[36] Bill 62 Original (PDF)
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Bill 62 1998
An Act to resolve labour disputes between teachers' unions and school boards
Preamble
Ontario school boards and teachers' unions are currently negotiating first collective agreements under the Education Act. These collective agreements must comply with new requirements that are set out in the Education Act and that are unique to the education sector.
Many parties have reached an impasse in bargaining. Full strikes or lock-outs are underway at the schools of a number of school boards. Parents of the children affected have asked the Government to ensure that these disputes are resolved without further lost instructional time.
This continuing disruption is hurting the education of students. As well, it is delaying the implementation of the reforms to Ontario's education system contained in the Education Quality Improvement Act, 1997.
A major cause of the parties' inability to reach new collective agreements is differing interpretations of the standards contained in the Education Act, and in particular, the meaning of "instruction" for the purposes of section 170.2.
The interests of students, parents and the broader community require that the strikes and lock-outs cease so that teachers and students can return to the schools. To achieve this, means must be found for the settlement of collective agreements that meet the requirements set out in the Education Act.
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
PART I
RESOLUTION OF LABOUR DISPUTES
INTERPRETATION AND APPLICATION
Definitions
1. (1) In this Part,
"
bargaining agent" means a designated bargaining agent as defined in section 277.1 of the Education Act\; ("agent négociateur")
"
board" has the same meaning as in the Education Act\; ("conseil")
"
new collective agreement" means a collective agreement that,
(a) is made after this Act comes into force,
(b) is effective from September 1, 1998 or earlier, and
(c) is effective for a period of at least two years; ("nouvelle convention collective") "
parties" means the bargaining agent that represents members of a scheduled bargaining unit and the scheduled board that employs those members; ("parties")
"
scheduled bargaining unit" means a teachers' bargaining unit, as defined in section 277.1 of the Education Act, that is listed in the Schedule; ("unité de négociation mentionnée en annexe")
"
scheduled board" means a board listed in the Schedule; ("conseil mentionné en annexe")
"
teacher" means a Part X.1 teacher as defined in section 277.1 of the Education Act. ("enseignant")
Interpretation
(2) For the purposes of this Part, a bargaining agent shall be deemed to be a trade union within the meaning of the Labour Relations Act, 1995.
Expressions relating to education
(3) Expressions in this Part relating to education have the same meaning as in the Education Act, unless the context otherwise requires.
Expressions relating to labour relations
(4) Expressions in this Part relating to labour relations have the same meaning as in the Labour Relations Act, 1995, unless the context otherwise requires.
Application of Education Act
2. Except as modified by this Part, the Education Act, including section 277.2 of that Act, applies to scheduled boards, bargaining agents and members of scheduled bargaining units.
Application of Part
3. (1) This Part applies where a collective agreement with respect to a scheduled bargaining unit has not been entered into between the scheduled board that employs the members of the unit and the bargaining agent for the unit, after December 31, 1997 and before the day on which this Act comes into force.
Same
(2) An agreement that stipulates a term of operation of less than two years, that was entered into after December 31, 1997 and before the day on which this Act comes into force, shall be deemed not to be a collective agreement for the purposes of subsection (1) or section 277.20 of the Education Act.
Non-application of Labour Relations Act, 1995, s. 43
(3) Section 43 of the Labour Relations Act, 1995 does not apply where this Part applies.
STRIKES AND LOCK-OUTS
Termination of lock-out
4. (1) As soon as this Act comes into force, each scheduled board shall terminate any lock-out of members of a scheduled bargaining unit that is in effect immediately before this Act comes into force.
Normal operations
(2) The board shall resume the normal operation of the schools in which the members of the unit are employed.
Termination of strike
(3) As soon as this Act comes into force, each bargaining agent shall terminate any strike by members of a scheduled bargaining unit represented by the bargaining agent that is in effect immediately before this Act comes into force.
Same
(4) Each member of the unit,
(a) shall terminate any strike that is in effect immediately before this Act comes into force; and
(b) shall report to work and perform his or her duties.
Exception
(5) Subsection (4) does not preclude a member of the unit from not reporting to work and performing his or her duties for reasons of health or by mutual consent of the member and the board.
Prohibition re strike
5. (1) Subject to section 7, no member of a scheduled bargaining unit shall strike and no person or trade union shall call or authorize or threaten to call or authorize a strike by any of the members of the unit.
