BILL 28

Back to School (Toronto Catholic Elementary)
And Education and Provincial Schools
Negotiations Act, 2003

May 2003

INTRODUCTION

The elementary teachers' collective agreement between the Ontario English Catholic Teachers' Association ("OECTA") and the Toronto Catholic District School Board expired on 31 August 2002. The Association and School Board engaged in bargaining to achieve a new collective agreement. On 5 May 2003, the members of OECTA commenced a work to rule campaign. On Friday 16 May 2003, the School Board imposed a lock out, locking out 69,000 students and their teachers.

On Wednesday 21 May 2003, the Government introduced Bill 28, the Back to School (Toronto Catholic Elementary) and Education and Provincial Schools Negotiations Amendment Act, 2003. Second Reading was debated on 27-29 May 2003.

Bill 28 was introduced after only two days of a lockout which is an unprecedented short time for any Government to act. In addition, the legislation was introduced in the absence of any Education Relations Commission ruling on whether the education of students was in jeopardy.

Bill 28 legislates an end to the lock out and the work to rule campaign.

Bill 28 also legislates a mandatory mediation/arbitration process to conclude a new collective agreement.

In addition, Bill 28 amends and broadens the definition of "strike" in both the Education Act and the Provincial Schools Negotiations Act.

Finally, on 21 May 2003, at the same time that Bill 28 was introduced, the Government filed a new Regulation 209/03 which adds a range of previously voluntary duties to the list of prescribed teacher duties.

The discussion below addresses

1. the termination of the lockout and work to rule;

2. the nature of the mandatory mediation/arbitration process;

3. the significance of the new definition of strike; and

4. the amendments made by Regulation 209/03

PART I: BACK-TO-WORK PROVISIONS

TERMINATION OF LOCKOUT AND WORK TO RULE CAMPAIGN

Bill 28 provides that as soon as it comes into force, the School Board must terminate the lock out and the Association must terminate any strike (i.e. the work to rule campaign). Bargaining unit members must return to work and perform their duties.

Bill 28 prohibits future strikes and lockouts until after the new collective agreement has been executed.

Financial penalties are established for failing to comply with these back-to-work provisions. The penalty for an individual is $2000; the penalty for a corporation or trade union is $25,000. Each day of non-compliance is a separate offence.

Until a new collective agreement is executed, the terms and conditions of employment that applied prior to the first day on which it became lawful for any member to strike continue to apply.

MANDATORY MEDIATION/ARBITRATION

If the parties have not executed a collective agreement within seven days after the legislation comes into force, all outstanding issues are referred to a mediator-arbitrator.

The parties have seven days to jointly appoint a mediator-arbitrator and to notify the Minister of the appointment. Failing a joint appointment, the Minister shall appoint the mediator-arbitrator. If the mediator-arbitrator is unable or unwilling to perform his or her duties, the Minister shall forthwith appoint a new mediator-arbitrator and the process shall begin anew. If the parties execute a new collective agreement before a mediator-arbitrator is appointed, no mediator-arbitrator shall be appointed.

If a mediator-arbitrator is appointed before Bill 28 comes into effect, Bill 28 nevertheless applies to the proceedings as if he or she had been appointed under Bill 28. Once Bill 28 comes into effect, the parties cannot appoint an arbitrator, mediator or mediator-arbitrator to settle the matters in dispute otherwise than under Bill 28.

Who can be appointed as a mediator-arbitrator?

Where the Minister appoints the mediator-arbitrator, the Minister must appoint a person who, in the opinion of the Minister, has the requisite experience as either an arbitrator or mediator or has expertise in labour relations and education matters.

We note that there is no requirement that the mediator-arbitrator actually have expertise in labour relations and education matters. Under the language in s. 10(5) of Bill 28, the government-appointed mediator-arbitrator could be either someone with arbitration/mediation experience or someone with labour relations/education expertise. There is no requirement that they have both. There is also no requirement that the mediator-arbitrator be someone who by their expertise is generally accepted in the labour relations or education community.

