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April 15, 2013 - Vol. 2, No. 32

No to Anti-Worker Schemes! Uphold the Dignity of Labour!

Oppose Turning Political Issues Into
Problems of Law and Order



No to Anti-Worker Schemes! Uphold the Dignity of Labour!
Oppose Turning Political Issues Into Problems of Law and Order
Learning from Recent Experience
Labour Board Rules Organized Withdrawal of Voluntary Activities Strike Action
For Your Information: Order of the Labour Relations Board

Liquor Control Board of Ontario
Workers Firmly Reject Unacceptable Offer

Coming Events
April 28 Day of Mourning for Workers Killed or Injured on the Job


No to Anti-Worker Schemes! Uphold the Dignity of Labour!

Oppose Turning Political Issues Into Problems
of Law and Order

Ontario Political Forum opposes the April 11 ruling of the Ontario Labour Relations Board (OLRB) against the Elementary Teachers' Federation of Ontario, according to which the withdrawal of extracurricular activities by teachers and education workers in "concert or combination" constitutes strike action. Ontario Political Forum finds that this ruling sets a dangerous anti-worker precedent.

Two significant aspects of the ruling are:

1) That a collective agreement does not require the consent of the workers or their union. The ruling explictly states they do not have to be freely negotiated.

2) It establishes that teachers' and education workers' voluntary activities are now subject to the oversight of the state and employer on the basis that they constitute a threat to be dealt with through the courts if they are used to build public opinion to limit government's arbitrary use of power to violate workers' rights with impunity.

With its ruling the Labour Board has raised anarchy to authority. What this means is that all previous arrangements have been abandoned and new ones permit government to violate rights with impunity and then criminalize the victims. It is unacceptable. It also brings dishonour to the Board and condemns the government that has established the conditions for such an anti-worker, anti-human ruling to be made.

The government's usurpation of power is creating an increasingly dangerous situation for the working people. The government's theft of public and private resources is achieved by eliminating the say of workers on any matters which directly involve them, including by stripping their legal rights to organize and defend themselves. The government is doing so in favour of powerful private interests that are working "in combination and in concert" to impose a bogus austerity agenda under whose aegis they can engage in outright robbery of the state treasury. When the working people show en masse that they do not accept this thievery and that they want to be part of discussing how problems pose themselves and how they can be provided with a solution, then the government makes sure they are stripped of their collective representation and rights.  Meanwhile the government plays coy. It pretends that the decisions of the courts of labour boards are arms length and above reproach and that it wants nothing more than to have a stable climate so that everyone can get back to work as if nothing has happened.

A decision on the part of teachers and education workers and all sectors of society to stand up in defence of their rights and the rights of all has never been more important than it is today. The working people cannot permit their collective rights to be decimated under the hoax that it is the law. A right belongs to the holder by virtue of the holder's being. It cannot be given or taken away or forfeited in any way. If governments use their hold on state power to refuse to recognize rights, or declare them illegal, they must be opposed. This is how matters stand in Ontario and Canada at this time. It must be done! It can be done!

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Learning from Recent Experience

The experience of teachers and education workers recently has shown how the Labour Board is being used as an instrument of government dictate to eliminate the say of workers over their wages and working conditions. In the case of its dismissal of a complaint by the Ontario English Catholic Teachers Association bargaining units, the Board ruled that because the scheme involving the provincial government and the provincial leadership of the union was not collective bargaining, Catholic teachers and education workers who had the deal imposed on them were not required to be consulted in the form of a ratification vote. Now the Labour Board is saying that if the government can't get unions to voluntarily accept its anti-social parameters, it can impose them using dictate and then criminalize the victims' use of what power they do have to say No! to voluntary activities. No one can accept that the state should have the power to decide if one's withdrawal of purely voluntary activities is legal or illegal. No one can accept that workers who affirm their rights on an organized basis can be criminalized.

Meanwhile, on April 11, the Labour Board ruled that the Elementary Teachers' Federation of Ontario (ETFO) had counselled its members to engage in an illegal strike. ETFO President Sam Hammond responded to the decision saying that it "reinforces the position of ETFO that individual members have the right to make personal decisions about whether or not to participate in voluntary/extracurricular activities. It also makes clear that school boards cannot compel their employees to perform voluntary services or discipline them for not doing so.

