Rotating strikes, partial withdrawals of services, pressure tactics of all kinds … In the Ottawa region as elsewhere, the last two school years were marked by tension between unions, school boards, trustees' associations and the Ontario government.

This is not surprising given that the working conditions of a significant number of employees in Ontario's education sector for the 2012-2014 period were imposed by legislation that has since been held unconstitutional. Since the difficult 2012 round of bargaining, it seems that each school year brings its own share of upheaval. In the spring of 2015, rotating strikes decreed by the Ontario Secondary School Teachers' Federation (OSSTF) threatened a number of public secondary schools in the Ottawa area. Last fall, many local schools were impacted by non-teaching staff work-to-rule campaigns. These employees refused to operate the schools' security systems, forcing the boards to leave school doors unlocked for visitors, thereby causing considerable concern for all those affected.

What can we expect for the 2016-2017 school year? In order to answer this question, it is important to fully understand the special labour relations regime under which school boards have been operating since 2014. This regime was created under the School Boards Collective Bargaining Act, 2014 (the "Act"), which introduced a two-tiered bargaining system for the first time in the education sector in Ontario.

Two-tiered regime

The Act first establishes both central and local bargaining for teaching staff. Under the Act, there are four central tables, or one table per teachers union, while the number of local tables depends on the number of local bargaining units.

Central bargaining is not pre-determined for non-teaching staff. It may, however, be provided by regulation at the request of sector unions where certain conditions are satisfied. During the round that began in 2014, central tables were established by regulation for nearly all Ontario school boards' support staff. A central table was established at the request of each of the three major sector unions, while the other unions were gathered around two additional tables, for a total of five central tables.

At the central tables, the teachers' federations and other provincial unions represent the employees while the trustees' associations act as bargaining agents for the school boards. The Crown participates at each central bargaining table.

The Act also maintains the right of school boards and local bargaining units to negotiate any matter that is not reserved for central bargaining. The Crown has no role to play during local bargaining which, pursuant to the Act, may take place concurrently with central bargaining. In fact, the Act expressly provides that the Crown is excluded from any local bargaining.

Two-stage regime

The Act does not dictate those matters that are within the scope of central bargaining and those that are within the scope of local bargaining. It is up to the central bargaining parties to negotiate which matters will be dealt with at the central table. As a result, all central tables do not necessarily deal with the same matters.

Major issues such as wages or classroom size, which typically depend on public funding made available to school boards by the government, should normally be identified as central issues, as should any provincial education policy issues.

Any impasse at this stage of the bargaining process must be resolved by the Ontario Labour Relations Board (OLRB) according to certain criteria set by legislation and which are used to identify, amongst other things, matters in which the Crown may have an interest. The parties have no right to strike or lock-out at this stage.

Finally, any matter not specifically reserved for central bargaining falls within the scope of local bargaining. As a result, local matters cannot be clearly identified as long as the parties at the central table have not completed the above-described process.

Substantive bargaining gets underway at both bargaining levels once the matters reserved for central bargaining have been determined. As previously indicated, central and local bargaining can occur concurrently during this second stage of the bargaining process. The parties at the central table, however, have the option of agreeing to wait until central bargaining issues have been resolved before allowing school boards and local bargaining units to engage in local bargaining.

If there is a disagreement at the local level as to whether a matter is central or local, the local parties must refer the question back to the parties at the central table for determination. If those parties cannot agree, the question will have to be determined by the OLRB.

The parties at both bargaining levels are entitled to strike or lock-out during substantive bargaining. Whether bargaining occurs concurrently or not, a school board might, for the same group of employees, find itself subject to pressure tactics twice during the same bargaining round: a first time in relation to central bargaining, and then again in relation to local bargaining. Pressure tactics employed locally can only be applied with respect to matters within the scope of local bargaining. In 2015, OSSTF tried to employ pressure tactics against certain boards in relation to both central and local bargaining issues. And though local bargaining units had fulfilled all legislative requirements to legally strike, this was not the case for central parties. As a result, the OLRB ruled that the pressure tactics were illegal.

What should we expect for the 2016-2017 school year?

To understand what the 2016-2017 school year has in store, we must first consider which stage of the above bargaining process central and local parties have completed.

First, central bargaining did not proceed at the same pace at all central tables. Agreements with respect to the central-local split were reached between the end of fall 2014 and the beginning of summer 2015. At least four tables had to apply to the OLRB to resolve an impasse on the split. Once that was achieved, some parties decided to first bargain substantively at the central level before starting local bargaining. In other cases, however, the parties opted to bargain concurrently at both levels, which proved to be more challenging at times. In fact, this is one aspect of the new bargaining regime that could well be revisited by the legislator prior to the next round.

Substantive agreements at the central level were reached between August and December 2015. As for substantive agreements at the local level, as of the date this article was drafted, over 450 local agreements had been reached out of a total of 470 potential agreements, leaving fewer than 20 bargaining units without contracts. So while the risk of a general strike is a thing of the past, pressure tactics at the local level are still a possibility for a limited number of school boards.

Beyond the 2016-2017 school year

The Act provides for three-year agreements, except where the government dictates a different term by regulation. The government did not exercise this power during the 2014 round, so all education sector agreements are scheduled to expire on Aug. 31, 2017. Normally, in accordance with the Act, notices to bargain should be delivered at the start of summer 2017 and negotiations on the scope of central bargaining should commence shortly thereafter. At this time, it is difficult to determine whether this next round of bargaining will be as arduous as the last one. But assuming the process progresses at the same pace, pressure tactics could very well start during the spring of 2018 or even before. Given this scenario, and with provincial elections planned for October 2018, chances are that the 2018 back-to-school period will be rather turbulent.

That being said, the above scenario is not the only one. Although the active bargaining period typically begins 90 days before the expiry of a collective agreement, under the Act, the government can extend this active bargaining period so that it begins up to 180 days before the expiry of education sector collective agreements. Furthermore, parties are free to commence bargaining earlier if they wish to have agreements in place prior to Aug. 31, 2017 for the period of Sept. 1, 2017 and beyond. Such a solution would certainly promote peace and stability throughout the system. It is too early to speculate about all this, but we will be following developments closely in order to keep you well informed.