Report in which the committee requests to be kept informed of development - Report No 327, March 2002

Case No 2119 (Canada) - Complaint date: 01-MAR-01 - Closed

Allegations: Interference with collective bargaining

1. 214. The Ontario Secondary School Teachers’ Federation (OSSTF) and the Canadian Labour Congress (CLC) presented a complaint of violations of freedom of association against the Government of Canada (Ontario) in a communication dated 1 March 2001.
2. 215. In a communication dated 14 September 2001, the federal Government transmitted the reply of the Government of the Province of Ontario.
3. 216. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 217. The complainant Ontario Secondary School Teachers’ Federation (OSSTF) is an affiliated member of the complainant Canadian Labour Congress. OSSTF was founded in 1919 and is the recognized collective bargaining agent for approximately 50,000 members comprised of public secondary teachers, occasional teachers, teaching assistants, psychologists, secretaries, speech-language pathologists, social workers, plant support personnel, attendance counsellors and many other employees in the education sector across the Province of Ontario. OSSTF is the statutory bargaining agent for each of the secondary-school teachers’ units at all English-language school boards in the province, and is affiliated to the Ontario Federation of Teachers (OTF).
2. The issues
3. 218. The complaint concerns legislation governing collective bargaining in the education sector in Ontario, namely An Act to amend the Education Act to increase education quality, to improve the accountability of school boards to students, parents and taxpayers and to enhance students’ school experience (Bill 74, the Education Accountability Act, EAA). The complainants submit that the proportions of the EAA dealing with “co-instructional activities” of teachers in the Province of Ontario will significantly diminish the collective bargaining rights of elementary and secondary-school teachers, and dramatically alter the terms and conditions of their employment. In particular, the legislation restricts the scope of collective bargaining by making mandatory extra-curricular activities that were previously voluntary for teachers, and by specifically removing such duties from collective bargaining. The complainants assert that the impugned provisions of the EAA violate Conventions Nos. 87, 98, 151 and 154, and that recourse to such legislation by the Government undermines the freedom of association of teachers and their confidence in the fairness of the labour relations scheme in Ontario.
4. Background of the collective bargaining
5. scheme for Ontario teachers
6. 219. Prior to 1975, no general or specialized legislation regulated collective bargaining between teachers and school boards in Ontario; however, OSSTF informally acted as representative of all secondary school teachers in Ontario, including principals and vice-principals from 1925 onwards. Teachers in Ontario obtained the right to collective bargaining in 1975 with the passage of the School Boards and Teachers’ Collective Negotiations Act (SBTCNA). In 1997, Bill 160 – the Education Quality Improvement Act (EQIA) repealed the SBTCNA in its entirety, and replaced it with a legislative scheme governing teachers’ collective bargaining through the interaction of two separate statutes: Part X.1 of the Education Act and the Labour Relations Act, 1995. The Labour Relations Act applies to teachers except as modified by Part X.1 of the Education Act. Significant aspects of the Labour Relations Act are not applicable to teachers’ collective bargaining and are governed instead by special provisions of Part X.1 of the Education Act: the selection of bargaining agents and the design of bargaining units.
7. 220. Under the EQIA and its companion legislation (the Fewer School Boards Act), teachers in secondary and elementary schools are employed by District School Boards (DSBs). The trustees of DSBs are elected by citizens of the community for which they are responsible. DSBs had initially been granted taxing powers like the former local school boards, but subsequently had these powers deemed “inoperative”. While DSBs do not have financial independence from the provincial government, and therefore no real ability to exercise local management and financial control, the DSBs remain the nominal employer of secondary- and elementary-school teachers. From 1975 to 1997, legislated limits on collective bargaining for teachers in Ontario were uncommon. During this period, teachers had the right to negotiate any terms or conditions of employment with school boards. Indeed, that was required by the SBTCNA.
