Report in which the committee requests to be kept informed of development - Report No 381, March 2017

Case No 3003 (Canada) - Complaint date: 08-JAN-13 - Closed

Allegations: The complainant organizations allege that the Government of Ontario infringed the right of teachers and supporting personnel in the public education sector to choose their representatives, engage in free and meaningful collective bargaining and engage in lawful strikes

1. 140. The complaint is contained in a communication dated 8 January 2013 submitted by the Canadian Labour Congress (CLC) on behalf of the Elementary Teachers’ Federation of Ontario (ETFO), and a communication dated 9 December 2014 submitted by the Canadian Union of Public Employees (CUPE). The Canadian Teachers’ Federation (CTF) and Education International (EI) associated themselves with the complaint on 17 and 25 January 2013, respectively.
2. 141. The Government of Canada transmitted the observations of the Government of the Province of Ontario in communications dated 20 September 2013 and 10 February 2015.
3. 142. 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), nor the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 143. In its communication dated 8 January 2013, the CLC explains that the ETFO is the bargaining agent for approximately 76,000 English-language elementary school teachers, occasional teachers, early childhood educators and education professionals employed in Ontario’s public elementary schools. While the bargaining rights for teachers and occasional teachers are with the provincial organization, the ETFO has locals at each district school board and has established bargaining units for other educational employees that it represents.
2. 144. The CLC explains that in Ontario, collective bargaining for teachers is governed by the provisions of the Education Act and the Labour Relations Act, 1995, while other education employees are governed by the Labour Relations Act only. Under the legislation, the district school boards are the employers of ETFO members and each school board negotiates a separate collective agreement with the bargaining agent representing each bargaining unit.
3. 145. The complainant explains that voluntary central negotiations at the provincial level took place for the periods 2004–08 and 2008–12. Through these negotiations, framework agreements were reached between the ETFO and the Ontario Public School Boards’ Association (OPSBA). The framework agreements formed the backdrop for local bargaining. Many of the terms contained in the framework agreement were required to be included in the local agreements in order to be eligible for provincial funding; nonetheless, parties were free to refuse to include them. All terms and conditions of employment were concluded through local bargaining, included in local agreements and ratified by both the bargaining agent and the school board employers in order to be legally binding. As a result, there have been local differences in collective agreements and, in the past, some local school boards have indicated their intention not to be bound by agreements reached at the provincial level by the OPSBA. However, the parties have generally followed the provincial template given that additional funds were tied to its acceptance.
4. 146. The CLC further explains that across the Province of Ontario, the last collective agreements for elementary teachers, high-school teachers and support staff expired on 31 August 2012. The CLC indicates that it was not unusual for ETFO locals and school boards to continue negotiating well after the expiry of the collective agreement and that pursuant to the provisions of the Labour Relations Act, where agreements have expired and a new collective agreement is not in place, the terms and conditions of the expired collective agreements remained in force.
5. 147. The CLC alleges that in February 2012, the ETFO and other education sector unions received a notice that the Ministry of Education had unilaterally scheduled separate meetings with each union to discuss the next round of negotiations. At the first provincial meeting, the Ministry presented the ETFO with a list of non-negotiable “parameters” for inclusion in a new provincial framework agreement (referred to as the Provincial Discussion Table (PDT)). The terms of the parameters included: mandatory two-year collective agreements; 0 per cent salary increases for two years; the replacement of retirement gratuities and the sick leave plans contained in collective agreements with a new short-term sick plan; a review of the teacher salary grids with the intent of restructuring them; and freezing teachers’ placements on the salary grid with respect to both experience and qualifications for two years.
