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Labour (Ont) - Education. Ontario Secondary School Teachers' Federation v. Ontario
In Ontario Secondary School Teachers' Federation v. Ontario (Div Court, 2023) the Divisional Court considered OLRB labour JRs by the two teachers' unions (the EFTO and the OSSTF), here regarding the "duty to bargain in good faith pursuant to s. 17 of the Labour Relations Act". The OLRB dismissed the OSSTF application entirely - but allowed the EFTO application, though without any remedy.
These quotes illustrate the public school labour regimes in Ontario, and recent salary activity - particularly involving the School Boards Collective Bargaining Act, 2014 (SBCBA):The Parties
[7] OSSTF is the bargaining agent for all secondary school teachers employed by public district school boards in Ontario, and for 86 bargaining units of education workers employed by the public, Catholic and francophone school boards. OSSTF represents approximately 60,000 workers.
[8] EFTO is the bargaining agent for all elementary teachers employed by the public district school boards in Ontario and some education workers. EFTO represents approximately 81,000 workers.
[9] The Crown funds education in Ontario and is a mandatory participant in central collective bargaining under the School Boards Collective Bargaining Act, 2014, S.O. 2014, c. 5 (“SBCBA”).
Salary Grid Issue
[10] Most education workers in Ontario are paid in accordance with a salary grid set out in their relevant collective agreements negotiated on their behalf by their unions. The salary grid provides for determination of a member’s salary based on experience, qualifications and various other factors. Members can be entitled to increased pay on the salary grid on an annual date depending on these factors. This increase in pay is known as “grid movement”.
[11] The collective agreements for 2008-2012 gave most education workers’ bargaining units an entitlement to grid movement on September 1 of each school year if they met the designated criteria for movement.
[12] In the 2012 round of collective bargaining, two other unions not involved in these applications, the Ontario English Catholic Teachers’ Association (“OECTA”) and the Association Des Enseignantes Et Des Enseignants Franco-Ontariens (“AEFO”), entered into an agreement with the Crown that resulted in the delay of activation of grid movement from September 1 of each school year to the 97th day of each of the 2012-2013 and 2013-14 school years. The OSSTF and ETFO did not agree to this “grid delay”. Nevertheless, this same grid delay was imposed on the OSSTF and ETFO by means of the provincial legislation commonly known as Bill 115.
[13] OSSTF and ETFO were among the unions that launched an application to the Superior Court of Justice challenging Bill 115 on the basis that it breached s.2(d) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. This constitutional challenge was ultimately successful (see: OPSEU v. Ontario, 2016 ONSC 2197).
[14] Further, at the end of the 2013-2014 school year OSSTF, ETFO, OECTA and AEFO took the position that the grid delay was to apply only for the 2012-2013 and 2013-2014 school years and could not extend into the 2014-15 school year. These unions filed grievances alleging that the failure of their employers to provide grid movement as of September 1, 2014 for the 2014-2015 school year was a breach of their collective agreements.
[15] Following the judicial determination that Bill 115 was unconstitutional, the issue of damages resulting from the breach was remitted back to the parties. OSSTF settled its claims for damages, but its remedy did not include damages for any claims arising out of the alleged loss of grid movement in 2014-2015.
[16] All of the unions involved in the court proceedings ultimately resolved their damages issues through negotiation except for ETFO which brought its damages issues back to the application judge for determination. ETFO and the Crown then agreed to proceed by way of mediation/arbitration under s. 84 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[17] Prior to any judicial determination of remedy flowing from their successful constitutional challenge, ETFO and OSSTF had filed these applications with the OLRB which led to the decisions now sought to be reviewed. Those applications contained allegations that the Crown had failed to bargain in good faith in the collective bargaining process toward achieving collective agreements for 2014-2017.
[18] On February 1, 2022, the application judge awarded ETFO a total amount of $103,100,000 to be distributed among teachers for the 2012-13 and 2013-14 school years as the remedy for the constitutional breach, but did not deal with the matter of any damages relating to the 2014-15 school year. The application judge stated that the further $21,000,000 claimed by ETFO, an amount based on what had been paid to OECTA (a non-applicant), was not factored into the award as it was the subject of a separate proceeding before the OLRB.
[19] The proceeding before the OLRB raised issues arising out of the parties’ collective bargaining, not ones that resulted only from the passing of legislation that had been successfully challenged on constitutional grounds.