8. The Education Accountability Act
9. 221. On 10 May 2000, the Government introduced Bill 74, the EAA, which received Royal Assent on 23 June 2000 (sections 2, 3, 17, 18 and 19, which are the operative provisions with respect to co-curricular activities, were to come into effect at a later date to be determined by proclamation). The EAA will significantly affect the collective bargaining rights of elementary and secondary?school teachers and dramatically alter the terms and conditions of their employment in three significant ways: by forcing secondary-school teachers to perform extra?instructional time; by making previously voluntary activities mandatory; and by removing the right to bargain collectively any issues concerning co?curricular duties.
10. 222. As regards the first matter (obligation to perform extra?instructional time) the complainants take issue with the following provisions of the EAA:
11. - section 6(2): The current standard of 1,250 minutes of instruction time is amended so that every Board must ensure that its classroom teachers provide instruction on average of at least 6.67 eligible courses in a day school programme during the school year;
12. - section 6(9): Cabinet has the power to micro-manage through regulations, both general and specific, what will be considered eligible courses for the purposes of meeting the 6.67 requirement. Cabinet has extensive regulation-making power to define what will constitute a credit or credit-equivalent course, to set rules about how to count credit and credit-equivalent courses for the purpose of meeting the 6.67 threshold, and to determine when a teacher is considered to be assigned to provide instruction in an eligible course. Cabinet may set maximum average numbers for which specified types of eligible courses may be counted, and formulate special rules for how to count these courses, including the power to exclude otherwise eligible courses from the calculation. These special rules for counting eligible courses may take into consideration pupil attendance levels, class size, and patterns of teacher assignments;
13. - section 6(6): The operation of current agreement provisions regarding instructional time is curtailed by this section, as the allocation by the principal to individual teachers may be made despite any applicable restriction or condition in a collective agreement;
14. - section 7: The Minister has authority to micro-manage compliance with this section by requiring reports from the Boards. Where the Minister has concerns about the plan, he or she can direct it to be altered and implemented as directed by the Minister. The Minister may direct an investigation in the affairs of a Board if the Minister has concerns that the Board may have done something or omitted to do something in contravention of the Act. The Minister may take control and charge of the Board where it has made an order finding that there has been a failure to comply with a direction and where the Lieutenant Governor in Council considers it necessary and advisable.
15. 223. As regards the second matter (making previously voluntary activities mandatory), the complainants take exception with the following provisions of the EAA:
16. - section 1(1): The EAA amends the Education Act to include, among other things, the new concept of "co-instructional activities", broadly defined by the Act as activities other than providing instruction that: (a) support the operation of school; (b) enrich pupils’ school-related experience, whether within or beyond the instructional programme; or (c) advance pupils’ education and education-related goals. Further, these activities are defined as including, but not limited to, activities having to do with school-related sports, arts and cultural activities;
17. - section 17(2): It is the duty of a secondary-school teacher and a secondary-school temporary teacher to participate in co-instructional activities, in such manner and at such times as the principal directs;
18. - section 3(3): During the school year, co-instructional duties may be assigned to teachers any time during the day, seven days a week, with no specified maximum number of hours of work. The assignment of duties may take place on school premises or elsewhere;
19. - section 3(2): The school Board must plan co-instructional activities pursuant to the Minister’s guidelines;
20. - section 3(6): The Minister may require Boards to submit a plan in respect of co-curricular activities of the school year. The Minister may give such directions regarding the form, content and deadline for submission of a plan or report and Boards shall comply with such directions. Where the Minister has concerns that a plan may not comply with the requirements, the Minister may direct the Board to alter the plan;
21. - section 18: It is the duty of a principal to develop and implement a school plan providing for co-instructional activities and to assign duties relating to co-instructional activities;
22. - section 3(5): It is the exclusive function of the employer to determine how co-instructional activities will be provided by secondary-school teachers and no matter related to the provision of co-instructional activities shall be the subject of collective bargaining nor come within the jurisdiction of an arbitrator or a board of arbitration;
23. - section 7: The Minister may direct an investigation of the affairs of a Board if the Minister has concerns that the Board may have done something or omitted to do something in contravention of the Act. The Minister may take control and charge of the Board where it has made an order finding that there has been a failure to comply with a direction and the Lieutenant Governor in Council considers it necessary and advisable;
24. - section 20: Any withdrawal or slowdown of this extra-curricular activity will be considered a strike within the definition of the Labour Relations Act.
