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October 28, 2013 - Vol. 3 No. 4

Bill 122, School Boards Collective Bargaining Act, 2013

Teachers and Education Workers Do Not Accept Dictate Or Bogus Austerity

Teachers and education workers, parents and students demonstrate outside Windsor West MPP Teresa Piruzza's office
June 1, 2012 marking the first public action against the McGuinty
government's threat to legislate contracts.

Bill 122, School Boards Collective Bargaining Act, 2013
Teachers and Education Workers Do Not Accept Dictate Or Bogus Austerity
New Powers the Government Wants to Give Itself

Affirm the Right to Say No! - Enver Villamizar
Government's Disingenuous Claim About "Clarifying Roles" - Mira Katz

Who Said What
Parties in the Legislature
Trustee and School Board Associations

Bill 122, School Boards Collective Bargaining Act, 2013

Teachers and Education Workers
Do Not Accept Dictate Or Bogus Austerity

On October 22, the Wynne government tabled Bill 122, the School Boards Collective Bargaining Act, 2013. If passed the legislation would impose a system of provincial bargaining on teachers (the employees) and the school boards they work for (the employer). It would also usurp the powers of the school boards and their provincial associations in the process.

Teachers and education workers have always said they are in favour of provincial standards and negotiations which raise the level of education for Ontario's youth and ensure the same quality of education in all regions and parts of Ontario. This necessarily means defending the wages and working conditions of teachers and education workers, which are students' learning conditions.

They have defended their rights in collective bargaining with school boards and in provincial discussion tables with the government, to say No! to measures that will lower the quality of education for their students. This legal ability to say No! whether at the local or provincial level is what the Liberals and PCs have been trying to get around with threats, blackmail and dictate. Now they hope to put in place a new labour relations regime in education within which they will not have to resort to such overtly dictatorial measures to impose austerity. They desperately need a way to make it appear that the people have a say in negotiations, while in practice they deny them the right to say No! to austerity.

Teachers and education workers as well as students have shown that they will not accept dictate to impose anti-social austerity arrangements in education. They are located in cities, towns and villages across the province and have become a force against neo-liberal austerity and dictate. The last year of the fight against Bill 115 and prior to that, the fight against the government's dictate at the Provincial Discussion Table has shown that teachers and education workers, not the government which is doing the opposite, are defending the public interest, and putting students first. They have the broad support of other working people and the public.

As a result of the resistance of teachers and education workers to Bill 115, the public can clearly see that the government insists on austerity when it comes to workers so it can hand out hundreds of millions to private companies who extort the public purse for every penny they can. Austerity is a fraud to pay the rich and has nothing to do with defending the public interest.

This is the problem the government is trying to address with its new legislation. The government does not have the legitimacy to impose austerity measures, but it is hell bent on doing so.

Ontario Political Forum is confident that as teachers and education workers build a broad discussion on the legislation and its aims, they will affirm their rights. By sticking to their own experience over the last year and more, and the experience of other workers across the country who are also facing similar arrangements, they can make headway in sorting out what's what. Involving trustees and school board officials in this discussion will be significant as their role in society and mandate as locally elected officials is also being usurped.

Establishing organizations in the schools and community where teachers, education workers and the public can politicize themselves and keep up with the speed of developments will be important so that they can defend and modernize their local unions as defence organizations under these conditions.

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New Powers the Government Wants to Give Itself

As teachers and education workers study and discuss Bill 122 in their school districts, they should note that its main feature is that it systematically transfers power away from unions and local Boards of Education to the Crown, amending eight other Acts, including the Education Act and Ontario Labour Relations Act to do so.

Bill 122 replaces the voluntary arrangement for provincial negotiations, making it mandatory for elementary and secondary school teachers and designating their four provincial unions -- the Elementary Teachers' Federation of Ontario (ETFO), Ontario Secondary School Teachers' Federation (OSSTF), Ontario English Catholic Teachers' Association (OECTA) and Association des enseignantes et des enseignants franco-ontariens (AEFO) -- as the parties able to act on teachers' behalf at a central table. School boards are to be represented by their respective provincial trustee associations, which the government has designated as the employer bargaining agencies in any central bargaining. While not mandatory, the government can, through regulation, also establish central tables for support staff groups.

The bill also prescribes who can and cannot participate in ratifying central and local terms, notably prohibiting any parties at the local table from ratifying central issues -- suggesting union members would not be able to vote on central terms as local bargaining units or districts.  This was tested when members of OSSTF and ETFO voted provincially rather than by district or local to ratify their respective Memoranda of Understanding (MOUs) with the government, modifying the terms imposed on them using Bill 115. A comparable process will be required of school boards represented by provincial trustee associations for purposes of central bargaining.

