Informe provisional - Informe núm. 311, Noviembre 1998

1. 170. The Canadian Labour Congress (CLC) and the Ontario Secondary School Teachers' Federation (OSSTF) presented a complaint of violations of freedom of association against the Government of Canada (Ontario) in a communication dated 2 February 1998. The complainants forwarded additional information in a communication dated 4 March 1998.
2. 171. In response to the allegations, in a communication dated 22 September 1998, the federal Government transmitted the reply of the Government of the Province of Ontario.
3. 172. 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. The complainants' allegations

1. 173. The complaint concerns legislation governing the education sector in Ontario, namely the Education Quality Improvement Act, 1997 (Bill 160), which substantially amends the Education Act. In their communication of 4 March 1998, the complainants allege that the legislation, combined with the restrictive interpretation that has been given by the Supreme Court of Canada to the constitutional right to freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms, 1982), violates the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); the Labour Relations (Public Service) Convention, 1978 (No. 151); and the Collective Bargaining Convention, 1981 (No. 154). A copy of the legislation and explanatory material was annexed to the complaint. The complainants express concern in particular regarding the decreased scope of collective bargaining due to the legislation, the exclusion of principals and vice-principals from bargaining units, trade unions and from protection against anti-union discrimination and employer interference, and the lack of consultation in the preparation of the legislation.
2. 174. As background, the complainants state that the Ontario Secondary School Teachers' Federation (OSSTF) was founded in 1919, and today represents approximately 34,000 public secondary school teachers, 1,550 of whom are principals and vice-principals. The OSSTF is one of five affiliates of the Ontario Teachers' Federation (OTF).
   • Scope of collective bargaining
3. 175. The complainants allege that Bill 160, which received Royal Assent on 1 December 1997, changes collective bargaining structures and in particular takes out of the collective bargaining process the determination of many aspects of teachers' working conditions by allowing the Government to unilaterally define many of these conditions. Previously, in the absence of legislated limits on collective bargaining, teachers have had the right to negotiate collective agreements with their employing school boards. Pursuant to the School Boards and Teachers Collective Negotiations Act, 1975, local school boards were required to negotiate with branch affiliates representing teachers in relation to any term or condition of employment put forward. This was done in the context of school boards having the right to raise monies locally through taxing residential and commercial property, if required. Thus, terms and conditions affecting teachers' employment have been freely negotiated between the parties directly responsible for the delivery of education for over 20 years. The complainants state that Bill 160 effectively removes those essential rights, since it is now the Minister of Education and Training who decides who can be a teacher, how long during the day teachers will have to work in the classroom or teach pupils, how long they will have to work in the year, what their duties will be, and many other variables. No centralized regulation may be overridden by a locally negotiated collective agreement. Thus, according to the complainants, large portions of existing collective agreements could be rendered meaningless, as district school boards may strip benefits which took years to negotiate and achieve.
4. 176. The complainants point to the major areas of ministerial power which in their view undermine free collective bargaining. Firstly, section 171(2) and (3) of the Education Act are amended by section 82 of Bill 160 to allow a district school board to require teachers to work during some or all of the five working days preceding the start of the school year, and to authorize principals to make determinations respecting the work to be done by teachers during those days. The complainants remark that what work will be performed and how it will be performed will become an issue at the negotiating table, which will place stress upon the collegial approach that most principals have attempted to maintain given their inclusion in the bargaining unit.
5. 177. In addition, section 11(7) of the Education Act is amended by section 7(4) of Bill 160 to permit the Minister of Education and Training to make regulations:
   • (a) prescribing and governing the school year, school terms, school holidays and instructional days;
   • (b) authorizing a district school board to vary one or more school terms, school holidays or instructional days as designated by the regulations;
   • (c) permitting a district school board to designate, and to implement with the prior approval of the Minister, a school year, school terms, school holidays or instructional days for one or more schools under its jurisdiction that are different from those prescribed by the regulations; and
   • (d) respecting the preparation and implementation of school calendars by district school boards.
6. 178. The complainants submit that it is foreseeable that the Minister will utilize these regulatory powers to control every aspect of the teaching day, including the teachers' duties, and that the Minister will now have the complete power to rectify the effects of any legal strike or lockout that may occur. The complainants further submit that the centralization of control is compounded by section 81 of Bill 160, adding section 170.1 to the Education Act, which creates direct ministerial interference in matters which have been collectively bargained for decades. Section 170.1 requires that every district school board shall comply with the class sizes they set down, unless the Minister permits them to exceed those sizes. In addition, section 170.2 has been added requiring every district school board to comply with minimum amounts of time that teachers must be assigned to teach classes or subjects to pupils during the instructional programme on a school day. In the light of these provisions, the complainants conclude that the teachers' workload, and every single minute of their working day, will be controlled through regulations or legislation, leaving little if anything to negotiate; the resulting impact upon staffing provisions will be potentially devastating. Further, the complainants state that when combined with the power of district school boards to control the number of positions of responsibility, one can foresee the Minister adopting regulations impinging upon any negotiated "administrative time" which may have been bargained over the years.