25. 224. Prior to the passing of the EAA, teachers’ participation in a wide variety of extra-curricular activities was not regulated by the Government, nor has it historically been the subject of explicit language in collective agreements. Instead, teachers from across Ontario have volunteered hundreds of thousands of hours of their own time to organize extra-curricular activities for their students. They organize and supervise the basketball teams, camera clubs, choirs, field trips, and overseas educational excursions that enrich students’ lives. The wide range of non-instructional activities in which teachers have historically engaged, extending from staff meetings to coaching the athletic teams, has largely depended upon a teachers’ sense of professionalism and shared expectations in the form of unwritten understandings. While not every teacher in Ontario takes on additional duties at all times over the course of his or her career, the overwhelming majority of teachers are involved in extra-curricular activities. Some teachers, however, may have compelling reasons for limiting the additional duties they can take on at any given point in their career: they may have young children at home, care for an ageing family member, or commute long distances to work. These activities had been organized so far on a school-by-school basis -- and it has worked. Teachers who have voluntarily devoted extensive time to extra?curricular activities have not received, and have not sought, additional remuneration, notwithstanding the significant additional workload which they have had to assume as a result of provincial cutbacks. The EAA provisions reviewed above would force teachers to assume mandatory co-curricular duties assigned by the principal and which may be enforced by a third party, or by the Minister.
26. 225. As regards the third issue (removal of the right to bargain collectively on co-curricular duties) the complainants submit that this right would be specifically removed by the legislation. Section 18 of the EAA clearly states that teachers cannot negotiate clauses in their collective agreements to protect them from arbitrary and unreasonable assignment of extra-curricular activities and that the assignment of these activities cannot be dealt with through arbitration. The EAA places complete control over all of the non-teaching aspects of a teacher’s working life in the hands of the Government and the DSBs, and grants no protection to teachers to ensure that such powers are not abused. For example, there are no restrictions on the number of co-instructional hours which teachers must work, or on the conditions under which such work is performed, nor is there any provision for additional remuneration for the performance of such work. The EAA provides no assurance that the personal circumstances of teachers, that compel them to limit additional duties on top of their instructional duties, will be respected.
27. 226. Finally, any concerted or common refusal by teachers to perform assigned co-instructional duties will now constitute a strike within the definition of the Labour Relations Act and would be illegal during the lifetime of any collective agreement. The Ontario Labour Relations Act, like other labour relations statutes across Canada, makes strike activity illegal unless taken within the limited time frames established under statute, namely after the expiration of a collective agreement and after the conclusion of statutorily mandated conciliation/mediation. The Act makes it unlawful for any person bound by collective agreement from engaging in strike activity or for a trade union or its officers to call, authorize, threaten to call or authorize, or otherwise counsel, procure, support or encourage an unlawful strike.
28. 227. The complainants assert that the EAA violates Conventions Nos. 87, 98, 151 and 154 in that it gives the Government exclusive control over co-instructional activities; restricts the right to strike; nullifies any negotiated clauses on voluntary activities; was not preceded with meaningful consultations; and has a punitive nature.
29. 228. As regards the first issue, the complainants allege that the EAA vests the Ministry of Education, DSBs and principals with the exclusive authority to control working conditions of teachers as they relate to extra-curricular activities. This unilateral governmental control over the performance of co-instructional activities, and the exclusion of these activities as bargainable issues, violates the right to collective bargaining. Under the EAA, activities that teachers have voluntarily performed in the past are now mandatory. Section 17 provides that it is a duty of secondary-school teachers to participate in co-instructional activities in such a manner and at such times as the principal directs. The EAA places no restrictions on the working conditions under which teachers are required to perform these activities such as time, location, or duration. Section 3(5) of the EAA excludes matters related to the provision of co-instructional activities from the scope of collective bargaining and arbitration. School boards are mandated to develop plans regarding the provision of co-instructional activities for each school year in accordance with the guidelines established by the Minister of Education. The Minister retains broad powers to monitor and direct the content of these plans. Principals are required to develop co-instructional plans and assign activities to teachers within the framework developed by the school board and the Minister. The Government’s unilateral control over co-instructional activities thus fails to encourage and promote the full development and utilization of machinery for voluntary negotiations between employers' and workers' organizations with a view to regulating terms and conditions of employment by means of collective agreements mandated under Article 4 of Convention No. 98, and Article 7 of Convention No. 151.
