Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 335, Novembre 2004

1. 471. The complaint is contained in a communication dated 9 October 2003 from Education International (EI), on behalf of the Canadian Teachers’ Federation (CTF), the Ontario Teachers’ Federation (OTF) and the Ontario English Catholic Teachers’ Association (OECTA).
2. 472. In the absence of a reply from the Government, the Committee postponed the examination of this case on two occasions [see 332nd and 333rd Reports, para. 5]. At its meeting in June 2004 [see 334th Report, para. 9] the Committee addressed an urgent appeal to the Government, drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of this case at its next meeting if the Government's information and observations were not received in due time. The Government of Ontario sent some information in two communications dated 19 April and 13 August 2004.
3. 473. 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), nor the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 474. In its communication of 9 October 2004, EI states that OECTA represents the employment and professional interests of approximately 36,000 members in the English school system, in their relations with their employing School Boards, the provincial government and various regulatory bodies.
2. 475. The complaint is brought in connection with the Back to School (Toronto Catholic Elementary) and Education and Provincial Schools Negotiations Amendment Act, 2003, (Bill 28) passed by the Legislature of Ontario (hereafter “the Act”). The Act came into force in June 2003, for the purpose of terminating a two-day lockout imposed by the Toronto District School Board on the elementary teachers bargaining unit; that action had been taken by the Board following a legal work-to-rule campaign of the teachers. The Act imposes a mediation-arbitration process to resolve the outstanding collective bargaining disputes between the OECTA and the School Board. The Act also amends provisions in the Education Act that affect all teachers in Ontario; these amendments impose new restrictions on teachers’ collective bargaining rights by expanding the statutorily prescribed teachers’ duties and the definition of strikes, as this term applies to teachers in Ontario.
   • Background
3. 476. The complainant organization points out that this legislation is yet one more in a long series of enactments passed by the Government of Ontario since 1995 that have significantly interfered with the freedom of association rights of workers in this province. Many of these other impugned statutes, including back-to-work legislation affecting teachers, have been the subject of complaints to the Freedom of Association Committee, which has expressed serious concerns about the legislative record of the Government of Ontario as it affects the collective bargaining rights of workers, and requested that it refrained from such interferences in the future.
4. 477. School boards are the legal employers of teachers. However, legislative changes made since 1995 have stripped them of many of the powers they previously exercised in their capacity as employers. From 1975 and until the passage of the Education Quality Improvement Act in December 1997, teachers in Ontario exercised collective bargaining rights under the School Boards and Teachers Collective Negotiations Act. Under this statute, all matters relating to teachers’ terms and conditions of employment, including class size and preparation time, were subject to negotiations between local school boards and teachers’ associations. Teachers had the right to strike under the School Boards and Teachers Collective Negotiations Act, with two qualifications. First, principals and vice-principals, who were covered by the statute and included in teacher bargaining units, were required to remain on duty during strikes and lockouts. Second, the body charged with administering the legislation, the Education Relations Commission, had the authority to advise the Government when in its opinion the continuance of a strike or lockout would place in jeopardy the successful completion of courses of study by the affected students. Under the School Boards and Teachers Collective Negotiations Act, a jeopardy finding was never made prior to a strike or lockout continuing for at least 27 school days.
5. 478. The Education Quality Improvement Act, passed in December 1997, made a number of fundamental changes to the education system in Ontario, in particular to education funding and governance, and to teachers’ collective bargaining. Prior to the passage of that Act, the education system was funded by a combination of provincial government grants and revenues raised by local school boards through municipal property taxes. Within this system, local school boards maintained control over the financing of the schools; they had the authority to make budgeting and spending decisions, as well as the power to set local tax rates for education funding. The Education Quality Improvement Act effectively gave control over education funding to the provincial government, since the power to determine taxation rates for the education system now rests with the Minister of Finance. The Education Quality Improvement Act also introduced provisions giving the provincial government very broad powers to determine the manner in which money for education will be expended. The Act also established a new collective bargaining regime for teachers: principals and vice-principals were removed from teacher bargaining units and were also excluded from access to the new bargaining regime. A combination of statutory provisions makes the Labour Relations Act, 1995 (Ontario’s comprehensive labour relations statue) largely applicable to teachers, except as specifically modified by the Education Act. Under the new scheme, the Education Relations Commission was continued as the body with authority to advise the Government as to when the continuation of a strike or a lockout would place “in jeopardy” the successful completion of courses by affected pupils.
