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

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

Footnotes

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.

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