30. 229. The complainants submit that since co-instructional activities and instructional time are being made integral aspects of the employment terms and conditions of teachers, they should be subject to free and voluntary bargaining.
31. 230. As regards restrictions to right to strike, section 20 of the EAA amends the definition of "strike" to include any collective cessation or refusal to perform co-instructional activities. The complainants submit that to exclude collective bargaining with respect to co-instructional activities and, at the same time, to define any withdrawal of what is essentially voluntary activity as an illegal strike, is draconian and contrary to principles of freedom of association. Teachers are prevented from taking advantage of the Labour Relations Act protections with respect to negotiating co-instructional activities, but are subject to full punitive force of the Act with respect to those same activities. Such a measure employs the Labour Relations Act as a weapon against teachers. The Committee has recognized that the right to strike is one of the legitimate and essential means through which workers and their organizations may defend their social and economic interests. It has stated that, while unfortunate consequences may flow from a strike in the education sector, they do not justify a serious limitation of the right to strike, unless they become so serious as to endanger life, personal safety or health of the whole or part of the population. The Committee has also recognized that teachers should enjoy the right to negotiate freely their working conditions and to have recourse to strike action as a legitimate means of defending their economic and social interests.
32. 231. As regards the nullification of any negotiated clauses regarding voluntary activities, section 18 of the EAA confers principals with the authority to develop plans and to assign co?instructional activities, irrespective of whether such assignments comply with restrictions that may be contained in collective agreements. The Committee has stated that a legal provision which allows the employer to modify unilaterally the content of signed collective agreements, or to require that they be renegotiated, is contrary to the principles of collective bargaining. It has also held that the suspension or derogation by decree -- without the agreement of the parties -- of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98. In this case, the EAA has the power to effectively nullify any existing or negotiated provisions in collective agreements regulating the performance of co-instructional activities and thus infringes the principle of free and voluntary collective bargaining.
33. 232. The complainants also submit that the EAA was quickly passed through the Ontario legislature without any meaningful consultation with teachers’ unions, teachers, students or parents.
34. 233. As regards the punitive aspect of the EAA, the complainants submit that those portions of the EAA dealing with "co-curricular activities" have not been enacted to address any lack of willingness on the part of teachers across Ontario to participate in extra-curricular activities. In fact, the Minister of Education has recognized on numerous occasions that the majority of teachers participate in extra-curricular activities (Ontario Hansard: 18 December 2000, 17 October 2000, 26 September 2000). The complainants allege that the Government has introduced the legislation as a punitive response to an isolated situation in Durham Region, where secondary-school teachers had withdrawn their extra?curricular activities in response to a labour-management dispute regarding instructional time (coincidentally, Durham Region falls within the electoral riding represented by the Minister of Education and the Attorney?General). Secondary-school teachers in Durham declined to perform voluntary extra-curricular activities because they were carrying a heavier teaching load than any other high school in the province. Every other school board in the province that was faced with a higher secondary-school workload under Bill 160 managed to work out agreements with teachers because those school boards realized workloads had to be lighter. It was only in the Durham Region that school boards failed to negotiate a lighter workload. The complainants allege that the Government is making voluntary extra-curricular activities compulsory for all teachers in Ontario, as a punitive response to the withdrawal of such activities in Durham and, second, to preclude any further withdrawals of voluntary services by teachers elsewhere. Such use of the legislation by the Government undermines the freedom of association of teachers and undermines confidence in the fairness of the labour relations scheme in Ontario. The complainants point out that the punitive element of the EAA described above was also present in the Government’s introduction of certain amendments to Bill 160 in the face of protest action by teachers, previously addressed by the Committee in Case No. 1951.