6. 148. According to the CLC, the ETFO made it clear to the provincial Government that these parameters were unacceptable and that it sought to broaden the scope of negotiations in order to find alternative methods to obtain the savings. The ETFO further sought to determine: whether the negotiations were to be conducted with the provincial Government, the OPSBA or with individual school boards; whether any agreement entered into either with the provincial Government or the school boards would be legally binding; and the relationship between these provincial negotiations and collective bargaining under the Labour Relations Act, including whether if concessions were agreed to at the provincial level, additional concessions could be requested at the local level. However, having no clear answers to its questions, the ETFO decided that it would not engage in the provincial negotiations, but elected to exercise its right under the Labour Relations Act, the Charter of Rights and Freedoms and international law to bargain locally with each employer with respect to any fiscal parameters which the Government of Ontario might attempt to impose on the parties.
7. 149. According to the CLC, over the next months, the Government of Ontario continued to exert pressure on the ETFO to return to central negotiations, appealing directly to the membership using YouTube and other social media to try to convince the teachers to “come on board” and threatening to impose the terms by legislation if an agreement could not be reached. The ETFO consistently communicated that it would be prepared to enter into discussions with the provincial Government only if there were no preconditions and if the parties could raise and discuss matters of concern to them.
8. 150. The CLC indicates that other education sector unions, such as the Ontario English Catholic Teachers’ Association (OECTA), had agreed to negotiate with the provincial Government. On 5 July 2012, the OECTA and the provincial Government announced that they had concluded a Memorandum of Understanding (MoU) with respect to certain issues. According to the CLC, in line with the Government’s fiscal parameters outlined above, the MoU had radically altered the existing sick leave arrangements for teachers which had been in place for decades, removed certain benefits for retirees, reduced other leave entitlements, cut funding for elementary teachers’ professional development and provided for a freeze in wages for a two-year period. Other provisions addressed, among others, a procedure for filling long-term occasional teacher positions and regular teacher vacancies from an established roster, and proposed changes to the Teacher Pension Plan scheme. Other unions reached similar agreements with the provincial Government. However, despite the Government’s efforts to convince teachers’ unions to conclude agreements similar to those reached with the OECTA, no such progress was made with the ETFO, the Ontario Secondary School Teachers’ Federation (OSSTF) and CUPE.
9. 151. The CLC indicates that on 16 August 2012, the Minister of Education released to the media and to the opposition parties a draft of an Act designed as pre-emptive “back to work” legislation before there was a strike or a real threat thereof at any local school board. The draft legislation was not discussed with the ETFO, nor was it provided with a copy of the legislation. Bill 115 was introduced in the Ontario Legislature on 27 August 2012 for the first reading. The second reading took place on 28 August 2012, followed by the third on 10 September 2012. On 11 September 2012, the Putting the Students First Act (PSFA) was passed by the legislature and received Royal Assent.
10. 152. The complainant alleges that the PSFA established a restraint period during which its provisions apply to school boards, employees of school boards, bargaining agents and collective agreements in the education sector. This restraint period is a two-year period that, for the most employees, started on 1 September 2012. The PSFA allowed the restraint period to be extended by regulation for an additional one year, totalling a possible three-year restraint period. It further set out a mandatory requirement that terms “substantively identical” to the MoU terms agreed to with the OECTA be adopted and included in all the ETFO collective agreements during the restraint period (“the required terms”), unless the Provincial Cabinet altered those terms. As noted above these terms included provisions freezing compensation during the restraint period, eliminating sick leave credits, reducing the number of sick days, requiring up to three unpaid days off in the second year, changing retirement benefits, eliminating or limiting leave days, and cutting funding for elementary teachers’ professional development. The PSFA fixed the duration of collective agreements at two years. School boards were also prevented from providing any compensation, at any time, that would make up for compensation that is not paid during the restraint period as a result of the PSFA, and this, regardless of economic changes. The authority given to the Minister and to Cabinet under the PSFA effectively enabled them to control both the process of bargaining and the results of bargaining, including the right to strike. It enabled them to impose collective agreements and their terms on bargaining agents without any limitations, thus precluding the parties from agreeing to, and implementing freely, negotiated terms and conditions of employment through good faith collective bargaining. Furthermore, under the Act, all collective agreements negotiated and ratified locally during the restraint period must be approved by the Minister of Education in order to become operative. The PSFA gave the Minister the power to specify the date on which the approved collective agreement would come into effect, which could be up to three months after it was submitted for approval. By an order of the Cabinet this period could be extended without restriction. During this inoperative time, the terms and conditions that applied before the new collective agreement was negotiated would continue to apply subject to the required terms imposed by the Act during the restraint period.
