On Thursday, April 11, 2013 the Ontario Labour Relations Board (“OLRB”) released its much anticipated decision with respect to the application by the Upper Canada District School Board and Trillium Lakelands District School Board (the “school boards”) alleging that the Elementary Teachers’ Federation of Ontario (“ETFO”)acted unlawfully when it advised its members not to participate in extra-curricular activities.

While not all of the issues raised by the parties have been dealt with, namely the numerous Canadian Charter of Rights challenges raised by ETFO, the OLRB did clarify two important issues:

  1. the Putting Students First Act (“PSFA”) imposed collective agreements on ETFO members which remain in force despite the repeal of the legislation; and
  2. ETFO acted unlawfully when it counselled its members not to engage in extra-curricular activities.

Do Collective Agreements Currently Exist?

One of the first questions that the OLRB had to deal with was the impact of the PFSA.ETFO argued that when the PFSAwas repealed by the Ontario Government, the collective agreements that the legislation imposed either no longer existed as a result of the repeal, or did not legally amount to collective agreements at the outset, as the parties did not “freely or voluntarily negotiate” the terms.

The OLRB rejected ETFO’s characterization of the words “freely or voluntarily negotiate” as being mandatory elements of a collective agreement, as these terms are not required by the legislation.The OLRB pointed to interest arbitration as an example of a feature of the collective bargaining process where such a characterization would not be appropriate.The OLRB also agreed with the school boards that the Legislation Act, 2006, which provides direction in the interpretation of statutes, supports the finding that the repeal of the PFSA did not affect the rights, obligations and liabilities that were the outcome of the PFSA, including the resultant collective agreements.

The OLRB therefore concluded that the PFSA had imposed collective agreements on ETFO’s members and their employers which survive the revocation of the PFSA.

Did ETFO Counsel Its Members to Strike?

The next issue for the OLRB to decide was whether or not ETFO’s actions in advising its members to refrain from participating in extra-curricular activities were illegal because it was counselling members to strike, contrary to the Labour Relations Act, 1995 which prohibits striking while a collective agreement exists between the parties.

The extra-curricular activities in question were characterized as falling on a continuum ranging from mandatory duties, which could attract discipline if not performed, to purely voluntary activities for which a teacher could not be disciplined should s/he refuse to participate, and activities somewhere in between.

For the purposes of the hearing, the parties agreed that activities that were purely voluntary would be grouped in an Appendix A, such as intramural sports, including practices and tournaments, art clubs, drama clubs, choirs and musical bands.These were activities which were supervised by teachers and took place outside the instructional day.

The activities listed in Appendix B, such as distributing school and school board communications to students, were voluntary according to ETFO, but not conceded to be voluntarily by the school boards. The parties agreed that should the school boards be successful with respect to Appendix A then the relief would also apply to Appendix B.However, if the withdrawal of activities in Appendix A did not constitute a strike, the parties would have the opportunity to argue which activities listed in Appendix B were mandatory and whether or not their withdrawal constituted a strike.

The OLRB reviewed in some detail the history of the definition of strike as well as the inclusion and subsequent removal of the term ‘co-curricular activities’ in various iterations of the Education Act, both as drafted and as proclaimed.It concluded that the evolution did not assist in determining whether or not extra-curricular activities were intended to be captured by the definition of strike in the current Education Act, which states:

“s.277.2(4)For the purposes of subsection (1),

(a) the definition of “strike” in section 1 of the Labour Relations Act, 1995 does not apply; and

(b) “strike”includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering with,

(i) the normal activities of a board or its employees,

(ii) the operation or functioning of one or more of a board’s schools or of one or more of the programs in one or more schools of a board, or

(iii) the performance of the duties of teachers set out in the Act or the regulations under it,

including any withdrawal of services or work to rule by teachers acting in combination or in concert or in accordance with a common understanding.”

The OLRB found that the fact that the activities not being performed by ETFO members were voluntary and unpaid was not material.It stated that, “by encouraging its members to no longer perform any of these activities [those in Appendix A & B] ETFO was, at a minimum,‘interfering’ with either the operation of a school or a program in a school.”

The OLRB indicated that because the threshold identified in the definition of strike in the Education Act was based on interference with the educational programming, rather than the magnitude or significance of the impact, the extent of interference that the withdrawal had on students need not be established. The OLRB placed greater weight on the fact that the activities in question had been routinely offered for many years.While these activities may originally have been voluntary, the OLRB found that over time they became integral to the operation of the schools.In essence, it found that the definition of strike in the Education Act was “effects-based”, rather than activity specific.

Moreover, the OLRB found that counselling teachers to refuse to volunteer for the activities identified in Appendix A and B would also constitute a work to rule, which is similarly prohibited in the definition of strike found in the Education Act, as well as the Labour Relations Act, 1995.

The OLRB further clarified that, despite the fact that as an individual a teacher could refuse to perform the activities in Appendix A, and perhaps Appendix B, without consequence, when teachers collectively refused to participate in these activities their behaviour could and did constitute a strike under the Education Act.

Summary & Comments

Thus, the OLRB held that despite the repeal of the Putting Students First Act (Bill 115) the contracts imposed by that legislation continue to exist and are properly defined as collective agreements.In addition, ETFO’s counselling of its members to collectively withdraw from participating in voluntary/extracurricular activities constituted a strike as defined by section 277.2(4) of the Education Act, despite those activities being unpaid and voluntary.

Therefore, the OLRB issued an Interim Notice consistent with its findings, which also includes a statement that it cannot declare a final disposition of the application as ETFO’s arguments on the Charter issues have yet to be heard.

The decision of the OLRB is further confirmation that the current labour relations framework between school boards, unions and the Provincial Government is problematic.The OLRB identified that ETFO was expressing dissatisfaction with the Provincial Government by taking action against school boards.Moreover, ETFO’s labour action was identified as intended to have parents and school boards put pressure on the Provincial Government.

On several occasions the OLRB expressed that teachers, as professionals, have many duties which are not specifically identified in either the Education Act or collective agreements.It commented that “teacher duties are not simply the aggregate of their instructional time, preparation time or supervisory duties – but involve a myriad of other duties (and at least on this latter point, ETFO did not disagree).”

The OLRB also reiterated the fact that voluntary activities may become mandatory duties if over time by course of conduct they become recognized as part of the services provided.

What impact might this decision have on school boards? Should school boards be concerned that teachers might be influenced to refrain from assuming volunteer activities for fear that they might become mandatory?By many accounts, teachers enjoy volunteering for activities such as sports teams, choir and drama as much as the students who participate.Will the unions attempt to include every duty and responsibility in collective agreements? Certainly, this is not a new issue in education.Arguably, as long as teachers are respected as professionals, they will see as their responsibility the activities required to ensure that student programming meets the standards and expectations they themselves hold, as well as those of parents, schools, school boards and the Province.

The impact of any decision regarding the outstanding Charter issues is unknown, but likely more significant to education and other unionized sectors.