Quebec Bill Would Require Small Farms to Collectively Bargain

Quebec’s new government wants to ensure that all farm workers have the right to unionize and collectively negotiate working conditions with their employers. Minister of Labour Sam Hamad has introduced Bill 8, An Act to amend the Labour Code with respect to certain employees of farming businesses, which would require small farms to let a union represent their employees.

The Bill would apply to “farming businesses,” which are defined as:

“An enterprise that is operated by a producer within the meaning of subparagraph j of the first paragraph of section 1 of the Farm Producers Act (chapter P-28) and ordinarily and continuously employs fewer than three employees.”

The Bill includes the following key provisions:

• The employer must give an association of employees of the farming business a reasonable opportunity to make representations about the conditions of employment of its members
• Considerations relevant in determining whether a reasonable opportunity has been given include the following:

• The timing of the representations relative to concerns that may arise in running a farming business, such as planting and harvesting days, weather conditions, animal health and safety and plant health
• The frequency and repetitiveness of the representations
• An association of employees may make its representations verbally or in writing
• Diligence and good faith must govern the parties’ conduct at every stage of discussions between the association of employees and the employer
• The employer or the owner of an agricultural operation is required to allow any representative of an association of employees holding a permit issued by the Commission des normes du travail, in accordance with the regulation made for that purpose under section 138, to enter and have access to the place where employees are living
• An association of employees, an employer or an employers’ association that believes that a right conferred by this chapter has not been respected may file a complaint with the commission

This is an important step towards full recognition of the freedom of association of migrant farm workers. This Bill is also in line with a judgment of the Quebec Superior Court rendered March 11, 2013 that invalidated a provision of the Quebec Labour Code restricting access to unionization in small family farms.

Brief commentary on Quebec’s Superior Court judgment rendered March 11, 2013

In March 11, 2013, based on a decision by the Québec Superior Court, farm workers, those employed on small farms in Québec, won the right to bargain collectively. The ruling by Justice Thomas M. Davis found that Section 21 (5) of the Québec Labour Code, which stipulates that agricultural workers are excluded from collective bargaining on farms that have three employees or less working on a year-round basis, is constitutionally invalid.

The decision stems from a Charter challenge by the United Food and Commercial Workers (UFCW) Canada filed at the Québec Labour Commission in July 2008 where it was seeking certification of a bargaining unit constituted exclusively of migrant workers from Mexico. UFCW Canada argued the section of the Code violated freedom of association rights under both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms because it denies agricultural workers employed on farms that have three or less employees, the right to join a union and bargain successfully. The challenge also argued the legislation violated the equality section (15) of the Canadian Charter in that it was discriminatory towards farm workers, and particularly, migrant workers. Section 15 of the Charter provides that individuals have “the right to the equal protection and equal benefit of the law without discrimination”.

Justice Davis ruled that,

“in relationship to agricultural workers who work on farms which ordinarily and continuously employ less than three workers, Section 21 of the Code is discriminatory as being a significant hindrance on their ability to exercise their fundamental right of freedom of association.”

However, Justice Davis upheld the Commission’s decision to rule against UFCW Canada’s Charter Section 15 argument, ruling

“any differences in treatment does not arise as a result of their status as migrant workers, but rather as a result of the nature of the industry in which they work.”

Following this judgment, the Quebec government had a year to make changes to the Quebec Labour Code; instead the government decided to render inoperative section 21 (5). And this year, proceeded to introduce in Bill 8 special provisions into the Quebec Labour Code for employees of farming businesses that ordinarily and continuously employ fewer than three employees.