On March 26, 2013, Ontario’s public elementary teachers were advised by their own union to restore extra-curricular activities in time for the spring sports season, Grade 8 graduation trips and end-of-year field trips.
The Elementary Teachers’ Federation of Ontario (“ETFO”) said that it is confident that the Ontario government has “demonstrated a commitment to dealing with concrete items of importance to our members.”1
The union joins its public school board colleagues at the high school level, who resumed their participation in extra-curriculars in February, 2013 after making similar progress in talks with the province.2
Public school parents are uncertain as to whether all teachers will resume extra-curriculars and whether it will include all activities.
Teachers began protests in September 2012 when the Liberal government introduced the Putting Students First Act, 2012 (Bill 115 or the “PSFA”) which had the effect of dictating the terms of their contracts.
Principals and vice-principals in public school boards have worked diligently to ensure the continuity of the education program and the effective operation and administration of their schools. Ensuring proper supervision, delivery of appropriate curriculum and student safety were key considerations during the period of labour uncertainty.
With respect to Catholic school boards, a period of local bargaining took place across the Province following the signing of the Memorandum of Understanding between the Ontario English Catholic Teachers’ Association (“OECTA”) and the Ministry of Education on July 5, 2012 (“OECTA MOU”). This period of local bargaining ended on December 31, 2012. OECTA and the Ministry agreed that there would be no strikes, lockouts or applications for conciliation during the period of local bargaining. However, there have been a range of disputes and grievances initiated by OECTA over the interpretation and application of the new legislation.
Across the province, there has been significant uncertainty as to the implementation and operation of the PSFA. Questions have also arisen as to the impact of the PSFA on principals and vice- principals in Ontario. Furthermore, questions have arisen about the status of Bill 115 in light of the fact that on January 23, 2013, the legislation was repealed by the Government.
The Putting Students First Act imposes a broad compensation freeze on all employees in the education sector, including school administrators.
Putting Students First Act, 2012
School administrators across Ontario, including principals and vice-principals, are governed by the provisions of the PSFA. The Act, which came into force on September 11, 2012, imposes a broad compensation freeze on all employees in the education sector, including school administrators. The PSFA also imposes the OECTA MOU or similar memoranda of understanding, on all unionized employees.
The PSFA establishes a two-year restraint period, which started on September 1, 2012.
Employment Contracts for Principals and Vice-Principals
For employees who do not bargain collectively, such as principals and vice-principals, the Act requires that their contracts of employment contain the specific restraint measures itemized in section 2 of the PSFA.
The key provisions that must be included in employment contracts with principals and vice- principals are as follows:
- no across-the-board increase in compensation during the restraint period;
- no accumulation of sick leave credits after August 31, 2012;
- three unpaid leave days in 2013-14 school year, scheduled on professional activity days. Principals and vice-principals would not be expected to work on these days; and
- eligibility for increased compensation from grid movement on the 97th day of each school year during the term of the agreement.
The Ministry will continue to provide school boards with funding for principals and vice-principals salaries as it has in the past. The Ministry has also stated that principals and vice-principals (or principals in French-language school boards) who choose to return to teaching within 12 months of their permanent appointment will be permitted to do so. A vice-principal’s return to the bargaining unit is contingent on there being a teaching vacancy, for which he or she is qualified. No member of the bargaining unit will be adversely affected due to the return of a vice- principal to the bargaining unit.
In the case of French-language school boards, the right to return to the bargaining unit includes both principals and vice-principals, but does not apply to vice-principals being appointed to principal.
As indicated above, for non-unionized employees, such as principals and vice-principals, the PSFA freezes their compensation as of September 1, 2012 for a period of two years, although that period may be further extended by regulation. Compensation is broadly defined and includes “anything paid or provided, directly or indirectly to or for the benefit of a person who performs duties and functions that entitle him or her to be paid and includes salary, benefits, perquisites and all forms of non-discretionary and discretionary payments.” In light of this broad definition, it is apparent that additional vacation or any other benefit or perquisites cannot be provided to an employee during the restraint period.
The compensation restraint measures in the PSFA do not apply to superintendents and directors of education earning more than $100,000, whose compensation has already been frozen pursuant to the terms of the Broader Public Sector Accountability Act, 2010.
The PSFA provides that if an employment contract that applies during the restraint period is inconsistent with the terms set out in the Act, the contract is inoperative to the extent of the inconsistency.
The PSFA also states that a school board will not provide compensation to an employee, before, during or after the restraint period, for compensation that he or she will not, does not, or did not receive as a result of the Act.
