Will cannabis production workers gain the right to unionize in Ontario, home to more than half of Canada’s licensed producers?
In late December, the Ontario Ministry of Agriculture, Food, and Rural Affairs Tribunal (OMAFRA) held the last hearing for UFCW v MedReleaf. The outcome could determine whether cannabis production workers have a right to collective bargaining.
Cannabis production workers are classified as agricultural workers in Ontario, and therefore are covered under the Agricultural Employees Protection Act instead of the Labour Relations Act, the province’s primary legal mechanism to protect labor rights. After trying to unionize under the banner of the United Food and Commercial Workers International Union (UFCW) in 2015, workers at a major cannabis production company, MedReleaf, say they were unduly terminated. (MedReleaf’s parent company is one of the largest cannabis companies in the world, Aurora Cannabis.)
Now, the UFCW is challenging the constitutionality of excluding agricultural workers from the legislation that provides a right to collective bargaining. Cannabis Wire spoke with Kevin Shimmin, UFCW national representative, to learn more about the union’s efforts. (This conversation has been lightly edited for length and clarity.)
Anna Bianca Roach, Cannabis Wire: What are the precedents for this case?
Kevin Shimmin, UFCW: The original case against MedReleaf was in 2015. We filed for certification to represent workers for MedReleaf both provincially and federally because it hadn’t been done before, and we weren’t really sure where it was going to go. And so, the federal board rejected us, and then the provincial board decided that these are agricultural workers, so there’s no jurisdiction for the Labour Relations Act.
Cannabis Wire: What happened when you went to the Tribunal of Agriculture in 2018?
Shimmin: All of our inside organizers were terminated by the company [after the union’s first attempt to unionize in 2015]. So first we were at the Tribunal because even under the Agricultural Employees Protection Act, although it’s so weak, the one thing it does say is you should not be terminated for attempting to form an association.
We went through more than a year of testimony, and then at the very last minute, we were literally anticipating the decision from the Tribunal on whether or not these inside organizers should be put back to work. And right before that, MedReleaf offered quite large settlements to each of the concerned people.
Of course, we had to say to the inside organizers, “You gotta do what’s best for your family.” We showed them the settlements and they did actually end up taking them.
Cannabis Wire: What does that mean for the case?
Shimmin: What that did is that erased everything we had done up until then. There were no more cases as far as the wrongful dismissal. The next phase is the constitutional question. That’s where we’re saying that the exclusion of cannabis production workers, and all agricultural workers in Ontario, is a violation of the Charter and the Constitution.
The Agricultural Employees Protection Act does not protect the right to form a union.… There’s no right to actual collective bargaining. There’s no right to a grievance procedure. And there’s no enforcement mechanism to make your company recognize a union or association.
We’re saying that this piece of legislation, the Agricultural Employees Protection Act, combined with the fact that the government does not allow production workers to be under the Labour Relations Act, is unconstitutional.
Cannabis Wire: What comes next?
Shimmin: If they rule against us, then we will go to the Superior Court of Ontario, and then finally to the Supreme Court, where we anticipate we will eventually end up—again. We’ve gone to the Supreme Court twice over the same issue. In the past, it was always about agricultural workers on farms and industrial agriculture. This time, it’s about cannabis workers. The ramifications could be huge, because if we were found to be right, that would be not only for cannabis production workers but for all agricultural workers in Ontario. They would finally be covered by the Labour Relations Act.
Cannabis Wire: What were the previous cases at the Supreme Court?
Shimmin: The very first time we went to the Supreme Court was when the Harris government was still in power in the late ‘90s. We actually won the first time at the Supreme Court. They ruled that it is unconstitutional to exclude agricultural workers from the Labour Relations Act, and it gave the government a deadline and said, “You have to do something to fix this problem.”
But instead of the government including them in the Labour Relations Act, they created this Agricultural Employees Protection Act. It was a way to abide by the Supreme Court order, but to in fact still deny the full right to organize and bargain collectively. That was the Dunmore case.
The second time was the Fraser case. We said, the Agricultural Employee Protection Act does not guarantee the right to organize. We lost that case because what the court said is, “You may be right, but you have not proven to us that the Agricultural Employee Protection Act doesn’t guarantee the right to organize, because you haven’t put forward enough cases.” This time, we have two cases where we’ve proven that we’ve done everything right under the Act, and that it didn’t get us anywhere.
Cannabis Wire: What are some of the challenges for organizing in the cannabis sector?
Shimmin: It is a very close knit sector. Cannabis workers in dispensaries are the same as everybody else under the Labour Relations Act. They can unionize, no problem. But because it’s such a tight-knit community, there’s an even higher level of fear of termination.
We attempted to start organizing a dispensary where the conditions were horrendous. And the person who was trying to organize it was terminated. When I said we could help her try and get her job back, she said, “No. I need to get a job. I’m gonna be blacklisted in the industry.”
The decision from the Tribunal of Agriculture is expected this spring.