6. 479. The Education Quality Improvement Act also significantly affected the substance and scope of teachers’ collective negotiations by giving the provincial government control over a number of fundamental issues, such as class size and preparation time, which were previously the subject of unfettered collective bargaining. The Government’s control over education funding also has considerable influence on teachers’ collective bargaining. The changes ultimately made under that Act were highly controversial within the education community. Ontario teachers engaged in a two-week political protest over the Act in October and November 1997, as they strongly believed that all of the changes proposed by the Act would have a negative impact upon their terms and conditions of employment and also upon the quality of Ontario’s publicly funded education system.
7. 480. The Government’s legislative agenda did not end with the passage of the Education Quality Improvement Act. Over the past several years, the Government has continued to enact statues that impose new requirements relating to teacher certification, re-certification and performance assessment. The first one was passed in 1998, when teachers’ unions and school boards were engaged in the first round of collective bargaining for renewal collective agreements under the new collective bargaining legal regime. Negotiations over issues relating to preparation time and class size were particularly difficult in the secondary panels, leading to strikes and lockouts in a number of school boards. The Government did not follow the established process to determine whether the students were in jeopardy of losing their school years, nor did it engage in any consultation with teachers’ unions, prior to passing the Back to School Act, 1998, on 28 September 1998. Three more teacher back-to-work statutes were subsequently passed by the Ontario Government prior to Bill 28: Back to School Act (Hamilton-Wentworth district School Board), 2000, SO 2000, c. 23; Back to School Act (Toronto and Windsor), 2001, SO 2001, c. 1; and Back to School Act (Simcoe Muskoka Catholic District School Board), 2002, SO 2002, c. 20. The Back to School Act, 2003 (Bill 28) which is the subject matter of this complaint is the fifth teacher back-to-work statute passed by the Government of Ontario over the past five years.
   • Events leading up to the passage of the
   • Back to School Act, 2003 (the “Act”)
8. 481. OECTA and the Toronto Catholic District School Board are parties to a collective agreement that came into force on 1 September 2001 and expired on 31 August 2002. On 23 January 2002 OECTA gave notice to bargain a renewal collective agreement for the 2002-03 and 2003-04 school years. The parties first met and exchanged proposals on 5 June 2002. They subsequently held collective bargaining meetings in June, October and November 2002, as well as in January and February 2003. OECTA applied to the Ministry of Labour for the appointment of a conciliation officer on 28 February 2003. An officer was appointed on 14 March 2003 and a conciliation meeting was held on 4 April 2003. Following the conciliation meeting, the OECTA requested a “no-board” report (under the Labour Relations Act, 1995, the issuance of either a conciliation report or a decision not to issue a conciliation report, i.e. a “no-board” report, is a precondition to the parties reaching the legal strike or lockout position). OECTA and the School Board continued to exchange proposals during April and the beginning of May.
9. 482. OECTA obtained a strike mandate from its members, with 92 per cent authorization vote held on 22 April 2003. The teachers subsequently commenced a work-to-rule campaign on 5 May 2003, which was lawful because the teachers were in a legal strike position. On 8 May 2003, the School Board informed OECTA representatives that it was considering a lockout. On 12 May 2003, after making another proposal for wage increases, the School Board issued a lockout notice and subsequently locked out the teachers on 15 May 2003. On 21 May 2003, after two days of lockout and without prior consultation, the Government of Ontario introduced Bill 28. This is an unprecedented short time for government back-to-work action. Moreover, the Government had failed to call upon the Education Relations Commission to exercise its jurisdiction to determine whether the education of students was in jeopardy prior to introducing the legislation. On 28 May 2003, OECTA asked the School Board to agree to voluntary arbitration under section 40 of the Labour Relations Act, 1995, to end the lockout and work-to-rule-campaign. The School Board rejected this offer.
