[37] Bill 28 Royal Assent (PDF)
Bill 28 2003
An Act to resolve a labour dispute
between The Ontario English Catholic
Teachers' Association and the
Toronto Catholic District School Board
and to amend the Education Act and
the Provincial Schools Negotiations Act
Preamble
The Ontario English Catholic Teachers' Association and the Toronto Catholic District School Board have reached an impasse in bargaining and a lock-out is underway at the board's elementary schools. This disruption is hurting the education of a great many pupils, their parents and the general community. This dispute must be resolved without further lost instructional time. To achieve this, means must be found for the settlement of a collective agreement that meets the requirements set out in the Education Act and the regulations under it.
As well, this Act would promote education stability by revising the definition of "strike" in relation to teachers employed by school boards or the Provincial Schools Authority.
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
PART I
TORONTO CATHOLIC DISTRICT SCHOOL BOARD - ELEMENTARY
Interpretation and Application
Interpretation and application of Part
1. (1) In this Part,
"bargaining agent" means The Ontario English Catholic Teachers' Association; ("agent négociateur")
"bargaining unit" means the teachers' bargaining unit, as defined in section 277.1 of the Education Act, 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 elementary schools or to perform duties in respect of such schools all or most of the time; ("unité de négociation")
"board" means the Toronto Catholic District School Board; ("conseil")
"Minister" means the Minister of Labour; ("ministre")
"new collective agreement" means a collective agreement that,
(a) is executed after this Part comes into force, and
(b) expires on August 31, 2004; ("nouvelle convention collective")
"parties" means the bargaining agent that represents members of the bargaining unit and the board that employs those members; ("parties")
"strike" means "strike" as defined in subsection 277.2 (4) of the Education Act; ("grève")
"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, the 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 requires otherwise.
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 requires otherwise.
Application of this Part
(5) Sections 3 to 19 of this Part do not apply if a collective agreement relating to the bargaining unit having an expiry date of August 31, 2004 is executed by the parties before the day on which this Part comes into force.
Application of Education Act
2. (1) Except as modified by this Act, the Education Act, including section 277.2 of that Act, applies to the board, the bargaining agent and the members of the bargaining unit.
Conflict
(2) In case of conflict between this Act and the Education Act, this Act prevails.
Strikes and Lock-Outs
Termination of lock-out
3. (1) As soon as this Part comes into force, the board shall terminate any lock-out of members of the bargaining unit that is in effect immediately before this Part comes into force.
Normal operations
(2) The board shall resume the normal operation of the schools in which the members of the bargaining unit are employed.
Termination of strike
(3) As soon as this Part comes into force, the bargaining agent shall terminate any strike by members of the bargaining unit represented by the bargaining agent that is in effect immediately before this Part comes into force.
Same
(4) Each member of the bargaining unit,
(a) shall terminate any strike that is in effect immediately before this Part 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 bargaining 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
4. (1) Subject to section 6, no member of the 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 6, no officer, official or agent of any trade union shall counsel, procure, support or encourage a strike by any of the members of the bargaining unit.
Prohibition re lock-out
5. (1) Subject to section 6, the board shall not lock out or threaten to lock out any of the members of the bargaining unit.
Same
(2) Subject to section 6, no officer, official or agent of the board shall counsel, procure, support or encourage a lock-out of any of the members of the bargaining unit.
Strike and lock-out after new collective
agreement
6. After the parties execute a new collective agreement relating to the 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
7. (1) A person, including the board, or a trade union who contravenes or fails to comply with section 3, 4 or 5 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 trade 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 Part.
Deeming provision re unlawful strike,
lock-out
8. A strike or lock-out in contravention of section 3, 4 or 5 shall be deemed to be an unlawful strike or lock-out for the purposes of the Labour Relations Act, 1995.
Terms of employment
9. Until a new collective agreement relating to the bargaining unit is executed, the terms and conditions of employment that applied with respect to the members of the unit on the day before the first day on which it became lawful for any member of the bargaining unit to strike continue to apply.
Arbitration
Mediation-arbitration notice
10. (1) If the parties have not executed a new collective agreement relating to the bargaining unit on or before the seventh day after this Part comes into force, they shall be deemed to have referred to a mediator-arbitrator all matters remaining in dispute between them with respect to the bargaining unit that may be provided for in a collective agreement.
Appointment of mediator-arbitrator
(2) Within seven days of the referral to a mediator-arbitrator as provided in subsection (1), the parties shall jointly appoint the mediator-arbitrator and shall forthwith notify the Minister of the name and address of the person appointed.
Same
(3) If the parties fail to notify the Minister as subsection (2) requires, the Minister shall forthwith appoint the mediator-arbitrator and notify the parties of the name and address of the person appointed.
Replacement
(4) If the mediator-arbitrator is unable or unwilling to perform his or her duties so as to make the award,
(a) the Minister shall forthwith appoint a new mediator-arbitrator and notify the parties of the name and address of the person appointed; and
(b) the process shall begin anew.
Minister's power
(5) In appointing a mediator-arbitrator, the Minister shall appoint a person who, in the opinion of the Minister, has the requisite experience as an arbitrator or mediator-arbitrator or expertise in labour relations and education matters.
Appointment and proceedings of mediator-arbitrator
not subject to review
(6) Where a person has been appointed as a mediator-arbitrator under this Part, it shall be presumed conclusively that the appointment was properly made under this Part and no application shall be made to question the appointment or to prohibit or restrain any of the mediator-arbitrator's proceedings.
Same
(7) If the parties execute a new collective agreement before a mediator-arbitrator is appointed under this Part, no mediator-arbitrator shall be appointed.
