The exclusion of migrant workers from Quebec’s collective bargaining scheme is unconstitutional, the Quebec Superior Court ruled this week.
The decision struck down s. 21 para 5 of the Quebec Labour Code which provided that farm employees would only be considered employees for the purposes of union certification if at least “three of such persons are ordinarily and continuously so employed.” This provision excluded migrant farm workers from the labour relations scheme if they did not work on a farm with at least three continuously employed workers.
The case arose when six migrant workers from Mexico and the UFCW attempted to unionize a Quebec farm. They were only employed eight months of the year, both because of the seasonal nature of the work and because of restrictions in the migrant worker program.
Union certification was initially refused because there were no ordinary and continuous employees on the farm – locals were only hired on a day-to-day basis and the other workers were family members.
The case went to a hearing before the Commission des relations de travail, which certified the union after striking out the provision as a violation of the workers’ right to freedom of association under the Canadian and Quebec Charters. It rejected the argument that the exclusion of migrant farm workers violated their equality rights.
The case reached the Superior Court in a motion for judicial review, which upheld the Commission’s decision on freedom of association, equality and justification. Relying on the Supreme Court of Canada’s decision in Ontario v Fraser, the court determined that the legislation in Quebec was distinct from that upheld in the Ontario case.
Under Quebec law before the decision, farm workers could join a union and receive the protection of the Labour Code’s prohibition on unfair labour practices, but didn’t have access to the Code’s regime of collective bargaining. The Ontario law also excluded agricultural workers from the general regime, but provided an alternative regime by which employees could collectively present their position – the Quebec law did not.
The Commission decision found that the employer had no intention of bargaining in good faith, and the court agreed that finding could be supported on the evidence.
Even though the Quebec provisions allowed some farm workers to access the general labour regime, the exclusion was still unconstitutional.
“The requirement that farm workers may only be organized if they are employed on farms that “ordinarily and continuously” employ three or more employees means that, under the current legislative regime, the employees of many of these farms will never be able to benefit from their right to free association and the right to collective bargaining…The seasonal nature of production means that a vast number of these farms, while they ordinarily employ many more than three employees, do not do so on a continuous basis.” [para 124]
The court upheld the certification of the union, but suspended the general declaration of invalidity for one year.
L’Écuyer c. Côté, 2013 QCCS 973 (available in English)