   • The Back to School Act, 2003
10. 483. The Act first deals specifically with the labour dispute between OECTA and the School Board by terminating the lockout and establishing a mandatory arbitration process for concluding the renewal collective agreement. OECTA and the School Board could have avoided the legislative resolution of their labour dispute only if they voluntarily concluded a collective agreement before the statute came into effect. Second, the Act and accompanying Regulation redefine the meaning of “strike” and “lockout” as these terms apply to teachers so as to place new restrictions on the right to strike for all Ontario teachers. The Government did not consult with OECTA about any aspect of the legislation prior to its introduction.
11. 484. As regards the dispute in the School Board, the Act provides that the School Board must terminate the lockout, and the union must terminate any strike (in this case the work-to-rule campaign) as soon as the Act comes into force. Teachers must return to work and fully perform their duties. The Act prohibits further strikes and lockouts relating to collective negotiations for the renewal collective agreement. It also requires the renewal collective agreement to continue in effect until 31 August 2004. The terms and conditions of employment that applied prior to the first day on which lawful strike action could be taken continue to apply until a new collective agreement is executed. The Act establishes financial penalties for failing to comply with these back-to-work provisions: $2,000 for a individual and $25,000 for a corporation or trade union. Each day of non-compliance constitutes a separate offence for purposes of the financial penalties.
12. 485. If the parties have not executed a collective agreement within seven days after the act comes into force, all outstanding issues are referred to a mediator-arbitrator. Once the legislation comes into effect, the parties cannot appoint an arbitrator, mediator or mediator-arbitrator except in accordance with the statute. The parties have seven days within which to jointly select a mediator-arbitrator and to notify the Ministry of Labour for appointment. If the parties fail to make a joint appointment, the Ministry must appoint the mediator-arbitrator, unless the parties execute a new collective agreement before the appointment is made. Although the mediator-arbitrator purportedly has jurisdiction to settle all matters, if he or she considers necessary to conclude a new collective agreement, the statute imposes limitations on his authority to draft a collective agreement, similar to the limitations found in the other back-to-work statutes enacted by the Ontario Government in recent years. First, the award must be consistent with, and must permit the School Board to comply with, the Education Act and regulations. Second, the award must be one that can be implemented in a reasonable manner, without causing the School Board to incur a deficit. Third, if implementation of the award would result in an increase in the School Board’s total, or average-per-teacher, compensation costs for members of the bargaining unit, the mediator-arbitrator must include in the award a written statement explaining how the School Board can meet the costs resulting from the award without incurring a deficit and while complying with the Education Act and regulations.
13. 486. The Act also contains two amendments to the Education Act which affect all teachers in Ontario’s education system, the first of which expands the statutorily prescribed duties of teachers. In the Education Act and related regulations, statutorily prescribed duties were defined with reference to broad principles, for example: the duty “to teach diligently and faithfully the classes of subjects assigned …”; the duty “to encourage the pupils in the pursuit of learning”; and the duty “to maintain, under the direction of the principal, proper order and discipline in the classroom …”. The Act adds to this list a new general clause, under which teachers are required “to perform all duties assigned in accordance with this Act and the regulations”. Pursuant to this new legislative authority, the Government amended the related regulation to prescribe the following specific activities as duties of teachers: to ensure that report cards are fully and properly completed and processed in accordance with the provincially prescribed requirements; to cooperate and assist in the administration of provincially prescribed student testing; to participate in regular meetings with pupils’ parents or guardians; to perform duties assigned by the principal in relation to cooperative placements of pupils; and to perform duties normally associated with the graduation of pupils. In the past these activities were voluntary and, in recent moths, had been the subject of job actions in a number of school boards engaged in collective agreement negotiations with teachers’ unions. (Several years ago, the Government backed away from an attempt to introduce similar amendments to the Education Act which would have made mandatory certain co-instructional activities that had previously been voluntarily undertaken by teachers; the Government ultimately withdrew these amendments in the face of political resistance and a government-appointed advisory group report that recommended against taking this course of action.) Now, with the passage of the Back to School Act, 2003, some of the teacher activities that were included in the Government’s abandoned effort to make co-instructional activities mandatory have been legislatively prescribed as duties of teachers.