"You can't legislate goodwill. There is no other profession where people are expected to perform hours and hours of voluntary service each week, and then are castigated for making personal decisions to put their principles, their families, and their own welfare first," Hammond added.

If the government wants to provide extracurricular activities to the youth with a guarantee, then it should pay for them because such activities are crucial to the younger generation and its all-rounded upbringing. But to order by law that workers have to perform unpaid labour is an activaty which belongs to a fascist dictatorship and no attempts to prettify it will change that fact. If governments do not want teachers and education workers to withdraw from voluntary extracurricular activities, then the very least it must do is treat them with respect and provide them with working conditions and remuneration commensurate with the jobs they perform. Many pro-social options can be discussed and considered instead of using the courts: 1) stop violating rights and allow teachers and education workers to freely negotiate their wages and working conditions; 2) add professionals to the school system in the areas they want the youth to gain skills outside the classroom such as sports, music, drama or any other areas which can equip them to engage in and contribute to society. The well-being of the younger generation cannot be left to chance or the ability of individual families to pay. To use labour boards or the courts to force teachers and education workers to submit is not an option. The government's hope to end this round of the fight for the rights of teachers and education workers on the basis of hushing up what is being done to them through this Labour Board ruling must not be permitted. Ontario Political Forum will continue to provide information and calls on all Ontario working people to keep themselves informed, discuss with their peers and not permit themselves to be turned into a slave labour force. No Means No! Down with the Fraudulent Austerity Agenda!

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Labour Board Rules that Organized Withdrawal of
Voluntary Activities Constitutes Strike Action

On April 11 the Chair of the Ontario Labour Relations Board, Bernard Fishbein ruled that the Elementary Teachers' Federation of Ontario (ETFO) counselled its members to engage in an illegal strike in the advice it gave them regarding the withdrawal of voluntary and extracurricular activities -- which tens of thousands of them did of their own volition to protest the government's denial of their right to collective bargaining.

A summary of the ruling from the Labour Board states:

"The Board finds the following:

  • "notwithstanding that ETFO, on March 26, 2013 (well after the hearing had concluded), withdrew its "advice" to members not to participate in voluntary/extracurricular activities, there was still a labour relations purpose to issuing this decision -- it was not clearly moot;

  • "although the Government has repealed the Putting Students First Act (Bill 115), the collective agreements imposed by that legislation continue to exist and operate;

  • "the withdrawal in combination or in concert of participation in voluntary co-instructional (or extracurricular) activities as listed in Appendix A and B in paragraph 27 of this decision constitutes a "strike" within the meaning of the Education Act;

  • "no final orders are issued because ETFO's Charter challenge to the definition of strike in the Education Act remains to be litigated -- but a direction to post a Notice to Employees is issued clarifying the stage that this litigation has reached and the position of ETFO (at least up until it withdrew its "advice" to members on March 26, 2013) with respect to the participation of its members in the withdrawal of these activities."

The ruling only applies to the employees of two school boards -- Trillium Lakelands District School Board and Upper Canada District School Board --which brought the complaint forward. However it sets a dangerous anti-worker precedent, one of the intentions of which was alluded to by Fishbein in his ruling: to prevent teachers and education workers across the province from resisting new arrangements which the government is putting in place. These arrangements are to undermine the right of teachers and education workers to have a say over their wages and working conditions in the future, and undermine the authority of locally elected officials. When he summarized the arguments of the two school boards to explain the necessity of the Labour Board ruling that the withdrawal of voluntary activities constitutes a strike, despite the current talks between ETFO and the government, the Chair of the Labour Board wrote:

"The applicants say ETFO has given no undertaking or assurance that its conduct will not be repeated. ETFO has not acknowledged that its conduct was improper or illegal in any way. There is no assurance that there will even be a "deal" reached with the Government -- only that talks are "progressing". There is no assurance that even if a deal is reached, it will be ratified by the ETFO membership. And then what? ETFO's advice will be reissued and the urging of its members to collectively refuse extracurriculars will be reimplemented? And if not on this issue -- on the next about which ETFO and the Government disagree, perhaps about provincial bargaining? [OPF emphasis added]"

