( Disponible en anglais seulement )
In a February 2012 decision of the Ontario Labour Relations Board (OLRB), the OLRB determined that Designated Early Childhood Educators (DECE) working for the District School Board of Niagara (School Board) were part of a pre-existing Canadian Union of Public Employees’ (CUPE) bargaining unit covering instructional support staff. Therefore, the Elementary Teachers’ Federation of Ontario’s (ETFO) application for certification was untimely, and so it was dismissed by the OLRB.
To decide the issue of whether DECEs belonged in an existing bargaining group, as CUPE argued, or whether, as ETFO advanced, a certification vote should determine the issue of their representation, the OLRB reviewed the existing responsibilities of instructional support staff working for the School Board and compared them to the duties of DECEs.
The OLRB acknowledged that the Ministry of Education had added to the existing statutory framework a new discipline for the purposes of staffing the new early learning programs, and that a new regulatory college had been created for Early Childhood Educators. However, the OLRB found that the statutory changes did not “explicitly or specifically address[ed] any labour relations or other collective bargaining consequences of these newly created positions.” The OLRB added that such statutory changes could have been made.
The OLRB noted that some of the School Board’s instructional support staff, such as Lifeguards and Percussionists, taught students in the absence of teachers. The greatest comparison of duties was made between DECEs and Educational Assistants (EAs) and Child Care Workers (CCW) assisting students with special needs. The School Board and ETFO argued that EAs and CCWs were assigned to specific special education students (which is not the case in many school boards) and did not deliver curriculum. However, the OLRB disagreed, finding that an EA who transcribes a lesson into Braille for a visually impaired student is delivering curriculum.
The OLRB held that “the distinction that the School Board and ETFO advance that the instructional support staff only “support” or “assist” the teachers whereas the DECEs are statutorily required to “coordinate” and “cooperate” is not a distinction that we find compelling. . .what teaching assistants actually do at a particular school board is probably most germane. Again at the School Board, the instructional support staff do a wide variety of items.”
In the end the OLRB found that, while there were distinctions between the role of instructional support staff and DECEs, the distinctions were not so great as to preclude DECEs from being included within the meaning of instructional support staff in the CUPE collective agreement. As such, the OLRB found that DECEs were covered by the CUPE collective agreement and that ETFO’s application was untimely and was therefore, dismissed by the OLRB.
Given that the Ministry of Education has never promulgated regulations regarding the responsibilities and/or duties of educational assistants and other instructional support staff, the OLRB was left to compare the work of several of the instructional support staff roles to that of DECEs. We would note that, the OLRB found that the translation of instruction from English into Braille is akin to delivery of instruction, and as such, found that the work of EAs with students with special needs was similar in many respects to the work of DECEs. It will be interesting to observe whether the conclusions reached by the OLRB with respect to their comparison of the two roles will be used in other contexts – such as negotiations.