ETFO Response on the Bill 122
Consultation
April 2016
Elementary Teachers’ Federation of Ontario
Elementary Teachers’ Federation of Ontario
Fédération des enseignantes et des enseignants de l’élémentaire de l’Ontario
136 Isabella Street, Toronto, Ontario M4Y 0B5
Telephone: 416-962-3836 Toll free: 1-888-838-3836
Fax: 416-642-2424
Website: www.etfo.ca
BILL 122 REVIEW
Given the current Ontario model for funding education, ETFO was supportive of the concept of
establishing a legislative framework to formalize central and local bargaining for the education
sector; the ad hoc approach of previous years was arbitrary and lacking clear guidelines. The
federation approached the first round of negotiations under the School Boards Collective
Bargaining Act (SBCBA) with a commitment to constructive dialogue and with cautious optimism
that there was political will for the new framework to be a success.
The federation’s experience with the first round of bargaining under the new legislation
reinforces many of the concerns that ETFO brought to the early discussion of the draft
legislation prior to the introduction of Bill 122. In particular, apprehensions the federation had
regarding the respective roles of the employer organization and the Crown at the central table
and the impact of the new legislation on local bargaining were borne out.
If the next round of education sector bargaining is to be less protracted and fractious, the
SBCBA requires substantive amendment. ETFO hopes the current Ministry of Education review
of the legislation is responsive to the concerns brought forward in this document.
1. What is the appropriate sequence for bargaining?
In ETFO’s view, there should be no amendments to the legislation with respect to the
sequencing of central and local negotiations, or the sequencing of strikes during central
bargaining. It is premature, at this point in the evolution of Bill 122, to consider such an
amendment. The OLRB has issued one ruling on the topic of central/local strikes, which
provides some interpretation. The issue of sequential or consecutive bargaining was an issue
much discussed during the consultation phase with respect to the Bill 122 amendments, and the
government at that time was the major proponent of maintaining flexibility in the system to
achieve central and local bargaining, and to allow the new regime to unfold and mature, a view
which ETFO supported then, and now.
ETFO does suggest however, that the central bargaining process should commence before the
expiry of the collective agreement for the purposes of negotiating the central list or for
commencing substantive negotiations. This would allow for negotiations to have sufficient time
to be concluded and would also require that there be no strike or lockout until the expiry of the
collective agreements, at the earliest.
2. Central/Local Spilt
The question implies that it was “the lack of consistent collective agreement language” and lack
of “central precedents” to date which caused the lengthy process for negotiating the scope of
the central list. ETFO disagrees with this assumption. Certainly across the country there are
various methods by which education related statutes prescribe what is or is not on the
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bargaining table, and there has been ongoing litigation over the removal of items from the
bargaining table through legislation (BCTF Charter Challenge, and ETFO Bill 115 Charter
Challenge). ETFO made its position very clear: free and fair collective bargaining must not be
fettered by circumscribed central lists of items.
ETFO does not support prescribing the central/local split in the legislation. During the Bill 122
amendment process it was ETFO’s position, and remains so, that this is to be negotiated in
each round, and that it is NOT precedent setting.
The experience during this round will inform the next round for all the participants in this
process.
Indeed, some of the matters now contained on the ETFO Central list created problems
throughout the bargaining: first, there was no clarity on what the centrally listed items
encompassed, and it became clear once substantive bargaining commenced that there were
significant disagreements between the parties and the Crown participant about the “scope” of
the agreed upon central table items. ETFO stated from the outset during the amendment
process, and during central bargaining that it required “meaningful local bargaining”. While the
other party and participant acknowledged and agreed to this during the creation of the central
list, their subsequent expansive and all-encompassing interpretation of the central table list
items meant that meaningful local bargaining was foreclosed in some important respects.
Under the existing legislation, once central terms are agreed upon or decided, the parties may
agree to move the matter into local negotiations. However there were matters in the last round
which were central, which the employer agency refused to discuss and refused to return to local
bargaining tables. This significantly delayed agreement at the central table, and prolonged the
bargaining unreasonably.
ETFO proposes a dispute resolution mechanism in future for such circumstances: if the parties
cannot agree that a matter on the central list should be moved to local negotiations, either party
can make an expedited application to the OLRB for a determination on the issue.
