newsletter case & comment: Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada et al. v Attorney General ntario. John Bartolomeo 1 * Farm workers have been of interest to our Clinic 1 hence our interest in this case: What does it mean to effectively have the freedom of association? Is it enough to be able to form an association or a union? Three farm workers and their union, the United Food and Commercial Workers Union Canada, went to Court to have those questions answered. In Fraser v. ntario 2345, the Court of Appeal ruled on the constitutionality of the Agricultural Employees Protection Act, 2002 6. The AEPA provided farm workers with some protections similar to those found in the Labour Relations Act, 1995 7 but did not grant the right to collectively bargain. The Court ruled that the AEPA did infringe on the freedom of association and it was not a reasonable limit. This recent decision of the ntario Court of Appeal is hopefully the final chapter in the push to allow farm workers in the province of ntario to use collective bargaining as a means to protect their interests. This appeal was not the first decision to consider the rights of farm workers. In reaching their decision, the Court first examined past cases that led to this point. A Supreme Court of Canada 8 case, Dunmore v. ntario 9, determined that the complete exclusion of farm workers from the Labour Relations Act was a violation of the freedom of association. The Supreme Court set out that legislation had to protect the worker s freedom to organise. This led to the enactment of the aforementioned AEPA. The Government did not grant farm workers all of the protections found in the Labour Relations Act. Instead, the Government sought to provide the bare minimum requirements found in the Dunmore decision. While the AEPA did allow for the creation of an employee s association with the right to bargain, the Court was more concerned with what the AEPA did not allow. The in this issue: page case & comment:fraser v AG nt. 1 AGM 28 3 Clinic s new website. 3 Who are we Clinic personnel & 4 volunteers -- & new staff. in the press EU REACH 4 in the press tinnitus. 4 in the press to Trial on 5 Asbestos Poisoning in the press Explosion at Mine 5 China in the press China Migrants 5 Flock From Coast. protective eyewear. 5 MISSIN STATEMENT 6 Springhill -- 1891. 6 notes. 7 for future issues. 8 publication data. 8 Clinic s AGM -- 28 April 2009 -- see page 3. Clinic s new website see page 3. 1
Court noted that the AEPA did not impose an obligation to bargain with the employee s association. There was also no dispute resolution or grievance procedure, and there was no opportunity for multiple associations within the same workplace. Another significant case that the Court considered was Health Services and Support Facilities Subsector Bargaining Association v. British Columbia 10. In this case the Supreme Court concluded that s. 2(d) protects members of labour unions to engage in collective bargaining and that if the government substantially interferes with that right, it is a violation of the Charter of the Rights. The decision also described collective bargaining as a fundamental aspect of Canadian society. The Court of Appeal s analysis of Dunmore and BC Health Services was that meaningful collective bargaining was a Charter right. In certain circumstances, government may be obliged to protect the rights and freedoms of vulnerable groups. The Court ruled that the Charter does not protect workers against all interferences with the freedom of association, only substantial interferences with that right. To be substantial it must seriously undercut or undermine the protected right. The Court did not totally accept the Appellants position but did accept that the legislation did seriously undercut the worker s right to collective bargaining. To make that determination, the Court examined the effect of the legislation. The Court agreed that farm workers were a vulnerable group in need of protection. It was noted that when the Union tried to negotiate with the employer and the employer refused, there was no remedy under the AEPA. Certain protections were required to bargain in a meaningful way, (1) a statutory duty to bargain in good faith; (2) statutory recognition of the principles of exclusivity and majoritarianism; and (3) a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements. 