The long awaited Ontario Labour Relations Board (“OLRB”) decision with respect to the application by the Upper Canada District School Board and Trillium Lakelands District School Board alleging that the Elementary Teachers’ Federation of Ontario (“ETFO”) acted unlawfully when it advised its members not to participate in extra-curricular activities was released in April 2013. Two of the primary issues that were decided were that:
1) the Putting Students First Act (“PSFA”) imposed collective agreements on ETFO members which remain in force despite the repeal of the legislation; and
2) ETFO acted unlawfully when it counselled its members not to engage in extra-curricular activities.
The OLRB found that the fact that the activities not being performed by ETFO members were voluntary and unpaid was not material: “by encouraging its members to no longer perform any of these activities ETFO was, at a minimum ‘interfering’ with either the operation of a school or a program in a school.”
The OLRB placed weight on the fact that the activities in question had been routinely offered for many years. While these activities may originally have been voluntary, the OLRB found that over time they became integral to the operation of the schools and that counselling teachers to refuse to volunteer for these activities constituted a work to rule, which is prohibited in the definition of strike found in the Education Act.
The OLRB confirmed that an individual teacher could refuse to perform the activities without consequence, but when teachers collectively refused to participate in these activities, it constitutes a strike under the Education Act.