A provincial appeal court has overruled an Ontario law excluding farm workers from collective bargaining.

The United Food and Commercial Workers (UFCW) union, which challenged the five-year-old Agricultural Employees Protection Act last May at the Ontario Court of Appeal, on Monday hailed the court’s ruling that the Act violates workers’ constitutional Charter rights to freedom of association.

Chief Justice Warren Winkler wrote Monday that the court found the act to be “unconstitutional in that it substantially impairs the right of agricultural workers to bargain collectively because it provides no statutory protections for collective bargaining.”

The court will, however, give the province 12 months ” to determine the method of statutorily protecting the rights of agricultural workers to engage in meaningful collective bargaining.”

The court said there’s not just one appropriate response to its decision, and the Ontario government must now “assess the options, taking into account constitutional, labour relations and other factors, and to design a constitutionally acceptable model.”

The UFCW brought last May’s challenge on behalf of three workers at Rol-Land Farms, a mushroom operation at Kingsville, near Windsor. The union said the company’s workers had voted in 2003 to form a UFCW bargaining unit, which then could not be certified because collective bargaining was not an allowed option under the Act.

“Unique characteristics”

The previous Tory government brought in the Act in June 2003, saying it “protects the rights of agricultural employees to associate while recognizing the unique characteristics of agriculture and the family farm.”

“We’re respecting the individual and constitutional rights of agriculture employees, and protecting Ontario’s harvests and food supply from potentially devastating labour disruptions,” then-agriculture minister Helen Johns said at the time.

Ernie Eves’ Tory government said the Act was meant to protect agricultural employees’ rights to “form and join an employees’ association, participate in its lawful activities, assemble and make representations to the employer, free from intimidation, coercion and discrimination.”

The Act did allow for a union to act as an employees’ association, but did not grant an employees’ association or union the right of exclusive representation for a given company’s workers, instead saying farm workers could choose to form or join different associations.

The Act had been passed in the wake of a court challenge by UFCW, after Mike Harris’s Tory government repealed the previous NDP government’s Agricultural Labour Relations Act which granted collective bargaining rights to farm workers.

However, in its decision Monday, the Court of Appeal said the Eves government “made no attempt to engage in a line-drawing exercise to exclude family farms or to tailor a collective bargaining system that recognizes the challenges facing the agricultural sector.”

“Evolving nature”

Monday’s ruling said the Act “fails to recognize the evolving nature of Ontario agriculture,” such as the general trend toward corporate farms and more complex agribusinesses.

“There is no attempt to minimize the impairment by carving out family farms that are allegedly incompatible with a more formal labour relations regime,” the court said.

UFCW “is glad the courts have affirmed that the most vulnerable group of workers in Ontario is entitled to full union representation,” UFCW national president Wayne Hanley said in a release Monday.

“Now it’s time for the McGuinty Ontario government to join the 21st century and end this discriminatory gap in democracy as soon as possible.”

The province had no formal response Monday to the appeal court’s ruling, but the Canadian Press news agency quoted a spokesperson for current provincial Agriculture Minister Leona Dombrowsky as saying the ag ministry and other ministries are now reviewing it.