Interim Report - REPORT_NO316, June 1999

1. 214. The Committee examined the present case during its November 1998 meeting and presented an interim report to the Governing Body (see 311th Report, paras. 170-234, approved by the Governing Body at its 273rd Session (June 1998)).
2. 215. The Government sent additional observations in a communication dated 16 March 1999.
3. 216. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 217. The Committee's previous examination of the case concerned the consequences of the Education Quality Improvement Act, 1997 (Bill 160), adopted on 1 December 1997, which substantially amended the Education Act governing labour relations in the education sector. The Committee's examination of the case focused in particular on the scope of collective bargaining in the education sector pursuant to Bill 160, the exclusion of principals and vice-principals from bargaining units, and the lack of adequate consultation with the parties concerned which should have preceded the adoption of Bill 160.
2. 218. The Committee formulated the following recommendations (see 311th Report, para. 234):
   • (a) The Committee requests the Government, if it considers that subjects such as class size should be determined outside the process of collective bargaining, to ensure that the teachers' unions concerned are fully consulted in this regard.
   • (b) The Committee requests the Government to enable free collective bargaining to take place on the consequences on conditions of employment of decisions on educational policy, and to keep it informed of developments in this regard.
   • (c) The Committee requests the Government to inform it of the outcome of the case before the Ontario Court of Appeal concerning the impossibility for principals and vice-principals to join teachers' unions under the Labour Relations Act, and to forward a copy of the court's decision as soon as it is rendered.
   • (d) The Committee requests the Government to take the necessary measures to ensure that principals and vice-principals have access to machinery and procedures that facilitate collective bargaining and to ensure that these workers enjoy effective protection from anti-union discrimination and employer interference. The Committee further requests the Government to keep it informed in this regard.
   • (e) The Committee requests the Government to ensure in future that consultations in good faith are undertaken regarding any changes in the bargaining structure, in such circumstances that the parties have all the information necessary to make informed proposals and decisions.
   • (f) The Committee requests the Government to consult fully with trade unions and employers' organizations to determine how to strive to promote confidence in the labour relations system of Ontario.
   • (g) In order to facilitate finding solutions to the labour relations difficulties, the Committee suggests to the Government to consider having recourse to the assistance of the International Labour Office, and to keep it informed in this regard.

B. The Government's reply

1. 219. In its communication of 16 March 1999, the Government indicates that the Ontario Court of Appeal is still considering the case concerning the impossibility for principals and vice-principals to join teachers' unions under the Labour Relations Act, 1995 (the main law governing labour relations). The Government states that it will inform the Committee of the court's decision once it has been rendered.
2. 220. With respect to the issue of ensuring that principals and vice-principals have access to machinery and procedures that facilitate collective bargaining, the Government states that since 1 January 1998 three provincial associations of principals and vice-principals have been established, and are recognized by the Ontario Ministry of Education and Training as key stakeholders in the education system. Since September 1998, the Deputy Minister of Education and Training has held two meetings with representatives of these associations. Furthermore these associations are represented on the provincial committees dealing with a variety of education issues. Although these associations are not strictly speaking trade unions their members have concluded voluntary agreements and are actively involved in discussions with employers concerning conditions of their employment.

C. The Committee's conclusions

1. 221. The Committee notes that this case concerns allegations of violations of freedom of association principles as a direct consequence of the adoption in December 1997 of the Education Quality Improvement Act (Bill 160) which amended the Education Act governing labour relations in the education sector. The issues raised concern the scope of collective bargaining under Bill 160, the exclusion of principals and vice-principals from statutory collective bargaining machinery, and the impossibility for them to form and join organizations of their own choosing, as well as the lack of adequate consultation with the parties concerned before the adoption of Bill 160.
2. 222. Concerning the scope of collective bargaining in the education sector, the Committee has accepted that a distinction may be drawn between matters that are essentially or primarily concerned with the management and operation of business which can be regarded as outside the scope of collective bargaining, and matters relating to conditions of employment, which should be subject to collective bargaining. In this regard, the Committee has already noted in the case in question the power invested in the Minister of Education and Training to act unilaterally and in particular to issue executive orders relating to holidays and school calendars (section 7(4) of Bill 160). In addition, Bill 160 imposes upper limits for average class sizes and fixes the amount of instruction time for teachers, calculated as a minimum average for each period of five instructional days during the school year (sections 81 and 82 of Bill 160).
3. 223. The Committee has acknowledged that class size, although a subject that may have a bearing on conditions of employment, it could also be considered as an issue more closely linked to broad educational policy and thus could be excluded from the scope of collective bargaining (see 310th Report, Case No. 1928 (Canada/Manitoba), para. 175). Other matters raised in the present case may also have aspects of broad policy. However, if the Government considers that such subjects should be determined without recourse to collective bargaining, the Committee stresses once again that the Government must ensure that the unions concerned are fully consulted when such broad policy is being formulated. Furthermore, in all cases, free collective bargaining should be allowed to take place on the consequences on conditions of employment of decisions on educational policy. The Committee requests the Government to keep it informed in this regard.
4. 224. As regards school principals and vice-principals, the Committee recalls that the effect of Bill 160 has been to exclude them from the available collective bargaining procedures and from the scope of the Labour Relations Act, 1995, the main labour law. As a result, school boards are under no legal obligation to negotiate with principals and vice-principals concerning their conditions of employment.
5. 225. The Committee takes note of the Government's information to the effect that three provincial associations for principals and vice-principals have been established since 1 January 1998 and that, while these associations are not strictly speaking unions, their members have concluded voluntary agreements and are actively involved in discussions concerning their conditions of employment. In addition, the Committee notes that the case concerning the exclusion of principals and vice-principals from teachers' bargaining units and the impossibility for them to join a teachers' union is still being examined by the Ontario Court of Appeal. The Committee requests the Government to keep it informed of the outcome of the appeal and to provide a copy of the court's decision as soon as it is rendered.
6. 226. The Committee also notes that, since principals and vice-principals are excluded from the scope of the Labour Relations Act, 1995, they are not covered by any provision that would protect them against anti-union discrimination. The Committee is, therefore, bound to recall the importance which it attaches to the need to protect workers from anti-union discrimination and employer interference, and requests the Government to take the necessary measures to ensure that school principals and vice-principals may form and join the organization of their own choosing and that they enjoy effective protection against anti-union discrimination and employer interference. The Committee requests the Government to keep it informed in this regard.
7. 227. Finally, regarding prior consultation which allegedly did not take place before the enactment of Bill 160, the Committee can only reiterate its wish that, when a government seeks to alter the bargaining structure in which it acts actually or indirectly as an employer, such changes should be preceded by adequate consultations whereby all objectives can be discussed by the parties concerned. The Committee, therefore, urges the Government to ensure in future that such consultations are undertaken.