The bill makes clear that where central bargaining takes place, the government is not only "entitled" to participate, but will wield the lion's share of the power. This is codified in Bill 122 by giving the Crown (Minister) the sole ability to:

- designate through regulation the entity that will serve as employer and in some cases, employee bargaining agencies for non-teacher central bargaining, should there be any.

- assign a matter to the central table "if in the opinion of the Minister, the matter could result in a significant impact either on the implementation of provincial education policy or on expenditures for one or more school boards." This is in spite of the bill's provision for the parties to determine through negotiation which matters will be bargained at a central table, and specification that if the parties fail to agree the Labour Board is to decide, following strict guidelines established by the government.

- remove through regulation a trustees' association or council of organizations acting at a central table as the employer bargaining agency if, in the opinion of the Minister, it is "unable or unwilling to exercise its rights and privileges or perform its duties as an employer bargaining agency under this Act."

- replace the removed entity with a Minister-appointed committee with school board representatives sitting on it until central bargaining is completed.

- approve/veto any referral of unresolved central terms to interest arbitration. (already subject under the Education Act to strict guidelines, including school boards' "ability to pay")

- approve/veto any terms ratified at a central table by the other two parties.

- regulate the term of all collective agreements to be anywhere from two to four years. The way the Act reads there is nothing to prevent the Minister from ordering an agreement opened up before its term of operation expires and forcing the parties to "negotiate" a new agreement with a new expiry date to fit within new government parameters -- or alternatively, for a government to simply dictate harsher austerity measures -- to deal with "exceptional circumstances."

- approve/veto any changes to central terms that a union and employer bargaining agency agree to make while a collective agreement is in force.

- require or authorize by regulation a much longer period of time than provided for in the Labour Relations Act for a union or employer to commence negotiations for the renewal of a collective agreement in advance of its expiry (up to 270 days, compared to a 90 days in the Act.) Persumably this would be used to give boards and unions lots of time to implement austerity at the bargaining table.

The Bill specifically increases the government's authority to control what school boards and their provincial associations are able to do under the Labour Relations Act by requiring an employer bargaining agency at a central table to obtain Ministerial approval before it can, or conversely if the government wants it to, require that it:

- authorize or require school boards to lock out any employees. The same approval is required by local boards before they can lock out any of their employees.

- request the Labour Board to order a vote of all employees on a final offer rejected by the provincial union/council of unions acting on their behalf at a central table.

To access Bill 122 in its entirety click here

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Affirm the Right to Say No!

Some are correctly pointing out that provincial legislation dictating provincial negotiation shows what the government means when it says it respects collective bargaining.

Bill 122 is not based on a modern definition of equilibrium in labour relations that recognizes and affirms the rights of workers. It is based on the neo-liberal assumption that workers are a cost and that their organized resistance must be "restrained" in order to implement austerity. Meanwhile the right of the moneylenders to get paid must be backed up by the full prerogative power of the Crown and its institutions.

Governments across Canada, following the lead of the Harper government, are putting in place new arrangements in labour relations based on these assumptions and are being opposed at every turn. The duty of governments is to uphold public right. This necessarily requires providing the rights of working people to wages and working conditions commensurate with the job they perform with a guarantee. This, in turn, requires the full recognition of a process that permits the working people and their defence organizations to exercise their will freely, not in a coerced, restricted manner between false choices. Instead of doing its duty, the Ontario Government is taking measures which will lead to the criminalization of workers' defence organizations by limiting their legal ability to say No! through strike actions, participation in politics and other measures. 

The same day that the Wynne government tabled Bill 122, the Harper government tabled its omnibus budget Bill C-4 in which it is seeking to give itself the power to arbitrarily decide what constitutes an essential service in the public sector. On this basis it seeks to completely eliminate the right of public sector workers to legally say No! to unnacceptable attacks on the services they provide as well as their rights as workers.

The Wynne government is carefully trying not to come directly up against the public will which is to affirm workers' rights. It is claiming it respects collective bargaining and negotiation, but just wants to "clarify roles." The PCs are egging on the government to not be so timid and to "make the tough decisions." This would no doubt include measures declaring teachers and education workers an essential service in the future, when push comes to shove, à la Harper. The PCs may support the legislation because they also want the arbitrary powers enshrined in it so that if they pull off an electoral coup, they can wield them.

