Assigning Duties During Unassigned Time

November 2013 | Nadya Tymochenko

In a very interesting recent interim decision, Arbitrator Paula Knopf was asked to consider whether secondary school teachers could be required to attend professional development sessions scheduled during their ‘unassigned time’.

The Ontario Secondary School Teachers’ Federation (the “Federation”) acknowledged that teachers could be required to attend professional development by their employer, the Hamilton-Wentworth District School Board (the “Board”); however, the Federation argued that the professional development could not take place during the unassigned time during a teacher’s school day.

The parties decided to proceed in two stages.  If a prima facie case could be made out by the Federation with respect to at least one of the four cases it raised, the parties would then proceed to a full hearing, including evidence regarding the history of negotiations.

The collective agreement provides that full-time teachers will have 225 minutes of assigned time per day each semester, working out to 3 out of 4 periods during the school day being devoted to instruction.  During the remaining period the collective agreement provided for a 40 minute lunch period and a limited assignment of period on-call duties, supervision duties, such as bus supervision, and mentoring duties.  The collective agreement also stated that, “No teacher shall be assigned duties other than those outlined above.”

The Federation argued that the ‘unassigned’ portion of each school day could not include other duties, and that the Board had violated the collective agreement by requiring professional development in four separate circumstances that were brought forward to arbitration.  The Federation argued that professional development, collegial meetings, preparation and evaluation are carried out at the times of the teacher’s choosing and cannot be assigned.  The issue of professional development days was not at issue.

The Board argued that the Federation was trying to equate the ‘unassigned’ time during the school day to “preparation time”, which is found in the collective agreement for elementary school teachers.  Preparation time included a definition that prevented the Board from assigning educational duties during that time.  The Board argued that the secondary collective agreement did not place such limits on assigning other teaching responsibilities during the ‘unassigned time’.

The arbitrator found that the case law supported the fact that teachers could be assigned duties other than those outlined in the collective agreement, but that a prima facie reading of the articles at issue suggested that nothing other than the 225 minutes of instruction, the 40 minute lunch break and limited supervision, mentoring and on-call duties can be assigned to teachers.

Out of the four examples brought forward by the Federation, only one case was determined to be a prima facie case that could go forward.

Arbitrator Knopf also stated: “Finally, I feel obliged to muse upon the implications of this case, albeit reluctantly.  If the Federation is correct, it would mean that the School Board might decide to assign Professional Development workshops outside of the school day.  It bears pointing out that in cases dealing with expectations upon teachers, it has been ruled that despite there being no contractual or express statutory basis, teachers can be obliged to perform reasonable ancillary activities over and above and/or outside of the instructional day.”

Thus, if the Federation is successful, its secondary school teachers might find that, while their unassigned time during the school day is free from burdens by the Board, their nights and weekends are not.

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