[37] Bill 187 Royal Assent (PDF)
Bill 187 2002
An Act to protect the rights
of agricultural employees
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Purpose
Purpose of this Act
1. (1) The purpose of this Act is to protect the rights of agricultural employees while having regard to the unique characteristics of agriculture, including, but not limited to, its seasonal nature, its sensitivity to time and climate, the perishability of agricultural products and the need to protect animal and plant life.
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(2) The following are the rights of agricultural employees referred to in subsection (1):
1. The right to form or join an employees' association.
2. The right to participate in the lawful activities of an employees' association.
3. The right to assemble.
4. The right to make representations to their employers, through an employees' association, respecting the terms and conditions of their employment.
5. The right to protection against interference, coercion and discrimination in the exercise of their rights.
Interpretation
Interpretation
2. (1) In this Act,
"agriculture" includes farming in all its branches, including dairying, beekeeping, aquaculture, the raising of livestock including non-traditional livestock, furbearing animals and poultry, the production, cultivation, growing and harvesting of agricultural commodities, including eggs, maple products, mushrooms and tobacco, and any practices performed as an integral part of an agricultural operation, but does not include anything that was not or would not have been determined to be agriculture under section 2 of the predecessor to the Labour Relations Act, 1995 as it read on June 22, 1994; ("agriculture")
"employee" means an employee employed in agriculture; ("employé")
"employees' association" means an association of employees formed for the purpose of acting in concert; ("association d'employés")
"employer" means,
(a) the employer of an employee, and
(b) any other person who, acting on behalf of the employer, has control or direction of, or is directly or indirectly responsible for, the employment of the employee; ("employeur")
"Tribunal" means the Agriculture, Food and Rural Affairs Appeal Tribunal continued under section 14 of the Ministry of Agriculture, Food and Rural Affairs Act. ("Tribunal")
Status of associations, organizations
(2) An employees' association, an employers' organization or any other entity that may be a party to a proceeding under this Act shall be deemed to be a person for the purpose of any provision of the Statutory Powers Procedure Act or of any rule made under that Act that applies to parties.
Persuasion during working hours
3. Nothing in this Act authorizes any person or entity to attempt at the place at which an employee works to persuade the employee during the employee's working hours to become or refrain from becoming or continuing to be a member of an employees' association.
Private property
4. Subject to section 7, nothing in this Act confers any new right to enter on, occupy or use private property.
Rights of Agricultural Employees
Representations
5. (1) The employer shall give an employees' association a reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer.
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(2) For greater certainty, an employees' association may make its representations through a person who is not a member of the association.
Reasonable opportunity
(3) For the purposes of subsection (1), the following considerations are relevant to the determination of whether a reasonable opportunity has been given:
1. The timing of the representations relative to planting and harvesting times.
2. The timing of the representations relative to concerns that may arise in running an agricultural operation, including, but not limited to, weather, animal health and safety and plant health.
3. Frequency and repetitiveness of the representations.
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(4) Subsection (3) shall not be interpreted as setting out a complete list of relevant considerations.
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(5) The employees' association may make the representations orally or in writing.
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(6) The employer shall listen to the representations if made orally, or read them if made in writing.
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(7) If the representations are made in writing, the employer shall give the association a written acknowledgment that the employer has read them.
Duty of employees' association
6. An employees' association shall not act in bad faith or in a manner that is arbitrary or discriminatory in the representation of its members.
Right of access
7. (1) This section applies where employees of an employer reside on the property of the employer, or on property to which the employer has the right to control access.
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(2) On a written application by any person or entity, the Tribunal may make an order allowing access to the property described in subsection (1) for the purpose of attempting to persuade the employees to join an employees' association.
Hearing
(3) The Tribunal shall hold a hearing to determine what order, if any, to make.
Parties
(4) The parties to the hearing shall be,
(a) the applicant;
(b) the employer who owns the property or has the right to control access to it; and
(c) any other person or entity that the Tribunal specifies as a party.
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(5) The order may be subject to such terms and conditions as the Tribunal considers appropriate.
Limitation
(6) The Tribunal shall not make an order allowing access to property under subsection (2) unless the person or entity applying for the order satisfies the Tribunal that the order is necessary to effectively communicate with employees for the purposes of forming an employees' association or recruiting members.
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(7) The Tribunal, in making an order allowing access, shall ensure that the access does not unduly interfere with,
(a) normal agricultural practices, including agricultural practices intended to control the quality of agricultural products;
(b) agricultural practices that are innovative or experimental;
(c) human health and safety;
(d) animal health and safety;
(e) plant health;
(f) planting, growing and harvesting;
(g) bio-security needs; or
(h) privacy or property rights.
