Grievance Regarding Staffing Upheld

October 31, 2016 | Nadya Tymochenko, François Bourgault

In Ottawa-Carleton District School Board v. Ontario Secondary School Teachers’ Federation, a policy grievance commenced by the Ontario Secondary School Teachers’ Federation (“OSSTF”) was allowed by Arbitrator Russell Goodfellow on the basis that the Ottawa-Carleton District School Board (the “Board”) had breached its duty under the collective agreement when it failed to staff its classrooms with the requisite number of teaching positions. Of particular importance in this case was the question of whether s. 287.1(1) of the Education Act superseded staffing provisions in a collective agreement.

Background

The Board had a policy in place by which each and every secondary school had to be staffed with at least two vice-principals. While the policy on its face was simple, its implementation was far from straightforward.

The problem lay in budget constraints and funding allocated pursuant to the Grants for Student Needs (“GSN”) regulation pursuant to the Education Act. Funding for classroom teaching positions was received by the Board in the instructional envelope. Within this envelope were separate amounts for classroom teacher salaries, salaries for principals, vice-principals and other personnel.

For some secondary schools, the formula did not allocate sufficient funding for the salaries of two full-time equivalent (“FTE”) vice-principal positions. In such instances, the Board would use funds from the classroom teacher portion of the instructional envelope towards the principal and vice-principal portion and assign the vice-principal(s) one or more teaching sections during the school year. In this way, the Board was able to fund the salaries of two vice-principals without exceeding the overall funds made available in the instructional envelope. During the 2011/12 school year, 6.5 FTE teaching positions in the Board were staffed by vice-principals.

OSSTF argued that the Board’s assignments for vice-principals breached the staffing provisions of the collective agreement, which provided for a specific number of FTE teaching positions to be filled by classroom teachers.

Position of the Parties

OSSTF relied primarily on the enforcement of the mandatory staffing provisions found in Articles 20.02 and 20.03 of the collective agreement. It argued that these provisions established a strict rule whereby a specified number of FTE teaching positions had to be staffed by classroom teacher bargaining members, not by bargaining members and vice-principals or principals. Accordingly, OSSTF took the position that the Board was in breach of the collective agreement during the year 2011/12 since the requisite number of FTEs had not been staffed by classroom teachers.

The Board conceded that it was not complying with the terms of the collective agreement, but submitted that its actions were expressly authorized by s. 287.1(1) of the Education Act. According to the Board, this authorization could be deduced by reading s. 287 in conjunction with s. 264 of the Act. Specifically, the Board argued that since the first duty of a teacher under s. 264 was “to teach,” and since s. 287.1(1) stated that “… a vice-principal may perform the duties of a teacher despite any provision in a collective agreement,” it followed that the Board was free to assign teaching sections to principals and vice-principals and to have fewer FTE teaching positions staffed by classroom teachers.

In response, the OSSTF submitted that the Board could not assign teaching sections to principals or vice-principals that would otherwise be allocated to classroom teachers through the mandatory staffing provisions. Furthermore, while principals and vice-principals were permitted to teach pursuant to s. 287.1(1), this section only permitted the Board to assign them to areas governed by the discretionary staffing provisions and, subject to the rights of occasional teachers, ad hoc or emergency teaching positions.

Decision

Arbitrator Goodfellow identified the principle issue as whether or not s. 287.1(1) of the Education Act permitted the Board to have fewer FTE teaching positions staffed by classroom teachers in the 2011/12 school year than required by the collective agreement. Ancillary to this was the question of whether the Board was permitted by s. 287.1(1) to assign certain teaching sections to vice-principals that would otherwise have been assigned to classroom teachers.

Arbitrator Goodfellow held that the permission afforded to principals and vice-principals to “perform the duties of a teacher” did not authorize the Board to fail to comply with the collective agreement staffing requirements. Accordingly, Arbitrator Goodfellow found that the purpose of s. 287.1(1) is “to overcome the typical bargaining unit work protection clause that seeks to prevent the performance of bargaining unit work or duties by persons excluded from the bargaining unit.” In other words, s. 287.1(1) did not supplant the terms of the collective agreement. It no more exempted the Board from meeting its collective agreement obligations than it assisted it in meeting them.

As a result, while the Board was permitted by s. 287.1(1) to assign teaching sections to principals and vice-principals, it was not permitted to rely on those assignments as the basis for having fewer FTE classroom teachers in its schools than the collective agreement required. Given that the Board had admitted breaching the agreement in the 2011/12 school year, Arbitrator Goodfellow allowed the grievance and remained seized in respect of remedy.

Commentary

None of the cases relied on by either the OSSTF or the Board dealt directly with the issue before Arbitrator Goodfellow. This was primarily due to the fact that there exists a key distinction between collective agreement provisions dealing with staffing and those dealing with the performance of bargaining unit work by bargaining unit members. As explained by Arbitrator Goodfellow, “Section 287.1(1) [of the Act] concerns the latter not the former. It permits principals and vice-principals to “perform the duties of a teacher”, which clearly includes “teaching”, despite any provision of a collective agreement, while saying nothing at all about matters of teacher complement. Teacher complement or staffing is the subject of Articles 22.02 and 22.03 […].” As a result of the Education Act, these are two distinct obligations.

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