[37] Bill 61 Original (PDF)
Bill 61 2003
An Act to promote
stability and good will
in Toronto Catholic
elementary schools
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 fair settlement of a collective agreement that meets the requirements set out in the Education Act and the regulations under it.
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")
"Commission" means the Education Relations Commission as defined in section 57.2 of the Education Act; ("Commission")
"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 20 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.
Mediation-Arbitration
Mediation-arbitration notice
10. 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 mediation-arbitration all matters remaining in dispute between them with respect to the bargaining unit that may be provided for in a collective agreement.
Appointment of board of mediation-arbitration
11. (1) Within seven days of the deemed referral to mediation-arbitration as provided in section 10, each of the parties shall appoint to a board of mediation-arbitration a member who has agreed to act.
Extension of time
(2) The parties by a mutual agreement in writing may extend the period of seven days mentioned in subsection (1) for one further period of seven days.
Failure to appoint member
(3) Where a party fails to appoint a member of a board of mediation-arbitration within the period mentioned in subsection (1) or within the time extended under subsection (2), the Commission, on the written request of either of the parties, shall appoint such member.
Third member
(4) Within 10 days after the day on which the second of the members was appointed, the two members appointed by or on behalf of the parties shall appoint a third member who has agreed to act, and such third member shall be the chair.
Failure to appoint third member
(5) Where the two members appointed by or on behalf of the parties fail within 10 days after the appointment of the second of them to agree on the third member, notice of such failure shall be given forthwith to the Commission by the parties, the two members or either of them and the Commission shall appoint as a third member a person who is, in the opinion of the Commission, qualified to act.
Notice of appointment by party
(6) As soon as one of the parties appoints a member to a board of mediation-arbitration, that party shall notify the other party and the Commission of the name and address of the member appointed.
Notice of appointment by members
(7) As soon as the two members appoint a third member, they shall notify the Commission of the name and address of the third member appointed.
Vacancies
(8) If a person ceases to be a member of a board of mediation-arbitration by reason of resignation, death or otherwise before it has completed its work, the Commission shall appoint a member in his or her place after consulting the party whose point of view was represented by such person.
Replacement of member
(9) If, in the opinion of the Commission, a member of a board of mediation-arbitration has failed to enter on or to carry on his or her duties so as to enable it to render a decision within the time set out in subsection 16 (1) or within the time extended under subsection 16 (2), the Commission may appoint a member in his or her place after consulting the party whose point of view was represented by such person.
Replacement of chair
(10) If the chair of a board of mediation-arbitration is unable to enter on or to carry on his or her duties so as to enable it to render a decision within the time set out in subsection 16 (1) or within the time extended under subsection 16 (2), the Commission may appoint a person to act as chair in his or her place.
Certain persons prohibited as members
(11) No person shall be appointed a member of a board of mediation-arbitration under this Act who has any pecuniary interest in the matters coming before it or who is acting or has, within a period of six months preceding the date of his or her appointment, acted as solicitor, counsel or agent of either of the parties.
Time and place of hearings
(12) The chair of the board of mediation-arbitration shall fix the time and place of the first or any subsequent hearing and shall give notice thereof to the Commission and the Commission shall notify the parties and the members of the board of mediation-arbitration thereof.
Failure of member to attend
(13) Where a member of a board of mediation-arbitration appointed by a party or by the Commission is unable to attend the first hearing at the time and place fixed by the chair, the party shall, on the request in writing of the chair, appoint a new member in place of such member and where such appointment is not made within five days of the date of the request, the Commission shall, on the written request of the chair, appoint a new member in place of such member.
Order to expedite proceedings
(14) Where a board of mediation-arbitration has been established, the chair shall keep the Commission advised of the progress of the arbitration and where the Commission is advised that the board has failed to render a decision within the time set out in subsection 16 (1) or within the time extended under subsection 16 (2), the Commission may, after consulting the parties and the board, issue whatever order it considers necessary in the circumstances to ensure that a decision will be rendered within a reasonable time.
Decision
(15) The decision of a majority of the members of a board of mediation-arbitration is the decision of the board of mediation-arbitration, but, if there is no majority, the decision of the chair is the decision of the board of mediation-arbitration.
Powers
(16) The chair and the other members of a board of mediation-arbitration established under this Act have, respectively, all the powers of a chair and the members of a board of arbitration under the Labour Relations Act, 1995.
Appointment and proceedings of board of mediation-arbitration
(17) Where a board of mediation-arbitration has been appointed, it shall be presumed conclusively that the board of mediation-arbitration has been established in accordance with this Act and no application shall be made, taken or heard for judicial review or to question the establishment of the board of mediation-arbitration or the appointment of the member or members, or to review, prohibit or restrain any of its proceedings.
Same
(18) If the parties execute a new collective agreement before a board of mediation-arbitration is appointed under this Part, no board of mediation-arbitration shall be appointed.
Pre-existing mediation-arbitration proceedings
12. If a board of mediation-arbitration 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 its proceedings as if it had been appointed under this Part as a board of mediation-arbitration when this Part came into force.
No outside appointment
13. 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
14. Each party shall pay one-half of the fees and expenses of the board of mediation-arbitration.
Jurisdiction
15. (1) The board of mediation-arbitration has the exclusive jurisdiction to determine all matters that it considers necessary to conclude a new collective agreement relating to the bargaining unit.
Same
(2) The board of mediation-arbitration remains seized of and may deal with all matters within its jurisdiction until the new collective agreement between the parties is in force.
Mediation
(3) The board of mediation-arbitration may try to assist the parties to settle any matter that it considers necessary to conclude the new collective agreement.
Where matters agreed between the parties
(4) As soon as possible after the board of mediation-arbitration is appointed, but in any event no later than seven days after the appointment, the parties shall notify the board of mediation-arbitration in writing as to the matters on which they reached agreement before the appointment of the board of mediation-arbitration.
Same
(5) The parties may at any time notify the board of mediation-arbitration in writing as to matters on which they reach agreement after the appointment of the board of mediation-arbitration.
Same
(6) The board of mediation-arbitration shall not give effect in the award to an agreement of which notice is given under subsection (4) or (5) unless the board of mediation-arbitration is satisfied that he or she can do so without contravening subsection 18 (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 board of mediation-arbitration and the mediation-arbitration proceedings are terminated when the collective agreement comes into force.
Time limits
16. (1) Subject to subsection 15 (8), the board of mediation-arbitration 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 Commission may extend a time period specified in subsection (1) before or after the expiry of the period.
Procedure
17. (1) The board of mediation-arbitration 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 board of mediation-arbitration and to its 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
18. (1) The board of mediation-arbitration 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 board of mediation-arbitration shall not make an award that would interfere with such determinations.
Term of new collective agreement
(3) 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
(4) In making the award, the board of mediation-arbitration 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
(5) In the event of a conflict between section 9 and a provision in the award that is permitted by subsection (4), the provision in the award prevails.
Effect of award
19. (1) Subject to subsection (2), the award of the board of mediation-arbitration 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 15 (6) and 18 (1).
Same
(3) The standard of review in an application under subsection (2) shall be correctness.
Execution of agreement
20. (1) Within seven days after the board of mediation-arbitration makes the award, the parties shall prepare and execute documents giving effect to the award and those documents constitute the new collective agreement between the bargaining agent and the board relating to the bargaining unit.
Same
(2) The board of mediation-arbitration may extend the period specified in subsection (1), but the extended period shall end no later than 30 days after the board of mediation-arbitration makes the award.
Preparation by board of mediation-arbitration
(3) If the parties do not prepare and execute the documents as required under subsections (1) and (2), the board of mediation-arbitration 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 board of mediation-arbitration 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
COMMENCEMENT AND SHORT TITLE
Commencement
21. This Act comes into force on the day after the day this Act receives Royal Assent.
Short title
22. The short title of this Act is the Toronto Catholic Elementary Schools Stability and Good Will Promotion Act, 2003.
EXPLANATORY NOTE
Part I of the Bill ends the lock-out of elementary teachers employed by the Toronto Catholic District School Board. It provides for dispute resolution by mediation-arbitration.
Part II of the Bill provides for commencement and short title.