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Arbitrator rules they cannot adjudicate local terms of teachers’ collective agreements

A recent decision in an arbitration involving the Ontario English Catholic Teachers’ Association (OECTA), the Ontario Catholic Schools Trustees Association (OCSTA) and the Crown in Right of Ontario sets an important precedent for school boards across the province.

Background

The School Boards Collective Bargaining Act1 (the Act) outlines the process for collective bargaining in the education sector. The process divides bargaining for the collective agreement into two parts, central and local negotiations. The parties to central negotiations determine the scope of issues for bargaining at the central table to form the Scope Agreement. In this case, central negotiations took place between the OECTA and OCSTA, with the Crown as a participant, forming Part A of the collective agreement. These terms are binding on all school boards. Local negotiations took place between the individual school boards and the OECTA, forming Part B of the collective agreement.

On August 8, 2018, the central parties authored a Scope Agreement, which included the preparation and planning and supervision provisions. On October 26, 2020, OECTA filed a notice of dispute with OCSTA alleging a violation by 17 school boards of the preparation, planning and supervision provisions of the “Central Scope Agreement”.

The parties agreed to the central terms set out in the central collective agreement on March 12, 2020. Although preparation, planning and supervision were included in the Scope Agreement, the parties did not include provisions pertaining to preparation, planning or supervision in the central terms. Each of the 17 school boards included language in their local agreements pertaining to preparation, planning and supervisions. Part B of the collective agreements between the school boards and OECTA includes provisions addressing preparation, planning and supervision. These include provisions surrounding violations of how the preparation, planning and supervision provisions are to be remedied. For example, in many local agreements, Part B includes provisions permitting local union/management committees to address any contravention or breach of the preparation, planning or supervision provisions.

A provision in the Memorandum of Settlement specifically states “where a matter was agreed as a central item and no collective agreement language was agreed to, any existing collective agreement language […] shall continue in force and effect for the term of this agreement and the matter shall not be available for local bargaining”.

The issue for determination was one of jurisdiction. The OCSTA and the Crown argued that the arbitrator hearing a central grievance is without jurisdiction to hear and determine the dispute because the preparation, planning and supervision provisions are local terms, and the arbitrator is limited to hearing cases involving central terms only. The OCSTA and the Crown argued that the arbitrator’s jurisdiction was limited to determining whether there has been a violation of a central term of the collective agreement and not on whether there has been a violation of a central scope issue.

The OCSTA and the Crown asserted that the Act clarifies the arbitrator’s jurisdiction is limited to a determination of whether there has been a violation in the interpretation, application or administration of a central term of the collective agreement. They state there is no room in either the Act of the collective agreement for a finding of jurisdiction to determine if there has been a violation of the Scope Agreement.

The OCSTA and the Crown also asserted that in this case OECTA is seeking one central grievance to enforce Part B provisions in force in 17 different school boards, most, if not all, of which have different provisions. They stated that this is not contemplated by the Act and the provisions of the Act regarding arbitrations in respect of local terms should be followed.

OCSTA pointed out the administrative issues that would result if the preparation and planning and supervision provisions were determined to be a central term. It was noted that while OCSTA has collective bargaining responsibilities in respect of central issues, which no doubt have a significant impact on school boards, OCSTA has no authority to dictate to those school boards how to administer Part B of the collective agreement.

In turn, the OECTA noted that the Memorandum of Settlement explicitly states that Part B consists of both local and “certain central terms”. OECTA argued that because the preparation and planning and supervision provisions were part of the Scope Agreement, parties to local bargaining could not negotiate the terms of the preparation and planning and supervision provisions thereby making them central terms.

The Act created a central system of collective bargaining with a transparent process that provided a set of central terms and conditions, uniformly applied to all school boards across Ontario. In keeping with the intent of the Act, Arbitrator Steinberg found that the preparation, planning and supervision provisions were not a central term of the agreement, and that the central parties had deliberately decided not to add the preparation, planning and supervision as a central term.

Arbitrator Steinberg stated:

“In my view, in light of the fundamental significance of central bargaining and the resulting central terms of the collective agreement, OECTA’s argument does not give sufficient weight to the clear intent of the legislation that central terms are to be negotiated between the parties in a transparent process resulting in a clear delineation between central and local terms. Moreover, it would have the illogical result of making a scope issue a central term where the central parties have not only not negotiated about the matter but deliberately decided to not include it as a central term.”

Arbitrator Steinberg concluded that OECTA’s approach would ignore the clear intent of the central parties as expressed in the Memorandum of Settlement.

As a result, the arbitrator concluded that preparation, planning and supervision provisions are not central terms of the collective agreement and he has no jurisdiction to adjudicate the grievance.

Key takeaways

Moving forward, this decision will limit the ability of unions within the education sector to file central grievances pertaining to issues that are solely covered in local terms of collective agreements. While the trustees’ association is the employer bargaining agency for collective agreement responsibilities in respect of central issues, it has no authority to dictate local school boards on how to administer Part B of their respective collective agreements. Given the statutory scheme and role assigned to the trustees’ association, it likely cannot be required to pay damages itself for any violation of the collective agreement by school boards.

On August 19, 2021, OECTA filed a notice of application for judicial review of this decision before the Divisional Court. The matter is scheduled to be heard on June 1, 2022.

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


1 School Boards Collective Bargaining Act, S.O. 2014, chapter 5.

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