Canada: Cabinet Order Imposes MOU On School Boards And Unions

Last Updated: January 8 2013
Article by Eric M. Roher, Robert W. Weir and Kate Dearden

Most Read Contributor in Canada, November 2016

Acting on the advice of the Minister of Education, the Lieutenant Governor in Council (i.e. the Ontario Cabinet) issued an order under subsection 9(2) of the Putting Students First Act ("PSFA" or "Bill 115") on January 2, 2013 (the "Order in Council"). The Order in Council imposes the terms of the Memorandum of Understanding entered into on July 5, 2012 ("MOU") between the Government and Ontario English Catholic Teachers' Association ("OECTA") on school boards and unions across Ontario.

The Order in Council states as follows:

  1. For the 2012-13 and 2013-14 school years, the Collective Agreement between a Board in Column 1 of Schedule "A" and the Bargaining Agent in Column 2 opposite the Board in respect of the Bargaining Unit in Column 3 opposite the Bargaining Agent shall be the Collective Agreement between the parties in operation for the 2008-12 school years ("Incorporated Agreement"), as modified or replaced by the corresponding Memorandum of Understanding in (the "MOU") in Column 4 opposite the Bargaining Unit, O. Reg 313/12 (Sick Leave Provisions, 2012-13) and the regulation titled "General" made under the Act, the regulations titled "Sick Leave Credits and Sick Leave Credit Gratuities" and "Hiring Practices" made under the Education Act and any other regulations that may be made that specifically provide for modifications or replacements ("Regulation").
  2. If a provision of the Incorporated Agreement is inconsistent with any of the terms or conditions set out in the MOU and Regulation such provision is deemed to be inoperative to the extent of the inconsistency.
  3. A provision of the Incorporated Agreement is inconsistent with the terms or conditions set out in the MOU and Regulation if the provision changes, nullifies or limits the operation of a provision of the MOU and Regulation.
  4. A Board and Bargaining Agent cannot by mutual consent revise the Collective Agreement to make it inconsistent with the terms of the applicable MOU in Column 4 and Regulation.

Schedule "A" to the Order in Council contains a list of 289 collective agreements between school boards and bargaining agents that are now subject to the terms of the MOU. All new contracts imposed under the Order in Council are retroactive to Sept. 1, 2012 and will expire on Aug. 31, 2014.

MINISTER'S PRESS CONFERENCE

At a press conference on January 3, 2013, the Minister announced that she has approved all 65 local agreements that were submitted prior to the December 31, 2012 deadline in the PSFA. She also announced the Order in Council, which had not previously been made public.

The Minister advised that the Canadian Union of Public Employees ("CUPE") has until January 14, 2013 to ratify 110 local agreements, failing which the Minister would presumably impose contracts under the PSFA. CUPE announced on December 30, 2012 that it had reached a tentative agreement with the Government, which would be put to its leadership for a vote on January 5, 2013.1 It is now expected that the agreement will be put to local membership for ratification on January 12 and 13, 2013, which explains the Government's extension of the deadline under the PSFA to January 14, 2013. CUPE has stated that it would not release any details about the agreement until its leadership votes.

The Minister said that repealing the PSFA is an important step to take as Ontario moves forward and develops a new, centralized bargaining model for future rounds of negotiations. The Minister stated that after the ratification period for CUPE and before the end of January 2013, she would move to repeal the PSFA. She referred several times to the importance of reducing the Government's $14 billion deficit, while acknowledging that the PSFA had become a "lightning rod" for tension in the education sector. The Minister's intention to impose contracts and then repeal the PSFA came as a surprise to many in the education sector, and has generated considerable discussion. Some critics see the gesture as equivalent to closing the barn door after the horse has left the barn.

Leading up to her announcement to impose new contracts and eventually repeal the PSFA, the Minister made some general remarks about the rationale for the PSFA. The Minister stated that the decision to impose collective agreements is a reflection of the Government's fiscal realities. In the Government's view, a choice had to be made between protecting the school system and giving teachers a raise. The Minister said that giving teachers a raise would have required larger classes and a loss of 7,000 teaching positions. According to the Minister, the PSFA was intended as a "one-time measure" and has served its purpose. The three objectives of the PSFA were: to protect the gains made in schools, minimize school disruption during the extended bargaining period, and avoid significant job losses while addressing the deficit.

QUESTIONS AND ANSWERS IN THE PRESS CONFERENCE

Following the press conference on January 3, 2013, the Minister responded to questions from members of the media. When asked about whether repealing the PSFA would bring back goodwill and extra-curricular activities, the Minister responded that the PSFA put collective agreements in place, but that she believed it was important to remove "hurdles" for the bringing back of extra-curricular activities, and it was her "sincere hope" that they will come back. When asked whether there would be any recourse for teachers who withhold extra-curriculars, the Minister responded that she had heard from unions that the PSFA is the only impediment to extra-curriculars, and that she had removed the barrier, and was hopeful that extra-curriculars would return.

