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Farm workers are generally excluded from provincial labor relations laws in Canada, but this exclusion may disappear as unions argue in court that excluding migrants violates an implied right in Section 2(d) of Canada's Charter of Rights and Freedoms to organize and bargain collectively. A case scheduled to be heard by the Supreme Court of Canada in December 2009 may clarify whether provinces may exclude farm workers from union organizing and collective bargaining laws.

In 1994, the provincial government of Ontario lifted the exclusion of farm workers from the provincial Labor Relations Act. A year later, a new government came to power and reversed the inclusion of farm workers under the LRA, arguing that a biological production process and globally set prices for farm commodities justified the exemption.

Several farm workers sued, and in Dunmore v. Ontario (2001), the Supreme Court of Canada ruled that Ontario violated Section 2(d) of Canada's Charter by eliminating the right of farm workers to form unions and bargain. Ontario responded with an Agricultural Employees Protection Act in 2002 (www.omafra.gov.on.ca/english/busdev/facts/03-045.htm), which protects "the rights of agricultural employees while having regard to the unique characteristics of agriculture."

The UFCW sued, arguing that the AEPA was unconstitutional because it did not require farm employers to bargain with the associations that the AEPA allowed farm workers to form. The December 2009 case deals with the constitutionality of AEPA? the Supreme Court is to decide if provinces can make laws excluding some types of workers from provincial labor relations laws.

SAWP. The United Food and Commercial Workers, Canada's largest union with 250,000 members, was certified to represent Mexican workers admitted under the Mexico-Canada Seasonal Agricultural Workers Program (SAWP) at Mayfair Farms in Portage La Prairie, Manitoba on June 26, 2007. Just after the vote, some of the Mexican workers asked that the vote be nullified on the grounds that they did not understand that they were voting for union representation. However, the Manitoba Labor Board ruled that there could be no decertification vote for a year.

The UFCW and Mayfair signed a three-year agreement in summer 2008 that linked future wage increases to the provincial minimum wage and provided a C$1 an hour overtime premium for work done after 70 hours a week. On June 25, 2009, Mayfair workers voted 26-0 to decertify UFCW Local 328, and the Manitoba Labor Board revoked the UFCW's certification in July 2009.

Workers complained that the UFCW had negotiated a C$0.15 an hour raise, but charged them $4 a week in union dues. Others said that they wanted to work 12 to 14 hour days and over 100 hours a week, and complained that Mayfair did not allow more than 70 hours of work a week to avoid the overtime pay.

Migrant advocates say that, just before the vote, the Mexican consul held a closed door meeting with Mayfair workers and threatened to blacklist them if they did not vote to decertify the UFCW. About 70 percent of the 12,300 Mexicans in the SAWP in 2009 were employed in previous years.

One report said that SAWP workers at a British Columbia farm also voted to decertify their union, while SAWP workers at 13 other Canadian farms voted for union representation.

In September 2009, UFCW Local 1518 negotiated a three-year agreement with Floralia Growers, which employs primarily Mexicans admitted under the SAWP in British Columbia. Under the contract, the minimum wage paid to Canadian workers will rise from C$8 to the $9.09 that must be paid to SAWP workers, and be above the SAWP rate by $0.10 in the first year of the contract.

Unauthorized. Orchard Park Growers was fined C$5,000 in August 2009 after two unauthorized workers were apprehended June 23, 2009. Orchard Park said it obtained the two workers from a temp agency that provided workers compensation insurance and GST numbers and assumed the workers were legal; the agency was not charged.

The two workers had been admitted legally under the Low Skilled Worker Program, but had abandoned the employer to whom they were assigned. Under the LSWP, employers can recruit workers in any country, and foreign workers can remain in Canada up to two years, compared to a maximum eight months under the SAWP. Employers do not have to provide housing to LSWP migrants, but must pay their round-trip travel costs.

In 2009, Ontario-based FARMS brought 16,360 workers to Canada under SAWP, and 212 workers to Canada under the LSWP.

Guatemalans. The number of Guatemalan farm workers employed three to eight months in Quebec rose from 860 in 1995 to 6,627 in 2008. Ren‚ Mantha, head of FERME, an organization of 450 farm employers and a travel agency, said up to 10 migrants a year were terminated for poor work performance and returned to Guatemala before the end of their contracts. Advocates say far more workers are sent home, but their cases are classified as voluntary departures.

Canadian farmers had about 290,000 acres of fruit and 240,000 acres of vegetables in 2008. Most of the major fruits, including apples, blueberries and grapes, are processed, while most of the vegetables are sold in the fresh market. Minimum wages vary by province. Ontario's minimum wage of C$9.50 an hour is scheduled to rise to C$10.25 an hour on March 31, 2010.