Same
(2) Subject to section 7, no officer, official or agent of any trade union shall counsel, procure, support or encourage a strike by any of the members of the unit.
Prohibition re lock-out
6. (1) Subject to section 7, a scheduled board shall not lock-out or threaten to lock-out any of the members of a scheduled bargaining unit.
Same
(2) Subject to section 7, no officer, official or agent of the board shall counsel, procure, support or encourage a lock-out of any of the members of the unit.
Strike and lock-out after new collective agreement
7. After a new collective agreement is made with respect to a scheduled bargaining unit, the Education Act, including section 277.2 of that Act, governs the right of members of the unit to strike and the right of the board to lock-out members of the unit.
Offence
8. (1) A person, including a board, or a trade union who contravenes or fails to comply with section 4, 5 or 6 is guilty of an offence and on conviction is liable,
(a) in the case of an individual, to a fine of not more than $2,000; and
(b) in the case of a corporation or a union, to a fine of not more than $25,000.
Continuing offence
(2) Each day of a contravention or a failure to comply constitutes a separate offence.
Labour Relations Act, 1995
(3) Subsection 104 (3) and sections 105, 106 and 107 of the Labour Relations Act, 1995 apply, with necessary modifications, with respect to an offence under this Act.
Deeming provision: unlawful strike, lock-out
9. A strike or lock-out in contravention of section 4, 5 or 6 shall be deemed to be an unlawful strike or lock-out for the purposes of the Labour Relations Act, 1995.
Terms of employment
10. (1) Subject to subsections (2), (3) and (5), until a new collective agreement is made with respect to a scheduled bargaining unit, the terms and conditions of employment that applied in respect of the members of the unit at noon on September 25, 1998, including any changes made by the board as permitted by section 86 of the Labour Relations Act, 1995 and communicated to the bargaining agent or the members of the bargaining unit, continue to apply to them.
Exception re: salary
(2) Until a new collective agreement is made with respect to a scheduled bargaining unit, the salary of a member of the unit shall not be less than the salary that would be determined in accordance with the most recent collective agreement that applied to the member or, if no such agreement exists, in accordance with the most recent collective agreement that applied to teachers employed in a similar position at the same school or school site as the member.
Exception re: certain benefits
(3) Until a new collective agreement is made with respect to a scheduled bargaining unit, benefits specified in subsection (4) of a member of the unit shall not be less than those benefits would have been had they been determined in accordance with the most recent collective agreement that applied to the member or, if no such agreement exists, in accordance with the most recent collective agreement that applied to teachers employed in a similar position at the same school or school site as the member.
Same
(4) The following benefits are specified for the purposes of subsection (3):
1. Benefits under a life insurance plan.
2. Benefits under an accidental death plan.
3. Benefits under an extended health plan.
4. Benefits under a dental plan.
5. Benefits under a disability insurance plan.
Compliance with Education Act
(5) Subject to subsections (2) and (3), a scheduled board may alter the terms and conditions of employment of members of a scheduled bargaining unit to the extent that the board considers it necessary to do so in order to be able to comply with the requirements of the Education Act and the regulations made under it.
Exception
(6) A board may not alter terms or conditions of employment under subsection (5) if the alteration would conflict with the terms of a written agreement entered into after September 1, 1998 and before noon on September 25, 1998.
Same
(7) Subsection (6) applies only during the term of the written agreement and for the purposes of this subsection the term of the agreement cannot be extended by the parties to it.
ARBITRATION
Mediation-arbitration notice
11. (1) Either party may by notice given in accordance with subsection (2) require that the matters in dispute between them relating to a scheduled bargaining unit be decided by mediation-arbitration in accordance with this Act.
Same
(2) The notice shall be given in writing to the other party and to the Minister of Labour.
Other arbitration proceedings
(3) Where an arbitrator is appointed to settle matters in dispute between the parties relating to a scheduled bargaining unit before this Act comes into force, this Act applies to his or her proceedings as if he or she had been appointed under this Act as a mediator-arbitrator when this Act came into force.
Appointment of mediator-arbitrator
12. (1) If notice is given under section 11,
(a) the parties may jointly appoint a mediator-arbitrator; or
(b) either party may at any time request in writing that the Minister of Labour appoint a mediator-arbitrator.
Same
(2) On receiving a request under clause (1) (b), the Minister of Labour shall appoint a mediator-arbitrator.
Replacement
(3) If the mediator-arbitrator is unable or unwilling to perform his or her duties so as to make the award,
(a) a new mediator-arbitrator shall be appointed; and
(b) the process shall begin anew.
Same
(4) For the purposes of clause (3) (a), subsections (1) and (2) apply with necessary modifications.
Appointment and proceedings of mediator-arbitrator not subject to review
(5) Where a person has been appointed as a mediator-arbitrator under this Act, it shall be presumed conclusively that the appointment was properly made under this Act and no application shall be made to question the appointment or to prohibit or restrain any of the mediator-arbitrator's proceedings.
Costs
13. (1) Each party shall pay one-half of the fees and expenses of the mediator-arbitrator.
Regulations
(2) The Lieutenant Governor in Council may make regulations,
(a) providing for and prescribing a scale of fees and expenses allowable to mediator-arbitrators in respect of their duties under this Act and limiting or restricting the application of such a regulation;
(b) providing a procedure for the review and determination of disputes concerning the fees and expenses charged or claimed by a mediator-arbitrator;
(c) governing the filing of schedules of fees and expenses by mediator-arbitrators, requiring mediator-arbitrators to provide parties with a copy of the schedules upon being appointed and requiring mediator-arbitrators to charge fees and expenses in accordance with the filed schedules.
Jurisdiction
14. (1) The mediator-arbitrator has the exclusive jurisdiction to determine all matters that he or she considers necessary to conclude a new collective agreement.
Same
(2) The mediator-arbitrator remains seized of and may deal with all matters within his or her jurisdiction until the new collective agreement between the parties is in force.
Mediation
(3) The mediator-arbitrator may try to assist the parties to settle any matter that he or she considers necessary to conclude a new collective agreement.
Where matters agreed between the parties
(4) As soon as possible after the mediator-arbitrator is appointed, but in any event no later than seven days after the appointment, the parties shall notify the mediator-arbitrator in writing as to the matters on which they reached agreement before the appointment of the mediator-arbitrator.
Same
(5) The parties may at any time notify the mediator-arbitrator in writing as to matters on which they reach agreement after the appointment of the mediator-arbitrator.
Same
(6) The mediator-arbitrator shall not give effect in the award to an agreement of which notice is given under subsection (4) or (5) unless the mediator-arbitrator is satisfied that he or she can do so without contravening subsection 17 (1).
Award to be comprehensive
(7) An award under this Act shall deal with all of the matters to be dealt with in the new collective agreement, whether or not the parties have given notice under subsection (4) or (5) in respect of one or more such matters.
Where new collective agreement concluded by the parties
(8) If the parties execute a new collective agreement with respect to the scheduled bargaining unit, they shall so notify the mediator-arbitrator and the mediation-arbitration proceedings are terminated when the collective agreement comes into force.
Time limits
15. (1) The mediator-arbitrator shall,
(a) begin the mediation-arbitration proceedings within 30 days of the appointment, unless the mediation-arbitration proceedings are terminated under subsection 14 (8) before the expiry of the 30 day period; and
(b) shall make the award within 90 days of the appointment, unless the mediation-arbitration proceedings are terminated under subsection 14 (8) before the expiry of the 90 day period.
Same
(2) The Minister of Labour may extend a time period specified in subsection (1), before or after the expiry of the period.
Procedure
16. (1) The mediator-arbitrator shall determine the procedure for the mediation-arbitration but shall permit the parties to present evidence and make submissions.
Same
(2) Clauses 48 (12) (a) to (i) of the Labour Relations Act, 1995 apply, with necessary modifications, to the proceedings before the mediator-arbitrator and to his or her decisions.
Non-application
(3) The Arbitration Act, 1991 and the Statutory Powers Procedure Act do not apply to mediation-arbitration proceedings under this Act.
Constraints: consistency with Education Act
17. (1) The mediator-arbitrator shall make an award that,
(a) is consistent with the Education Act and the regulations made under it; and
(b) permits the scheduled board to comply with the Education Act and the regulations made under it.
Same
(2) For greater certainty, in complying with subsection (1) the mediator-arbitrator shall have regard to the provisions of the Education Act as it may be amended by Bill 63 (An Act to amend the Education Act with respect to instructional time, which received first reading on September 28, 1998) or by any other Act, regardless of whether section 2 of Bill 63 applies to a provision of an agreement between the parties.