14. 487. The Act introduces a new definition of “strike”, which further expands the scope of activities included within the meaning of this term as it applies to teachers in Ontario. The new definition reads as follows:
    • “Strike” includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering with:
      • (i) the normal activities of a board or its employees;
      • (ii) the operation or functioning of one or more of a board’s schools or of one or more of the programmes in one or more schools of a board, including but not limited to programmes involving co-instructional activities; or
      • (iii) the performance of the duties of teachers set out in the Act or the regulations under it, including any withdrawal of services or work to rule by teachers acting in combination or in concert or in accordance with a common understanding.
    • 488. The Act changes the definition of strike in three ways. First, while the previous definition had focused on the question of whether action was designed to curtail, restrict, limit or interfere with school programmes, the new definition includes action which is designed to have this effect or which “may reasonably be expected to have this effect”. Second, while the previous definition focused on the disruption to one or more school programmes, the new definition includes actions which curtail, restrict, limit or interfere with the normal activities of a board or its employees. Third, the new definition sweeps in all the duties which may be prescribed by the Government in accordance with its new authority to add new duties to the Education Act and related regulations.
15. 489. It is important to note that although these two amendments were passed in the context of back-to-work legislation relating to a specific dispute between the Toronto District Catholic School Board and its elementary teachers, these new provisions apply to all 135,000 teachers in Ontario.
16. 490. The complainants submit that the Act is incompatible with the lawful exercise of freedom of association and collective bargaining rights, and violates ILO Conventions Nos. 87, 98, 151 (in particular Articles 7 and 8) and 154. The right to bargain freely with employers with respect to conditions of work constitutes an essential element of freedom of association. The Committee has specifically emphasized the importance of promoting collective bargaining in the education sector. While acknowledging that the “determination of broad lines of educational policy” may be excluded from collective bargaining, it has clearly stated that “the consequences of educational policy decisions on conditions of employment” must remain the subject of free collective bargaining. The right to strike is recognized as an integral element of the right to collective bargaining. It is one of the “essential means” by which trade unions and workers can assert and protect their economic and social interests. The Committee has repeatedly stated that a restriction or prohibition on the right to strike contravenes freedom of association unless the service affected is an “essential service”. This term has been narrowly defined by the Committee to include only those services the interruption of which “… would endanger the life, personal safety or health of the whole or part of the population. More specifically, the Committee has expressly ruled that the education sector does not fall within this strict definition of essential service. Therefore, legislative prohibitions of teachers’ rights to strike violate freedom of association principles and cannot be justified unless the continuation of a strike would meet the strict essential service standard.
17. 491. The Committee has also emphasized the importance of full and frank consultations on any questions or proposed legislation affecting trade union rights. The Committee has further emphasized the particular importance of an adequate consultation process where a government seeks to alter a bargaining structure in which it acts actually or indirectly as employer. An adequate consultation process requires an opportunity for all objectives to be discussed by the parties concerned. The consultation must be undertaken in good faith, with all parties having the information necessary to make an informed decision. These principles require that any government limitation on collective bargaining be preceded by consultations with the affected workers’ organizations and employers. In the education context, these principles also require prior consultation on matters relating to collective bargaining structure but also on matters of broad educational policy which may fall outside the collective bargaining process but affect working conditions for teachers.
18. 492. Freedom of association principles require that dispute resolution through arbitration or conciliation be made available where there is a prohibition on the right to strike or a restriction on the exercise of a right to strike. The substitute arbitration or conciliation process should attempt as closely as possible to replicate the results of free collective bargaining. The Committee has adopted the principle that independence and impartiality of the arbitration system which is put in place to compensate for the loss of the right to strike are paramount. The Committee has further recognized that the independence of the system is compromised where arbitrators are directly appointed by the Government which also prescribes the legislative criteria arbitrators must follow in their awards. Loss of confidence in the system will inevitably result from threats to its impartiality and independence. While the Committee has recognized that it may be appropriate for an interest arbitrator to take financial considerations into account in cases involving public monies, legislation which is so restrictive as to impose a “financial straightjacket” compromises arbitral independence and impartiality, thus going beyond what is acceptable under the principles of freedom of association.
