Canada: No Signs Of Labour Peace After Government Uses Bill 115

Schools in Ontario could face significant challenges with respect to possible labour unrest over the next number of months. For the first time in more than a decade, nearly 1.4 million students in Ontario's public English-language schools could face up to two years with no extracurricular activities.

Students in these schools could go without sports teams, clubs and after-school help if teachers choose to prolong their protest of the Government's decision to impose deals that could not be reached through collective bargaining.

On January 2, 2013, 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, 2012 ("PSFA" or "Bill 115"). The Order in Council imposes the terms of the Memorandum of Understanding ("MOU") between the Government and the Ontario English Catholic Teachers' Association ("OECTA") on school boards and unions across the province.

At a press conference on January 3, 2013, Education Minister Laurel Broten said that the province's $14 billion deficit left it "no other option" but to freeze teachers' pay and reduce sick days to protect gains made in education, including smaller class sizes. The Minister also announced that the Ministry has approved all 65 local agreements that were submitted prior to the December 31, 2012 deadline in the PSFA.

The Order in Council approved by the Cabinet serves to freeze wages for two years, but lets new teachers move up the salary grid starting in February, 2013. The steps taken by the Government will reduce sick days to 10 from 20 and end the practice of cashing them in at retirement, consistent with the terms of the MOU negotiated with OECTA last summer. Minister Broten has said that banked sick days were a $1.4 billion liability on Ontario's books, and limiting salary increases will save about $800 million over two years, all key to reducing the province's significant deficit.¹

Minister Broten also announced that the Government would move to repeal the PSFA prior to the end of January, 2013. The Minister said that her goal in asking cabinet to repeal the law, which she admits has become a "lightening rod", was to encourage teachers to return to extracurricular activities.

To date, the Minister's strategy does not appear to be working. Ken Coran, President of the Ontario Secondary School Teachers' Federation ("OSSTF"), called the Government's decision "an aggressive move" that has further inflamed relations with teachers. He would not rule out teachers continuing to curb their involvement in extracurricular activities throughout the two-year term of the contract.²

Sam Hammond, President of the Elementary Teachers' Federation of Ontario ("ETFO"), accused the Government of a "disgraceful" misuse of power, and warned parents and students that it will not be "business as usual" when classes resume. Mr. Hammond noted that in December 2012, teachers voted overwhelmingly in favour of holding a province-wide day of political protest.³ However, with strike action illegal under the PSFA, union leaders are reluctant to contravene the Ontario Labour Relations Act, 1995 by urging teachers to stage such a protest.

On January 4, 2013, Ontario Premier Dalton McGuinty personally asked both OSSTF and ETFO to restore extracurricular activities in public schools. The Premier reached out to both Mr. Coran and Mr. Hammond in the hope that they could all find a way to "put what is done behind us."⁴

THE CHALLENGE FOR SCHOOL ADMINISTRATORS

For principals and vice-principals in the province, the challenge will be to ensure continuity of education and the effective operation and administration of their schools. Ensuring proper supervision, delivery of appropriate curriculum, and student safety will be key considerations during this period of labour uncertainty.

In meeting with school staff in these challenging times, school administrators should:

• ensure that teachers perform required duties and responsibilities;
• refrain from providing their personal views about the labour situation;
• strive to be sensitive, discreet and understanding in dealing with staff issues;
• focus on supporting the school program and student learning;
• communicate with school staff with clarity; and
• be professional and positive in providing leadership in the school community.

Principals and vice-principals should recognize that labour relations can create stress and tension in a school environment. If a particular school is targeted for job action, it may be part of a province-wide strategy to achieve a broader objective. School administrators should recognize that with some local labour issues, there may be larger political motivations at play. In these circumstances, school administrators should put these issues into perspective.

School administrators should provide as much notice as possible to parents and staff about possible disruptions to the school program. School leaders should also inform their parents and students about the activities, programs and measures that the school has taken and will take to protect the learning experience for students.

If one or more local bargaining units in a school gives notice of a job action, it is recommended that the principal contact the school board's human resources department and his or her supervisory officer. Under the legislation, unions are not in a legal position to take strike action and they should not be encouraging their members to strike. Subsection 8(5) of the PSFA provides that a strike or lockout in contravention of the Act is "deemed to be an unlawful strike or lock-out for the purposes of the Labour Relations Act, 1995."

Under subsection 79(6) of the Labour Relations Act, 1995, no trade union or officer, official or agent of a trade union "shall procure, counsel, support or encourage an unlawful strike or threaten an unlawful strike." Any such activity is considered an unfair labour practice and a school board could apply to the Ontario Labour Relations Board to restrain such activity.

