Canada: OLRB Releases First Full Reasons Decision Regarding The Scope Of Local/Central Bargaining For CUPE Bargaining Units In The Education Sector

Last Updated: October 1 2015
Article by Maria Gergin

Most Read Contributor in Canada, November 2017

Since the enactment of the School Boards Collective Bargaining Act , S.O. 2014 c.5, (the "SBCBA"), which governs the current round of collective bargaining in the education sector, the Ontario Labour Relations Board ("the Board"), has made a number of decisions on whether certain teacher and education worker unions should bargain issues with school boards centrally or locally. Throughout spring and summer 2015, the Board released these "bottom line" decisions quickly, in an effort to get the parties back to the bargaining table, particularly considering the slow pace of this round of bargaining. However, these bottom line decisions provided limited insight into the Board's reasoning in what issues should be bargained locally and centrally.

On June 29, 2015, the Board released its first "full reasons" decision on the scope of local and central bargaining an application brought by the Canadian Union of Public Employees (CUPE) vis-à-vis its negotiations with the Council of Trustees Associations ("CTA")1, the statutorily designated association for all school board employers of all CUPE bargaining units. The decision provides significant guidance with respect to the Board's interpretation of the SBCBA, and will likely serve as an important precedent with respect to a number of issues related to two-tier bargaining.

In the application, CUPE had asked the Board to determine that the following issues were appropriate for central bargaining:

  • Limits on attendance management/support program;
  • Violence in the workplace — policies, procedures, preventative measures and training;
  • Non-instructional supervision of students;
  • Employees performing medical interventions;
  • Standardization of job descriptions and classifications;
  • Absence replacement in connection to workload;
  • Contracting in/out and sharing of trades services;
  • Creation of a preventative maintenance program;
  • Requirement for CUPE staffing during permits/leases; and
  • Creation of a provincial pay equity maintenance joint committee.2

The CTA and the Crown submitted that the above-noted matters should be dealt with in local bargaining. Additionally, the CTA and the Crown asked the Board to rule that the following matters relating to salary, wages and direct compensation should be bargained centrally:

  • Premiums (including shifts, overtime, weekends, overnights);
  • Allowances (excluding new allowances in response to a singular need that does not apply to an entire class or classes of employee);
  • Paid vacation and holidays (including statutory holidays).

Prior to the Board hearing, the parties were able to resolve the issue of the requirement for CUPE staffing during permits/leases.

The Board's Decision

The Board released its decision (the "Decision") on June 29, 2015, following three days of hearing. The Board agreed almost exclusively with the positions taken by the CTA.

Section 28(8) of the SBCBA requires the Board to take the following factors into consideration when determining whether an issue is to be bargained centrally or locally:

  • 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.

Under the SBCBA, the Board may also consider any other factors which are "relevant in the circumstances", effectively inviting the Board to perform a contextual analysis at its discretion.

In its decision, the Board engaged in a thorough analysis of the weight to be given to each of the above factors and noted that each application would present the Board with a different "contextual picture", which would in turn require the Board to engage in a different balancing of the factors established by section 28(8) of the SBCBA. In the CUPE Application, the Board noted that the contextual picture presented was characterized by the fact that each of the four trustee associations which comprised the CTA represented its own distinct group of school boards with a different mandate, "culture" and demographics. The Board noted that the boards' diversity complicated CUPE's ability to forcefully argue that the items raised in the CUPE Application were more appropriately raised at the central table.

The Board also noted that the extent to which the matter could result in a significant impact on expenditures for one or more school boards would necessarily require some degree of speculation, and that the Board would ultimately consider and balance all the factors found in section 28(8) of the SBCBA. The Board noted that the circumstances of the CUPE Application presented a special challenge for the Board in being able to appropriately balance the required factors, since CUPE had not yet drafted its actual proposals on a number of the issues in the CUPE Application.

The Issues To Be Bargained

The Board agreed with the CTA's position that CUPE had failed to show the likelihood of significant savings over the remaining two years of an agreement, and further, that although all 63 school boards maintained some form of attendance management policy and support programs, such policies and practices were administered within the context of individual cases, which were by their very nature "local".

Violence and the workplace procedures and policies:

CUPE had submitted that it wished to negotiate centrally "best practices" protected by contract language, and training funds for all its members so that they would be better able to implement the policies and procedures relating to workplace violence. The Board agreed with the CTA's position that the matter of training costs was severable from the remainder of CUPE's request and directed that CUPE's request to be able to negotiate funds for training in relation to policies, procedures, and preventative measures be addressed at the central bargaining table, while all other proposals regarding the topic were to be addressed at the local bargaining table.

Non-instructional supervision of students by ECEs and EAs during instructional time:

The Board noted that the nature and allocation of supervision duties for both ECEs and EAs depends upon factors which vary depending upon the individual school board. Furthermore, considering the novelty of the ECE program, there was not yet an analysis of the effectiveness of ECEs and EAs during the instructional day across the boards.

