Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities. CHAPTER 10: Collective Bargaining

Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities CHAPTER 10: Collective Bargaining

104 As employers, school boards have a legal responsibility for labour relations with their teaching and support staff. For unionized staff, the terms and conditions of the relationship are established through legislation, board policy, and decisions made through the collective bargaining process and reflected in collective agreements. The majority of employees in a school board are unionized; however not everyone is eligible to be a member of a union and be represented in collective bargaining. A small number of employees are deemed ineligible because of their role with the board or because of the type of information to which they have access. These include: supervisory officers, including the director of education; principals and vice-principals, some executive/administrative assistants, most management staff in non-academic areas, some human resources staff who have responsibility for aspects of collective bargaining, some financial services and information technology staff. For the above staff, employment terms and conditions may be addressed in personal service contracts, group agreements, or other terms and conditions set by the board, usually following discussions with the affected staff. Ministry policy identifies that a discussion process occur with principals and vice-principals. Overview The School Boards Collective Bargaining Act, 2014 (SBCBA) governs collective bargaining for teaching and support staff in the education sector. The SBCBA creates two tiers of collective bargaining, central and local for teachers bargaining units. Any matter that is not determined to be central is available to be discussed at the local board level. Under the SBCBA, collective agreements must be three years in length unless, after consultation with the parties, the Minister determines an alternative length (either two or four years). Other bargaining units may be brought under the two tier model by regulation. Regulations under the Education Act set parameters for matters such as the school year and school holidays (Regulation 304 School Year Calendar, Professional Activity Days) and the general operation of elementary and secondary schools, including teacher assignments (Regulation 298 Operation of Schools - General). In addition, the Education Act gives authority for regulations to be made on matters such as class size and teacher instructional time. Table 10-1 provides key definitions and legislative provisions related to collective bargaining with teachers.

105 TABLE 10-1 TEACHERS COLLECTIVE BARGAINING: KEY DEFINITIONS AND LEGISLATIVE PROVISIONS KEY TERM Teacher Strike Right to strike and lock out Education Relations Commission Instructional time Class Size School year Bargaining Units and Bargaining Rights DEFINITION AND LEGISLATIVE PROVISIONS Teacher is defined in the Education Act but section 8 of the SBCBA excludes supervisory officers, principals and viceprincipals from the bargaining units for teachers or other bargaining units of employees of a school board A strike by teachers includes any action or activity undertaken collectively with the intent to stop or limit the normal operation of a board, including regular classroom programs. Any of the following are considered strike actions: withdrawing services; working to rule; and curtailing the performance of the duties of teachers. [SBCBA s.35] Teachers have the right to strike, and boards have the right to lock out their employees at both the central and local level. The SBCBA and the Labour Relations Act, 1995 set out the process which school boards and unions must follow to get into a legal strike/lock-out position. The Education Act provides that the Education Relations Commission must advise Cabinet if the school year of the affected students is in jeopardy because of a strike or lock-out. The Education Act provides the authority for regulations to be made under the Act governing minimum teaching time for elementary and secondary teachers. The Education Act provides the authority for regulations to be made governing class size. The school year calendar is prepared and adopted annually by a school board and submitted to the Minister of Education. In certain cases, it must also be approved by the Minister (Regulation 304). The SBCBA provides that each teacher must belong to a bargaining unit, and sets out the bargaining unit to which the teacher belongs and which teachers union will represent them.