Pre-existing arbitration proceedings
11. If an arbitrator or mediator-arbitrator is appointed to settle matters in dispute between the parties with respect to the bargaining unit before this Part comes into force, this Part applies to his or her proceedings as if he or she had been appointed under this Part as a mediator-arbitrator when this Part came into force.
No outside appointment
12. While this Part is in force, the parties shall not appoint an arbitrator, mediator or mediator-arbitrator to settle matters in dispute between them with respect to the bargaining unit otherwise than under this Part, and anything done by a person so appointed is without effect.
Costs
13. Each party shall pay one-half of the fees and expenses of the mediator-arbitrator.
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 relating to the bargaining unit.
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 the 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 Part 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.
New collective agreement
(8) If the parties execute a new collective agreement relating to the 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) Subject to subsection 14 (8), the mediator-arbitrator shall,
(a) begin the mediation-arbitration proceedings within 30 days after the appointment; and
(b) make the award within 90 days after the appointment.
Same
(2) The Minister 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 Part.
Constraints re consistency with Education Act
and regulations
17. (1) The mediator-arbitrator shall make an award that,
(a) is consistent with the Education Act and with the regulations made under that Act;
(b) permits the board to comply with the Act and regulations mentioned in clause (a); and
(c) can be implemented in a reasonable manner without causing the board to incur a deficit.
Constraints re instruction of pupils
(2) The scheduling of pupils' instruction, the length of instructional programs provided to pupils on school days and the length of pupils' instructional periods are matters for boards to determine under the Education Act and the mediator-arbitrator shall not make an award that would interfere with such determinations.
Statement by mediator-arbitrator
(3) Subsection (4) applies if implementation of the award would result in an increase in either the board's total or the board's average-per-teacher compensation costs for members of the bargaining unit.
Same
(4) The mediator-arbitrator shall include in the award a written statement explaining how, in his or her opinion, the board can meet the costs resulting from the award without incurring a deficit while complying with the legislation mentioned in subsection (1).
Term of new collective agreement
(5) The new collective agreement that implements the award shall be effective for a period beginning September 1, 2002 and ending August 31, 2004.
Retroactive alteration of terms
(6) 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, 2002.
Conflict with s. 9
(7) In the event of a conflict between section 9 and a provision in the award that is permitted by subsection (6), 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 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 bargaining agent and the board relating to the bargaining unit.
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.
PART II
AMENDMENTS TO THE EDUCATION ACT
AND THE PROVINCIAL SCHOOLS
NEGOTIATIONS ACT
Amendments to the Education Act
20. (1) Subsection 264 (1) of the Education Act is amended by adding the following clause:
duties assigned
(l) to perform all duties assigned in accordance with this Act and the regulations.
(2) Clause 277.2 (4) (b) of the Act, as enacted by the Statutes of Ontario, 2000, chapter 11, section 20, is repealed and the following substituted:
(b) "strike" includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering with,
(i) the normal activities of a board or its employees,
(ii) the operation or functioning of one or more of a board's schools or of one or more of the programs in one or more schools of a board, including but not limited to programs involving co-instructional activities, or
(iii) the performance of the duties of teachers set out in the Act or the regulations under it,
including any withdrawal of services or work to rule by teachers acting in combination or in concert or in accordance with a common understanding.
Amendments to the
Provincial Schools Negotiations Act
21. (1) Section 4 of the Provincial Schools Negotiations Act, as amended by the Statutes of Ontario, 1997, chapter 31, section 167, is amended by adding the following subsection:
Duties of teachers
(1.1) Teachers who teach in a school operated by a Ministry referred to in the definition of "school" in section 1 have, with necessary modifications, the duties of teachers set out in the Education Act and in the regulations made under that Act.
(2) Section 5 of the Act, as re-enacted by the Statutes of Ontario, 1997, chapter 31, section 167, is amended by adding the following subsection:
Strike
(1.1) For the purposes of this Act,
(a) the definition of "strike" in section 1 of the Labour Relations Act, 1995 does not apply; and
(b) "strike" includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering with,
(i) the normal activities of the Authority or its employees,
(ii) the operation or functioning of one or more of the Authority's schools or of one or more of the programs in one or more schools of the Authority, including but not limited to programs involving co-instructional activities, or
(iii) the performance of the duties of teachers referred to in subsection 4 (1.1),
including any withdrawal of services or work to rule by teachers acting in combination or in concert or in accordance with a common understanding.
PART III
COMMENCEMENT, REPEAL
AND SHORT TITLE
Commencement
22. (1) Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.
Same
(2) Part I comes into force on the day after the day this Act receives Royal Assent.
Repeal
(3) Part I is repealed on a day to be named by proclamation of the Lieutenant Governor.
Short title
23. The short title of this Act is the Back to School (Toronto Catholic Elementary) and Education and Provincial Schools Negotiations Amendment Act, 2003.
EXPLANATORY NOTE
This Explanatory Note was written as a reader's aid to Bill 28 and does not form part of the law. Bill 28 has been enacted as Chapter 2 of the Statutes of Ontario, 2003.
Part I of the Bill ends the lock-out of teachers employed by the Toronto Catholic District School Board. It provides for dispute resolution by mediation-arbitration.
Part II of the Bill amends section 264 of the Education Act with respect to duties of teachers. It also amends the definition of "strike" in section 277.2 of the Education Act. As well, Part II amends section 4 of Provincial Schools Negotiations Act with respect to duties of teachers. It also amends that Act by adding a definition of "strike".
Part III of the Bill provides for commencement, repeal and short title.