11 If there is no duty to bargain in good faith, then the right of association is not truly protected. Further, if there was no method to resolve disputes, then the rights have no real force for vulnerable workers. The Government argued that the violation of the freedom of association was a reasonable limit but the Court rejected that argument. Commonly referred to as the akes test, in order to be successful, the Government had to show that there was a pressing a substantial objective to limit the right, that the limit was proportional in response, that there was a rational connection to the objective, and that there was proportiality between the effect and objective. With the Government emphasising the need to protect family farms and their financial wellbeing, the Court determined that the impairment went beyond minimal by excluding all farm workers and that the objective would not be met since other industries have collective bargaining and have such thin financial margins. As such, the legislation was not a reasonable limit on farm workers. The end result is that the Court struck down the Act but gave the Government one year to remedy the breach by providing sufficient protection to farm workers that would allow them to effectively bargain collectively. Although the AEPA granted farm workers the right to form an association, it wasn t enough. To have an association that protects its members, it must be able to negotiate in good faith with employers and that there is a mechanism to resolve disputes. Pending review by the Supreme Court of Canada, this decision is a victory for the rights of farm workers to organise and bargain with employers in a substantive fashion. 2
1* TRNT WRKERS HEALTH & SAFETY LEGAL CLINIC ANNUAL GENERAL MEETING 28 * at Metro Hall, 7pm., 55 John Street (southeast corner, King St. W. & John St.; west of University Ave.; east of Spadina Ave), 3 rd Floor. 1. Last AGM minutes. 2. Annual Report. 3. Financial Report; appointment of auditor. 4. Election of new Board members & thanks to previous. 5. Tribute to Daniel Ublansky. 6. Guest: Dr. Brian Gibson, Lakeshore Area Multiservice Project, is to speak on the role of an occupational health physician (LAMP is a community-based occupational health program offering medical assessments, hazard information and educational programs). Refreshments -- All welcome -- Please Post. 2* Clinic s new website.* Readers should have noticed that the Clinic s previous website, that needed renewal anyhow, fell into disuse last summer, 2008. Although more work is needed, our new website is ready for presentation (since March 2009): 3
Who are we -- Clinic personnel & volunteers -- & new staff. Linda Vannucci 3 * Since 1988, the Clinic has maintained four permanent staff positions: Lawyer/Director, ffice Manager, Staff Lawyer and Community Legal Worker. There is also a part-time employee. Lawyer / Director Linda Vannucci 1 came to the Clinic after being called to the Bar in 1988. Prior to attending law school she was a Community Legal Worker for five years at York Community Services. Sandra Huyskens 2 has been with the Clinic since 1991. As ffice Manager and sole support staff, she has a background in desktop publishing and administrative work. The Clinic s Community Legal Worker, Carl Kaufman, 3 is a health and safety adult educator and worked in the union movement as well for many years. He has been with the Clinic since 1997. ur newest member, Staff Lawyer John Bartolomeo, 4 was called to the Bar in 2002 and has worked at the Workplace Safety and Insurance Appeal Tribunal in the Tribunal Counsel ffice. He has worked as well in private practice. The Clinic has one parttime temporary employee, Alexis Pastuch, a past volunteer from the Legal Administration/Law Clerk program at Durham College. She assists on the Clinic s Coroners Inquest Database Project, is currently coordinating the reorganization of the Clinic library, and has her own business Alexibility with a website 5 that links disabled people with accessible establishments. in the press 1 * MIn the European Union there is a new regime for the regulation of chemicals coming into practice -- readers may be interested in an article in CHEMICAL & ENGINEERING NEWS, published by the AMERICAN CHEMICAL SCIETY, Washington, D.C. : CHEMICAL PLAN LIMPS T ITS NEXT PHASE / Problems with preregistration required by THE EU S REACH foreshadow what s in store for registration. 1 M hearing loss accompanying tinnitus is now the No. 1 cause of disability among [US] veterans of the conflicts in Afghanistan and Iraq 2 it had been easy to tell which soldiers weren t wearing their ear plugs. They were the ones saying, What? What? 3 : readers may be interested in an article in THE NEW YRKER. 4
