On March 27, 2017, Bill 92, School Boards Collective Bargaining Amendment Act, 2017, received Royal Assent. The legislation makes a variety of amendments to the School Boards Collective Bargaining Act, 2014 (the "Act"); however, several challenges may still remain to the collective bargaining regime for publicly funded education in Ontario.
Amendments to Central and Local Bargaining
The Act has been amended to require central bargaining for all employee groups and school boards. Both central and local agreements must now be ratified by their respective parties; presumably preventing a circumstance in which the Crown and an employee group could enter a central agreement without the employer bargaining agency.
The issue of sequencing the negotiation of central and then local agreements was not addressed in the amendments, and may continue to pose challenges for school boards if both central and local agreements are occurring simultaneously.
The Act also now includes a provision permitting the Crown to enter into agreements or undertakings that, in the opinion of the Crown, are necessary or ancillary to: (a) facilitate reaching a memorandum of settlement of central terms, implementing such a memorandum or meeting commitments of the Crown relating to such a memorandum; or, (b) administer or implement the Act. How this power might be utilized is not yet known.
The amendments allow extensions to agreements for periods of two, three, four or five years, if the parties are satisfied they are authorized to enter into such an agreement and the Crown approves such an extension. This will enable school boards to have stability until after the coming provincial election. However, the potential issue of collective agreements for all bargaining groups simultaneously coming due remains, which could create the opportunity for significant and sustained job action if the next round of bargaining is difficult.
Previously, the Act required the Crown to consent to the exercise by employer bargaining agencies of certain rights and privileges, such as lock-outs and the altering of wage rates, for example where job action was instituted by an employee group. The amendments now provide for the mutual agreement between the employer bargaining agency and the Crown in such circumstances. Employer bargaining agencies, however, cannot unilaterally impose a lock-out or alteration of wage rates in response to central job action by employee groups.
The amendments now require five (5) days' notice before a change in the nature or scope of a strike or lock-out that could result in complete withdrawal of instruction or services in a school. This is in addition to the existing requirement of giving five days' written notice prior to commencing a strike. These notice periods have become even more important now that many parents receive before and after school care for their children in school buildings, which might be impacted by job action.
The Education Relations Commission will continue to advise Cabinet of its opinion as to whether or not a continued strike or lock-out will jeopardize affected students' ability to successfully complete their courses of study. In the past, guidance has been important for the purposes of determining whether back-to-work legislation would be tabled in the legislature.
The amendments require trustees' associations, which are designated as employer bargaining agents, to co-operate in good faith with the Crown in preparing for and conducting central bargaining. This term, however, is not reciprocal.
School boards may now be required to advise the Crown or their employer bargaining agency of the status of local negotiations or whether local terms have been agreed upon, before they are ratified.
There is also a new provision permitting either a school board or a union to request the assistance of the Crown in local bargaining.
New provisions now address how conflicts or inconsistencies in collective agreements between central and local terms can be resolved. The general rule is that the central term will prevail where there is a conflict; however, there are further provisions that will allow for the Crown or a party to apply to the Ontario Labour Relations Board for a determination of whether or not terms do, in fact, conflict.
The amendments to the Act further refine how central and local bargaining in the publicly funded education sector will occur in Ontario; however, their full impact will not be understood until all of the parties returning to bargaining.
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