A recent B.C. Court of Appeal decision held that the B.C. Teachers’ Federation could not require school boards to establish and enforce student codes of conduct through the collective agreement because they were never negotiated between the parties.
By Ministerial Order, the Ministry of Education made it mandatory for school boards to establish and enforce student codes of conduct in consultation with employees, parents and others. But, following a survey which showed that many districts had not complied with their obligations, the Teachers’ Federation grieved, alleging that the school boards had violated and continued to violate their collective agreement provisions by failing to comply with the Ministry of Education’s requirement to establish and enforce student codes of conduct. The school boards argued that the matter was neither grievable nor arbitrable.
The arbitrator found that the core of the grievance was to ensure school boards established student codes of conduct in compliance with the Ministry of Education’s requirements. The arbitrator also found that, although there was similarity between the Ministry of Education’s student code of conduct requirements and matters that had been pursued in collective bargaining by the Teachers’ Federation, student codes of conduct had never been negotiated between the parties, making it “difficult to equate them to a significant part of the employment relationship.”
Further, although the School Act and regulations were, absent to the contrary, made a term or condition of a teacher’s contract of employment, the arbitrator found that it did not make student codes of conduct a term or condition of the teachers’ collective agreement.
The decision of the arbitrator was judicially reviewed on the standard of correctness and further appealed to the B.C. Court of Appeal.
The Court of Appeal agreed that the standard of review was correctness, because the Ministerial Order of the Ministry of Education was law of general application and not within specialized jurisdiction of the arbitrator. The Court of Appeal found that the Ministerial Order was not subject to arbitration because it dealt with consequences for students and there was nothing in the Order or in the School Act expressly importing it into teachers’ collective agreements.
The Court of Appeal agreed with the arbitrator that the requirement to establish and implement student codes of conduct, as required by the Ministerial Order, was not employment-related, but was rather focused on student safety. The Court of Appeal found that, while the Ministerial Order, did benefit teachers by fostering a safe, caring environment and prohibiting certain types of discrimination that was not sufficient to make it employment-related legislation so as to vest enforcement authority in a grievance arbitrator.
In Ontario, codes of conduct are also required of school boards, and some local agreements have provisions specifically speaking to codes of conduct, their application and/or amendment.