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In this paper, Fay Faraday explores how to provide workers in the on-demand service economy protection under the Employment Standards and Labour Relations Acts. Ontario’s Bill 148 – the Fair Workplace Better Jobs Act, 2017 – should provide protections to workers in precarious employment in the 21st century labour market. Workers in the on-demand service sector are at the forefront of both precarity and technological change. This paper provides guidance on how Bill 148 could be amended to extend protections to these workers.

This report builds on the framework and analysis of Made in Canada. As a next step in the research, it focuses on recruitment because that is the stage where the power imbalance between workers and recruiters/employers is greatest, and yet it is the stage with the least effective legal oversight. This research aims to move beyond the now well-worn phrases of “unscrupulous recruiters” and “exorbitant fees” to build a more nuanced understanding of how low-wage migrant workers experience transnational recruitment. It examines the choices workers make (and are forced to make) in seeking work abroad; how recruiters exercise leverage over migrant workers, their families, and communities; why recruitment fees are oppressive; and how a recruitment relationship can undermine workers’ security and their legal rights long after they arrive in Canada. --From introduction.

In the past decade, Canada’s labour market has undergone a significant shift to rely increasingly on migrant workers who come to Canada from around the globe on time-limited work permits to provide labour in an expanding range of industries. Since 2000, the number of migrant workers employed in Canada has more than tripled. Expanding in response to employer demand, with little public debate, the greatest proportionate growth in migrant labour has been among low-skill, low-wage workers in sectors such as caregiving, agriculture, hospitality, food services, construction and tourism. This report provides a critical analysis of the federal and provincial laws that regulate and constrain the rights of low-wage migrant workers, proposes a rights-based framework to assess their treatment, identifies the ways in which the law constructs migrant workers’ insecurity through each stage of the labour migration cycle, and examines options for systemic change to increase workers’ security.... Executive summary

For the approximately 600,000 migrants currently working in Canada, changes made to the Temporary Foreign Worker Program in 2014 have left them more vulnerable to exploitation and have further narrowed their access to permanent residence. These are the findings of Canada’s Choice: Decent Work or Entrenched Exploitation for Canada’s Migrant Workers?, the latest report from human rights lawyer and Metcalf Fellow Fay Faraday, that builds upon her two previous Metcalf papers on the precarious conditions created and perpetuated by Canada’s controversial Temporary Foreign Worker Program. “Canada has lost its innocence on temporary labour migration,” says Faraday. “The 2014 reforms do nothing to alleviate – and in many cases exacerbate – insecurity for migrant workers. And exploitation predictably follows.” The report details the continued exploitation faced by migrant workers — including unscrupulous recruitment practices, employment mobility restrictions, and a lack of protection from rights abuses— and provides clear policy recommendations to strengthen protections and build employment security for Canada’s migrant workers. Canada’s Choice is also part of a submission to the Parliamentary Committee that is currently studying the Temporary Foreign Worker Program. With Canada’s labour migration policy at a crossroads, we hope that this timely report will contribute to informing the public discourse and lead to comprehensive reforms that enforce the rights of some of our nation’s most vulnerable workers. --Publisher's description

Compares the case law on Fraser and Dunsmore and critiques the Supreme Court's failure in Fraser to address the functional nature of the discrimination against farm workers as an issue of equality rights under Section 15 of the Charter of Rights and Freedoms,

A response from the authors of the book that was reviewed entitled "Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case" is presented. They all shared a commitment to the goal of promoting labour rights for agricultural workers and a belief that constitutional litigation could be a tool through which that objective was advanced. They want the implication of this formulation to be clear: they do not believe that constitutional rights and constitutional litigation were ever or are now the only or even the best means for advancing the struggle for labour rights for farm workers. However, the reality is that laws actively prescribe and sustain a particular balance of power. Laws actively construct relationships of domination/subordination and constrain the space for particular kinds of collective workplace action.