The term "strike" is broadly defined under the Education Act. Subsection 277.2(4) of the Education Act provides that strike includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or many reasonably be expected to have the effect of curtailing, restricting, limiting or interfering with:

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

VOLUNTARY VERSUS REQUIRED DUTIES

OSSTF and ETFO have threatened to withdraw extracurricular activities in Ontario public English-language schools over the next two years. The question of which services are required will be central to determining what is and what is not lawful strike activity. Since voluntary services may be withdrawn without teachers engaging in a strike, the question will have to be carefully considered in each particular case.

The issue of whether an activity is voluntary or not may vary from school board to school board and, in some circumstances, even from school to school. It is dangerous to be too categoric about characterizing activities as voluntary or contractual.

A teacher's role is not limited to instructional time within the classroom but extends to encouraging students in spiritual, athletic or other pursuits. The Education Act does not limit hours of work for teachers. Duties may be assigned outside the instructional school day. Where such duties are not expressly prescribed by a collective agreement, a school board may nonetheless assign such duties where they are established by a course of conduct and the assignment is reasonable within the context of the school.

The question of whether a specific activity engaged by a teacher is voluntary or whether a teacher may be required to perform non-instructional services has been considered by the Supreme Court of Canada.⁵ With respect to voluntary services, Chief Justice Laskin stated that services voluntarily performed could not become a term of a teacher's contract or a required duty. With respect to the distinction to be drawn between voluntary and required services, Chief Justice Laskin took the view that voluntary services could evolve over a period of time into mandatory duties:

In addition, Chief Justice Laskin adopted the view that not all duties had to be expressed under the collective agreement before they could be considered mandatory. In all cases, reasonableness must oversee the analysis:

According to Chief Justice Laskin, there are two situations in which teachers might find themselves obliged to perform additional or ancillary duties, outside of instruction and supervision, for which there is no contractual or statutory obligation:

• where teachers have performed the duties voluntarily over a period of time; and
• where the duties are related to the employer's enterprise, they are fair to the teacher and the request is reasonable.

The decision of Chief Justice Laskin has been relied upon, in various circumstances, by arbitrators to determine whether certain services not set out in the collective agreement or the Education Act may nonetheless be considered mandatory duties that school boards may require teachers to perform. In a 1999 arbitration, Durham Catholic District School Board and OECTA (Re),⁸ teachers grieved the requirement to participate in parent-teachers interviews. Teachers had refused to participate in the interviews during a period of political and labour tension. Noting the teachers had performed the after-hours services for 31 years, Arbitrator Bendel determined that parent-teacher interviews had become a mandatory duty because the teachers had performed the interviews over a long period of time. Originally, parent-teacher interviews may have been voluntary but they had evolved into a required duty and one that the school board could compel the teachers to perform.

Overall, the issue whether a certain activity is voluntary or not may vary from school board to school board and, in some circumstances, from school to school. The facts and circumstances in each case should be carefully examined. Certain activities may be mandatory where they have been engaged in by teachers over a course of time, where the duties are related to the school boards enterprise, they are fair to the teacher and the request is reasonable.

SIGNIFICANT CHALLENGES AHEAD

There will be significant challenges ahead in the education sector. Michael Barrett, the President of the Ontario Public School Boards' Association, stated that the move by the Government to impose contracts will not ensure labour peace or restore extracurricular activities. Mr. Barrett said that the disruptions in public English-language schools "might very well" last until the contracts expire.⁹

In the event that a labour relations issue arises, school administrators should contact the board's human resources department and their supervisory officer and inform them of the issue. In response to a labour matter, such as a teacher's refusal to carry out certain activities, it is important to be patient and calm and focus on supporting the school program. It is recommended that principals and vice-principals continue to build strong relationships with their school staff and union representatives. Where possible, it is important for the parties to work in a collaborative manner to resolve potential areas of disagreement. The focus for all parties should be on continuing to support student achievement and ensuring a positive learning experience for all students.

Footnotes

^{1 Louise Brown, Richard J. Brennan and Rob Ferguson, "No signs of labour peace after Broten uses Bill 115", The Toronto Star, (January 4, 2013), p. A6.}

^{2 Karen Howlett and Jill Mahoney, "Students face new uncertainty as province imposes contacts", The Globe and Mail (January 4, 2013), p. A8.}

^{3 Ibid.}

^{4 Canada Press, "McGuinty asks unions to restore extracurriculars, receives no assurance", National Post, (January 5, 2013), p. A.}

^{5 Winnipeg Teachers' Assn. No. 1 v. Winnipeg School Division No. 1 (1975), 59 D.L.R. (3d) 228, [1976] 2 S.C.R. 695.}

^{6 Supra, at p. 235}

^{7 Supra.}

^{8 (1999), 80 L.A.C. (4th) 278, 56 C.L.A.S. 59 (Bendel).}

^{9 Brown, Brennan and Ferguson, op. cit. footnote 1, at p. A6.}

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