7. 179. The complainants assert that Bill 160 prevents compliance with existing or future collective agreements in the education sector; as a result, the Government is discouraging collective bargaining, destabilizing the labour relations climate by discouraging workers from having an interest in unions, and excluding important aspects of conditions of work from the field of collective bargaining.
   • Exclusion of principals and vice-principals
8. 180. Another aspect of Bill 160 raised by the complainants is the provisions aimed at removing principals and vice-principals from existing teachers' trade unions, and further preventing them from forming associations in any meaningful sense by excluding them from the trade union protections of the province's collective bargaining regime. Since 1919, principals and vice-principals have been active and vital members of OSSTF. From its inception, they have held positions on the OSSTF Executive, and have participated in all aspects of its activities, including collective bargaining functions, professional development, and lobbying governments and school boards to improve education and learning conditions. Since 1964, principals and vice-principals have coordinated their common activities within OSSTF through the Ontario Secondary School Principals' Council (OSSPC), which is an internal division of OSSTF. Since the formalization of collective bargaining in the education sector in 1975, principals and vice-principals have been statutorily required to be members of OTF, its affiliates and branch affiliates, pursuant to the Teaching Profession Act and the School Boards and Teachers' Collective Negotiations Act.
9. 181. The complainants state that the membership of principals and vice-principals in OSSTF has not created a conflict with their role as school administrators. Principal and vice-principal members of OSSTF maintain that it is still the most appropriate representative of their interests. The collegial relationship between principals and vice-principals and the classroom teachers has been fundamental in maintaining and developing a healthy learning environment for students.
10. 182. When Bill 160 was introduced for first reading on 22 September 1997, it did not include provisions barring principals and vice-principals from membership in the Ontario Teachers' Federation (OTF) or its affiliate unions, including OSSTF, nor were they to be removed from the proposed bargaining units. Amendments to exclude principals and vice-principals were unilaterally announced on 30 October 1997 and tabled on 5 November 1997. The decision of the Government to remove principals and vice-principals from their existing bargaining units, is, submits the complainants, largely a response to the principals' and vice-principals' participation in the teachers' protest against Bill 160.
11. 183. The complainants point to a number of provisions of Bill 160 which together remove principals and vice-principals from their respective bargaining units and deny them access to collective bargaining, namely sections 122, 127, 151, 167 and 180. These were the result of government amendments to Bill 160 added between the second and third reading of the Bill. Pursuant to these amendments --
    • (i) principals and vice-principals are specifically excluded from Part X.1 of the Education Act, entitled "Teachers' collective bargaining";
    • (ii) principals and vice-principals are provided with the opportunity to elect to return to a teacher's position before 1 April 1998. If they choose to return to the position of teacher, they will be credited with seniority earned while serving as a principal and vice-principal; therefore, they will be allowed to return to a bargaining unit at the expense of a member with less seniority;
    • (iii) principals and vice-principals electing to remain in these positions forfeit seniority rights, membership in the OTF, and recall and grievance rights. They also become direct employees of the relevant Board of Education;
    • (iv) despite their newly defined "supervisory" or "managerial" status, principals and vice-principals are given the right to carry out the bargaining unit work that is assigned to those defined as "teachers";
    • (v) consequential amendments are made to the Labour Relations Act and the Provincial Schools Negotiation Act to reflect the removal of principals and vice-principals from the bargaining units and their exclusion from any collective bargaining rights.
12. 184. The complainants note that until Bill 160, the Ontario Government had seen fit to include principals and vice-principals in teachers' unions. The Government has claimed in the course of a court challenge to Bill 160 and in other public statements that principals and vice-principals are supervisory or managerial employees. However, according to the complainants, all evidence produced in court in support of this claim has been purely speculative. In addition, the Ontario Labour Relations Board has repeatedly held that the functions of principals and vice-principals would not require their exclusion from the teachers' bargaining units under the Ontario Labour Relations Act, which excludes from entitlement to union membership a person "who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations". According to a 1986 Ontario Labour Relations Board (OLRB) decision, a copy of which was appended to the complaint, a principal "has no independent authority to hire, fire, or discipline contract teachers", and is not in a "managerial" function. The Board states in addition that the assignment of teachers, principals and vice-principals to the same collective bargaining organization has not, on the evidence before them, lead to "any calamitous collective bargaining results" or any "collective bargaining friction". (Ontario Public School Teachers' Federation v. The Board of Education for the City of Windsor, 5 March 1986.) In the same case, reference is made to an earlier OLRB decision where it was stated that "Peer review or evaluation is not uncommon in a professional setting, and is not, in itself, a managerial function ... The adversarial model, conflict of interest rationale, and 'two-sides approach' to collective bargaining is not easily applied to a group of professionals -- as the Legislature undoubtedly recognized when it determined that principals and vice-principals should be included in the same bargaining units as their fellow teachers." The complainants state that domestic legal determinations have been consistent in recognizing that principals and vice-principals do not truly represent the interests of school boards (employers), do not have policy-making or managerial functions, and do not have duties of a highly confidential nature to justify excluding them from teachers' trade unions.
