UTGB Vol 5.pdf - Robson Hall Faculty of Law

72 Underneath the Golden Boy
so at the expense of the Charter rights of those who are employed in such activities, if
such a policy choice cannot be demonstrably justified. This they have failed to do. 90
She goes on to note the extent to which the "pastoral image" of the family farm
is inconsistent with the current reality of agribusiness and factory farming. 91 She
concludes that,
... we are being asked by the respondents, without being presented with credible
pressing and substantial reasons, to justify distinguishing workers who sort and pack
chicken eggs in a factory,fike environment from workers who pack and sort Easter eggs
in a factory,like environment." 92
Her conclusion that the wholesale exclusion of agricultural workers could not
be justified is even more apt in the context of denying this group of workers very
basic level of protection, such as governing minimum wages and hours of work.
Manitoba has a broader exclusion of agricultural workers, and excludes them
from more minimum standards than other jurisdictions. However, merely
bringing Manitoba's exclusions in line with other jurisdictions does not satisfy
this government's obligations under the Charter, as a substantive equality
analysis indicates that other jurisdictions are in violation of the Charter as well.
Agricultural workers should be fully included in Part 2 of the Code. The needs of
industry can be met in a way that complies with the Charter by allowing specific
employers on a case by·case basis the ability to apply for variances where
compelling circumstances exist and minimal impairment of the rights can be
established.
C. Promoting Compliance
Geoffrey England, a leading expert on employment law in Canada, describes the
sorry state of enforcement of employment standards legislation in virtually every
Canadian jurisdiction, including Manitoba:
The most impressive code of substantive legal rights is only as good as the machinery
enforcing it. Regrettably, securing compliance with employment standards acts has
proven extremely difficult, especially for "atypical" workers, such as part-timers,
casuals, and homeworkers. Since a major purpose of employment standards acts is to
provide workers with a practical means of enforcing their employment rights--civil
litigation to enforce the employment contract being beyond the means of most
workers--this is a most serious failure. 93
This is one area in which the lack of commissioned research associated with this
Review is striking and problematic. There appears to be no information in the
public domain about compliance rates, frequency and scope of investigations, or
90
Dunmore, supra note 47 at para. 182.
91
Ibid. at para. 194.
92
Ibid. at para. 197.
93
England, supra note 19 at 84-85.