Advising ETFO Members Not To Participate in Extra-Curricular Activities Constitutes A Strike

25 avril 2013 | Nadya Tymochenko

( Disponible en anglais seulement )


On Thursday, April
11, 2013 the Ontario Labour Relations Board (“OLRB”) released its much
anticipated decision with respect to the application by the Upper Canada
District School Board and Trillium Lakelands District School Board (the “school
boards”) alleging that the Elementary Teachers’ Federation of Ontario (“ETFO”)
acted unlawfully when it advised its members not to participate in extra-curricular
activities.


While not all of
the issues raised by the parties have been dealt with, namely the numerous Canadian Charter of Rights challenges
raised by ETFO, the OLRB did clarify two important issues:


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.


Do Collective Agreements Currently Exist?


One of the first
questions that the OLRB had to deal with was the impact of the PFSA.
ETFO argued that when the PFSA
was repealed by the Ontario Government, the collective agreements that the
legislation imposed either no longer existed as a result of the repeal, or did
not legally amount to collective agreements at the outset, as the parties did
not “freely or voluntarily negotiate” the terms.


The OLRB rejected
ETFO’s characterization of the words “freely or voluntarily negotiate” as being
mandatory elements of a collective agreement, as these terms are not required
by the legislation. The OLRB pointed to
interest arbitration as an example of a feature of the collective bargaining
process where such a characterization would not be appropriate. The OLRB also agreed with the school boards
that the Legislation Act, 2006, which
provides direction in the interpretation of statutes, supports the finding that
the repeal of the PFSA did not affect
the rights, obligations and liabilities that were the outcome of the PFSA, including the resultant collective
agreements.


The OLRB therefore
concluded that the PFSA had imposed
collective agreements on ETFO’s members and their employers which survive the
revocation of the PFSA.


Did ETFO Counsel Its Members to Strike?


The next issue for
the OLRB to decide was whether or not ETFO’s actions in advising its members to
refrain from participating in extra-curricular activities were illegal because
it was counselling members to strike, contrary to the Labour Relations Act, 1995 which prohibits striking while a
collective agreement exists between the parties.


The
extra-curricular activities in question were characterized as falling on a
continuum ranging from mandatory duties, which could attract discipline if not
performed, to purely voluntary activities for which a teacher could not be
disciplined should s/he refuse to participate, and activities somewhere in
between.


For the purposes
of the hearing, the parties agreed that activities that were purely voluntary
would be grouped in an Appendix A, such as intramural sports, including
practices and tournaments, art clubs, drama clubs, choirs and musical
bands. These were activities which were
supervised by teachers and took place outside the instructional day.


The activities
listed in Appendix B, such as distributing school and school board
communications to students, were voluntary according to ETFO, but not conceded
to be voluntarily by the school boards. The parties agreed that should the
school boards be successful with respect to Appendix A then the relief would
also apply to Appendix B. However, if
the withdrawal of activities in Appendix A did not constitute a strike, the
parties would have the opportunity to argue which activities listed in Appendix
B were mandatory and whether or not their withdrawal constituted a strike.


The OLRB reviewed
in some detail the history of the definition of strike as well as the inclusion
and subsequent removal of the term ‘co-curricular activities’ in various
iterations of the Education Act, both
as drafted and as proclaimed. It
concluded that the evolution did not assist in determining whether or not
extra-curricular activities were intended to be captured by the definition of
strike in the current Education Act,
which states:


“s.277.2(4) For the purposes of subsection (1),


(a) the definition
of “strike” in section 1 of the Labour Relations Act, 1995 does not apply; and


(b) “strike”
includes any action or activity by teachers in combination or in concert or in
accordance with a common understanding that is designed or may reasonably be
expected to have the effect of curtailing, restricting, limiting or interfering
with,


(i) the normal
activities of a board or its employees,


(ii) the operation
or functioning of one or more of a board’s schools or of one or more of the
programs in one or more schools of a board, or


(iii) the
performance of the duties of teachers set out in the Act or the regulations
under it,


including any withdrawal of services or work to rule by teachers acting
in combination or in concert or in accordance with a common understanding.”


The OLRB found
that the fact that the activities not being performed by ETFO members were
voluntary and unpaid was not material.
It stated that, “by encouraging its members to no longer perform any of
these activities [those in Appendix A & B] ETFO was, at a minimum,
‘interfering’ with either the operation of a school or a program in a
school.”


The OLRB indicated
that because the threshold identified in the definition of strike in the Education Act was based on interference
with the educational programming, rather than the magnitude or significance of
the impact, the extent of interference that the withdrawal had on students need
not be established. The OLRB placed greater 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. In essence, it
found that the definition of strike in the Education
Act
was “effects-based”, rather than activity specific.


Moreover, the OLRB
found that counselling teachers to refuse to volunteer for the activities
identified in Appendix A and B would also constitute a work to rule, which is
similarly prohibited in the definition of strike found in the Education Act, as well as the Labour Relations Act, 1995.


The OLRB further
clarified that, despite the fact that as an individual a teacher could refuse
to perform the activities in Appendix A, and perhaps Appendix B, without
consequence, when teachers collectively refused to participate
in these activities their behaviour could and did constitute a strike under the
Education Act.


Summary & Comments


Thus, the OLRB
held that despite the repeal of the Putting
Students First Act
(Bill 115) the contracts imposed by that legislation
continue to exist and are properly defined as collective agreements. In addition, ETFO’s counselling of its
members to collectively withdraw from participating in
voluntary/extracurricular activities constituted a strike as defined by section
277.2(4) of the Education Act,
despite those activities being unpaid and voluntary.


Therefore, the
OLRB issued an Interim Notice consistent with its findings, which also includes
a statement that it cannot declare a final disposition of the application as
ETFO’s arguments on the Charter
issues have yet to be heard.


The decision of
the OLRB is further confirmation that the current labour relations framework
between school boards, unions and the Provincial Government is
problematic. The OLRB identified that
ETFO was expressing dissatisfaction with the Provincial Government by taking
action against school boards. Moreover,
ETFO’s labour action was identified as intended to have parents and school
boards put pressure on the Provincial Government.


On several
occasions the OLRB expressed that teachers, as professionals, have many duties
which are not specifically identified in either the Education Act or collective agreements. It commented that “teacher duties are not
simply the aggregate of their instructional time, preparation time or
supervisory duties – but involve a myriad of other duties (and at least on this
latter point, ETFO did not disagree).”


The OLRB also
reiterated the fact that voluntary activities may become mandatory duties if
over time by course of conduct they become recognized as part of the services
provided.


What impact might
this decision have on school boards?
Should school boards be concerned that teachers might be influenced to
refrain from assuming volunteer activities for fear that they might become
mandatory? By many accounts, teachers
enjoy volunteering for activities such as sports teams, choir and drama as much
as the students who participate. Will
the unions attempt to include every duty and responsibility in collective
agreements? Certainly, this is not a new
issue in education. Arguably, as long as
teachers are respected as professionals, they will see as their responsibility
the activities required to ensure that student programming meets the standards
and expectations they themselves hold, as well as those of parents, schools,
school boards and the Province.


The impact of any
decision regarding the outstanding Charter
issues is unknown, but likely more significant to education and other
unionized sectors.




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