SOLIDARITY FOREVER, CANADIANS NEVER: SAWP WORKERS IN CANADA by Robert Marc Russo LL.M., The University of British Columbia, 2006 LL.B., The University of British Columbia, 2004 B.A., The University of British Columbia, 1994 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) July 2012 © Robert Marc Russo, 2012 ii Abstract This doctoral thesis focuses on collective bargaining and temporary migrant workers within Canada participating in the Seasonal Agricultural Workers Program (SAWP). The intent is to analyze the range and efficacy of legal responses to the problems encountered by this community within Canada, focusing on the unionization of SAWP participants. The dissertation addresses the fundamentally legal relationship between unionization and SAWP workers in Canada. It takes an approach that considers both historical and legal considerations leading to the use of SAWP workers in Canada, and the eventual attempts at unionization. Recent legal developments in several Canadian provinces involving SAWP workers and efforts collective bargaining are analyzed. There is a comparison with similar efforts to unionize migrant workers in the United States, and of efforts to address violations collective bargaining rights through international complaints as well as within the broader framework of international law. The conclusion reached is that within the current framework of provincial labour legislation and the current structure of the SAWP, collective bargaining alone represents an inadequate response to violations of SAWP workers’ workplace rights in Canada. iii Preface Part of Chapter 3 has been published as a case comment: • Russo, Robert. “Temporarily Unchained: The Drive to Unionize Foreign Seasonal Agricultural Workers in Canada -- A Comment on Greenway Farms and UFCW” (Spring 2011):169 BC Studies 131-141. Part of Chapter 5 has been published as an article: • Russo, Robert. “A Cooperative Conundrum? The NAALC and Mexican Migrant Workers in the United States” (2011) 17:1 Law and Business Review of the Americas 27 Research for interviews conducted for this dissertation has been approved by the UBC Behavioral Research Ethics Board: Certificate of Approval: H08-01282 iv Table of Contents Abstract.............................................................................................................................. ii Preface............................................................................................................................... iii Table of Contents ............................................................................................................. iv List of Tables ................................................................................................................... vii Acknowledgements ........................................................................................................ viii Dedication ......................................................................................................................... ix 1 - Introduction ..................................................................................................................1 1.1 Statement of the problem ...................................................................................... 1 1.2 The nuts and bolts of the SAWP........................................................................... 5 1.3 Canadian labour law framework ......................................................................... 10 1.3.1 Law and employment in the SAWP............................................................ 12 1.4 Existing literature on the issue ............................................................................ 14 1.5 Need for research ................................................................................................ 20 1.6 Theory and methodology................................................................................... 24 1.7 A map for this dissertation .................................................................................. 28 2 - History of Agricultural Sector, Farm Labour Migration to Canada ....................32 2.1 Framework for analyzing farm labour migration................................................ 33 2.2 Overview of early Canadian farming.................................................................. 36 2.3 The Federal-Provincial Agricultural Manpower Program .................................. 39 2.4 Growing debate over farm labour sources and immigration to Canada.............. 46 2.5 Portuguese farm labour migration to Canada c1950-60 ..................................... 51 2.6 Continuing farm worker retention problems....................................................... 56 2.7 The end of the manpower program ..................................................................... 59 2.8 The Caribbean as source of temporary farm labour............................................ 62 2.8.1 Why the Caribbean as a source for temporary farm labour?....................... 66 2.9 SAWP recruitment and Jamaican clientelism..................................................... 71 2.10 Racist stereotyping.............................................................................................. 73 2.11 Unions and the immigration reforms.................................................................. 78 2.12 Early Canadian government analyses of the SAWP........................................... 81 2.13 Summary - expansion and wages of the SAWP ................................................. 84 2.14 Seasonal agricultural workers in Canada and unions ......................................... 87 2.14.1 Genesis of the agricultural unionization movement.................................. 91 2.15 Conclusion .......................................................................................................... 95 v 3 - A Recent Legal Response To The SAWP – Unionization .....................................101 3.1 Legal knowledge and the “unfree” SAWP worker ........................................... 102 3.2 SAWP workers’ legal voice .............................................................................. 105 3.2.1 No right to a particular collective bargaining model................................. 108 3.2.2 The SAWP and the parties’ positions in Fraser ....................................... 112 3.3 Provincial farm unionization campaigns and SAWP workers.......................... 118 3.4 British Columbia legal case study – Greenway & UFCW................................ 128 3.4.1 The BC Labour Relations Board's decision .............................................. 133 3.5 Setbacks and success for unionization of SAWP workers at Floralia .............. 137 3.5.1 Analysis of the Floralia collective agreement ........................................... 144 3.6 The first exclusively SAWP bargaining unit: Sidhu & Sons ............................ 149 3.7 After Floralia and Sidhu.................................................................................... 152 3.8 Foreign government involvement in SAWP unionization process ................... 155 3.9 The Michoacán migrant workers' pact .............................................................. 167 3.9.1 Theoretical cooperation and practical reality ............................................ 169 3.10 Conclusion ........................................................................................................ 174 4 - A Comparative Analysis of Temporary Seasonal Workers and Unionization: Canada and the United States.......................................................................................182 4.1 Jurisdictional division of labour law powers .................................................... 184 4.1.1 American state law and unionization of agricultural workers................... 187 4.1.2 Federal law and unionization of agricultural workers............................... 190 4.2 Mexican migrant farm workers and H2-A visa program.................................. 192 4.2.1 Duration of residency for H-2A workers .................................................. 195 4.3 Union organizing on American farms............................................................... 198 4.3.1 Collective bargaining and H-2A workers.................................................. 203 4.4 Conclusion ........................................................................................................ 211 5 - An Examination of NAALC Complaints Relating to Collective Bargaining Between Canada and the United States .......................................................................215 5.1 Why the NAALC? ............................................................................................ 216 5.2 Free trade: collective bargaining and migrant workers..................................... 217 5.3 NAALC principles on collective bargaining, migrant workers ........................ 219 5.3.1 Mexican NAO 98-02 – Washington state apple pickers complaint .......... 223 5.3.2 Mexican NAO 2003-1 – migrant workers’ North Carolina complaint ..... 228 5.4 The NAALC and Canada – An unconsummated relationship .......................... 231 5.5 Conclusion ........................................................................................................ 238 6 - International Law – Theoretical Applications and Practical Relevance for SAWP Workers and Collective Bargaining .............................................................................243 6.1 Law, globalization and migrant workers........................................................... 245 6.2 The post-modern problem of the SAWP........................................................... 248 6.3 The International Labour Organization............................................................. 250 vi 6.3.1 Derivation of ILO Conventions................................................................. 253 6.3.2 ILO Conventions 87 and 98, 143 .............................................................. 255 6.3.3 ILO Committee on Freedom of Association ............................................. 259 6.3.4 ILO Convention 143 and the UN Migrant Workers Convention.............. 261 6.4 The Charter, international law and the IACHR................................................ 267 6.4.1 The IACHR decision................................................................................. 271 6.5 The “L” in ILO does not stand for law ............................................................. 275 6.6 Conclusion ........................................................................................................ 279 7 - Conclusion .................................................................................................................285 7.1 Synthesis of research findings........................................................................... 285 7.2 Focus for possible future research .................................................................... 303 Bibliography ...................................................................................................................314 vii List of Tables Table 2.1 Distribution of SAWP workers in Canada and by province ..........99 Table 2.2 SAWP wage comparisons by province ...........................................100 viii Acknowledgements I would like to take this opportunity to acknowledge some of those who assisted me in the completion of this dissertation. My research committee enabled me to turn an idea into a reality. I am very fortunate to have worked on this project with Professor Catherine Dauvergne as my research supervisor. Without her continued support, knowledge of immigration law and scholarship, and guidance in general this work could not have been completed. She was and remains a regular source of advice and encouragement throughout my doctoral program and career. As a supervising committee member, Professor David Ley provided regular assistance, feedback from a non-legal perspective and updates that greatly contributed to my work. His work on migration and geography provided a new perspective within which to consider my own research, one that was not restricted by a narrow legal focus. In particular Professor Ley inspired me to look at the issue from a non-law perspective. Professor Janine Benedet of my supervising committee also provided very helpful assistance, especially in labour law and structural matters related to this dissertation. Her scholarship and critique of the nature of temporary foreign work enabled me to more clearly focus on central issues related to labour law and the nature of employment within temporary foreign worker programs. In particular she provided me with new considerations for possible future directions for research. I wanted to acknowledge Professor Douglas Harris, as he provided extremely helpful comments and editing suggestions regarding the published legal case study that is included in Chapter 3 of this dissertation. Both Professor Dauvergne and Professor Harris provided gracious encouragement during their respective periods as Associate Dean of Graduate Studies of the UBC Faculty of Law. I also wanted to thank Professor Wes Pue for inspiring me to continue on to complete a doctoral program. And of course I wanted to express my appreciation (again) to the UBC Law Graduate Program Advisor Extraordinaire, Joanne Chung, for her help throughout my time at the graduate program at UBC. Many of my colleagues in the doctoral program were helpful at various stages of research and I wanted to acknowledge all of them, but especially those who continued on to the PhD program from my previous UBC LLM classes. There were times when it was invaluable just being able to just discuss the ups and downs of the doctoral with others who are colleagues and friends. ix Dedication To my parents. 1 i 1 - Introduction 1.1 Statement of the problem In August 2008 a group of farm labourers at Greenway Farms in Surrey BC, comprised largely of temporary foreign workers, voted to join the United Food and Commercial Workers (UFCW) union. One year later the bargaining unit voted to decertify itself. In between, many of the foreign workers were repatriated to Mexico and allegedly blacklisted from Canada’s Seasonal Agricultural Workers Program. These workers sought to unionize because of the problems they encountered while working on Canadian farms. They perform dangerous but essential work for the Canadian agricultural industry with musculoskeletal, transportation and other work- related injuries a common occurrence.1 However they are largely invisible to Canadian society until the occasional news story exposes substandard working conditions or a horrific work-related accident. These incidents are all too common. From 1990-2005, 1,769 people were killed in “agricultural injury events” in Canada.2 Agriculture remains the most dangerous occupation in Ontario with over 20 farm workers killed every year at 1 The historically dangerous conditions of farm labour in Canada have been well documented. See J Parr “Hired Men: Ontario Agricultural Wage Labour in Historical Perspective” (1985) 15 LJCLS 91.; In the United States, the agricultural sector has historically had the highest annual work death rate of all industries due to accidents involving improper safety protocols with farm machinery and lax enforcement of workers’ compensation regulations. See MA Purschwitz and WE Field, “Scope and Magnitude of Injuries in the Agricultural Workplace” (1990) 18:2 Am J Indus Med 179. 2 Source: Agriculture and Agri-Food Canada, “Canadian Farm Fatalities Decreasing” (10 March 2009), online: <http://www.casa-acsa.ca/english/PDF/Canadian%20farm%20fatalities%20decreasing.pdf> While there were fewer fatal farm injuries in that period among those aged 15 to 59, those over 60 were actually at increased risk for fatalities resulting from farm machine accidents. Agricultural machines were involved in 71% of the fatalities with rollovers responsible for almost a quarter of the deaths. 2 work.3 In August 2002, a Jamaican seasonal agricultural worker was crushed to death by a 12,000-pound kiln of tobacco while working on a farm in the Brantford, Ontario area, leading to calls for greater Federal and Provincial oversight of workplace safety for temporary foreign farm workers.4 In September 2010, two Jamaican migrant workers died from workplace injuries suffered at a Filsinger farm near Owen Sound, Ontario.5 This last incident resulted in charges with possible jail time against four of individuals associated with the employer. But over a year later, only one individual was ultimately fined and charges against three others were dropped after an agreement between the Ontario Ministry of Labour and counsel for the accused.6 Migrant worker advocacy groups criticized the result, accusing the Ministry of Labour of “going easy” against employers causing the deaths of migrant workers.7 These are just two of the many examples of migrant farm worker deaths and legal responses. All of the migrant workers entered Canada through the federally administered Seasonal Agricultural Workers Program (SAWP). Over the last decade in Ontario there have been 33 reported SAWP workplace related fatalities and 1,129 premature 3 K Preibisch and LMH Santamaria, “Engendering Labour Migration: The Case of Foreign Workers in Canadian Agriculture” in E Tastsoglou and A Dobrowolsky, eds, Women, Migration and Citizenship: Making Local, National and Transnational Connections (Burlington: Ashgate Publishing, 2006) at 110. 4 I Mclmont, "Vigil in Canada for Dead Jamaican Farm Worker" (31 August 2002) Jamaican Observer, online: <http://www.jamaicaobserver.com/news/31205_Vigil-in-Canada-for-dead-Jamaican-farm-worker> 5 “Agricultural Deaths Preventable: Migrant Advocacy Group Calls On Provincial Government To Protect Workers: Snap Inspections, Coroner’s Inquest, And Criminal Investigation Needed To Show Zero Tolerance For Migrant Fatalities” (13 September 2010), Justicia for Migrant Workers, online: <http://www.justicia4migrantworkers.org/> 6 “Court Fines Supervisor $22,500 in the Deaths of Two Jamaican Migrant Workers” (11 January 2012), Canadian Newswire, online: <http://www.newswire.ca/en/story/904115/court-fines-supervisor-22-500-in- the-deaths-of-two-jamaican-migrant-workers> 7 Ibid. 3 repatriations of SAWP workers for occupationally related illness or injury.8 In BC, there were 82 fatal injuries and 1,407 hospitalizations related to agricultural work from 1990- 2000.9 Since BC joined the SAWP in 2004, there have been numerous deaths and injuries in farm worker transport in the province, including a 2007 crash that killed three workers and injured 1410; a toxic gas release in 2008 at a mushroom farm in Langley that killed 3 farm workers (who were not in the SAWP) and seriously injured 3 others11; and an October 2010 vehicle accident involving workers from Greenway Farms in Surrey that critically injured one worker.12 The workers in the Greenway incident were riding on a pile of boxes in the back of a truck that had no seat belts. In 2009 Greenway farms, supported by Canada’s agricultural industry, had launched a constitutional challenge to the migrant workers’ ability to unionize on its farm. The farmers and the agricultural industry claimed that their very existence and economic viability were at stake. The workers and the UFCW argued that no worker in Canada – regardless of their nationality or status - should be denied basic collective bargaining rights. Although the Board ultimately ruled these 8 Supra note 5. 9 PE Saar, et al.. “Farm injuries and fatalities in British Columbia, 1990-2000” (2006) 97:2 Can J of Pub Health at 100-104. 10 “Van packed with farm workers crashes in BC, killing” (7 March 2007), CBC News, online: >http://www.cbc.ca/canada/british-columbia/story/2007/03/07/bc-van-crash.html#ixzz19uijqjoW> 11 “BC mushroom farm accident kills three” (6 September 2008), Vancouver Sun, online: http://www.canada.com/ottawacitizen/news/story.html?id=335e206a-652b-4d34-84cc-08d8de1a50f7. The owners of the farm were prosecuted under BC’s Worker’s Compensation Act, but in September 2011 Crown prosecutors recommended that the owners be subjected to “hundreds of thousands of dollars” in fines in lieu of jail time. See J Saltman, “Mushroom Farm Faces Huge Fine”, Vancouver Sun, (18 September 2011), online: http://www.theprovince.com/Mushroom+farm+faces+huge+fines/5420649/story.html. 12 T Sandborn, “Hard Thanksgiving for Injured Farm Workers: BC Pickers were Hurt While Riding Unprotected with Produce Bound for Holiday Tables” (11 October 2010), The Tyee, online: <http://thetyee.ca/News/2010/10/11/InjuredFarmWorkers/> 4 workers could unionize it was too late – many of the Mexican workers had been repatriated, and the new bargaining unit voted for decertification. This dissertation analyzes the Greenway decision and outlines similar cases. In 2008 temporary foreign workers at a Manitoba farm voted to decertify themselves just weeks after voting to join the UFCW. The UFCW continued its unionization efforts with some success and on September 21, 2009, a “breakthrough” collective agreement was reached between the United Food and Commercial Workers of Canada (UFCW) and Floralia Growers of Abbotsford, BC.13 The successful negotiations were notable for the promise of “justice and dignity” for the SAWP workers at Floralia Growers, and guarantee of certain rights and benefits, such as wage increases, procedures to address overtime hours, grievances and occupational health and safety improvements.14 However, in February 2012 workers at the farm applied to decertify their union in the midst of allegations of migrant worker blacklisting and foreign government interference in BC’s collective bargaining process.15 The Canadian government, foreign governments and some policy and academic experts have held up the SAWP as a “model” temporary foreign worker program with just a few flaws.16 Why then is it so difficult for these temporary foreign workers to 13 “Historic Victory for Migrant Farm Workers” (23 September 2009), UFCW Canada, Online: http://www.ufcw.ca/index.php?option=com_content&view=article&id=661&catid=5&Itemid=99&lang=en 14 Ibid. 15 T Sandborn, “Creating Centres for Migrants’ Universes” (16 February 2012), online: <http://m.thetyee.ca/News/2012/02/16/Migrant-Centres/> 16 See in general T Basok, “Canada's Temporary Migration Program: A Model Despite Flaws”, Justicia for Migrant Workers, online: <http://www.justicia4migrantworkers.org/bc/pdf/SAWP- A_Model_Despite_Flaws.pdf>; J Hennebry and K Preibisch, “A Model for Managed Migration? Re- examining Best Practices in Canada’s SAWP”, (2010) Int’l Migr, online: <http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2435.2009.00598.x/full> 5 engage in collective bargaining? Why is the efficacy of a program judged by the survival of an industry that is premised on denying workers nationally and internationally guaranteed workers’ rights? Is unionization the best way to address the SAWP's problems or are there other national or international legal remedies to pursue? This thesis addresses these questions. 1.2 The nuts and bolts of the SAWP The SAWP was established in 1966 as the first temporary foreign worker program in Canada. It initially brought workers from former British colonies in the Caribbean to work temporarily on Canadian farms. Jamaica became the first country to send migrant workers under the SAWP in 1966, starting with 264 men. Trinidad and Tobago and Barbados followed in 1967, Mexico joined in 1974 and the Organization of Eastern Caribbean States17 joined in 1976. Only workers from these countries may participate in the SAWP. The program grew to include over 26,000 workers in 2009.18 Trade and labour cooperation has increased under the North American Free Trade Agreement (NAFTA) leading Mexico to supply the majority of SAWP workers coming to Canada, with BC employing a growing percentage of those workers.19 The SAWP is administered by Human Resources and Skills Development Canada 17 The OECS full membership comprises Antigua and Barbuda; Commonwealth of Dominica; Grenada; Montserrat; St. Kitts-Nevis; Saint Lucia; St. Vincent and The Grenadines. 18 Source: HRSDC, “Temporary Foreign Worker Program: Labour Market Opinion (LMO) Statistics, 2006-2009” (March 2010), online: >http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/ stats/annual/table10a.shtml> 19 Ibid. After joining the SAWP in 2004, BC saw the number of its SAWP workers increase from 1,484 in 2006 to more than 3,768 in 2008.; For the effects of NAFTA on Mexican temporary labour migration to Canada see P Sawchuk, “Guest Worker Programs and Canada: Towards a Foundation for Understanding the Complex Pedagogies of Transnational Labour” (2008) 20:7/8 J Workplace Learning 492. For the effects of the North American Agreement on Labour Cooperation (the labour side-agreement to the NAFTA) on migration of Mexican farm workers see L Compa, “NAFTA’s Labour Side Agreement and International Labour Solidarity” (2001) 33:3 Antipode 451. 6 (HRSDC) and Service Canada (SC), although Citizenship and Immigration Canada (CIC) is also involved in aspects of the program. The Government describes the program as matching “workers from Mexico and the Caribbean countries with Canadian farmers who need temporary support during planting and harvesting seasons, when qualified Canadians or permanent residents are not available.”20 Only farms that produce “primary agriculture commodity sector products” may utilize SAWP workers.21 As of July 2011 farms in most Canadian jurisdictions are eligible.22 The SAWP currently operates within the framework of the Temporary Foreign Worker Program (TFWP), which includes a range of occupations allowing for various lengths of employment in Canada and even for eventual residency for some occupations.23 The process of hiring SAWP workers begins with an employer completing a Labour Market Opinion (LMO) Form. The LMO form contains basic employer and employee information, including whether the employee request is for a direct arrival or transfer, the number of employees at the farm, and the types of agricultural commodities produced along with methods of production. The form allows the employer to request a 20 HRSDC, Ibid. 21 Ibid. This includes: fruits, vegetables, greenhouses, nurseries, apiary products, tobacco, sod, flowers, Christmas trees and certain animal commodities (in Quebec only). 22 Ibid. Provinces participating in the SAWP as of July 2011 include: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Prince Edward Island. Newfoundland, Yukon, Northwest Territories and Nunavut do not participate in the SAWP. 23 HRSDC, online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/fwp_forms.shtml> Other categories include exotic dancers, certain non-agricultural “low-skilled” occupations (i.e. clerical, retail, health, manufacturing, etc.) and live-caregivers who have the possibility of being granted eventual residency in Canada after a period of time of employment. The SAWP operates within the larger framework of the Temporary Foreign Worker Program. There are four “streams” under which foreign seasonal agricultural workers may now apply, including the SAWP. Other streams include “low-skilled” agricultural workers coming to Canada from non-SAWP countries, “high-skilled” agricultural workers (including apiary technicians and farm managers), and a “low-skilled” pilot project for foreign seasonal workers in certain mostly non-primary agricultural commodities. 