Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities
CHAPTER 10:
Collective Bargaining
104
As employers, school boards have
staff. Ministry policy identifies
a legal responsibility for labour
that a discussion process occur with
relations with their teaching and
principals and vice-principals.
support staff. For unionized staff,
the terms and conditions of the
relationship are established
Overview
through legislation, board policy,
The School Boards Collective Bargaining
and decisions made through the
Act, 2014 (SBCBA) governs collective
collective bargaining process and
bargaining for teaching and support
reflected in collective agreements.
staff in the education sector. The
The majority of employees in a
SBCBA creates two tiers of collective
school board are unionized; however
bargaining, central and local for
not everyone is eligible to be a member
teachers’ bargaining units. Any matter
of a union and be represented in
that is not determined to be central is
collective bargaining. A small number
available to be discussed at the local board
of employees are deemed ineligible because of their
level. Under the SBCBA, collective agreements must
role with the board or because of the type of information
be three years in length unless, after consultation with
to which they have access. These include:
the parties, the Minister determines an alternative
• supervisory officers, including the director
length (either two or four years). Other bargaining
of education;
• principals and vice-principals,
• some executive/administrative assistants,
• most management staff in non-academic areas,
• some human resources staff who have
responsibility for aspects of collective bargaining,
• some financial services and information
technology staff.
units may be brought under the two tier model by
regulation.
Regulations under the Education Act set parameters
for matters such as the school year and school holidays
(Regulation 304 – School Year Calendar, Professional
Activity Days) and the general operation of elementary
and secondary schools, including teacher assignments
(Regulation 298 – Operation of Schools - General).
In addition, the Education Act gives authority for
For the above staff, employment terms and conditions
regulations to be made on matters such as class size
may be addressed in personal service contracts, group
and teacher instructional time. Table 10-1 provides
agreements, or other terms and conditions set by the
key definitions and legislative provisions related to
board, usually following discussions with the affected
collective bargaining with teachers.
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TABLE 10-1 TEACHERS’ COLLECTIVE BARGAINING: KEY DEFINITIONS AND LEGISLATIVE PROVISIONS
KEY TERM
DEFINITION AND LEGISLATIVE PROVISIONS
TeacherTeacher is defined in the Education Act but section 8 of the
SBCBA excludes supervisory officers, principals and viceprincipals from the bargaining units for teachers or other
bargaining units of employees of a school board
StrikeA strike by teachers includes any action or activity undertaken
collectively with the intent to stop or limit the normal operation
of a board, including regular classroom programs. Any of the
following are considered strike actions: withdrawing services;
working to rule; and curtailing the performance of the duties of
teachers. [SBCBA s.35]
Right to strike and lock outTeachers have the right to strike, and boards have the right to
lock out their employees at both the central and local level. The
SBCBA and the Labour Relations Act, 1995 set out the process
which school boards and unions must follow to get into a legal
strike/lock-out position.
Education Relations CommissionThe Education Act provides that the Education Relations
Commission must advise Cabinet if the school year of the
affected students is in jeopardy because of a strike or lock-out.
Instructional timeThe Education Act provides the authority for regulations to be
made under the Act governing minimum teaching time for
elementary and secondary teachers.
Class SizeThe Education Act provides the authority for regulations to be
made governing class size.
School yearThe school year calendar is prepared and adopted annually by
a school board and submitted to the Minister of Education. In
certain cases, it must also be approved by the Minister
(Regulation 304).
Bargaining Units and Bargaining RightsThe SBCBA provides that each teacher must belong to a
bargaining unit, and sets out the bargaining unit to which the
teacher belongs and which teachers’ union will represent them.
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Legislation Governing
Collective Bargaining
catholiques (AFOCSC),
representing the French-
Teachers’ Federation (OSSTF),
Several statutes and regulations
language Catholic boards;
which represents teachers in
made under them define a board’s
• Ontario Catholic School
relationship with its employees,
Trustees’ Association (OCSTA),
and the terms and conditions of
representing English-language
employment. These include the
Catholic boards, and;
following statutes:
• Ontario Public School
• the Education Act
Boards’ Association (OPSBA),
• the School Boards Collective
representing English-
Bargaining Act, 2014
language public boards.