35. 234. More generally, the complainants submit that the EAA is simply the latest example in a long series of government interference in free collective bargaining [Case No. 1900: exclusion of agricultural and domestic workers and certain professionals (Bill 7); Case No. 1943: interference with independence of interest arbitrators, (Bill 26, Bill 136, Bill 48); Case No. 1975: exclusion of employees under the welfare system (Bill 22)] and in the education sector in particular [Case No. 1951: exclusion of certain matters form collective bargaining (Bill 160); Case No. 2025: back-to-work legislation after lawful strike, and lack of prior consultation (Back-to-School Act, 1988)].
36. 235. The complainants submit that, despite past decisions of the Committee, the Government has consistently failed to:
37. - recognize that the right to bargain freely with employers regarding 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;
38. - encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
39. - observe the principle of non-discrimination in trade union matters as required by Article 2 of Convention No. 87, whereby freedom of association should be guaranteed without discrimination of any kind based on occupation or otherwise;
40. - recognize the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests;
41. - consult fully with trade unions and employers’ organizations to determine how to strive to promote confidence in the labour relations system of Ontario.
42. 236. The complainants submit that the conclusions and recommendations of the Committee have, by and large, fallen on deaf ears and that the Government of Ontario clearly has flouted its obligation to observe the Conventions and principles of freedom of association as articulated by the Committee over the past five years. Thus, given:
43. - the long record of the current Government in interfering with freedom of association and the right to collective bargaining in Ontario;
44. - that the Government has clearly and consistently ignored its obligations to observe ILO Conventions and principles irrespective of decisions by the Committee on Freedom of Association requesting it to take alternative measures;
45. - the consistently serious nature of the interferences involved; and
46. - the undermining of confidence in the scheme of labour relations in Ontario,
47. the complainants request that the Committee dispatch a mission to Ontario to inquire into the systematic manner in which labour rights have been undermined by the present Government.
48. B. The Government’s reply
49. 237. In its communication of 14 September 2001, the Government states that the focus of its education reform agenda is aimed at ensuring that Ontario’s students have access to the best-quality education. Consistent with this focus, the purpose of the EAA was to:
50. (i) ensure that school boards actually meet the instructional time standard for teaching time in secondary schools -- four hours and ten minutes per day, or just under 21 hours per week;
51. (ii) lower the average class sizes at both the elementary and secondary levels;
52. (iii) ensure that school boards meet the province-wide quality standards in such areas as class sizes, curriculum and provision of special education;
53. (iv) ensure that school boards meet the objectives of student-focused funding by dedicating more resources to the classroom.
54. 238. The EAA also included provisions dealing with co-instructional activities. Co-instructional activities are activities that support the operation of schools, enrich pupils’ school-related experience, whether within or beyond the instructional programme, or advance pupils’ education and education-related goals. This would include participation in school-related sports, arts and cultural activities, parent-teacher and pupil-teacher interviews, letters of support for pupils, staff meetings and school functions. Under the co-instructional provisions of the EAA, the school board and principal would have been required to develop and implement a plan to provide co-instructional activities and to assign teachers to perform those activities. Teachers’ duties would have included participation in the provision of co?instructional activities. The Government points out, however, that the operative co?instructional provisions were not proclaimed in force with the rest of EAA.
55. 239. The Government submits that school boards are a special kind of employer in that they have a duty to operate schools for approximately 2 million pupils in Ontario who have a statutory right to attend school. The operation of schools as a workplace must be consistent with the delivery of quality education programmes to pupils. The EAA does not limit the right of employees to associate recognized by the Education Act, R.S.O. 1990, c. E.2, as amended.
56. 240. With respect to the scope of bargaining in the education sector, the Freedom of Association Committee has accepted that a distinction may be drawn between matters that are essentially or primarily concerned with management and operation of business, which can be regarded as outside the scope of bargaining, and matters relating to conditions of employment, which should be subject to collective bargaining [Case No. 1951, 316th Report, para. 222]. The Committee has further acknowledged that issues that can be considered closely linked to educational policy, such as class size and instruction time, may be excluded from the scope of collective bargaining notwithstanding that they may also have a bearing on conditions of employment [ibid; para. 223].
