Canada: What Is The Impact Of Bill 115 On School Administrators?

Last Updated: May 6 2013
Article by Eric M. Roher

On March 26, 2013, Ontario's public elementary teachers were advised by their own union to restore extra-curricular activities in time for the spring sports season, Grade 8 graduation trips and end-of-year field trips.

The Elementary Teachers' Federation of Ontario ("ETFO") said that it is confident that the Ontario government has "demonstrated a commitment to dealing with concrete items of importance to our members."1

The union joins its public school board colleagues at the high school level, who resumed their participation in extra-curriculars in February, 2013 after making similar progress in talks with the province.2

Public school parents are uncertain as to whether all teachers will resume extra-curriculars and whether it will include all activities.

Teachers began protests in September 2012 when the Liberal government introduced the Putting Students First Act, 2012 (Bill 115 or the "PSFA") which had the effect of dictating the terms of their contracts.

Principals and vice-principals in public school boards have worked diligently to ensure the continuity of the education program and the effective operation and administration of their schools. Ensuring proper supervision, delivery of appropriate curriculum and student safety were key considerations during the period of labour uncertainty.

With respect to Catholic school boards, a period of local bargaining took place across the Province following the signing of the Memorandum of Understanding between the Ontario English Catholic Teachers' Association ("OECTA") and the Ministry of Education on July 5, 2012 ("OECTA MOU"). This period of local bargaining ended on December 31, 2012. OECTA and the Ministry agreed that there would be no strikes, lockouts or applications for conciliation during the period of local bargaining. However, there have been a range of disputes and grievances initiated by OECTA over the interpretation and application of the new legislation.

Across the province, there has been significant uncertainty as to the implementation and operation of the PSFA. Questions have also arisen as to the impact of the PSFA on principals and vice-principals in Ontario. Furthermore, questions have arisen about the status of Bill 115 in light of the fact that on January 23, 2013, the legislation was repealed by the Government.

PUTTING STUDENTS FIRST ACT, 2012

School administrators across Ontario, including principals and vice-principals, are governed by the provisions of the PSFA. The Act, which came into force on September 11, 2012, imposes a broad compensation freeze on all employees in the education sector, including school administrators. The PSFA also imposes the OECTA MOU or similar memoranda of understanding, on all unionized employees.

The PSFA establishes a two-year restraint period, which started on September 1, 2012.

EMPLOYMENT CONTRACTS FOR PRINCIPALS AND VICE-PRINCIPALS

For employees who do not bargain collectively, such as principals and vice-principals, the Act requires that their contracts of employment contain the specific restraint measures itemized in section 2 of the PSFA.

The key provisions that must be included in employment contracts with principals and vice-principals are as follows:

  • no across-the-board increase in compensation during the restraint period;
  • no accumulation of sick leave credits after August 31, 2012;
  • three unpaid leave days in 2013-14 school year, scheduled on professional activity days. Principals and vice-principals would not be expected to work on these days; and
  • eligibility for increased compensation from grid movement on the 97th day of each school year during the term of the agreement.

The Ministry will continue to provide school boards with funding for principals and vice-principals salaries as it has in the past.

The Ministry has also stated that principals and vice-principals (or principals in French-language school boards) who choose to return to teaching within 12 months of their permanent appointment will be permitted to do so. A vice-principal's return to the bargaining unit is contingent on there being a teaching vacancy, for which he or she is qualified. No member of the bargaining unit will be adversely affected due to the return of a vice-principal to the bargaining unit.

In the case of French-language school boards, the right to return to the bargaining unit includes both principals and vice-principals, but does not apply to vice-principals being appointed to principal.

As indicated above, for non-unionized employees, such as principals and vice-principals, the PSFA freezes their compensation as of September 1, 2012 for a period of two years, although that period may be further extended by regulation. Compensation is broadly defined and includes "anything paid or provided, directly or indirectly to or for the benefit of a person who performs duties and functions that entitle him or her to be paid and includes salary, benefits, perquisites and all forms of non-discretionary and discretionary payments." In light of this broad definition, it is apparent that additional vacation or any other benefit or perquisites cannot be provided to an employee during the restraint period.

The compensation restraint measures in the PSFA do not apply to superintendents and directors of education earning more than $100,000, whose compensation has already been frozen pursuant to the terms of the Broader Public Sector Accountability Act, 2010.

The PSFA provides that if an employment contract that applies during the restraint period is inconsistent with the terms set out in the Act, the contract is inoperative to the extent of the inconsistency.

The PSFA also states that a school board will not provide compensation to an employee, before, during or after the restraint period, for compensation that he or she will not, does not, or did not receive as a result of the Act.

