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January 2010, Volume 16, Number 1

Canada: Ontario, Maple Leaf

In Canada, labor law is provincial rather than federal. All provinces except Alberta and Ontario cover farm workers under provincial labor relations laws, giving farm workers the right to form or join unions and requiring farm employers to bargain with certified unions. Ontario's Labor Relations Act of 1943, modeled on the US National Labor Relations Act of 1935, excluded farm workers, as did the NLRA.

A case heard by the Supreme Court of Canada on December 17, 2009 may clarify whether provinces may exclude farm workers from union organizing and collective bargaining laws without violating Section 2(d) of Canada's Charter of Rights and Freedoms.

In 1994, Ontario's NDP government removed the exclusion of farm workers from the provincial Labor Relations Act, and the United Food and Commercial Workers was certified to represent about 200 workers at Highline Mushrooms in Leamington. However, in 1995 a new Conservative government repealed the inclusion of farm workers under the LRA, arguing that the biological production process and globally set prices for farm commodities justified the exemption.

Several of Ontario's 80,000 farm workers sued. In Dunmore v. Ontario (2001), the Supreme Court of Canada ruled that Ontario violated Section 2(d) of Canada's Charter by excluding farm workers from the provincial LRA. Ontario responded with an Agricultural Employees Protection Act in 2002 (www.omafra.gov.on.ca/english/busdev/facts/03-045.htm) that protects "the rights of agricultural employees while having regard to the unique characteristics of agriculture." The AEPA ensures basic rights for Ontario farm workers, but does not certify farm worker unions in a way that requires employers to bargain with them.

The United Food and Commercial Workers, Canada's largest private sector union, 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 Supreme Court Fraser v. Ontario 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.

The UFCW's Agricultural Workers Alliance (AWA) operates nine farm worker support centers across Canada.

Temporary Workers. On December 1, 2008, there were 251,235 temporary foreign workers in Canada, almost double the number in 2003; 192,519 foreigners with temporary work permits arrived in 2008, including 66,600 to Ontario.

There are four major programs or streams of temporary foreign workers: the Live-In Caregiver Program; the Seasonal Agricultural Worker Program (SAWP); and programs for high-skilled and low-skilled workers. In each case, Canadian employers begin the admissions process by obtaining a "labor market opinion" from Human Resources and Skills Development Canada that local workers are unavailable to fill vacant jobs despite advertising them on the national Job Bank at least 14 days at the prevailing wage.

Employers won three changes that allowed these guest worker programs to expand. First, maximum work permits were extended from one to two years (eight months for SAWP). Second, foreign workers do not have to leave Canada while their employers seek a new LMO to renew their work permits. Third, in labor-short provinces such as Alberta, LMOs are fast-tracked for "shortage" occupations.

The Toronto Star ran a series of articles on November 2-4, 2009 criticizing Canadian temporary foreign worker programs, alleging that they made it too easy to bring unskilled foreign workers into Canada.

Maple Leaf. Manitoba has been especially aggressive in allowing Maple Leaf Foods, Canada's largest meatpacker, to employ low-skilled temporary foreign workers in its Brandon pork processing plant and nominate them to become immigrants after two years of satisfactory work. Over 70 percent of the 11,200 immigrants in Manitoba in 2008 were provincial nominees, immigrants recommended by provincial governments rather than admitted via the point system (about three-fourths of Canada's provincial nominee immigrants were from Manitoba in 2008).

After six months of work in a year-round job, an employer may nominate a foreign worker for immigrant status under the provincial nominee program.

About 75 percent of the 2,220 workers at Maple Leaf's Brandon plant are migrants who are required to work at least six months for Maple Leaf in order to be recommended for immigrant visas. Maple Leaf, which processes 86,000 hogs a week in Brandon, reported that its turnover rate fell from 80 percent in 2001 when its workforce was mostly local workers to seven percent in 2009 with a mostly migrant work force. The city of Brandon, with about 41,000 residents, is growing as some immigrant workers unify families.

Toronto-based Maple Leaf, which opened the Brandon pork processing plant in 1999, says it spends C$6,000 per migrant to cover recruitment and costs and a month's rent in Brandon. Maple Leaf's Brandon workers are represented by UFCW Local 832, which negotiated a five-year contract in January 2010 that raises wages and requires Maple Leaf to translate the contract and employee handbook into languages spoken by at least 100 employees, currently English, Spanish, Ukrainian and Mandarin, and to provide translators for foreign workers. About 10 percent of Maple Leaf's migrants leave Canada before earning immigrant status.

Critics argue that a bonus of C$6,000 for each local worker who stayed a year would attract local workers.

Unions. Canadian unions had 4.6 million members in 2009; they were 30 percent of Canada's nonfarm employment of 15.4 million. Half of Canadian union members belong to the nine largest unions: the Canadian Union of Public Employees (570,000 members); National Union of Public and General Employees (340,000); United Steelworkers (280,000); United Food and Commercial Workers (245,327); Canadian Auto Workers (225,000); Public Service Alliance of Canada (182,500); Communications, Energy, and Paperworkers Union of Canada (128,564); and Teamsters Canada (108,516).

Wal-Mart Canada in April 2005 closed a store in Jonquiere, Quebec that was unionized in August 2004 by the UFCW, eliminating 200 jobs. The employees sued for reinstatement, and in November 2009, the Supreme Court of Canada ruled 6-3 that, since the store was closed, Wal-Mart Canada did not have to reinstate them; the dissenters wanted a provincial labor commission to determine if the store closing was done for anti-union reasons.

Colleen Cosgrove, "Maple Leaf staff ratify new deal," Winnipeg Free Press, January 6, 2010.


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