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Back to School Act (Hamilton-Wentworth District School Board), 2000, S.O. 2000, c. 23 - Bill 145

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EXPLANATORY NOTE

The Bill addresses the labour dispute between the Hamilton-Wentworth District School Board and the Elementary Teachers’ Federation of Ontario.  It requires the termination of any strike or lock-out and provides a mechanism for achieving a new collective agreement.  The Bill also converts all remaining professional activity days into instructional days.

 

chapter 23

An Act to resolve
a labour dispute between the
Elementary Teachers’ Federation
of Ontario and the
Hamilton-Wentworth District
School Board

Assented to November 21, 2000

Preamble

The Elementary Teachers’ Federation of Ontario and the Hamilton-Wentworth District School Board have reached an impasse in bargaining and a labour dispute is underway at the board’s elementary schools.  This disruption is hurting the education of pupils.  Parents of the children affected have asked the Government to ensure that this dispute is resolved without further lost instructional time.

The interests of pupils, parents and the broader community require that the labour dispute cease so that teachers and pupils can return to the schools.  To achieve this, means must be found for the settlement of a collective agreement that meets the requirements set out in the Education Act.

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation and Application

Definitions

1. (1) In this Act,

“bargaining agent” means the Elementary Teachers’ Federation of Ontario;  (“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 Hamilton-Wentworth 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 Hamilton-Wentworth District School Board; (“conseil”)

“Minister” means the Minister of Labour;  (“ministre”)

“new collective agreement” means a collective agreement that,

(a) is executed after this Act comes into force, and

(b) is effective from September 1, 2000;  (“nouvelle convention collective”)

“parties” means the bargaining agent that represents members of the bargaining unit and the board that employs those members; (“parties”)

“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 Act, 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 Act relating to education have the same meaning as in the Education Act, unless the context otherwise requires.

Expressions relating to labour relations

(4) Expressions in this Act relating to labour relations have the same meaning as in the Labour Relations Act, 1995, unless the context otherwise requires.

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 Act comes into force, the board shall terminate any lock-out of members of the bargaining unit that is in effect immediately before this Act 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 Act 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 Act comes into force.

Same

(4) Each member of the bargaining unit,

(a) shall terminate any strike that is in effect immediately before this Act 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 with respect 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 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 Act.

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. (1) Subject to subsections (2), (3) and (5), until the parties execute a new collective agreement with respect to the bargaining unit, the terms and conditions of employment that applied in respect of the members of the unit at noon on October 27, 2000, including any changes made by the board as permitted by section 86 of the Labour Relations Act, 1995 and  communicated to the bargaining agent or the members of the bargaining unit, continue to apply to them.

Exception re salary

(2) Until the parties execute a new collective agreement with respect to the bargaining unit, the salary of a member of the unit shall not be less than the salary that would be determined in accordance with the most recent collective agreement that applied to the member.

Exception re certain benefits

(3) Until the parties execute a new collective agreement with respect to the bargaining unit, benefits specified in subsection (4) of a member of the unit shall not be less than those benefits would have been had they been determined in accordance with the most recent collective agreement that applied to the member.

Same

(4) The following benefits are specified for the purposes of subsection (3):

1. Benefits under a life insurance plan.

2. Benefits under an accidental death plan.

3. Benefits under an extended health plan.

4. Benefits under a dental plan.

5. Benefits under a disability insurance plan.

Compliance with Education Act

(5) Subject to subsections (2) and (3), the board may alter the terms and conditions of employment of members of the bargaining unit to the extent that the board considers it necessary to do so in order to be able to comply with the requirements of the Education Act and the regulations made under it.

Arbitration and Final Offer
Vote Process

Final offer vote process continues

10. (1) Despite the termination of any strike or lock-out by this Act, the final offer vote process under subsection 42 (1) of the Labour Relations Act, 1995 that was begun by the request made by the board on November 17, 2000 shall continue, subject to subsection (2).

Relationship with mediation-arbitration process

(2) If a mediator-arbitrator appointed under this Act makes an award before the parties have executed a new collective agreement, the final offer vote process is terminated.

Same

(3) If the parties execute a new collective agreement before a mediator-arbitrator is appointed under this Act, no mediator-arbitrator shall be appointed.