RETIREMENT GRATUITY, SICK LEAVE AND POST-RETIREMENT BENEFITS

By Regulation, the Government amended the employment contracts between a school board and board employees who do not bargain collectively. Board employees who do not bargain collectively, such as school administrators, are not eligible to receive any form of retirement gratuity, after August 31, 2012, except the retirement gratuity that the employee had accumulated and was eligible to receive as of that day.

By Regulation, the Government also developed a new formula with respect to eligibility to receive a retirement gratuity based on the number of years of service as an employee with the board as of August 31, 2012.

In circumstances where an employee is eligible to receive a retirement gratuity, the school board is required to provide him/her with a report on or before May 31, 2013. The report is to include, among other things, the amount of the employee's retirement gratuity, together with the calculation used to determine that amount.

Non-unionized employees, such as school administrators, are eligible for 11 days of sick leave at 100% of their salary and thereafter 120 days of sick leave at a rate of pay of 66.67% or 90%, if the entitlement to 90% has been determined through an adjudicative process agreed to by the employee and the board.

By Regulation, the Ontario Government has moved to eliminate post-retirement benefits for certain employees who are eligible for group insurance benefits from the date of retirement until age 65. The provisions of the Regulation effectively deprive certain school board employees of post-retirement benefits unless they retire before September 1, 2013.

DIAGNOSTIC ASSESSMENT

On January 7, 2013, Policy Program Memorandum No. 155 entitled "Diagnostic Assessment in Support of Student Learning" was released by the Ministry.

The memorandum, which is Ministry policy, outlines how teachers will use their professional judgement to determine:

  • which assessment and/or evaluation tool(s) from the board's list of pre-approved tools is applicable;
  • for which student(s); and
  • the frequency and timing of the use of the tool.

The memorandum defines diagnostic assessment as "assessment that is used to identify student's needs and abilities and the student's readiness to acquire the knowledge and skills outlined in the curriculum expectations."

Information from diagnostic assessment helps teachers determine where individual students are in their acquisition of knowledge and skills so that instruction can be personalized and tailored to provide the appropriate steps for learning.

In order to inform their instruction, teachers are required to utilize diagnostic assessment during the school year.

Senior school board personnel have raised concerns that this Ministry initiative could undermine the role and responsibility of school administrators regarding the effective assessment, evaluation and reporting of student achievement. Further, concerns have arisen that this Ministry policy may result in inconsistent practices from school-to-school and board-to-board in using diagnostic assessment tools.

REPEAL OF BILL 115

At 12:01 a.m. on January 23, 2013, the Government of Ontario officially repealed Bill 115.

Laurel Broten, the then Minister of Education, stated that the Bill was repealed to "show goodwill towards teachers". The Minister stated, "There's no doubt Bill 115 had become a lightning rod".3

The question arises as to impact of the Government's step to repeal the PSFA and the regulations made under the Act.

Pursuant to clause 51(1)(b) of the Legislature Act, "The repeal of an Act or the revocation of a regulation does not ... (b) affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or regulation."

Clearly, the Government's intention is that while the PSFA and the regulations made pursuant to it will be repealed, contractual terms imposed by the PSFA and its regulations (including those related to the salary freeze, sick leave, retirement gratuity and elimination of post-retirement benefits) will remain in force during the term of the restraint period. In this regard, the collective agreements and changes to individual employment agreements imposed under the PSFA and its regulations remain in effect until August 31, 2014, although the PSFA and the regulations themselves are no longer in force.

NEXT STEPS

It was the Greek philosopher Heraclitus who said, "The only thing that is constant is change."

There will continue to be significant change in the education sector in the next few years. The Ministry of Education has been actively consulting with stakeholders to develop models for provincial bargaining to take effect January 1, 2014.

In addition, a committee of stakeholders is being established to look at creating one or more provincial benefit plans for the education sector.

The new Liberal Government is working diligently to rebuild the tattered relationship with teachers and other parties in the education sector.

For example, on April 1, 2013, the Ministry announced that it reached an agreement in principle with the Ontario Secondary School Teachers' Federation, the union representing high-school teachers at the province's public school boards.4 Talks are ongoing with ETFO, the public elementary teachers union.

It is important for school administrators, through their provincial associations, to work with the Ministry and other stakeholders in a collaborative and inclusive manner. School boards and school administrators need to clearly articulate their needs and priorities to ensure a successful school system. The focus should be on continuing to promote student achievement, the development of best practices and the delivery of effective education programs.

Footnotes

1 Kate Hammer, "Union moves to restore extras", The Globe and Mail (March 27, 2013) p. A7.

2 Ibid

3 Kristin Rushowy and Rob Ferguson, "Ontario Teacher protest: Liberals repeal Bill 115", The Toronto Star (January 23, 2013) p. A1.

4 Caroline Alphonso, "Ontario reaches agreement in principle with teachers", The Globe and Mail (April 1, 2013) p. A8.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Eric M. Roher
 
In association with
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.