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Arbitrator rules that preparation time is required for remote teaching

Introduction

The COVID-19 pandemic has led to major changes across most industries worldwide, requiring re-evaluation of industry standards and service delivery. Each school board across the province faced extraordinary challenges as they attempted to navigate new and changing information along with multiple guidelines recommended by various experts across the country and worldwide. Remote learning and remote teaching are new areas schools have been required to navigate. 

In a labour arbitration decision released on March 5, 2021, Arbitrator S. L. Stewart heard a policy grievance brought by the Elementary Teachers’ Federation of Ontario (ETFO), related to the Hamilton-Wentworth District School Board’s (the Board) alleged failure to provide an appropriate preparation time model for the virtual classroom.1

Background

Prior to the pandemic, the Collective Agreement provided for 250 minutes of preparation time in a five-day cycle for teachers assigned to Kindergarten to Grade 8 classrooms. In accordance with the Collective Agreement, preparation time for homeroom teachers required scheduling during the 300-minute instructional day and should be free from supervision, teaching, recess, nutritional breaks and other assigned duties. The model required a qualified teacher to provide instruction to the class while the homeroom teacher utilized their allotted preparation time for curriculum development, evaluation or other activities as deemed appropriate in the teacher’s judgement. Preparation teachers were required to develop, deliver and evaluate curriculum to be delivered during their assigned coverage time.  

The grievance claimed that the Board failed to hire adequate qualified teachers, thereby failing to replace teachers by another federation member during their preparation time. This inaction led to an increased workload for homeroom teachers. The Board referred “to the challenges of adjusting to new realities, while honoring the Collective Agreement”2 and denied the grievances on the basis that there was no violation of the Collective Agreement. 

The matter in dispute was whether the Board’s model for the virtual classroom provided the appropriate classroom coverage outlined in the Collective Agreement.

As school boards scrambled to develop and implement appropriate curriculum delivery in consideration of various possibilities, they developed models that would encompass, full in person learning, full virtual learning and a hybrid delivery model hosting both options. The Ministry of Education delivered a Policy Memorandum on remote learning to help guide the school boards as they navigated the new platforms of education delivery. The policy required that school boards be able to provide remote learning on request that was aligned with the provisions of their Collective Agreements. The policy indicated that the terms of the Collective Agreement must prevail when developing teaching and delivery models. The memorandum went on to instruct the boards that a total of 300 minutes of instructional time was to be delivered through a combination of synchronous and asynchronous learning. Asynchronous learning could include but was not limited to teaching tools such as videos, assigned tasks or discussion boards. Teachers were required to be available to students at all times during their assigned timetable even when asynchronous learning tools were utilized.

The Board developed a model where students Grades 4 through 8 in the English track received core French teaching and students in the French track received core English teaching. During the scheduled preparation time for kindergarten teachers, a Designated Early Childhood Educator (DECE) is present in the virtual classroom for that period. No preparation teachers were assigned to replace the homeroom teachers in grades 1 through 3.

The virtual learning model considered the preparation time as asynchronous learning. The Board released an FAQ document stating, “For students in Kindergarten to Grade 3, 50 minutes at the end of the day will be independent learning time where their teacher will not be connected. This is a time for our younger students to complete learning started earlier in the day, practice new skills, read, exercise, or disconnect. The Designated Early Childhood Educator will be connected in Kindergarten classes during this time”.3  

There was some confusion as to whether federation members needed to create independent study content for this period. The Board clarified that they did not need to create further content, but should “create a culture” where students were aware that they should use the time to complete assignments, homework or exercise. The Board did acknowledge that homeroom teachers needed to develop curriculum that the preparation time teacher would normally manage, as they were now responsible for ensuring all parts of the provincial curriculum were delivered.

The Board submitted that under the management rights clause of the Collective Agreement claiming that the “cost savings associated with not providing a teacher for preparation time for these remote teachers was a consideration in reaching this decision, as costs to the Board associated with managing responsibilities in the pandemic were of significant concern”.The Board further submitted that the students were under the care and control of their parent or guardian negating the requirement for a preparation time teacher. Parents had the option of turning screens off during this time.

The ETFO submitted that these methods were not in keeping with the provisions of the Collective Agreement, which required boards to avail a qualified federation member to cover the preparation time. Further, the availability of a DECE or parent did not qualify as an appropriate federation member to who are required to provide instructional minutes to the students.

Arbitrator Stewart weighed the right of the Board to manage during the pandemic and the requirement to keep to the terms of the Collective agreement. In her concluding comments, the Arbitrator stated, “My obligation as an arbitrator is to interpret and apply the provisions of this Collective Agreement and the existence of a pandemic does not relieve me from that responsibility.”

The award ultimately determined that the Board failed to comply with the provisions of the Collective Agreement. Compliance was left to the parties to discuss and resolve.

Key takeaways 

This decision illustrates the challenges that school boards may face when designing and implementing solutions to maneuver to different remote learning models in light of the express terms and conditions in a Collective Agreement, which were based on in-person learning.  This challenge is bolstered by the Ministry of Education’s memorandum stating that collective agreement terms must prevail over alternate arrangements that do not comply with the provisions of the agreements.  Boards should be alerted to the importance of complying with the terms of collective agreements when navigating new and uncertain changes in education delivery models. 

If you have further questions regarding this topic, please reach out to the author or one of the key contacts below. 


1 Hamilton-Wentworth District School Board and Elementary Teachers’ Federation of Ontario, 2021 Canlii 18496 ONLA.
2 Ibid at para 2. 
3 Ibid at para 14.
4Ibid at para 13.

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