On May 26, 2015, the Ontario Labour Relations Board (“OLRB”) released a decision that declared the local strikes by teachers in the Durham, Sudbury (Rainbow), and Peel public school boards to be unlawful. At the time the OLRB hearings were held, there were approximately 74,000 secondary students “out of class” as a result of the strikes.

Background

Until 2012, collective bargaining in Ontario school boards operated under a fairly informal structure without any applicable statutory framework. Under that system, the Ministry of Education facilitated centralized discussions with provincial teacher federations and associations of school boards. This system collapsed due to economic constraints and in its place the government enacted the Putting Students First Act 2012 (“PSFA”). Shortly after the collective agreements preceding the present round of negotiations had been imposed pursuant to the PFSA, the Act was repealed, largely due to criticisms of its ineffectiveness.

The School Boards Collective Bargaining Act

In 2014, the government enacted the School Boards Collective Bargaining Act (“SBCBA”) to replace the PSFA and govern the collective bargaining process for school boards. The SBCBA is distinct in that it operates under a “two-tiered” system. Issues are divided between central bargaining and local bargaining, but the collective agreement itself is still between the local board and the relevant union, such as the Ontario Secondary School Teachers’ Federation (“OSSTF”).

In the two-tiered model, employer bargaining agencies like the Ontario Public School Boards’ Association represent local boards in negotiating with their provincial union counterpart, which in this case is the OSSTF. The Crown also participates in the central bargaining process, but not in local bargaining. The parties negotiate whether matters fall under local or central bargaining and if they cannot agree, they can submit an application to the OLRB to resolve the issue. If an issue is not categorized as local or central, by default it becomes a local issue. After notice to bargain is given and the parties have agreed to the division of the local and central issues, the bargaining proceeds separately for local bargaining and central bargaining.

The three striking school boards all met the statutory requirements for a local strike, but some central issues bled into the local strikes. The SBCBA prohibits local strikes over central issues. Many of the picketers displayed signs referring to class size, which had been categorized as a central issue, and this engaged the statutory prohibition upon which the finding of an unlawful strike was based.

The Decision and Its Implications

Applying the SBCBA, the OLRB determined that the local strikes by the Durham, Sudbury (Rainbow), and Peel public school boards were unlawful.  However, the OLRB only imposed a two week moratorium on the strikes and found that the job action could resume once the OSSTF had removed the portions of the local strikes that were in “respect of central bargaining”.

However, on May 28, 2015, the Provincial Government passed “back-to-work” legislation that effectively prevented the OSSTF from resuming their strikes and will prohibit further strikes for the remainder of the present school year. Due to the temporal limitation of the “back-to-work” legislation, it is expected that labour unrest will continue into the fall unless the parties are able to resolve the matter at the bargaining table during the summer.  This means that the school years for high school students in Ontario could be negatively impacted next year, either by work-to-rule measures or strike action imposed by the OSSTF.

The labour unrest between the government and the OSSTF indicates that the more formal “two-tiered” model of collective bargaining implemented through the SBCBA may not be an effective way for entities to negotiate with a large, multi-unit unionized workforce as it adds more complexity and confusion to what is already a very emotionally charged issue.