13. 185. Pursuant to Bill 160, the Labour Relations Act governs collective bargaining between teachers and school boards, displacing the School Boards and Teachers Collective Negotiations Act. However, as a result of Bill 160, principals and vice-principals will not have access to the machinery and procedures of the Labour Relations Act to facilitate collective bargaining. They are denied the protection of the statutory prohibitions against discrimination or reprisals for engaging in trade union activities, and against employer interference. Trade unions can no longer be certified as bargaining agents for these workers. Employers are no longer under any legal obligation to bargain with trade unions or associations representing principals or vice-principals. Furthermore, principals and vice-principals are denied the right to strike and may be subject to penalties or dismissal should they strike, since they are governed by common law rather than the Labour Relations Act.
14. 186. The complainants submit that the exclusion of principals and vice-principals from trade union membership and collective bargaining was the result of principals and vice-principals taking part in a protest in opposition to Bill 160. The protest began on 27 October 1997, with the participation of OTF, all its affiliates, and members of the public. All of the 126,000 teachers in the province refused to teach in protest, and principals and vice-principal members of OSSTF supported the protest, with a majority of them withdrawing their services to protest alongside the teachers. On 30 October 1997, while the protest was still taking place, the Government unilaterally announced a series of amendments to the Bill, which are noted above, affecting principals and vice-principals. The complainants state that members of OSSTF and OSSPC strongly believe that the removal of principals and vice-principals from OSSTF and bargaining units was "a vindictive and arbitrary reaction to their exercise of the right of political protest". The current Minister of Education has stated, according to the complainants, that the amendments were made in response to the participation of the large number of principals and vice-principals taking part in the protest. The complainants submit that the exclusion was a deliberate government policy that harms the efficiency of teachers' unions and was aimed at punishing principals and vice-principals for participating in the political protest.
15. 187. The complainants contend that practically, the exclusion of principals and vice-principals from the bargaining unit will force many of them to retire, since they would not want to return to their teaching positions or to bump teachers with less seniority out of the bargaining unit. Many principals and vice-principals may also not want the alternative, which is to continue in their positions in the absence of union representation.
16. 188. Another result flowing from the legislation, in the view of the complainants, is that OSSTF and other teachers' unions will be weakened since they will be deprived of a substantial proportion of their present membership. As a result of Bill 160, OSSTF's membership has been reduced by 4 per cent, resulting in proportional financial consequences. The Ontario Public School Teachers' Federation, another OTF affiliate, represented approximately 13,000 public school teachers, 2,000 of whom were principals and vice-principals; therefore, as a result of Bill 160, its membership has been reduced by 15 per cent. In addition, the experience and knowledge of principals and vice-principals holding elected position and taking part in OSSTF councils and committees has been lost, thus further weakening the teachers' trade unions. Principals and vice-principals have also had a key role in professional development and improving educational and learning conditions, through such actions as lobbying school boards and governments and promoting teaching excellence.
    • Prior consultation
17. 189. The complainants allege that the Government failed to consult adequately those concerned before initiating a rapid reform of the entire educational structure, including the collective bargaining structure for teachers. It was presented to teachers' unions largely as a fait accompli near the end of the reform process and was developed with little meaningful consultation. The Government had expressed its intention to enact the legislation before negotiations started, and the negotiations lasted only a few weeks. The little amount of consultation that did occur did not include input from teachers' unions, or principals' and vice-principals' organizations, regarding the late amendments to the Bill to exclude principals and vice-principals from collective bargaining structures.
18. 190. The complainants state that prior to the introduction of Bill 160, some discussions took place between OTF and the Government regarding issues of concern to the affiliates, including the government proposal to remove principals and vice-principals from affiliate membership and the bargaining units. OTF and its affiliates made some submissions and attended some meetings with the Minster of Education on the general nature of Bill 160 prior to its introduction and also after first reading. When it was introduced for first reading on 22 September 1997, Bill 160 did not bar principals and vice-principals from membership in the OTF, OSSTF or other affiliates, nor were they removed from bargaining units. On 6 October 1997, a time allocation order for Bill 160 severely restricted debate concerning its contents. Bill 160 received second reading on 7 October 1997. The provisions of Bill 160 remained a concern to OTF and its affiliates, which continued to demonstrate their opposition in submissions and during meetings with the Minister of Education and Training. The complainants assert that at no time during the meetings, and specifically during negotiations held between the Government and the teachers between 24-26 October 1997, did the Government intimate that the removal of principals and vice-principals from OTF and affiliates was being considered. Since the Bill's introduction, there was very little consultation on the central issue of exclusion of principals and vice-principals.
19. 191. The complainants continue that on 30 October 1997, the Government announced a series of amendments to Bill 160 excluding principals and vice-principals, which were tabled in the Legislature on 5 November 1997. After these amendments were introduced and passed, OTF and its affiliates were denied the opportunity to make submissions to the Committee of the Legislature reviewing the Bill. Moreover, at no time were principals and vice-principals consulted, as a distinct group, on the changes to Bill 160 directly and profoundly affecting their interests.