M Ex-[W.R.] Grace [& Company] fficials / to Trial [on criminal charges] on a [Montana] Town s Asbestos Poisoning 4 : readers may be interested in an article in The New York Times. M Explosion at Mine in Northern China Kills at Least 74 5 : readers may be interested in an article in The New York Times. M The previous issue of this newsletter included an item that touched on migrant labour issues in China. 6 Readers may be interested in an article in The New York Times China Fears Rural Tremors as Migrants Flock From Coast. 78 protective eyewear. M. Grossman 1 * In January, Tory acceptance of Liberal demands to amend the new federal budget allowed the Prime Minister s minority government to stay in power for a while more. 1 Around that time, and presumably somehow related to extolling the benefits of his budget, Stephen Harper was pictured 2 with a nail gun 3 at a home renovation site. To see the photo: 4 5 Such photo-ops are common for Members of Parliament plying their own political trade and no one would confuse Mr. Harper with a carpenter or an actual renovation worker. And, in any event, his status under the Canada Labour Code, 6 or the ntario ccupational Health & Safety Act, 78 is unknowable from the photo. But, the Prime Minister s advisors might have given him some protective eyewear. 910 While photo-ops turning into political gotchya 1112 can be fun, protective eyewear at work is also a serious issue. 1314 If the Prime Minister is going to be featured, his advisors should make sure he gets it right on his watch, whatever the collateral politics. But the Prime Minister shouldn t be faulted too much for a single occurrence at an ttawa site where he wasn t likely doing any real nailing anyhow. The imagery is important, but there was the benefit of the gotchya criticism. However, there is a more persistent example of protective eyewear failure and imagery here in Toronto at a public school. n the website of a Toronto District School Board school, 15 there is a chemistry lab wherein students do not have protective eyewear. This photo has appeared for years. Not only is it seriously politically incorrect amongst chemists to be shown in lab photos without their protective eyewear, it is also actually unnecessarily going in harm s way. 1617181920212223 Not only should students be kept out of harm s way in the lab, but it is also an important educational practice. 2425 It is also good legal advice. 26 Students pictured in a lab without protective eyewear suggests that the TDSB doesn t quite know what it is doing. To compare some photos: 27 28 5
MISSIN STATEMENT* AThe Toronto Workers' Health and Safety Legal Clinic is a community-based legal aid clinic funded by Legal Aid ntario. The Clinic is committed to the promotion of safe and healthy workplaces throughout ntario with a particular focus on the unorganized 12 sector of the workforce. We seek to do this by providing information on hazards in the workplace and legal advice and representation to unorganized workers attempting to improve conditions in their individual workplaces. In addition, we provide representation to unorganized workers who have been penalized for exercising their rights to a safe and healthy workplace. n a broader scale, we work, both independently and with other like-minded groups, agencies and organizations to promote the enactment of improved standards, regulations and laws affecting workplace health and safety and the development of enforcement policies by government which ensure compliance with these standards, etc.@ Mine Disaster Springhill, Nova Scotia, 21 February 1891.* 1 RESCUING PARTY IN THE MINE. 6
INTERIR F CARPENTERS SHP, USED AS A MRGUE. 1 NTES: 1 1*Fraser v AG ntario. pinions expressed here are the writer s, and are not necessarily of the Clinic; he may be contacted: bartolj@lao.on.ca. 1 See in this newsletter The Struggle to Improve Working Conditions for Migrant Workers in ntario, July 2008, Vol.16, No.3, page 1; & April 2008, Vol.16 No.2, page 11. 2 2008 NCA 222 (CanLII). 3 Fraser v AG ntario, ntario Court of Appeal, 92 ntario Reports, (3d) Part 7, 16 January 2008, pages 481 513. 4 http://www.ontariocourts.on.ca/en/ http://www.ontariocourts.on.ca/coa/en/ 5http://www.canlii.org/en/on/onca/doc/2008/2008onca76 0/2008onca760.html 6 S.. 2002, c. 16 [ hereinafter AEPA ]. 7 S.. 1995, c. 1, Sched. A. 8 http://scc.lexum.umontreal.ca/en/index.html 9 [2001] 3 S.C.R. 1016. 10 [2007] 2 S.C.R. 391 [hereinafter B.C. Health Services ]. 11 At para. 80. 1* AGM 2* Clinic s new website. 