Effect given to the recommendations of the committee and the Governing Body - REPORT_NO311, November 1998

Effect given to the recommendations of the Committee and the Governing Body

1. 28. At its June 1998 meeting (see 310th Report, paras 134-184), the Committee examined this case concerning amendments to the Public Schools Act of Manitoba. The Committee urged the Government to take steps to have the amendments that circumscribe the jurisdiction of the interest arbitrators repealed, and to keep it informed in this regard. In a communication of 22 September 1998, the Government informs the Committee that section 129(3) and (4), which were referred to in the complaint, were amended during the committee stage of the legislative process, after consultation with and representations from various stakeholders and the general public. Pursuant to the amendments, "ability to pay" is now one of a number of factors that shall be considered by the arbitrator, rather than being the primary basis of his or her decision. The Government highlights the influence of the consultation process in this regard, and states that the amendments to the Public Schools Act came only after two major public consultations
   • -- one in 1992 and the other in 1996. During the consultations in 1996, the Teacher Collective Bargaining and Compensation Review Committee held 11 public meetings at seven locations around the province. Over 2,000 people attended, 190 people made oral presentations, and 484 written submissions were received. The Committee held a special meeting to hear submissions from the various interested educational associations and stakeholder groups, and the public had the opportunity to make submissions to the legislative committee. Fifty-seven presentations were made to the legislative committee, including by representatives of teachers' associations, school boards and the Manitoba Teachers' Society. Furthermore, the Government states that prior to convening the Teacher Collective Bargaining and Compensation Review Committee, the Government invited the Manitoba Teachers' Society and the Manitoba Association of School Trustees to enter into discussions concerning what changes to the collective bargaining process might be appropriate. The Committee takes note of this information.
2. 29. The Government contends that the amendments pursuant to the Public Schools Amendment Act, 1996, do not deny the right of teachers to bargain collectively or interfere with the independence of the arbitration process. The Government contests in particular the Committee's conclusion that issues such as the selection, appointment, assignment and transfer of teachers and principals, the method for evaluating the performance of teachers and principals, and the scheduling of recesses and the midday break are clearly related to conditions of employment. According to the Government, while it may be possible to so characterize these issues in a traditional workplace, the education system is not such a workplace. It states that these matters are all important areas having pedagogical impact. In addition, the Government states that there is nothing in the legislation restricting the ability of school boards and teachers' associations from negotiating these matters through the collective bargaining process. The Government, repeating what it had said in its earlier reply, notes that the legislation requires school divisions and districts to act reasonably, fairly and in good faith in administering policies relating to matters that have been statutorily excluded from arbitration. The Government states that since a breach of this duty is subject to arbitration, the divisions and districts do not have an absolute right to act unilaterally. The Government concludes that the changes requested by the Committee "are currently not warranted given the experience with the legislation to date".
3. 30. The Committee regrets the Government's decision not to take steps to have the amendments repealed that circumscribe the jurisdiction of the interest arbitrators. The Committee again recalls that the right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom they represent (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 782). The Committee has always been conscious of the need to take into consideration the specificity of the education system when considering the scope of collective bargaining in that sector. Regarding the Government's assertion that the school boards and teachers' association are able to bargain collectively concerning the matters excluded from arbitration, the Committee repeats its earlier conclusion
   • in this case that "where workers' organizations are not permitted to resort to any means of pressure to promote and defend their position in collective bargaining, effective collective bargaining may be inhibited" (see 310th Report, para. 176). The provisions imposing an obligation on the school divisions and districts to act in good faith concerning the excluded subjects, cannot be considered as tantamount to collective bargaining, and it is not the type of compensatory measure considered by the Committee as adequate in the absence of the right to strike. The Committee recalls that compensatory measures should include adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage (see Digest, para. 547). Considering the particular education system in Manitoba, the Committee again urges the Government to take steps to have the amendments to the Public School Act that circumscribe the jurisdiction of the interest arbitrators repealed and to keep it informed in this regard.