106 Legislation Governing Collective Bargaining Several statutes and regulations made under them define a board s relationship with its employees, and the terms and conditions of employment. These include the following statutes: the Education Act the School Boards Collective Bargaining Act, 2014 the Labour Relations Act, 1995 the Employment Standards Act, 2000 the Occupational Health and Safety Act the Pay Equity Act the Municipal Freedom of Information and Protection of Privacy Act the Human Rights Code (Ontario) Bargaining Agents and Bargaining Units Employer Bargaining Agencies The SBCBA designates each of the four school board/trustees associations as the statutory employer bargaining agency for their respective school boards at the central tables. The school board representation at a central table is: Association des conseils scolaires des écoles publiques de l Ontario (ACÉPO), representing the Frenchlanguage public boards; Association franco-ontarienne des conseils scolaires catholiques (AFOCSC), representing the Frenchlanguage Catholic boards; Ontario Catholic School Trustees Association (OCSTA), representing English-language Catholic boards, and; Ontario Public School Boards Association (OPSBA), representing Englishlanguage public boards. Teachers The SBCBA requires teachers within each school board to belong to one of the following four bargaining units: elementary teachers occasional elementary teachers secondary teachers occasional secondary teachers The SBCBA allows bargaining units to combine if all parties agree. For example, regular and occasional public secondary teachers may merge into one bargaining unit if the board and the union agree. For purposes of local bargaining two or more school boards may negotiate jointly if all parties agree. The SBCBA provides that all regular and occasional teachers are represented by one of the following bargaining agents at both the central and local level: the Elementary Teachers Federation of Ontario (ETFO), which represents teachers in English public elementary schools; the Ontario Secondary School Teachers Federation (OSSTF), which represents teachers in English-language public secondary schools; the Ontario English Catholic Teachers Association (OECTA), which represents teachers in elementary and secondary English Catholic schools; the Association des enseignantes et des enseignants francoontariens (AEFO), which represents teachers in both public and Catholic elementary and secondary French-language schools. The ETFO, OSSTF, OECTA, and AEFO all belong to the Ontario

Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities 107 Teachers Federation (OTF), the umbrella organization for Ontario s teachers unions. Support Staff Unions seeking to represent employees such as custodial, clerical, and other support staff must first go through the certification process set out in the Labour Relations Act, 1995 (LRA). Some of the larger unions currently certified to represent support staff include: the Canadian Union of Public Employees (CUPE), the Ontario Public Service Employees Union (OPSEU) and the Association of Professional Student Services Personnel (APSSP). Teachers unions (e.g. OSSTF, ETFO) may use their trade union status to organize support staff. Currently, the only teachers union that does not represent support staff in Ontario is OECTA. Central collective bargaining for support staff is governed by the SBCBA, which authorizes the Minister to designate trade unions representing support staff as an employee bargaining agency for purposes of central bargaining in that round. A union that represents 15 or more bargaining units is entitled to seek designation for 15 or more bargaining units, that include two-thirds of all their members and two-thirds of all their bargaining units. The Minister may also designate a union or council of unions as an employee bargaining agency provided the union or council seeks a designation for 15 or more bargaining units that it has authority to represent in central bargaining. Trade Unions and Staff Organizations Some staff may prefer to form an organization such as an association without applying to the Ontario Labour Relations Board for trade union certification. In some circumstances this may be because they are prohibited from belonging to a union (e.g., principals). Once a union is certified under the LRA, a number of legal requirements come into effect. The employer in this case the school board is required to recognize the bargaining agent as speaking on behalf of all employees in the bargaining unit and to negotiate and maintain a collective agreement in good faith. Recognition of an uncertified staff association, on the other hand, is purely voluntary. The Role of the Bargaining Agents Trade unions are legally obliged to represent their members in matters relating to the collective agreement. These obligations include negotiating the terms and conditions of employment on behalf of their members and representing their members rights under the collective agreement. Teacher federations and support staff unions also provide professional development, lobby on behalf of their members regarding government policies, and promote professionalism, e.g. for the professions of teacher, early childhood educator, social worker or psychologist. As the designated employer bargaining agencies for their respective school boards at the

108 central tables, school board/ trustees associations play a critical role in the collective bargaining process. Subject to the appropriate ratification process, school board/ trustees associations have the authority to bind the school boards in their respective systems to centrally negotiated terms and conditions of employment, which then become part of the local collective agreement, once local issues are also settled and ratified. School board/trustees associations are also required to establish their own policies and procedures to fulfill their statutory duties and responsibilities, including conducting votes to ratify centrally negotiated agreements. Table 10-2 outlines key management roles and responsibilities in collective bargaining. TABLE 10-2: MANAGEMENT ROLES AND RESPONSIBILITIES MANAGEMENT PARTY Employer Bargaining Agency Boards of Trustees of Local School Boards Director of Education Individual Trustee ROLES AND RESPONSIBILITIES Establish policies and procedures for the effective exercise of its rights and privileges and performance of its statutory duties; Co-operate in good faith with the Crown in preparing for and conducting central bargaining; Develop a central bargaining mandate based on the concerns of the local school boards; Bargain in good faith upon the matters to be included within the scope of central bargaining at the central table; Represent the school boards during bargaining at a particular central table; Conduct a ratification vote on the memorandum of settlement of central terms; and Conduct a vote on the lockout of employees in respect of central bargaining, if required. Bring the concerns of the local school board to the attention of the employer bargaining agency for the purposes of developing a central mandate; Participate in the ratification process of central terms; Approve/modify the local bargaining mandate; Ratify settlements of locally negotiated terms and conditions of the Board s agreements; Authorize lockouts at the local tier; and Pay any fees required by the Minister to a school board/trustees association that represents the school board as the employer bargaining agency. Participate in developing recommendations for issues to be included in the central mandate to be considered by the local board; Develop the local bargaining mandate for approval by the local board; Bargain in good faith and make every reasonable effort to agree; and Implement the terms and conditions of the collective agreement including both central and local terms. Bring forward to their respective boards of trustees the concerns of parents, students, and supporters of the board with respect to collective bargaining; Participate in the decision-making process of the local board; and Uphold the implementation of any board resolution after it is passed by the board.

Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities 109 Negotiating a Collective Agreement A collective agreement is a legally binding agreement between an employer and a union that represents its employees. Under the SBCBA, collective bargaining occurs both centrally and locally for teacher and most support staff collective agreements. Some terms of each agreement are negotiated centrally and the other terms are negotiated locally. The school board and union are the parties to the resulting collective agreements. At the central level, the Crown and the school board/trustees associations cooperate in good faith as management partners in the preparation and bargaining of agreements on central terms with bargaining agents representing teachers and support staff subject to central bargaining. At the local level, which does not include the Crown, school boards and local bargaining agents bargain agreements on the local provisions of their collective agreement. Any matter that is not identified as an issue for central bargaining is deemed to be local and is the responsibility of the local board. In the event a support staff collective agreement is not subject to central bargaining it is subject to local bargaining and is the responsibility of the local board. Board staff should begin preparations for negotiations and the development of proposals well in advance. In reviewing the proposals, the board should consider a wide range of factors, including: student achievement and well-being; current government funding; comparable settlements; and challenges experienced under the old collective agreement. All parties are entitled to outside assistance, such as a lawyer. All school board labour relations and human resources practitioners have access through their school board/trustees associations to a web-based provincial portal which offers a current source of data on labour relations issues. The portal is maintained by the Ontario Education Services Corporation (OESC). School boards / trustees associations also provide professional development sessions for negotiators. Each school board will have a single separate collective agreement with each of its employee bargaining units that will include the terms negotiated at central tables (where the unit is subject to central bargaining) and any locally negotiated terms. There is no final collective agreement until there is a ratification of the central terms and conditions, and ratification of local terms and conditions by the parties to a collective agreement. Notice to Bargain The SBCBA and the LRA set minimum requirements for giving notice to bargain. Either central party (not including the Crown) may give notice to bargain within the 90-day period before the collective agreement is to expire [LRA s. 59]. Under the SBCBA, this notice to bargain period can be extended if the Minister determines an alternative period (up to 180 calendar days). In cases where both central and local bargaining is required, neither of the parties at a corresponding local table is permitted to give notice to bargain at the local level. However, any central notice that is given is also considered to be local notice for the corresponding local parties. The SBCBA, in conjunction with the LRA, requires that the parties at a central table and the Crown meet within 15 calendar days after notice to bargain has been given, or within a further period as mutually agreed, to commence good faith bargaining to negotiate the matters to be included within the scope of central bargaining at the central table. If notice to bargain has been given and the agreement expires before a new settlement is reached, the