3* Who are we profiles of Clinic personnel & volunteers -- The writer is the Clinic s lawyer / director. She may be contacted: vannucl@lao.on.ca 1 vannucl@lao.on.ca 2 huyskens@lao.on.ca 3 kaufmanc@lao.on.ca 4 bartolj@lao.on.ca 5 http://www.alexibility.com/ 1* in the press 1 EU REACH -- see Patricia L. Short, C&EN, London, CHEMICAL PLAN LIMPS T ITS NEXT PHASE / Problems with preregistration required by THE EU S REACH foreshadow what s in store for registration, CHEMICAL & ENGINEERING NEWS, published by the AMERICAN CHEMICAL SCIETY, Washington, D.C., 20036; Volume 86, Number 49, 08 December 2008, pages 20 22. WWW.CEN-NLINE.RG. 2 tinnitus -- from Jerome Groopman, A RINGING IN YUR EARS / MEDICAL DISPACH / THAT BUZZING SUND / The mystery of tinnitus, THE NEW YRKER, 09 & 16 February 2009, pages 42 49; at page 47, first column. www.newyorker.com. 3 -- at page 48, third column. 4 to Trial on Asbestos Poisoning -- see: Kirk Johnson, Ex-[W.R.] Grace [& Company] fficials on Trial [on criminal charges] in Asbestos Poisoning / Ex-Grace fficials Go to Trial Today in a [Montana] Town s Asbestos Poisoning, The New York Times, 19 February 2009, pages A1 & A13. 5 Explosion at Mine -- see: Edward Wong, Explosion at Mine in Northern China Kills at Least 74, The New York Times, 23 February 2009, page A8. 6 February 2009, Vol.17 No.1, page 2, Clinic hosts Chinese Delegation. 7 China Fears Rural -- see: Andrew Jacobs, China Fears Rural Tremors as Migrants Flock From Coast, The New York Times, 23 February 2009, pages A5 & A8. 7 8 see also: David Barboza, A Textile Capital of China Is Hobbled by a Downturn Gone Global / That Is Ignoring Borders, The New York Times, 28 February 2009, pages B1 & B5. 1*protective eyewear. pinions here are the writer s who may be contacted: d441267@yahoo.ca ; & are not necessarily of the Clinic. 1 Campbell Clark & Jane Taber, tawa, Ignatieff okays budget, with conditions / Tories agree to provide fiscal reports subject to confidence votes; NDP, Bloc, forced to concede coalition is dead, The Globe and Mail, Thursday 29 January 2009, page A8. 2 Chris Wattie, [photo caption]: Prime Minister Stephen Harper uses a nail gun while touring a home undergoing renovations in ttawa yesterday. CHRIS WATTIE / REUTERS, The Globe and Mail, Thursday 29 January 2009, page A8. 3 -- apparently, from the photo, a Porter-Cable FN250B 3/4- Inch to 2-1/2-Inch 16-Gauge Finish Nailer; or similar. http://www.nail-guns.org/ http://www.nail-guns.org/portercablefn250b.html 4 Harper promotes tax credits...and unsafe work conditions, CANADIAN ASSCIATIN F INCME TRUST INVESTRS WEBLG, 29 January 2009. http://caiti-online.blogspot.com/2009/01/harper-promotestax-creditsand-unsafe.html 5 Chris Wattie, [photo caption]: Prime Minister Stephen Harper uses a nail gun while touring a home undergoing renovations in ttawa yesterday. CHRIS WATTIE / REUTERS, The Globe and Mail, Thursday 29 January 2009, page A8. 6 http://laws.justice.gc.ca/en/index.html http://laws.justice.gc.ca/en/showfulldoc/cs/l- 2//20090327/en?command=home&caller=SI&search_type=a ll&shorttitle=canada%20labour%20code&day=27&month= 3&year=2009&search_domain=cs&showall=L&statuteyear=a ll&lengthannual=50&length=50 7 http://www.e-laws.gov.on.ca/navigation?file=home&lang=en http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_910213_e.htm
8 ccupational Health and Safety Act NTARI REGULATIN 213/91 CNSTRUCTIN PRJECTS PART II GENERAL CNSTRUCTIN APPLICATIN 20. This Part applies with respect to all projects. PRTECTIVE CLTHING, EQUIPMENT AND DEVICES 21. (1) A worker shall wear such protective clothing and use such personal protective equipment or devices as are necessary to protect the worker against the hazards to which the worker may be exposed. (2) A worker s employer shall require the worker to comply with subsection (1). (3) A worker required to wear protective clothing or use personal protective equipment or devices shall be adequately instructed and trained in the care and use of the clothing, equipment or device before wearing or using it. 24. A worker shall use protection appropriate in the circumstances when there is a risk of eye injury to the worker. 9 Canada ccupational Safety and Health Regulations, SR/86-304, Part XII, s.12.6 (Canada Labour Code C Part II) http://laws.justice.gc.ca/en/l-2/sr-86-304/29634.html 10 Regulations for Industrial Establishments, RR 1990, Reg.851, s.81. (ccupational Health and Safety Act, RS 1990, c..1, as amended). http://www.e-laws.gov.on.ca/tocregs_e.asp?lang=en http://192.75.156.68/dblaws/regs/english/900851_e.htm 11 John Grundy, akville, ntario, [letter to the editor], Nailed and hammered, [photo caption]: MIA: safety glasses. REUTERS, The Globe and Mail, Friday 30 January 2009, page A12. 12 Harper promotes tax credits...and unsafe work conditions, CANADIAN ASSCIATIN F INCME TRUST INVESTRS WEBLG, 29 January 2009. http://caiti-online.blogspot.com/2009/01/harper-promotestax-creditsand-unsafe.html 13 http://www.nail-guns.org/safety.html Yes nail guns are highly versatile for any tool job and have replaced the traditional hammer mostly; still there are certain safety measures which everyone from professionals to amateurs should follow to avoid injuries while using their power nailers. Happy nailing.... 