On another note, ETFO opposes any intervention by the Crown in local bargaining. Local
bargaining should be meaningful to the local and its circumstances, and should be directly with
the school board or its representative (OPSBA).
ETFO proposes, in order to facilitate a better bargaining process, that section 46 of the Act be
modified to provide “unless the parties to central bargaining agree otherwise” which would allow
for local conditions to prevail over central terms.”
3. How should the strike/lockout notice process operate?
It is ETFO’s position there is no need to change any of the other provisions surrounding strike or
lockout activity. Five days has not proven to be too short a period of time (and often more notice
is given) and, for their own purposes, the parties have generally telegraphed the potential nature
of their actions well in advance of the 5 days. The 5 day requirement is unusual in collective
bargaining and we know of no precedent for requiring notice to be given every time the tactics of
a strike change.
In the alternative, Bill 122 could simply ensure that the Labour Relations Act provisions apply.
4. Teacher Table Composition
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ETFO believes that the current number of teacher tables is the appropriate number.
5. Designation of Education Worker Unions
The participation in central table negotiations by the smaller education worker unions should be
left to each individual union.
6. Education Worker Table Composition
ETFO proposes that a designation for non-teachers under Section 20 shall continue unless an
application is made by either the Crown or an employer bargaining agency to revoke the
designation “for cause” or the designation is voluntarily surrendered.
ETFO does not support any changes, unless the bargaining agent wishes to surrender the
designation.
7.
Length of Term for Collective Agreements
ETFO’s position is that Section 41 giving the Minister the ability to change the length of the
collective agreement by Regulation should be repealed. The length of the collective agreement
should be left to the parties to bargain.
FURTHER ISSUES
Role of the Employer Association and the Crown
ETFO has a fundamental concern about the role played by OPSBA in the negotiations.
Currently OPSBA is a party and the Crown is a “participant” at the central table. During the initial
consultations and amendments of Bill 122, ETFO joined with other unions and affiliates to press
for amendments which would include the Crown as a full party at the central table with all of the
obligations party status imposes.
Amendments were made which required the Crown to “participate” rather than simply opting in
each round whether to participate or not. The Crown should be the full “party” at the Central
Table. The Crown could then include OPSBA in the back room, for its own internal
consultations. The “management team” approach carried out by the Crown in this round was
problematic as OPSBA was permitted to take the lead with the Crown as a mere “consultant”.
There were mixed and often contradictory messages, and “double teaming”.
There would need to be a significant number of amendments to Bill 122 to implement such a
change. As an example, amendments would need to be made to:
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Section 2(3) to provide for central bargaining between the Crown and an employee
bargaining agency
Section 13(1) to provide that the parties to central bargaining are the Crown and the
employee bargaining agency
Section 15(1) to substitute the Crown for the term “employer bargaining agency”
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Sections 15(2), (3), sections 16, 18, 21and 22 would have to be repealed and, more
generally, references to employer bargaining agency throughout the Act would have to
be eliminated and replaced with the Crown and references to the parties to the central
table would also require amendment.
Consequential amendments to the Ontario Labour Relations Act would also be
necessary to make it apply fully to the Crown, at least in respect of Bill 122.
The Crown has no place in local bargaining.
Bargaining Unit definition
Section 5(1) could be clarified by changing “assigned to perform duties in respect of such
schools all or most of the time” to “assigned to perform duties in respect of such schools on a
regular basis whether full or part-time.”
Notice to Bargain
ETFO proposes that the statute be amended to clarify that ETFO will give notice to bargain and
serve it on the Crown, and similarly to give the five days’ notice to the Crown, with
corresponding amendments to ensure that it is the Crown’s obligation to notify local school
boards of notice to bargain, and of strike action. Currently, there is a “deeming provision”, but it
could be strengthened.
Effective Date of Collective Agreement
ETFO has identified an issue that arose via an OPSBA interpretation under section 39 of Bill
122 as to when the collective agreement comes into effect if there is an ongoing arbitration. The
legislation could be amended to clarify that the terms and conditions of the items agreed upon
locally and centrally come into effect upon ratification of both agreements pending the
conclusion of any arbitration. This would assist in removing any ambiguity.
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