On 29 April 2011, the Supreme Court of Canada released its much-anticipated decision in Attorney General of Ontario v Fraser, which dealt with the scope of constitutional protection of collective bargaining. The case involved a constitutional challenge to an Ontario statute on the grounds that it violated agricultural workers’ freedom of association and right to equality by excluding them from the statutory protection that is available to virtually all other private sector workers and by failing to provide them with alternative legislative support for meaningful and effective collective bargaining rights. Although the Court upheld the constitutionality of the legislation by an eight to one majority, it provided four different, and incommensurable, sets of reasons. For the union that instigated the litigation, Fraser is a defeat. For the labour movement and their advocates, Fraser is ambiguous. What is clear, however, is that the Supreme Court of Canada was badly divided over the scope of protection that freedom of association provides to the right to bargain collectively. This collection of original essays untangles the two stories that are intertwined in the Fraser decision—the story of the farm workers and their union’s attempt to obtain rights at work available to other working people in Ontario, and the tale of judicial discord over the meaning of freedom of association in the context of work. The contributors include trade unionists, lawyers, and academics (several of whom were involved in Fraser as witnesses, parties, lawyers, and interveners). The collection provides the social context out of which the decision emerged, including a photo essay on migrant workers, while at the same time illuminating Fraser’s broader jurisprudential and institutional implications. --Publisher's description. Introduction: Farm Workers, Collective Bargaining Rights, and the Meaning of Constitutional Protection / Judy Fudge -- Farm Worker Exceptionalism: Past, Present, and the post-Fraser Future / Eric Tucker -- The Roots of Organizing Agriculture Workers in Canada / Wayne Hanley -- Development as Remittances or Development as Freedom? Exploring Canada’s Temporary Migration Programs from a Rights-based Approach / Kerry Preibisch -- Envisioning Equality: Analogous Grounds and Farm Workers’ Experience of Discrimination / Fay Faraday -- Harvest Pilgrims: Migrant Farm Workers in Ontario / Vincenzo Pietropaolo --The Fraser Case: A Wrong Turn in a Fog of Judicial Deference / Paul J.J. Cavalluzzo -- What Fraser Means For Labour Rights in Canada / Steven Barrett and Ethan Poskanzer -- Labour Rights: A Democratic Counterweight to Growing Income Inequality in Canada / Derek Fudge -- The International Constitution / Patrick Macklem -- Giving Life to the ILO: Two Cheers for the SCC / K.D. Ewing and John Hendy.

Examines the potential for labour and progressive social movement to use the values expressed in Canada's Charter of Rights and Freedoms to mobilize direct political action and to advocate for reform against the backdrop of austerity. [The authors] focus on historical examples of radical organizing that have leveraged constitutional values, as well as recent Canadian social movements. --Introduction

Economic losses due to COVID-19 have fallen heavily on women, and most dramatically on women living on low incomes who experience intersecting inequalities based on race, class, disability, education, migration, and immigration status. The pandemic crisis has revealed the fragility of response systems and the urgent need for structural rethinking and systemic change.

Analyzes the Supreme Court's jurisprudence on freedom of association, notably B.C. Health Services (2007), in respect to Canada's constitutional relationship with international law.

Describes the efforts of agricultural workers to obtain legal protection with particular reference to legislation and proceedings in Ontario. Concludes that despite legal setbacks, the struggle continues through the Agriculture Worker Alliance of the United Food and Commercial Workers.

Explains in detail the purpose of the book (see publisher's description) and provides a synopsis of the essays contained therein.

Examines the Supreme Court's decision on Fraser in the context of the broader political battle on labour rights. The author links the decline in union density to increasing inequality in income and taxation. Canada's failure to ratify or comply with international conventions of labour rights is also analyzed.

[Provides] a critical examination of Canada's Temporary Migration Programs for agriculture. I show how migrants are positioned to be relatively more vulnerable than other workers within the country's food agricultural system owing to their position at the bottom of the occupational hierarchy, their precarious immigration status as temporary "foreign" workers, and their racialization as non-Whites from the global South. Moreover, I illustrate how changes to policies of temporary migration have constituted farm work as an even more precarious form of employment for migrants in particular, but also Canadians.... Finally, while recognizing that TMPs may contribute to aspects fo economic development, enabling participants to access income and assets formerly out of their reach, I call for greater attention to the rights, welfare, and dignity of migrants when considering temporary migrations programs.

Annotated photographs of migrant farmers in Ontario from 1984 to 2009, drawn from the author's book, "Harvest Pilgrim's" (Between the Lines, 2009).

The author, who was the farm workers' legal representative before the Supreme Court in the Fraser case, provides historical background and analyzes the court's decision, including its reliance on judicial deference to the legislature. Concludes that the court was preoccupied with the larger political battle rather than the constitutional merits of the case.

An analysis of the impact of the Supreme Court of Canada decision in Fraser on protection of freedom of association in the collective bargaining context in Canada, with particular emphasis on the different approaches taken by the Court, including the dissenting reasons of Justice Rothstein, and what those reasons reveal about the Court's disagreement over the scope of freedom of association in the collective bargaining context.

Considers the intersection of relevant conventions of the International Labour Organization, the Charter of Rights and Freedoms, and labour case law of the Supreme Court of Canada. Asserts that the Canadian government is bound by ILO membership to promote collective bargaining, and that the Supreme Court's reliance on ILO principles was fully justified in Dunmore and BC Health Services. Concludes that, although the court's decision on Fraser fails to implement these principles, the right to strike in Canada will eventually be constitutionally recognized.

Papers from the April 9, 2015, Forum on the January 2015 Supreme Court of Canada decisions on labour rights and their implications for the Canadian labour movement.