Bill 122, the School Boards Collective Bargaining Act, 2013 - An Overview
On October 22, the Minister of Education introduced provincial bargaining legislation in the Ontario Legislature. The legislation, called the School Boards Collective Bargaining Act, 2013, is also referred to as Bill 122.
Teachers first obtained the right to strike in 1975 under the School Boards and Teachers Collective Negotiations Act, or “Bill 100”. Bargaining under this act was conducted exclusively between employer school boards and ETFO locals. In 1997, the Progressive Conservative Harris government restructured school boards and imposed a new, more centralized system of collective bargaining on the teachers' sector through the Education Quality Improvement Act, or Bill 160.
Bill 160 removed the right of school boards to tax and to control their own finances. This meant the provincial government now totally controlled funding for public education. School boards were still the employer, but had no ability to fund their bargaining agreements. These changes adversely affected local bargaining.
Provincial Discussion Table
When the Liberal government was elected in 2003, Gerard Kennedy became Minister of Education. During the 2004 round of negotiations, he recognized there were fundamental structural problems facing education sector bargaining and he established Provincial Discussion Tables (PDTs) to provide a forum for addressing union bargaining priorities within the government’s fiscal framework.
From that point forward, bargaining has been conducted with the government at informal PDTs where ETFO negotiated provincial frameworks on key items. But the Education Act and the Labour Relations Act , which are the legal framework setting out the rules for educators’ bargaining, never supported the bargaining reality of the more centralized PDT model.
During the most recent round of negotiations, the PDT process was a complete failure, resulting in the nightmare of Bill 115. Contracts were imposed on ETFO members and our right to strike was removed, which prompted ETFO to file a Charter challenge to Bill 115. Even though ETFO negotiated a provincial Memorandum of Understanding (MOU) under the hammer of Bill 115 and managed to lessen the impact of that unconstitutional law, many school boards refused to support the terms of the MOU and actively blocked its implementation well into September 2013.
Following Dalton McGuinty's departure as premier, the government recognized that the bargaining process used in 2004, 2008, and 2012 was unsustainable and announced it would be introducing legislation to address the mismatch between the bargaining reality of PDT discussions and education sector labour statutes.
Consultation Regarding a Provincial Bargaining Model
ETFO and other education sector unions were invited to five consultations with the government between June and October to discuss principles related to a provincial bargaining model. During the consultations, ETFO advocated for a collective bargaining process that would be transparent, accountable, effective, and meet the needs of the education sector and education workers. Among other things, ETFO wanted to ensure a bargaining procedure that would:
Bill 122 Highlights
A two-tier system
Bill 122 mandates a system of two-tier bargaining at central and local tables for teacher and occasional teacher bargaining units represented by ETFO. There is also potential central bargaining for DECE, ESP, and PSP locals.
Notice to Bargain and Determining Central Table Issues
Bill 122 would allow the parties to a collective agreement (i.e., ETFO, school boards) to serve notice to bargain up to 270 days before the expiry of the agreement. Once the notice to bargain has been given, the Minister of Education has a period of 35 days to introduce items to a central table unless there is already an agreement on central issues between ETFO and OPSBA. After 45 days from the notice to bargain, where agreement cannot be reached regarding central table items, either ETFO or OPSBA may take the dispute to the Ontario Labour Relations Board (OLRB) for determination.
Central Negotiations Under Bill 122, ETFO is designated as the employee bargaining agency for central negotiations and OPSBA is designated as the employer bargaining agency. The government has a “right to participate” at central tables. The central table is required to negotiate all items falling within the scope of central bargaining. Any item not considered a “central item” is a “local item” for local bargaining.
What constitutes a central item will be negotiated by the parties at the table, and the government. However, the Minister can reserve a matter for central bargaining on the basis that:
There is recourse to resolve certain disputes about central items through interest arbitration at the OLRB, but the OLRB is limited in its decision by criteria that include school boards’ ability to pay and the economic situation in Ontario.
The OLRB process is connected to the central table negotiations. Any strike or lock-out sanctions must involve votes of the entire membership of the parties at the table. Five days’ notice is required for strike or lockout. OPSBA cannot proceed with a lockout without the approval of the government.
Once ratified, the central table issues will be binding on all school boards represented by the employer bargaining agency. In our case, this means that all English public school boards will be required to implement the terms agreed to by the central table process.