    • The Canadian Charter of Rights and Freedoms
20. 192. The complainants state that, while the teachers' unions are seeking to enforce their freedom of association rights through the domestic courts, the Supreme Court of Canada's restrictive interpretation provides them with little protection. In a number of cases, starting in 1987, the Supreme Court of Canada has scrutinized legislated restrictions placed upon trade union activities, examining whether or not the restrictions violate the constitutional guarantee of freedom of association as set out in section 2(d) of the Canadian Charter of Rights and Freedoms ("the Charter"). The complainants refer to a number of Supreme Court of Canada cases interpreting section 2(d) of the Charter, copies of which have been included with the complaint. The complainants refer in particular to the court's findings that the guarantee of freedom of association does not include the right to strike or the right to bargain collectively (Reference Re Public Service Employee Relations Act (Alberta) (1987); Public Service Alliance of Canada v. The Queen in the Right of Canada (1987); Government of Saskatchewan v. Retail, Wholesale & Department Store Union (1987); Professional Institute of the Public Service of Canada v. Commissioner of the Northwest Territories (1990)).
21. 193. The complainants conclude on this point that the Canadian Constitution does not guarantee the rights mandated by ILO standards and principles of freedom of association, in particular the right to strike and to bargain collectively; therefore, the failure of the Government to amend the Constitution, in particular the Charter of Rights and Freedoms, violates Canada's international obligations. In addition, with respect to the potential concern that the complainants have not exhausted the domestic remedies since a Charter challenge to the Bill is pending, the complainants submit that this should not inhibit the Committee given the limitations of internal legal procedures in the light of the Supreme Court of Canada's restrictive interpretation of section 2(d) of the Charter.
    • General industrial relations climate
22. 194. The complainants point to the numerous cases that have come before the Committee in recent years, in particular those concerning public sector workers. They also assert that since 1975, the federal and provincial governments of Canada have frequently resorted to legislation imposing restrictions on free collective bargaining and banning strikes, in particular in the public sector. With reference to Ontario in particular, the complainants state that since the Progressive Conservative Party came to power in 1995, it has made a deliberate and exceptionally vigorous assault on freedom of association in Ontario. Attention is drawn to the recent case from Ontario concerning legislation denying certain professional employees access to collective bargaining and the right to strike and to protection against anti-union discrimination and employer interference (308th Report, Case No. 1900 (Canada/Ontario), paras. 139-194). The complainants also underline the view expressed by the Committee that repeated recourse to restrictions on collective bargaining can only, in the long term, prejudice and destabilize the labour relations climate, if the legislator frequently intervenes to suspend or terminate the exercise of rights recognized for unions and their members. Furthermore, this may have a detrimental effect on workers' interest in unionization, since members and potential members could consider it useless to join an organization the main objective of which is to represent its members in collective bargaining, if the results of such bargaining are constantly cancelled by law (Case No. 1607 (Canada/Newfoundland), 284th Report, para. 589; Case No. 1616 (Canada), 284th Report, para. 637).
23. 195. In order to obtain accurate information to make a more thorough and detailed examination to facilitate finding solutions to the problems that have arisen, and to more adequately address the exceptional and worsening problem in Ontario and the lack of compliance with the Committee's recommendations, the complainants request the Committee to take one of the following exceptional steps:
    • (i) request the Governing Body of the ILO, on its own motion, to refer this matter to a Commission of Inquiry, pursuant to article 26 of the ILO Constitution; or
    • (ii) request the consent of the Canadian Government to refer this matter to the Fact-Finding and Conciliation Commission on Freedom of Association, or publicize a refusal of such consent.

B. The Government's reply

• Scope of collective bargaining
  196. 196 In its communication of 22 September 1998, the Government states with respect to the allegation that Bill 160 restricts the scope of collective bargaining in violation of freedom of association standards and principles, that school boards are a special kind of employer, having a duty to operate schools for approximately 2 million pupils in Ontario who have the statutory right to attend school. The operation of schools as a workplace must, in the view of the Government, be consistent with ensuring the delivery of quality education to pupils and responsible fiscal management of public money.
  197. 197 The Government notes that Bill 160 eliminated the authority of school boards to establish rates for local education property taxes -- a power that had previously been delegated to them. These rates are now prescribed by the province. Before Bill 160 came into force, school boards could supplement their revenue by taxing their local supporters above the provincially prescribed rate. The Government states that the ability of the school board to have recourse to the local taxpayer for revenue that exceeds what is provided by the provincial Government is not a collective bargaining right. Thus the collective bargaining rights of teachers have not been affected by the new funding model established by Bill 160. Rather, what is affected is their ability to convince school trustees to go to the local taxpayer in order to finance benefits and working conditions.
  198. 198 The Government states that on 22 July 1998, the Ontario Court (General Division) ruled that Roman Catholic school boards have a constitutional right to tax separate school supporters in their jurisdiction because this is a right that existed for denominational schools in Ontario at the time of Canadian confederation in 1867. This constitutional right does not apply to public schools and is unrelated to collective bargaining rights, which did not exist in 1867. The same court upheld the constitutionality of the power of the provincial Government to prescribe property tax rates. The decision is being appealed to the Ontario Court of Appeal, where it is scheduled to be heard in November 1998. In the interim, the trial court has suspended its declaration for 17 months.
  199. 199 The Government contends that, contrary to the claims of the complainants, the labour relations reforms resulting from Bill 160 actually enhanced the collective bargaining rights and protections for teachers. The amendments gave teachers and their unions certain rights that they did not have before, including the following:
       • (i) the right to "fair representation" by their union;
       • (ii) an expedited arbitration process;
       • (iii) greater access to the Ontario Labour Relations Board;
       • (iv) more expeditious bargaining time lines;
       • (v) prohibitions against discrimination by a union;
       • (vi) the elimination of statutory teachers' contracts which formerly prescribed matters such as the notice periods for termination of a teacher's employment with a school board;
       • (vii) the collection of dues in the same manner as other Ontario unions, rather than indirectly through OTF and prescribed by regulations.
  200. 200 According to the Government, following extensive consultations with parents, teachers and school board officials, the Education Act was amended by Bill 160 to prescribe limits on the average size of the elementary and secondary school classes. The limits benefit both pupils and teachers in the view of the Government. While the union may view the "class size" issue as a workload issue, it actually exemplifies Ontario's efforts to ensure quality education for pupils. The fact that the averages are "school board-wide" ensures that boards and teachers continue to be able to discuss how to staff classes at specific grade levels. In addition, they may negotiate for class sizes that fall under the limits.
  201. 201 Another result of the amendments, states the Government, is that school boards are required to assign their teachers to a minimum number of minutes of instruction over a period of five days. This is calculated as an average number of minutes assigned to all the classroom teachers employed by the school board, and is based on their assignments over the entire school year. Therefore, there is flexibility and scope for teachers' unions and boards to negotiate how to implement this provision. The Government further indicates that the regulatory power to prescribe the school year is not new, and the total number of days that teachers work during the school year was not increased. The result of the amendments was to require that more days during the school year be used for classroom instruction rather than examinations or teacher professional activity days. School boards may also require teachers to work up to five days preceding the commencement of the school year, in keeping with current practice.
  202. 202 On this issue, the Government concludes that school boards and teachers' unions continue to be able to negotiate salary, benefits, leaves of absence, pupil-teacher ratios, class size (within the above-noted limits), other workload provisions, positions of additional responsibility (eg. department heads), grievances, paid leave for union activities, "just cause" protection for discipline and dismissal, seniority, surplus and recall procedures, etc. The Government stresses that the complainants' assertion that "every single minute" of a teacher's working day is controlled through regulation, is unfounded.
• Exclusion of principals and vice-principals
  203. 203 In its reply, the Government notes that the exclusion of principals and vice-principals from teachers' bargaining units and from being represented by a union under the Labour Relations Act, is the subject of a court application by OSSTF and other teachers' unions which are claiming that the exclusion is a violation of the Charter. On 17 March 1998, the application was dismissed, no Charter violation being found. This decision is currently under appeal to the Ontario Court of Appeal. The Government requests that, since the issue of exclusion of principals and vice-principals remains to be dealt with in the domestic forum, this aspect of the complaint not be considered until the domestic remedies are exhausted.
  204. 204 In examining the substance of this issue, the Government requests the Committee to take a number of factors into account. The Government indicates firstly that the Education Act was amended by Bill 160, and most of the changes came into force on 1 January 1998. Bill 160 also repealed the School Boards and Teachers' Collective Negotiations Act which was the collective bargaining legislation that specifically applied to school boards and teachers (other than occasional teachers). The Labour Relations Act now applies to collective bargaining between teachers (including occasional teachers) and school boards, as it applies to the vast majority of unionized employees in Ontario.
  205. 205 The Government indicates that during the consultations it undertook regarding education reforms, many principals indicated that their bargaining unit membership was in conflict with their management duties and responsibilities. The exclusion of principals and vice-principals from teachers' bargaining units and from being represented by a trade union under the Labour Relations Act was, therefore, necessary. The exclusion of managerial employees from collective bargaining is a fundamental principle of labour relations throughout Canada. A principal's managerial duties, which may be assigned to a vice-principal, include the following:
       • (i) performance appraisals of the teaching staff;
       • (ii) recommendations to the school board about the selection, hiring, demotion and dismissal of teachers;
       • (iii) assignment of classroom teaching and pupil supervision duties to teachers;
       • (iv) allocation of the statutory minimum instructional time to teachers, despite any provision in a collective agreement; and
       • (v) assignment of duties to teachers during the five days preceding the commencement of the school year, where the school board requires its teachers to work during that period.
  206. In addition, the Government states that principals are in charge of the organization and management of their school. In practice, principals often mediate disputes between parents and teachers; it is important for the parents to perceive that the principal can be objective in resolving conflicts with teachers.
  206. 206 The Government contests the complainants' allegation that the exclusion of principals and vice-principals was a response to the teachers' strike. The motivation was not to seek revenge for participating in the province-wide strike that took place for two weeks in the autumn of 1997; rather, the purpose was to resolve the conflict between the managerial roles and union member roles of principals and vice-principals. The Government states that "their participation in the unlawful strike only illustrated the need to clarify their managerial role".