Protections
Employers, etc., not to interfere with employees' associations
8. No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall interfere with the formation, selection or administration of an employees' association, the representation of employees by an employees' association or the lawful activities of an employees' association, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
Employers, etc., not to interfere with employees' rights
9. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of an employees' association or was or is exercising any other right under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of an employees' association or exercising any other right under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of an employees' association or to cease to exercise any other right under this Act.
Intimidation and coercion
10. No person, employees' association, employers' organization or other entity shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of an employees' association or of an employers' organization or to refrain from exercising any right under this Act or from performing any obligations under this Act.
Complaints Re Contraventions
Complaint to Tribunal
11. (1) An employee, an employees' association, an employer, an employers' organization or any other person or entity directly involved in an activity related to the exercise of a right under this Act may file a written complaint with the Tribunal alleging that there has been a contravention of this Act.
Hearing
(2) The Tribunal shall hold a hearing to inquire into the complaint.
Parties
(3) The parties to the hearing shall be,
(a) any employee, employees' association, employer, employers' organization, or other person or entity who filed the complaint;
(b) any employee, employees' association, employer, employers' organization, or other person or entity who is alleged in the complaint to have contravened this Act; and
(c) any other person or entity that the Tribunal specifies as a party.
Limited rights of participation
(4) The Tribunal may order that a person or entity who is not a party to the hearing has limited rights of participation in the hearing, as specified by the Tribunal.
Orders and remedies
(5) Where the Tribunal is satisfied that an employee, an employees' association, an employer, an employers' organization or any other person or entity has acted contrary to this Act, it shall determine what, if anything, the employee, employees' association, employer, employers' organization, or other person or entity shall do or refrain from doing with respect to the contravention.
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(6) Without limiting the generality of subsection (5), a determination under that subsection may include any one or more of,
(a) an order directing the employee, employees' association, employer, employers' organization, or other person or entity to cease doing the act or acts complained of;
(b) an order directing the employee, employees' association, employer, employers' organization, or other person or entity to rectify the act or acts complained of; or
(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Tribunal against the employee, employees' association, employer, employers' organization, or other person or entity, jointly or severally.
Interest
(7) Any party may request the Tribunal for an order on account of interest and the Tribunal may make such an order if the Tribunal considers it just to do so in all the circumstances.
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(8) For the purposes of subsection (7), sections 127 to 130 of the Courts of Justice Act apply with appropriate modifications.
General
Application of ss. 14-14.2, Ministry of Agriculture, Food and Rural Affairs Act
12. Sections 14 to 14.2 of the Ministry of Agriculture, Food and Rural Affairs Act apply to a proceeding under section 7 or 11 of this Act.
Dismissal of proceeding
13. (1) A panel of the Tribunal appointed under subsection 14 (3.1) of the Ministry of Agriculture, Food and Rural Affairs Act may dismiss, without a hearing, an application under section 7 or a complaint under section 11 if it appears to the panel that,
(a) the matter is one that could or should be more appropriately dealt with under an Act other than this Act;
(b) the application or the complaint is trivial, frivolous, vexatious or made in bad faith;
(c) the application or the complaint is not within the jurisdiction of the Tribunal;
(d) some aspect of the statutory requirements for bringing the proceeding has not been met; or
(e) in the case of a complaint under section 11, the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person or entity affected by the delay.
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(2) This section applies instead of section 4.6 of the Statutory Powers Procedure Act, except that subsections 4.6 (2) to (6) apply with necessary modifications and, for the purpose,
(a) the reference to clause 4.6 (1) (b) in clause 4.6 (2) (a) of the Statutory Powers Procedure Act shall be read as a reference to clauses (1) (a), (c) and (e) of this section;
(b) the reference to rules under section 25.1 in subsection 4.6 (6) of the Statutory Powers Procedure Act shall be read as a reference to rules under subsection 14.1 (6) of the Ministry of Agriculture, Food and Rural Affairs Act; and
(c) the reference to subsection 4.6 (1) in clause 4.6 (6) (a) of the Statutory Powers Procedure Act shall be read as a reference to subsection (1) of this section.
Interim orders and decisions
14. Despite section 16.1 of the Statutory Powers Procedure Act, the Tribunal shall not make an interim order or decision requiring an employer to hire a person or employee or to reinstate an employee in employment.
Burden of proof
15. On an inquiry by the Tribunal into a complaint under section 11 that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.
Decision final and binding
16. A decision of the Tribunal is final and binding on the parties and any other person or entity that the Tribunal may specify.
Limitation
17. The Tribunal has no jurisdiction under this Act to make a decision altering the terms and conditions of employment of employees, except as permitted under sections 7 and 11.
Non-application of the Labour Relations Act, 1995
18. The Labour Relations Act, 1995 does not apply to employees or employers in agriculture.
Amendments to the
Ministry of Agriculture,
Food and Rural Affairs Act
19. (1) Section 14 of the Ministry of Agriculture, Food and Rural Affairs Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule A, section 20, is amended by adding the following subsections:
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(1.2) The appointment of at least two of the persons appointed under subsection (1.1) shall specifically state that the person is entitled to hear matters under the Agricultural Employees Protection Act, 2002.