7 specific worker or workers (the so-called naming of a worker) along with requesting any unnamed workers. The job offer information must indicate duties of the position, whether the position requires an English or French speaking worker and the requested arrival and anticipated departure date from Canada. One of the basic purposes of the LMO form is to show that the employer has made efforts to “recruit and/or train willing and available Canadian citizens and permanent residents” for the position(s).24 To that end, the government asks for a human resources plan, providing details of farm recruitment activities for Canadians in the relevant season including methods used to hire local workers or students. The wages for the requested worker must be specified on the LMO form, and are designed to illustrate that any wages offered by the employer are consistent with prevailing local wages in similar agricultural commodity work. The other basic purpose of the LMO is to ensure that the housing and working conditions offered meet minimal provincial employment standards. Information on seasonal housing approval is requested, along with documented proof of seasonal housing inspection or, if that is not available, information on the previous year’s inspection along with a current housing inspection as soon as possible. Regarding working conditions, the LMO requests information on whether the position is part of a Union. If the worker is to be represented by a Union, specific information must be provided on the relevant Union Local, any consultations with the Union along with the Union’s position on hiring a Temporary Foreign Worker through the SAWP. Information is requested for any labour 24 Citizenship and Immigration Canada, “Labour Market Opinion Basics” (10 June 2010), online: <http://www .cic.gc.ca/english/work/employers/lmo-basics.asp> 8 disputes in progress at the farm where the SAWP worker will be employed. Along with the LMO form, the employer must submit a completed copy of the appropriate SAWP Employment Contract. There are currently six different Employment Contracts in the SAWP. There are two different Employment Contracts dealing with workers from Mexico or the Commonwealth Caribbean countries employed in Canadian provinces other than BC; two other contracts for SAWP workers from each of those areas who are employed in BC; and two other contracts for SAWP workers from Caribbean Commonwealth countries who wish to transfer to a new employer.25 Differences among the employment contracts revolve mostly around allowed employer deductions to recover worker transportation and housing costs. Each of the SAWP Employment contracts contains some basic provisions covering: • Scope and Period of Employment; • Lodging, Meals and Rest Periods; • Payments and Deductions of Wages; • Insurance for Occupational & Non-Occupational Injury and Disease; • Maintenance of Work Records And Statement of Earnings; • Travel and Reception Arrangements; • Obligations of the Employer and Worker; and • Premature Repatriation. To facilitate the administration of the program, Canada has signed a number of bilateral and multilateral agreements with Mexico and the Commonwealth Caribbean. These international agreements - or Memorandums of Understandings - contain basic provisions and protections for SAWP workers while in Canada. The Canada-Mexico SAWP operates according to a “bilateral Memorandum of Understanding (MOU) originally signed in 1974, which outlines the operational guidelines and responsibilities” 25 HRSDC, “SAWP: Mexico, Caribbean 2011: Employment Contracts”, online: <http://www.hrsdc.gc.ca /eng/workplaceskills/ foreign_workers/sawp_contracts.shtml#c01> 9 of each party in the program.26 The agreement makes it the responsibility of Mexico and Caribbean Commonwealth countries to “assist” in the “recruitment, selection, and documentation of bona-fide agricultural workers” and in “maintaining a pool of workers who are ready to depart to Canada when requests are received from Canadian employers, and appointing agents at their embassies/consulates in Canada.”27 Officials from source countries are also tasked in assisting Canadian government officials in the “administration of the program, and to serve as a contact point” for SAWP workers regarding any work-related complaints. 28 Despite the importance of the agricultural sector to the Canadian economy, SAWP workers do not have the opportunity to apply for permanent residence status. They may only remain in Canada for a minimum of six weeks to a maximum of eight months per year between January 1 and December 15, and they may return in subsequent years subject to the same entry and exit restrictions. The recruitment process on the Canadian side specifies certain minimal requirements, including experience in farming and being over the age of 18.29 However, workers in the SAWP are selected by Mexico and participating Caribbean countries which generally require participants to have dependents in order to participate in the program.30 This recruiting preference also results in a workforce that is more willing to work more hours. It is a strong incentive for SAWP 26 HRSDC, “Temporary Foreign Worker Program”, (2010), online: <http://www.hrsdc.gc.ca/eng/ workplaceskills/foreign_workers/stats/annual/foreword_sawp.shtml>. 27 Ibid. 28 Ibid. 29 HRSDC, “Seasonal Agriculturral Workers Program”, (2009), online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/ei_tfw/sawp_tfw.shtml>. 30 This is viewed as an attempt by Canadian administrators to limit illegal overstays or attempts to gain permanent residency through marriage See K Preibisch, “Local Produce, Foreign Labour” (2007) 72:3 Rural Soc 418 at 435. 10 workers to maintain their employment and remittances sent home - and to recognize the precariousness of their position in Canada. 1.3 Canadian labour law framework Labour law in Canada falls under both federal and provincial jurisdiction, with both the federal Parliament in Ottawa and provincial legislatures able to enact labour legislation.31 The provinces have gained major jurisdiction due to various judicial rulings that have limited federal labour jurisdiction to a relatively small range of matters.32 Those labour matters under federal jurisdiction fall under the Canada Labour Code33, while the provinces typically have labour legislation designated as Labour Relations or Industrial Relations Codes or Acts.34 The section of the Canadian Constitution Act (1867) dealing with "property and civil rights" gives provinces a civil right over employment contracts, which typically place restrictions between employers and employees.35 Federal jurisdiction over some employment matters arises out of S. 91 of the Constitution Act (1867) that gives the federal Parliament legislative authority over federal employees. The Canada Labour Code is generally limited in its application to workers in “Works or undertakings connecting a province with another province or country”36; 31 Constitution Act, 1867 (UK), c 3., ss. 91 & 92. 32 British Columbia Electric Ry. Co. v. Canadian National Ry. Co.  SCR 161; Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al.  2 SCR 311; United Transportation Union v. Central Western Railway Corp.  3 SCR 1112. 33 Canada Labour Code, RSC 1985, c L-2. 34 “Labour Law in Canada”, online: <http://labourrelations.org/LabourLawCanada/ LabourLawCanada.html>. 35 Supra note 33. 36 “Division of Legislative Powers” Human Resources and Social Development Canada (HRSDC), online: <http://www.hrsdc.gc.ca/ eng/lp/spila/clli/eslc/02Division_of_Legislative_Powers.shtml>. Examples of these works or undertakings include railways, bus operations, trucking, pipelines, ferries, tunnels, bridges, canals, telephone and cable systems. 11 international shipping, air transport, communications, banks, federal crown corporations and defined operations “declared by Parliament to be for the general advantage of Canada or of two or more provinces.”37 Despite the federal jurisdiction over international matters, including the subjects of naturalization and aliens, most temporary foreign workers in Canada – including SAWP workers – are deemed by the federal government to fall under provincial jurisdiction.38 As of February 2012, all Canadian provinces with the exception of Ontario and Alberta grant collective bargaining rights to farm workers through provincial labour legislation.39 Alberta has the most extensive prohibition, banning agricultural workers from engaging in any type of collective bargaining activity.40 Ontario was the scene of a protracted legal battle beginning in the 1990s. An NDP government extended full collective bargaining rights to farm workers in the province in 1994,41 only to have the legislation repealed by a Progressive Conservative government the following year.42 The current legislation in Ontario represents a modified structure of farm worker associations that nevertheless excludes farm workers from collective bargaining provisions available 37 Ibid. Examples of operations deemed to be for the national advantage of Canada include flour, feed and seed cleaning mills, feed warehouses, grain elevators and uranium mining and processing. 38 CIC, “Temporary Foreign Workers: Your Rights and the Law” online: <http://www.cic.gc.ca/ english/work/tfw-rights.asp>. Section 91 of the Constitution Act, 1982 outlines the “Peace, Order and Good Government” [POGG] powers vested in the federal government, and section 91(25) specifically grants federal jurisdiction over naturalization and aliens. 39 T Claridge, “Farm Workers’ Inability to Bargain Violates Charter” (28 November 2008) The Lawyers Weekly, online: <http://www.lawyersweekly.ca/index.php?section=article&articleid=811> 40 Alberta Labour Relations Code, C. L-1 41 Agricultural Labour Relations Act, 1994, S.O. 1994, c. 6 (repealed 10 November 1995. See: 1995, c. 1, s. 80 (1).). 42 Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, Sched. A, passed by the Mike Harris government on November 10, 1995. 12 to most other workers through provincial labour legislation.43 1.3.1 Law and employment in the SAWP In 2011, the hourly wage rate for SAWP workers in British Columbia was $9.28.44 This is compared to the BC Minimum hourly wage of $8.75 as of May 1, 2011, which is increasing to $9.50 after November 1, 2011.45 Under new guidelines issued by HRSDC, the Temporary Foreign Worker (TFW) Directorate now reviews SAWP wages to "ensure that wages being paid to temporary foreign agricultural workers are consistent" with Canadian farm workers' wages performing similar tasks.46 Adjusted SAWP wages must equal or exceed provincial minimum wages. If provincial minimum wages remain stagnant for long periods, as occurred in BC under the Liberals from 2001-2011 or Ontario under former Premier Mike Harris, SAWP wages tend to remain below requirements for a living wage.47 The Canadian agricultural industry often defends the SAWP by pointing out the shortage of agricultural labour in Canada.48 Typically this defense is presented within the 43 Agricultural Employees Protection Act, SO 2002, c 16; Ontario Labour Relations Act, SO 1994, c 1. 44 BC Agriculture Council, "2010 Regional SAWP Meeting Notes" (26 October 2010), online: <http://bcac.bc.ca/userfiles/file/wali/2010%20Regional%20SAWP%20meeting%20notes.pdf>. 45 BC Premier Christy Clark announced the minimum wage increase shortly after taking office in March 2011. The minimum wage in BC increases to $9.50 as of November 1, 2011, before reaching the target of $10.25 in May 2012. 46 HRSDC, “Wage Rates” (7 September 2011), online: <http://www.rhdcc- hrsdc.gc.ca/eng/workplaceskills/foreign_workers/questions-answers/agricultural.shtml#w01> The TFW Directorate adjusts SAWP wages the first of January of each year. 47 The Ontario rate for agricultural work after 1995 exceeded Ontario's general minimum wage rate of $6.85 - a rate that went unchanged during Harris Conservative government from 1995-2002 and is considered far below the requirement for a "living wage." See Canadian Centre for Policy Alternatives, "Working for a Living Wage 2010”, online: <http://www.policyalternatives.ca/livingwage2010>. 48 Alberta Milk, “Farm Labour Initiative” (2009), online: http://www.albertamilk.com/farmlabour/Farmlabour.aspx. The dairy industry in Alberta is particularly affected by farm labour shortages, due to higher wages offered in work related to the petroleum industry. 13 context of the comparative unreliability of resident or citizen labour.49 This then raises a question: What exactly is it that makes farm owners believe that Mexican or Caribbean farm labour is more reliable than Canadian labour? Is this an economic imperative, a predisposition, or a lack of desire for Mexicans or Caribbeans to do anything else? Do the civil rights of Canadian citizens and permanent residents somehow make them "unreliable" for agricultural work? This thesis will illustrate how throughout the 20th century the unattractive nature of agricultural work has often resulted in the use of captive or economically subordinate populations; yet other industries with demanding work continue to attract Canadian labour. Should we be satisfied with such characterizations in Canada today - especially in light of the nature of the work? This question is particularly important because one of the distinctions of agricultural work is that it is exceptionally dangerous, with work-related injuries a common occurrence. As noted above workplace accidents are not uncommon, but the long-term effects of working on farms can also be hazardous. In 2004, a report by the Ontario College of Family Physicians linked the use of pesticides on Ontario farms to increased rates of cancer and neurological diseases.50 Workplace safety regulations are in place, but the actual enforcement of these regulations when it comes to SAWP workers is questionable.51 Hours of work and minimum wage provisions in provincial labour codes are generally applicable to migrant workers within Canada but again there is some uncertainty in the actual application of these requirements. Although federal government 49 Basok, supra note 16. 50 M Sanborn, et al, Pesticides Literature Review (Toronto: Ontario College of Family Physicians, 2004) at 13-16. 51 Preibisch, supra.note 30 at 444. 14 officials are theoretically responsible for oversight of the program, in practice officials in Ottawa remain detached from participants from the time workers have entered Canada and begin working at their farm to the time when they are driven to the airport and flown back to their home countries. In addition, federal government officials are supposed to act to protect participants’ rights but Canadian officials have been alleged to act more often in favour of employers’ interests.52 Officials from SAWP workers home countries – who should nominally advocate on behalf of their citizens – nevertheless often act in the interests of the employer to protect the existence of the SAWP, and the remittances sent home by program workers.53 The difficulty with participation in the SAWP is that the structure and operation of the program may hamper the ability of migrant workers to develop a level of worker consciousness that could challenge the restrictive structure of the program. 1.4 Existing literature on the issue There is clearly a problem here – and it is not the main purpose of this thesis to expose this problem. Many other scholars have already done this quite effectively. Sawchuk’s analysis clearly shows that guest workers in Canada today are “perhaps the closest approximation to the US system of chattel slavery” with many rights to health and safety limited, social benefits restricted, or freedom of movement severely restricted.54 This is supported by interviews containing accounts of migrant workers comparing “life 52Ibid. at 433. Preibisch provides an account of one government official urging a farmer complaining about his SAWP workers to threaten them (“tell them they’re going home.”). 53 S Ferguson, “Conditions Tough for Canada’s Migrant Workers” (11 October 2004) Maclean’s, online: <http://www.encyclopediecanadienne.ca/articles/macleans/conditions-tough-for-canadas-migrant- workers>. 54 Sawchuk, supra note 19 at 500-501. 15 and work in Canada to slavery.”55 My own field research revealed deplorable housing conditions for some SAWP workers on a Fraser Valley farm, with some workers drinking untreated water and forced to live in a converted refrigeration unit.56 Gonzalez and Rodriguez pay particular attention to the vulnerability of SAWP workers and their analysis reveals that the Canadian government has failed to learn from previous mistakes in implementing guest worker policies. They identify two major flaws in the SAWP. The first is the lack of a permanent residency option in the program, which they ascribe to unwillingness on the part of Canadian society to absorb unacceptable migrants on the basis of race or social status.57 This is an exclusionary policy that mirrors other patterns historically directed towards guest workers in settler societies. The lack of any permanent residency option distinguishes the SAWP from the high-skilled stream of Canada’s Temporary Foreign Worker Program, and the Live-in Caregivers program.58 Some scholars attribute this to unwillingness on the part of Canadian society to absorb unacceptable migrants on the basis of race or socio-economic status.59 55 EE Grez, “Harvesting Seeds of Justice: The Plight of Migrant Farm Workers in Ontario” (2005) 68/69 Women and Environments Int’l Magazine 16 56 Lucy Luna, Coordinator of AWA/UFCW Migrant Worker Support Centre, interview by author, Abbotsford, British Columbia, (22 August 2010). 57 Gonzalez and Rodriguez, supra note 59. 58 CIC, “Working Temporarily in Canada: The Live-in Caregiver Program” (3 February 2011), online: <http://www.cic.gc.ca/english/work/caregiver/index.asp>. The Live-in Caregivers Program allows foreign citizens to enter Canada on work permits provided they are qualified to provide care for children, elderly persons or persons with disabilities in private homes without supervision. Live-in caregivers must live in the private home where they work in Canada. A permanent residency option is available to live-in caregivers who have completed 24 months of authorized full-time employment in Canada or accumulated 3,900 hours of authorized full-time employment within a minimum of 22 months. The work experience must be acquired within four years of the date of arrival. 59 AG Gonzalez and OR Rodríguez, “Patriarchy and Exploitation in the Context of Globalization” 39:2 (2006) Lab Cap & Soc 126 at 127. However, the same could be said for live-in caregivers, who are nevertheless given a pathway to Canadian citizenship. One possible explanation is that live-in caregivers, a large percentage of which come from the Philippines, are more likely to speak one of Canada’s official languages (i.e. English in the case of Filipino live-in caregivers). 16 The second flaw is the paradoxical nature of the program. For the SAWP program to be successful, it must offer a lower paid, more compliant, thoroughly disciplined, and easily disposable workforce. There has been significant research into the benefits of SAWP workers to agricultural employers, and their defense of the program. These benefits include the provision of a “flexible” workforce with limited rights relative to domestic workers.60 Employers have the advantage of federal and even provincial government assistance in selecting, dispatching, and disciplining workers provided at no cost by supplying countries. Preibisch notes that throughout the 20th century, the unattractive nature of agricultural work has often resulted in the use of captive or economically subordinate populations; yet other industries with demanding work continue to attract domestic labour.61 There is also a large gender imbalance in the program as men constitute the overwhelming number of participating workers. Under the SAWP, employers are specifically permitted to request workers by name.62 Only in 1989 did employers begin requesting women workers in the SAWP.63 Despite a slight uptick in female participants in recent years, the program remains overwhelmingly male.64 Male and female workers are hired to perform specific tasks according to gender, as well as by country of origin, in 60 Preibisch, supra.note 30. 61 Ibid. at 430. 62 The total number of “named” workers must be specified in the LMO form. See Service Canada, “Application for a Labour Market Opinion – Seasonal Agricultural Workers Program”, (2012), online: <http://www.servicecanada.gc.ca/eforms/forms/sc-emp5389(2012-01-008)e.pdf>. 63 K Preibisch and EE Grez, “Migrant Women Farm Workers in Canada” (July 2008), online: <http://www.rwmc.uoguelph.ca/cms/documents/182/Migrant_Worker_Fact_Sheet.pdf>. 64 Ibid. For example, Ontario in 2006 received 15,576 SAWP workers with only 393 being women, representing at 2.5% the highest proportion of women to date. Seventy five percent of those women came from Mexico, 18 percent from Jamaica, and the remaining from Barbados and Trinidad and Tobago. 17 order to prevent worker fraternization or unity in the face of oppressive employer labour practices.65 The overwhelming male bias is justified by the legal structure of the program, and often rationalized by employers through the misconception that women do not wish to participate in particular farming occupations, or in temporary international migration in general.66 Language also plays a key role in this selection, as workers are picked according to different languages spoken - a process that makes inter-worker communication difficult, if not impossible, and is designed to frustrate efforts at worker solidarity towards any problems in labour conditions. The SAWP represents immigration policy acting as a “powerful tool” in the regulation of labour markets.67 Canada's approach to temporary foreign workers purposefully favours highly skilled temporary foreign workers over those temporary workers in the least desired, lowest paid sectors of the Canadian.68 The increased dichotomy between skilled and unskilled temporary foreign workers reflects Canada’s position within the larger processes occurring between labour and economic globalization. Santos provides the example of migrant workers as a focal point of tension 65 Preibisch, supra.note 30 at 436. 66 This rationalization is offered despite the fact that female migration from Latin America and the Caribbean to North America has been occurring for decades, and in recent decades the gender distribution among permanent migrants has been reasonably balanced. See I Omelaniuk, “Gender, Poverty Reduction and Migration” (2005), online: <http://siteresources.worldbank.org/EXTABOUTUS/Resources/Gender.pdf> 67 Preibisch, supra note 30. 68 In 2001, Ottawa began a pilot-program to admit the partners of highly skilled temporary workers for employment in Canada. This program does not apply to the partners of “low-skilled” temporary workers, including those workers in the agricultural commodity sectors of the SAWP. See Canadian Council for Refugees, "Non-Citizens in Canada: Equally Human, Equally Entitled to Rights", Report to the UN Committee on Economic, Social and Cultural Rights on Canada's compliance with the International Covenant on Economic, Social and Cultural Rights, (March 2006) at 6-7. The Spousal Employment Authorization initiative includes the spouses and common-law partners of management and professional employees as well as those of other “skilled” workers. As of April 2011 the Pilot continues. 18 between national and transnational forces.69 However, left unanswered is the role of national organized labour in tensions around the use of migrant workers, a use that reflects both the state’s desire to reassert sovereignty and a broader conflict between North and South.70 In exploring the relationship of law to globalisation, existing literature demonstrates the difficulty of law’s engagement with migrant workers, an engagement that requires a reappraisal of the tools, ideas and agenda of legal theory.71 The relationship is made more complex by the temporary status of the legal subjects. Even the simplest concepts of law - starting from a core point that all “groups have disputes and the need to prevent and settle them” - proves challenging when applied to seasonal agricultural migrant workers.72 SAWP workers remain with only temporary status in Canada with no prospect of family reunification or permanent residency to enable sponsorship of families. Many workers return to Canada for periods of 8 months per year – some for year and after year, for decades - with women and children left behind in migration source communities in Mexico and the Caribbean.73 The SAWP is structured to favour applicants with families as those workers are believed to be less likely to want or attempt to stay in Canada after the growing season is over. The program is thus at odds with the Immigration and 69 B De Sousa Santos. Towards a New Legal Common Sense (Chicago: Northwestern University, 2003) at 1-14. Santos notes that the end of the period of “organized capitalism” in the 1970s “seems to coincide with the demise of permanent migration and settlement.” While only four countries (USA, Canada, Australia and New Zealand) accept permanent migrants conferred with eventual citizenship rights as a matter of policy, virtually all countries are participating in some sort of system of temporary migration scheme. 70 Ibid. 71 W Twining, Globalisation and Legal Theory (London: Butterworths, 2000) 72 Ibid at 76. 73 Canadian Council for Refugees, supra note 68. 19 Refugee Protection Act’s stated objective to reunite families in Canada.74 It is also not consistent with Canada's historic policy of allowing farm worker migrants to eventually obtain residency and citizenship.75 The chronic separation from families and withholding of national citizenship rights or permanent residency – or indeed any prospect of permanent residency to those participating in the SAWP – creates an inequality that puts these temporary workers within the bounds of legal discrimination. Moreover, the fact that temporary foreign workers are rapidly becoming the core workforce for horticulture operations in Canada has profound implications for the general immigration debate in Canada. These workers are in a much more vulnerable position than Canadian workers in the same industry and, as has been more widely visible in the United States, are especially vulnerable to widespread exploitation. Although there has been considerable study of the social condition of SAWP workers in Canada76, including the inadequate legal protections for those workers77, legal studies of the response to these problems through unionization are largely absent from the literature. Partially this is because of the recent nature of unionization efforts directed at 74 Immigration and Refugee Protection Act, SC 2001, c 27 s 3(d). 75 CIC, “Forging Our Legacy: Canadian Citizenship and Immigration, 1900–1977 - Canada Welcomes Dutch Farmers” (1 July 2006), online: <http://www.cic.gc.ca/english /resources/publications/legacy/chap- 5a.asp#chap5-8>. Citizenship and Immigration’s website contains many historic accounts of European farm worker migration to Canada. This excerpt chronicles the immigration of Dutch farming families throughout the 1950s. 76 See J Hennebry, “Bienvenidos a Canadá? Globalization and the Migration Industry Surrounding Temporary Agricultural Migration in Canada” (2008) 35:2 Can Stud in Population 339; Gonzalez and Rodriguez, supra note 59; Preibisch, supra note 30. 77 P Taran, E Geronimi, Globalization, Labor And Migration: Protection Is Paramount (Geneva: ILO, 2002). Taran and Geronimi argue that the role of social partner and civil society organizations in promoting comprehensive, sustainable and standards-based approaches to migration by governments is essential. 20 SAWP workers. Studies that focus on the legal problems encountered by workers participating in the SAWP have tended to focus more on the social conditions of the workers and the failures of the program rather than examining the practical impacts of any potential solutions to those problems.78 Recently launched legal aid projects for temporary foreign workers tend to focus on legal assistance for workers in immediate need, rather than taking a scholarly approach towards analyzing the effects of collective organization.79 Other studies that have focused on unions and migrant workers have tended to adopt a solely Marxist approach emphasizing the value of class struggle.80 1.5 Need for research How will unionization help to address the flaws in the SAWP, a program that has existed for over 40 years and flourished in a non-union environment? This is one of the central questions of this thesis and existing literature has not definitively answered this question. The collective agreements that have been initiated within the SAWP framework in the past several years represent a recent and fluid legal development. The prospect of SAWP workers going on strike is one that until recently would have been dismissed as operationally impractical. The recently negotiated collective agreements are unprecedented in that they apply to workers operating in a program that legally allows for repatriation of workers and selectivity in hiring. Both of these practices have been 78.Grez, supra note 55. 