View cases - Stewart McKelvey

[13] The chambers judge, Farley J., heard the application before the judgment of thisCourt in Health Services. He proceeded on the assumption that s. 2(d) did not protect collectivebargaining. He dismissed the application on the ground that the AEPA met the minimumconstitutional requirements necessary to protect the freedom to organize. He began by adoptingthe comments made by Shape J. at the trial level of Dunmore and finding that agriculturalworkers “are ‘poorly paid, face difficult working conditions, have low levels of skills and2011 SCC 20 (CanLII)education, low status and limited employment mobility’” (paras. 23 and 33). But he was of theview that the AEPA did not prevent them from attempting to form employees’ associations. Hestated:There is nothing in the AEPA which would prevent the UFCW or any other unionfrom attempting to organize agricultural workers into an employees’ association,recognizing that such an employees’ association would not thereby automaticallyhave the right to strike nor the right to bargain collectively. See discussion in PeterW. Hogg, Constitutional Law of Canada, looseleaf, vol. 2 (Toronto: Carswell, 1997)at p. 41-5/6 (2002). The AEPA provides that the employees’ association may makerepresentations to an employer concerning the terms and conditions of employment(s. 5 AEPA). These representations may be made by someone who is not a memberof the association (s. 5(2)) so that a “union staffer” could perform that function. Therepresentation may be made orally or in writing (s. 5(5)). One must read s. 5(6) and(7) in a purposive way in context. Thus while the employer need only give theassociation a written acknowledgment that the employer has read the writtenrepresentations (s. 5(7)), it is implicit in the making of an oral representation that therecipient is hearing the oral representations as the employer has a duty to listen andthe association speaker will have the opportunity then and there to enquire whetherthe recipient has heard the representations. As well the concept of listening andreading respectively involves the aspect of comprehending and considering therepresentations. Perhaps unfortunately there is no specific requirement that theemployer respond to the substance of the representations; however, it should benoted that this would then involve the parties in a form of collective bargaining.[para. 19]