Another aspect of the precedent set was through the interpretation by  the Chair of the Labour Board  that by law contracts do not need to be freely negotiated. Responding to ETFO's assertion that because the contracts imposed under Bill 115 were not freely negotiated they were illegitimate and thus its members were in a legal position to strike, the ruling states:

"Essentially ETFO's argument is that the definitions of collective agreement, whether in the LRA or Bill 115, by requiring an agreement in writing between the employer and the union, also required that the agreement be ‘freely negotiated' -- and there are none that were freely negotiated by ETFO (or these applicants for that matter) -- only ones that were imposed under Bill 115. Without wishing to be either simplistic or glib and merely say that the 'agreement in writing' required in the statutory definitions is satisfied by the Order in Council ("OIC") promulgated under section 9 of Bill 115 together with the predecessor collective agreements, and the changes incorporated into them both from the MOU and the regulations -- the essence of ETFO's argument is to graft onto the statutory definitions of collective agreement the words "freely or voluntarily negotiated" -- words that are not there. Leaving aside the metaphysical question of how freely or voluntarily negotiated any collective agreement is in a regime that provides for some binding impasse resolution mechanism (whether the economic sanction of strike or lock-out, or compulsory interest arbitration), this is additional interpretive weight that I do not believe the existing statutory definition of collective agreements can bear, was ever intended to bear, or does in fact bear."

The Chair did not rule on any remedies recognizing that the definition of a "strike" according to the Education Act will be the subject of arguments that it violates the Charter of Rights and Freedoms. The Chair however required that his order be posted for 60 days, together with a copy of the decision, at all of the applicants' schools as well as on the applicants' and ETFO's websites.

The ruling defined the voluntary activities, also known as extracurricular activities, are now to be considered part of the normal functioning of the school boards, which if withdrawn in "coordination or concert" would constitute a "strike."

Government's Response

Education Minister Liz Sandals played coy. As if her government, the actual target of teachers' and education workers' withdrawal of their voluntary activities, was somehow not an interested party in the decision, she said in a statement: "While we will review this decision, our focus remains on our ongoing discussions with ETFO and re-building relationships across the sector to ensure we continue to build on one of the best education systems in the world." The government intervened at the Labour Board when ETFO argued that the contracts imposed on them were illegitimate. It claimed that despite the repeal of Bill 115 the contracts  were legitimate. Now, after having set a law which imposed contracts, making sure the Labour Board can only rule according to that law, the Education Minister pretends that the government  is not involved or concerned.  It is insidious to say the least.

Unions' Response

Responding to the Labour Board decision, ETFO issued a statement in which it said it would abide by the decision: "The OLRB decision confirms, as ETFO had asserted during the hearing, that the union's advice to members about withdrawing voluntary services was not a 'directive'.

"The OLRB's interim decision states that the concerted withdrawal of voluntary services during the term of the collective agreement falls within the definition of strike. However, this is subject to a decision by the OLRB on charter issues related to the definition which is still outstanding.

"This ruling reinforces the position of ETFO that individual members have the right to make personal decisions about whether or not to participate in voluntary/extracurricular activities. It also makes clear that school boards cannot compel their employees to perform voluntary services or discipline them for not doing so," said ETFO President Sam Hammond.

"You can't legislate goodwill. There is no other profession where people are expected to perform hours and hours of voluntary service each week, and then are castigated for making personal decisions to put their principles, their families, and their own welfare first,'"added Hammond.

"ETFO remains committed to working with the government to find meaningful ways to address the current issues facing the education sector and bring peace and stability back to our schools."

The Ontario Secondary School Teachers' Federation (OSSTF) notified its members of the decision in a memo to bargaining unit and district presidents:

"This decision does not provide a final answer on whether the withdrawal in combination or in concert of participation in voluntary (or extracurricular) activities is unlawful. While the decision found that the withdrawal of voluntary co-instructional (or extracurricular) activities constitutes a 'strike' under the Education Act, the OLRB has not yet heard arguments concerning whether a definition of a 'strike' that captures purely voluntary activity violates the Charter of Rights and Freedoms. As the Chair confirmed in his decision: 'Obviously, no final order for relief can be made at this stage because the Charter issues remain outstanding.'

"This preliminary decision may be reconsidered at the Labour Board and judicially reviewed by the Courts."

For the full decision of the Labour Board click here. For background on the Labour Board hearings see Ontario Political Forum, February 5, 2013 - No. 22 , Ontario Political Forum, March 5, 2013 - No. 26.

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For Your Information

Order of the Labour Relations Board

The Labour Relations Act, 1995
NOTICE TO EMPLOYEES
Posted by order of the Ontario Labour Relations Board

The applicants, Trillium Lakelands District School Board and Upper Canada District School Board, have applied to the Ontario Labour Relations Board ("the Board") for declarations that the Elementary Teachers' Federation of Ontario ("ETFO") has called or authorized an unlawful strike contrary to the Labour Relations Act and the Education Act. ETFO has argued that its actions are protected by the Canadian Charter of Rights and Freedoms ("the Charter"). Because (on the agreement of the parties) no decision on the Charter issues has yet issued, no final order can be issued at this point. However, at this point, the Board has determined and declares:

(a) Notwithstanding the repeal of the Putting Students First Act ("Bill 115"), the teacher collective agreements imposed by Bill 115 between ETFO and the applicants continue to exist and be in force;

(b) The withdrawal in combination or in concert of voluntary services and in particular those listed in "Appendix A" and "Appendix B" (set out in paragraph 55 of this decision) falls within the definition of strike contained in the Education Act and given the finding in paragraph (a) that the collective agreements are in force, are untimely and therefore unlawful -- whether that will be affected by any decision on the Charter remains to be seen;

(c) As ETFO made clear in this hearing, the withdrawal of voluntary services passed by the ETFO provincial executive as announced in ETFO's Provincial Takeover Bulletins was not a "Directive" of ETFO within the meaning of ETFO's Constitution and Bylaws and accordingly, no ETFO discipline will be imposed on members whether they participate or not in such withdrawal. Subject to any future order of the Board, it is an individual choice. [OPF emphasis] At this point in time, ETFO has withdrawn its advice to members not to participate in voluntary extracurricular activities.

This is an official notice of the Board and must not be removed or defaced. This notice must remain posted for 60 consecutive days.

DATED this 11th day of April, 2013.

Appendix A and B of the Ruling Defining Activities to be Considered a
Regular Part of the Boards' Functioning

Appendix A

Trillium Lakelands District School Board ("TLDSB")

1. There is a wide variety of organized team sports at TLDSB schools. For years, many teachers, past and present, have volunteered to organize and supervise sports practices and games before and after the instructional day. Team practices usually begin at 3:30 p.m., i.e., after the end of the instructional day. In 38 of TLDSB's 41 elementary schools, students sports teams were organized and supervised by teachers during the 2011-2012 school year on a volunteer basis and this has occurred for at least the past five school years. Teachers are involved in all aspects of these team sports including tryouts, selections, playoffs and tournaments. The successful implementation of these efforts require and are a collaborative effort between the schools and teachers involved.

2. Teachers and students have also participated in a very active chess program at many of its elementary schools. The chess program culminates in a weekend chess tournament that is administered by teachers. This program has taken place outside regular instructional hours for many years. The successful implementation of these efforts require and are a collaborative effort between the schools and teachers involved.

Upper Canada District School Board ("UCDSB")

3. There is at least one inter-school team at each of the elementary schools in UCDSB. This has been a consistent feature of the school experience in our schools for many years. Most schools, through volunteer teachers, have also consistently provided their students with an intramural sports program, which gives students the opportunity to play different sports and active games throughout the school year.

UCDSB has provided its students with intramural and inter-school programs for decades. These intramural sports and inter-school sports programs have been supported by the consistent voluntary participation of UCDSB's elementary teachers. Team practices usually begin after the end of the students' instructional day.

Teachers are involved in all aspects of these team sports including tryouts, selections, playoffs and tournaments. The successful implementation of these efforts require and are a collaborative effort between the schools and teachers involved.

4. For years, there have been many different clubs that are organized and supervised by teachers on a volunteer basis at UCDSB connected to the arts. There are, for example, art clubs organized and supervised by teachers during nutrition breaks or at a time after the instructional day has ended at several of the elementary schools within UCDSB. In the same way, there are bands and/or choirs organized and supervised by teachers at more than one half of UCDSB's elementary schools. Teachers are also active in creating and supervising dramatic arts clubs in several schools throughout UCDSB. The successful implementation of these efforts require and are a collaborative effort between the schools and teachers involved.

5. Teachers do not receive any additional remuneration for participation in any of these activities.

Appendix B

Applicable to both Trillium Lakelands District School Board and Upper Canada District School Board:

Teachers have routinely, at the request of school administration, distributed class, school and school board communications to the parents of students. These communications include newsletters, permission slips for field trips and class outings, enrolment forms and issue-specific communications (for example, regarding H1N1). The distribution of such materials is a common method of communication with the parents of our elementary school students. Depending on the age of the student, the teacher will either place the communication in the student agendas or hand them to the student.

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Liquor Control Board of Ontario

Workers Firmly Reject Unacceptable Offer


London and Toronto, December 10, 2008: LCBO workers demonstrate against plans to casualize their workforce.

Workers employed by the Liquor Control Board of Ontario (LCBO) voted 95 per cent in favour of strike action if necessary following two days of voting. They are represented by the Ontario Public Service Employees Union.

The employer presented to the workers' representatives an unacceptable contract "offer." The contract expired March 31 this year. With it the LCBO wants to reverse the gains achieved in the 2008 round of bargaining. During that bargaining, the workers successfully fought off the LCBO's attempts to run its operations on a casual workforce with lower pay, no guaranteed hours, no job security and no benefits. The offer called for a four year wage freeze, cuts to benefits and no improvements to solve the problems of precarious employment faced by casuals, fixed-term workers or seasonal workers. The LCBO wants to eliminate 270 assistant manager positions. For the first time it proposed to introduce a two-tier wage for new hires and the use of merit over seniority for promotions in the workplace. Merit isolates individuals from the collective and introduces competition amongst workers.

The results were not a surprise given that 3,200 liquor board employees, casuals, seasonals, fixed-term and Permanent Part-time workers (PPT), representing almost half of the membership, participated in two town hall discussions last week where the workers overwhelmingly rejected the regressive measures and urged the bargaining team to demand improvements for the precarious workers.

Denise Davis, Chair of the bargaining team, said that there was a real spirit of solidarity and strength and that one could tell that the members through their questions and comments were heading towards a very strong strike vote.

The workers demanded then that those with precarious employment must have the opportunity to land permanent, full-time work. Between April 2008 and September 2012, the number of casuals increased by 38 per cent, while the number of full-time permanent positions increased by only 6 per cent. There are 3,637 casual workers, 2,734 full-time, 157 part-time and 17 fixed-terms (fluctuate).

Davis says that it is outrageous what the LCBO is taking away and imposing on the workers. They earned $1.6 billion in profit last year, achieved on the backs of casual workers.

The union's demands in the negotiations with the Board are:

- Improvements to Permanent Vacancy Review (PVR) of casual employees to full-time or permanent part-time status. Permanent Vacancy Review is a complex formula. The PVR contract language says that when a casual works a certain number of hours in a calendar year, the employer must create a new full-time position in their workplace. The resulting position then goes to the casual with the most seniority.

- Benefit improvements for casuals, seasonals and permanent part-time employees;

- Improve contract language on shift schedules and call back for casuals, seasonals and permanent part-time employees;

- A general wage increase;

- Reduce stressors, including work overload;

- Set minimum staffing complement, and eliminate working alone in retail outlets;

- More rules and fairness when it comes to scheduling shifts, including the elimination of the overlapping shift clause;

- Introduce compressed work week;

- End divestment, privatization and contracting out of services through agency stores and other means;

- End the practice of supervisors performing bargaining unit work;

- Improve and increase the amount of vision care coverage, including eye exams and laser surgery;

- Improvements to vacation entitlements.

Affirming the value the workers of the LCBO provide to the province and the right of workers to lay claim to this value, Davis said, "We believe these are entirely reasonable demands and affordable for the LCBO. We must never lose sight of the fact that in its last fiscal year the LCBO collected more than $4.3 billion in revenue and returned more than $2.2 billion in dividends and taxes to the provincial treasury. The per-employee profit at the LCBO last year was more than $200,000. Let's be clear: the LCBO can afford our modest contract demands."

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Coming Events

April 28 Day of Mourning for Workers
Killed or Injured on the Job



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