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(1.3) The purpose of subsection (1.2) is to recognize that the Tribunal's jurisdiction under the Agricultural Employees Protection Act, 2002 differs in nature from the rest of the Tribunal's jurisdiction, such that a special roster for the purposes of proceedings under that Act is appropriate.
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(1.4) A person whose appointment specifically states that he or she is entitled to hear matters under the Agricultural Employees Protection Act, 2002 may also act as a member of the Tribunal in relation to other matters within the Tribunal's jurisdiction.
Non-application of certain subsections
(1.5) Subsections (3), (6), (6.1), (8) and (9) do not apply to proceedings under the Agricultural Employees Protection Act, 2002.
(2) Section 14 of the Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule A, section 20, is amended by adding the following subsection:
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(2.1) Any function, power or duty of the chair of the Tribunal under this or any other Act, including the Statutory Powers Procedure Act, may, if the chair is absent or unable to act, be exercised by a vice chair.
(3) Subsection 14 (3) of the Act, as re-enacted by the Statutes of Ontario, 1999, chapter 12, Schedule A, section 20, is amended by striking out the portion before clause (a) and substituting the following:
Panels
(3) The chair may,
. . . . .
(4) Section 14 of the Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule A, section 20, is amended by adding the following subsections:
Panels, Agricultural Employees Protection Act, 2002
(3.1) The chair may, in accordance with subsections (3.2) and (3.3), appoint panels to hear proceedings under the Agricultural Employees Protection Act, 2002.
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(3.2) A proceeding under the Agricultural Employees Protection Act, 2002 shall be heard by a panel composed of one or more members of the Tribunal, all of whose appointments by the Lieutenant Governor in Council under subsection (1.1) specifically state that they are entitled to hear matters under the Agricultural Employees Protection Act, 2002.
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(3.3) A panel appointed under subsection (3.1) shall not be composed of an even number of members.
Decision of panel
(3.4) The decision of a majority of the members of a panel appointed under subsection (3.1) is the Tribunal's decision.
(5) Subsection 14 (11) of the Act is amended by adding at the beginning "Except as otherwise provided under subsection (12)".
(6) Section 14 of the Act, as amended by the Statutes of Ontario, 1999, chapter 12, Schedule A, section 20, is amended by adding the following subsections:
Same, Agricultural Employees Protection Act, 2002
(12) For purposes related to proceedings under the Agricultural Employees Protection Act, 2002, a majority of the members of the Tribunal whose appointments by the Lieutenant Governor in Council under subsection (1.1) specifically state that they are entitled to hear matters under the Agricultural Employees Protection Act, 2002 may make rules providing for the signing of documents mentioned in subsection (11) in a manner different from that provided for in subsection (11).
Statutory Powers Procedure Act, ss. 4.2, 4.3, 4.8
(13) Sections 4.2, 4.3 and 4.8 of the Statutory Powers Procedure Act do not apply in relation to proceedings of the Tribunal.
(7) The Act is amended by adding the following sections:
Agricultural Employees Protection Act, 2002 and
Statutory Powers Procedure Act
14.1 (1) In this section and in section 14.2,
"Tribunal" means the Agriculture, Food and Rural Affairs Appeal Tribunal.
Statutory Powers Procedure Act, subs. 5.3 (2)
(2) In designating a person to preside at a pre-hearing conference under subsection 5.3 (2) of the Statutory Powers Procedure Act in connection with a proceeding under the Agricultural Employees Protection Act, 2002, the chair of the Tribunal may only designate a person who is a member of the Tribunal and whose appointment under subsection 14 (1.1) of this Act specifically states that he or she is entitled to hear matters under the Agricultural Employees Protection Act, 2002.
Statutory Powers Procedure Act, subs. 12 (2)
(3) For the purposes of the application of subsection 12 (2) of the Statutory Powers Procedure Act to a proceeding under the Agricultural Employees Protection Act, 2002, the summons shall be signed by a member of the Tribunal whose appointment under subsection 14 (1.1) of this Act specifically states that he or she is entitled to hear matters under the Agricultural Employees Protection Act, 2002 or by a person authorized to do so under subsection 14 (12).
Statutory Powers Procedure Act, subs. 12 (6)
(4) For the purposes of the application of subsection 12 (6) of the Statutory Powers Procedure Act to a proceeding under the Agricultural Employees Protection Act, 2002, the certification shall be made by a member of the panel, and not by the chair of the Tribunal.
Statutory Powers Procedure Act,
rules and guidelines
(5) Rules and guidelines made or established by the Tribunal under section 16.2 or 25.1 of the Statutory Powers Procedure Act do not, unless they are made in accordance with subsection (6), apply with respect to proceedings under the Agricultural Employees Protection Act, 2002.