The Minister was also asked about illegal strikes. She stated that unions were not in a legal position to take strike action, so she encouraged the unions not to encourage teachers to strike. When asked what the penalties of illegal strike action would be, and whether Sam Hammond, President of the Elementary Teachers' Federation of Ontario ("ETFO") would go to jail if he encourages his members to strike, the Minister responded that the Ontario Labour Relations Board ("OLRB") could issue a cease and desist order. She stated that she was not in a position to speculate on what the OLRB would do.

RESPONSE TO ORDER IN COUNCIL AND PRESS CONFERENCE

Progressive Conservative Leader Tim Hudak, whose party voted in favour of the PSFA, has been quoted in media reports as stating: "I worry that the government is going to throw out the first bill that had a wage freeze in it...That tells me they want to put the union bosses back in charge of running the province."2

Cheri DiNovo, an NDP MPP, responded immediately following the Minister's press conference on January 3, 2013, and commented that "You don't impose agreements. You come to agreements." Ms. DiNovo has said she felt that repealing Bill 115 only after invoking it was "cynical politics at its worst".3

Annie Kidder, Executive Director of People for Education, has stated in media reports that the imposition of contracts won't address concerns that teachers will continue to boycott extra-curriculars until the new contracts expire on August 31, 2014.4

The Ontario Secondary School Teachers' Federation ("OSSTF") has been quoted as saying there are "hard feelings" with the government, and that the "goodwill that was earned from both sides...is very much tarnished right now."5

Sam Hammond, President of ETFO, stated that repealing the PSFA "will in no way erase the stain."6

NEXT STEPS

The Legislature was prorogued on October 15, 2012. A date to recall the Legislature has not been announced. The new leader of the Liberal Party, and next Premier of Ontario, will be determined at a convention to be held January 25-27, 2013.

In the meantime, we can expect further labour unrest in the education sector arising from the Order in Council, and the continued disagreement over the PSFA. Critics of the Government's most recent actions to impose the MOU by an Order in Council have suggested that teachers may continue withdrawing extra-curricular activities, perhaps for as long as August 31, 2014, when the contracts imposed by the Government are set to expire. The Minister has stated several times that any strike action taken before the expiry of the new contracts will be illegal.

Although the Government has been sharply criticized for Bill 115, including by some Liberal leadership candidates, in fairness, centrally negotiated settlements were achieved with a number of unions in the education sector and certain school boards concluded collective agreements during the window of bargaining established by the PSFA. The Catholic teachers and the French-language teachers reached centrally negotiated agreements and, in what was perhaps the Minister's own Christmas "miracle", CUPE came to an agreement just prior to the December 31, 2012 deadline.

It is, of course, the public school English-language system, whose members are represented by ETFO and OSSTF, where the greatest degree of uncertainty remains as school re-commences in 2013. ETFO has referred to the province-wide vote of its members taken between December 2-4, 2012 to engage in a day of political protest. ETFO engaged in rotating one-day strikes in December, and pledged at a press conference on December 21, 2012 not to engage in further strikes if the Government did not impose contracts under the PSFA. Given the imposition of contracts under the Order in Council issued on January 2, 2013, one wonders what ETFO's next move will be. Although the leaders of both ETFO and OSSTF have been careful in media reports not to be seen as encouraging strike activity, it remains to be seen what level of disruption will be brought to bear on the system, whether it will be lawful, and what steps the government or local public school boards will take to deal with any disruptions. Given the level of the rhetoric from the teachers of ETFO and OSSTF, it is difficult to see ETFO and OSSTF simply dropping the matter.

The Education Focus Group of Borden Ladner Gervais LLP will continue to monitor the developments under the PSFA and will provide further updates as new information is available.

Footnotes

1.CUPE Media Release, "CUPE announces tentative agreement for 55,000 Ontario school support workers" (December 30, 2012), online: http://www.cupe.on.ca/d2169/cupe-announces-tentative-agreement

2 CBC News, "Ontario imposes contracts on public school teachers" (January 3, 2013), online: http://www.cbc.ca/news/canada/toronto/story/2013/01/03/ontario-teachers-impose-contracts.html

3 Ibid., and Louise Brown, Richard J. Brennan and Rob Ferguson, "Ontario Teacher Dispute: Turmoil far from over as Education minister Laurel Broten imposes contracts", The Toronto Star (January 3, 2013), online: http://www.thestar.com/news/canada/politics/article/1309979--laurel-broten-to-impose-contracts-on-ontario-public-school-teachers

4 Rob Ferguson, Richard J. Brennan, and Louise Brown "Laurel Broten imposes contracts on Ontario public school teachers", The Toronto Star (January 3, 2013), online: http://www.thestar.com/news/canada/politics/article/1310142--laurel-broten-imposes-contracts-on-ontario-public-school-teachers

5 Ibid.

6 Elementary Teachers' Federation of Ontario Media Release, "Government uses Flawed Legislation to Trample Rights of Working Ontarians" (January 3, 2013), online: etfo.ca

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