  207. 207 The Government claims that the right of principals and vice-principals to freedom of association has not been infringed. Since 1 January 1998, many of them have joined one of the voluntary associations of principals and vice-principals established in response to Bill 160. Although these associations are not trade unions, and a school board is not required to negotiate a collective agreement with them, they are actively involved in discussions with school boards concerning terms and conditions of employment of their members. These provincial associations are also recognized as key education stakeholders by the Ontario Ministry of Education and Training. Principals and vice-principals, explains the Government, may also become voluntary members of OTF and participate in non-collective bargaining initiatives of its affiliates.
• Prior consultation
  208. 208 Concerning the allegation that the legislative reforms were not preceded by adequate consultation, the Government states that the labour relations reforms for teachers were part of a larger education reform initiative undertaken by the Government of Ontario to improve the quality of education for pupils. Education stakeholders and the general public were able to express their views about the reforms both by direct communication with the Government and through the legislative process. The Government emphasizes that the legislative process in Ontario is public and democratic.
  209. 209 The Government states that the teachers' unions were clear and unequivocal about their views on the legislation. A Standing Committee of the Legislature, consisting of members of all the political parties, held hearings to receive public input across the province. Teachers' unions made submissions at these hearings. In addition, teachers' unions held meetings with senior representatives of the Government of Ontario to discuss many different aspects of the proposed legislative changes. The Government did respond to many of the trade unions' concerns by making motions to amend Bill 160 prior to its third reading in the Legislature.
  210. 210 While the changes affecting principals and vice-principals were introduced as amendments to the Bill, the Government asserts that the issue of whether or not principals and vice-principals should be in teachers' unions has been a topic of debate and the subject of commission studies and other government reports since teachers were given the statutory right to bargain in 1975.
• The Canadian Charter of Rights and Freedoms
  211. 211 The Government acknowledges that the Supreme Court of Canada has interpreted section 2(d) of the Charter to exclude the right to strike and the right to bargain collectively, and expresses its agreement with this interpretation. The Supreme Court of Canada, notes the Government, considers these rights to be the creation of legislation and not fundamental freedoms. Ontario's Labour Relations Act does provide for collective bargaining and strikes; as a result, Ontario teachers can collectively bargain and strike.
  212. 212 The Government states that there is nothing in Conventions Nos. 87, 98, 151 or 154 requiring such rights to be spelled out in the Charter. The Government goes on to state that "it should be noted that there is no specific reference to a 'right to strike' in any of these ILO Conventions. Therefore, the complainants have requested protection from Canada which do not accord with its international obligations."
• General industrial relations climate
  213. 213 The Government states that it is not accurate to portray Bill 160 as the latest link in a series of anti-labour legislation. The purpose of Bill 160 is the improvement of Ontario's education system and it does not prevent teachers from collectively bargaining or from striking. Furthermore, the majority of the labour cases to which the complainants refer, involved, according to the Government, objections to public sector wage constraints which were spread across every province in Canada.

C. The Committee's conclusions

1. 214. The Committee notes that the allegations of violations of freedom of association arise from the recently adopted Education Quality Improvement Act, 1997 (Bill 160), which amends the Education Act. According to the complainants, this piece of legislation significantly alters labour relations in the education sector. In particular, Bill 160 excludes certain matters from collective bargaining that had previously been subject to negotiation. The Bill also excludes principals and vice-principals from bargaining units for the purpose of collective bargaining, and excludes them from the rights and protections of the Ontario Labour Relations Act, 1995. The complainants allege that these legislative changes were introduced in the absence of adequate consultation with those concerned. The complaint also raises the interpretation by the Supreme Court of Canada of the constitutional right to freedom of association guaranteed by the Canadian Charter of Rights and Freedoms, 1982, as a violation of freedom of association standards and principles, since the right to strike and to bargain collectively have not been accepted as part of freedom of association.
2. 215. The Committee notes that Bill 160 received first reading on 22 September 1997, second reading on 7 October 1997 and third reading on 1 December 1997. It received Royal Assent on 8 December 1997, and most of the provisions came into force on 1 January 1998.
   • Scope of collective bargaining
3. 216. The Committee notes that, pursuant to Bill 160, collective bargaining in the education sector is no longer governed by the School Boards and Teachers' Collective Negotiations Act, 1975, which is repealed by section 178 of the Bill. According to section 8 of the School Boards and Teachers' Collective Negotiations Act, "negotiations shall be carried out in respect of any term or condition of employment put forward by either party". The complainants point to a number of provisions of Bill 160 which restrict the ability of the parties to negotiate concerning certain issues, given that pursuant to section 277.13 of the Bill, the Act and regulations made under it prevail over provisions of a collective agreement in case of conflict. The Committee notes the complainants' contention that as a result of the legislative restrictions, provisions of existing collective agreements could be rendered meaningless.
4. 217. The Committee notes that section 7(4) of Bill 160 endows the Minister of Education and Training with the power to make regulations:
   • (a) prescribing and governing the school year, school terms, school holidays and instructional days;
   • (b) authorizing a board to vary one or more school terms, school holidays or instructional days as designated by the regulations;
   • (c) permitting a board to designate, and to implement with the prior approval of the Minister, a school year, school terms, school holidays or instructional days for one or more schools under its jurisdiction that are different from those prescribed by the regulations; and
   • (d) respecting the preparation and implementation of school calendars by boards.