19. 493. Article 5 of Convention No. 151 prohibits the government, as employer, from interfering with the rights of workers’ organizations to freedom in the organization of their activities and formulation of their programmes. Any such interference by the government would be contrary to the right to freedom of association as provided for in Convention No. 87 and principles derived therefrom. Similarly, the Committee has stated that where the government interferes with collective bargaining for the purpose of ensuring that the negotiating parties subordinate their interests to government economic policy, such intervention is not compatible with the generally accepted principles that workers’ and employers’ organizations should enjoy the right freely to organize their activities and formulate their programmes.
    • Recent Ontario context
20. 494. The Back to School Act, 2003 is the most recent in a series of enactments passed by the Government since it was elected in June 1995, that have interfered in significant ways with the freedom of association rights of Ontario workers. Many of these other impugned enactments, including the removal of principals and vice-principals from collective bargaining by the Education Quality Improvement Act, have been the subject of complaints to the Committee. Since 1995, legislative changes regarding collective bargaining in the education sector and back-to-work legislation in the education sector have resulted in four separate complaints to the Committee, which has found the Ontario Government in breach of ILO Conventions on freedom of association (Cases Nos. 1951, 2025, 2119 and 2145).
21. 495. Since 1995, legislative reforms of the Ontario Government have also been the subject of three additional complaints arising outside the education sector in which the Committee has expressed concern with the Government’s observation of ILO Conventions on freedom of association (Cases Nos. 1943, 1975 and 2182). In considering the record of the current provincial government in relation to legislation affecting workers’ freedom of association rights, the Committee has expressed concern that labour relations in Ontario may be placed at risks by these interferences with freedom of association and collective bargaining.
22. 496. In addressing OECTA’s complaint about the 1998 teacher back-to-work legislation, the Committee found that the Government had again improperly interfered with freedom of association principles by restricting the teachers’ right to strike without justification and by imposing a mandatory arbitration process that failed to meet the requirements of independence an impartiality. The Committee requested that the Government of Ontario refrain from passing similar legislation in the future. The Committee also voiced deepened concern about the Ontario Government’s harsh disregard for the collective bargaining rights of teachers. When the Committee was subsequently presented with a complaint about yet another teacher back-to-work statute, passed only two years after the 1998 legislation, the Committee was struck by the similarity between the two statutes and reached similar conclusions about the contraventions of freedom of association principles [Case No. 2145, 327th Report, para. 300], and again expressed its increasing concern over the Ontario Government’s flagrant and repeated violations of the freedom of association rights of Ontario workers [ibid., para. 310]. With the Back to School Act, 2003, the Government of Ontario has once again demonstrated its complete disregard for international freedom of association standards and principles, and its concomitant willingness to continue to flout the Committee’s advice and requests.
23. 497. The complainants ask the Committee: (a) to declare that the Back to School Act, 2003 is inconsistent with ILO Conventions and principles; (b) to request the Ontario Government to: (i) repeal the Back to School Act, 2003; (ii) to restore free collective bargaining with respect to teachers in the province; (iii) to refrain from any further interference in the collective bargaining process in Ontario.
24. 498. In order to address more adequately the exceptional and worsening problem in Ontario, the complainants ask the Committee: (a) to request that the ILO Governing Body, on its own motion, refer this matter to a commission of inquiry; (b) to request the consent of the Canadian Government to refer this matter to the Fact-finding and Conciliation Commission on Freedom of Association; (c) to refer the legislative aspects of this matter to the Committee of Experts for further examination.

B. The Government’s communications

1. 499. In its communication of 19 April 2004, the Government of Ontario points out that Bill 28 was passed by the previous Government to deal with a specific work stoppage in elementary schools in the fall of 2003. The new Government has a different approach to labour relations in the education sector and is committed to creating a balanced and fair labour relations law. Discussions have started with teachers, their federations, school boards and other education partners, to seek input on the changes that might need to be made to restore peace and stability and the effective delivery of education in Ontario public schools. The issues raised by the Ontario Teachers’ Federation and the Ontario English Catholic Teachers’ Association will receive due consideration.
2. 500. In its communication of 13 August 2004, the Government reiterates its different approach to labour relations and points out that now is an especially delicate time in labour relations in the education sector since all teacher collective agreements in the province are due to expire on 31 August 2004. In the circumstances, it would be inappropriate for the Government to make unilateral commitments while discussions with boards and unions are under way on a variety of issues. The Government confirms that there is a changed atmosphere evidenced by the attitude of teachers’ unions towards the new Government and the more engaged and frank dialogue occurring between the unions and the new Minister of Education. As part of the new Government’s commitment to creating balanced and fair labour relations and restoring stability in Ontario schools, the Ministry of Education recently initiated an “Education Partnership Table” project where policy issues, including labour relations, will be presented by the Ministry to teachers’ unions, school boards and other stakeholders for consideration and policy feedback. To date, the Education Partnership Table has considered teachers’ professional development requirements and the governorship of the College of Teachers. Policy initiatives, including legislative change, can be expected to ensue from this initiative.

C. The Committee’s conclusions

1. 501. While noting the information given by the Government and its statements of intentions in its communications of 19 April and 13 August 2004, the Committee recalls that a successive government in the same State cannot, for the mere reason that a change has occurred, escape the responsibility deriving from events that occurred under a former government. In any event, the new government is responsible for any continuing consequences which these events may have. Where a change of regime has taken place in a country, the new government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 18].
2. 502. Turning to the merits of the complaint, the Committee notes that the allegations in this case arise from the adoption of the Back to School Act, 2003 (Bill 28) which came into force at the beginning of June 2003 and terminated a legal work-to-rule campaign of the elementary teachers bargaining unit of the Toronto District Roman Catholic School Board (the “School Board”) and a two-day lockout imposed by the School Board. The Act prohibited any further strike or lockout in connection with the renewal of that collective agreement, failing which substantial penalties apply; the Act also imposed a mediation-arbitration process to resolve the outstanding collective bargaining issues in dispute between OECTA and the School Board. In addition to dealing with the specific issues raised by that labour dispute, the Act extends the definition of strikes and lockouts, thereby placing new restrictions on the right to strike for all Ontario teachers. Finally, the Act provides a mediation-arbitration process, with limitations imposed upon the mediator-arbitrator. OECTA was not consulted on any aspect of the Act prior to its introduction.
3. 503. Once again, the Committee cannot but note the striking parallel between the present complaint and Cases Nos. 2025 [320th Report, paras. 374-414] and 2145 [327th Report, paras. 260-311]. These cases involve essentially the same parties; the complainants’ allegations are almost identical and the cases raise similar issues: violations of the right to strike; imposition of an arbitration process which fails to meet the requirements of independence and impartiality, and improperly restricts the scope of the arbitrator’s jurisdiction; and lack of consultation prior to the adoption of the Act. In the present case, in addition, the challenged Act further restricts the right to strike of all teachers in the province.
4. 504. As it did in Case No. 2145 [para. 300] and particularly taking into account this new breach of freedom of association, while emphasizing the seriousness of these repeated violations, the Committee considers that little purpose would be served by reiterating at length its comments and recommendations, most of which can be applied here mutatis mutandis, and will limit itself to recalling well-established freedom of association principles.
   • Right to strike
5. 505. Noting that the complainants had fulfilled all the legal requirements to exercise their right to take industrial action, the Committee recalls that the right to strike is one of the legitimate and essential means through which workers and their organizations may defend their economic and social interests [Digest, op. cit., paras. 474-475] subject to certain limited exceptions, which do not include the education sector [Digest, op. cit., para. 545]. While the Committee recognizes that unfortunate consequences may flow from a strike in a non-essential service, these do not justify a serious limitation of the right to strike unless they become so serious as to endanger the life, personal safety or health of the whole or part of the population [Digest, op. cit., para. 541]. The Committee further recalls that, in examining a previous complaint involving the education sector, it stated that the possible long-term consequences in the teaching sector did not justify their prohibition [Case No. 1448, 262nd Report, para. 117]. The Committee is not convinced that there existed, in the circumstances and at this early stage of the dispute, a situation which warranted the legislative action taken by the Government. The Committee deeply deplores that the Government should have decided, for the third time in a few years (September 1998, November 2000, June 2003) to adopt such an ad hoc legislation which creates a situation where educational institutions and education workers theoretically have a legal right which, in practice however, is taken away from them when they exercise it. The Committee considers that repeated recourse to such legislative restrictions can only in the long term destabilize the labour relations climate, if the legislator frequently intervenes to suspend or terminate the exercise of rights granted to workers and their union by the general legislation. In this context, the Committee considers that it would be more conducive to a harmonious industrial relations climate if the Government would establish a voluntary and effective mechanism which could avoid and resolve labour disputes to the satisfaction of the parties concerned. In the event that, despite such mechanism, the workers would have recourse to industrial action, a minimum service could be maintained with the agreement of the parties concerned. The Committee therefore urges the Government to consider establishing a voluntary and effective dispute prevention and resolution mechanism rather than having recourse to back-to-work legislation. The Committee requests the Government to keep it informed of developments in this respect.
