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




by:
Kate Dearden
Borden Ladner Gervais LLP - Toronto Office

 
February 14, 2014

Previously published on February 10, 2014

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.


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/



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Kate Dearden
Borden Ladner Gervais LLP
 
Toronto Office
 
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