     • The section goes on to state that the school calendar shall not provide for more than ten examination days or more than four professional activity days.
   • 218. Concern is also raised with respect to section 81 of Bill 160 which places upper limits on the average size of classes. These maximums may be exceeded with the permission of the Minister. Section 81 also addresses the amount of instruction time to be provided by classroom teachers, which is set out as a minimum average for each period of five instructional days during the school year. Section 82 is also highlighted by the complainants, which states that "A board may require teachers to work during some or all of the five working days preceding the start of the school year ... A board may authorize the principal of a school to make determinations respecting the work to be done by teachers of the school during the working days referred to ...".
5. 219. The Committee notes the Government's view that the limit on the average size of school classes will benefit both pupils and teachers and is part of an effort to ensure quality education for pupils. With respect to the minimum number of minutes of instruction, the Government states that there is scope for negotiation regarding how to implement the provision. Regarding the power to prescribe the school year and the total number of days that teachers work, the Committee notes that according to the Government, this is not new; the result of the amendments is to require more days for classroom instruction rather than examinations or teacher professional activity days. The Government also stresses that negotiations can still take place on a number of issues including salary and benefits.
6. 220. The Committee 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 previously emphasized the importance of promoting collective bargaining in the education sector (see Digest, op. cit., para. 804; 310th Report, Case No. 1928 (Canada/Manitoba), para. 175). Regarding the subject-matter of collective bargaining, the Committee has accepted that matters that are essentially or primarily concerned with the management and operation of business can be regarded as outside the scope of negotiation. Determining the broad lines of educational policy has been given as an example of a matter that can be excluded from collective bargaining; however, there are other matters that deal primarily with questions relating to conditions of employment, and they should not be regarded as falling outside the scope of collective bargaining (see Digest, op. cit., paras. 812-813). With respect to class size, the Committee has acknowledged that, while this subject may have a bearing on conditions of employment, it could also be considered as an issue more closely linked to broad educational policy (see 310th Report, Case No. 1928 (Canada/Manitoba), para. 175). If the Government considers that subjects such as class size should be determined outside the process of collective bargaining, the Committee requests the Government to ensure that the teachers' unions concerned are fully consulted in this regard. With respect to the other matters that have been excluded from the collective bargaining process, the Committee considers that some may have aspects of broad educational policy; however, those policy decisions may have important consequences on conditions of employment, which should be the subject of free collective bargaining. The Committee, therefore, requests the Government to enable free collective bargaining to take place on the consequences on conditions of employment of decisions on educational policy. The Committee requests to be kept informed of developments in this regard.
   • Exclusion of principals and vice-principals
7. 221. The Committee notes that, prior to the enactment of Bill 160, principals and vice-principals were members of the same unions as teachers, and were part of the same bargaining unit as teachers for the purposes of collective bargaining. Bill 160 has excluded principals and vice-principals from the statutory collective bargaining process. In addition, while teachers are now covered by the provisions of the Labour Relations Act, principals and vice-principals are not. The relevant provisions of Bill 160 include sections 122, 127, 151, 167 and 180.
8. 222. The Committee notes that the Government justifies the exclusion of principals and vice-principals on the basis that they are managerial employees. The Government states that these workers are able to join voluntary associations of principals and vice-principals. The Committee recalls that by virtue of the principles of freedom of association, all workers -- with the possible exception of the police and armed forces -- should have the right to establish and join organizations of their own choosing, and that freedom of association should be guaranteed without discrimination (see Convention No. 87, Article 2; Digest, op. cit., para. 205). The Committee recalls, however, that it is not necessarily incompatible with freedom of association principles to deny managerial or supervisory employees the right to belong to the same trade union as other workers, providing two conditions are met: first, that such workers have the right to form their own associations to defend their interests; secondly, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers by depriving them of a substantial portion of their present or potential membership. The expression "manager" or "supervisor" should be limited to cover only those persons who genuinely represent the interests of employers (see Digest, op. cit., paras. 231-232).
9. 223. The Committee notes that the issue of the exclusion of principals and vice-principals from teachers' bargaining units and the impossibility for them to join teachers' unions under the Labour Relations Act, is the subject of a court application by OSSTF and other teachers' unions which is currently under appeal to the Ontario Court of Appeal. The Committee requests the Government to inform it of the outcome of the appeal and to forward a copy of the court's decision as soon as it is rendered.
10. 224. The Committee notes further that principals and vice-principals are excluded from the collective bargaining machinery of Bill 160, as well as from the Labour Relations Act, due to section 277.2 of the Education Act, added by section 122 of Bill 160, and section 151 of Bill 160. Concerning the exclusion of these workers from the collective bargaining machinery established by virtue of Bill 160 and the Labour Relations Act, the Committee notes that the Government acknowledges that the school boards are no longer under any legal obligation to bargain with principals and vice-principals or their associations concerning terms and conditions of employment. Pursuant to section 127 of Bill 160, the Lieutenant Governor in Council is empowered to make regulations governing terms and conditions of employment for principals and vice-principals; according to section 277.13, any such regulations prevail over provisions of a collective agreement. In addition, due to their exclusion from the Labour Relations Act, principals and vice-principals are denied protection against anti-union discrimination, including dismissal, and employer interference in union activities.
