Canada: Ontario Legislature Refers Bill 122, School Boards Collective Bargaining Act, 2013, To Committee For Review

On October 22, 2013, the Minister of Education, Liz Sandals, introduced Bill 122, School Boards Collective Bargaining Act, 2013. Bill 122 was debated on Second Reading for nine days between October 30, 2013 and December 3, 2013. Finally, on December 3, 2013, the Legislature voted to refer Bill 122 to the Standing Committee on the Legislative Assembly for review.

Bill 122, if passed, would provide a formal role for  the Government in bargaining collective agreements and would establish a two-tier bargaining framework for central and local matters. The current collective agreements expire on August 31, 2014, and the next round of bargaining is expected to occur in the spring of 2014.

Below are the main components of Bill 122.

Framework for Central and Local Bargaining

  • Bargaining "may" include central and local bargaining, but central bargaining is mandatory where a "central table" has been established.
  • Parties to central bargaining are the "employee bargaining agency" (i.e. the existing teachers' union) and the "employer bargaining agency" (i.e. the existing trustees' association).
  • An employer bargaining agency has exclusive authority for certain bargaining activities, including representing school boards at a central table, exercising rights and privileges of boards under the Labour Relations Act, 1995 ("LRA"), and binding boards to central terms in collective agreements.
  • Crown consent is required before an employer bargaining agency can agree to refer matters to arbitration, authorize lock outs, alter wages or agree to any other term that is a central term or related to central bargaining.

The Parties: Duties, Roles and Participation

  • Employer bargaining agencies have "duties", including that they shall not act in a manner that is "arbitrary, discriminatory or in bad faith" in representing boards, and they must "cooperate in good faith with the Crown in preparing for and conducting central bargaining." There are no parallel duties for the Crown or unions.
  • Employee bargaining agencies have a "role" under Bill 122 that is similar to their current role in local collective bargaining, except they can bind employees to central terms. They exercise bargaining rights and privileges under the LRA, and are required to perform duties under the LRA, including section 17 of the LRA which requires bargaining in good faith and to "make every reasonable effort to make a collective agreement."
  • The Crown is entitled to "participate" in central bargaining. Such participation is open ended, and includes conciliation, mediation, or arbitration.

Obligations For Trustees' Associations

  • As the employer bargaining agency, a trustees' association is required to establish policies and procedures for the "effective exercise of its rights and privileges and performance of its duties" under Bill 122.
  • If a trustee association requires voting, the outcome of the vote must be decided by majority of school boards represented by the association, with votes weighted to "reasonably reflect" the size of the bargaining units in each school board.
  • The Minister can make a regulation that requires school boards to pay fees to a trustees' association relating to central bargaining activities. The regulation may specify the manner of determining the amount of fees. It is not clear whether the costs of central bargaining will be fully funded.
  • The Minister can establish a committee that replaces a trustees' association as an employer bargaining agency if, in the Minister's opinion, the trustees' association or council is "unable or unwilling to exercise its rights and privileged or perform its duties" under the Bill.

Central Tables and Scope of Central Bargaining

  • Central tables would be established for l'AEFO, l'Association des enseignantes et des enseignants franco-ontariens, ETFO, OECTA and OSSTF, although the Minister can combine central tables.
  • The Minister may reserve a matter for the central table if the Minister is of the opinion that there could be a "significant impact" on implementation of provincial education policy or expenditures for boards.
  • The parties at a central table and the Crown are required to meet within 15 days of notice, and shall bargain "in good faith and make every reasonable effort to agree upon the matters to be included within the scope of central bargaining at the central table."
  • Disputes about what matters should be included within the scope of central bargaining can be decided by application to the Ontario Labour Relations Board ("OLRB"). The OLRB is required to consider:
    • The extent to which the matter could result  in a significant impact on the implementation of provincial education policy.
    • The extent to which the matter could result in a significant impact on expenditures for one or more school boards.
    • Whether the matter raises common issues between the parties to the collective agreements that can more appropriately be addressed in central bargaining than in local bargaining.
    • Such other factors as the Board considers relevant in the circumstances.

Denominational and Language Rights

  • Bill 122 specifically recognizes denominational and language rights guaranteed by section 93 of the Constitution Act, 1867 or by section 23 of the Canadian Charter of Rights and Freedoms, and would require that authority under the Bill be exercised in a manner consistent with those rights and privileges.
  • l'Association franco-ontarienne des conseils scolaires catholiques or the Ontario Catholic School Trustees' Association may give notice to parties at a central table and the Crown  that a particular matter may prejudically affect denominational rights.
  • If such matter is not excluded by agreement, the OLRB may decide the issue.
  • A similar process exists for linguistic rights.

Strikes, Lockouts and Votes

  • The definition of "strike" in section 35 of the Bill is identical to the definition in subsection 277.2(4) of the Education Act.
  • The normal procedures under the LRA for giving notice of strikes and lock-outs are modified by the Bill.
  • Employee bargaining agencies are required to give at least five days' written notice of the strike to the employer bargaining agency at the central table and the Crown.
  • In turn, an employer bargaining agency may not authorize or require a school board to lock out employees without obtaining Crown consent and giving at least five days' written notice of the lock-out.
  • The Bill contains direction on when a vote of employees can be taken as to the acceptance of rejection of an offer made by an employer bargaining agency with respect to central terms.
  • Final approval of the Crown on the proposed offer is required before an employer bargaining agency can request a vote.

Arbitration

  • Central bargaining issues are to be resolved by arbitration between the parties at a central table. The Crown is entitled to participate.
  • An employer bargaining agency requires prior consent of the Crown to settle an arbitration on a central term. Settlement, or an arbitration award, is binding on all parties to collective agreement including such central term.
  • The following factors must be considered at arbitration:
    • The school boards' ability to pay in light of their fiscal situation.
    • The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.
    • The economic situation in Ontario.
    • A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of work performed.
    • The school boards' ability to attract and retain qualified employees.

Collective Agreements

  • Collective agreements containing central and local terms cannot come into effect until central terms are ratified by the parties at the central table, and approved by the Crown, and local terms have been ratified by the parties at the local table.
  • The parties to a collective agreement are the school board and the bargaining agent (and not the Crown).
  • The central terms of collective agreement may be revised only by mutual consent of the parties at the central table and prior consent of the Crown

Analysis

Bill 122 has generated many questions that remain unanswered. For example, Bill 122 gives the Crown significant control of central bargaining, even though it is entitled to participate in, but is not a party to, collective agreements. Bill 122 is heavily prescriptive with respect to employer bargaining agency duties and decisions which require prior consent of the Crown, but Bill 122 is lacking in parallel duties for the Crown and unions. The provisions which permit the Crown to replace the employer bargaining agencies do not address how such members would be selected, or how each sector would be represented.

The type of matters that the Government will reserve for the central table is not clear. The Globe and Mail reports that "big monetary issues, such as salaries and benefits, will be negotiated centrally..."1 However, Bill 122 gives the Crown authority to reserve a matter for the central table in circumstances that go beyond expenditure, including where there could be a significant impact on provincial education policy.

It remains to be seen how issues will be resolved through the OLRB, particularly determinations about denominational rights, which have historically been decided by the Superior Court of Justice.

We will continue to monitor the progress of Bill 122, including the impact of any amendments proposed at the Committee stage.

Footnote

1 C. Alphonso, "New Ontario bargaining legislation for teachers aims to stave off labour unrest", The Globe and Mail (October 21, 2013) at http://www.theglobeandmail.com/news/national/education/new-ontario-bargaining-legislation-for-teachers-aims-to-stave-off-labour-unrest/article14974176/

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
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions