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
Discussion
• Affirm the Right to Say No! -
Enver Villamizar
• Government's Disingenuous Claim About
"Clarifying Roles" - Mira Katz
Who Said What
• Parties in the Legislature
• Unions/Federations
• Trustee and School Board Associations
• Media
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.
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
Discussion
Affirm the Right to Say No!
- Enver
Villamizar -
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.
Government's Disingenuous
Claim
About "Clarifying Roles"
- Mira Katz -
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.
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."
(Hansard)
Unions/Federations
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."
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
Media
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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