Canada: Ontario Labour Relations Board Dismisses OSSTF Unfair Labour Practice Complaint Against The Crown

On April 17, 2012, the Ontario Secondary School Teachers' Federation (the "OSSTF") filed an unfair labour practice complaint against the Crown in Right of Ontario, the Premier of Ontario, the Minister of Education, the Minister of Finance, Dalton McGuinty in his personal capacity, Laurel Broten in her personal capacity and Dwight Duncan in his personal capacity (the "Crown") before the Ontario Labour Relations Board (the "Labour Board").

In their application, the OSSTF made several allegations against the Crown in relation to its conduct at the Provincial Discussion Table ("PDT").

Specifically, the OSSTF alleged that public statements made by the Crown during the PDT process, including Premier McGuinty's YouTube video, directed at Ontario teachers, amounted to failing to bargain in good faith contrary to section 17 of the Labour Relations Act (the "LRA") and threatening or intimidating its members contrary to sections 72 and 76 of the LRA.

A number of parties obtained intervenor status in this application including the Ontario Catholic Schools Trustees' Association ("OCSTA") and the Ontario Public School Boards' Association. ("OPSBA").

BACKGROUND TO THE COMPLAINT

The PDT was a non-binding process established by the Ministry of Education with the purpose of achieving ongoing labour peace and progress in the publicly-funded education sector. The PDT process represented informal discussions with trustee groups, teacher federations and unions representing support workers.

The PDT discussions successfully produced framework agreements in 2008 involving, among others, OSSTF, ETFO and CUPE. It is clear that the discussions in 2012 were not so successful. The Government found itself in serious financial difficulties and since education is a significant part of the provincial budget, not surprisingly, it wished to limit the expenditures in that sector and wished to use the PDT process to obtain agreement to those objectives.

The Government produced and tabled for the PDT discussions a document called "Government of Ontario Parameters for the 2012 PDT" that set out the Government's expectations for the collective agreement results it wished in the education sector. Among other things, the Government wanted the unions to agree to a wage and grid freeze and changes to the ability to bank and"cash out" sick leave credits upon retirement.

It was the conduct of the Government with respect to the PDT discussions that formed the basis of this complaint.

THE LABOUR BOARD DECISION

In the decision released on December 11, 2012, Bernard Fishbein, the Chair of the Ontario Labour Relations Board, dismissed the OSSTF complaint.

Among other things, the Labour Board found that the LRA does not apply to the Crown. It further stated that since the LRA is not binding on the Crown, there was no point to any evidentiary hearing.

The Crown had bought a preliminary motion to dismiss the application arguing that the Labour Board did not have jurisdiction to hear the application on three grounds:

1. the LRA does not apply to any of the responding parties because of Crown immunity;

2. the responding parties' alleged actions are not justiciable; and

3. the OSSTF had not made out a prima facie case of violations of the LRA.

The Crown's argument with respect to crown immunity was straight forward. The Legislation Act provides:

"No Act or regulation binds Her Majesty or affects Her Majesty's rights or prerogatives unless it expressly states an intention to do so."

Accordingly, the Crown is not bound by legislation unless that legislation states that it is bound. Further, the Labour Board ruled that in accordance with subsection 4(2) of the LRA, the Crown is not bound. This was fatal to the OSSTF application.

The Labour Board further did not agree with the OSSTF position that the Government inserted itself into the statutory collective bargaining scheme in an effort to implement policy decisions by controlling collective bargaining and outcomes. Chair Fishbein stated, "I am simply not persuaded by this characterization." The Chair stated that this ignores that the PDT process was voluntary and that OSSTF could and did withdraw from the process.

The Labour Board stated that the Government's PDT parameters did wish to control collective bargaining outcomes – a wage and grid freeze and changes to the ability to bank and cash out sick leave credits upon retirement. The Labour Board indicated that it viewed that as more "consistent with budgetary allocations and the constraints which they entail in terms of the allocation of resources." In his decision, Chair Fishbein stated:

"I do not consider a political decision to no longer fund in a publicly-funded education system, for example, the cashing out of sick leave credits, and a process (albeit arguably a blunt and heavy-handed one) to get unions to agree to it, a justiciable issue."

The Labour Board recognized that neither OCSTA nor OPSBA regarded the PDT process as collective bargaining. The Labour Board also acknowledged that neither OCSTA nor OPSBA was the employer of relevant school board employees. It stated:

"Both trustee associations who were present (at least at the outset) are not the employer either. In fact, they specifically deny (and it is not disputed) that they cannot compel the district school boards to even belong, let alone commit or bind them. In fact, even though OECTA ultimately did reach and sign a MOU, not only did the OCSTA not sign, but quit the PDT process. Neither the OPSBA nor the OCSTA regard the PDT process as collective bargaining or governed by section 17 of the Labour Relations Act."

THE IMPACT OF THE DECISION

The OSSTF and other unions have also filed a Charter challenge against the Government with respect to the status of the Putting Students First Act, 2012. The unions have initiated a challenge to the PSFA under subsection 2(d) of the Charter, which protects freedom of association. The Labour Board decision may assist OSSTF in this Charter challenge in trying to demonstrate to a court that OSSTF exhausted relevant avenues of redress with the Labour Board.

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