Mediation and arbitration

11. (1) If the parties have not executed a new collective agreement on or before the seventh day after this Act comes into force, they shall be deemed to have referred to a mediator-arbitrator all matters remaining in dispute between them that may be provided for in a collective agreement.

Appointment of mediator-arbitrator

(2) On or before the seventh day after this Act comes into force, the parties shall jointly appoint the mediator-arbitrator referred to in subsection (1) and shall forthwith notify the Minister of the name and address of the person appointed.

Same

(3) If the parties fail to notify the Minister as subsection (2) requires, the Minister shall forthwith appoint the mediator-arbitrator and notify the parties of the name and address of the person appointed.

Replacement

(4) If the mediator-arbitrator is unable or unwilling to perform his or her duties so as to make the award,

(a) the Minister shall forthwith appoint a new mediator-arbitrator and notify the parties of the name and address of the person appointed; and

(b) the process shall begin anew.

Appointment and proceedings of mediator-arbitrator
not subject to review

(5) Where a person has been appointed as a mediator-arbitrator under this Act, it shall be presumed conclusively that the appointment was properly made under this Act and no application shall be made to question the appointment or to prohibit or restrain any of the mediator-arbitrator’s proceedings.

Pre-existing arbitration proceedings

12. If an arbitrator is appointed to settle matters in dispute between the parties relating to the bargaining unit before this Act comes into force, this Act applies to his or her proceedings as if he or she had been appointed under this Act as a mediator-arbitrator when this Act came into force.

No outside appointment

13. While this Act is in force, the parties shall not appoint an arbitrator, mediator or mediator-arbitrator to settle matters in dispute between them relating to the bargaining unit otherwise than under this Act, 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 mediator-arbitrator.

Jurisdiction

15. (1) The mediator-arbitrator has the exclusive jurisdiction to determine all matters that he or she considers necessary to conclude a new collective agreement.

Same

(2) The mediator-arbitrator remains seized of and may deal with all matters within his or her jurisdiction until the new collective agreement between the parties is in force.

Mediation

(3) The mediator-arbitrator may try to assist the parties to settle any matter that he or she considers necessary to conclude a new collective agreement.

Where matters agreed between the parties

(4) As soon as possible after the mediator-arbitrator is appointed, but in any event no later than seven days after the appointment, the parties shall notify the mediator-arbitrator in writing as to the matters on which they reached agreement before the appointment of the mediator-arbitrator.

Same

(5) The parties may at any time notify the mediator-arbitrator in writing as to matters on which they reach agreement after the appointment of the mediator-arbitrator.

Same

(6) The mediator-arbitrator shall not give effect in the award to an agreement of which notice is given under subsection (4) or (5) unless the mediator-arbitrator is satisfied that he or she can do so without contravening subsection 18 (1).

Award to be comprehensive

(7) An award under this Act 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 with respect to the bargaining unit, they shall so notify the mediator-arbitrator and the mediation-arbitration proceedings are terminated when the collective agreement comes into force.

Time limits

16. (1) Subject to section 10 and subsection 15 (8), the mediator-arbitrator shall,

(a) begin the mediation-arbitration proceedings within 30 days after the appointment; and

(b) make the award within 90 days after the appointment.

Same

(2) The Minister may extend a time period specified in subsection (1), before or after the expiry of the period.

Procedure

17. (1) The mediator-arbitrator shall determine the procedure for the mediation-arbitration but shall permit the parties to present evidence and make submissions.

Same

(2) Clauses 48 (12) (a) to (i) of the Labour Relations Act, 1995 apply, with necessary modifications, to the proceedings before the mediator-arbitrator and to his or her decisions.

Non-application

(3) The Arbitration Act, 1991 and the Statutory Powers Procedure Act do not apply to mediation-arbitration proceedings under this Act.

Constraints re consistency with Education Act
and regulations

18. (1) The mediator-arbitrator shall make an award that,

(a) is consistent with the Education Act, with Ontario Regulation 170/00 (“Student Focused Funding  — Legislative Grants for the School Board 2000-2001 Fiscal Year”) and with the other regulations made under that Act;

(b) permits the board to comply with the legislation 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 education matters for boards to determine under the Education Act and the mediator-arbitrator shall not make an award that would interfere with such determinations.