57. 241. The provision of co-instructional activities in schools raise aspects of broad educational policy. As indicated above, co-instructional activities support the operation of schools, enrich pupils’ school-related experience, whether within or beyond the instructional programme, and advance pupils’ education and education-related goals. The findings of numerous studies indicate that co-instructional activities such as sports, music and cultural activities, are an important part of students’ education. Similarly, activities such as staff meetings, graduation ceremonies, pupil-teacher and parent-teacher meetings are important to the operation of schools and to the education of students.
58. 242. While the Government maintains that the provision of co-instructional activities is a matter of broad educational policy and, as such, may be excluded from the scope of collective bargaining, it is important to recognize that it has not chosen to do so. The co-instructional provisions of the EAA that form the basis of the complaint were never proclaimed in force. Furthermore, the Stability and Excellence in Education Act (SEEA), which came into force on 29 June 2001, repealed those "operative" provisions of the EAA that form the basis of the complaint. In particular, the following subsections of the Education Act, as enacted by the EAA, were repealed by the SEEA: ss. 170(2.1), (2.2), (2.3) and (2.4) (as enacted by section 3 of the EAA); ss. 264(1.2) and (1.3) (as enacted by section 17 of the EAA); and ss. 265(2), (3) and (4) (as enacted by section 18 of the EAA). As such, the complainants’ allegations that the EAA restricts the scope of collective bargaining and diminishes collective bargaining rights in this regard are unfounded.
59. 243. With respect to instructional time, as the complainants acknowledge, the Committee has recognized that instruction time may be considered to be an aspect of educational policy and, as such, may be outside the process of collective bargaining [Case Nos. 1951, para. 223]. Notwithstanding that instruction time may be considered a matter of broad educational policy, the Government points out that, contrary to the complainants’ allegation, the EAA does not force secondary?school teachers to perform "extra" instructional time. Rather, the EAA maintains the established standard for teaching time in secondary schools. However, in order to address differing interpretations of the standard and to ensure that the same standard is applied throughout the province, the EAA modified the way instruction time is measured. Rather than expressed in the form of minutes of instruction time, teaching time is now measured as an average of eligible courses in the day-school programme during the school year. This is calculated as an average of eligible courses assigned to the classroom teachers employed by the school board and is based on assignments over the entire school year. The number of days that teachers work did not increase. The EAA simply ensures that a specified amount of time is actually spent instructing students. Furthermore, with the passage of the SEEA, the definition of what may be included as instructional time has been broadened. Within the parameters set out in the legislation, boards and teachers’ unions can still negotiate teacher workloads.
60. 244. The EAA respects the right of teachers to engage in a strike. While the EAA amends the definition of strike for the purposes of the education sector, this amendment does not limit the exercise of this right. The amended definition merely clarifies what type of activity constitutes a strike. For the purposes of the education sector, a "strike" includes any collective action or activity that is designed to restrict, limit or interfere with the operation of one or more school programmes, including programmes involving co-instructional activities. However, it is imperative to note that teachers remain entitled to engage in a legal strike as a means of defending their economic and social interests.
61. 245. The Government states that the parties remain free to negotiate conditions of employment including the delivery of co-instructional activities, since section 18 of the EAA -- which would have required principals to develop and implement school plans for the delivery of co-instructional activities and to assign duties relating to those activities -- was never proclaimed in force and has since been repealed by the Government. Accordingly, there is simply no basis for the allegation that the EAA nullifies or modifies any provisions of a collective agreement regarding the provision and delivery of co-instructional activities. Furthermore, on a broader scale, school boards continue to be able to negotiate about salary, benefits, leaves of absence, pupil-teacher ratios, class size (within prescribed limits), positions of additional responsibility (e.g. department heads), grievances, paid leave for union activities, "just cause" protection for discipline and dismissal, seniority, surplus recall, etc.