Wynne responds that she can get buy-in and have public sector workers make the tough decisions themselves. This is what Wynne is trying to prepare conditions for -- getting teachers and education workers and trustees to accept that their job is to implement the austerity agenda in education at the bargaining table, and that it is a matter of making "tough choices." This is what the Wynne government means when it says it respects collective bargaining but everyone has to be "accountable." So long as a union accepts the austerity parameters, the government will bargain. If it doesn't, then harsher measures will be required.

Without the Liberals and PCs reversing their direction of attacking social programs to pay the rich, teachers and education workers can have no illusions that the legislation will somehow guarantee their rights, in a situation where the government is giving itself more arbitrary power. In this context, affirming their rights under the new circumstances will be the most important thing.

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Government's Disingenuous Claim
About "Clarifying Roles"

The government claims that Bill 122 is aimed at "clarifying the roles" of various parties -- the unions, provincially and locally, the school boards, provincial trustee associations and the government. However, what lies behind this clarification is the codification of Ministerial power.

The legislation gives the Minister arbitrary power over school boards and their provincial associations that did not previously exist in law. It also gives the Minister the arbitrary power to decide what matters must be negotiated centrally. In essence this means that if necessary, the Minister will usurp the power of local school boards and unions to decide what and how they negotiate. Any matter the Minister did not want a school board to have the authority to negotiate could be declared a matter for the central table. Given the broad definition of what would make a matter "central," the result is that arbitrary power is concentrated in the Minister's hands.

At the time of its introduction, Minister of Education Liz Sandals said the legislation's aim was to establish "a clear framework for collective bargaining in the education sector by creating a two-tier collective bargaining process with legally defined roles for the province, trustee associations, school boards, teachers' federations and support staff unions."

The roles of the provincial unions, school boards, trustee associations and government are already clearly defined. The school boards are the employer and the unions represent the employees. The government is responsible for setting provincial curriculum, ensuring provincial standards and spending public funds. It has done so up until now. What is the new reality the government wants to deal with? The problem for the government is that this arrangement does not permit it to directly impose austerity as is being demanded by people like former TD Bank chief economist Don Drummond.

Bill 115 was an attempt at imposing austerity for up to three years, presented as a temporary exceptional measure. However as a result of the resistance of teachers, education workers, students and the general public to this legislated dictate, this weapon had to be withdrawn, but not before it was used to impose contracts stealing over $1 billion from Kindergarten to Grade 12 (K-12) education.

Who Gets to Decide and Why?

While it presents the new arrangement as tripartite -- unions, government and school boards -- and not dictate, in fact the government is legislating direct control over what boards can and cannot do, thus creating a new arrangement under which the unions are negotiating with the government, rather than with the boards. In this arrangement the government is giving itself the power to set the parameters for bargaining, while holding in its back pocket the power to dictate new arrangements when the workers resist, all in the name of "ensuring stability in the schools."

The government gives the impression that Bill 122 is merely about codifying what can be negotiated at what level and by whom. However negotiation implies that both sides have a veto. In this legislation, when there is a dispute it is generally the Minister who has the power to resolve it. That is the Minister can dictate it using regulations, or order it referred to arbitration, with the factors an arbitrator can take into account for arriving at a decision limited by criteria like school boards' "ability to pay."

When it comes to how approval or rejection of an agreement on central terms would take place, the Minister has to approve any agreement arrived at by trustee associations and provincial unions. When it comes to the unions, how ratification will take place is not spelled out. This makes it appear as if it is up to "the union." However it is spelled out that parties to local talks shall not ratify an agreement at the central talks. This statement, although not defined, signals that the government is seeking to finally eliminate the ability of a local, district or bargaining unit of a union to operate effectively as an collective in defence of its rights.

The Right to Strike

The government has not stated anywhere in the legislation or publically that it will not impose contracts as it did using Bill 115. However, it has been forced to go to great lengths to say it respects collective bargaining and has peserved the right of unions to strike. Respecting is one thing, affirming it in practice is another. One big issue the Liberals and PCs needed to sort out in order to wage their next round of attacks on public education was to remove the ability of teachers and education workers to use their voluntary and extra-curricular activities as a measure to protest government dictate. This measure was effective in the fight against Bill 115 as it made the government attack on teachers and education workers an issue that could not be ignored.

In this legislation the government has not changed any measures in terms of the right to strike. However, when the Labour Board ruled that the coordinated withdrawal of voluntary and extra-curricular activities constitutes a strike within the meaning of the Education Act, it set a precedent that the government will now use when teachers and education workers resist government dictate locally or province-wide.

