Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging

The Supreme Court of Canada may well conclude in Fraser that the Canadian Charter of Rights and Freedoms confers upon agricultural workers the full panoply of bargaining rights provided under contemporary Canadian collective bargaining legislation, from the right to be represented exclusively by the bargaining agent chosen by the majority, to the right to engage their employer in good faith negotiations, to the right to strike. If the Court does so, its decision will be greeted with delight by progressive legal scholars, proponents of countervailing power as a strategy of labour market regulation, and true believers in the potential of constitutional and international rights discourse to transform political economy and social relations. There will be congratulations all 'round: to the skilled advocates who will have achieved a famous victory against long odds; to the imaginative academics who will have erected the conceptual scaffolding on which counsel’s arguments will have been constructed; and not least, to the judges who will have finally liberated themselves from the tyranny of precedent and sloughed off 200 years of curial antipathy to workers and their interests.Of course, not everyone will be delighted. Dour devotees of legal logic and historical accuracy are likely to grimace or roll their eyes; neo-liberals who favour unregulated labour markets and managerial unilateralism will cry havoc; and sceptics who question the capacity of courts to bring about deep and lasting change, and the wisdom of asking them to do so, will simply shrug. I consider myself to be a progressive scholar who recalls the bygone era of collective bargaining with great nostalgia; I admire skilled lawyers and free-thinking judges and have built the odd conceptual scaffold for both in my time; and I retain an atavistic attachment to logic and historical accuracy. But because most of all I am a sceptic, I will shrug.Of course, I will shrug with one shoulder only. Clearly, the Agricultural Employees Protection Act was a cynical attempt to perpetuate the unjustified exclusion of workers on farms and in food processing plants from the regime of collective bargaining. Clearly these workers should have the same rights to organize, bargain and strike as workers in auto plants and banks - however modest the value of those rights may turn out to be in practice. Consequently, if the Supreme Court decides in their favour, one shoulder will remain firmly in place; but the other will shrug.