Constraints: instruction of pupils
(3) The scheduling of pupils' instruction, the length of instructional programs provided to pupils on school days and the length of pupils' instructional periods are education matters for boards to determine under the Education Act and the mediator-arbitrator shall not make an award that would interfere with such determinations.
Constraints: fiscal considerations
(4) The mediator-arbitrator shall make an award that he or she considers, having regard to relevant education funding regulations and Ministry of Education and Training policies, can be implemented in a reasonable manner without causing the scheduled board to incur a deficit.
Statement by mediator-arbitrator
(5) Subsection (6) applies if implementation of the award would result in an increase in either the scheduled board's total or the scheduled board's average-per-teacher compensation costs for members of the scheduled bargaining unit, for either the first or the second year of the term of the agreement.
Same
(6) The mediator-arbitrator shall include in the award a written statement explaining how, in his or her opinion, the scheduled board can meet the costs resulting from the award without incurring a deficit and, for the purposes of the statement, the mediator-arbitrator shall have regard to relevant education funding regulations and Ministry of Education and Training policies.
Term of new collective agreement
(7) Every new collective agreement that implements an award made under this Act shall be effective for the period beginning September 1, 1998 and ending August 31, 2000.
Retroactive alteration of terms
(8) In making the award, the mediator-arbitrator may provide for the retroactive alteration of one or more terms and conditions of employment, to one or more dates on or after September 1, 1998.
Conflict with s. 10
(9) In the event of a conflict between section 10 and a provision in the award that is permitted by subsection (8), the provision in the award prevails.
Effect of award
18. (1) Subject to subsection (2), the award of the mediator-arbitrator is final and binding on the parties and the members of the scheduled bargaining unit.
Judicial review
(2) Either party may apply for judicial review with respect to whether the award complies with subsections 14 (6) and 17 (1).
Same
(3) The standard of review in an application under subsection (2) shall be correctness.
Execution of agreement
19. (1) Within seven days after the mediator-arbitrator makes the award, the parties shall prepare and execute documents giving effect to the mediator-arbitrator's award and those documents constitute the new collective agreement between the teachers' bargaining agent and the scheduled board.
Same
(2) The mediator-arbitrator may extend the period specified in subsection (1) but the extended period shall end no later than 30 days after the mediator-arbitrator makes the award.
Preparation by mediator-arbitrator
(3) If the parties do not prepare and execute the documents as required under subsections (1) and (2), the mediator-arbitrator shall prepare and give the necessary documents to the parties for execution.
Failure to execute
(4) If either party fails to execute the documents within seven days after the mediator-arbitrator gives them to the parties, the documents come into force as though they had been executed by the parties and those documents constitute the new collective agreement.
LOST INSTRUCTIONAL TIME
Application
20. (1) This section applies in respect of a strike by members of a scheduled bargaining unit or a lock-out by a scheduled board of members of a scheduled bargaining unit occurring at any time after August 31, 1998 and before the execution of a new collective agreement respecting the unit between the board and the bargaining agent for the unit.
Plan re lost time
(2) On or before the seventh day after the strike or lock-out is terminated, the bargaining agent for the unit and the board may agree on and jointly file with the Minister of Education and Training a plan that describes how they intend to address the loss of instructional time for pupils that has resulted from the strike or lock-out.
Same
(3) If the parties fail to agree on and jointly file a plan, each party shall file its own plan, on or before the eleventh day after the strike or lock-out is terminated.
Consultation
(4) Before filing a plan under subsection (2) or (3), the board shall consult with parents of pupils affected by the strike or lock-out.
Same
(5) When filing a plan under subsection (2) or (3), the board shall provide the Minister with a written report on the results of the consultation.
Approval, etc., by Minister
(6) The Minister may approve a plan filed under this section or, if the Minister does not consider a plan filed under this section to be adequate, the Minister may,
(a) amend a plan filed under this section;
(b) direct either party to amend the plan filed by it under this section and re-file it; or
(c) prepare his or her own plan.
Preparation by Minister
(7) If no plan is filed under this section within the time specified in subsection (3), the Minister may prepare his or her own plan.
Implementation
(8) The parties shall implement the plan as approved, amended or prepared by the Minister, as the case may be.
Revised school calendar
(9) For the purpose of implementing the plan, the Minister may by order direct the board to prepare and submit a revised school calendar under Regulation 304 of the Revised Regulations of Ontario, 1990.