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Who Said What

Parties in the Legislature

Education Minister Liz Sandals and Opposition Education critics spoke in the Legislature on October 22 when Bill 122 was tabled:

Minister of Education, Liz Sandals stated:

"If passed, the School Boards Collective Bargaining Act would be a unique, made-in-Ontario approach to collective bargaining in the education sector, with clear and accountable roles for government, trustee associations, school boards and employee groups. [...]

"The previous process only included the local school boards as employers and federations or unions as employee representatives, without a prescribed role for government as the funder. There was also no legal status for the trustee associations to provide central representation for the school boards. We think that needs to change to better reflect current realities. The government does have a vested interest in the outcome of negotiations and requires a formal role at the central table. [...]

"This made-in-Ontario approach to collective bargaining was developed through extensive consultations with our education partners. We listened to their feedback. We used their input to draft a bill that respects and reflects their interests. [...]

"It is so important to have the provisions of the School Boards Collective Bargaining Act in place before the next round of negotiations. Current contracts in the education sector expire in August 2014, meaning the collective bargaining process will need to begin in the new year. We also know that next round won't be easy, as many of the fiscal realities from the previous round of negotiations remain, and I think all our partners, many of whom are in the gallery, understand that getting a new bill won't create easy negotiations -- they will simply give us clear rules. But it is critical that we have this process in place that encourages discussion, promotes innovative ideas and ensures every partner has a clear role to play.

PC Education Critic, Rob Leone (Cambridge) stated :

"I know I don't have a whole lot of time because I'm going to share this response with my colleague from Prince Edward-Hastings, but I do want to say that we've been here for nine and a half months with this government. We've cleared the decks for the last month with a programming motion. We've been waiting to see what kind of jobs plan this government is going to put forth, and we've failed to see that. Again, we have another piece of legislation that has been introduced that does not talk about how we're going to kick-start private sector job growth.

"Having said that, I think that this is a bill that has a capacity to encourage some debate in the sector. It outlines a particular role with respect to how collective bargaining should be rolled out. We will be carefully examining this bill and talking to the stakeholders in this sector.

"I do want to state, though, that one of the stakeholders and one of the partners in education that we should be consulting on an ongoing basis, that I think has not been really readily understood within this piece of legislation nor the minister's remarks -- are the partners that are our parents and students and what they say their priorities are with respect to the education sector. I'd be interested to talk to them to see what they're suggesting. I know, from our first foray into the education sector, they're certainly concerned about the fact that we're spending $8 billion a year more in education while we have close to 300,000 fewer students. In the meantime, test scores have flatlined and some areas have declined.

"We want to actually understand whether we're investing money in the right places in the education sector. I'm not sure this bill is going to get us any further down the line in terms of understanding what our priorities are, but those are certainly ones that we want to put forward."

NDP Education Critic, Peter Tabuns (Toronto-Danforth) stated:

"This province and all concerned with education went through a searing experience with Bill 115 last year. This bill will not prevent a repetition of that experience, and that's unfortunate. Bill 115 violated constitutional rights. This bill will not provide more protection than the Constitution.

"That's one issue, and one that has to be kept in mind as we go through our review of what's before us. The other is the issue of funding. The head of the Ontario Public School Boards Association has already warned that cuts to education budgets could lead to conflict with or without this bill.

"Respect for democratic rights embodied in the Constitution and adequate funding are key to making education work. Without those two things, even the best bill -- and I make no judgment at the moment -- can't prevent further conflict.

"This province deserves a high-quality education system. The people in that system -- the students, the people providing the education and the support, the leadership and the trustees who provide political guidance -- all deserve a framework within which they can do what they have to do: build Ontario's next generation.

"Speaker, I'm looking forward to this debate, but I will make it clear in the course of this debate that Bill 115 could not have been prevented by this bill. Other things have to be uppermost in our minds if we want to ensure we don't go through that kind of conflict again."


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Ontario Secondary School Teacher's Federation (OSSTF)

Writing on October 24, OSSTF President Paul Elliott stated:

"The School Boards Collective Bargaining Act, 2013 meets a number of the guiding principles developed by the Future Bargaining Structure Work Group and endorsed by OSSTF/FEESO Provincial Council at its April 25-26, 2013 meeting. [...] Upon initial review, this Bill will create a two-tiered bargaining structure where there will be a central table at the provincial level, while maintaining the local level of bargaining between OSSTF/FEESO bargaining units and their employers, the school boards. In addition, our right to strike is preserved under the Ontario Labour Relations Act, along with all other labour rights that are of vital importance to our members.