These shortcomings with s. 10(5) may be problematic in light of the Supreme Court of Canada's 16 May 2003 decision in CUPE v. Ontario (Minister of Labour). In that case, the Supreme Court of Canada ruled that in appointing an interest arbitrator under the Hospital Labour Disputes Arbitration Act, the Minister must be satisfied that the interest arbitrator

(a) is independent and impartial;

(b) possesses appropriate labour relations expertise; and

(c) is recognized in the labour relations community as generally acceptable to both management and labour.

To the extent that s. 10(5) of Bill 28 falls short of this standard, it raises concerns about whether the interest arbitration process will violate principles of natural justice. Moreover, the Canadian Charter of Rights and Freedoms may be violated by this process.

Jurisdiction of the Mediator-Arbitrator

Under Bill 28, the mediator-arbitrator
has jurisdiction to settle all matters he or she considers necessary to conclude a new collective agreement.

The mediator-arbitrator must begin the proceedings within 30 days of the appointment and make the award within 90 days after the appointment although the Minister has the authority to extend these time periods.

The term of the new collective agreement shall be from 1 September 2002 to 31 August 2004. The collective agreement shall be final and binding on the parties and the members of the bargaining unit. Within seven days of the mediator-arbitrator's award, the parties must execute the document to give effect to the award.

As with other back-to-work legislation that the Government has enacted in recent years, Bill 28 imposes limitations on the mediator-arbitrator's authority to craft a collective agreement.

The mediator-arbitrator=s award must be consistent with the Education Act and regulations made under it and permit the School Board to comply with the Education Act and regulations. In addition the award must be one that can be implemented in a reasonable manner without causing the School Board to incur a deficit.

During the course of the interest arbitration, the parties can notify the mediator-arbitrator of matters upon which they have reached agreement. However, the mediator-arbitrator shall not give effect to these matters unless he or she is satisfied that this can be done without causing the board to incur a deficit.

Interest arbitrators have for years criticized such limits on their jurisdiction as constraining their ability to make a collective agreement that would be best for the parties and as constraining and/or predetermining the outcome of the proceedings. In addition, the ILO Committee of Experts on Freedom of Association has repeatedly criticized such restrictions imposed by this Tory government as impairing the right to freedom of association by failing to provide for a fair and impartial interest arbitration process. OECTA has been instrumental in obtaining some of those ILO rulings. A further question arises as to whether these restrictions also violate the Charter of Rights and Freedoms.

PART II: AMENDMENTS TO THE EDUCATION ACT

Apart from legislating an end to the lockout and legislating a mandatory interest arbitration process, Bill 28 makes amendments to the Education Act to expand teachers duties and to expand the definition of strike. We address the new teacher duties first as they also shed light on the new definition of strike.

EXPANDING TEACHERS= DUTIES: SOME VOLUNTARY ACTIVITIES ARE MADE MANDATORY

Bill 28 expands teachers duties by amending s. 264(1) of the Education Act.

Under s. 11(1) of the Education Act, subject to Cabinet approval, the Minister can make regulations prescribing teachers duties.

In s. 264(1) of the Act, teachers= duties were defined in reference to broad principles such as the duties Ato teach diligently and faithfully the classes or subjects assigned...", "to encourage the pupils in the pursuit of learning" or "to maintain, under the direction of the principal, proper order and discipline in the classroom...".

Bill 28 expands these duties by adding a basket clause in s. 264(1)(l) making it the duty of individual teachers "to perform all duties assigned in accordance with this Act and the regulations."

On 21 May 2003, the Government also made Regulation 209/03. This amended s. 20 of the existing regulation on teachers= duties, Regulation 298, to make it the duty of an individual teacher to:

(i) ensure that report cards are fully and properly completed and processed in accordance with the guides known in English as Guide to the Provincial Report Card, Grades 1-8 and Guide to the Provincial Report Card, Grades 9-12, and in French as Guide d'utilisation du bulletin scolaire de l' Ontario de la 1ère à la 8e année and Guide d'utilisation du bulletin scolaire de l'Ontario de la 9e à la 12e année, as the case may be, both available electronically through a link in the document known in English as Ontario School Record (OSR) Guideline, 2000 and in French as Dossier scolaire de l=Ontario: Guide, 2000, online at www.edu.on.ca/eng/document/curricul/osr/osr.html or www.edu.on.ca/fre/document/curricul/osr/osrf.html;

"(j) co-operate and assist in the administration of tests under the Education Quality and Accountability Office Act, 1996;

"(k) participate in regular meetings with pupils' parents or guardians;

"(l) perform duties assigned by the principal in relation to co-operative placements of pupils; and

"(m) perform duties normally associated with the graduation of pupils."

