Elementary Teachers’ Federation of Ontario
Fédération des enseignantes et des enseignants de l’élémentaire de l’Ontario
136 Isabella Street, Toronto, Ontario M4Y 0B5
Telephone: 416-962-3836 Toll free: 1-888-838-3836
Fax: 416-642-2424
Website:
BILL 122 REVIEW
Given the current Ontario model for funding education, ETFO was supportive of the concept of establishing a legislative framework to formalize central and local bargaining for the education sector; the ad hoc approach of previous years was arbitrary and lacking clear guidelines. The federation approached the first round of negotiations under theSchool Boards Collective Bargaining Act (SBCBA) with a commitment to constructive dialogue and with cautious optimism that there was political will for the new framework to be a success.
The federation’s experience with the first round of bargaining under the new legislation reinforces many of the concerns that ETFO brought to the early discussion of the draft legislation prior to the introduction of Bill 122. In particular, apprehensions the federation had regarding the respective roles of the employer organization and the Crown at the central table and the impact of the new legislation on local bargaining were borne out.
If the next round of education sector bargaining is to be less protracted and fractious, the SBCBA requires substantive amendment. ETFO hopes the current Ministry of Education review of the legislation is responsive to the concerns brought forward in this document.
- What is the appropriate sequence for bargaining?
In ETFO’s view, there should be no amendments to the legislation with respect to the sequencing of central and local negotiations, or the sequencing of strikes during central bargaining. It is premature, at this point in the evolution of Bill 122, to consider such an amendment.The OLRB has issued one ruling on the topic of central/local strikes, which provides some interpretation. The issue of sequential or consecutive bargaining was an issue much discussed during the consultation phase with respect to the Bill 122 amendments, and the government at that time was the major proponent of maintaining flexibility in the system to achieve central and local bargaining, and to allow the new regime to unfold and mature, a view which ETFO supported then, and now.
ETFO does suggest however, that the central bargaining process should commence before the expiry of the collective agreement for the purposes of negotiating the central list or for commencing substantive negotiations. This would allow for negotiations to have sufficient time to be concluded and would also require that there be no strike or lockout until the expiry of the collective agreements, at the earliest.
- Central/Local Spilt
The question implies that it was “the lack of consistent collective agreement language” and lack of “central precedents” to date which caused the lengthy process for negotiating the scope of the central list. ETFO disagrees with this assumption. Certainly across the country there are various methods by which education related statutes prescribe what is or is not on the bargaining table, and there has been ongoing litigation over the removal of items from the bargaining table through legislation (BCTF Charter Challenge, and ETFO Bill 115 Charter Challenge). ETFO made its position very clear: free and fair collective bargaining must not be fettered by circumscribed central lists of items.
ETFO does not support prescribing the central/local split in the legislation. During the Bill 122 amendment process it was ETFO’s position, and remains so, that this is to be negotiated in each round, and that it is NOT precedent setting.
The experience during this round will inform the next round for all the participants in this process.
Indeed, some of the matters now contained on the ETFO Central list created problems throughout the bargaining: first, there was no clarity on what the centrally listed items encompassed, and it became clear once substantive bargaining commenced that there were significant disagreements between the parties and the Crown participant about the “scope” of the agreed upon central table items. ETFO stated from the outset during the amendment process, and during central bargaining that it required “meaningful local bargaining”. While the other party and participant acknowledged and agreed to this during the creation of the central list, their subsequent expansive andall-encompassing interpretation of the central table list items meant that meaningful local bargaining was foreclosed in someimportant respects.
Under the existing legislation, once central terms are agreed upon or decided, the parties may agree to move the matter into local negotiations. However there were matters in the last round which were central, which the employer agency refused to discuss and refused to return to local bargaining tables. This significantly delayed agreement at the central table, and prolonged the bargaining unreasonably.
ETFO proposesa dispute resolution mechanism in future for such circumstances: if the parties cannot agree that a matter on the central list should be moved to local negotiations, either party can make an expedited application to the OLRB for a determination onthe issue.