   • Mediation-arbitration
6. 506. As regards the compulsory nature of the mediation-arbitration process, the Committee recalls once again that bodies appointed for the settlement of such disputes should be independent, that recourse to these bodies should be on a voluntary basis [Digest, op. cit., para. 858] and that recourse to compulsory arbitration in cases where the parties do not reach agreement through collective bargaining is permissible only in essential services in the strict sense of the term [Digest, op. cit., para. 860].
7. 507. Regarding the ad hoc legislative limitations imposed upon the mediator-arbitrator, the Committee considers that, while financial considerations may be taken into account in cases such as the present one, thus recognizing that the special characteristics of the public service justify some flexibility in applying the principle of autonomy of the parties to collective bargaining, the Act imposes in practice on the arbitrator restrictions that go beyond what is acceptable under the principles of freedom of association. The Committee recalls that in mediation and arbitration proceedings, it is essential that all members of bodies entrusted with such functions should not only be strictly impartial but, if the confidence of both sides is to be gained and maintained, should also appear to be impartial to both employers and workers concerned [Digest, op. cit., para. 549]. The Committee therefore urges once again the Government to ensure in future that recourse to arbitration for the settlement of disputes be voluntary and that arbitration, once freely chosen by the parties to settle their disputes, be truly independent, all in line with freedom of association principles. The Committee requests to be kept informed of developments in this respect.
   • Consultation
8. 508. As regards the issue of consultation, the Committee recalls the importance that it attaches to the holding of full and frank consultations on any question affecting trade union rights [Digest, op. cit., para. 927], and that such consultation is essential and particularly valuable during the preparation and formulation of legislation [Digest, op. cit., para. 929]. Noting the information given by the Government in its communication of 13 August 2004, the Committee requests the Government to keep it informed of developments, including the results of the Education Partnership Table initiated by the Ministry of Education.
   • Final considerations
9. 509. The Committee notes once again that the violations of freedom of association in the present case constituted an almost exact repetition of those at issue in recent years. Furthermore, these involved a long series of legislative reforms in Ontario, where the Committee has concluded in each case to incompatibilities with freedom of association principles [Case No. 1900, 308th Report; Case No. 1943, 310th Report; Case No. 1951, 311th and 316th Reports; Case No. 1975, 316th Report; Case No. 2025, 320th Report]. The Committee stresses once again the seriousness of the situation and points out that repeated recourse to statutory restrictions on freedom of association and collective bargaining can only, in the long term, have a detrimental and destabilizing effect on labour relations, as it deprives workers of a fundamental right and means of defending and promoting their economic and social interests.
10. 510. The Committee is mindful that the present complaint arose as a result of a piece of legislation passed under the previous Government. The Committee also noted the current government assurances: that it has a different approach to labour relations in the education sector; that it is committed to creating a balanced and fair labour relations law; that it has started discussions with all education partners, including teachers and their organizations; and that the issues raised by the OTF and the OECTA will be duly considered. While taking due note of these intentions, the Committee recommends that the Government refer to the freedom of association principles mentioned above in its discussions with interested social partners, and to achieve concrete results rapidly, in view of the time span involved in the repeated violations mentioned above, in the present and previous cases. The Committee requests the Government to keep it informed of developments in this respect, including policy and legislative initiatives which, according to the Government, can be expected to ensue from the Education Partnership Table initiated by the Ministry of Education.
11. 511. The Committee recalls that the technical assistance of the Office as regards the matters raised in this case is available to the Government, should it so desire.