11. 153. According to the CLC, during the approval process, the Minister could also advise the Cabinet that the agreement was not consistent with the required terms. In this case, the Cabinet had the authority to include “consistent” terms in collective agreements, order any term or condition in a collective agreement to be inoperative, require the parties to negotiate a new collective agreement, or anything else the Cabinet determined to be necessary in the circumstances. The CLC alleges that essentially, this gave the Cabinet the authority to rewrite collective agreements based on the Minister’s “opinion” and placed no limitations on the extent of such interventions.
12. 154. The CLC further alleges the PSFA also restricted employee bargaining agents from calling, authorizing or threatening otherwise lawful strikes. While the right to strike was not specifically prohibited, the Cabinet, acting on the basis of the Minister’s opinion, could end strikes and prohibit any such future activity. The Cabinet, on the basis of the Minister’s opinion, was able to impose collective agreements where it “appeared” that the parties would be unable to reach a collective agreement prior to 31 December. Moreover, according to the CLC, the PSFA limited the jurisdiction and independence of arbitrators and of the Ontario Labour Relations Board (OLRB), as it provided that awards must include the required terms, cannot be inconsistent with those terms and, any arbitration awards that were inconsistent with those terms, were deemed to be inoperative to the extent of the inconsistency. Under the PSFA, arbitrators and the OLRB also lacked jurisdiction to consider whether the Act, or regulation or an order made pursuant to the Act, was constitutionally valid or in conflict with the Ontario Human Rights Code.
13. 155. The complainant considers that through the enactment of the PSFA, the Ontario Government has substantially infringed on essential components of freedom of association and effectively stripped employees of their right to choose their representatives, prevented free collective bargaining and eliminated a meaningful right to strike without substituting it with a fair and impartial arbitration process. The CLC considers that these measures went well beyond what is acceptable and reasonable during a stabilization period. Furthermore, the CLC alleges that the provincial Government failed to engage in open, meaningful and full consultations, not only before introducing legislation, which altered the existing bargaining arrangements, but also during the legislative process.
14. 156. In its communication dated 9 December 2014, the CUPE submits similar allegations and requests to be associated with the CLC complaint. In addition, it indicates that on 31 December 2012, it concluded a MoU with the Ministry of Education. While it contained some enhancements and changes to the OECTA MoU, the PSFA formed the backdrop of the negotiations. The CUPE explains that without this agreement, the provincial Government would have just imposed the terms of the PSFA and that, therefore, the negotiated MoU was not a freely bargained agreement.
15. 157. The CUPE further indicates that, on 3 January 2013, the Minister of Education announced that the Government would be repealing the PSFA since the latter had outlived its usefulness. On 5 January 2013, the CUPE ratified its MoU with the Ministry of Education and recommended its adoption by its local bargaining units. The CUPE explains that while the MoU was not a freely bargained agreement, had it not been adopted, the collective agreements that were imposed on the unions that had not reached an agreement would have been imposed on the CUPE’s bargaining units as well. By 14 January 2013, all of the CUPE’s bargaining units ratified local collective agreements that complied with the CUPE MoU. On 21 January 2013, the Government formally announced that it would repeal the PSFA. Although all CUPE locals ratified the MoU, a number of school boards did not. Accordingly, by an Order in Council, on 21 January 2013, collective agreements were imposed on 39 CUPE bargaining units. On 23 January 2013, the repeal of the PSFA took effect. The CUPE points out that notwithstanding its repeal, the effect of the PSFA remained in the form of collective agreements that were imposed or effectively compelled pursuant to its terms.
16. 158. By a communication dated 19 October 2016, the CLC forwards a letter of the ETFO in which the latter explains that although the PSFA was repealed and the challenge in the Ontario Superior Court was successful, the rights and entitlements, which their members enjoyed prior to the imposition of the legislation, are yet to be restored. It adds that many of the entitlements that had been negotiated for decades were removed and that the remedy is yet to be decided and there is no time frame for these discussions to be concluded. It thus expresses its wish to pursue the complaint against the Government.