79 An innovative concept recently launched by MOSAIC includes a one year legal education and facilitation project for temporary foreign workers. This project, funded by the Law Foundation of British Columbia, will deliver workshops and presentations in Vancouver/Fraser Valley, Penticton, Prince George and Victoria. The project will also prepare public legal education materials for temporary foreign workers and community workers working with or interested in temporary foreign workers. The project is delivered in collaboration with settlement agencies in Penticton, Prince George and Victoria. 80 J Butovsky, M Smith, “Beyond Social Unionism: Farm Workers in Ontario and Some Lessons from Labour History” (2007) 59 Labour, online: <http://www.historycooperative.org/journals/llt/59/butovsky.html>. 21 recently used to obstruct unionization. The nature of agricultural work and the historical resistance to Canadian agricultural worker unionizations, combined with the legal swathe wrapped around temporary migrant farm workers, have combined to act against the development of collective bargaining on Canadian farms. This has changed dramatically within the last decade, but scholarly attention has not kept pace with rapid legal developments in this area. The need for scholarly analysis of unionization and SAWP workers is prompted by the expanding use of temporary foreign workers in Canada. The Canadian government has recently expanded Service Canada’s Temporary Foreign Worker Program (TFWP) to cover agricultural workers. There are several indications that the Canadian government is moving in this direction as a means of avoiding the regulatory structures offered by the SAWP. Part of this is due to the process of “ordering” workers through third-party agencies. This is becoming increasingly common in Canada and the TFWP allows for a less restrictive role for third party agencies than the SAWP.81 Hennebry notes that family members and occasionally lawyers most often facilitate workers’ entrance into the SAWP. Her work on networks relating to the operation of the SAWP reveals an extra- legality in the form of individuals similar to the “coyotes” that facilitate entrance for Mexican migrants into the United States. In relation to entering the SAWP, these individuals are offering to get Mexicans into the program for a fee, often a rather large amount.82 Does unionization run contrary to de-regulation of government involvement in the 81 Hennebry, supra note 76. 82 Ibid. at 347. 22 use of temporary foreign workers? Hennebry has “described a process by which time and space are not given and absolute, but are increasingly “compressed” by new transportation and communication technologies.” This has had the effect of increasing the networks of temporary migration, and is at least partially responsible for the huge increase in SAWP and TFWP participation within the last decade. Arguably, through these advancements, temporary migration networks have been made more extensive and robust.83 The formation of these networks is perhaps one of the most disturbing aspects of the rise in SAWP and FWP participation. They are “mesostructures” forming around temporary migration patterns, encouraging “individuals, groups, or institutions” to “take on the role of mediating between migrants, their employers, and political/economic institutions” with the goal of profiting off of migrants.84 The need for analysis of unionization and SAWP workers is made more urgent by these developments. They may render migrant workers even more “vulnerable, temporary, and tertiary; providing a captive market for an expanding migration industry comprising third-party recruiters, communication and transportation service providers, and other private intermediaries.”85 As Sawchuk notes, three other sectors have featured prominently in recent migrant worker policy discussions, including hospitality (e.g. hotels, seasonal resorts), transportation (i.e. trucking), and light manufacturing (food processing, plastics and other consumer products).86 This has profound implications not 83 Ibid. at 341. 84 Ibid. at 345. “Mesostructures” in this context means a complex web of actors, including the interaction between government officials, and employers as well as recruiters and immigration brokers or consultants. It may also implicate unions and other aspects of civil society. 85 Ibid. at 347. 86 Supra note 19. 23 only on the rights of migrant workers in these sectors but if expanded significantly the “economic effects on broader labour market conditions would likely multiply, spreading well beyond these sectors.”87 The use of temporary foreign workers may also be displacing the use of domestic workers from traditionally lower income groups in some provinces. Preibisch notes that while the number of hourly employees fell dramatically in both Ontario and Quebec from 1983 to 2000, participation in the SAWP increased dramatically; there is also evidence that temporary foreign workers have displaced First Nations workers in some industries in Manitoba.88 The questions addressed in this dissertation deal with legal issues that until recently have never been raised in Canadian courts. There is scholarly research on unionization of Canadian agricultural workers and the historical presence of migrant farm worker populations in Canada, but there is extremely little in the way of legal analysis relating to ongoing legal court challenges, unionization campaigns and SAWP workers. This dissertation provides the first comprehensive effort to examine the Canadian legal response to collective bargaining and temporary migrant farm workers. The dissertation does not consider unionization, agricultural work, or migrant workers as separate historical actors. It considers them together within a historical and legal context that has, up until very recently, preempted the use or even the introduction of collective bargaining as a remedy to chronic problems within the SAWP. 87 Ibid. at 496-497. 88 Supra note 30. 24 1.6 Theory and methodology In my prior work,89 I developed a theory of “labour development” as part of an examination of the relationships between the developed and developing world in regulating labour. I argued that the type of social instability caused by economic globalization is not taken into account by conventional Western labour law, and I raised two main points in my conclusion. First, labour development programs as they currently operate are a fundamentally inadequate response to deal with the problems posed to workers in developing countries by economic globalization. Second, the structure of these programs may perpetuate a hierarchy of haves and have nots, or even an informal imperial community.90 By definition, such a community is composed of unequal members. This dissertation builds on this theoretical analysis and applies it to a very specific community – temporary migrant workers in Canada and employed through the SAWP. The aim of this dissertation is not to combine various theoretical approaches into a coherent whole. Rather, my intention is to draw from many theoretical approaches in order to assist this dissertation’s goals. These goals include exposing the operation of law within the context of the SAWP and to outline potential changes in the legal framework that could aid in addressing problems with the program. Put simply, legal theory is used in the service of these objectives and not vice versa. 89 R Russo, Labour Development: The Improbable Reconciliation of Globalization with the Rights of Workers (LLM Thesis, Vancouver: UBC, 2006). 90 J Tully , "On the Nature of the 'New' Imperialism", Lecture at Demcon Colloquium on Political, Social, and Legal Theory session, Victoria, BC, (30 September 2005). 25 I am referring to “legal theory” here as an ecumenical term. My use of theory in this context is not to adapt a particular theory in a narrow sense. Instead, my usage of theory is a meta-analysis drawn primarily from law but also from history, political science and economics. The relationship between theory and data in this dissertation should add to the scholarly movement towards a general legal methodology that will assess the role of national and international law, governments, non-governmental actors and institutions responding to the phenomenon of temporary labour migration.91 The methodology utilized in this dissertation is aimed at developing a legal framework that allows for an effective response to conditions arising from this phenomenon. The primary methodology that I utilize consists of legal research and analysis into the political and legal responses to temporary migration of agricultural workers, focusing on the unionization of workers in the SAWP. It is concentrated on national and international legal responses relating to collective bargaining and SAWP workers. The heart of this thesis lies in the legal analysis of specific legal instruments available as potential remedies to the problems faced by SAWP workers in Canada. However, the broader context of this thesis lies in the exploration of law and inequality. The research here does not directly incorporate gender or language analysis, but these are important markers of the presence of inequality. The inequality lies within the structure of the SAWP, and the roots of the program. Legal research and analysis generally encompasses research into applicable jurisprudence, legislation and other legal documents that relate to the SAWP program, 91 A Paulus, “From Territoriality to Functionality? Towards a Legal Methodology of Globalization”, online: <http://www.cpogg.org/paper%20amerang/Andreas%20Paulus.pdf>. 26 unionization and law. For this dissertation it involved analyzing relevant and recent Supreme Court of Canada judgments. I examined the arguments contained in the factums of both the UFCW and the Ontario government. There were also several intervener briefs submitted by interested third parties in various actions that were examined. These included briefs arguing in support of governments, employers, unions and other non- governmental organizations. The methodology involved researching and analyzing lower court and tribunal decisions, including farm employers’ constitutional appeals at the BC Labour Relations Board directed against unionizing SAWP workers in BC. I also analyzed the federal SAWP Contract of Employment within the framework of relevant provincial labour legislation, including the BC Labour Relations Code92 and the Ontario Agricultural Employees Protection Act.93 I examined provincial labour legislation, unionization campaigns and decisions from Manitoba, Alberta and Quebec as well. These sites represented a sample of union activity, or lack of activity due to restrictive provincial labour legislation. My research and analysis extended into signed collective agreements in BC covering SAWP workers between the UFCW and Floralia farms, and UFCW and Sidhu & Sons farms. It also encompassed international law, including relevant ILO labour conventions dealing with freedom of association and collective bargaining; UN instruments such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families94; and the North American Agreement 92 Labour Relations Code, RSBC. 1996, c 244, s 2(6)(1). 93 Agricultural Employees Protection Act, SO 2002, c 16 94 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 2220 UNTS at 3. 27 on Labour Cooperation (NAALC), signed under the auspices of the NAFTA. Both the national and international legal migrant labour analysis is situated within the unique historical context of unionization and farm workers in Canada. The legal research and analysis’s purpose was to test the supposition that unionization will correct the problems identified above and allow the SAWP to better function in those workers` interests. Combined with interview data and the comparative analysis with the United States, it assisted in mapping outcomes regarding unionization of SAWP workers. The research plan involved accessing these documents and information through government archives located online and in physical locations. My plan took into account that, depending on the information obtained, there may well be no clear answer to the question of unionization of SAWP workers. Instead, the legal research was designed to find pieces of data relating to this question, and the legal analysis was designed to try to fit the pieces together in order to map outcomes and support the conclusions reached under each section. The causes and effects of farm labour migration are considered in this dissertation within the historical context of the SAWP’s adoption. Any analysis of labour migration must also draw upon elements of economic theories of international migration as part of the context of the exercise, but economic theories have otherwise not been extensively considered. These are areas that have been extensively covered by scholars in recent years and they tend to focus on the economic effects of labour migration rather than the legal responses to the phenomenon.95 The focus here is primarily on the response of 95 For economic considerations of immigrant labour and work, see A Islam, “The Substitutability of Labor Between Immigrants and Natives in the Canadian Labor Market: circa 1995” (2009) 22:1 J of Population Econ 199; For historical considerations, see Sawchuk, supra note 19. 28 unionization in Canada, but other legal responses such as NGO involvement, public lawyering responses and jurisprudential considerations of national and international laws are examined as well. 1.7 A map for this dissertation Chapter 2 provides an historical and conceptual introduction to agricultural work in Canada, and Canadian labour laws in relation to the agricultural sector. The Chapter begins with an historical overview of farming and farm workers in Canada. It then examines the growing shortage of agricultural labour that accompanied farm mechanization and urbanization of the labour force. The development of the SAWP was a response to these chronic labour shortages that became increasingly acute after the Second World War. The federal government tried various schemes to solve this problem leading up to the creation of the SAWP, and this Chapter analyzes them for their effectiveness. In response to continuing farm labour shortages, the farm lobby, particularly in Ontario, increasingly lobbied the federal government to allow Caribbean farm workers to enter Canada as seasonal workers.96 The difficulties in obtaining and retaining a “reliable” agricultural workforce meant that farm labour required a type of worker that was not only cheap but also with severely limited freedoms.97 Historically, the agricultural sector in Canada utilized both permanent migrants and temporary foreign 96 JL Findeis, The Dynamics Of Hired Farm Labour: Constraints And Community Responses (New York: CABI, 2002) at 177. 97 T Basok, “Free to Be Unfree: Mexican Guest Workers in Canada” (1999) 32:2 Lab Cap Soc 192. Farm labour has been referred to as “unfree.” The phrase "unfree labour" is used in comparison with wage labour or free labour, concepts that in Marxist terms refer to economic compulsion. Marx did not actually use the term "unfree labour" in his work. 29 workers from Latin American and the Caribbean98 but for the past 40 years, the Canadian government has had long-standing reciprocal agreements through the SAWP to facilitate the temporary entry of agricultural workers into the country. I examine the evolution and recent trends in temporary labour migration to Canada and the historical response of Canadian unions to these trends. The historical review is designed to set the context for the legal analysis and comparisons that follow in the following chapters. Chapter 3 discusses the legal context around agricultural labour, SAWP workers and collective bargaining. The historic agricultural economic model hindered unionization efforts. Farm labour unionization was also hampered by the dominant model of collective bargaining in Canada, one that assumed the norm of an adult, white male citizen holding a single job at a stationary work-site.99 The unionization process accelerated with a 2007 ruling by the Court granting limited constitutional protection to collective bargaining in Canada under Section 2(d) of the Canadian Charter of Rights.100 The chapter also analyzes decisions in the BC Labour Relations Board, Ontario Court of Appeal and the Supreme Court of Canada significantly affecting farm workers’ collective 98 Applied History Research Grooup, “The Peopling of Canada” University of Calgary (1997), online: <http://www.ucalgary.ca/applied_history/tutor/canada1891>. Towards the end of the nineteenth century, Canada wanted a permanent immigrant population of agricultural settlers established in its newly acquired western provinces and territories. In addition to British immigrants, Eastern European immigrants recruited as farmers and farmworkers included Mennonites and Doukhobors from Russia and Germany, Ukrainians and Icelanders. As late as the 1950s, Canada continued to recruit permanent European migration to work in rural areas as farmhands. See Canadian Encyclopedia, “Portugal and Canada”, online: <http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=A1ARTA0006423> 99 L Vosko, Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal: McGill, 2006) at 375. 100 Health Services and Support-Facilities Subsector Bargaining Association v. British Columbia. , 2 SCR 391, 2007 SCC 27. 30 bargaining rights.101 The chapter's research was conducted through use of Union and Government archives, research through legal databases, and interview and questionnaire data from union and federal government workers. This chapter also analyzes the SAWP Employment Contract and compares it to collective agreements covering SAWP workers. Chapter 4 performs a focused, qualitative analysis of unionization of migrant farm labour in the United States, and compares outcomes with the situation in Canada. U.S. labour law is examined and the history and law relating to migrant farm labour is analyzed. The comparison analyzes similarities and differences in the recent legal responses to alleged violations of law respecting unionization of workers in the United States and Canada. The U.S. analysis focuses on migrant workers in the United States under the H-1A Visa, a temporary migrant farm worker program. The common thread includes complaints related to workers’ efforts at unionization. Chapter 5 performs a qualitative and comparative analysis. The framework is the North American Agreement for Labour Cooperation that includes the United States, Canada and Mexico. The case studies include complaints lodged through the NAALC mechanism against either Canada or the United States, regarding workers and collective bargaining rights within their respective territories. The efficacy of complaints directed through the NAALC, as well as the lack of activity related to Canada, are analyzed. Chapter 6 examines the theoretical and practical applications of international law to SAWP workers. The international agreements that form part of the SAWP are basically administrative arrangements but they are also international in scope. This chapter defines 101 Fraser v.Ontario (Attorney General), 2008 ONCA 760; Ontario (Attorney General) v. Fraser, 2011 SCC 20. 31 migrant workers and economic globalization within the context of SAWP workers and addresses theoretical conceptions of law in relation to those workers. I focus on exactly what kind of international law could emerge in this paradigm. The theoretical considerations here help to highlight the basis for politicians’ and jurists’ reluctance to apply international standards where Canadian labour laws or constitutional "protections" are already in place through instruments such as Canada’s Charter of Rights and Freedoms. I then examine these international standards and Canada’s limited accession to international human rights treaties affecting migrant workers. The conclusion in Chapter 7 provides an overview and synthesis of the research findings. It comments on the original contributions, both theoretical and practical, of these findings to the relevant conceptual fields. It finally offer suggestions for future research, and some possible legal reforms to address some of the issues raised in the dissertation research. 32 2 - History of Agricultural Sector, Farm Labour Migration to Canada The chapter is designed to set the context for the Canadian and international legal sections that follow. Building on the introductory chapter’s considerations of the SAWP and collective bargaining, it will provide a historical framework and introduction to the phenomenon of farm labour migration to Canada and the origins of “guest worker” agricultural worker programs in Canada.1 The purpose of this Chapter is to trace the development and evolution of seasonal agricultural migration to Canada in order to specifically map out certain elements inherent in the modern SAWP that continue to reflect traditional attitudes towards agricultural labour migration and migrant farm workers’ rights in relation to collective bargaining. The Chapter first provides a brief framework regarding labour migration and economic globalization. This framework underlies the history of farm labour migration to Canada leading ultimately to the creation of the SAWP. The chapter then provides a history of Canadian government attempts to satisfy chronic agricultural labour shortages throughout Canada. Farming operations in Canada are contrasted with evolving immigration policy. Portuguese agricultural labour migration to Canada is examined as this community represented one of the last permanent agricultural labour migrations to this country. The chapter then focuses on the advent of temporary agricultural based labour migration to Canada and the origins of the SAWP. Particular attention is focused 1 The concept of “unfree” agricultural labour and incorporation of foreign labour into the Canadian farm labour context has been explored by scholars. See V Satzewich, Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945 (New York: Routledge, 1991); Basok, “Free to be Unfree”, supra note 97. 33 on the importance of the British colonial legacy in facilitating the creation of the SAWP, and the role of economic, racial, and political considerations that fuelled the development of the program. The conditions that have kept the SAWP in existence for over 40 years will be contrasted with the conditions specifically inherent in the program itself that mirror a more a general attitude in Canadian society towards race, workers’ rights and temporary labour migration. Finally, the chapter analyzes the beginnings of the farm worker unionization movement in Canada. The agricultural labour movement is analyzed at the end of this chapter as it is an outgrowth of the historical conditions of Canadian farm labour as well as providing the context for the legal analysis in Chapter 3. 2.1 Framework for analyzing farm labour migration A program such as the SAWP defines its participants in terms of the temporary transfer of labour as a commodity.2 The historical-structural theoretical framework focuses on the transfer of value as a commodity has been applied in a variety of models, such as "Dependency theory" that originated following the Second World War. It is predicated on the notion that, due to asymmetrical patterns of trade and the nature of post-colonial relationships, resources flowing from developing to developed countries primarily benefit the latter.3 The various models of the historical-structural framework apart from dependency theory share some core similarities. The migrant’s labour is seen as his or her most valuable commodity. The export of seasonal agricultural labour cannot engender 2 HA Watson, “Theoretical and Methodological Problems in Caribbean Migration Research: Conditions and Causality” 31:2 Soc and Econ Stud 165 3 FH Cardoso, E Faletto, eds Dependency and Development in Latin America (Berkeley: University of California Press, 1979) 34 development on the same scale as that achieved by wealthier states. Transmission of this type of human capital alone does not foster a process of innovation as seen in the industrial revolution, nor does it allow the "periphery" to develop autonomous means "of technical innovation.”4 As opposed to a circular development pattern, the historical- structural framework treats migration as a uni-directional exchange or transfer of labour as value. The historical-structural framework borrows heavily from Marxist conceptions of class structure and the exploitation of labour relationships in an unequal relationship. The role of class conflict in this analysis ensures that the mechanisms for exploiting this relationship, as well as the resulting contradictory tendencies rooted in the relationship's structure, have to be explicitly managed.5 The organizing principle is that of capital accumulation and expansion with little room for developing workplace rights.6 The framework takes a “macroeconomic” approach involving a holistic examination of structural factors impacting labour migration, such as recruitment and compensation.7 The framework thus allows for distinction between individual motives for temporary labour migration and the function of structural changes that "propel aggregate population movements."8 The SAWP can be situated within this historical-structural framework. 4 M Vernengo, "Technology, Finance and Dependency: Latin American Radical Political Economy in Retospect" (2006) 38:4 Rev of Radical Pol Econ 551. 5 Cardoso, supra note 3. 6 CH Wood, “Equilibrium and Historical-Structural Perspectives on Migration” (1982) 16:2 Int’l Migration Rev 298 at 302. 7 Ibid. 8 Ibid. 35 Fundamentally, it is a program whose entire premise is based on an unequal relationship between employer and employee. The inequality in relationships is more generally reflected in the relationships between Canada and the source countries for SAWP workers. This inequality fundamentally conflicts with law’s formal commitment to equality or legal egalitarianism.9 SAWP workers fail to capitalize on law’s promise of equal access to collective bargaining mechanisms. The injustice that may result from retaliatory SAWP worker deportation, for example, is one that Canadian workers never endure. Moreover, a program such as the SAWP aims to turn migration into a movement that is always based on economic need – the need for economic transfer of labour. Migration under such a program must be made constant in a qualitative and quantitative sense, meaning that the migratory movement consists only of a set number of low-skilled, temporary, agricultural workers. This is outside of, and indeed in contradiction with permanent migratory patterns going back to the industrial revolution that are inherently unequal, at least qualitatively if not quantitatively.10 Economic globalization has altered this pattern only to the extent that the set number of SAWP workers in Canada has been gradually increasing over the past two decades. These considerations make it extremely difficult to conceive of reforming the program, for example by granting national citizenship or permanent citizen rights to these workers. 