Subject to Crown Approval: Bill 122, the School Boards Collective Bargaining Act, 2013

October 2013 | Nadya Tymochenko

Bill 122, the long awaited legislation codifying the collective bargaining framework between school boards, unions and the Ontario Government was introduced on October 22, 2013.

The Provincial Government’s explanatory note describes the legislation as a “framework for two-tiered bargaining for collective agreements between school boards and their employees”.  While the legislation affirms the role of school boards as employers, the description provided in the explanatory note does not fully identify the significant role that the Crown will play in the negotiation of contracts.

The legislation codifies a process of negotiating both provincially and locally that has occurred with respect to teacher agreements in practical terms in the publicly funded education sector in Ontario for several years.  School boards will continue to bargain local issues with each local bargaining agent, and the trustees’ associations now have authority to bargain and bind school boards to “central terms” negotiated with employee bargaining agencies.  However, the Crown (as likely represented by Ministry of Education negotiators) is also entitled to participate in central bargaining (s. 13), and school board associations are required to co-operate with the Crown when preparing for and conducting the negotiations (s. 16(2)).  The Ontario Government has given itself authority to participate at every stage of the process (s. 18).

Now that trustees’ associations are legally bargaining and binding local school boards, they are required to create policies and procedures for exercising these functions (s. 21(3)).  If the policies and procedures require a voting mechanism, that mechanism is to be weighted to reflect the size of the bargaining units for each school board (s. 21(4)). The legislation codifies a process of negotiating both provincially and locally that has occurred with respect to teacher agreements in practical terms in the publicly funded education sector in Ontario for several years.  School boards will continue to bargain local issues with each local bargaining agent, and the trustees’ associations now have authority to bargain and bind school boards to “central terms” negotiated with employee bargaining agencies.  However, the Crown (as likely represented by Ministry of Education negotiators) is also entitled to participate in central bargaining (s. 13), and school board associations are required to co-operate with the Crown when preparing for and conducting the negotiations (s. 16(2)).  The Ontario Government has given itself authority to participate at every stage of the process (s. 18).  The legislation states that the Minister of Education can require school boards to pay fees for the services of the trustees’ association on their behalf – query whether this will be “new” money.

One of the more significant provisions was no doubt intended to address the issues which occurred in the last round of bargaining.  The Bill states at section 22(1) that, if a trustees’ association is “unable or unwilling to exercise its rights and privileges or perform its duties as an employer bargaining agency under this Act, the Lieutenant Governor in Council may, by regulation, establish a committee to exercise the rights and privileges and perform the duties on its behalf until central bargaining is completed.”  Presumably, if there is insufficient co-operation by a trustees’ association with the preparation and conduct of negotiations, a new body will be identified to participate in its place.  Also in response to issues in the last round of bargaining, the centrally decided issues are deemed to form part of the collective agreement between a school and a local bargaining agent (s. 39(1)).

The issues to be decided provincially are the issues that the Crown determines will be negotiated centrally (s. 24(2)) because it could result in a “significant impact on the implementation of provincial education policy” or a “significant impact on expenditures”, although, the scope of central bargaining is intended to be decided by the parties (s. 24(21)), and the parties as well as the Crown can apply to the Ontario Labour Relations Board to decide whether the issue should be included in central bargaining.  The local issues are those that are not bargained provincially (s. 27).

A process has been outlined in the legislation to enable a party to identify that an issue at the central table might prejudicially affect denominational rights (s. 25), in which case, if there is no agreement by the parties to have it decided locally, the Ontario Labour Relations Board will determine whether it will be bargained locally or provincially (s. 25(5)).  Not surprisingly, central bargaining will determine the timing of local bargaining (s. 31, s. 32).

With respect to teacher strikes, the definition included in the Bill is identical to the definition at s. 277.2(4) of the Education Act.  The legislation also requires 5 days notice before an employee group strikes, either locally or on a provincial scale (s. 34(2)(3)).  Local lockouts also require 5 days notice to the union (s. 34(5)); however, provincial lockouts must be approved by the Crown (s. 34(4)).

Similarly, any final offer proposed by a trustees’ association must be approved by the Crown, and the final offer must also have first received a positive weighted vote by the association’s members (s. 36(2)).  Ratification of central terms is required as well as Crown approval before the central terms are in effect (s. 38); however, at the local level the school board and local bargaining agent are the only parties required to ratify the terms, there is no requirement for Crown approval of the local terms.  Changes while a collective agreement is in operation require mutual consent and central terms also require Crown approval (s. 41(1)).

Settlement of a disagreement about central terms at the provincial level, either by agreement, in which case the Crown must consent (s. 42(3)), or by an arbitrator, in which case the Crown is entitled to participate (s. 42(2)) is binding on all of the collective agreements containing those central terms.  A local settlement of central terms is possible, either by agreement or arbitration, and will only bind the local parties (s. 42(5)).  But, where there are inconsistencies between central terms and local terms, the central terms will prevail (s. 45).

The Bill, if passed, will be enforceable as if part of the Labour Relations Act.

While the proposed legislation does respond to some of the issues that have resulted from the bargaining process utilized in recent years, much will continue to be determined by the role the Provincial Government chooses to play.

We will be following the progress of the Bill 122.  Please look for further newsletter articles or alerts.

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