In OSSTF v Ontario,1 the Ontario Labour Relations Board ("OLRB") offered helpful insight into the education sector's two-tiered collective bargaining regime. In its decision, the OLRB dealt with two applications brought by the Ontario Secondary School Teachers' Federation ("OSSTF"): one on behalf of secondary school teachers in English language public schools, the other on behalf of support staff in various school systems.
The union asked the OLRB to determine whether certain matters fell within the scope of central bargaining under the School Boards' Collective Bargaining Act, 2014 ("SBCBA" or "the Act"). Notably, the OLRB held that all of the matters raised in the application were appropriate for central bargaining.
Background on the Statutory Framework
The SBCBA introduced a two-tiered regime in which collective bargaining is split between central and local bargaining tables. At the central table, unions and the provincial government negotiate issues affecting education policy and expenditures across the province. At the local table, unions and local school boards negotiate residual local issues. The collective agreements remain between the local school board and the relevant union, and issues that are resolved at the central table become a part of the local collective agreements.
The parties at the central table are tasked with determining which issues are appropriate for central bargaining. If a matter is agreed not to be within the scope of central bargaining, it falls within the scope of local bargaining. Where the parties cannot agree upon the matters to be included within the scope of central bargaining, they may apply to the OLRB to decide the issue.
Factors the OLRB Must Consider
Section 28 of the Act requires the OLRB to consider the following factors when deciding whether a matter is within the scope of central bargaining:
- 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 OLRB considers relevant in the circumstances.
Once the central/local split is determined, collective bargaining proceeds separately at the central and local tables.
The OLRB's Decision on the Matters in Issue
The union argued in both applications that the following matters, among others, were more appropriate for local bargaining:
- various class size provisions, including class size caps, pupil teacher ratio, and maximum teacher workload;
- unassigned teaching time;
- short term paid leaves; and
- working conditions, except as it relates to the staffing generator for Early Childhood Educators.
In the application brought on behalf of support staff, the union argued that the issue of staffing committees should be dealt with at the central table.
The OLRB held that all of these matters are more appropriate for central bargaining. The following observations were key to the OLRB's conclusion:
- Factor 1: Significant Impact on Education Policy – The OLRB observed that all of the matters in issue could significantly impact the implementation of provincial education policy. The OLRB rejected the union's argument that a specific policy must be identified before the OLRB can determine that a matter is more appropriate for central bargaining. The identification of a general policy will suffice. For example, the OLRB noted that the provision of unassigned teaching time could significantly impact the province's general policies respecting student safety, making this matter more appropriate for central bargaining.
- Factor 2: Significant Impact on Expenditures – The OLRB criticized the union's position that these matters involved "allocations" of funds rather than "expenditures". The OLRB pointed out that any allocation of funds may impact all expenditures given that there is a limited pot of money for education in the province. By way of example, the OLRB suggested that if class size maximums were to be negotiated locally as the union desired, this could mean that more teachers would need to be hired to accommodate the number of students in the local community. This would inevitably result in a significant impact on the expenditures of local school boards.
- The Matters Should be More Narrowly Defined – The OLRB suggested that its analysis may have been different if the issues had been more refined. For example, the OLRB observed that it was difficult to imagine how a broad matter such as "working conditions" could not have a significant impact on expenditures of school boards.
In general, the OLRB was critical of the union's position that these matters would all be "better" dealt with locally rather than centrally. The OLRB noted that this is not the appropriate purpose of a section 28 determination.
As the OLRB observed in its decision, the SBCBA has "upset the apple cart" respecting collective bargaining in the education sector. In applying the Act, the OLRB has identified the central table as the primary venue for collective bargaining in the education sector. Virtually every issue that is the subject matter of collective bargaining can have an impact on expenditures and education policy. Only those matters that are truly local in nature and narrowly defined will be outside the scope of central bargaining and more appropriate for the local table. Given that this is only the second round of two-tiered bargaining under the SBCBA, the OLRB's decision will surely shape collective bargaining in the education sector in the years to come.
 Ontario Secondary School Teachers' Federation v The Crown in Right of Ontario, 2019 CanLII 84798.
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.