Collective Bargaining
[20] At about the same time as their grid grievances were filed, OSSTF and ETFO began the process of collective bargaining for the 2014-2017 collective agreements. Negotiations were carried on in earnest into the following year.
[21] The 2013-2014 agreements had expired on the same day across the sector and new collective agreements were to commence on September 1 in the year following their expiry, all with a three-year term.
[22] The SBCBA came into force on April 8, 2014. It changed the structure of bargaining in the education sector in advance of the expiry of the collective agreements.
[23] The operation of the SBCBA ensures that the education sector unions will bargain all “central terms” of their collective agreements concurrently with the Crown.
[24] Accordingly, the SBCBA introduced a two-tiered bargaining structure under which bargaining agents representing education workers would bargain central terms, such as wages and benefits, at a “central table” with the Crown and their designated employer bargaining agency. “Local terms”, by contrast, were to be negotiated between each local bargaining unit and employer school board without the participation of the Crown. As a result, the Crown became a statutorily-mandated participant to collective bargaining in this education sector.
[25] The SBCBA further prescribed the earliest date upon which notice to bargain may be served. In 2015, this meant that all central bargaining across the sector commenced at the same time, with the Crown negotiating at separate tables with each of the designated bargaining agents and their corresponding employer bargaining agency.
[26] Under the SBCBA, the Crown is the only participant to central bargaining that is present at all tables. Accordingly, the Crown has the opportunity for (and advantage of) full awareness of each set of negotiations, as well as the state of their progress and of the dynamics in each bargaining relationship.
[27] The lead negotiator for the Crown was Brian Blakely, Director of the Labour Relations Branch at the Ministry of Education. Blakely was involved in the negotiations with each of OSSTF, ETFO and OECTA. Also involved in the negotiations for the Crown was Andrew Davis, Executive Director of the Ministry of Education’s Finance Division.
[28] The lead negotiator for OSSTF was Brad Bennett, its Director of Negotiations and Contract Maintenance.
[29] In August 2015, in the context of OSSTF negotiations, Blakely told Bennett that the other education workers’ unions would “end up in the same place” on compensation, and that OSSTF would not get “left behind” because it settled first.
[30] On August 20, 2015, OSSTF was the first union to reach a memorandum of settlement with the Crown. The terms of this settlement provided that grid movement would be restored as of September 1, 2015, but did not provide any compensation for lack of grid movement for the 2014-2015 school year.
[31] Following ratification of the settlement, OSSTF then instructed its bargaining units to withdraw their grid grievances relating to the 2014-2015 school year.
[32] On August 25, 2015, OECTA entered into a memorandum of settlement with the Crown. Unlike OSSTF’s agreement, the OECTA agreement contained a term that permitted the 2014-2015 grid movement grievances to be maintained.
[33] On September 16, 2015, AEFO also reached a memorandum of settlement with the Crown that contained the same provision regarding the maintenance of grievances as that of OECTA.
[34] As of mid-September 2015, ETFO had not yet reached any final memorandum of settlement with the Crown and their collective bargaining continued into the fall of that same year and after the OSSTF, OECTA and AEFO settlements had been reached.
[35] Sharon O’Halloran, General Secretary for ETFO, participated in the collective bargaining process along with her colleague, Victoria Reaume.
[36] In September 2015, the Crown proposed to ETFO that it withdraw its grid movement grievances. ETFO told the Crown that it did not intend to withdraw the grievances, as preserving them was an important issue for ETFO as one of the lead plaintiffs in the Bill 115 Charter challenge. Those grievances were directly connected to the effect of Bill 115 and ETFO’s efforts to restore grid movement. Its position with respect to maintaining those grievances was firm.
[37] On October 8, 2015 (as found by the OLRB in its decision) Blakely told ETFO that it must withdraw its grievances as a condition of settlement. At this point in these negotiations, Blakely represented to the ETFO negotiators that all the other unions had been required to withdraw their grievances and that no exception would be made for ETFO.
[38] On November 2, 2015, ETFO settled upon terms of its new collective agreement which included the settlement by withdrawal of its grid movement grievances. It was the last of the education workers’ unions to do so.
[39] OECTA and AEFO, being those unions that had preserved their grid movement grievances in their collective agreements with the Crown, actively pursued them and were ultimately successful in the results achieved.
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