110 terms and conditions of the expired agreement continue in force into the bargaining period. Determination of Central and Local Issues The SBCBA provides that if the central parties cannot agree on what items should be central within 45 calendar days after notice to bargain has been served, disputed matters may be referred to the Ontario Labour Relations Board (OLRB) for an expedited decision. Once the central-local split has been determined, the central parties and the Crown are to commence bargaining the central issues and local parties are to commence bargaining local issues within 15 days or within a further period as mutually agreed. Bargaining Possible Stages During the course of negotiations, both parties must engage in meaningful negotiations. Should a successful solution on the matters that are the subject of two party negotiations not be bargained at the table, the following steps will occur: Conciliation Once notice to bargain has been given, either party may ask the Minister of Labour to appoint a conciliation officer to help with negotiations [LRA s. 18(1)]. The parties do not necessarily have to meet before they enter conciliation. If necessary, the conciliation officer meets with the parties to attempt to achieve a resolution, and then reports to the Minister of Labour. No-Board Report Following conciliation, the conciliation officer advises the Minister of Labour of any issues that remain in dispute. In theory the Minister can then appoint a conciliation board to continue the negotiation process. However, in practice the Minister of Labour issues a no-board report, which advises the parties that no such board will be appointed. The release of this report brings the parties closer to the point at which the terms of the expired collective agreement no longer apply. However, collective agreements are often achieved after a no-board report and before the commencement of sanctions by either party. Impasse and Sanctions Most collective agreements are settled without conflict. Should negotiations break down, employees have the right to strike and boards have the right to lock out their employees and, under certain conditions, to impose terms and conditions of employment. The right to strike and lock out continues at both the central and local levels, for the two tiers of bargaining. However, this can occur only after the mandatory conciliation procedures of the LRA have been followed and certain notification periods have expired. The following must occur before employees can strike or a board can lock them out: one party has served the other with notice of intent to bargain; the collective agreement has expired; there has been conciliation conducted by a conciliation officer appointed by the Ministry of Labour; fourteen days have elapsed since the Minister of Labour advised the parties that a conciliation board would not be appointed (that is, after the release of a no-board report) established practice puts the parties in a legal strike/lockout position on the 17th day following the issuance of the no board report; a strike has been supported by a majority of the employees voting in a strike vote; and one or both parties have provided five calendar days notice for any strike or lockout activity. A bargaining party does not necessarily exercise sanctions just because it is in a legal position to do so, but only if it deems that the action is necessary to achieve a settlement. However, a school board may alter conditions of employment after the release of a no-board report. There are limitations on what can be changed; a proposed change must be raised with the union and changes generally involve imposition of positions previously introduced by the board at the bargaining table.

Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities 111 Even though a strike or lockout may be ongoing, the parties remain under a duty to seek a negotiated settlement and to bargain in good faith. Strikes To be legal, a strike vote has to take place 30 days or less before the collective agreement expires, or any time after the agreement expires [LRA s. 79(3)]. More than 50 per cent of those voting must be in favour of the strike. A job action such as withdrawal of services or working to rule is considered to be a strike. Boards may not fire or discipline teachers or take any action affecting employment conditions simply because the employees are participating in a legal strike. Lockouts and Unilateral Actions by the Board When all conditions for a lockout have been met, a board may legally lock out its employees. In some cases, a board that has reached an impasse on certain issues may choose to exercise its right to unilaterally impose the disputed terms and conditions. Before doing so, a board should carefully assess such a move with the help of expert legal advice, bearing in mind that if its employees have not yet chosen to strike, the unilateral imposition of the board s terms and conditions may provoke a strike. The Education Relations Commission The Education Act provides that the Education Relations Commission advise the Lieutenant Governor in Council if the school year of the affected students is in jeopardy because of a strike or lockout. Where such jeopardy advice is given, it may lead to the enactment of back-to-work legislation by the Legislative Assembly. The government can, however, enact back-to-work legislation without a jeopardy finding or choose not to legislate. Mediation and Arbitration While mediation services are often initiated by the Ministry of Labour if a strike or lockout occurs or is likely to occur, both parties may jointly agree to the appointment of a mediator not associated with the Ministry of Labour in an attempt to resolve outstanding issues, either before or during a strike. Depending on local circumstances, mediation could be a forerunner to arbitration. Arbitration is an alternative to the negotiation/sanction process. At any time during the bargaining process the parties may jointly agree to refer all matters remaining in dispute to final and binding arbitration. Binding arbitration carries both risks and advantages and should be taken only after consultation with legal counsel and/or other professionals experienced in such proceedings. Ratification Under the SBCBA, settlements must be ratified at both the central and local level (where the unit is subject to central bargaining). At the central level, school board/ trustees associations must ratify settlements by a vote of the school boards they represent, weighted to reasonably reflect the size of the bargaining units at each school board. The Crown must also agree to the central terms. At the local level, the local bargaining unit and the respective school board ratify the local agreement. The Crown and the respective school board/trustees associations do not participate in the local ratification process. Contract Administration The SBCBA includes provisions for a central grievance arbitration process that contemplates the continuation of local grievance and arbitration provisions. This means that arbitration and settlements can continue to be used to resolve disputes at the local level involving both central and local terms. The Employer and Employee Bargaining Agencies will have access to final and binding arbitration or settlement to resolve differences about any central terms of a collective agreement. For central grievances, the parties are school board/trustees associations and provincial unions. The Crown is not a party to central grievances, but will have the right to participate in arbitrations and its agreement is required for a settlement.