9 See D Howard, The Primacy of the Political: A History of Political from the Greeks to the French & American Revolutions, (New York: Columbia University Press, 2010). The Athenian leader Pericles likely first enunciated the Greek concept of equality before the law in 5th century BC. Although law was not designed to create full equality in life, law is supposed to ensure equal justice for all. 10 This has been the case at least since the Industrial Revolution, which accelerated the “uni-directional” migration away from rural, agricultural work to urban, industry based labour. See in general P Hudson, The Industrial Revolution (New York: Bloomsbury, 2009). This remains the case even under an economic points-based immigration system such as Canada’s. 36 2.2 Overview of early Canadian farming Prior to the industrial revolution and the development of farm machinery, farm operations consisted largely of manual labour. The industrial revolution modernized the farming industry as mechanized vehicles gradually replaced the oxen and the horse drawn cart as methods of plowing the land. The development of farm equipment such as tractors and hay bailers fundamentally changed farm operations. Farms became much larger, more mechanized, and evolved towards industrial agriculture. By the early 20th century new methods of farming and strains of wheat and crops were being researched so that farming could remain profitable. These new methods were developed at places such as the “experimental farm” at Indian Head, Saskatchewan.11 Indian Head was part of a group of five experimental farms set up under the Experimental Farm Station Act of June 2, 1886.12 The farm was intended to meet new settlers’ requirements for best local farming practices by providing reliable information gleaned from long-term scientific studies on field crops and horticulture. 13 Following Confederation in 1867 authorities in Ottawa felt a need to “populate” the “empty” West while viewing the growing labour shortage on Western farms with some concern. Canada had passed its earliest immigration laws with a view to populating the 11 AE Smith "The Encyclopedia of Saskatchewan Agriculture Canada Research Stations", online: <http://esask.uregina.ca/entry/agriculture_canada_research_stations.html>. 12 The experimental farms were located at: Nappan, Nova Scotia; Brandon, Manitoba; Indian Head, North- West Territories; and Agassiz, British Columbia and Ottawa, Ontario – with the Central Experimental Farm at Ottawa acting as the headquarters for the Experimental Farms System. 13 New European settlers to Canada found themselves forming part of a loosely distributed rural population. These homesteaders needed information on new techniques of agricultural production. The Saskatchewan government came up with the idea of providing this information by train, since most settlers were close to railway stations, and so the “Better Farming Train” was launched in 1915. The trains traveled throughout rural Saskatchewan in early June, often stopping in two communities a day. See “Saskatchewan Settlement Experience” (2005), online: <http://www.sasksettlement.com/display.php?cat=Agriculture&subcat=Better%20Farming%20Trains>. 37 country as protection against civil disturbances or rebellion from the aboriginal and Métis populations. The Immigration Act of 1869 established a so-called “open door” policy, with some restrictions and barriers placed on criminals, the ill and disabled, and the poor. In 1872 Ottawa passed the Dominion Lands Act14 giving male European and American immigrants free land in return for a promise to cultivate the land and live on it permanently. “Open door” is a misleading term for Canada’s early migration policy as it was economically discriminatory and openly racist. Ottawa mainly focused on attracting farmers and labourers. These immigrants often worked as seasonal farm labourers, or in railway construction and mining in order to save funds to purchase their homesteads.15 In addition, government policy targeted white, northern European and American immigrants while attempting to exclude non-whites through measures such as the Chinese Immigration Act 1885 also known as the Head Tax Act.16 The "Open door" policy formally ended with the enactment of the 1906 Immigration Act.17 Canada's new immigration law reflected the ideas of the Immigration Minister at the time, Frank Oliver. Oliver designed the act to exclude a wider range of "undesirables" and enable deportations. Significantly although the Act sought to limit the 14 Dominion Lands Act, 1872 SC 1872, c.23, s.10. 15 N Kelly, M Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 2000) at 132. 16 Chinese Immigration Act 1885, c 71. The Head Tax Act was particularly odious as thousands of Chinese workers had been brought into Canada as labourers to help build the Canadian Pacific Railway (CPR). See V Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2006 (Toronto: Dundurn Press, 2007) at 71-72. Between 1881 and 1884, as estimated 15,701 Chinese male migrants were allowed into British Columbia to help in the construction of the CPR. The head tax severely limited subsequent Chinese migration for decades. The head tax on Chinese immigrants remained in place until 1947. 17 Immigration Act), SC 1906, c 19. 38 role of immigration booking agents through reductions in bonuses, it allowed for bonuses to encourage migration of farmers and farm labourers.18 It is difficult overstate the importance of the 1906 Immigration Act in shaping patterns of temporary agricultural migration occurring a half-century later. The 1906 Immigration Act lasted for decades until new immigration legislation eliminated expressly racist immigration provisions. During this half-century - and despite Oliver's disdain for some Continental European immigrants - a significant number of these Europeans immigrated to Canadian farms. From 1896-1914, approximately one million continental Europeans migrated to work on Canadian farms.19 The Great Depression in the 1930s in particular brought a very sharp decline to European labour emigration to Canada. However, it also brought a temporary halt to the exodus of Canadian farm labour to depressed urban areas. Employment of farm labour actually increased during this period. By the late 1930s a glut of farm workers was making it more difficult for the urban unemployed to earn money in harvest work.20 The outbreak of the Second World War in 1939 caused another seismic shift in labour and in farm production methods. Real wages for farm labourers had declined to a low of $322 per year in 1933 before going back up somewhat to $559 annually in 1941.21 18 Ibid. 19 D Avery, Reluctant host: Canada's Response to Immigrant Workers, 1896-1994, (Toronto: McClelland and Stewart, 1995) at 12, 24. The First World War, its aftermath and the Great Depression beginning in 1930 played on pre-conceptions of Anglo-Canadian worries over the slow "Canadianization" of certain continental European migrants who emigrated as farm laborers. 20 M Horn, The Depression in Canada: Responses to Economic Crisis, (Toronto: Copp, 1988) at 35 21Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1942) at 851. For comparison, the post-war decline in small farm operations and proliferation of large agricultural operations meant that by the 1970s there was less than half the number of farm operators in Ontario than during the 1918-1939 period – with approximately the same number of agricultural wage workers. See Joy Parr, "Hired Men: Ontario Agricultural Wage Labour in Historical Perspective" (1985) 15 Labour/Le Travail 91 at 102. 39 In addition, following the large-scale introduction of farm machinery and other technological advances as well as improved marketing practices, the farming model moved away from the small family unit and became more efficient, larger and less labour intensive. By 1941, the number of farms in Canada reached 732,800 - a number that would represent a peak preceding a slow and irreversible decline.22 The farm labour population was gradually freed up and farm workers left rural areas for the cities to look for work in fields such as government, business, professional trades, education and finance.23 2.3 The Federal-Provincial Agricultural Manpower Program In the first years of the Second World War many farmers and farm labourers enlisted or obtained employment in the urban war industries. From 1939-1941, provincial governments retained jurisdiction over farm labour recruitments and placements. Full employment was achieved in Canada by 1941, and by early 1942 a shortage of farm labour seriously threatened the food supply.24 In 1941, federal involvement in recruiting and transporting agricultural workers began as part of federal expansion over human resources during the war. The "higher wartime demand for almost every kind of goods and services exerted increasing pressure on the available supplies of 22 Statistics Canada, “Farming in Canada", online: <http://www43.statcan.ca/03/03b/03b_002_e.htm>. By 2001 there were 246,923 farms in Canada. See CBC News, “Agriculture Census”, online: <http://www.cbc.ca/news/background/agriculture/>. 23 Statistics Canada, “Tables by Subject: Agriculture Statistics in Canada”, online: <http://www40.statcan.ca/l01/ind01/l2_920.htm>. In the 1951 census the agricultural sector continued to decline but still employed one-fourth of the Canadian population. See E Cloutier, ed, The Canada Year Book 1951 - The Official Statistical Annual of the Resources, History, Institutions, and Social and Economic Conditions of Canada (Ottawa: King's Printer, 1951); By 1956, the total number of occupied farms dropped 7.7 percent, while total farm acreage decreased only 0.1 percent. See Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1957) at 938. 24 F Sherrin, "Farm Labour: Wartime Policies" (February 1947) Econ Annalist at 16-21. 40 manpower" and the federal government "began to extend its regulative activities in order to achieve the most rational possible allocation of human productive resources among Canadian industries" including positions within the agricultural sector.25 There was a lack of "floating" labour available during the war, which caused the federal government to begin considering the national and international movement of farm workers (the latter to and from the United States).26 Finding Canadian workers to fill these positions increasingly became the focus of federal/provincial conferences convened to deal partially with agricultural labour shortages.27 The growing shortage of agricultural labour during the war led to the Stabilization of Employment in Agriculture Regulations being enacted on March 23, 1942 that prohibited any male engaged in "agriculture" work from obtaining any employment outside of agriculture.28 Beginning in 1941 and 1942, along with the Stabilization of Employment in Agriculture Regulations, a program known as the “Federal-Provincial Agricultural Manpower Program” (Manpower Program) was launched as a cooperative arrangement between the federal government and most Canadian provinces to provide an “adequate 25 CM Chesney, An Analysis of Agricultural Adjustment to Wartime Demand with Particular Reference to State Intervention and Control in the Second World War, (Saskatoon: Dept. of Economics and Political Science, University of Saskatchewan, 1952) at 114. 26Ibid. at 114-115. 27 Vosko, supra note 99. 28Stabilization of Employment in Agriculture Regulations (1942), PCO 2251 (21 March 1942). "Agriculture" was defined to include the production of field crops, fruits, vegetables, honey, poultry, eggs, livestock, milk, butter or cheese. Farmers or farm labourers could apply for permission to engage in other types of work, but such permission was subject to a National Selective Service officer consider the applicant's importance relative to "the conditions essential for the maintenance or necessary increase of agricultural production in Canada." Exceptions were created for seasonal employment in a "primary industry” that was defined as lumbering, logging, forestry, fishing and trapping. The Regulations were further extended by PCO 7595, (26 August 1942) and PCO 1355, (4 March 1944). 41 supply of workers for agricultural and other related industries.”29 The first Manpower Program agreement between the federal government and Ontario was concluded in May 1941.30 In 1942 several other provinces took advantage of Ottawa's offer to conclude similar agreements.31 Under this arrangement, the federal government and participating provinces shared equally in expenses incurred in organizing, recruiting, transporting and placing farm labourers.32 The program provided for movement of Canadian farm workers within provinces, as well as movement between provinces, to work on Canadian farms. One of the first larger uses of the Manpower Program occurred due to a shortage of farm workers to harvest grain in Saskatchewan.33 On February 26 1943, the Minister of Labour outlined a national farm labour program that called for expanding Federal-Provincial cooperative farm activity, which in Ontario had already resulted in "50,000 workers [being made] available for farmers who otherwise would not have gone near a farm."34 Other labour resources were specifically targeted for farm work, including expanding use of students, POWs, interned Japanese-Canadians, and Indians living on reserves.35 The Ontario 29Canada Department of Labour, Annual Report (Ottawa: Department of Labour, 1966) at 62. Newfoundland remained excluded from the program. 30Under the authority of PCO 27/3191 (6 May 1941), renewed under PCO 3903, (11 May 1942). 31Authorized by following Orders in Council under the War Measures and the War Appropriations Acts: PCO 37/7359 (19 August 1942) [Manitoba and Saskatchewan]; PCO 40/7829 (1 September 1942) [British Columbia]; PCO 7871 (3 September 1942) [Alberta]; and PCO 46/9150 (7 October 1942) [Nova Scotia]. 32Ibid. The agreements included welfare assistance and payments for incidental expenses 33Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1942) at 1301. An Order-in- Council was passed in October 1942 authorizing the federal Minister of Labour to pay the cost of transportation to and from Saskatchewan of persons ordinarily engaged in agriculture, retired farmers and students recruited in other provinces. 34Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer,1943) at 186-187. 35Ibid. 42 government through its placement service initiated "Brigades" to mobilize students and other young adults for farm work.36 Starting in 1943, prisoners of war were authorized for use in farm labour.37 A Federal-Provincial arrangement was finalized in 1943 authorizing the distribution and transport of farm labour, in addition to annual agricultural manpower conferences between Ottawa and the participating provinces.38 The first annual Federal-Provincial Agricultural conference (initially called the "Dominion-Provincial Agricultural Conference") was held in December 1943 in Ottawa. A "comprehensive national program" was outlined with "good results" achieved in 1943 to deal with farm labour shortages through partnerships and agreements with provincial governments.39 Inter- provincial movement of farm workers was paid at full cost by the federal Department of Labour, while the federal and provincial governments shared costs for intra-provincial movement equally. The wartime farm labour mobilization efforts were so successful in allocating workers that from 1940-1943, Canada increased its agricultural output by 50 36The Ontario Government organized a Farm Service Force composed of seven "brigades" including the "Farm Cadet Brigade" composed of young men aged 15 to 18 working on dairy farms or in mixed farming; "The Farmerette Brigade" enrolled all young women 16 years old or over in high schools, normal schools, universities and other educational institutions, including the teachers, to work in fruit and vegetable production; and the "Children's Brigade" composed of children on farms could enrol to assist in farm production, particularly berry picking, weeding and garden work. Ontario Farm Service Placement officers made upwards of 54,000 placements through these Brigades in 1942. See J Coke, "Farm Labour in Canada" in BA Campbell and J Coke, eds Farm Labour in Wartime (Ottawa: Dominion Deptartment of Agriculture, 1942) at 292. 37PCO 2326 (10 May 1943), Authorizing the Minister of Labour to utilize the services of prisoners-of-war in agricultural and other labour. Following the attack on Pearl Harbour, interned Japanese-Canadians were used as farm labourers in sugar beet work in Alberta, Manitoba and Ontario. See Coke, Ibid.at 293. 38PCO 3620, (4 May 1943) - Authorizing agreements with the provinces of Canada regarding the more effective use of agricultural man-power within each province. The conferences also featured foreign delegates with interests in Canadian agricultural production and farm labour supply. 39Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1943) at 1617-1621. 43 percent despite a 23 percent overall reduction in available manpower.40 Begun as a wartime effort, the Manpower Program continued on after the war as the primary government response to shortages of agricultural labour in Canada. The urgency of wartime farm labour mobilization evolved into post-war regulation through institutions created during the war. By the early 1950s, the Manpower Program had settled into a familiar pattern. Delegates to the 10th Federal-Provincial Farm Labour Conference held on December 3-5, 1952 in Ottawa reported that "farmers were generally satisfied with the workers they received” including American farm workers entering Canada under the program.41 Attempts to recruit workers from Indian reservations and the native population in general continued in some prairie provinces, with mixed results. Status Indians often crossed into the United States for better paying farm work.42 However, close cooperation 40 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1944) at 561-562, 713. In July 1943, farmers were transported from Saskatchewan to Ontario to help with haying and early harvest, an excursion that the Department of Agriculture indicated “should be noted by our historians” as it was the first time farm labour had been transported from the prairies to Ontario. In 1944, the last full year of the program during war-time, Canada allocated over $500,000 to the provinces for shared-cost intra-provincial transfers of farm labour, and $300,000 to meet the costs of inter-provincial transfers of workers to farms. 41Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1953) at 43, 45. Tobacco farms remained the principal destination for American migrant workers. Workers with tobacco farm experience in southern U.S. states were particularly sought after, and 1,517 entered Ontario in 1952 to work in the province's tobacco fields. During that year a hostel in Simcoe, Ontario suffered “congestion” from a large number of extra-provincial and American tobacco workers moving into the area that was "relieved" through a reduction in the number of transient tobacco harvesters. By 1951, in the final years of its operation the "Farm Labour Camp" for farm labourers under the age of 18 supplied 706 boys and girls to 144 fruit growers in the province, a decline from the 1,133 young workers supplied to 217 growers. The Federal- Provincial Farm Labour Committee recommended in 1952 that the camps be discontinued due to the prohibitive cost of operation and the availability of local farm labour. 42Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1953) at 45. The term “Status Indian” derives from the Indian Act R.S., 1951, c. I-5. “Status Indians” is a legal term for individuals listed in the Federal Government’s Indian Registry System, and have certain rights not granted to other unregistered aboriginals. The main rights are associated with the granting of reserves, and rights associated with hunting fishing, exemptions from taxations and government regulation in areas of tobacco trade, and able to cross the U.S./Canada border according to various Treaty Rights. In 1953 Saskatchewan reported 44 between Canada and the United States had enabled New England growers to import Canadian labour and have a generally successful season in 1953.43 By 1953 Canadian officials continued to generally praise the program as helpful in relocating domestic labour for agricultural work, although they noted increasing complaints related to worker retention, workplace safety and unemployment insurance. 44 There is no mention in any of the federal government documents during this period of allowing farm workers to form representative associations or to join trade unions and engage in collective bargaining.45 After 1945, the federal government also began to look abroad for more sources of agricultural labour. Polish war veterans and displaced persons were contracted to work on Canadian farms and Ottawa sent officials to interview eastern European refugees in Germany and offer them opportunities for farm labour in Canada.46 Canadian officials offered these migrants a one-year contract in an occupation chosen by the Canadian that 100 sugar beet workers "from the Indian population went to Montana for the sugar beet crop there" rather than stay on the province’s farms. 43 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer,1953) at 47. The American delegate, Dave Fessenden from the Bureau of Employment Security, emphasized the success of the program. There were no concerns over surpluses, agricultural placement figures were also up in spite of inclement weather conditions, and Fessenden expressed "gratification" that Canada was able to recruit farm labour "so promptly on such short notice." 44Canada Department of Labour, Labour Gazette, (Ottawa: Queens Printer, 1953) at 46. The representative for the Canadian Federation of Agriculture, R.A. Stewart, noted that complaints revolved around the "quality" of worker received and he noted that farmers "will be more particular as to the type of help they get" through the Manpower Program. Stewart commented on retention problems with farm labour and noted the "desirability of extending social benefits to agricultural workers" including coverage under the Unemployment Insurance Act and provincial Workmen's Compensation Acts as a means of "holding workers on the farm." 45 The Labour Gazette statistics from 1932-1966 contain entries on the number of unionized occupations in Canada along with categories for total numbers of workers and the number of unionized workers in each occupation. While agriculture is listed as an occupation in this table, entries in each year for the unionized workers column reported a “0” or “N/A” entry. 46 The attempts to recruit these Eastern Europeans for farm work were complicated by the professional background and relatively advanced education of many of the displaced persons. 45 government, after which many migrants could move to urban areas to join relatives or other members of their community. Most of the contracted agricultural workers left their farms after the expiration of their contracts, and some even did so prior to contractual expiration.47 Although it was estimated that approximately 3,500 immigrant farm workers would be needed for 1953, some farmers continued to resist requesting immigrants for farm labour. That same year the BC provincial government noted that Okanagan farmers “showed little interest in applying for immigrant labour" with farms in the Okanagan Valley relying on students and itinerant labour being flown in "from points as far east as Prince Edward Island." Some farmers in Quebec also complained of "instability" with 345 Italian immigrants who were placed on Quebec farms in 1952.48 British Columbia complained that "Industrial employment has seriously depleted the supply of competent permanent workers for agriculture."49 The Ontario government expressed “difficulty” in retaining immigrants on their farm placements for 1952, noting a decrease from 1951 levels and the failure of the keep imported displaced persons from leaving agricultural work once in Canada, and the difficulty keeping important displaced persons as agricultural labourers after their arrival in Canada.50 47Ibid. From the provincial viewpoint, the most difficult problem with the Manpower Program and immigrant farm labour was the "failure of a number [of immigrant farm laborers] to carry out their undertaking to remain on the farm for the required 12 month period." 48Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1953) at 44-45. During that time, 140 Italian immigrants working on Quebec farms were "borrowed" by Ontario to meet a shortfall of workers in sugar beet thinning operations. 49Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1953) at 46. 50Ibid. at 45. Ontario specifically noted that “Farm placements in Ontario in 1952 were fewer than in 1951. A total of 1,066 German farm workers were brought into the province under the assisted passage plan. Another 331 single DP [Displaced Persons] workers were enlisted at Ajax, Quebec and Sudbury. Some difficulty was experienced in keeping these immigrants in farm work because of the large number with 46 The main target sources for immigrant farm work in the mid-1950s were Germany and other northern European countries. This was reportedly due to similar farming conditions in those countries to those in Canadian farmlands. 51 500 single German farm workers were initially requested for 1953, but as the season progressed, the total rose to 2,050 German workers and their families.52 Ontario officials complained that the "number would not have been so high if all those who had been placed on farms remained."53 Germans came over as displaced persons on contracts to work on farms for a period of 12 months, but the Ontario government estimated that between 30-40% of German farm worker immigrants defaulted on their contracts in 1953.54 Small groups of farm workers were still obtained from refugee camps in Italy, Austria and Hungary as well.55 2.4 Growing debate over farm labour sources and immigration to Canada The Displaced Persons phase of immigration gradually wound down and a Citizenship and Immigration representative noted in 1952 that immigration had become special skills who were anxious to find work in their own trades. It was reported that of the whole group, 159 left farm work. Immigrant couples were easier to place than immigrant families as the latter often found existing accommodation inadequate. Altogether there were 1,461 immigrant placements as compared with 2,091 in 1951.” 51 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1954) at 70. 52 Ibid. 53 Ibid. 54 Ibid. Gillis was a long-standing trade unionist, and from 1920-1940 rose through the ranks of the United Mine Workers of America (UMW) Local 26. 55 Ibid. Largely unsuccessful efforts were made to deploy labourers to farms from the influx of Hungarian refugees entering Canada in 1956 as a result of the Soviet suppression of the Hungarian revolution. Many of those arriving in Canada from Hungary as refugees turned out to be industrial workers from Budapest. Some efforts were attempted to place some of these refugees on farms but none turned out to be experienced farm labourers and most lasted a very short period on farms before moving to urban areas. 47 "a matter of persons of one country being fitted into the society of another."56 In practice, this meant expanding the target sources of farm immigrant labour to other parts of Europe. It also illustrates that immigration officials viewed farm labour immigration as the gateway to "fitting" an immigrant into Canadian society. This took place within an ongoing debate in Parliament over the appropriate levels of unskilled labour immigration to Canada. M.P. Clarence Gillis of the Cooperative Commonwealth Federation put forth the case for vocational training for Canadians noting the "queues of unskilled workers" and rising importation of unskilled labour at a time when "bulletin boards in the employment offices show that there is quite a demand for skilled workers."57 Tory M.P. Edmund Fulton criticized the government’s immigration policy and its response to the increased need for farm labour: In particular, we are hardly keeping pace with the demand for farm workers. I think anyone coming from an agricultural constituency will agree that there is a considerable shortage of farm workers, and that the Government's immigration policy does not seem to be in tune with the necessities in that regard...58 The exodus of farm labour to urban areas averaged about 60,000 workers yearly from 1948-1954.59 A report presented at the 1952 annual federal-provincial conference on farm labour noted deficiencies in living conditions on Ontario farms as one obstacle to farm worker retention.60 56Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1953) at 48. 57Ibid. at 829. 