Report in which the committee requests to be kept informed of development - Report No 325, June 2001

Case No 1951 (Canada) - Complaint date: 02-FEB-98 - Closed

Allegations: Interference with collective bargaining; denial of the right of principals and vice-principals to organize, bargain collectively and strike; lack of protection against anti-union discrimination and employer interference

1. 197. The Committee examined this case at its November 1998 and June 1999 meetings, and in both instances presented an interim report to the Governing Body [see 311th Report, paras. 170-234, approved by the Governing Body at its 273rd Session (November 1998); 316th Report, paras. 214-228, approved by the Governing Body at its 275th Session (June 1999)].
2. 198. The Government forwarded additional observations and information in communications of 12 October 1999, 7 January and 17 August 2000, and 7 March 2001.
3. 199. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 200. The complaint concerns legislation governing the education sector in Ontario, namely the Education Quality Improvement Act, 1997 (Bill 160), which substantially amended the Education Act. The Committee’s previous examination of the case addressed the scope of collective bargaining in the education sector pursuant to Bill 160, the exclusion of principals and vice-principals from the collective bargaining process provided by Bill 160 and from the Labour Relations Act, and the lack of adequate consultation with the parties concerned prior to the adoption of Bill 160.
2. 201. When it last examined this case, the Committee presented the following recommendations [see 316th Report, para. 228]:
   • (a) Stressing that the Government should ensure that the unions are fully consulted when general policies affecting them are formulated, and that in all cases free collective bargaining should be allowed to take place on the consequences on conditions of employment of decisions on educational policy, the Committee requests the Government to keep it informed in this regard.
   • (b) The Committee requests the Government to keep it informed with respect to the case currently before the Ontario Court of Appeal concerning school principals and vice-principals and to provide a copy of the court’s decision as soon as it is rendered.
   • (c) The Committee requests the Government to take the necessary measures to ensure that school principals and vice-principals may form and join the organization of their own choosing and that they enjoy effective protection against anti-union discrimination and employer interference, and requests the Government to keep it informed in this regard.

B. The Government’s reply

1. 202. In its communication of 7 January 2000, the Government states that the three provincial associations of principals and vice-principals continue to be active on behalf of their membership in discussions with the Government. The associations met with the Deputy Minister of Education on four occasions in 1998; their presidents and executive directors met with the Minister of Education on four occasions in 1999. These discussions normally concerned school operational and curriculum issues. The Ministry of Education has also provided financial assistance to support a variety of professional development activities of the associations. The Government points, for example, to a leadership symposium organized by the associations in November 1999, which was supported by the Ministry. The associations also have representatives on a number of ministry committees dealing with curriculum and programme initiatives. The Government states further that school boards across the Province of Ontario have established mutually satisfactory terms and conditions of employment with the associations.
2. 203. With respect to the issue of protection against anti-union discrimination and employer interference, the Government states in its communication of 12 October 1999 that “to our knowledge, there have been no instances of discrimination or employer interference due to membership in a provincial association”.
3. 204. In its communication of 17 August 2000, the Government notes that the Ontario Court of Appeal had released its decision concerning school principals and vice-principals on 7 June 2000. The Court dismissed the appeal, holding that Bill 160, including late amendments thereto, did not infringe freedom of association as guaranteed under the Canadian Charter of Rights and Freedoms. A copy of the decision was provided by the Government. In its communication of 7 March 2001, the Government informs the Committee that the Supreme Court of Canada dismissed the application for leave to appeal.

