labour) and those of employees, who are also citizens in a democratic nation, to have some say in fashioning conditions that are critical to their living standards and economic security. It is absurd, after all, for citizens of a democratic state to have, by right, more say in the rules regarding garbage collection than in those that concern their conditions of work.

Roy Adams

Roy J. Adams is Professor Emeritus at McMaster University. He has previously been a regular contributor to contributed regularly to magazines such as Straight Goods, Our Times and the CCPA Monitor as well...