6) Wear your safety glasses or face shield. Not only can the nail gun send errant nails your way, but the force of the nailing operating can splinter the substrate as well.... 14 Nail-gun injuries rise 200 per cent since 1991, U.S. report finds CBC News Last Updated: Thursday, April 12, 2007 3:35 PM ET # http://www.cbc.ca/consumer/story/2007/04/12/nailgun.html?ref=rss 15http://schools.tdsb.on.ca/robertborden/academic.htm 16 M.-A. Amour, "Safety in the School Laboratory", Canadian Chemical News, Sept. 1987, pages 21-23. 17 [1998] 29CFR1910.1450 -- s. 1910.1450 -- ccupational exposure to hazardous chemicals in laboratories. 18 [2000] 40CFR156.212 -- s.156.212 -- Personal protective equipment statements. 19http://www.access.gpo.gov/nara/cfr/index.html 20 Canadian Standards Association CSA Standard CAN/CSA-Z94.3-92, Industrial Eye and Face Protectors. www.csa.ca 21 American National Standards Institute ANSI Standard Z87.1-1989, Practice for ccupational and Educational Eye and Face Protection. http://www.ansi.org/ 22 CSA Z94.3-07 23 Lab Safety Supply Inc., Janesville, Wisconsin, 53547-1368. www.labsafety.com http://www.labsafety.com/store/dept.asp?dept_id=623 24 American Chemical Society. Kevin MacDermott, "NATINAL CHEMISTRY WEEK / NCW '99: GREAT CHEMISTRY," Chemical & Engineering News, 20 December 1999, Volume 77, Number 51, pages 40-45. http://www.acs.org/ 25 see photo in C&EN Linda Wang, C&EN, Washington, D.C., AFTER-SCHL CHEMISTRY / Students, teachers have a NEW WAY F EXPLRING CHEMISTRY through ACS s network of high school chemistry clubs, Chemical & Engineering News, 09 February 2009, pager 37. www.cen-nline.rg. see also www.acs.org/chemclub. 26 James et al. v River East School Division No. 9, et al., [1976] 58 Dominion Law Reports (3d) 311. 27 http://schools.tdsb.on.ca/robertborden/academic.htm -- photo -- Science Program. 28 http://pubs.acs.org/cen/acsnews/87/8706acsnews.html www.acs.org/chemclub *MISSIN STATEMENT(as revised as of 2002). 1 At its founding, there appeared an assumption that the Clinic would be for non-union workers; the unionized had their unions to represent them; although the Clinic would still be available for informational assistance. This assumption was reflected in the Clinic=s Mission Statement, and earlier LA grant applications, although not in the Letters Patent and later LA applications. There has been recent debate within the Clinic on this. As of now, the policy remains. 2 According to its Letters Patent, 1989 (nt. Corporation Number 791034), the objects of the Clinic s incorporation are A...To provide workers with scientific information and legal advice and representation with regard to the health effects of their employment and their rights at law to healthful and safe working conditions.@ The Letters Patent also provide that A... The corporation shall, in furtherance of its objects, operate a legal clinic....@ * Springhill -- 1891. 1 Illustrations from: STRY of The Springhill Disaster THE GREAT CAL MINING EXPLSIN Nova Scotia, February 21 st, 1891..., R.A.H. Morrow, 59 Garden Street, St. John, New Brunswick, 1891; illustrations by C.H. Flewwelling, Engraver, St. John, New Brunswick; RESCUING PARTY IN THE MINE., page 47; INTERIR F CARPENTERS SHP, USED AS A MRGUE., page 67. 1 not legal advice. This newsletter includes information considered correct and up-to-date according to its context. It also contains opinions. But nothing here should be taken as legal advice. Legal advice should be obtained from professional counsel, which might include our Clinic s lawyers, when acting on a lawyer-client basis. 1 for future issues: referenced standards as subsidiary legislation. Canadian Centre for ccupational Health & Safety -- Why was it created? -- What does it do now? Clinic s new website see page 3. Clinic s AGM -- 28 April 2009 -- see page 3. Published by: Toronto Workers Health & Safety Legal Clinic 180 Dundas Street West Suite 2000, Box 4 Toronto, ntario, Canada. M5G 1Z8 416 971 8832; fax 416 971 8834 (PLEASE CALL THE CLINIC IF YU WULD LIKE T RECEIVE UR NEWSLETTER VIA e-mail) This clinic is one of a system of community legal clinics; it receives most of its financing from LEGAL AID NTARI. Don t agree with opinions here? r want to comment otherwise? Send your manuscript to: TWH&SLC -- newsletter. MMIX. newsletter: each opinion item: TWH&SLC. the writer. Permission to reproduce whole items is granted gratis for a period of one year for non-profit use only provided no changes are made and the copyright holder is identified and notified in advance. 8