Same
(10) An order under subsection (9) may provide for variations from specified requirements of Regulation 304 of the Revised Regulations of Ontario, 1990.
Same
(11) The Minister may approve the revised school calendar submitted under subsection (9), with or without such changes as the Minister considers advisable for the purpose of implementing the plan.
Same
(12) If the board does not comply with subsection (9), the Minister may by order provide for such revisions to the school calendar as the board could have made under subsection (9) and the board shall do whatever is necessary to implement those revisions.
Same
(13) Revisions to a school calendar made under this section are effective despite any inconsistency with Regulation 304 of the Revised Regulations of Ontario, 1990
Order not a regulation
(14) An order made under this section is not a regulation within the meaning of the Regulations Act.
Interpretation re application of section
(15) For greater certainty, subsection (1) of this section applies only in the circumstances described in section 3.
'
PART III
COMMENCEMENT AND SHORT TITLE
Commencement
23. This Act comes into force on the day following the day on which it receives Royal Assent.
Short title
24. The short title of this Act is the Back to School Act, 1998.
SCHEDULE
Boards
Bargaining Units
Conseils
Unités de négociation
Dufferin-Peel Catholic District School Board
The bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is employed by the Dufferin-Peel Catholic District School Board and is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
Dufferin-Peel Catholic District School Board
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé Dufferin-Peel Catholic District School Board et qui sont affectés à une ou à plusieurs écoles secondaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
Durham Catholic District School Board
The bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is employed by the Durham Catholic District School Board and is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
Durham Catholic District School Board
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé Durham Catholic District School Board et qui sont affectés á une ou á plusieurs écoles secondaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
Durham District School Board
The bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is employed by the Durham District School Board and is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
Durham Disctrict School Board
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé Durham District School Board et qui sont affectés á une ou á plusieurs écoles secondaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
Hamilton-Wentworth Catholic District School Board
The bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is employed by the Hamilton-Wentworth Catholic District School Board and is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
Hamilton-Wentworth Catholic District School Board
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé Hamilton-Wentworth Catholic District School Board et qui sont affectés á une ou á plusieurs écoles secondaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
Peterborough Victoria Northumberland and Clarington Catholic District School Board
The bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is employed by the Peterborough Victoria Northumberland and Clarinton Catholic District School Board and is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
Peterborough Victoria Northumberland and Clarington Catholic District School Board
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé Peterborough Victoria Northumberland and Clarington Catholic District School Board et qui sont affectés á une ou á plusieurs écoles secondaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
Sudbury Catholic District School Board
The bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is employed by the Sudbury Catholic District School Board and is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
Sudbury Catholic District School Board
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé Sudbury Catholic District School Board et qui sont affectés á une ou á plusieurs écoles secondaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
Toronto Catholic District School Board
The bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is employed by the Toronto Catholic District School Board and is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
Toronto Catholic District School Board
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé Toronto Catholic District School Board et qui sont affectés á une ou á plusieurs écoles secondaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
York Catholic District School Board
The bargaining unit composed of every Part X.1 teacher, other than occasional teachers, who is employed by the York Catholic District School Board and is assigned to one or more secondary schools or to perform duties in respect of such schools all or most of the time.
York Catholic District School Board
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé York Catholic District School Board et qui sont affectés á une ou á plusieurs écoles secondaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
L'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé York Catholic District School Board et qui sont affectés á une ou á plusieurs écoles élmentaires ou qui sont chargés d'exercer des fonctions à l'égard de telles écoles tout le temps ou la plupart du temps.
Si les unités de négociation ont été combinées en une seule unité conformément à l'article 277.7 de la Loi sur l'éducation, l'unité de négociation composée des enseignants visés par la partie X.1, à l'exception des enseignants suppléants, qui sont employés par le conseil scolaire de district appelé York Catholic District School Board.
EXPLANATORY NOTE
Part I of the Bill addresses labour disputes involving certain school boards. It requires the termination of strikes and lock-outs at those boards and provides a mechanism for achieving new collective agreements between the boards and the affected teachers' unions. Part I of the Bill also provides for the preparation and implementation of plans to make up for lost instructional time for pupils resulting from a strike or lock-out at those boards.
Part II of the Bill amends the Education Act with respect to the meaning of "instruction" for the purposes of section 170.2 of that Act. Copyright © 1998
Office of the Legislative Assembly of Ontario
Toronto, Ontario, Canada.