62. 246. As regards consultation, the Government submits that the EAA forms part of its overall education reform initiative undertaken to improve the quality of education for pupils in Ontario. Throughout this reform initiative, both prior to and following introduction of the EAA, 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, which is public and democratic in Ontario. During the legislative process, a Standing Committee of the Legislature, consisting of members of all the political parties, held hearings to receive public input. Teachers’ unions made submissions at these hearings. In addition, teachers’ union officials held meetings with senior representatives of the government of Ontario to discuss different aspects of the proposed changes, including the issue of co-instructional activities. The government listened and responded to the input it received. The government confirmed that it would not proclaim into law the sections of the EAA that dealt with co-instructional activities. Furthermore, as indicated, the critical provisions relating to co-instructional provisions have since been repealed by the SEEA. Prior to the introduction of the SEEA, a series of consultation meetings were held with representatives of teachers’ unions and that Act reflected those consultations.
63. 247. Contrary to the assertion of the complainants, the motivation for the EAA was not to punish. Rather, the EAA was passed to ensure that school boards meet provincial quality standards in education so as to ensure that Ontario’s students have access to the best-quality education.
64. 248. Regarding the issue of repeated interference, the Government states that it is committed to balanced, stable and productive labour relations in an environment that ensures that Ontario’s students have access to the best-quality education. It is simply not accurate to portray the EAA as "the latest in a series of government interferences into free collective bargaining ...". It does not prevent teachers from associating, engaging in collective bargaining or striking.
65. 249. By way of summary, the Government states that the complaint is unfounded since: the EAA respects the freedom of teachers to associate; the provision and delivery of co-instructional activities are matters of broad educational policy; in any event, the "operative provisions" of the EAA that form the basis of the complaint were never proclaimed in force and have since been repealed; the EAA respects the right to strike; the EAA was passed in order to ensure that Ontario’s students have access to the best quality education; and teachers’ unions have had the opportunity to express their views and make submissions on education reform and the Government has taken this input into account and has acted accordingly.

C. The Committee's conclusions

1. 250. The Committee notes that this case concerns alleged violations of freedom of association as a consequence of the adoption of the Education Accountability Act (EAA), which amended labour relations in the education sector in the Province of Ontario. The complainants submit that the EAA excludes from collective bargaining certain matters that had previously been subject to negotiation; that it restricts the scope of collective bargaining regarding instructional time and co-instructional activities, as well as the right to strike; and that the parties concerned were not adequately consulted before the adoption of the EAA.
   • Scope of collective bargaining -- Instruction time
2. 251. The Committee notes that, according to section 6(2) of the EAA "Every board shall ensure that, in the aggregate, classroom teachers in secondary schools are assigned to provide instruction to pupils in an average of at least 6.67 eligible courses in a day?school program during the school year" ("eligible" courses are defined as a credits-course or a credits-equivalent course). Furthermore, section 6(9) empowers the Lieutenant Governor in Council to make regulations on detailed aspects of courses, programmes and credit-equivalent courses. The Committee notes the complainant’s contention that the Act significantly affects the collective bargaining rights of teachers by forcing them to perform extra?instructional time, and by amending the current standard of 1,250 minutes of instruction time. The Committee also notes that sections 6(4) and 6(5) of the EAA provide that the principal must allocate instruction time among teachers, and that under section 6(6) the allocation of instruction time may be made despite any applicable conditions or restrictions in a collective agreement. The complainants contend that as a result of the legislative restrictions, provisions of existing collective agreements could be rendered meaningless. The complainants also take issue with section 7 of the EAA, which empowers the Minister of Education to direct an investigation into the affairs of a school board if he is concerned that the board may have done something, or omitted to do something, in contravention of the Act. Furthermore, the Minister may take control and charge of the board where he concludes that it has failed to comply with a direction.
3. 252. The Committee notes the Government’s view that the exclusion of instruction time from collective bargaining is justified because the Committee has acknowledged that instruction time may be considered to be an aspect of educational policy and, as such, may be outside the process of collective bargaining. Furthermore, according to the Government, the Act does not force secondary?school teachers to perform extra?instructional time, as it maintains the established standard for teaching time in secondary schools and simply modifies the way instruction time is measured.