The Board also noted, however, that in the event that the Ministry of Education introduced relevant regulations on the subject of supervision, CUPE could request that the matter be re-visited by the Board.

Employees performing medical interventions:

CUPE had submitted that its members were not receiving standardized and proper training across the province, and that Ministry of Education policies were not being implemented consistently. The Board held that if CUPE sought to negotiate training funds for its members performing medical interventions, it would do so at the central bargaining table, but that given the lack of detail in CUPE's proposal, all other aspects of the topic were to be addressed at the local bargaining table.

Standardization of job descriptions and classifications:

CUPE had submitted that its goal was to ensure that the "same work" would attract the "same pay". The Board noted that on balance, the task of attempting to standardize job descriptions and classifications across four trustee associations and 63 school boards was a "massive undertaking", and was likely unrealistic. The Board further agreed with the CTA that the issue of job descriptions and classifications was inherently local.

Absence replacement in connection with workload:

CUPE had submitted that it wished to curtail school boards' ability to simply spread the work of an absent employee across those working on the days in question. CUPE asserted that if successful, absence replacement would have a significant impact upon expenditures, and would enhance students' educational experience.

The Board noted that CUPE's position called for a large degree of speculation, that there was no evidence of the possible degree of increased costs, or how students' educational experience would be enhanced. The Board therefore agreed with the CTA's position that the manner in which individual school boards address the issue of absent employees was extremely varied across the province, including variations as between schools within a particular board, and that the issue was therefore appropriate for local bargaining.

Contracting out and sharing of trades services and creation of a preventive maintenance program:

The Board agreed with the CTA's position that the 109 collective agreements in force between CUPE and the CTA school boards varied widely in the contract language addressing the topic. Furthermore, given the variety of needs across all boards in the province, the issue of sharing trades as between school boards could only be addressed locally.

Negotiating a central provision on Pay equity: CUPE argued in favor of a provision that would require each school board to create a joint union-employer pay equity maintenance committee. The CTA had submitted that, per the Pay Equity Act, R.S.O. 1990, c.P.7 (the "Act"), pay equity maintenance was the sole responsibility of a school board, and that nothing in the Act required an employer to establish a joint pay equity maintenance committee with its union. The CTA had further argued that the scheme of the pay equity statute was only applicable at the local level as it was within the mandate of each school board and that the local human resource personnel of each school board was in the best position to address issues of pay equity maintenance.

The Board disagreed with the CTA's position, noting that the fact that the Act does not mandate a joint employer-union pay equity maintenance committee does not preclude a union from suggesting the creation of such an entity. Regardless, the Board agreed with the CTA that the issue was more appropriately addressed at the local bargaining table.

Finally, with respect to the Crown's request that remaining unresolved financial matters be negotiated at the central table, the Board agreed that the following matters, including premiums, allowances (excluding new allowances), paid vacations and holidays, and short-term leaves, should be negotiated locally. The Board noted that in enacting the SBCBA the legislature could not have intended to bi-furcate collective bargaining concerning financial matters. Furthermore, school boards would have no way of knowing to what extent they could negotiate any meaningful financial expense locally without the presence of the Ministry of Education.

Significance Of The Decision

The Board's decision is the first extensive ruling on the interpretation of the factors set out at s.28(8) of the SBCBA and presents an important insight into the Board's interpretation of the scope of local and central bargaining. It also clearly demonstrates that the Board does not hold the view that just because negotiating matters centrally is more practical from a tactical perspective, such matters are necessarily more appropriate for central collective bargaining. With the exception of the negotiation of monetary issues, the decision places the onus back on the parties to negotiate deals at their respective local tables and which are reflective of their local circumstances.

ince the release of the Board's decision, CUPE has requested a no-board report so that the 55,000 members it represents could be in a legal strike position soon after the school year resumes. The developments have lived up to Education Minister's Sandals prediction in June 2015 that the present round of education sector negotiations would be "challenging" in the present "net zero" fiscal environment.3


1 Pursuant to the School Boards Collective Bargaining Act S.O. 2014 c.5, ("SBCBA"), the CTA is composed of L'Association des Conseils Scolaires des ecole public de l'Ontario, ("ACEPO"), L'Association Franco-Ontarienne des Conseils Scolaires Catholiques, ("AFOCSC"), the Ontario Catholic Trustees' Association ("OCSTA), and the Ontario Public School Boards' Association ("OPSBA").

2 On this issue, CUPE later clarified that it was referring not the creation of a provincial joint committee, but to the inclusion of CUPE members at local provincial pay equity committees.

3 "School support staff push for labour deal before fall.",Toronto Star, July 27, 2015.

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

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

In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
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 you may opt out by clicking here

    Terms & Conditions and Privacy Statement (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

    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’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.


    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.


    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.

    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 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.


    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.


    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.


    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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

    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

    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

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

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