58Ibid. at 830. Fulton would later go on to become Justice Minister in Prime Diefenbaker's Conservative government and support the import of temporary agricultural workers from the former British West Indies. 59 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1954) at 646. 60 Ibid. at 72. The report was based on the findings of a farm labour survey in the summer of 1952 to best determine how to meet the problem of acquiring and keeping farm labour. It was presented to the 48 Most provinces continued to report acute shortages of farm labour and the inability of immigrants and other labour sources to maintain an adequate supply. This led to a renewed effort to recruit farm labour from Canada’s aboriginal population although that population had, to a lesser degree, followed the general trend in the 1950s towards urbanization and movement from reserves and agricultural areas to urban population centres.61 The Department of Indian Affairs became more involved in the annual farm labour conferences after 1950, participating along with the Department of Labour and the Department of Immigration. The 14th Federal-Provincial Farm Labour Conference praised the Department of Indian Affairs for “arranging a greater number of its charges” for participation in farm work, and “tribute was paid by delegates from western provinces to the Indians for their good work in various fields.”62 These compliments contrasted with other less positive comments on transplanted status Indian farm workers.63 International representation at the annual Federal-Provincial farm labour conferences also increased, with representation from several Western European countries conference by Professor S.H. Lane, Department of Agricultural Economics, Ontario Agricultural College, Guelph, Ontario. 61 Institute on Governance, “Reframing the Issues: Emerging Questions for Métis, Non-Status Indian and Urban Aboriginal Policy Research”, 79th Congress of the Humanities and Social Sciences Concordia University, Montréal, Québec, online: <http://iog.ca/sites/iog/files/Reframing%20the%20Issues.pdf>. Status Indians were likely targeted because of their continued concentration on reserves and limited mobility and employment opportunities when compared to immigrants. The shortage of agricultural workers and need for increasing farm output also led to the use of aboriginal and Métis child workers in local farms located on federally operated Indian Residential Schools. For gallery of photographs of child farm workers at Kamloops Indian Residential School, see “Kamloops Indian Residential School Children Worked Farms” online: www.fallenfeatherproductions.com 62 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1957) at 34. 63 T Basok, Tortillas and Tomatos: Transmigrant Mexican Harvesters in Canada (Montreal: McGill- Queens, 2002) at 31. The federal government noted that the Indian farm workers were “steady workers when they were working. But they were slow and were not too dependable after pay-day…Some of the Indians left half-way through the season to plant trees or to work as guides during the hunting season, indicating a preference for work closer to their homes.” 49 and the United States in attendance as well as representatives from the International Labour Organization.64 The Minister of Labour stated in 1957 that Canada would increasingly look to emigration from countries in Europe “now under the heel of the tyrant” to acquire badly needed farm labour.65 But by the late 1950s, the supply of displaced persons had mostly run out. Federal government efforts for permanent settlement on tobacco farms in Ontario were directed more towards eastern and southern European migrants in response to MPs’ continued calls in Parliament to alleviate Canada’s farm labour shortage.66 Reading the reports of federal officials, it appears that by 1960 Ottawa was increasingly isolated in its approach to the farm labour shortage issue. The provinces, opposition MPs and farm growers had long pressured the federal government regarding agricultural labour shortages. Farmers in the interior of British Columbia in the 1950s faced a severe shortage of farm workers to help with the harvesting season.67 Security issues with some individuals, and general concerns with using some immigrants as farm 64 Western European countries represented at the 1957 farm labour conference included the United States, the United Kingdom, Germany, Italy, and the Netherlands. 65 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1957) at 35. The Minister of Labour, Milton Gregg, was generally taken to refer to Eastern Bloc countries with this reference, but emigration of experienced farm labourers from dictatorships in Spain and Portugal was also contemplated. 66 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1956) at 633. Pressure on the federal government to relieve the farm labour shortage came from opposition parties in Parliament, and from provincial pressure at the Farm Labour Conferences. On May 2, 1956, Tory M.P. Lewis Cardiff queried the government on the response to the farm labour shortage. The Minister of Labour responded by reiterating that the Department of Citizenship and Immigration indicated that “activities were being carried out” by both the Labour and Immigration Departments. 67 Royal BC Museum, "The Early Migrants and their Work on Canadian Farms", online: <http://www.livinglandscapes.bc.ca/thomp-ok/ethnic-agri/portuguese.html>. In October 1955, the Cooperative Packinghouse in Osoyoos was forced to halt packing operations for several days to assist farmers with an apple harvesting crisis described as “a combination of picker shortage and apple drop.” During this “picking emergency” students from the South Okanagan High School had their classes cancelled so they could go work on the fields and pick apples. 50 workers remained a paramount issue throughout this period, but these concerns could be overridden when agricultural labour shortages became critical.68 Some agricultural employers in British Columbia responded to farm labour shortages in the province by calling on the federal government to authorize the use of temporary foreign workers. In 1957, the BC Fruit Growers’ Association adopted a resolution at its annual conference asking the Federal government to import seasonal agricultural workers from Mexico or the Philippines: Whereas there is a general shortage of agricultural labour throughout Canada, and Whereas in this past year of light crop the National Employment Service could not provide us with sufficient labour for orchard employment, and Whereas Boards of Trade and School Boards who have assisted at the harvest season for years past now are becoming reluctant to. Therefore be it resolved by this 1957 B.C.F.G.A. Annual Convention that the Provincial Department of Agriculture be requested to explore the possibilities of bringing into the province labour from Mexico or the Philippines for seasonal agricultural employment, to be moved to various parts of the province as required, and with the understanding that they will be returned to their country of origin at the end of the crop year.69 In 1960, agricultural employers urged Ottawa to adapt a farm labour scheme then operating in the United States. That American program moved approximately 8,000 West Indian itinerant farm workers in the US from state to state “in accordance with 68 R Whitaker, Double Standard: The Secret History of Canadian Immigration (Toronto: Lester and Orpen Dennys, 1987) at 81. In 1956, an acute shortage of farm labour in Ontario resulted in the speedy entry of East German refugees in West German camps to Canada, where they were sent to work on Ontario farms. The labour situation in Ontario was urgent, and the steady stream of refugees arriving in West Germany offered a source of farm workers who “could be obtained in a few weeks if the immigration procedure could be speeded up” and normal security checks dispensed with until the farm labour quota was filled, according to immigration officials at the time. Concerns were expressed over the identity and back ground of the German refugees. Economic needs overrode security concerns over the identity of these refugees, and cabinet approved this temporary breach in security policy. 69 Royal BC Museum, supra note 67. 51 seasonal requirements.”70 It was proposed that workers would be transferred to Canadian farms for work, and then returned to the United States. The proposal was based on the perception that West Indian workers were “self-disciplined and diligent and who only remained for a limited period fulfilling the needs of the particular job.”71 The Canadian government declined to accept the proposal, partly because the Immigration Minister at the time favored a Canadian program that involved direct Canadian-Caribbean negotiations.72 2.5 Portuguese farm labour migration to Canada c1950-60 Despite the increasingly urgent need for farm labour, many farmers continued to oppose using non-European labour. In response to the 1957 BC Farm Growers’ Association Conference resolution which called for using Mexican and Filipino migrant farm labour, many Conference delegates argued that “Mexicans would not work in packing-houses" and that farmers could expect “a lot of trouble if Mexicans are imported" to work on Canadian farms.73 European farm migration was still preferred and the government targeted Europeans seeking to escape the various emerging post-war dictatorships as potential farm labour. Although the Labour Minister's 1957 comment about emigration from European countries under the “heel of a tyrant" may have been directed more against Soviet-bloc countries, many Portuguese at the time were seeking to escape their own right-wing dictatorship. 70 TA Carmichael, Passport to the Heart: Reflections on Canada Caribbean Relations. (Kingston: Ian Randle Publishers, Kingston Jamaica, 2001) 71 Ibid. 72 Ibid. 73 Royal BC Museum, supra note 67. 52 Portuguese immigration to Canada beginning in the 1950s represented one of the last groups of “unskilled” migrant farm workers that permanently immigrated to Canada shortly before the enactment of the SAWP. From a federal perspective it was hoped that Portuguese immigration would provide an example of government-to-government negotiations in acquiring farm workers to meet Canada’s farm labour shortage. Portuguese were contracted as farm workers and the reasons for their immigration in the 1950s and 1960s mirror many of those of SAWP participants. Many Portuguese migrants had originally planned to stay in Canada only temporarily. Yet in the end virtually all of this community settled permanently in Canada, usually migrating to urban areas to escape harsh rural work. Following 1945, Portuguese immigration to Canada was limited by Lisbon to those migrants possessing a valid Canadian employment contract. This was meant in part to prevent any mass exodus from Portugal.74 This began to change in the 1950s due to internal opposition to the repressive government, fomented partly by increasing unemployment in the Portuguese agricultural sector.75 While post-war Europe had begun to recover and prosper Portugal's agrarian economy stagnated. The country lacked industrialization and the ability of large cities to absorb a large and growing population of rural, unemployed labour. These developments occurred at a time when the Canadian government was faced 74 From 1932 to 1968 Portugal was ruled by Antonio Salazar, presiding over a far-right, quasi-fascist authoritarian government. The Salazar government preferred Portuguese migration to Portuguese colonies in Africa. See also A Sousa, The Formative Years: Toronto's Portuguese Community (1953-1967) (Toronto: University of Toronto, 1986) at 4. 75 Ibid. There was also general Portuguese resistance to migration to Portugal’s war-torn African colonies, and changes in Brazil’s immigration policies, which made that traditional destination more difficult for Portuguese migrants. 53 with a relatively prosperous and expanding economy suffering farm labour shortages. The pressures from transportation companies and farmers desperate for agricultural workers, as well as private migrant brokers who wanted to profit from increased Portuguese emigration to Canada, spurred the negotiation of bilateral agreements between the two governments in 1953.76 The agreements allowed Portuguese immigrants to enter Canada to fill a temporary shortage in the labour market for low-skilled labour. They were intended to work on farms or on the construction of a northern railway. The first Portuguese migrants entering Canada under the rubric of the labour agreements, 85 single males arrived on May 13, 1953 at Pier 21 in Halifax, Nova Scotia. That number grew in 1954 to include 950 males, including farm workers sent to Ontario, Alberta, and British Columbia as well as railway workers.77 By 1957, the number of Portuguese farm labourers in the program more than doubled, to include approximately 2,000 farm labourers.78 Portuguese migrants at this point were all contract workers, whose transportation and housing within Canada was provided by the Department of Immigration until employers could inspect and transport the workers they wished to employ to their farms or other workplaces.79 The Portuguese community that had become established in Canada by the late 1950s benefited from sponsorship provisions of the new immigration laws of the 1950s. The Immigration Act allowed for residents already in Canada to sponsor new migrants 76 D Marques, J Medeiros, Portuguese Immigrants: 25 Years in Canada (Toronto: West End YMCA, 1980) at 17. 77 Sousa, supra note 74 at 5. This number included 700 agricultural workers and 250 tradesmen from the Azores. See Royal BC Museum, supra note 67. 78 Ibid. Approximately one-half of the farm workers came from the Azores and one-half from the Portuguese mainland. See Royal BC Museum, supra note 67. 79 Sousa, supra note 74at 6. 54 without economic requirements.80 This had a large impact on the nature of Portuguese migration: between 1957 and 1967 more than half of all Portuguese immigrants entering Canada were sponsored dependents while at the same time the number of Portuguese farm labourers entering Canada decreased.81 Sponsors, usually close family members, provided immigrants with a sense of security and place to stay initially. Portuguese migrants contracted to work on Canadian farms generally spoke neither French nor English, and worked long hours performing arduous and physically demanding work for relatively low wages often in poor living conditions. Much of the rural labour that migrated was uneducated and illiterate, although some migrants possessed more education and quickly moved on from farm work in Ontario to eventual work in urban areas, gaining education in Canada along the way.82 Portuguese-Canadian scholars have noted the loneliness of this community and their exploitation by farmers, many of whom did not fulfill obligations to their workers that were outlined in their employment contracts, resulting in many of these migrants leaving these jobs “as soon as they could” for large urban centres where they took on jobs in the construction industry.83 The fact that they were single with extended families in Portugal made it both easier to move to Canada’s largest cities and more imperative to find better paying work to send more remittances home.84 Most Portuguese who settled permanently in Canada resulted 80 Although there were expectations that these immigrants would eventually enter the labour force and set up their own families. 81 Sousa, supra note 74 at 8. 82 L Smedman, "Portuguese Immigrants Came to Work" (30 October 2009) Vancouver Courier, online: <http://www.observatorioemigracao.secomunidades.pt/np4/1122.html>. 83 Sousa, supra note 74. 84 See D Higgs, G Anderson, A Future to Inherit: The Portuguese Communities of Canada (Toronto: McLelland & Stewart, 1976) at 118-119; Royal BC Museum, supra note 67. Examples of this shift 55 from a “chain migration” related to those original farm workers who came to Canada in the early 1950s. 85 Following its peak in 1957, the low skilled labour migration program wound down from 1958-60. Even after the creation of the Caribbean SAWP in 1966, smaller numbers of unauthorized Portuguese and Mexican migrants continued to be recruited to Canadian farms through often unscrupulous brokers, resulting in numerous problems relating to working and living conditions.86 Mexico’s accession to the SAWP in 1974 alleviated the need for Portuguese farm labour, and the unauthorized import of farm labour dropped sharply.87 Some scholars have noted that the end of the Portuguese-Canadian unskilled migration initiatives coincided with a reduced demand for low-skilled labour in Canada.88 The need for farm labour, however, remained critical, so this cannot be the whole explanation for the program’s demise. Even if the end result was a thriving Portuguese immigrant community, attempts to recruit reliable farm labour from Europe again proved disappointing. There was a declining pool of Portuguese farm worker migrants, but the demise of the program could also be attributed to difficulties in worker retention on farms and the early abrogation of workers’ farm employment contracts. These were not “unfree included many Portuguese who initially migrated as farm labourers and eventually purchased their own farms. This transformation from temporary migrant worker to the feeling of being a true immigrant in Canada is symbolized by the general experience of the Portuguese community in Toronto that viewed the shift from temporary foreign farm worker to permanent urban worker as akin to moving from simple migrant to a true immigrant, intent on settling in Canada 85 In 1987, an estimate recorded approximately 200 out of the 643 commercial farms in the Osoyoos area of Southern BC were owned by Portuguese migrants. See P Koroscil, “Portuguese in the South Okanagan” 51 Okanagan Hist 43 at 44-46; Royal BC Museum, supra note 67. 86 Basok, supra note 16. 87 Ibid. 88 Marques & Medeiros, supra note 76. 56 workers” in the sense of being subject to temporary regulated entry to Canada with limited mobility rights, close supervision and the constant threat of deportation. It’s interesting to note that in 1974, the Ontario Federation of Labour recommended that Canada negotiate an SAWP agreement with Portugal (as well as Mexico).89 Canadian politicians lumped in Portuguese workers as “suitable” for farm labour in Canada.90 A federal task force harshly criticized living conditions for Portuguese migrants and recommended that Canada negotiate a government to government agreement with Portugal in order to facilitate better living conditions for its emigrants working on farms in Canada.91 Despite these recommendations, Portugal did not join the SAWP. 2.6 Continuing farm worker retention problems Much discussion was spent in the late 1950s and early 1960s on problems with living and employment conditions related to farm worker retention. The annual Federal- Provincial farm labour conferences repeatedly emphasized the need to improve living conditions on farms, increase wages, and to consider extending federal and provincial employment benefits to farm workers.92 The basic wage for farm labour in Ontario in 1956 was $75 a month, including room and board, a rate far below what could be earned in industrial work in cities such as Toronto or Windsor.93 The provincial governments launched studies and programs designed to educate 89 G Sanderson, “The Sweatshop Legacy: Still With Us in 1974” in Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1974) at 406. 90 Jean Marchand, Minister of Citizenship and Immigration, “Confidential Memorandum to Cabinet: Seasonal Workers for Ontario Farms” (30 March 1966), National Archives of Canada, RG 118, A 85- 86/071, V81, F3315-5-1, PT1. 91 Canada Department of Manpower and Immigration. Task Force Report: The Seasonal Farm Labour Situation in Southern Ontario (Ottawa: Queens Printer, 1973) at 31-32. 92 Ibid. 93 Canada Department of Labour, Labour Gazette, (Ottawa: Queens Printer, 1957) at 531 57 farmers on ways to retain farm labour. In 1960, the Ontario Department of Agricultural Economics surveyed farmers and workers in 16 townships across Ontario that were representative of livestock farming areas of the province. The results of this study were produced in a circular and indicated that farmers and workers agreed in order of importance that reasonable and regular working hours, good food and living quarters, and good wages were essential factors in retaining farm workers.94 Points of difference between them included the importance of prompt payment of wages and job-sharing. Whereas farm workers considered prompt regular pay and a definite employment contract regarding wages and length of work to be very important, farm owners were more concerned with sharing undesirable jobs and time off for vacations.95 There was also disagreement on the importance of wages and employment. Although workers rated a “definite agreement re wages and employment” in the top half of topics to consider as important, farmers ranked it close to the bottom of their priorities.96 The circular advised farmers not to consider what “he thinks is important” but to learn “where he was wrong in his views of what his help consider to be important.”97 Curiously, among 20 topics rated in order of importance by farmers and their workers, the topic of farm worker safety was not included in the table at all.98 94 SH Lane and DR Campbell, How to Keep Your Farm Help (Guelph: Ontario Agricultural College, 1960). 320 farmers and 137 farm workers were questioned in the 16 townships. 81 of the farm workers interviewed were related to their employers – mostly father-son relationships. Both farmers and their workers selected from a list of 20 factors the 5 factors they felt contributed most to a satisfactory relationship between farmer and farm worker. 95 Ibid. 96 Ibid. 97 Ibid. 98 Ibid. Although not entirely clear as the questionnaire is not available, it appears that farmers and farm labour were asked the question “What are the most important things for a farmer to keep in mind if he 58 In this period there was significant movement of agricultural workers between Canada and the United States, with these movements being formalized in the late 1950s by a series of Federal-Provincial Agreements under reciprocal arrangements with the United States Employment Service.99 The movement of farm labour flowed in both directions. In fiscal year 1962-1963, a significant number of potato pickers (7,303) and apple pickers (341) moved from Quebec, Nova Scotia and New Brunswick to Maine, New York and New Hampshire, while a lesser number of apple pickers (66) moved from Vermont to Quebec.100 Migration of American farm workers to Canada was regulated with the issuance of temporary work visas to Americans working in Canadian tobacco fields.101 Punishment of Americans who entered Canada illegally to work on tobacco fields was generally lax, and consisted of requiring those workers to return to the border crossing to obtain a temporary visa.102 With the exception of tobacco field workers who moved in significant numbers from U.S. southern states to Canada, most of the farm labour migration in 1965 was from Canadian provinces to U.S. Border States. The program intends to hire and keep good help?” and then provided with a list of 20 topics, compiled by the Ontario Department of Agriculture, to rank in order of importance. The circulars also featured cartoons illustrating how hours, living conditions and wages were problem areas for workers. One cartoon pictured a tired farm worker struggling to perform morning chores. Another illustration showed crowded living conditions as unproductive and unhelpful in retaining farm labour. The circular concluded that “farmers are inclined to underrate some things which their workers consider important” in particular worker participation in planning farm work, and job satisfaction. Year-round contracts, isolation, lack of time-off and vacations were not cited as drawbacks to farm employment. 99 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1963) at 71. 100 Ibid. 101 J Pickersgill to A MacNamara, Memo, (9 June 1944), Public Archives of Canada, RG 27, V668, F6-5- 26-2, PT1; V Satzewich, Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945 (New York: Routledge, 1991) at 109. 102 J Dwyer to M. Crosbie, Memo (5 November 1954), Public Archives of Canada, RG 27, V668, F6-5-26- 2, PT4; Satzewich, Ibid. 59 worked well enough "without clashing of gears" to earn repeated praise by both Canadian and American officials in the annual farm labour conferences.103 However, the chronic problem of retaining these workers on farms remained and American officials conceded that on this point "no answer has yet been found."104 2.7 The end of the manpower program Federal-provincial transfers continued into the last years of the farm Manpower program.105 In the fiscal year 1965-1966, a new form of Agricultural Manpower Agreement was entered into between the federal government and the provinces. This agreement vested the recruitment, movement and placement of agricultural labour with the National Employment Service.106 The Department of Labour described this as a “broadening of the program” due to the “current buoyancy of the economy, [and because] the problems of filling agricultural manpower requirements have become more difficult.”107 The 1965-66 Department of Labour Report described a continuing shortage in agricultural employment, due to “greater use of short-term labour”, mechanization, and increased job opportunities in non-agricultural industries.108 The report went on to state that any shortfall in labour would be dealt with by “appropriate training and movement of 103 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1954) at 67-68. American officials noted that shortages of farm labour in both countries "had been eased by the movements of agricultural workers back and forth across the international border." 104 Ibid. 105 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1964) at 72. In fiscal year 1963-64, the program allocated various amounts to provinces ranging from $5,000 to P.E.I. and New Brunswick, to $40,000 to Alberta. 106 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1966) at 62. 107 Ibid. at 69. 108 Ibid. at 102. 60 unemployed persons from various areas of the country.”109 In 1965-66, the NES enlarged the farm labour recruitment program by opening 52 temporary farm placement offices at “strategic locations” across Canada.110 Further attempts were made to promote farm employer interest in providing worker accommodation to transplanted workers, and in utilizing aboriginal labour. For the first time, an accommodation subsidy was paid in Ontario by the federal government under Federal-Provincial Agreements and the use of Status Indian labour was increased in southwestern Ontario.111 The annual reports during the early 1960s generally reached similar conclusions regarding shortfalls in farm labour placement and the difficulties in recruitment and interprovincial movements were a recurring necessity to meet agricultural labour requirements.112 The numbers fluctuated from year-to-year, but the patterns of movement remained largely the same. Despite the “erratic demand and supply situation in agriculture” and the “varying patterns of employment between regions”, the NES was able to record a total of 101,035 farm placements during fiscal year 1965-66.113 In a foreshadowing of the move towards utilizing other foreign agricultural labour, 109 Ibid. at 69 110 Ibid. at 103. Regions each received different numbers of offices, show in in parenthesis: Atlantic Canada (2), Quebec (5), Ontario (11), Prairie Provinces, (25) and Pacific Region (9) 111 Ibid. at 103. Subsidies were offered at the rate of $150 per approved head to fruit and vegetable growers for assistance in the building of accommodation in relation to the need for worker housing. The NES, with the assistance of the Department of Indian Affairs, was able to recruit 550 workers from reserves in the northern sectors of the province. 