Duty To Bargain In Good Faith
The parties to central bargaining and the government must meet within 15 days after determining the scope of central bargaining and must bargain in good faith and make every reasonable effort to agree upon central terms. Locally, the school boards and ETFO have the same obligations to bargain in good faith and make every reasonable effort to agree upon local terms.
As the designated representative of public school boards, OPSBA is required to “cooperate in good faith” with the government in preparing for and conducting central bargaining, but there is no specified remedy for the failure to do so. OPSBA does appear to have an enforceable duty of fair representation towards school boards it has been designated to represent.
ETFO locals and individual school boards will continue to conduct bargaining on local issues based on the Labour Relations Act. Local notice to bargain must be given and bargaining may begin 15 days after the agreement regarding what issues will be dealt with at the central table. Bill 122 specifically excludes the government from participating in local bargaining.
A local agreement does not come into effect until both the central and local agreements have been ratified.
Strike And Lockout
Bill 122 contains no prohibitions on the right to strike either centrally and locally, and no restrictions as to when strikes can take place. The Labour Relations Act applies to strikes.
Role Of Government In Central Negotiations
The Bill gives the government a number of new powers over bargaining and control over employer bargaining agents, but without making the government a full party at the central bargaining table. For instance, the government can participate in bargaining without being bound by the Labour Relations Act prohibitions against unfair labour practices. The government can preclude OPSBA from calling a lockout or altering terms and conditions of employment or from making a final offer vote without its consent, but the government also has the right to “approve” an agreed-upon collective agreement, and can withhold consent for amendments to central terms of the collective agreement.
Terms Of Collective Agreements
Bill 122 allows the government to set the terms of operation of the collective agreement by regulation at two years, three years, or four years.
ETFO’s Concerns About Bill 122
ETFO will continue to analyse this legislation and provide further input to clarify and strengthen collective bargaining rights contained in this proposed legislation through the legislative process. As part of this effort, and in order to speak with one voice about necessary changes, ETFO will be consulting with other education unions to win support for amendments.
The Legislative Schedule For Bill 122
eNewsletter: Bill 122 - An OverviewOctober 30, 2013
On October 22, the Minister of Education introduced provincial bargaining legislation in the Ontario Legislature. The legislation, called the School Boards Collective Bargaining Act, 2013, is also referred to as Bill 122. For more background information, please expand the Bill 122 overview below. Key Features of Bill 122
For more information about the key features of Bill 122, please expand the Bill 122 overview below.
ETFO's Concerns About Bill 122
Bill 122 must pass through a number of additional steps before it is proclaimed as legislation. During that time, ETFO will continue to analyse Bill 122 and provide further input to clarify and strengthen collective bargaining rights contained in this proposed legislation. To read the complete overview about Bill 122, please expand the section below.
eNewsletter: Bill 122 UpdateNovember 22, 2013
What is Bill 122?
The School Boards Collective Bargaining Act, 2013, or Bill 122, was introduced in the Legislature by the government on October 22, 2013. If passed, Bill 122 would establish a formalized process for two-tier -- central and local -- bargaining for teachers and occasional teachers. There would also be the potential for central bargaining for other education professionals, like designated early childhood educators (DECEs), education support personnel (ESPs) and professional support personnel (PSPs). ETFO's October 30, 2013 overview of Bill 122 (see below) provides a summary of its key features, as well as ETFO's concerns about the bill. November 6th Meeting With Minister of Education ETFO's latest meeting with the Minister of Education, Liz Sandals, was on November 6th. At that meeting, ETFO, OSSTF, OECTA, AEFO and CUPE were able to present her with common concerns about Bill 122, as well as with amendments to the legislation. ETFO was able to do this alongside the other teacher affiliates and CUPE as a unified group. ETFO is pleased to working with the other affiliates and CUPE to achieve changes to Bill 122. There are also issues of specific concern to ETFO, like the 270-day notice period for bargaining contained in the legislation. ETFO is independently lobbying for amendments to address our concerns. For example, ETFO has met with the NDP's education critic, Peter Tabuns, to discuss ETFO's concerns about Bill 122 and our proposed amendments. He presented these concerns during the Second Reading debate on the bill. ETFO will continue to work with other unions to put forward and lobby for amendments to the legislation. When Will Bill 122 Become Law? A bill must go through several stages in order to become law. Those stages are: Introduction and First Reading; Second Reading; Third Reading; Royal Assent. Click here for more information about how a bill becomes law in Ontario. Second Reading for Bill 122 began on October 30th. It is currently being debated in the Legislature. There is no predetermined timeline for the passage of bills. The government would like to see Bill 122 proceed as follows:
In a minority government situation, however, the government needs the cooperation of the Opposition parties to pass legislation. The PC caucus has just made it known that it will not cooperate on moving Bill 122 forward until the government responds to its demands to amend or repeal Regulation 274, the teacher hiring regulation. Time will tell whether the PC caucus follows through with its threats or whether the government can negotiate a resolution to the standoff. ETFO will continue to provide updates about Bill 122's progress through the legislative process as new information becomes available.
Bill 122 Legislative Timeline
In a minority government situation, the government cannot determine the specific schedule for legislation without the cooperation of the Opposition parties. To date, neither the NDP nor the Progressive Conservative Party has been willing to support a procedural motion that would set out the specific timelines for Bill 122. The government would like to see the bill reviewed by a legislative committee early in the New Year and a final vote by March break. The progress of the bill is in the hands of the Opposition.First Reading – October 22, 2013Second Reading Vote – December 3, 2013 (Liberal and NDP MPPs voted in favour; PC MPPs voted against.)The bill was referred to the Standing Committee of the Legislature for consideration of amendments. No dates have yet been set for the committee hearings. Third Reading – To be determined (TBD)Royal Assent - TBDThis timeline will be updated as new information comes available.
On Thursday, December 12, the Legislature passed a motion that allows the Standing Committee on the Legislature to sit for three days during the “intersession”, the period between today and when the Legislature reconvenes on February 18. Liberals and NDP MPPS voted in favour of the motion; the PCs voted against.
The Committee will have one day of public hearings and two days of clause-by-clause review. The hearing dates have yet to be confirmed, but the dates will likely be sometime in late January or early February.
ETFO has submitted a formal request to make an oral submission to the Standing Committee when it meets.
We will share more information about this process when it becomes available.
On December 12, 2013, the Legislature passed a motion that allows the Standing Committee on the Legislative Assembly to sit for three days during the “intersession”, the period between the December 12th adjournment date and when the Legislature is scheduled to reconvene on February 18, 2014. Liberals and NDP MPPs voted in favour of the motion; the PCs voted against. The Committee will have one day of public hearings and two days of clause-by-clause review. To date, the MPPs on the subcommittee have been unable to find a common, agreeable date to meet to set the hearing dates. Reports from Queen’s Park indicate that the PC MPPs on the Committee refuse to cooperate. This may mean that the hearings won’t take place until after the Legislature reconvenes on February 18. ETFO has submitted a formal request to make an oral submission to the Standing Committee when it meets.We will share more information about this process when it becomes available.
On Wednesday, February 26, 2014, the Standing Committee on the Legislative Assembly will be holding one day of hearings on Bill 122, the School Boards Collective Bargaining Act, 2013. ETFO will be among those organizations and individuals making a submission on the bill and recommending specific amendments.The committee will reconvene on Wednesday March 5 to begin a clause-by-clause review of the bill and to vote on amendments. All three parties may put forward amendments to the bill.If the committee requires additional time for the clause-by-clause review, it will meet again on Wednesday, March 19.Following this process, the committee will report the bill back to the Legislature as amended for the third and final reading (vote).ETFO’s submission on Bill 122 will be posted on the ETFO website on February 26, the date of the hearings.
ETFO Submission on Bill 122, the School Boards Collective Bargaining Act, 2013
On February 26, 2014, First Vice-President Susan Swackhammer presented the ETFO submission on Bill 122, the School Boards Collective Bargaining Act, 2013, to the Standing Committee on the Legislative Assembly.
The brief acknowledges that a legal framework for provincial bargaining in the education sector has become a practical necessity. The previous informal process for discussions with the government lacked clear rules and responsibilities. The Provincial Discussion Table process was increasingly fraught with problems and ultimately, in 2012, led to impasse between ETFO and the government. With school boards no longer having any ability to raise taxes, the provincial government now has total authority over education funding.
The ETFO brief draws attention to the importance of the provision in Bill 122 that ensures that locals will continue to have the right to negotiate local contract terms and have the right to strike. The brief identifies amendments designed to ensure that the proposed provincial bargaining framework is balanced and fair and works in the best interest of public education in the province.
To read a copy of the ETFO submission, click here: PDF | RTF
ETFO Proposes Amendments to Bill 122 to Ensure a Balanced and Fair Bargaining Process February 26, 2014 The Elementary Teachers’ Federation of Ontario (ETFO) tabled amendments today to Bill 122 designed to ensure the Ontario government’s proposed bargaining framework is balanced, fair, and works in the best interest of public education. “The bill gives the government extraordinary authority in terms of a new central bargaining process,” said ETFO first vice-president Susan Swackhammer in a presentation to the Standing Committee on the Legislative Assembly. “It is vitally important that decisions related to what items get discussed at the central table, the duration of the collective agreement, and any revisions to central table items are agreed to by all parties – the employee bargaining agents, school board representatives, and the government. Otherwise the whole concept of free collective bargaining is undermined.” ETFO noted that Bill 122 gives the Minister of Education the authority to establish a notice to bargain period of up to 270 days. Swackhammer said that such a long period would only lead to unnecessarily protracted negotiations, and that ETFO recommends the notice period be within the last 180 days of the collective agreement. In its presentation, ETFO noted that Bill 122 represents an important step forward from the lack of clear rules and responsibilities that characterized the previous rounds of informal provincial discussions between the government and education unions. Another key aspect of the bill is that it protects local bargaining and the right to strike at both provincial and local levels.
The Elementary Teachers’ Federation of Ontario represents 76,000 elementary public school teachers and education professionals across the province and is the largest teacher federation in Canada.
Clause-by-clause Review and Consideration of Amendments March 11, 2014 Following the February 26th hearings on Bill 122, the School Boards Collective Bargaining Act, 2013, the bill was scheduled for clause-by-clause review and consideration of amendments on March 5th and March 19th.The amendment process is very important. Both the government and the NDP have prepared amendments that address ETFO’s main concerns with the bill.On March 5th, the Standing Committee on the Legislative Assembly met but did not begin the clause-by-clause process. The PC MPPs on the committee used the time to filibuster. They moved motions that, if passed, would require the committee to hold additional public hearings. They continued that process until the time for the meeting expired. All the PC motions were defeated by the Liberal and NDP MPPs on the committee. The government attempted to arrange for additional committee meetings during March Break, but the PC MPPs refused to attend. The committee is scheduled to meet on March 19, ostensibly to commence the clause-by-clause process. If the PC caucus is successful in preventing the standing committee from doing its work, the government may move the amendment process to committee of the whole of the Legislature. Once the amendment process is complete, the bill will come to the Legislature for Third (final) Reading.
Tories Continue to Delay Bill 122 Amendment Process March 20, 2014 The Standing Committee on the Legislative Assembly held its second day of “clause-by-clause” review on March 19th.As was the case with the previous meeting, March 5th, the PC MPPs on the committee used the three hours allocated to filibuster and debate motions that were consistently defeated by the Liberal and NDP committee members.To date, no amendments have been adopted by the committee.The PCs are using the filibuster to draw attention to their campaign to have extracurricular activities included in the definition of teachers’ duties. The party has consistently used examples of teacher work-to-rule actions to misrepresent what takes place during legal strike periods. The party is suggesting that their policies will prevent the future withdrawal of extracurricular activities.The committee is scheduled to meet again on March 26. It is yet to be confirmed whether the committee will continue with Bill 122. The government is considering other options to get the bill processed through the Legislature.
Committee Process for Bill 122 Review Ends and Moves to Third Reading Stage April 3, 2014 Earlier this week, the government introduced a “time allocation” motion that proposed to establish a set schedule for Bill 122, the School Boards Collective Bargaining Act, 2013. The motion was in response to the stalling tactics of the Progressive Conservative Caucus, which was grandstanding over its attempt to have the bill amended to prevent teacher withdrawal of extracurricular activities. The time allocation motion passed, which allowed the Standing Committee on the Legislative Committee to finally get down to the business of reviewing and voting on amendments. The Committee finished that process on April 2 and will report the bill, as amended, to the Legislature for Third Reading and the final vote. The amended version includes both Liberal and NDP amendments that address the concerns of ETFO and other education unions. The changes are designed to make the provincial bargaining framework more balanced and fair. The final hour of debate and the final vote are expected to take place the week of April 7 – 11, 2014.