C. The Committee’s conclusions

1. 205. The Committee notes that this case concerns allegations of violations of freedom of association arising from the adoption of legislation governing labour relations in the education sector, namely the Education Quality Improvement Act, 1997 (Bill 160), which amended the Education Act. In particular, the decreased scope of collective bargaining under Bill 160 was raised, as well as the exclusion of principals and vice-principals from bargaining units for the purpose of collective bargaining, and from the rights and protections of the Ontario Labour Relations Act, 1995. The lack of adequate consultation with the parties concerned prior to the adoption of Bill 160 was also alleged.
2. 206. Concerning the scope of collective bargaining in the education sector, the Committee has previously dealt with this issue in some detail in this case [see 311th Report, paras. 216?220; 316th Report, paras. 222-223]. The Committee again recalls the importance of promoting collective bargaining in the education sector. While determining that the broad lines of educational policy can be excluded from collective bargaining, other matters that deal primarily with questions relating to conditions of employment should not be regarded as falling outside the scope of collective bargaining. The Committee has acknowledged previously that while class size may have a bearing on conditions of employment, it could also be considered as an issue more closely linked to broad educational policy and thus could be excluded from the scope of collective bargaining. Other matters raised in the present case may also have aspects of broad policy; however, the Committee must once again stress that if the Government considers that such subjects should be determined without recourse to collective bargaining, it must ensure that the unions concerned are fully consulted when such broad policy is being formulated. Furthermore, in all cases, free collective bargaining should be allowed on the consequences on conditions of employment of decisions on educational policy. The Committee again requests the Government to keep it informed in this regard.
3. 207. Regarding principals and vice-principals, the Committee recalls that, pursuant to Bill 160, they are excluded from teachers’ bargaining units and from collective bargaining procedures. They are also excluded from the collective bargaining machinery established by virtue of the Labour Relations Act, as well as the protection provided in the Labour Relations Act against anti-union discrimination, including dismissal, and employer interference in union activities.
4. 208. The Committee notes that the exclusion of principals and vice-principals from teachers’ bargaining units and from the statutory collective bargaining procedures was the subject of a recent case before the Ontario Court of Appeal (Ontario Teachers’ Federation et al. vs. the Attorney-General of Ontario); leave to appeal this decision to the Supreme Court of Canada has been denied. As the Government notes, the Court of Appeal dismissed the appeal, holding that the provisions of Bill 160 concerning principals and vice-principals did not infringe the guarantee of freedom of association under the Canadian Charter of Rights and Freedoms. The Court noted that the primary effect of the relevant provisions of Bill 160 “was to remove principals and vice-principals from teacher bargaining units ... [T]hey also excluded principals and vice-principals from the application of the Labour Relations Act, 1995, S.O. 1995, c.1. Sch. A, thereby foreclosing their right, under the Act, to organize in separate bargaining units. The amendments also empowered cabinet to determine the terms and conditions of employment for principals and vice-principals by way of regulation.” In the context of the case, the issue was raised as to whether principals and vice-principals should be considered as managers whose interests are aligned with the employer, or as team leaders with the same interests as teachers in the outcome of the negotiations. Since in its view, the finding on this point was not unreasonable, the Court of Appeal deferred to the trial judge’s finding that the purpose of the relevant provisions was to remove the principals and vice-principals from a position of conflict arising out of their duty to manage the schools and their loyalty to other members of the union.
5. 209. The Committee notes the Government’s statement that three provincial associations of principals and vice-principals have been formed which are active on behalf of their membership in discussions with the Government, and that the Ontario Court of Appeal held that Bill 160 did not violate the guarantee of freedom of association under the Canadian Charter of Rights and Freedoms. With respect to the interpretation of freedom of association under the Canadian Charter of Rights and Freedoms, the Committee has already commented on the fact that while the right to strike and to bargain collectively are integral components of the principles of freedom of association, the constitutional guarantee of freedom of association pursuant to the Canadian Charter of Rights and Freedoms does not give expression to these rights [see 311th Report, para. 231]. The judgement of the Court of Appeal also refers to the “limited scope” of the constitutional concept of “freedom of association”.
6. 210. The Committee recalls that it is not necessarily incompatible with freedom of association principles to deny managerial or supervisory employees the right to belong to the same trade union as other workers, providing two conditions are met: first, that such workers have the right to form their own associations to defend their interests; second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers by depriving them of a substantial proportion of their present or potential membership. The expression “manager” or “supervisor” should be limited to cover only those persons who genuinely represent the interests of employers [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 231?232]. Due to the legislative provisions at issue, principals and vice-principals have not only been removed from teachers’ bargaining units, but are also denied the statutory right to organize in separate bargaining units under the Labour Relations Act. Although they can form their own associations and voluntarily bargain terms and conditions of employment outside the statutory framework, principals and vice-principals have had their bargaining strength considerably diminished due to Bill 160: they have been removed from the bargaining units, and consequently the teachers' unions, to which they have belonged for many years, have no statutory right to form their own trade union, and Cabinet is empowered to determine their terms and conditions of employment without recourse to any form of bargaining. In addition, due to their exclusion from the Labour Relations Act, principals and vice-principals are denied protection against anti-union discrimination, including dismissal, and employer interference in trade union activities.
7. 211. The Committee again recalls its statement in a similar case concerning the exclusion of particular workers from the Ontario Labour Relations Act:
   • While not neglecting the importance it places on the voluntary nature of collective bargaining, the Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Digest, op. cit., para. 781]. Furthermore, the preliminary work for the adoption of Convention No. 87 clearly indicates that “one of the main objects of the guarantee of freedom of association is to enable employers and workers to form organizations independent of the public authorities and capable of determining wages and other conditions of work by means of freely concluded collective agreements [see Digest, op. cit., para. 799; 308th Report, Case No. 1900 (Canada/Ontario), para. 186].
8. 212. The Committee notes the Government’s statement that, to its knowledge, there have been no instances of discrimination or employer interference due to membership in a provincial association. However, the Committee must again recall the importance it has attached to the need for specific provisions prohibiting acts of interference by employers against workers and their organizations, and prohibiting discrimination on the basis of trade union membership or activities, and for clear procedures and dissuasive sanctions [see Digest, op. cit., para. 737 et seq.]. The Committee has stated that it “considers that the absence of any statutory machinery for the promotion of collective bargaining and the lack of specific protective measures against anti-union discrimination and employer interference in trade union activities constitutes an impediment to one of the principal objectives of the guarantee of freedom of association, that is the forming of independent organizations capable of concluding collective agreements” [see Case No. 1900 (Canada/Ontario), 308th Report, para. 187]. The Committee, therefore, urges the Government to amend the legislation to ensure that principals and vice-principals are able to form and join organizations of their own choosing, have access to collective bargaining, and enjoy effective protection from anti-union discrimination and employer interference. The Committee further requests the Government to keep it informed in this regard.
9. 213. Regarding prior consultation, which the complainants contend did not take place with respect to Bill 160, the Committee again reiterates its hope that, when a government seeks to alter the bargaining structure in which it acts directly or indirectly as an employer, such changes should be preceded by an adequate consultation process, whereby all objectives can be discussed by the parties concerned. The Committee, therefore, urges the Government to ensure in future that such consultations are undertaken.
10. 214. The Committee brings the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.

The Committee's recommendations

1. 215. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Stressing once again that the Government should ensure that the unions are fully consulted when general policies affecting them are formulated, and that in all cases free collective bargaining should be allowed on the consequences on conditions of employment of decisions on educational policy, the Committee requests the Government to keep it informed in this regard.
   • (b) The Committee urges the Government to amend the legislation to ensure that school principals and vice-principals may form and join organizations of their own choosing, have access to collective bargaining, and enjoy effective protection from anti-union discrimination and employer interference. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee urges the Government to ensure in future that, when it seeks to alter the bargaining structure in which it acts directly or indirectly as an employer, such changes are preceded by an adequate consultation process, whereby all objectives can be discussed by the parties concerned.
   • (d) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.