"We will continue to work with the other affiliates and CUPE to analyze the legislation and, through the legislative process, provide further input to strengthen our rights in the collective bargaining process.

"If committee hearings are scheduled, OSSTF/FEESO will be making a presentation and submitting a written brief."

Elementary Teachers' Federation of Ontario (ETFO)

In a message sent over Twitter on the weekend, President Sam Hammond said ETFO was conducting a legal and internal review of the Bill and would have something out early in the coming week.

No public statements or comments have been made by AEFO, representing the province's French language teachers, or CUPE which represents 45,000 school board support staff, as of publication.

Ontario English Catholic Teachers' Association (OECTA)

On October 22, OECTA President James Ryan wrote:

"OECTA welcomes a clear, well-defined bargaining process, agreed upon by all parties -- including school boards, teachers and the government -- who understand their roles and how the process will work. Since 2003, the government has introduced Provincial Discussion Tables (PDT) to facilitate bargaining. However, each Minister of Education took a slightly different approach to negotiations, resulting in uncertainty and varying levels of satisfaction with the PDT and outcomes in each bargaining round.

"In the 2012 provincial budget, the government made it clear that a more centralized approach to collective bargaining for the broader public sector would be sought. As part of the agreement OECTA signed in July 2012 with the government, OECTA agreed to participate in consultations on the development of this new legislation. It was important to be involved in, and contribute to, any process that could profoundly affect our Association and our members.

"Since July 2012, OECTA has provided input on the development of the legislation through the consultation process that occurred. In particular, OECTA recommended:
- provisions for both local and provincial level bargaining, including the right to strike;
- equity of transparency and access to information among all parties; and
- a genuine negotiation where all parties are on equal footing.

"With today's announcement, OECTA will be reviewing the legislation in more detail. Through the legislative process we will engage in opportunities to provide further input where necessary."

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Trustee and School Board Associations

Ontario Public School Boards Association

In response to the tabling of Bill 122, OPSBA issued the following statement:

"This legislation is the result of months of consultation with the education sector and its stakeholders. OPSBA has been a key contributor to these consultations and advocated strenuously for an effective leading role for school boards in future negotiations. We are extremely pleased to see that OPSBA has been named in this legislation. A key OPSBA priority for more than five years has been to secure a legislated, fair structure and process for effective provincial bargaining. Our goal in this regard is to bring stability to the entire education sector. The introduction of the bill is the first step in seeing this become a reality. OPSBA will continue to follow the bill as it moves through the legislative process and will provide regular updates."

No other trustee associations had released public statements as of publication


Toronto Sun columnist Sue-Ann Levy gave the position that the legislation is a surrender to teachers and said making them an essential service was the way to go. On October 23 she wrote:

"The new School Boards Collective Bargaining Act, which Sandals tabled Tuesday, makes an absolute mockery of the idea of reform.

"The legislation guarantees that teachers unions will continue to call the shots in Premier Kathleen Wynne's Ontario.

"It does nothing to prevent the next round of collective bargaining with teachers unions -- slated for next year -- from being a repeat of the last school year in Ontario, when dissatisfied teachers cut after-school activities and extra help and, in far too many cases, brought their militancy into the classroom.

"In fact, this legislation does quite the opposite.

"Wynne and Sandals, had they had the concerns of taxpayers and not their own self-interests in mind, could have seized on the opportunity to make teachers an essential service -- and to ban their right to strike."

In an October 22 article in the National Post titled "The Ontario Liberals Signal the Start of a Quiet Surrender to the Teacher's Unions," Scott Stinson also considers the legislation a surrender to teachers, and invokes the bogeyman of the deficit to demand the Wynne government "get tough" like its predecessor the McGuinty government. He writes: "Ontario's Education Minister didn't exactly dictate terms for the Liberal government's surrender to teachers unions on Tuesday, but she announced the process through which the province will eventually lay down its arms. [...]

"But what matters here, for a province that is wrestling with an annual deficit that is still forecast to climb next year, five years after the depths of the recession, is whether the Liberals under Kathleen Wynne have any interest in continuing the public-sector austerity measures that Dalton McGuinty belatedly decided were necessary in the dying days of his time in the Premier's office. All indications are that they do not. [...]

"One assumes the teachers unions, which picketed the Liberal convention that elected Ms. Wynne party leader last year, are looking forward to the next round of negotiations, and why not? They have already won."

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