112 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1962) at 94. During the fiscal year 1960-61, general farm workers were moved from Nova Scotia and New Brunswick to Ontario, Fruit Pickers (mostly students) were moved from Quebec to Ontario, and sugar beet workers moved from Saskatchewan to Alberta 113 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1966) at 104. This represented a slight drop from the work provided for 147,693 farm labourers during the 1960-61 fiscal year. See Department of Labour (1962) at 94. 61 the responsibility for the National Employment Service was transferred to the new Department of Manpower and Immigration in June 1966.114 This "one agency" approach to farm labour was also designed to ensure coordination with provincial programs.115 The Department of Manpower and Immigration's creation reflected the new focus of Canadian immigration policy on acquiring skilled workers and professionals. It also demonstrated the increasing influence of certain economists who portrayed a growing "competition" among countries for economic based immigration.116 The Department of Labour’s final comment in 1966 on the problem of farm labour recruitment and retention provides an interesting glimpse into the mindset of government policy makers at the time: The solution of manpower problems in agriculture depends in part on the improvement of working and living conditions in agriculture, and much research is required. This is provided for by the new agreement under which the provinces are required to establish federal-provincial agricultural manpower committees to deal with the matters. These committees, chaired by senior officials of the provincial departments of agriculture, are also to consider other action, such as the training of workers, to improve the supply of manpower.117 In the midst of chronic farm labour shortages, extending federal workplace benefits to farm workers became more of a priority for Ottawa. On April 1, 1967 unemployment insurance coverage was finally extended to agricultural and horticultural workers under the federal Unemployment Insurance Act. The explicit rationale extending 114 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1966) at 62; Satzewich, supra note 101 at 109. 115 As expressed by the Deputy Minister of the Department of Citizenship and Immigration in March 1966 to the National Agricultural Manpower Committeee in Ottawa. See Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1966) at 295. 116 Ibid. at 645. 117 Ibid. at 62. 62 Unemployment Insurance was to make farm labour "more attractive" to domestic and immigrant workers, and to help farmers "overcome difficulties" in hiring "capable help."118 The extensions of benefits to Canadian farm workers came at a time when Ottawa had largely abandoned the idea of using domestic workers or permanent immigration as a solution for agricultural labour shortages. 2.8 The Caribbean as source of temporary farm labour In October 1942, in the middle of war-time labour shortages, the Department of Agriculture had made one of the first brief references to utilizing Caribbean workers as farm labour in Canada: A recent proposal is that labour may be brought in from the British West Indies for work on crops such as sugar beets, vegetables and fruits…An experiment was carried out in Western Canada whereby an international exchange of combines and combine crews was arranged. The exact number of combine crews with their equipment who entered Canada is not available but it is believed to have been more than one hundred. While problems of exchange, immigration regulations and other details had to be ironed out it is thought that this plan holds considerable promise for the future. 119 Despite this relatively positive appraisal of the experiment, the concept of Caribbean seasonal farm labour migration went no further in the 1940s. During the 1950s within the context of decolonization Canada’s immigration policy was increasingly criticized as racist and outdated. On April 27, 1954, the Negro Citizenship Association of Toronto protested that Canada’s immigration policy discriminated against British subjects who were black.120 118 Ibid. at 644. 119 Coke, supra note 36 at 293. 120 Canada Department of Labour, Labour Gazette, (Ottawa: Queens Printer, 1954) at 646.. In a brief submitted to the Minister of Citizenship and Immigration, the Association made several requests, among them: 63 The first continuing Canadian scheme involving the import of Caribbean labour occurred in the mid-1950s in the area of domestic workers.121 The initial program involved the worker being granted landed immigrant status and required to work as a domestic for one year, after which they had the option to stay in domestic work or find work in another field in Canada.122 Many of the women intended to work as domestics, but encountered problems with working conditions and employer harassment.123 After problems arose in retaining workers in the domestic labour field, the program was altered “The definition of “British Subject” in the Immigration Act be amended to include all those who are for all other purposes regarded as British subjects and citizens of the United Kingdom and Commonwealth; That provision be made in the Act for the entry of a British West Indian, without regard to racial origin, who has sufficient means to maintain himself until he has obtained employment; That an immigration office be set up in a centrally-located area of the British West Indies for the handling of prospective immigrants…” 121 The Canadian Encyclopedia, “Baby Boom”, online: <http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=a1ARTA0000437>. Following the end of the Second World War, the subsequent baby boom, and the growing employment of women in the Canadian workforce, there was a large shortage of domestic workers in the Canadian labour market. The West Indian Domestic Scheme was created in 1955, allowing a limited number of non-white, female domestic workers into Canada, also introducing to this group the opportunity to ultimately take up residency and bring their families to Canada. The initial quota was limited to 100 women, and the eligibility criteria included being single, female, in good health between the ages of 18 to 35 with a minimum of Grade 8 education. See Carmichael, supra note 70 at 140. 122 SA Gopaul-McNicol, Working with West Indian Families (New York: Guilford Press, 1993) at 73. The scheme was very carefully monitored by the Canadian government, and particular notice taken of training given to domestics in the West Indies. In addition to some complaints about improper worker attitude towards their employers, the scheme encountered difficulties with women entering Canada through the program that did not have experience as domestic workers, but instead came from other occupations such teachers, nurses and secretaries. 123 M Silvera, Silenced: Talks with Working Class West Indian Women About Their Lives and Struggles as Domestic Workers in Canada (Toronto: Sister Vision, 1983) at 78, 112-113. In this respect, the West Indies domestic workers encountered many problems that seem disturbingly reminiscent of problems noted with the SAWP. Caribbean women complained that their treatment largely depended upon their employers, some of whom were "good" while others worked them like "slaves" and subjected them to poor working conditions. The opportunity to apply for permanent immigration after 1 year of domestic work in Canada was undermined by the negative attitudes displayed by many of the domestics' employers. Domestics' attempts to further their education in Canada often ran into opposition from their employers who saw them only as servants. Many of the women were also educated or had experience in other occupations and after a year some of them chose to leave domestic service and pursue other employment. Thus the initial scheme did present a new avenue of advancement for some West Indian women. But it also left Canada with a continuing shortage of domestic workers. Ottawa responded to this by restricting West Indian women to specific domestic employment, with a specific employer, for a definite period of time. See also Gopaul-McNicol, Ibid. at 73. 64 so that the visa holder was required to report any changes in employment to the Immigration and Employment Commission or risk being deported.124 In the 1950s and early 1960s, no mention was generally made in the annual Federal-Provincial conferences of acquiring temporary Caribbean or Mexican foreign farm labour to meet agricultural work needs. In 1965, a report to the federal government by the Essex Country Growers Association recommended the temporary importation of “skilled” farm workers from the Caribbean as an alternative to transplanting urban workers who were ill-suited to farm work.125 Government officials replied that poor wages and living conditions, restrictions on worker movement and continuity of employment on farms were among the primary reasons for Canada’s farm labour shortage.126 The agricultural sector in turn responded that growers' could not afford to raise wages or improve conditions due to competition from lower-priced foreign imports.127 Provincial governments continued to wrestle with the problems of competition from an expanding Canadian economy able to offer Canadian agricultural 124 Silvera, Ibid. at 8. In addition, In addition, training schools were set up throughout the West Indies to train domestics and prepare them for migration to Canada. Correspondence from the Office of the Commissioner for Canada in Port-of-Spain, Trinidad on the subject "Domestic Servant Training Schools in Grenada and St. Lucia" noted that the Office was "very much impressed with the atmosphere of the school and with what seemed to be a very high calibre of education." See Carmichael, Passport to the Heart, supra note 70 at 141. New domestics' from the West Indies faced a worsened situation following the elimination of the permanent residency option. No longer entitled to automatic landed immigrant status after 1 year in Canada, cases of "sexual harassment, alienation, inadequate pay" along with horrible working conditions dramatically increased, along with discrimination and unequal treatment as they were excluded from CPP or UI insurance despite paying premiums into the programs. The domestics' situation in this regard has been compared to Caribbean SAWP workers' "unvarnished exploitation" and discriminatory treatment in Canada. See also "Welcome Wears Thin When Crops In" Globe and Mail (2 October 1986) A9. 125 Basok, supra note 63 at 31. 126 Satzewich supra note 101 at 158. 127 Memo from R. Curry, Assistant Deputy Minister (Immigration) to Tom Kent, Deputy Minister of Citizenship and Immigration, January 21, 1966, National Archives of Canada, R.G. 26, vol. 145, file 3-33- 6, Canada-W est Indies Conference. 65 workers higher paying work in big cities, as well as political pressure from some influential growers to import temporary foreign agricultural workers.128 The Department of Labour voiced its opposition to using Caribbean seasonal workers on the premise that the domestic Canadian labour market could still satisfy grower’s needs: Your representation concerning the temporary admission of workers from abroad is based on the assumption that workers in the numbers required cannot be recruited in Canada. This, however, has not been established and it is felt that the requirements of agriculture can be met through a vigorous recruitment program involving local recruitment, day-haul movements, and the transfer of workers within and between provinces. It is the view of the government that we cannot import temporary workers at a time when the government is spending large sums to rehabilitate unemployed agricultural workers…in other parts of Canada, when we are proposing to move workers who need employment from designated areas at public expense and when substantial sums are being spent through retraining and in other ways to move unemployed workers into employment in Canada…If the growers were to offer wages and conditions to the extent proposed in respect to workers from Jamaica, taking into account the total cost of such a movement to the growers, it is felt that we can meet your labour requirements from within Canada.129 The federal government eventually consented to the importation of Caribbean farm workers in 1966 when Jamaican farm workers were allowed entry to Canada under a temporary employment contract in an experiment to work in the south-western Ontario fruit and vegetable industry.130 Unlike the initial experiment carried out in 1942, the Minister of Manpower and Immigration indicated that this experiment, if successful, would lead to the negotiation of a broader agreement with other Caribbean countries 128 One of the growers applying pressure to import foreign workers was Eugene Whelan, a Liberal MP for Essex-South and a future Minister of Agriculture. 129 Satzewich, supra note 101 at 164. 130 Satzewich, supra note 101 at 110. 66 interested in supplying temporary agricultural workers.131 Following this experiment, the Government reported that farm employers were "well satisfied with their performance" and farm labour recruitment for the 1967 season was targeted on Barbados, Trinidad and Tobago, as well as Jamaica, with further expansion of Caribbean source countries planned for 1968.132 An offshore labour agreement was reached with the Commonwealth Caribbean marking the beginning of the SAWP.133 2.8.1 Why the Caribbean as a source for temporary farm labour? Canada and the former British West Indies have shared a long economic and political relationship that later facilitated Caribbean migration to Canada. The legacy of British colonialism meant that the two sides shared similar institutions that allowed for the development of close commercial, investment, cultural and political ties, and even calls for political union, which persisted into the 1950s.134 Following the Caribbean 131 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1967) at 382. 132 Ibid. 133 Basok, supra note 63 at 32. 134 R Winks, The Blacks in Canada: A History. (Montreal: McGill-Queen's Press,, 1997). Proposals for an economic and political union between the British West Indies and Canada surfaced as early as Canada's confederation in 1867. Following the First World War, proposals originated from both London and influential businessmen in Canada for some sort of union between the British West Indies and Canada. The ideas persisted throughout the 1920s and 1930s, despite the Canadian public's general opposition to the ideaCanadian public opinion opposed the idea partly because of resistance to Canada becoming a formal colonial power, but also due to opposition to absorbing large amounts of non-white Canadians into a new union. Canadian Businessmen such as Thomas Macaulay, future President of Sun Life, pressed for annexation of British Caribbean possessions. Macaulay successfully urged the Bahamian Colonial Legislative Council to present a proposal for union with Canada to London, which the Colonial Office ultimately rejected. See Carmichael, Passport to the Heart, supra note 70 at 6-11. Crowe, a businessman and philantrhopist, had long advocated a union between the English speaking countries of the western hemisphere. His career involved urging the accession of Newfoundland into Confederation, as well as working extensively with labour unions to improve labour conditions in the Newfoundland fishing and timber industries. In 1921, Crowe's desire for closer links were partially fulfilled after Ottawa ratified a mutual trade preferences pact with the British West Indies, which among other things provided for the subsidization of steam ship service between the Caribbean and Canada. Crowe urged Prime Minister Robert Bordon's Conservative government to issue a report titled Confidential Memorandum Upon the 67 colonies’ independence in the 1960s, Canada's relationship with the individual Caribbean countries moved more to regulating labour migration, and gradually reforming laws allowing for permanent migration of certain individuals.135 The historic migration pattern between Canada and the Caribbean occurred in clearly defined phases, shaping the character of West Indies migration to Canada.136 Early movement between the two areas consisted of missionaries from Canada travelling to the Caribbean, with some British West Indians present in Canada. However, attempts at resettling restive native populations from the British West Indies to Canada were resisted by colonial authorities.137 The number of West Indians allowed into Canada ground to a halt following the First World War.138 Following the Second World War the number rose again, but the restrictive provisions of the Immigration Act of 1952, insured Subject of the Annexation of the West India Islands to the Dominion of Canada which stated that one of the advantages of a Caribbean-Canadian union would be the acquisition of new tropical territory and agricultural markets for Canadian products. Similar proposals were made after the Second World War for Canadian annexation of Trinidad and Tobago, as well as Bermuda. On calls for a political union with Canada see M Van Steen, "Will Canada Reach Southward?" (March 1955) Can Business 34. Newfoundland's Premier Joseph Smallwood advocated that the British West Indies should become a province of Canada. Also supporting a union were political figures such as Senator Neil McLean of New Brunswick and the Hon. AlJ. Brooks, a Conservative MP soon to become a cabinet minister in the Diefenbaker government. Among West Indian businessmen, Richard Youngman, President of Jamaica's Chamber of Commerce and Grantley Adams, President of the BWI Trades Union Congress and future Prime Minister of the West Indies Federation, support union with Canada. As nationalist movements gained momentum, the idea of union in the Caribbean became more closely linked with that of a West Indian Federation. A short-lived federation in the West Indies was formed in 1958, but it collapsed shortly after with the withdrawal of Jamaica and Trinidad. 135 However the idea of a union between Canada and the Caribbean survives through the present day with comments by contemporary MPs to establish the Turks and Caicos as a Canadian territory. See “Remarks of Hon. David Kilgour - Secretary of State (Latin America & Africa)” (15 September 2000) in Carmichael, supra note 70 at xi. 136 Carmichael, Passport to the Heart, supra note 70 at 116. 137 Ibid. at 117. Attempts in 1796 to resettle Maroon rebels from Jamaica to Halifax encountered resistance from officials in their new destination, and the Maroons were eventually resettled in British Sierra Leone. During the nineteenth century a smaller group of West Indians settled in Victoria, BC and assumed full citizenship rights based on their colonial status. Towards the end of the nineteenth century, a small number of Barbadians were also recruited to work in the coal mines of Sydney, Nova Scotia. 138 Ibid. Less than one thousand West Indians allowed in between 1920 and 1939. 68 that their relative numbers compared to European immigration remained low.139 Although 2.5 million immigrants entered Canada between 1945 and 1962, only approximately 22,000 came from the West Indies.140 After 1945, British colonial governments in the Caribbean increasingly pressured Canada to allow entry of their farm labour from the West Indies. In 1947, these governments, acting through their representatives in Canada and with the United Kingdom's High Commissioner in Ottawa, urged Canada to consider utilizing migrant farm labour from the Caribbean to offset chronic shortages in the Canadian agricultural labour force.141 This move was related to colonial economic and social conditions in the British West Indies. The persistence of poverty in the Caribbean region was attributed to the low income and low-skill labour resources in plantation production.142 During a large part of British rule in the 19th and early 20th centuries, colonial state policy, influenced by the bigger plantation owners, consistently ignored and exploited small farmers.143 During this period British colonial policy had generally focused on furthering the economic prospects of Jamaica as an exporter of agricultural staples. The motivations for this policy were partly to prevent labour instability by insuring the availability of agricultural work for the 139 Ibid. at 138. The policy at the time reflected Prime Minister McKenzie King’s infamous 1947 quote that Canadian immigration policy objectives should aim to avoid making “a fundamental alteration in the character of our population.” 140 BD Tennyson, "Canada and the Commonwealth Caribbean: the Historical Relationship" in BD Tennyson, ed Canadian-Caribbean Relations: Aspects of a Relationship (Sydney, NS: University College of Cape Breton, 1990) at 55. 141Satzewich, supra note 101 at 146. 142 George Beckford, Persistent Poverty: Underdevelopment in the Plantation Economies of the Third World (New York: Oxford University Press, 1972). 143 Carlene Edie, Democracy by Default: Dependency and Clientelism in Jamaica (Boulder, CO: Rienner, 1991) at 80 69 young, restless rural population.144 Economic inequality however grew sharply as the living standards of the general Jamaican worker stayed stagnant and workers’ riots made labour instability a constant worry for colonial authorities.145 This led to some land reforms but left unsolved the questions of low-skill farm labour and poor wages for farm work.146 The British Colonial Welfare and Development organization began operation after the Second World War with an emphasis on maintaining the welfare of the population rather than reforming the economy or considering development programs that would address inequalities in Jamaican society.147 The exodus of the rural farm worker in Jamaica was due in large part to industries developed by Canadian corporations.148 Canadian based trans-national corporations (TNCs) began to invest heavily in Jamaica's bauxite and manufacturing industries following the war.149 The bauxite industry, “heavily mechanized” and using comparatively fewer and higher-paid skilled workers, created pressures on the general wage structure when compared to low-paying, more labour-intensive agricultural work.150 Despite foreign companies’ control over worker 144 Douglas Hall, “The Colonial Legacy in Jamaica” 3 (1968) New World Quarterly 7 at 9. There were large scale worker-peasant riots in 1938, followed by the end of Crown Colony government and a new Constitution introducing universal adult suffrage. 145 Ibid. at 10 146 Edie, supra note 143 at 80-82 147Hall, supra note 144 at 10. 148 Canadian banks such as Bank of Nova Scotia and Royal Bank had been operating in the West Indies prior to 1945. 149Edie, supra note 143 at 70. 150Hall, supra note 144 at 17; See also M Manley, A Voice at the Workplace (London: Andre Deutsch, 1975). By 1953, the average unskilled Jamaican worker could earn 13 pounds a week in bauxite work, just slightly more than a sugar-cane worker working full-time during the entire harvest. Labour was cheap and abundant in Jamaica, and unskilled bauxite mining developed an aluminum industry that grew to eventually 70 wages in the bauxite industry, worker militancy and strikes soon led to wage increases for bauxite miners well above the national average.151 The effect of the bauxite TNCs and their employment of labour at wages comparatively better than agricultural work meant a displacement of farm labour in Jamaica.152 By the 1960s, the Jamaican economy’s dependence on the bauxite industry in particular effectively meant a loss of options for the Jamaican government regarding labour migration.153 International development programs failed to address the root causes of rural unemployment in the West Indies. These programs lead Caribbean governments to pursue policies designed to reduce the pressure of urban areas absorbing large amounts of the rural unemployed.154 Within this paradigm, external emigration to North America presented itself as an obvious solution to the problem of Jamaican rural-urban migration. Canada justified the SAWP as a “temporary development aid” program aimed at the Commonwealth Caribbean.155 This was in line with theories of international development aid promoted by the United Nations and the International Labour account for 47 percent of Jamaican exports by 1968. See also O Jefferson, The Post-War Economic Development of Jamaica (Kingston: ISER, 1972) 151Edie, supra note 143 at 71. 152Jamaican Department of Statistics, Statistical Digest and Annual Reports (Kingston: National Planning Agency, 1972) 153 See N Girvan, et al The IMF and the Third World: The Case of Jamaica, 1974-80 (Uppsaala, Sweden: Dag Hammarskjold Foundation, 1980). For example, The Jamaican government accepted Canadian bauxite corporations' terms dictated to them for fear of withdrawal of investment that would cause an economic collapse. 154 Hall, supra note 144 at 16. Following independence, the Jamaican government for example focused on economic policies directed towards the development of a peasant-agriculture economy and small-farming. The policies were pursued not only because of the efficiency of the rural estates but as a result of the government’s desire to keep reducing internal unemployed agricultural labour migration to urban centres, regardless of the consequences for fragmenting small-farm units. 155 Findeis, supra Ch 1, note 96 at 177. 71 Organization.156 However, unemployment rates in Canada remained high in the mid- 1960s. The prospect of importing foreign labour at a time many Canadians were looking for jobs could have left the government open to political attacks and the government may have sought to mitigate any political damage by justifying the importation of labour as both temporary and developmentally oriented. 2.9 SAWP recruitment and Jamaican clientelism Ottawa's other justification for negotiating the SAWP dealt with the state-to-state nature of the program. The agreements facilitating the SAWP and government recruitment of workers were designed to replace migrant labour recruitment through private brokers with direct government involvement. The initial recruitment of Jamaican workers under the auspices of the government-to-government SAWP was therefore a critical component in Ottawa’s acceptance of the scheme. Government recruitment of workers was designed to allow Ottawa to control the entry and exit of the workers, and also to replace the exploitation historically associated with the use of private brokers in European farm migration. Jamaica, as the first country to supply workers under the SAWP, provides an interesting example of the flaws in the recruitment process. From the SAWP's inception political corruption in Jamaica has influenced the worker selection process in the program. During the period of decolonization from 1944-1962, political power in Jamaica was transferred to the “dominant middle-class leaders” resulting in a mixture of 156 ILO, "Migrant Worker Remittances and their Impact on Local Economic Development", online: <http://www.ilo.org/asia/whatwedo/publications/lang--en/docName--WCMS_110240/index.htm>. The World Bank has also long provided empirical evidence of the scale of migrant worker remittances sent back to source countries. See World Bank, Global Development Finance (Washington, World Bank Publications, 2004). Current figures and analysis from the Bank show remittances sent home by migrant workers to be the second most important source of external funding for developing countries. 72 patronage and clientelism as a regular means of politics.157 Clientelism meant that politics in Jamaica at the time the SAWP was negotiated was dominated by a “creed of bribery” and favoritism expressed by this notion: Vote for me and, You might get a job. Vote for my opponent and, If I win, You probably won’t.158 Jamaica’s political system, based on an exchange of material rewards for political support, would preclude participation into the SAWP for those who made unwise political choices or expressed sentiments critical of the program.159 A Jamaican worker who has been returning to Canada for more than ten years under the SAWP explained that many Jamaican workers have an idealized view of Canada as a land of “milk and honey” that would lift them out of a life of poverty.160 Jamaican society remains deeply stratified.161 The patron-client relationship between these desperately poor voters and politicians, political power brokers and civil servants meant that votes were often exchanged for the opportunity to leave Jamaica for 157 Clientelism is defined as “a reciprocal exchange of goods and/or services on a personal basis between two unequal parties”. See Edie, supra note 143 at 16-17. 