B. The Government’s reply

1. 159. By a communication dated 20 September 2013, the Government of Canada transmitted a reply of the Government of Ontario on the allegations in this case. In its reply, the provincial Government asks the Committee to defer the consideration of this case and points out that: (1) the PSFA has been repealed; (2) it has been actively engaged in detailed consultations with the stakeholders (including trade unions) with a view to proposing a new collective bargaining model for the education sector; (3) the unions that were affected by the PSFA have reached memoranda of understanding with the Government of Ontario amending the terms imposed by the Act; and (4) the Act faced a constitutional challenge before the Ontario Superior Court in which the key issue was whether the Act infringed freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms.
2. 160. In its communication dated 10 February 2015, the Government informs that the domestic proceedings before the Superior Court have been adjourned on the consent of the parties to await the outcome of three cases under reserve with the Supreme Court of Canada that, in the view of the parties, were relevant to the domestic proceeding. In light of this adjournment, the Government once again asked the Committee to defer the examination of this case. The Government further informs that consultations with education sector stakeholders (including unions, teacher federations and trustees’ associations) were completed, and Bill 122, the School Boards Collective Bargaining Act, 2014, came into force in April 2014. The new legislation established a new legal framework for collective bargaining in Ontario’s education sector by creating a two-tier collective bargaining process and clearly defined roles for all parties.

