Background

In 1997, the Ontario government enacted the Education Quality Improvement Act (Bill 160), which included major reforms for the education sector, including statutorily determined class size, preparation time for teachers, and bargaining unit composition, among other changes.  The first round of collective bargaining under the Bill 160 system led to an impasse.  Eight school boards were either on legal strike or were locked out by the time the September 1998 school year started. 

On 28 September 1998, the Government passed the Back to School Act, 1998, which mandated:

ß       The termination of the strikes and lockouts

ß       Mediation-arbitration of outstanding disputes within financial restrictions

Complainants' Allegation

The complainants allege violation of Convention Nos. 87, 98, 151 and 154 in that the Back to School Act, 1998 [the "Act"]:

ß       Is an unjustifiable violation of freedom of association (right to strike and right to collectively bargain). Teachers are not engaged in the administration of the State and the labour dispute did not threaten the life, personal safety or health of the whole or part of the population.

ß       The Government failed to engage in a meaningful consultation with the teachers' unions regarding alternatives to the Act

ß       The scope of arbitration provided for under the Act is so restrictive it effectively requires adoption of the Government's funding decisions

ß       The arbitration process under the Act is flawed because it is not independent nor impartial

The complainants request that the CFA:

1.     declare the Act in violation of ILO Conventions and principles

2.     ask the Government of Ontario to repeal the Act, to restore free collective bargaining to teachers and to refrain from further interference in teachers' collective bargaining

3.     consider recommending a direct contacts mission to Ontario

Government's Reply

Viewed in context, the Act was justified and does not violate the ILO Conventions.

Only as a last resort will government intervene with legislation to end labour disputes. Government will only do so where vital public interests are at stake.  Students have a statutory right to attend school and the labour negotiations were at an impasse with no reasonable likelihood of settlement.  It would have been an "abdication" of their responsibility if the government had not acted.

All education stakeholders were invited to have input on educational reform in Ontario. 

Re restraints on arbitration

…       class time and instructional time are matters of educational policy and not a condition of employment that should be subject to negotiation.  These issues are appropriately left with the legislature, not the arbitrator

…       the fiscal restraints placed on the arbitrator are part of overall educational policy goals

…       it is reasonable to require the arbitrator to comply with the Education Act and be cognisant of a broader public policy framework

…       mediation-arbitration is a fair, open, voluntary process available if parties are unable to reach an agreement

CFA Conclusions

Re violation of the right to strike

…       The right to strike is an essential means to defend economic and social interests. The right to strike may be restricted only with respect to public servants involved in the administration of the State and essential services, strictly construed.  The education sector does not fall within either of these categories. 

…       On the facts, there was no evidence of the academic year even being put in jeopardy by the strikes/lockouts, let alone endangerment of physical safety.  The violation of the freedom of association was unjustified.

Re violation of the right to bargain collectively through the imposition of flawed arbitration

…       The arbitration process was compulsory, not voluntary (as alleged by the Government). Compulsory arbitration is a violation of freedom of association and is only permitted in relation to essential services, strictly construed.

Re lack of consultation

…       There was no consultation specifically concerning the Act prior to its adoption

…       It is essential when draft legislation affecting employment conditions or collective bargaining is proposed, workers' and employers' groups be consulted in full detail and in good faith

CFA Recommendations

The CFA notes with concern this is one of a series of cases involving legislative reform in Ontario that breaches the principles of freedom of association.  In the long term, continued interference freedom of association could prove harmful to labour relations.

The CFA requests the Government:

1.     avoid back-to-work legislation and take measures to ensure teachers in Ontario are able to exercise the right to strike

2.     ensure interest arbitration is voluntary and the body involved is independent

3.     arrange full and detailed consultation in good faith prior to legislation being adopted that impacts striking and collective bargaining rights

4.     consult fully with union and employers' organizations on how to improve the labour relations system in Ontario

5.     use the assistance of the International Labour Office as a resource

The CFA referred the legislative aspects of this Case to the Committee of Experts