11. 225. The Committee recalls its statement in a similar case concerning the exclusion of particular workers from the Ontario Labour Relations Act:
    • While not neglecting the importance it places on the voluntary nature of collective bargaining, the Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements (see Digest, op. cit., para. 781). Furthermore, the preliminary work for the adoption of Convention No. 87 clearly indicates that 'one of the main objects of the guarantee of freedom of association is to enable employers and workers to form organizations independent of the public authorities and capable of determining wages and other conditions of work by means of freely concluded collective agreements' (see Digest, op. cit., para. 799).
12. (308th Report, Case No. 1900 (Canada/Ontario), para. 186).
13. 226. Regarding protection against anti-union discrimination and employer interference, the Committee recalls the importance it has attached to the need for specific provisions prohibiting acts of interference by employers against workers and their organizations, and prohibiting discrimination on the basis of trade union membership or activities, and for clear procedures and dissuasive sanctions (see Digest, op. cit., para. 737 et. seq.). The Committee turns again to its conclusions in the recent Canada/Ontario case concerning the Labour Relations Act, where it stated as follows: "The Committee therefore considers that the absence of any statutory machinery for the promotion of collective bargaining and the lack of specific protective measures against anti-union discrimination and employer interference in trade union activities constitutes an impediment to one of the principal objectives of the guarantee of freedom of association, that is the forming of independent organizations capable of concluding collective agreements." (see Case No. 1900 (Canada/Ontario), 308th Report, para. 187). The Committee, therefore, 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.
14. 227. Noting that the exclusion of principals and vice-principals also means that they are not covered by the provisions of the Labour Relations Act granting and protecting strike action, the Committee recalls that it has always recognized the right to strike as a legitimate and essential means of workers and their organizations to promote and defend their economic interests (see Digest, op. cit., paras 474-475). However, the right to strike may be restricted or prohibited in limited cases. While the Committee has found that the education sector does not constitute an essential service (see Digest, op. cit., para. 545), it has held that principals and vice-principals can have their right to strike restricted or even prohibited (see 277th Report, Case No. 1528 (Germany), para. 289). The Committee, therefore, considers that this aspect of the case does not call for further examination.
    • Prior consultation
15. 228. Noting that Bill 160 significantly modifies labour relations in the education sector, the Committee recalls that where a government seeks to alter a bargaining structure in which it acts actually or indirectly as employer, it is particularly important that there be an adequate consultation process, whereby all objectives can be discussed by the parties concerned. Such consultation is to be undertaken in good faith and both parties are to have all the information necessary to make an informed decision (see 310th Report, Case No. 1928 (Canada/Manitoba), para. 183; 310th Report, Case No. 1943 (Canada/Ontario), para. 230).
16. 229. The Committee notes that while some consultations did take place before the introduction of Bill 160, there was no consultation on the amendments concerning the exclusion of principals and vice-principals once the government motion was moved. These provisions were included late in the legislative process, and came as a surprise to the workers' organizations concerned. In the view of the Committee, such significant modifications should not have been made in the absence of full and considered consultation. The Committee requests the Government to ensure in future that consultations in good faith are undertaken in such circumstances that the parties have all the information necessary to make informed proposals and decisions.
    • The Canadian Charter of Rights and Freedoms
17. 230. The Committee notes that the Canadian Charter of Rights and Freedoms, which forms part of the Constitution Act, 1982, provides that "Everyone has the following fundamental freedoms: ... freedom of association" (section 2(d)). The complainants and the Government agree that this constitutional right to freedom of association has been defined by the Supreme Court of Canada as not encompassing the right to strike or the right to bargain collectively.
18. 231. The Committee considers that the right to strike and to bargain collectively are integral components of the principles of freedom of association, and that the constitutional guarantee of freedom of association pursuant to the Canadian Charter of Rights and Freedoms does not give expression to these rights. However, while the standards and principles of freedom of association require the effective acknowledgement and protection of the right to strike and to bargain collectively, constitutional protection of these rights is not imperative. If expression is given to these rights in other pieces of legislation, a violation of freedom of association will not be found.
    • General industrial relations climate
19. 232. The Committee notes with concern that this case is one of a series concerning legislative reforms in Ontario, and in each of the cases, the Committee has pointed to incompatibilities with freedom of association standards and principles. The Committee recalls its conclusions in Case No. 1943 (Canada/ Ontario):
    • The Committee cannot but remark on the fact that after three years of statutorily imposed wage restraint in the public sector through the Social Contract Act, changes have been made to the compulsory arbitration system without full consultation with the parties concerned. In addition, as addressed recently in Case No. 1900 (see 308th Report, paras. 139-194), agricultural workers, domestic workers and certain specified professions have been excluded from access to collective bargaining and the right to strike through legislation, and legislation concerning successor rights has been repealed. In addition, there was an attempt to repeal important pay equity provisions. Given the combination of factors impinging on labour relations in Ontario, the Committee considers it necessary to point out that such actions and restrictions can, in the long term, prove harmful to and destabilize labour relations.
20. (310th Report, para. 241).
21. 233. 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. 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.