C. The Committee’s conclusions

1. 161. The Committee notes that, in its communication dated 8 January 2013, the CLC alleges that the Government of Ontario infringed the freedom of association rights of teachers and supporting personnel in the public education sector; in particular their right to choose representatives, to engage in free and meaningful collective bargaining and to engage in lawful strikes. The Committee further notes the allegations to the same effect submitted by the CUPE in a communication dated 9 December 2014.
2. 162. The Committee notes that the alleged violations refer, in particular, to the following actions of the provincial Government: (1) imposition of parameters within which the collective bargaining in the public education sector should be contained and the manner in which it had been done; (2) the conclusion of the OECTA MoU, which had significantly diminished the existing rights and benefits, and which the provincial Government tried to impose on other unions in the sector; (3) when that failed, the adoption, on 11 September 2012, of the PSFA, which effectively imposed the OECTA MoU on the unions, which had not voluntarily accepted its terms; and (4) failure to consult the unions prior and during the legislative process.
3. 163. The Committee notes that the PSFA was repealed on 23 January 2013. It further notes that collective agreements concluded or imposed as a result thereof were left in place.
4. 164. It further notes that on 20 April 2016, the Ontario Superior Court considered the events leading to the adoption of the PSFA and concluded that:
   • [134] … between the fall of 2011 and the passage of the Putting Students First Act, Ontario infringed on the applicants’ right, under the Charter of Rights and Freedoms, to meaningful collective bargaining.
   • [135] When reviewed in the context of the Charter and the rights it provides, it becomes apparent that the process engaged in was fundamentally flawed. It could not, by its design, provide meaningful collective bargaining. Ontario, on its own, devised a process. It set the parameters which would allow it to meet fiscal restraints it determined and then set a program which limited the ability of the others parties to take part in a meaningful way.
5. 165. The Committee further notes that the Court examined the assertion that the PSFA withdrew the right to strike and that this represented a substantial interference with collective bargaining. The Court concluded that:
   • [187] … any consideration of the limitation on the right to strike cannot be separated from the impact of the Putting Students First Act, as a whole, on the freedom of association. The legislation required that agreements adhere to the provisions of the OECTA deal. There was no true collective bargaining for the applicants once Ontario declared it a “roadmap” for all remaining agreements. The passage of the Putting Students First Act made clear that such bargaining would not occur: deals had to be “substantially similar to” the terms of the OECTA MOU; they had to be “substantively identical to” it if not entered into by August 31, 2012; and, if not entered into by December 31, 2012, agreements could be and were imposed. The ability of Ontario (the Lieutenant Governor in Council) to prohibit a strike did nothing other than close the final door on the ability of the applicants to act against the actions of the government and to use their association to forward their goals for their contracts. If it “appeared” that they were not able to arrive at an arrangement with their respective employers (the school boards) that fulfilled the direction to comply with the OECTA deal or if they had not settled, consistent with that direction, by December 31, 2012, Ontario could remove the only remaining arrow in their collective bargaining quiver, the right to strike. As it turned out, once an agreement was imposed, the Labour Relations Act would take over. With an agreement in place, the prohibition on a strike while a collective agreement remained in place would govern. The fact that no order prohibiting a strike was made does not change this. The breadth of the prohibition order made by the Lieutenant Governor in Council would put in place could extend well beyond an actual work stoppage to “threatening” or “encouraging” a strike. This was an obvious constraint to doing anything in support of a strike…
6. 166. The Committee notes that the Court concluded that the actions of the Government of Ontario, as alleged in this case, were in breach of section 2(d) of the Charter of Rights and Freedoms (paragraph. 210 of the judgment) and that violation of the freedom of association of the applicants had not been demonstrably justified in accordance with section 1 of the Charter of Rights and Freedoms (paragraph. 271 of the judgment).
7. 167. The Committee notes that by its communication dated 19 October 2016, the CLC informs of the EFTO’s wish to pursue the complaint, as many of the entitlements that had been negotiated for decades were removed, and that the remedy was yet to be decided and there was no time frame for these discussions to be concluded.
8. 168. In this respect, the Committee notes that the question of remedy was discussed, but not decided upon by the Court:
   • [2] … At the outset, the parties advised the court of their agreement that, for the time being, the court would be asked to consider only whether there has been a breach of s. 2(d) and, if so, whether it was justified pursuant to the provision of s. 1 of the Charter. The question of remedy, if there is to be any, would be subject to discussion between the parties after a decision has been rendered and, if required, after further submissions to this court.
9. 169. The Committee notes, in particular, the following observations made by the judge:
   • [273] As indicated at the outset of these reasons, I am not, as yet, asked to determine any remedy. Nonetheless, I should like to make the following observations. These applications dealt with a difficult and continuously evolving area of our law. These motions were argued less than a year after the Supreme Court of Canada concluded that the right to meaningful collective bargaining was not derivative but direct and immediate. Everyone involved is searching for the right answers to difficult questions. The fact remains that Ontario was and may still be in a difficult fiscal circumstance. If so, we are all affected. Ontario accepted that it should act. The problem with what took place is with the process, not the end result. It is possible that had the process been one that properly respected the associational rights of the unions, the fiscal and economic impacts of the result would have been the same or similar to those that occurred.
   • [274] As the case law suggests and as I noted at the outset of these reasons, we are looking to balance the power in the relationship between employers and employees. While the decision in this case has turned on the actions of Ontario, the search for the balance runs in both directions.
   • [276] The mark of success in finding the proper balance is positive, fair and meaningful collective bargaining. The adversarial and confrontational conduct which governed the process in this case fell short. Both sides contributed. Ontario and the applicants have a continuing and ongoing relationship. At the moment (without having heard any submissions), it is not clear to me what would be accomplished by any substantial or overly aggressive remedy. Could it reward one side to the detriment of the process as a whole? We are all still learning.
   • [277] I ask counsel to consider these perspectives in whatever discussions they may have.
10. 170. In the light of the above, the Committee asks the Government to take the necessary steps to ensure that the Government of Ontario engages in dialogue with the complainants with a view to finding an appropriate remedy for the violation of the complainants’ and their affiliates’ freedom of association rights. It requests the Government to keep it informed of any progress made in this respect.
11. 171. Regarding the allegation that the PSFA was adopted without prior consultation with the unions, the Committee notes that it appears to be supported by the evidence submitted by the complainants to the Committee and to the Ontario Superior Court, and is not refuted by the Government. In this respect, the Committee, on a number of occasions, has emphasized the value of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests. It considered that it was essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1072 and 1075]. The Committee expects that in the future, the Government of Ontario will engage, at an early stage of the process, in full and frank consultations with the relevant workers’ and employers’ organizations on any questions or proposed legislation affecting trade union rights.

The Committee’s recommendation

1. 172. In the light of its forgoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Encouraged by the developments in this case, the Committee asks the Government to take the necessary steps to ensure that the Government of Ontario:
     • – engages in dialogue with the complainants with a view to finding an appropriate remedy for the violation of the complainants’ and their affiliates’ freedom of association rights. It requests the Government to keep it informed of any progress made in this respect; and
     • – in the future, will engage, at an early stage of the process, in full and frank consultations with the relevant workers’ and employers’ organizations on any questions or proposed legislation affecting trade union rights.