158Hall, supra note 144 at 13. 159 JD Powell, “Peasant Society and Clientelist Politics” (1970) 64:2 Amer Pol Sci Rev 411; C Stone, “Political Aspects of Post-War Agricultural Policies in Jamaica (1945-1970).” (1974) 23:2 Soc & Econ Stud 145 160Niagara Magazine Group, online: <http://www.niagaramag.ca/sitepages/?aid=1069&cn=Features&an=FEATURE%20TWO>. The Jamaican SAWP worker noted that most Jamaicans “have no idea what to expect when they come [to Canada]...When I first heard about Canada and this program, I thought milk and honey was flowing in the streets. To be chosen to come is very, very difficult. Every guy wants a work ticket. You get one and you feel like you’ve won the lottery.” 161 At least 57 percent of the population was considered poor by the early 1970s. See Edie, supra note 143 at 17. 73 work abroad.162 Selection into the SAWP program, despite promises of reforms, remains heavily influenced by the Jamaican political machinery and government bureaucracy and in particular are subject to the whims of elected officials and bureaucrats.163 Those who cause problems for the government while in the program have a valid concern that they will not be selected to return the following year to Canada. The fact that labour unions in Jamaica are an integral part of this system of clientelism makes SAWP workers situation even more problematic.164 2.10 Racist stereotyping Even while gradually opening up Canada to more non-White immigration, Canada's immigration policy-makers continued to emphasize certain aspects of legacy of colonialism. The division of permanent and temporary migration from the West Indies was couched within a labour and economic paradigm. But the social and economic stagnation of colonialism deeply influenced perceptions of non-white migrants. Perceptions of West Indians were influenced by general Canadian perceptions of "a colonial" destined "to live in an intellectually restricted world."165 Agricultural labour from the Caribbean was viewed with hesitation by Canadian immigration officials, with some weighing the benefits of temporarily importing migrant farm labour with the 162 Ibid. 163 More recently, Jamaican officials have tried to ensure that worker nominations for the SAWP are based on experience and not on clientelism. In the fall of 2003, Barrington Bailey, head of the overseas worker program at Jamaica's Ministry of Labor, indicated that SAWP applicants in Jamaica are still nominated by their local members of Parliament, but that unspecified measures would be taken to ensure that nominees have had farm work experience See “Canada: SAWP: BC” (2004) 10:1 Rural Migration News, online: <http://migration.ucdavis.edu/rmn/more.php?id=824_0_4_0>. 164 R Golsalves, “The Trade Union Movement in Jamaica: Its Growth and Resultant Problems” in C Stone and A Brown, eds Essays on Power and Change in Jamaica (Kingston: Jamaica Publishing, 1977) at 89- 105. 165 VS Naipaul, Finding the Centre (London: Harper Collins, 1984) at 32. 74 perceived disadvantages of altering Canada's long-standing immigration policy – a policy fundamentally based on racial preference.166 Climate was a popular foundation for many stereotypes. The belief that Canada's climate in particular was unsuitable for West Indians was based on racial stereotypes of sun loving Caribbeans who would have no clue on how to function in Canada. This was more or less stated in parliament by the Immigration Minister in 1952: In the light of experience it would be unrealistic to say that immigrants who have spent the greater part of their life in tropical or subtropical countries become readily adaptable to the Canadian mode of life which...is determined by climatic conditions...It is equally true that...persons from tropical or subtropical countries find it more difficult to succeed in the highly competitive Canadian economy.167 Stereotypes of course are perceptions, biases or prejudices often based on simple premises.168 Stereotyping is at its most powerful when dealing with subjects of race or gender.169 These elements are present in both international trade and migration, and country of origin stereotyping has long been researched within international trade. It is referred to as the "country of origin" effect and has been acknowledged since the 1970s to influence importers' positive or negative perceptions of foreign products.170 International migration is subject to the same forces. Ethnic and racial stereotypes 166 Vic Satzewich, “Racism and Canadian Immigration Policy: The Government's View of Caribbean Migration, 1962-1966” (1989) 21:1 Can Ethnic Stud 77. 167 H Potter, "Negroes in Canada" (1961) 3:11 Race Class 39; G Rawlyk, "Canada's Immigration Policy" (1962) 47 Dalhousie Rev 287 at 294. 168 See generally W Lippman, Public Opinion (New York: Harcourt Brace, 1922). That these premises are simple is no coincidence as research has suggested that our real environment is too complex to allow humans to effectively process information, and that we manage by reconstructing a simplified environmental model according to our belief structure. Perceptions are formed by this belief system, which has both cognitive and emotional elements. 169 FW Renwick, "International Marketing: The Canadian Image, Opportunities, Strategies and Structures" in Tennyson, Canadian Caribbean Relations, supra note 140 at 116-117. 170 Ibid. 75 of migrants are greatly facilitated by the categorization of different physical appearances. They produce a trait driven stereotyping that equates certain races with certain traits.171 There is general agreement that such stereotyping occurs through societal perceptions directed against nationals of stereotyped countries.172 Such national stereotypes associated with a group generally perceive that group to be relatively homogenous - there is little individual differentiation in assigning traits or characteristics.173 It is more likely that we will reinforce stereotypes through memories and experiences that reinforce a belief system.174 Once formed, stereotypes act as powerful orientations to individual and societal behaviour, even influencing the origins of, and attitudes toward, government policy.175 Racist stereotypes of West Indians have existed throughout Canada's history.176 These stereotypes coexisted easily with the Caribbean farm labourer. Denying collective bargaining rights to Caribbean seasonal farm workers could be justified on the base of both race and economics. The type of economic freedom implied by collective bargaining is not part of this paradigm as it implies a certain resistance to authority that 171 GW Allport, The Nature of Prejudice (Cambridge: Perseus, 1979) at 73. 172WG Sumner, Folkways ( New York: Ginn, 1906). In defining "ethnocentrism" Sumner referred to feelings of national pride and xenophobia based on feelings of national superiority towards other cultures. Such national stereotypes are based on ethnocentrism or perceptions of migrants in relation to one's own cultural characteristics. 173 H Tajfel, et al "Content of Stereotypes and the Inference of Similarity Between Members of Stereotyped Groups" (1964) 22 Acta Psychologica 19. 174 Ibid. 175 M Fishbein, I Ajzen, Belief, Attitude, Intention and Behaviour: An Introduction in Theory and Research (Reading, MA: Addison-Wesley, 1975) at 37, 227. 176 They stereotypes can be generally summed up as: Canadian hard-working, used to the cold weather, stoic, toiling the land, (in this context a kind of Anglicized version of Russia); Caribbeans sun-loving, not too industrious, not too independent minded, suited for temporary farm labour. 76 these migrants were presumed to lack.177 These racial stereotypes persisted in Canadian society into the mid-1960s. Canadians' perception of "blackness" stood out to many historians of the time, as "once a person is said to be black...then that is usually the most important thing about him." 178 Racial stereotypes along with the marginalization and discrimination inherent in the SAWP mirror some of the general attitudes and ignorance of part of the Canadian population, but they also magnify the vulnerability of the SAWP’s participants. This perception was tied into economic considerations when considering agricultural labourers for collective bargaining rights or denying mobility rights to temporary foreign workers.179 The pervasiveness of racism in the government is evident in the slow acceptance of changing migration patterns. From the beginning of the SAWP in 1966, and at a time when permanent black migration to Canada was about to increase dramatically, there were still doubts among government officials about the changes occurring in Canadian immigration law and policy. A 1966 Memo from the Assistant Deputy Minister of 177 During the proposed Canada-Jamaica union in the 19th century, proponents argued it would benefit the Conservative government as "Negroes...were and always have been Conservatives...because they had an innate respect for authority." See AR Stewart, "Canada-West Indian Union, 1884-1885" (1950) 31:4 Can Hist Rev 369 at 377-381. On the subject of worker passivity, these sentiments ran counter to events of the time, which saw numerous strikes and labour disturbances among farm labourers in the West Indian colonies. See A Burns, History of the British West Indies (London: George Allen and Unwin Ltd., 1965) at 659. In 1847, a commercial crisis in Britain led to the bankruptcy of several prominent West Indian merchants who had provided credit for planters and the failure of many West Indian banks such as the Planters’ Bank in Jamaica. Steep falls in the price of sugar put the final nail in the coffin of many growers, while others barely survived by drastically reducing the wages of farm labourers. Strikes and disorders followed in some West Indian colonies. Nevertheless by 1849, the Governor of the Leeward Islands could report to London on the “peaceful submission of the laboring class…to the reduction of wages.” 178 W Rodney, The Groundings with My Brothers (London: Bogle, 1969) at 17. 179 The restrictions on SAWP worker movement have been compared to the indentured Indian land system operated by the British colonial government in Trinidad in the 19th and early 20th centuries, and even apartheid South Africa's passbook system. See Barratt supra at 80-81. 77 Immigration, relating to proposed immigration reforms, expressed concerns with the “long range wisdom” of “a substantial increase in Negro immigration to Canada.”180 The immigration reforms of the 1960s allowed for unsponsored immigration to Canada on the basis of education, training and skills regardless of race and targeting skilled workers. The enactment of the points based system of immigration in 1967 was concurrent with the opening of Canadian immigration offices throughout the Caribbean.181 The family reunification clause in the 1967 Immigration Act made it possible for many Jamaicans to enter Canada as husbands or children of the Jamaican women who came to Canada as domestics during the 1950s and 1960s.182 Like other immigrant groups before them, most of these Jamaicans chose to settle in large cities rather than in rural farming areas. One effect of the adoption of the points system in 1967 – a system based on individual selection - was to effectively bring to an end the permanent migration of occupational groups from the Caribbean. The government's experience with the West Indies domestics program encouraged Ottawa to pursue other government to government 180 V Verma, “The Mexican and Carribean Seasonal Agricultural Workers Program: Regulatory and Policy Framework, Farm Industry Level Employment Practices, And The Future Of The Program Under Unionization”, online: <http://www.nsi-ins.ca/english/pdf/csawp_verma_final_report.pdf> 181 The changes were partly in response to newly independent and developing countries’ call for a policy more sympathetic to their overcrowded populations and unemployment resulting from rural to urban migration. See V Henderson, "Urbanization in Developing Countries" (2002) 17:1 World Bank Researrch Observer 89. 182 W Anderson, Caribbean Immigrants: A Socio-Demographic Profile, (Toronto: Canadian Scholars Press Inc., 1993). The liberalization of Canada's immigration laws initially lead to immigration from the Caribbean dramatically increasing, with approximately 40% of Canada's current black population (itself roughly 2.5% of Canadian population) claiming Jamaican heritage. See Statistics Canada, online: <http://www40.statcan.ca/l01/cst01/demo26a.htm>. Most of this migration occurred between 1974 and 1989, with recent figures showing a sharp drop in Jamaican immigration to Canada. As of 2009, Jamaica ranks 24th in permanent migration to Canada. See CIC, "Facts and Figures 2009 – Immigration Overview: Permanent and Temporary Residents", online: <http://www.cic.gc.ca/english/resources/statistics/facts2009/permanent/10.asp>. 78 negotiations with Caribbean states for temporary farm labourers. Federal control over the movement of these workers was a paramount issue.183 2.11 Unions and the immigration reforms Canadian unions, absent from any meaningful collective organizing of farm workers during the 1950s and 1960s, were mainly concerned with insuring that the immigration reforms did not result in abuses of process regarding the entry of skilled workers. This involved the admittance of immigrants with Nazi or fascist backgrounds, or the groundless surveillance of those accused of “subversive activities” or “communist” leanings.184 The Canadian Labour Congress (CLC) complained that “Many new Canadians…showed no understanding of or respect for democratic trade union organizations.”185 The CLC had expressed hope that at “some stage” of the immigrant screening process, organized labour would be represented but this was hampered by the presence of some Communist party members in trade union organizations.186 There were attempts to involve CLC representatives in the selection of skilled workers from among European displaced persons and refugees. Symbolic of these attempts was a “comic exchange of letters” in 1948 that ensued between the federal Deputy Minister of Labour and the Representative for Canada of the International Fur 183 Carmichael, supra note 70 at 146. In 1960, Ottawa had rejected a proposal to adopt the farm labour scheme operating in the United States, where 8,000 West Indian seasonal workers were transferred from state-to-state according to need, because the plan did not involve direct government-government interaction. The change to an individual selection immigration scheme and emphasis on skilled workers allowed Canada to justify the temporary importation of labour under the “unskilled stream” which includes the SAWP. The CIC’s website lists a myriad of residency opportunities under the points system, for skilled workers and for temporary foreign workers concerned skilled or with Canadian work experience. See CIC, online: <http://www.cic.gc.ca/english/immigrate/index.asp>. 184 Whitaker, supra note 68 at 45-46. 185 Ibid. 186 Ibid. 79 and Leather Workers Union (IFLWU) when the latter put forth suggested names as their representatives in the screening process, who all happened to be Communist activists: “You can take it as a fact that no one will be sent overseas to select displaced persons [for work in Canada] if he is a Communist. One of the duties is to ensure that displaced persons selected for admission to Canada are not Communists, and obviously it is my duty not to recommend a man [as labour’s representative] who is himself a Communist.”187 The Labour department also warned that the IFLWU was “very badly infiltrated by the Communist element,” and that names put forth by Communist led or Communist infiltrated unions to assist in screening immigrants “can be viewed with a great deal of suspicion.”188 This put an effective end to organized labour’s attempts to be involved in screening displaced persons for work in Canada. Organized labour’s inability to unionize agricultural workers must be seen in the context of the time. Canadian unions were literally engaged in an often violent struggle for survival against the RCMP and hostile governments.189 The Canadian state during this period “showed few compunctions about using the immigration laws as a means of barring left-wing labour union agitators.”190 International unions and their executive members were particular targets during this period. The federal government was often “prone to identifying union leaders as Communists since this facilitated the intervention of the state” into matters of union organizing in areas such as mining operations in 187 A MacNamara to R Haddow, Memorandum (4 June 1948). Public Archives of Canada, Department of Labour Records, V835, F1-28-1(1). The irony here is that the Deputy Minister was addressing this memo to Robert Haddow, a Communist activist in a Communist led union. 188 ST Wood to A Macnamara, Memorandum (8 June 1948). Public Archives of Canada, Department of Labour Records, V835, F1-28-1(1). 189 See generally Whitaker, supra note 68. 190 Ibid. at 164. Several executive members of certain American unions, including the IFLWU, United Electrical Workers, American Communications Association, the Mine-Mill Union, Coke and Chemical Workers, and Office and Professional Workers Union. 80 northern Ontario in 1948.191 The mining industry, much like the agricultural industry, had “always been vehemently opposed” to trade unions and collective bargaining for miners.192 Much of the CLC’s energies during the post-war period were directed at unionizing miners. Although Canadian unions have also had historically strong links with their international counterparts, until recently this did not extend into international coordination of efforts to unionize agricultural workers. Specifically, collective bargaining for temporary foreign farm workers was not addressed, and union efforts were directed more against opposing the expansion of “guest worker” programs in North America, although in the late 1990s there were increasing appeals to federal legislatures to pass laws protecting the rights of collective bargaining for agricultural workers.193 Canadian unions have also had a long relationship with the ILO. National and provincial unions generally supported the ILO positions on migrant labour and economic development in the 1950s and 1960s.194 The union’s support for the ILO during this 191 Ibid. at 154. 192 Ibid. 193 Mary Finger, “Statement Against Proposed Guestworker Program” (13 February 1999), online: <http://www.ufcw.org/press_room/archived_press_releases/1999/ufcwaganstguestwrker.cfm>. Finger was the International Vice President of the UFCW at the time. In 1998, the United States Senate attempted to modify the H-2A Guest worker program to allow an unlimited number of temporary foreign workers into American poultry and packing industries. Labelling the H-2A program “perverse” and “human bondage” the UFCW International strongly opposed any expansion of the program, noting that “If Congress is really concerned about labor shortages in poultry and packing, the most logical step is to pass legislation that would protect the right of workers to organize.” 194 The Cooperative Commonwealth Federation, a socialist federal party closely aligned with Canadian unions, supported the “Colombo Plan” which was strongly supported by the ILO as well. The “Colombo Plan” was instituted in 1951 as an association of Pacific and South-Asian Commonwealth Countries. It is described as “a regional intergovernmental organization for the furtherance of economic and social development of the regions’ nations. It is based on the partnership concept for self-help and mutual help in the development process with the focal areas being, human resource development and south-south cooperation. While recognising the need for physical capital to provide the lever for growth, the Colombo 81 period created somewhat of a convergence with Canada’s positions at the time, as Ottawa also justified the SAWP on the basis that it addressed the underdevelopment of the West Indies. 2.12 Early Canadian government analyses of the SAWP It bears repeating that in the early years of the program Canadian officials still viewed the SAWP as a temporary measure. In a 1970 Background Paper on the Caribbean Seasonal Agricultural Workers Program, the Assistant Deputy Minister of Manpower and Immigration described the problem of retaining Canadian agricultural workers as follows: Wages and working conditions in agriculture lag behind those in other industries. Even in Ontario, the region of greatest farm labour demand in Canada, there is no indication that farm wage levels have risen sufficiently to compete with other industries in order to ensure an adequate labour supply. The development of secondary industries in many rural areas of Ontario has resulted in the withdrawal of workers from the seasonal agricultural work force. Younger workers, with higher educational levels, now have higher job expectations and even in periods of unemployment do not readily accept temporary work in agriculture.195 Gradually, the SAWP came to be seen as a longer-term program, and had to be expanded to bring in more agricultural labour. In 1974 Mexico became the first country outside the former British West Indies to join the SAWP. In addition to the labour shortfalls, the program was expanded in part to address alleged abuses by private immigration brokers arranging to recruit Mexican and Portuguese farm workers. Following the end of the Canada-Portugal agricultural labour initiatives of the 1950s Plan also emphasised the need to raise the skill level to assimilate and utilise the physical capital more efficiently.” 195 R Grenier to L Couillard, Memorandum, (17 February 1970), NAC RG118, ACC85-86/071, V81, F3315-5-1, P4. The Memorandum contained a Background Paper on the Caribbean Seasonal Agricultural Workers Program. 82 some Portuguese migrants, along with a growing number of Mexicans, continued working on farms into the 1970s. Many of these workers were imported into Canada by private brokers operating without regulation, often resulting in allegations of terrible working and living conditions.196 As a result, the government was faced with recommendations calling for temporary agricultural labour agreements to be negotiated with Portugal and Mexico similar to the ones already negotiated with the Caribbean Commonwealth.197 The Department of Manpower and Immigration formed a Special Task Force on the issue that contained strong language on the migrants’ working conditions: The authors of this report, and those who accompanied them, were shocked, alarmed and sickened at some of the arrangements made for accommodation in Canada for Mexican families, at their wages and working conditions, at the fact that the entire family works in the fields for the season, at the lack of schooling, at the evidence of malnutrition which exists among them, and at numerous other factors such as non-existent health facilities.198 The Task Force report stated that Portuguese adult men in the Azores were recruited by a private broker to work as farm labourers in Canada, often without proper documentation, while working and living in deplorable conditions. The report further noted that the most secure way to prevent further abuses of migrant farm workers would be government to government agreements with source countries: If it is decided, as a policy matter, that the Department will continue to facilitate the bringing in of offshore seasonal workers from countries other 196 Basok, supra note 63 at 32; Task Force Report, supra note 91 at 35. The report noted that one Mexican family working on a farm resided in “almost indescribable squalor” with severe health conditions affecting the mother and several children. 197 Sanderson, supra note 89. 198 Task Force Report, supra note 91 at 17. Recommendations of the Task Force also included the Direct involvement of Manpower Division, Immigration, External Affairs in negotiations with foreign government and a commitment of sufficient financial and labour resources to enable appropriate oversight. 83 than those included under the Caribbean program, there must be negotiated with those countries - particularly Mexico and Portugal - agreements which guarantee basic and humane treatment of the workers involved, including wage guarantees, transportation assistance, health standards and accommodation criteria, among others.199 Ottawa successfully negotiated an SAWP agreement only with Mexico and Portugal remained excluded from the program. The expansion of the program with Mexico was explicitly justified on the basis that it would prevent wage and housing exploitation of Mexican workers.200 Privately, in Cabinet discussions, the Immigration Minister further explained the inclusion of Mexicans in the SAWP on the grounds that they were just as "suitable" for temporary farm work as West Indians.201 Racist stereotyping was an integral part of the origins of the Mexican SAWP can be found in the statements of contemporary parliamentarians: Mr. Chairman, many people do not like to work in agriculture. They do not like the monotony, the conditions and the fact that you work sometimes in heat and sometimes in cold. That is all right; they do not like it and they should not be forced to work at it. We all agree with that... Many of them [farm owners] have encouraged offshore labour over the years which come from three sources, the Caribbean, Portugal, and Mexico. We need this labour... and these people are used to working in the heat. They are used to working in agriculture, and they are satisfied with the pay scale.202 The expansion of the SAWP to cover Mexican workers resulted in the outlawing of private brokers. The subsequent regulation of agricultural workers’ living conditions resulted in some improvements in workers’ housing, although intermittent complaints 199 Ibid at 31-32. 200 Office of the Minister of Manpower and Immigration, Press Release "Mexico-Canada" (17 June 1974). 201 J Marchand, Confidential Memorandum to Cabinet, “Seasonal Workers for Ontario Farms” (March 1966) NAC RG118, A85-86/071, V81, F3315-5-1, P1. 202 Statement of Hon HW Danforth in Parliament (20 July 1973) in N Sharma, “On Not Being Canadian: The Social Organization of Migrant Workers in Canada” (November 2001) Can Rev of Soc & Anthr, online: <http://findarticles.com/p/articles/mi_go2771/is_4_38/ai_n28880026/pg_9/>. 84 were made throughout the 1970s.203 2.13 Summary - expansion and wages of the SAWP Ottawa maintained a strictly enforced quota on the numbers of SAWP workers brought into Canada until the mid-1980s. Until 1986, the number of SAWP workers admitted into Canada was based on a fairly consistent yearly quota of approximately 4,100 workers.204 Following negotiations with representatives from the agricultural sector, who argued for a more flexible intake of workers under the SAWP based on supply and demand, and participating foreign governments, Brian Mulroney’s Progressive Conservative federal government removed the yearly quotas. By 1988, the number of SAWP workers admitted into Canada was increasing exponentially every year - more than doubling to over 8,500 in 1988.205 The success of the program in preventing overstays has been questioned in recent years, with reports that some Caribbean workers are running away from farms for cities like Toronto. In 2003, Canada's ambassador to Jamaica stated that Canada might reduce or eliminate the 5,000 Jamaicans a year from the SAWP because of illegal immigration and drug-smuggling.206 About 850 Jamaican farm workers had deserted from 1997 to 2002, with most not having been found.207 There were also second-hand accounts from farmers and government agents (both in Canada and in countries of origin) which have 203 Basok, supra note 63 at 33-36. 