Regulation 209/03 is different from the pre-existing Regulation 298 because rather than assigning general duties (in keeping with the generality of the duties in s. 264), Regulation 209/03 makes very specific and precise activities which were formerly voluntary mandatory for teachers.

Bill 28's introduction of the basket clause regarding teachers= duties in s. 264(1)(l) is disturbing because it gives the Minister broad authority to alter the content of teachers= duties by regulation in this way. This kind of AHenry VIII" clause permits the Minister to prescribe significant teaching duties Abehind closed doors" without public debate in the Legislative Assembly.

While Regulation 209/03 has added five new precise duties, this does not exhaust the power granted to the Minister in s. 264(1)(l). The Government can make future regulations to add to or alter teachers' duties and, in particular, to make other voluntary activities mandatory.

The fact that these fundamental changes can now be made by regulation, in the absence of collective bargaining or public scrutiny, is particularly troubling in light of the fact that the Government had previously, with Bill 74 in 2000 attempted to explicitly amend the Education Act to make co-instructional activities mandatory but then, with Bill 80 in 2001, withdrew those amendments in the face of political resistance and a government-appointed Advisory Group report recommending against making co-instructional activities mandatory.

Finally, it is worth noting that Regulation 209/03 has been made prior to Bill 28 being passed and coming into force. A question arises as to whether, in the absence of Bill 28=s proposed s. 264(1)(l) the Minister can properly make regulations imposing the precise kinds of duties that are set out in Regulation 209/03. It is arguable that, in the absence of the new language in s. 264(1)(l), the regulation making power in s. 11(1), para. 26 is not broad enough to empower the Minister to make regulations assigning such specific duties. Rather, it is arguable that the general language of s. 11(1), para. 26 does not empower the Minister to make regulations imposing duties beyond the general duties that were previously contemplated by the legislation.

NEW DEFINITION OF A "STRIKE"

Finally, Bill 28 has introduced a new definition of "strike" which will apply under both the Education Act and the Provincial Schools Negotiations Act.

The new definition is as follows:

"strike" includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering with,

"(i) the normal activities of a board or its employees,

"(ii) the operation or functioning of one or more of a board=s schools or of one or more of the programs in one or more schools of a board, including but not limited to programs involving co-instructional activities, or

"(iii) the performance of the duties of teachers set out in the Act or the regulations under it,

"including any withdrawal of services or work to rule by teachers acting in combination or concert or in accordance with a common understanding."

Bill 28 changes the definition of strike in three ways.

First, while the previous definition had focussed on the question of whether action was designed to curtail, restrict, limit or interfere with school programs, under Bill 28, a strike includes both action which is designed to have this effect or which "may reasonably be expected" to have this effect. While on its own this may not have signalled a large shift in the definition (as the Labour Board would likely consider such reasonably expected effects in determining if there was an illegal strike), in light of the other two changes, this language has the potential to be used to expand the circumstances in which a strike is identified.

Second, a strike will include actions which curtail, restrict, limit or interfere with "the normal activities of a board or its employees". Previously, the definition of strike was focussed on disruption to one or more school programs. The new definition under Bill 28 expands the strike to include activities that could affect board activities other than school programs.

The expansion of the definition in this way is troubling because the school board can unilaterally decide what are its "normal activities" and because what are "normal activities" are also shaped by government funding decisions.

Third, the definition of strike is expanded to include "the performance of the duties of teachers set out in the Act or the regulations under it". This parallels the expansion of teacher duties under s. 264(1)(l) and any regulations made under this power.