• the Ontario Secondary School
English-language public
secondary schools;
• the Ontario English Catholic
Teachers’ Association
(OECTA), which represents
teachers in elementary and
secondary English Catholic
schools;
• the Labour Relations Act, 1995
• the Employment Standards
Act, 2000
• the Occupational Health and
Safety Act
• the Pay Equity Act
• the Municipal Freedom of
Information and Protection
of Privacy Act
• the Human Rights Code
(Ontario)
Teachers
The SBCBA requires teachers within
each school board to belong to one
of the following four bargaining
units:
• elementary teachers
• occasional elementary
teachers
• secondary teachers
• occasional secondary teachers
The SBCBA allows bargaining
Bargaining Agents and
Bargaining Units
Employer Bargaining Agencies
The SBCBA designates each of
the four school board/trustees’
associations as the statutory
employer bargaining agency for
their respective school boards at
the central tables. The school
board representation at a central
table is:
• Association des conseils
scolaires des écoles publiques
de l’Ontario (ACÉPO),
representing the Frenchlanguage public boards;
• Association franco-ontarienne
des conseils scolaires
units to combine if all parties
agree. For example, regular and
occasional public secondary
teachers may merge into one
bargaining unit if the board and
the union agree. For purposes
of local bargaining two or more
school boards may negotiate
jointly if all parties agree.
The SBCBA provides that all
regular and occasional teachers
• the Association des enseignantes
are represented by one of the
et des enseignants franco-
following bargaining agents at
ontariens (AEFO), which
both the central and local level:
represents teachers in both
• the Elementary Teachers’
Federation of Ontario (ETFO),
which represents teachers in
public and Catholic elementary
and secondary French-language
schools.
English public elementary
The ETFO, OSSTF, OECTA, and
schools;
AEFO all belong to the Ontario
Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities
107
Teachers’ Federation (OTF),
that round. A union that represents
on behalf of all employees in the
the umbrella organization for
15 or more bargaining units is
bargaining unit and to negotiate and
Ontario’s teachers’ unions.
entitled to seek designation for
maintain a collective agreement in
15 or more bargaining units, that
good faith.
include two-thirds of all their
Recognition of an uncertified staff
Support Staff
Unions seeking to represent
members and two-thirds of all
employees such as custodial, clerical,
their bargaining units. The Minister
and other support staff must first go
may also designate a union or
through the certification process set
council of unions as an employee
out in the Labour Relations Act,
bargaining agency provided
1995 (LRA). Some of the larger
The Role of the Bargaining
Agents
the union or council seeks a
unions currently certified to
Trade unions are legally obliged
designation for 15 or more
represent support staff include:
to represent their members in
bargaining units that it has
the Canadian Union of Public
matters relating to the collective
authority to represent in
Employees (CUPE), the Ontario
agreement. These obligations
central bargaining.
include negotiating the terms
Public Service Employees Union
association, on the other hand, is
purely voluntary.
and conditions of employment
(OPSEU) and the Association of
Trade Unions and Staff Organizations
Professional Student Services
Some staff may prefer to form an
Personnel (APSSP). Teachers’
organization such as an association
unions (e.g. OSSTF, ETFO) may
without applying to the Ontario
use their trade union status to
Labour Relations Board for trade
organize support staff. Currently,
union certification. In some
the only teachers’ union that does
circumstances this may be
not represent support staff in
because they are prohibited
Ontario is OECTA.
from belonging to a union (e.g.,
Central collective bargaining for
principals).
support staff is governed by the
Once a union is certified under
early childhood educator, social
SBCBA, which authorizes the
the LRA, a number of legal
worker or psychologist.