On another note,ETFO opposes any intervention by the Crown in local bargaining. Local bargaining should be meaningful to the local and its circumstances, and should be directly with the school board or its representative (OPSBA).
ETFO proposes, in order to facilitate a better bargaining process, that section 46of the Act be modified to provide “unless the parties to central bargaining agree otherwise” which would allow for local conditions to prevail over central terms.”
- How should the strike/lockout notice process operate?
It is ETFO’s position there is no need to change any of the other provisions surrounding strike or lockout activity. Five days has not proven to be too short a period of time (and often more notice is given) and, for their own purposes, the parties have generally telegraphed the potential nature of their actions well in advance of the 5 days. The 5 day requirement is unusual in collective bargaining and we know of no precedent for requiring notice to be given every time the tactics of a strike change.
In the alternative, Bill 122 could simply ensure that the Labour Relations Act provisions apply.
- Teacher Table Composition
ETFO believes that the current number of teacher tables is the appropriate number.
- Designation of Education Worker Unions
The participation in central table negotiations by the smaller education worker unions should be left to each individual union.
- Education Worker Table Composition
ETFO proposes that a designation for non-teachers under Section 20 shall continue unless an application is made by either the Crown or an employer bargaining agency to revoke the designation “for cause” or the designation is voluntarily surrendered.
ETFO does not support any changes, unless the bargaining agent wishes to surrender the designation.
- Length of Term for Collective Agreements
ETFO’s position is that Section 41 giving the Minister the ability to change the length of the collective agreement by Regulation should be repealed. The length of the collective agreement should be left to the parties to bargain.
FURTHER ISSUES
Role of the Employer Association and the Crown
ETFO has a fundamental concern about the role played by OPSBA in the negotiations. Currently OPSBA is a party and the Crown is a “participant” at the central table.During the initial consultations and amendments of Bill 122, ETFO joined with other unions and affiliates to press for amendments which would include the Crown as a full party at the central table with all of the obligations party status imposes.
Amendments were made which required the Crown to “participate” rather than simply opting in each round whether to participate or not. The Crown should be the full “party” at the Central Table. The Crown could then include OPSBA in the back room, for its own internal consultations. The “management team” approach carried out by the Crown in this round was problematic as OPSBA was permitted to take the lead with the Crown as a mere “consultant”. There were mixed and often contradictory messages, and “double teaming”.
There would need to be a significant number of amendments to Bill 122 to implement such a change. As an example, amendments would need to be made to:
- Section 2(3) to provide for central bargaining between the Crown and an employee bargaining agency
- Section 13(1) to provide that the parties to central bargaining are the Crown and the employee bargaining agency
- Section 15(1) to substitute the Crown for the term “employer bargaining agency”
- Sections 15(2), (3), sections 16, 18, 21and 22 would have to be repealed and, more generally, references to employer bargaining agency throughout the Act would have to be eliminated and replaced with the Crown and references to the parties to the central table would also require amendment.
- Consequential amendments to the Ontario Labour Relations Act would also be necessary to make it apply fully to the Crown, at least in respect of Bill 122.
- The Crown has no place in local bargaining.
Bargaining Unit definition
Section 5(1) could be clarified by changing “assigned to perform duties in respect of such schools all or most of the time” to “assigned to perform duties in respect of such schools on a regular basis whether full or part-time.”
Notice to Bargain
ETFO proposes that the statute be amended to clarify that ETFO will give notice to bargain and serve it on the Crown, and similarly to give the five days’ notice to the Crown, with corresponding amendments to ensure that it is the Crown’s obligation to notify local school boards of notice to bargain, and of strike action. Currently, there is a “deeming provision”, but it could be strengthened.
Effective Date of Collective Agreement
ETFO has identified an issue that arose via an OPSBA interpretation under section 39 of Bill 122 as to when the collective agreement comes into effect if there is an ongoing arbitration. The legislation could be amended to clarify that the terms and conditions of the items agreed upon locally and centrally come into effect upon ratification of both agreements pending the conclusion of any arbitration. This would assist in removing any ambiguity.
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