204 “Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Programs: Labour Market Services” (23 October 1998), in Commission for Labour Cooperation, Protection of Migrant Agricultural Workers in Canada, Mexico and the United States (Washington, DC: Secretariat of the Commission of Labour Cooperation, 2002) at 8. 205 Ibid.; North-South Institute, “Migrant Workers in Canada: A Review of the CSAWP”, online: <http://www.nsi-ins.ca/English/pdf/migrantworkers_eng_web.pdf>. 206 Rural Migration News, supra note 163. 207 Ibid. 85 noted recent problems with SAWP workers absconding from their place of employment and remaining in Canada past their departure date.208 There has been no Canadian government studies on overstay rates relating to SAWP workers. The structure of the SAWP – requiring workers to have dependent family members in their home countries - appears to have limited illegal overstays or attempts by SAWP workers to gain permanent residency through marriage.209 The World Bank has conducted studies showing the overstay rates to be relatively small at 1.5%.210 This "negligible" figure, at current SAWP recruitment rates, would represent about 400-500 SAWP workers overstaying their visas in Canada.211 In 2010 Service Canada announced that it would be conducting “random audits of employers using the TFWP, which now includes the SAWP, in 2011.”212 Employers were advised that, while transferring SAWP workers to and from farms in Canada is permissible, employers cannot “lend” or “share these workers with another farm.”213 The percentage of farm employers being audited was not specified. Employers were 208 T Basok, “He Came, He Saw, He (…) Stayed. Guest Worker Programmes and the Issue of Non-Return” (2000) 38:2 Int’l Migr 215. 209 Preibisch, supra Ch 1, note 30 at 435. 210 Basok, supra Ch 1, note 16. 211 Ibid. 212 Alberta Beekeepers, Record of Service Canada Meeting to discuss SAWP with Alberta Employers, (27 October 2010), online: <http://www.albertabeekeepers.org/documents /SAWPUpdateOctober2010.pdf>. Employers were encouraged to “keep track of all pay stubs, time cards, etc., as well as honour all rules that are in the SAWP/TFWP contracts between themselves and their workers.” 213 Ibid. The government warned that this would be a “a contravention of the Immigration and Refugee Protection Act and is punishable by a fine of up to $50,000 and imprisonment.” Other changes to the program included Other changes to the SAWP program in 2011 included the transfer of medical exam responsibility for SAWP workers entering Canada from Canadian officials to home country officials. In response to this, Mexican officials instituted a “Fit for Work” exam that will be a requirement for any Mexican worker to be in the SAWP. Technical improvements include employer access to an online database of SAWP workers and their current availability status. 86 reminded that “When Mexican workers return home, it is very important that employers complete the worker evaluation issued by the Mexico consulate so that the Mexico Ministry of Labour can evaluate the program, the workers, and the employers.”214 Finally, the program has grown considerably during Stephen Harper’s Conservative government. Between 2006 and 2011, the SAWP has increased to over 26,000 workers in 9 Canadian provinces.215 Table 2.1 at the end of this chapter shows the total distribution of SAWP workers in Canada and by province.216 The bars for each province and Canada proceed left to right from 2005-2010. From 2005-2008, a steady growth in the migration of workers can be seen across Canada and in most provinces. British Columbia joined the program in 2004, and shows the sharpest growth in workers during this period from 684 SAWP workers in 2005 to 3540 workers in 2010. While 2009 showed for the first time a slight drop of total SAWP workers coming to Canada, 2010 shows a slight uptick. Ontario remains the province with the largest share of SAWP workers.217 214 Ibid. 215 HRSDC, online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/stats/archive/ annual2005-2008/table10a.shtml>. 216 Data for Table 2.1 was obtained from HRSDC, “Table 9 (Annual): Number of temporary foreign worker positions on labour market opinion confirmations under the SAWP, by location of employment”, online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/stats/annual/table9a.shtml>; HRSDC, “Table 10 (Annual): Number of temporary foreign worker positions on labour market opinion confirmations under the Seasonal Agricultural Worker Program, by location of employment”, online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/stats/archive/annual2005- 2008/table10a.shtml>. 217 Alberta Beekeepers, “Record of Service Canada meeting to discuss SAWP with Alberta Employers, Edmonton, Alberta” (27 October 2010), online: <http://www.albertabeekeepers.org/ documents/SAWPUpdateOctober2010.pdf>. Mexican nationals make up the majority of participants in the program, and most those workers are concentrated in Ontario. In 2010, there were a total of 23,000 Mexican nationals in the SAWP, with 51% of these workers in Ontario, 20% in Quebec, 15% in British Columbia and 5% in Alberta. 87 The graph in Table 2.2 illustrates wages for SAWP workers by province.218 It also shows the wage and expected minimum wage increases in 2012. The official figures show the SAWP wage at least equal to or slightly ahead of the provincial minimum wage or prevailing agricultural wage. Four provinces will raise the minimum wage in 2012, while six provinces will see no increase. However some data indicates that SAWP workers are actually paid less than domestic workers for agricultural work in comparable commodities.219 2.14 Seasonal agricultural workers in Canada and unions The chronic government expressions of concerns over farm workers’ wages, living and work conditions and lack of benefits would seem to be an ideal field for trade unionism. Despite this, as noted above, until relatively recently unions have not played a major role in organizing Canadian farm labour. In Canada farm worker resistance to intolerable working conditions historically consisted of escaping to urban centres for more tolerable labour at better wages. During the glut of farm labour in the 1930s, there were some attempts to organize former urban workers who had migrated to farm work to obtain more secure working conditions. The initial impetus for attempts to organize these workers came from the Communist Party of Canada, which had focused its efforts on former coal miners and machine operators doing agricultural labour.220 But in general unionization of farm labour was not viewed as a practical solution by federal and provincial governments. Farm workers remained excluded from both new provincial and 218 Data for Table 2.2 was obtained from HRSDC, online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/vegetables.shtml#c1>. 219 Preibisch, supra note 30. Preibisch notes that the data “focused specifically on foreign and domestic workers hired in the categories of farm laborers or harvesters, and nursery or greenhouse laborers.” 220 M Horn, The Depression in Canada: Responses to Economic Crisis (Toronto: Copp, 1988) at 35. 88 federal workplace laws that were guaranteeing workplace and collective bargaining rights. Farm labour was excluded from Ontario's 1920 Minimum Wage Act, the 1922 One Day Rest in Seven Act, and the 1935 Industrial Standards Act.221 Federal unemployment legislation pursued similar exclusions of farm workers.222 Labour codes in relation to agricultural work in the 1920s and 1930s “explicitly excluded farm workers from union organizing” as a “form of protection against Communist labour incursions” onto the family farm223 Following the second world war, despite the family farm’s diminishing share of the Canadian agricultural sector, labour codes were not altered to permit farm workers’ unionization. The increasing mechanization of farm production methods did not change the fact that farm labour remained seasonally dependent on crop cycles. Wages for hard farm work remained low and more opportunities in cities led to increasing migration of domestic farm workers from rural to urban areas.224 The post-second world war period witnessed greater union involvement with farm owner organizations. Much of the farmer-labour cooperation was the result of efforts by Joseph Lee Phelps. Phelps was one of the founders of the Farmer-Labour Party in Saskatchewan, which later became the Cooperative Commonwealth Federation (CCF), and built the Saskatchewan farmers’ union to a powerful political force.225 The Canadian Farmer-Labour Coordinating Council, representing both national and provincial 221 L Vosko, supra note 99 at 261. 222 Ibid. 223 Sawchuk, supra note 19 at 497. 224 Satzewich, supra note 101 at 81-82. 225 Saskatchewan Agricultural Hall of Fame, “Salute to Saskatchewan Farm Leaders: Joseph Lee Phelps”, online: <http://www.sahf.ca/profile.php?id=107> 89 organizations, held its inaugural meeting in Winnipeg in 1957. The approved policies came from farm union group recommendations that included little reference to farm labour.226 The Canadian Labour Congress (CLC) asked farm organizations to support its demands for collective bargaining for all government employees and the placing of immigration under the Department of Labour, as well as an advisory committee on immigration that would recommend legislative and policy changes.227 Although there may have been no explicit quid pro quo, organized labour remained relatively silent on the unionization of agricultural workers. In the late 1950s and 1960s, as the issue of acquiring temporary foreign workers for Canadian agricultural work became more prominent, the Ontario Federation of Labour (OFL) issued its own study on the issue of foreign seasonal agricultural workers.228 The OFL study supported the federal government’s Task Force report stating that bilateral seasonal farm worker agreements “with these two countries [Mexico and Portugal] would not only put an official seal of approval on these seasonal movements but would also give federal authorities some measure of control over wages and working conditions for transient labourers who are not covered now by either federal or provincial standards.”229 The report made no mention of the possibility of organizing these workers in unions or engaging in collective bargaining for their interests. 226 Although there was reference to a “substantial increase” in the Colombo Plan, which was partly aimed at assisting unskilled workers in third world countries. See supra note 194 for an overview of the “Colombo Plan.” 227 Canada Department of Labour, Labour Gazette (Ottawa: Queens Printer, 1957) at 1067. 228 B Ward, Harvest of Concern: Conditions in Farming and Problems of Farm Labour in Ontario (Ottawa: Ontario Federation of Labour, 1974). 229 Sanderson, supra note 89. 90 Unlike their American counterparts, unions in Canada were generally less vocal on the use of Mexican migrant workers on Canadian farms.230 Pressure from American unions on the US government was partially responsible for the ending of the Bracero program in the United States, which had brought in Mexican seasonal workers for temporary agricultural labour, and for changes in state laws regarding collective bargaining for farm workers.231 Canadian unions did not actively engage with SAWP workers prior to the 1990s, during a period when unionization of agricultural workers was generally prohibited by law throughout Canada.232 The unions did not generally view the employment of temporary foreign agricultural workers as an “obstacle to the unionization of farm labour.”233 They viewed the SAWP as an administrative program that did not “undermine” domestic agricultural employment.234 Organized labour in Canada took this position despite the fact that the SAWP “flourished” under labour codes that continued to exclude farm workers from unionization.235 This situation persisted until the 1991 provincial election in British Columbia, when a New Democratic Party (NDP) government introduced legislation repealing the legal prohibitions on farm workers unionization.236 230 Basok, supra note 208. The American Federation of Labor-Congress of Industrial Organization (AFL- CIO) had advocated the ending of the Bracero Program in the 1960s because it was “virtually impossible” to unionize American farm workers “as long as growers had access to braceros.” 231 Carmichael, supra note 70 at 146. The Bracero program, and the issue of American farm workers and collective bargaining, is explored in more detail in Chapter 4. 232 Basok, supra note 208. 233 Ibid. 234 Ibid. Again, this differed from the situation in the United States, where “organized labour and state departments representing its interests opposed the [Bracero] guest worker programme.” 235 Sawchuk, supra note 19 at 497. 236 BC Federation of Labour, “Farmworkers”, online: <http://www.bcfed.com/issues/farmworkers> 91 2.14.1 Genesis of the agricultural unionization movement The election of the NDP government in Ontario spurred the UFCW to begin major efforts to collectively organize farm workers. This included efforts targeted specifically at foreign migrant farm workers.237 In 1994 the Ontario NDP government enacted the Agricultural Labour Relations Act (“ALRA”).238 The ALRA was a landmark piece of legislation, granting unprecedented collective bargaining rights to agricultural workers in the province. The ALRA led the UFCW to begin outreach programs to agricultural workers in Ontario. This led to 200 Canadian and resident agricultural workers unionizing at Highline Mushrooms in Leamington, Ontario in 1995.239 However, the ALRA did not directly address foreign migrant workers working on Ontario farms and there were no major campaigns to unionize SAWP workers at that time. The newly elected Progressive Conservative government in Ontario repealed the ALRA in November 1995, replacing it with the Labour Relations and Employment Statute Law Amendment Act (LRESLAA).240 The LRESLAA barred all farm workers from collective bargaining and the Highline Mushrooms farm was decertified within a year. In response, the UFCW filed a legal challenge against the Harris government, alleging violations of workers’ Charter rights of freedom of association and equality.241 237 Agriculture Workers Alliance, “History of Agricultural Workers in Canada”, online: <http://awa- ata.ca/en/about/history-of-agricultural-workers-in-canada/>. 238 Agricultural Labour Relations Act 1994, SO 1994, c 6. Repealed (10 November 1995). See: 1995, c 1, s 80 (1). 239 UFCW, “History of Agricultural Workers in Canada”, online: <http://www.ufcw.ca/index.php?option=com_content&view=article&id=2003&Itemid=245&lang=en>. 240 Labour Relations and Employment Statute Law Amendment Act 1995, SO 1995, c 1, Sched A, (passed by the Mike Harris government, 10 November 1995). 241 Canadian Charter of Rights and Freedoms,ss 2(d), 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 92 This challenge was ultimately dealt with by the Supreme Court of Canada in the landmark Dunmore v. Ontario decision.242 In Dunmore, the Supreme Court held that agricultural workers’ exclusion from Ontario labour legislation impeded their freedom to organize. The ruling also recognized the vulnerable position of agricultural workers and the power imbalance between managers and the marginalized farm workers’ “political impotence” as well as workers’ “lack of resources to associate without state protection and their vulnerability to reprisal by employers.”243 The decision gave the Ontario government 18 months to address the exclusion of agricultural workers from the Ontario Labour Relations Act. In response to Dunmore, the Ontario government in 2002 established the Agricultural Employees Protection Act (AEPA), which granted farm workers’ the freedom to “associate” but not to collectively bargain.244 Despite its name, the AEPA offered no new protections to agricultural workers but attempted to comply with the Dunmore ruling through allowing farm workers to join an “association.” The AEPA departed from the typical structure of labour relations by not requiring agricultural employers to engage in good-faith bargaining with employee associations. The AEPA contained no provisions for solving “bargaining” impasses, nor did it include any enforcement provisions in the event that the employer agreed to any of the workers’ demands.245 The AEPA became the subject of a decade long court battle between Ontario and the agricultural industry on the one hand and the UFCW and migrant worker support 242 Dunmore v. Ontario (Attorney General), 2001 SCC 94,  3 S.C.R. 1016. (Dunmore) 243 Ibid. at para. 41. 244 Agricultural Employees Protection Act, SO 2002, c 16 245 Walchuk, supra note 223 at 154. 93 groups on the other, culminating in a 2011 Supreme Court of Canada decision that upheld the legislation.246 A detailed legal analysis of this litigation is included in the next chapter. But it is important to note here that the AEPA was an outgrowth of the Ontario Conservative Government’s view of labour-management relations in the agricultural industry. In the final analysis, labour relations analysts interpreted its emphasis on voluntary “negotiations” - without any enforcement provisions - as a throwback to labour-employer relations that existed prior to the Second World War.247 The Ontario government put forward a somewhat extreme concept of majoritarian representation, as the AEPA had no requirement that any farm worker associations would be supported by a majority or even a plurality of farm workers. The AEPA also took a unique view of the concept of exclusivity in bargaining as it allowed for the existence of multiple workers’ associations for the same job classification. Such a scheme could either be viewed as encouraging representative freedom or fomenting “disunity and divisiveness within the workplace” through allowing “individual employees to ‘bargain’ outside of the association(s) at the workplace.”248 The AEPA provided for no mandatory dues collections from workers, relying instead on a scheme of voluntary contributions. The AEPA’s existence hindered unionization, but did not stop efforts aimed at promoting awareness of legal rights in the foreign agricultural worker community. In 2002 the UFCW assisted in opening the first Migrant Agricultural Workers’ Support 246 See Ontario (Attorney General) v. Fraser, 2011 SCC 20. 247 Ibid. 248 Ibid. 94 Centre in Leamington, Ontario, with subsequent centres opening in Bradford and Simcoe, Ontario in 2003 and in Saint-Rémi, Quebec the following year.249 This was 36 years after the first Jamaican farm workers arrived in Canada through the SAWP. The campaign to unionize agricultural workers fell under the general umbrella of the Agricultural Workers Alliance (“AWA”). The campaign focused on the perceived limits on protections for SAWP workers, compared to those available for residents, and aimed to provide equal protection for all agricultural workers. The newfound ability to unionize agricultural workers in the wake of the Dunmore ruling allowed the UFCW to build momentum to challenge perceived problems within the SAWP. 250 The AWA is an association that works closely with the UFCW and both resident and foreign agricultural workers. It attempts to act as an advocate in particular for the concerns of SAWP workers and other temporary foreign workers on Canadian farms. Generally AWA support workers may be the main point of contact for many temporary foreign workers who may be in need of workplace related assistance or who may be facing legal problems relating to employment at a Canadian farm.251 AWA workers also assist in providing legal information with issues relating to collective bargaining and help to run migrant worker support centres located near farming centres. The AWA’s efforts form the basis for much of the legal discussion in the following chapter. 249 Ibid. 250 The President of UFCW Canada, Wayne Hanley, stated that increasing the number of successful collective agreements on Canadian farms would encourage other workers “to seek the legal representation to deal with systemic problems with SAWP…and wages aren't the only issue. So are fundamental workers' rights." See UFCW, “Seasonal farm workers in BC Go Union”, (8 August 2008), online: UFCW <http://www.ufcw.ca/index.php?option=com_content&view=article&id=593&catid=5&Itemid=99&lang=e n> 251 Agricultural Workers Alliance, online: <www.awe-ata.ca>. AWA case workers provide assistance with issues such as general labour rights, health and safety, taxation, cpp and ei issues, workers' compensation, banking, and other issues related to daily life in Canada. 95 2.15 Conclusion Understanding the historical and conceptual nature of farm labour migration to Canada is a fundamental part of understanding the relationship between collective bargaining and the SAWP. Consequently this chapter examined international farm labour migration within the context of neoliberal economic globalization. The evolution of seasonal agricultural migration to Canada was traced in order to specifically map out traditional racial attitudes towards farm labour migration. It has been illustrated that government attempts to satisfy chronic shortages in farm labour through shifting domestic labour between provinces met with mixed success. However, the use of immigration policy to facilitate the entry of permanent farm worker migrants was even less successful, as illustrated by the experience of the migration of Portuguese farm workers to Canada in the 1950s and 1960s. The beginning of temporary agricultural labour migration was rooted in racialist conceptions of British West Indians and Mexicans as better suited for agricultural work. British colonial networks facilitated the creation of the SAWP, and the advent of the NAFTA caused a gradual realignment that has led to Mexican workers displacing Caribbean workers as the major labour component in the SAWP. Far from being a temporary development aid program, the SAWP along with the Temporary Foreign Worker program has become a critical element in Canada’s immigration policy. This has happened even as temporary foreign agricultural workers continue to endure oppressive workplace conditions that Canadians have historically refused to tolerate. These workplace conditions arise within a historical-structural framework, where labour from Mexico to the Caribbean is transferred to facilitate crucial benefits to the 96 Canadian agricultural industry. Of course, situating the SAWP within this framework does not mean that there are no benefits to SAWP supplying countries - or indeed to the individual SAWP worker. The sections of this chapter dealing with Caribbean workers illustrate that many SAWP participants still view agricultural work in Canada as the path to a better individual future for themselves or their families. What is asserted is that the framework disproportionately benefits Canada and Canadian agricultural employers. Within this framework, there is no better path for the developing societies nor do any accrued benefits lead to a gradual disappearance of the SAWP. In fact both Canada and SAWP source countries tout the success of the program in zero-sum terms. Canada praises the program as a model of efficient labour movement that keeps its agricultural industry afloat, while source countries view the draining off of otherwise surplus labour as a valuable means of containing potential social unrest among the otherwise unemployed and restless. This type of framework is much more likely to resemble a permanent state of affairs that a temporary arrangement. The irony is here that the workers remain temporary subjects of Canada (and effectively of their home countries as well, since many workers spend decades of their adult lives entering and exiting Canada for seasonal periods only) while the program itself continues to exist and expand. The common theme behind tribunal and court applications, education efforts, and unionization of SAWP workers is the desire to obtain better working conditions. But it may also have the effect of denying individual agency to the SAWP workers. More fundamentally, these efforts may not produce the desired results. Access to legal information and representation proved critical to organizing efforts as attempts to unionize SAWP workers at farms in Ontario involved challenging the restrictive 97 provisions of the AEPA. The negotiating process for the collective agreements on two Ontario farms that had voted for certification did not progress smoothly due partially to employer resistance legally permissible under the AEPA. As discussed in the following chapter, the AEPA formed the basis for legal challenges that went on for years. In 2003 the UFCW launched three court challenges that included a direct constitutional challenge to the AEPA, and another challenge that involved the mandatory deduction of EI premiums for SAWP workers. Although these cases were partially successful they also raise a series of questions on the efficacy of legal responses to collective organizing within the SAWP. The nature and historical patterns of migrant farm labour coupled with the inherent legal obstacles means that SAWP workers’ unionization faces unique and difficult obstacles. This chapter demonstrated that a framework was carefully constructed to alleviate chronic farm labour shortages through the use of a temporary farm workforce with limited rights, theoretically as a temporary measure. Over time, the gaining of some collective bargaining rights for farm workers has been balanced with the continued withholding of mobility rights through the use of temporary farm workers. Farmers initially resisted the use of temporary foreign workers on racial grounds but there was also the gradual realization that the limiting of permanent residency and the prospect of temporary work in Canada could act to counter-balance any gains in workplace rights for farm workers. The collective bargaining gains in the agricultural field during the past decade have disproportionately benefited Canadian citizens or residents working in farm labour as they can unionize without the prospects of deportation and blacklisting facing foreign migrant farm workers. At its core, the legal 98 analysis in the following chapter operates within this paradigm, one where there is a fundamental legal inequality in the positions of the parties. 99 Table 2.1 Distribution of SAWP workers in Canada and by province252 Province 2005 2006 2007 2008 2009 2010 Prince Edward Island 56 78 135 120 145 190 Nova Scotia 232 337 410 625 805 895 New Brunswick -- 18 25 15 25 50 Quebec 3,128 3,176 3,595 3,760 3,780 3,330 Ontario 18,227 18,100 18,745 18,550 17,940 18,325 Manitoba 311 301 295 345 365 405 Saskatchewan -- 42 80 100 120 130 Alberta 419 535 685 950 1,010 970 British Columbia 684 1,559 2,615 3,765 3,405 3,540 Canada - Total 23,090 24,146 26,585 28,230 27,595 27,835 252 Data for Table 2.1 was obtained from HRSDC, “Table 9 (Annual): Number of temporary foreign worker positions on labour market opinion confirmations under the SAWP, by location of employment”, online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/stats/annual/table9a.shtml>; HRSDC, “Table 10 (Annual): Number of temporary foreign worker positions on labour market opinion confirmations under the Seasonal Agricultural Worker Program, by location of employment”, online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/stats/archive/annual2005- 2008/table10a.shtml>. 100 Table 2.2 SAWP wage comparisons by province253 Province SAWP Wage January 1, 2012 Expected Minimum Wage Increase in 2012 AB $9.40 $0.00 BC $9.56 $10.25 on May 1st MB $10.00 $0.00 NB $9.50 $10.00 on April 1st NFLD $10.30 $0.00 NS $10.00 $0.00 ON $10.25 $0.00 PEI $9.60 $10.00 on April 1st QUE $9.65 $9.90 on May 1st SASK $9.67 $0.00 253 Data for Table 2.2 was obtained from HRSDC, online: <http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/vegetables.shtml#c1>. Wages are for SAWP Commodities - Fruits, vegetables, flowers 101 3 - A Recent Legal Response to the SAWP – Unionization This chapter builds upon the theoretical and historical outline and provides a detailed analysis of legal
UBC Theses and Dissertations
Solidarity forever, Canadians never : SAWP workers in Canada Russo, Robert Marc 2012
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