Minister to designate trade unions
requirements come into effect. The
representing support staff as an
employer – in this case the school
As the designated employer
employee bargaining agency for
board – is required to recognize
purposes of central bargaining in
the bargaining agent as speaking
on behalf of their members and
representing their members’
rights under the collective
agreement. Teacher federations
and support staff unions also
provide professional development,
lobby on behalf of their members
regarding government policies,
and promote professionalism,
e.g. for the professions of teacher,
bargaining agencies for their
respective school boards at the
108
central tables, school board/
centrally negotiated terms and
fulfill their statutory duties
trustees’ associations play a critical
conditions of employment, which
and responsibilities, including
role in the collective bargaining
then become part of the local
conducting votes to ratify centrally
process. Subject to the appropriate
collective agreement, once local
negotiated agreements. Table
ratification process, school board/
issues are also settled and ratified.
10-2 outlines key management
trustees’ associations have the
School board/trustees’ associations
roles and responsibilities in
authority to bind the school boards
are also required to establish their
collective bargaining.
in their respective systems to
own policies and procedures to
TABLE 10-2: MANAGEMENT ROLES AND RESPONSIBILITIES
MANAGEMENT PARTY
ROLES AND RESPONSIBILITIES
Employer Bargaining
Agency
• Establish policies and procedures for the effective exercise of its rights and privileges
and performance of its statutory duties;
• Co-operate in good faith with the Crown in preparing for and conducting central
bargaining;
• Develop a central bargaining mandate based on the concerns of the local school
boards;
• Bargain in good faith upon the matters to be included within the scope of central
bargaining at the central table;
• Represent the school boards during bargaining at a particular central table;
• Conduct a ratification vote on the memorandum of settlement of central terms; and
• Conduct a vote on the lockout of employees in respect of central bargaining, if
required.
Boards of Trustees of Local School Boards
• Bring the concerns of the local school board to the attention of the employer
bargaining agency for the purposes of developing a central mandate;
• Participate in the ratification process of central terms;
• Approve/modify the local bargaining mandate;
• Ratify settlements of locally negotiated terms and conditions of the Board’s
agreements;
• Authorize lockouts at the local tier; and
• Pay any fees required by the Minister to a school board/trustees’ association
that represents the school board as the employer bargaining agency.
Director of Education
• Participate in developing recommendations for issues to be included in the central
mandate to be considered by the local board;
• Develop the local bargaining mandate for approval by the local board;
• Bargain in good faith and make every reasonable effort to agree; and
• Implement the terms and conditions of the collective agreement including both
central and local terms.
Individual Trustee
• Bring forward to their respective boards of trustees the concerns of parents, students,
and supporters of the board with respect to collective bargaining;
• Participate in the decision-making process of the local board; and
• Uphold the implementation of any board resolution after it is passed by the board.
Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities
109
Negotiating a Collective
Agreement
provisions of their collective
(where the unit is subject to
agreement.
central bargaining) and any
A collective agreement is a legally
Any matter that is not identified
locally negotiated terms. There
binding agreement between an
as an issue for central bargaining
employer and a union that
is deemed to be local and is the
represents its employees.
responsibility of the local board.
Under the SBCBA, collective
In the event a support staff
bargaining occurs both centrally
collective agreement is not subject
and locally for teacher and most
to central bargaining it is subject
support staff collective agreements.
to local bargaining and is the
Some terms of each agreement are
responsibility of the local board.
negotiated centrally and the other
Board staff should begin
terms are negotiated locally. The
preparations for negotiations and
school board and union are the
the development of proposals
parties to the resulting collective
well in advance. In reviewing the
agreements.
proposals, the board should
At the central level, the Crown
consider a wide range of factors,
and the school board/trustees’
including:
associations cooperate in good
• student achievement and
faith as management partners in
the preparation and bargaining of
agreements on central terms with
well-being;
• current government funding;
bargaining agents representing
• comparable settlements; and
teachers and support staff subject
• challenges experienced under
to central bargaining.
the old collective agreement.
is no final collective agreement
until there is a ratification of the
central terms and conditions,
and ratification of local terms
and conditions by the parties
to a collective agreement.