4. 253. 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 that 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 also previously emphasized the importance of promoting collective bargaining in the education sector [Digest, op. cit., para. 804; 310th Report, Case No. 1928 (Canada/Manitoba), para. 175]. In this respect, the Committee has acknowledged that a distinction may be made between matters that essentially concern the management and operation of business, for example the determination of the broad lines of educational policy, which may be excluded from collective bargaining, and matters relating to conditions of employment, which should be subject to collective bargaining. Although the Committee has acknowledged that the amount of instruction time may have aspects of broad policy, it has stressed that Governments must ensure that the unions concerned are fully consulted when such broad policy is being formulated. The Committee has also emphasized that in all cases, free collective bargaining should be allowed to take place on the consequences of educational policy decisions on conditions of employment [316th Report, Case No. 1951 (Canada/Ontario), para. 223].
5. 254. The Committee notes that, in the present case, the allocation of instruction time by the principal to individual teachers results from the Government’s policy decision to fix the amount of instruction time. The Committee considers that subjects such as the allocation of instruction time have an important consequence on the conditions of employment of teachers and should not be regarded as falling outside the scope of collective bargaining. The Committee therefore requests the Government to amend its legislation so that free collective bargaining may take place on the consequences of educational policy decisions on the conditions of employment of teachers, and in particular on the allocation of instruction time by the principal to individual teachers. The Committee requests the Government to keep it informed of developments in this regard.
6. 255. The Committee further notes the contradiction between the complainant’s allegation that the EAA increases the current standard instruction time, and the Government’s contention that the established standard for teaching time is maintained. Taking into account the fact that this aspect of employment conditions was previously dealt with through collective bargaining, the Committee requests the complainant and the Government to provide more detailed information regarding modifications made to the established standard teaching time by virtue of the EAA.
   • Scope of collective bargaining -- Co-instructional activities
7. 256. The Committee notes the complainant’s allegation that the EAA restricts the scope of collective bargaining by making mandatory extra-curricular activities that were previously voluntary for teachers and by specifically removing such duties from collective bargaining. The Committee also notes the Government’s position that provision and delivery of co-instructional activities are matters of broad educational policy and, as such, may be excluded from the scope of collective bargaining. While recalling as a general proposition that matters that deal primarily with questions relating to conditions of employment cannot be excluded from collective bargaining [325th Report, Case No. 1951 (Canada/Ontario), para. 206], the Committee notes that the provisions of the EAA dealing with co?instructional activities never entered into force and were repealed through the adoption of the Stability and Excellence in Education Act (SEEA).
   • Right to strike
8. 257. Regarding the complainant’s contention that the EAA restricts the right to strike of school teachers, the Committee notes that the Act clarifies what type of activity constitutes a strike, without however limiting the exercise of this right. Section 20 of the EAA amends the definition of “strike” to include any collective action or activity that is designed to restrict, limit, or interfere with the operation of school programmes involving co-instructional activities. The Committee also notes that teachers remain entitled to engage in a legal strike as a means of defending their economic and social interests.
   • Prior consultation
9. 258. The Committee notes that according to the complainant, the EAA was passed through Ontario legislature quickly and without meaningful consultations with teachers’ unions, teachers or parents. The Committee also notes that according to the Government, a standing committee of the Legislature held hearings prior to and following the introduction of the EAA, to receive public input, where teachers’ unions made submissions. Furthermore, the Government states that teachers’ unions officials held meetings with senior government representatives to discuss the proposed changes, including the issue of co-instructional activities, and on these occasions the Government confirmed that it would not proclaim into law the sections of the EAA that dealt with co-instructional activities. While noting that there were in this case some consultations, as evidenced by the fact that some provisions of the EAA objected to by the complainant never came into force, the Committee recalls the importance that should be attached to full and detailed consultations before the introduction of legislation affecting collective bargaining or conditions of employment.

The Committee's recommendations

1. 259. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to amend its legislation so that free collective bargaining may take place as regards the consequences of educational policy decisions on the conditions of employment of teachers, in particular on the allocation of instruction time by the principal to individual teachers, and to keep it informed of developments in this regard.
   • (b) The Committee requests the complainant and the Government to provide more detailed information regarding modifications made to the established standard teaching time by virtue of the EAA.