Statement by mediator-arbitrator

(3) Subsection (4) applies if implementation of the award would result in an increase in either the board’s total or the board’s average-per-teacher compensation costs for members of the bargaining unit.

Same

(4) The mediator-arbitrator shall include in the award a written statement explaining how, in his or her opinion, the board can meet the costs resulting from the award without incurring a deficit while complying with the legislation mentioned in clause (1) (a).

Term of new collective agreement

(5) The new collective agreement that implements the award shall be effective for a period beginning September 1, 2000 and ending August 31 in a later calendar year chosen by the mediator-arbitrator.

Retroactive alteration of terms

(6) In making the award, the mediator-arbitrator may provide for the retroactive alteration of one or more terms and conditions of employment, to one or more dates on or after September 1, 2000.

Conflict with s. 9

(7) In the event of a conflict between section 9 and a provision in the award that is permitted by subsection (6), the provision in the award prevails.

Mediation-arbitration re wages and benefits,
second or subsequent year

19. (1) If the new collective agreement that implements the award deals with a period that is longer than one year, either party is entitled to give a notice under subsection (2).

Notice, 30-day period

(2) During the 30-day period that begins on the day a regulation under the Education Act setting out general legislative grants for boards for one or more fiscal years is published in The Ontario Gazette, either party may give a written notice to the other party and to the Minister to require that wages and benefits for the period to which the regulation applies, subject to subsection (3), be decided by mediation-arbitration in accordance with this Act.

Same

(3) The new mediation-arbitration shall not deal with wages and benefits for a period after the expiry of the collective agreement, even if the regulation deals with a longer period.

No strike or lock-out

(4) Despite subsections (1) and (2), the collective agreement remains in force during its term.

Appointment of mediator-arbitrator

(5) When a notice is given under subsection (2),

(a) the parties may jointly appoint a mediator-arbitrator and notify the Minister of the name and address of the person appointed; or

(b) either party may request that the Minister appoint a mediator-arbitrator, in which case the Minister shall forthwith appoint the mediator-arbitrator and notify the parties of the name and address of the person appointed.

Application of ss. 14 to 18, 20

(6) Sections 14 to 18 and section 20 apply to the new mediation-arbitration with necessary modifications, except that the new mediation-arbitration shall deal only with wages and benefits for the relevant period.

Effect of award

20. (1) Subject to subsection (2), the award of the mediator-arbitrator is final and binding on the parties and the members of the bargaining unit.

Judicial review

(2) Either party may apply for judicial review with respect to whether the award complies with subsections 15 (6) and 18 (1).

Same

(3) The standard of review in an application under subsection (2) shall be correctness.

Execution of agreement

21. (1) Within seven days after the mediator-arbitrator makes the award, the parties shall prepare and execute documents giving effect to the mediator-arbitrator's award and those documents constitute the new collective agreement between the bargaining agent and the board.

Same

(2) The mediator-arbitrator may extend the period specified in subsection (1) but the extended period shall end no later than 30 days after the mediator-arbitrator makes the award.

Preparation by mediator-arbitrator

(3) If the parties do not prepare and execute the documents as required under subsections (1) and (2), the mediator-arbitrator shall prepare and give the necessary documents to the parties for execution.

Failure to execute

(4) If either party fails to execute the documents within seven days after the mediator-arbitrator gives them to the parties, the documents come into force as though they had been executed by the parties and those documents constitute the new collective agreement.

School Year Calendar

Application

22. (1) This section applies to the board’s elementary schools.

Conversion of remaining professional activity days
to instructional days

(2) Any day after November 20, 2000 that is shown as a professional activity day in the school calendar for 2000-2001 adopted by the board under Regulation 304 of the Revised Regulations of Ontario, 1990 (“School Year Calendar”) shall be an instructional day and not a professional activity day.

Conflict

(3) In case of conflict, subsection (2) prevails over anything in a collective agreement or in a mediator-arbitrator’s award under this Act.

Commencement, Repeal
and Short Title

Commencement

23. (1) This Act comes into force on the day following the day on which it receives Royal Assent.

Repeal

(2) This Act is repealed on a day to be named by proclamation of the Lieutenant Governor.

Short title

24. The short title of this Act is the Back to School Act (Hamilton-Wentworth District School Board), 2000.