Notice to Bargain
The SBCBA and the LRA set
minimum requirements for giving
notice to bargain. Either central
party (not including the Crown)
may give notice to bargain within
the 90-day period before the
collective agreement is to expire
[LRA s. 59]. Under the SBCBA, this
notice to bargain period can be
extended if the Minister determines
an alternative period (up to 180
calendar days).
In cases where both central and
local bargaining is required, neither
of the parties at a corresponding
At the local level, which does not
All parties are entitled to outside
local table is permitted to give
include the Crown, school boards
assistance, such as a lawyer. All
notice to bargain at the local level.
and local bargaining agents
school board labour relations and
However, any central notice that is
bargain agreements on the local
human resources practitioners
given is also considered to be local
have access through their school
notice for the corresponding local
board/trustees’ associations to
parties.
a web-based provincial portal
which offers a current source of
data on labour relations issues.
The portal is maintained by the
Ontario Education Services
Corporation (OESC). School boards’/
trustees’ associations also provide
professional development sessions
for negotiators.
The SBCBA, in conjunction with
the LRA, requires that the parties
at a central table and the Crown
meet within 15 calendar days
after notice to bargain has been
given, or within a further period
as mutually agreed, to commence
good faith bargaining to negotiate
the matters to be included within
Each school board will have a single
the scope of central bargaining at
separate collective agreement with
the central table.
each of its employee bargaining
units that will include the terms
negotiated at central tables
If notice to bargain has been given
and the agreement expires before
a new settlement is reached, the
110
terms and conditions of the
attempt to achieve a resolution,
employees can strike or a board
expired agreement continue in
and then reports to the Minister
can lock them out:
force into the bargaining period.
of Labour.
• one party has served the
Determination of Central and
No-Board Report
Local Issues
Following conciliation, the
The SBCBA provides that if the
conciliation officer advises the
central parties cannot agree on
Minister of Labour of any issues
what items should be central
that remain in dispute. In theory
within 45 calendar days after
the Minister can then appoint a
notice to bargain has been served,
conciliation board to continue the
disputed matters may be referred
negotiation process. However, in
to the Ontario Labour Relations
practice the Minister of Labour
Board (OLRB) for an expedited
issues a “no-board report,” which
decision.
advises the parties that no such
Once the central-local split has
board will be appointed.
been determined, the central
The release of this report brings
parties and the Crown are to
the parties closer to the point at
commence bargaining the central
which the terms of the expired
issues and local parties are to
collective agreement no longer
commence bargaining local issues
apply. However, collective
within 15 days or within a further
agreements are often achieved
period as mutually agreed.
after a no-board report and before
the commencement of sanctions
Bargaining – Possible Stages
by either party.
other with notice of intent
to bargain;
• the collective agreement has
expired;
• there has been conciliation
conducted by a conciliation
officer appointed by the
Ministry of Labour;
• fourteen days have elapsed
since the Minister of Labour
advised the parties that a
conciliation board would not
be appointed (that is, after the
release of a “no-board report)”
– established practice puts the
parties in a legal strike/lockout
position on the 17th day
following the issuance of the
“no board” report;
• a strike has been supported by
a majority of the employees
voting in a strike vote; and
During the course of negotiations,
Impasse and Sanctions
both parties must engage in
Most collective agreements are
provided five calendar days’
settled without conflict. Should
notice for any strike or lockout
negotiations break down,
activity.
meaningful negotiations. Should a
successful solution on the matters
that are the subject of two party
negotiations not be bargained at
the table, the following steps will
occur:
Conciliation
Once notice to bargain has been
given, either party may ask the
Minister of Labour to appoint a
conciliation officer to help with
negotiations [LRA s. 18(1)]. The
parties do not necessarily have
to meet before they enter
conciliation.