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(6) The majority of the members of the Tribunal whose appointments by the Lieutenant Governor in Council under subsection 14 (1.1) of this Act specifically state that they are entitled to hear matters under the Agricultural Employees Protection Act, 2002 may exercise the powers of the Tribunal to make rules and establish guidelines under sections 16.2 and 25.1 of the Statutory Powers Procedure Act with respect to proceedings under the Agricultural Employees Protection Act, 2002.
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(7) With respect to proceedings under the Agricultural Employees Protection Act, 2002, a reference to rules or guidelines under any provision of the Statutory Powers Procedure Act means the rules or guidelines made under subsection (6).
Agricultural Employees Protection Act, 2002,
general
14.2 A panel appointed under subsection 14 (3.1) for the purposes of a proceeding under the Agricultural Employees Protection Act, 2002 has the powers, duties and functions of the Tribunal under the Agricultural Employees Protection Act, 2002 and under the Statutory Powers Procedure Act with respect to the proceeding for which the panel was appointed.
Amendments to the
Labour Relations Act, 1995
20. Clause 3 (b) of the Labour Relations Act, 1995 is repealed and the following substituted:
(b) to a person employed in hunting or trapping;
(b.1) to an employee within the meaning of the Agricultural Employees Protection Act, 2002;
Commencement and Short Title
Commencement
21. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
22. The short title of this Act is the Agricultural Employees Protection Act, 2002.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 187 and does not form part of the law. Bill 187 has been enacted as Chapter 16 of the Statutes of Ontario, 2002.
Subsection 1 (1) of the Bill states that the purpose of the Bill is to protect the rights of agricultural employees while having regard to the unique characteristics of agriculture. Subsection 1 (2) sets out the protected rights.
Sections 2 to 4 of the Bill are interpretive. Section 2 of the Bill is definitional. Section 3 provides that the Bill does not authorize recruitment by an employees' association at the workplace during an employee's working hours. Section 4 provides that, except as provided in section 7, the Bill does not confer any new right to enter or use private property.
Section 5 of the Bill deals with the right of employees' associations to make representations to employers.
Section 6 of the Bill provides that an employees' association shall not act in a manner that is arbitrary, discriminatory or in bad faith in representing its members.
Section 7 of the Bill authorizes the Agriculture, Food and Rural Affairs Appeal Tribunal to make an order, in specified circumstances, allowing access to property for purposes of attempting to persuade employees to join an employees' association. The order may be made subject to terms and conditions as the Tribunal considers appropriate.
Sections 8, 9 and 10 of the Bill set out certain protections. Section 8 prohibits interference by employers with employees' associations. Section 9 prohibits employers from taking reprisals against a person because of their involvement with an employees' association or their exercise of any right under the Bill. Section 10 prohibits the use of intimidation or coercion in connection with membership in an employees' association or employers' organization or with the exercise of any right under the Bill.
Section 11 of the Bill authorizes the Agriculture, Food and Rural Affairs Appeal Tribunal to inquire into complaints alleging a contravention of the Bill. If the Tribunal determines that a contravention has occurred, it may make a remedial order, as set out in subsections 11 (5) and (6).
Sections 12 to 18 of the Bill deal with general matters. Section 12 of the Bill states that sections 14 to 14.2 of the Ministry of Agriculture, Food and Rural Affairs Act apply to a proceeding under section 7 or 11 of the Bill. Section 13 of the Bill permits a panel of the Tribunal to dismiss an application under section 7 or a complaint under section 11 without a full hearing in specified circumstances. Section 14 of the Bill deals with interim orders. Section 15 of the Bill deals with burden of proof where a complaint is made under section 11 of the Bill that a person has been subject to a reprisal relating to employment contrary to the Bill. Section 16 of the Bill provides that the Tribunal's decisions are final and binding. Section 17 of the Bill provides that the Tribunal has no jurisdiction to alter terms and conditions of employment under the Bill except as permitted by sections 7 and 11. Section 18 of the Bill states that the Labour Relations Act, 1995 does not apply to employers or employees in agriculture.
Section 19 of the Bill makes consequential amendments to the Ministry of Agriculture, Food and Rural Affairs Act. Section 14 of that Act, which continues the Agriculture, Food and Rural Affairs Appeal Tribunal, is amended to take account of the new jurisdiction of the Tribunal under the Bill and to ensure that there is a special roster of Tribunal members to hear proceedings under the Bill. New sections 14.1 and 14.2 of the Ministry of Agriculture, Food and Rural Affairs Act address the interaction of the Bill with both the Statutory Powers Procedure Act and the Ministry of Agriculture, Food and Rural Affairs Act.
Section 20 of the Bill makes consequential amendments to the Labour Relations Act, 1995.