Retirement Gratuity, Sick Leave and Post-Retirement Benefits
By Regulation, the Government amended the employment contracts between a school board and board employees who do not bargain collectively. Board employees who do not bargain collectively, such as school administrators, are not eligible to receive any form of retirement gratuity, after August 31, 2012, except the retirement gratuity that the employee had accumulated and was eligible to receive as of that day.
By Regulation, the Government also developed a new formula with respect to eligibility to receive a retirement gratuity based on the number of years of service as an employee with the board as of August 31, 2012.
In circumstances where an employee is eligible to receive a retirement gratuity, the school board is required to provide him/her with a report on or before May 31, 2013. The report is to include, among other things, the amount of the employee’s retirement gratuity, together with the calculation used to determine that amount.
Non-unionized employees, such as school administrators, are eligible for 11 days of sick leave at 100% of their salary and thereafter 120 days of sick leave at a rate of pay of 66.67% or 90%, if the entitlement to 90% has been determined through an adjudicative process agreed to by the employee and the board.
By Regulation, the Ontario Government has moved to eliminate post-retirement benefits for certain employees who are eligible for group insurance benefits from the date of retirement until age 65. The provisions of the Regulation effectively deprive certain school board employees of post-retirement benefits unless they retire before September 1, 2013.
By Regulation, the Government amended the employment contracts between a school board and employees who do not bargain collectively.
On January 7, 2013, Policy Program Memorandum No. 155 entitled “Diagnostic Assessment in Support of Student Learning” was released by the Ministry.
The memorandum, which is Ministry policy, outlines how teachers will use their professional judgement to determine:
- which assessment and/or evaluation tool(s) from the board’s list of pre-approved tools is applicable;
- for which student(s); and
- the frequency and timing of the use of the tool.
The memorandum defines diagnostic assessment as “assessment that is used to identify student’s needs and abilities and the student’s readiness to acquire the knowledge and skills outlined in the curriculum expectations.”
Information from diagnostic assessment helps teachers determine where individual students are in their acquisition of knowledge and skills so that instruction can be personalized and tailored to provide the appropriate steps for learning.
In order to inform their instruction, teachers are required to utilize diagnostic assessment during the school year.
Senior school board personnel have raised concerns that this Ministry initiative could undermine the role and responsibility of school administrators regarding the effective assessment, evaluation and reporting of student achievement. Further, concerns have arisen that this Ministry policy may result in inconsistent practices from school-to-school and board-to-board in using diagnostic assessment tools.
School Boards and school administrators need to clearly articulate their needs and priorities to ensure a successful school system.
Repeal of Bill 115
At 12:01 a.m. on January 23, 2013, the Government of Ontario officially repealed Bill 115.
Laurel Broten, the then Minister of Education, stated that the Bill was repealed to “show goodwill towards teachers”. The Minister stated, “There’s no doubt Bill 115 had become a lightning rod”.3
The question arises as to impact of the Government’s step to repeal the PSFA and the regulations made under the Act.
Pursuant to clause 51(1)(b) of the LegislatureAct, “The repeal of an Act or the revocation of a regulation does not ... (b) affect a right, privilege, obligation or liability that came into existence under the repealed or revoked Act or regulation.”
Clearly, the Government’s intention is that while the PSFA and the regulations made pursuant to it will be repealed, contractual terms imposed by the PSFA and its regulations (including those related to the salary freeze, sick leave, retirement gratuity and elimination of post-retirement benefits) will remain in force during the term of the restraint period.
In this regard, the collective agreements and changes to individual employment agreements imposed under the PSFA and its regulations remain in effect until August 31, 2014, although the PSFA and the regulations themselves are no longer in force.
It was the Greek philosopher Heraclitus who said, “The only thing that is constant is change.”
There will continue to be significant change in the education sector in the next few years. The Ministry of Education has been actively consulting with stakeholders to develop models for provincial bargaining to take effect January 1, 2014.
In addition, a committee of stakeholders is being established to look at creating one or more provincial benefit plans for the education sector.
The new Liberal Government is working diligently to rebuild the tattered relationship with teachers and other parties in the education sector.
For example, on April 1, 2013, the Ministry announced that it reached an agreement in principle with the Ontario Secondary School Teachers’ Federation, the union representing high-school teachers at the province’s public school boards.4 Talks are ongoing with ETFO, the public elementary teachers union.
It is important for school administrators, through their provincial associations, to work with the Ministry and other stakeholders in a collaborative and inclusive manner. School boards and school administrators need to clearly articulate their needs and priorities to ensure a successful school system. The focus should be on continuing to promote student achievement, the development of best practices and the delivery of effective education programs.