If necessary, the conciliation
officer meets with the parties to
• one or both parties have
employees have the right to strike
A bargaining party does not
and boards have the right to lock
necessarily exercise sanctions just
out their employees and, under
because it is in a legal position to
certain conditions, to impose
do so, but only if it deems that the
terms and conditions of
action is necessary to achieve a
employment. The right to strike
settlement. However, a school
and lock out continues at both the
board may alter conditions of
central and local levels, for the
employment after the release
two tiers of bargaining. However,
of a “no-board report”. There are
this can occur only after the
limitations on what can be changed;
mandatory conciliation
a proposed change must be raised
procedures of the LRA have been
with the union and changes
followed and certain notification
generally involve imposition of
periods have expired.
positions previously introduced by
The following must occur before
the board at the bargaining table.
Good Governance: A Guide for Trustees, School Boards, Directors of Education and Communities
111
Even though a strike or lockout
advise the Lieutenant Governor in
At the central level, school board/
may be ongoing, the parties
Council if the school year of the
trustees’ associations must ratify
remain under a duty to seek a
affected students is in jeopardy
settlements by a vote of the school
negotiated settlement and to
because of a strike or lockout.
boards they represent, weighted
bargain in good faith.
Where such “jeopardy advice” is
to reasonably reflect the size of
given, it may lead to the enactment
the bargaining units at each
Strikes
of back-to-work legislation by the
school board. The Crown must
To be legal, a strike vote has to
Legislative Assembly. The government
also agree to the central terms.
take place 30 days or less before
can, however, enact back-to-work
the collective agreement expires,
legislation without a jeopardy
At the local level, the local bargaining
or any time after the agreement
finding or choose not to legislate.
expires [LRA s. 79(3)]. More than
unit and the respective school
board ratify the local agreement.
The Crown and the respective
50 per cent of those voting must
Mediation and Arbitration
be in favour of the strike. A job
While mediation services are often
action – such as withdrawal of
initiated by the Ministry of Labour
services or working to rule – is
if a strike or lockout occurs or is
considered to be a strike.
likely to occur, both parties may
Boards may not fire or discipline
jointly agree to the appointment
Contract Administration
of a mediator not associated with
The SBCBA includes provisions
the Ministry of Labour in an attempt
for a central grievance arbitration
to resolve outstanding issues,
process that contemplates the
participating in a legal strike.
either before or during a strike.
continuation of local grievance
Depending on local circumstances,
and arbitration provisions. This
Lockouts and Unilateral Actions
mediation could be a forerunner
means that arbitration and
by the Board
to arbitration.
settlements can continue to be
When all conditions for a lockout
Arbitration is an alternative to the
used to resolve disputes at the
have been met, a board may legally
negotiation/sanction process. At
lock out its employees. In some
any time during the bargaining
cases, a board that has reached
process the parties may jointly
an impasse on certain issues may
agree to refer all matters remaining
choose to exercise its right to
in dispute to final and binding
unilaterally impose the disputed
arbitration.
teachers or take any action affecting
employment conditions simply
because the employees are
terms and conditions. Before
doing so, a board should carefully
assess such a move with the help
of expert legal advice, bearing in
mind that if its employees have
not yet chosen to strike, the
unilateral imposition of the board’s
terms and conditions may provoke
a strike.
The Education Relations Commission
Binding arbitration carries both
risks and advantages and should
be taken only after consultation
with legal counsel and/or other
professionals experienced in
such proceedings.
school board/trustees’
associations do not participate in
the local ratification process.
local level involving both central
and local terms. The Employer
and Employee Bargaining Agencies
will have access to final and binding
arbitration or settlement to resolve
differences about any central terms
of a collective agreement. For central
grievances, the parties are school
board/trustees’ associations and
provincial unions. The Crown is
not a party to central grievances,
but will have the right to participate
in arbitrations and its agreement
is required for a settlement.
Ratification
Under the SBCBA, settlements
must be ratified at both the central
The Education Act provides that
and local level (where the unit is
the Education Relations Commission
subject to central bargaining).