Editor’s Note
ABlawg is pleased to announce the launch of our third ebook, which deals with the rights of farm and ranch workers in Alberta. Our ebooks are accessible from a tab at the top of the ABlawg website, and each includes a table of contents with hyperlinks to the collected posts and is fully searchable. The introduction to this ebook is written by Jennifer Koshan. We also thank Evelyn Tang (JD 2016) for her work in producing the ebook.
Introduction: By Jennifer Koshan
Farm and Ranch Workers’ Rights Ebook
This ebook is a compilation of posts written over the last few years concerning the exclusion of farm and ranch workers from Alberta’s employment and labour legislation. The issue is a topical one given the new Alberta government’s passage of Bill 6, the Enhanced Protection for Farm and Ranch Workers Act, as one of its first pieces of legislation in the 29th Legislature, 1st Session (2015). ABlawg posts on the rights of farm and ranch workers were tabled in the legislature during the debate over Bill 6 by the leader of the Alberta Liberals, Dr David Swann (see Hansard, December 7, 2015), who has been a tireless advocate for the rights of these workers. With the passage of Bill 6 on December 10, 2015, most farm and ranch workers will now be included in the Employment Standards Code, RSA 2000 c E-9, Labour Relations Code, RSA 2000 c L-1, Occupational Health and Safety Act, RSA 2000 c O-2, and Workers’ Compensation Act, RSA 2000 c W-15.
The first post in this collection, Who is a Farm Worker? And Why Does it Matter? sets the stage by examining a case considering the exclusion of farm and ranch workers from the Occupational Health and Safety Act. Before the legislative amendments were passed, courts were sometimes required to rule on the scope of the exclusions via interpretation of the relevant legislation. In R v Northern Forage Inc, 2009 ABQB 439, Justice Don Manderscheid concluded that the Occupational Health and Safety Act exclusion of some farm and ranch workers extended to those working in facilities where hay was compressed into bales. He noted that even though “this may not be a desired state of affairs if such situations lend themselves to undermine the intent of workers’ safety and health legislation” (at para 70), “the role of the judiciary is to interpret rather than draft the legislation. This latter role is the sole purview of the Legislature” (at para 71).
The second post relates to a landmark decision from the Supreme Court of Canada on the rights of farm workers, Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016. In a January 2010 post, ABlawg’s Top Cases and Legal Developments from the 2000s, and a Vote for Dunmore, I nominated Dunmore as the top constitutional decision of the 2000s for its recognition that the Canadian Charter of Rights and Freedoms may impose positive obligations on government. In Dunmore, agricultural workers were excluded from labour relations legislation in Ontario when the Conservatives came to power in the 1990s. A constitutional challenge by farm workers was successful, with the Supreme Court finding that freedom of association under section 2(d) of the Charter protects the right not to be excluded from a protective labour relations regime where the exclusion would substantially interfere with the effective exercise of freedom of association. The Court recognized the unique vulnerability of farmworkers as an economically disadvantaged group, often working in isolated settings close to their employers, which meant that they could not form trade associations or have meaningful negotiations with their employers unless they had legislative protection.
Next in this ebook is a series of posts that were produced in a constitutional clinical project at the Faculty of Law in winter 2014, where students explored the feasibility of constitutional challenges to the exclusion of farm and ranch workers from Alberta’s employment and labour legislation. Based on the precedents in Dunmore and subsequent cases, the students concluded that the exclusions violated freedom of association under section 2(d) of the Charter, the right to life, liberty and security of the person under section 7 of the Charter by contributing to the dangerous working conditions faced by many farm and ranch workers, and section 15 equality rights by depriving farm and ranch workers of the protections that most other workers enjoy in Alberta. They also concluded that these violations could not be justified by the government under section 1 of the Charter, as its traditional rationale of protecting the “family farm” was overbroad in light of the fact that many agricultural operations now occur on a large scale in Alberta. The students’ analysis is discussed in the following posts: Kay Turner, Gianna Argento, and Heidi Rolfe, Alberta Farm and Ranch Workers: The Last Frontier of Workplace Protection (examining the Occupational Health and Safety Act); Brynna Takasugi, Delna Contractor and Paul Kennett, The Statutory Exclusion of Farm Workers from the Alberta Labour Relations Code; Nelson Medeiros and Robin McIntyre, The Constitutionality of the Exclusion of Farm Industries under the Alberta Workers’ Compensation Act; and Graham Martinelli and Andrew Lau, Challenging the Farm Work Exclusions in the Employment Standards Code.
I wrote a follow-up post in March 2015, The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta, which argues that the government’s constitutional mandate to include farm workers in labour and employment legislation was strengthened by several Supreme Court of Canada decisions from early 2015: Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (CanLII), Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (CanLII), and Carter v Canada (Attorney General), 2015 SCC 5 (CanLII).
The final post in this ebook, Protection for the Rights of Farm Workers Finally Proposed in Alberta, discusses the repeal of the exclusions of farm and ranch workers by Bill 6, introduced in November, 2015. Bill 6 proved to be very controversial, and amendments were eventually passed which exempted family members and unpaid workers from inclusion in the Occupational Health and Safety Act and Workers’ Compensation Act, as noted in commentary to this post.
While this chapter of the historical exclusion of farm and ranch workers from Alberta legislation may now appear to be over, there is still work for the government to do in developing regulations, policies and procedures under the revised legislation. Groups representing workers will also have work to do in ensuring that the legislation is implemented and enforced.
This ebook is organized chronologically by date of post (with the oldest first). Where appropriate the text also includes any commentary and response received on the individual posts. There is no index to the volume but it is readily searchable in this electronic form using key words and the “find” function in Adobe Acrobat or a similar program. I am responsible for the selection of posts for this ebook, and Evelyn Tang (JD 2016) is responsible for the hard work of putting the ebook together.
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