Rapport définitif - Rapport No. 320, Mars 2000

Cas no 2025 (Canada) - Date de la plainte: 14-MAI -99 - Clos

Allegations: Interference with the right to strike and to bargain collectively of teachers; lack of consultation prior to adopting legislation

1. 374. Education International (EI), the Canadian Teachers' Federation (CTF), the Ontario Teachers' Federation (OTF) and the Ontario English Catholic Teachers' Association (OECTA) presented a complaint of violations of freedom of association against the Government of Canada (Ontario) in a communication dated 14 May 1999.
2. 375. In response to the allegations, in a communication dated 1 September 1999, the Federal Government transmitted the reply of the Government of the Province of Ontario. The Government also forwarded a copy of the Back to School Act, 1998.
3. 376. 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. 377. The complaint concerns the adoption in September 1998 of the Back to School Act, which brought an end to strikes and lockouts in the secondary schools of eight Ontario school board jurisdictions, seven of which were publicly funded Roman Catholic school boards. In their communication of 14 May 1999, the complainants allege that the Back to School Act, 1998 ("the Act"), 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). In particular, the complainants submit that the Act was passed without justification and without prior consultation, it interrupted lawful processes of voluntary collective bargaining and imposed mediation-arbitration which fails to meet the requirements of independence and impartiality and improperly restricts the scope of the arbitrator's jurisdiction. The complainants emphasize their increasing disquiet concerning what they view as attacks on collective bargaining in Canada, including by the Provincial Government of Ontario. They state that the Back to School Act is the latest in a series of enactments, passed by the Government of Ontario since it was elected in 1995, that have interfered in significant ways with the freedom of association rights of Ontario workers.
2. 378. As background, the complainants state that the OECTA was formed in 1944 as a provincial association to represent all teachers employed in Ontario's Roman Catholic separate school system. The separate system in Ontario is a publicly-funded system protected by the denominational rights guaranteed by the Canadian Constitution. OECTA has approximately 35,000 members in the separate school system and holds the collective bargaining rights for these teachers.
3. 379. With respect to the recent history of teachers' collective bargaining in Ontario, the complainants state that from 1975 until the adoption of the Education Quality Improvement Act (Bill 160) in December 1997, teachers exercised collective bargaining rights under the School Boards and Teachers Collective Negotiations Act, 1975. Pursuant to the 1975 legislation, all matters relating to teachers' terms and conditions of employment, including class size and preparation time, were subject to negotiation between local school boards and teachers' associations. Teachers also had the right to strike, with two qualifications: first, principals and vice-principals 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 1975 legislation, such a jeopardy finding was never made prior to a strike or lockout continuing for at least 27 school days. Pursuant to Bill 160, teachers were made subject to the general labour legislation, as modified by the terms of Bill 160, and principals and vice-principals were removed from teachers' bargaining units and excluded from coverage under the general labour legislation. While teachers continue to have the right to strike under Bill 160, "jeopardy findings" may be made by an unnamed person or entity, to be appointed, according to the complainants, on an ad hoc basis by the Government.
4. 380. The complainants explain that elementary and secondary-school teachers in the Ontario school system are usually organized in separate bargaining units and covered by separate collective agreements. The collective agreements negotiated by OECTA for secondary-school teachers under the 1975 legislation typically included provisions related to class size, staffing levels and preparation time. Under most of the collective agreements in effect prior to the passage of Bill 160, teachers were required to teach six out of eight periods in the school day and the average preparation time provided for was 40 minutes per school day. Under Bill 160, however, the provincial government is given control over a number of fundamental issues which were the subject of unfettered collective bargaining previously, the key issues affecting class size and preparation time, with a decrease of preparation time of approximately 25 per cent of that generally provided for in secondary school collective agreements.
5. 381. The complainants submit that the provincial government under Bill 160 has also been given new and unprecedented powers over the funding and governance of the Ontario education system. The complainants state that prior to the adoption of Bill 160, local school boards maintained primary and ultimate 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. Bill 160 effectively places ultimate control over education funding in the hands of the provincial government by removing the school boards' power to set and levy local taxes, and gives the provincial government very broad powers to determine how much money will be made available to fund the education system and the manner in which that money will be expended.
6. 382. The changes proposed in Bill 160 and ultimately adopted were highly controversial within the education community and resulted in Ontario teachers engaging in a two-week political protest over the Bill while it was passing through the legislative process. The teachers strongly believed that all the changes proposed would have a negative impact, not only upon their terms and conditions of employment, but upon the quality of Ontario's publicly-funded education system.
7. 383. Shortly after Bill 160 was adopted, OECTA launched a constitutional challenge to the provisions removing the separate school boards' financial power and autonomy. On 22 July 1998, the Ontario Court of Justice held that the removal of the separate school boards' local taxation powers violated the denominational rights guaranteed under the Canadian Constitution, but rejected OECTA's claim that the new government control over budgeting and expenditure violated the rights of separate school supporters under the Constitution. Appeals by the Government on the finding of the right to tax holding and by OECTA on the budgeting and spending holdings, are pending before the Ontario Court of Appeal.
8. 384. The complainants go on to note that while the constitutional challenge was proceeding, OECTA and its locals were involved in the first round of collective bargaining under the new system for renewal of collective agreements. At the end of the summer of 1998, negotiations for the secondary teachers reached an impasse in seven of the Catholic school boards. The primary issues in dispute related to staffing levels, class size and preparation time, all of which were affected by the new provisions of Bill 160. In each of these boards, the secondary-school teachers either commenced legal strikes or were locked out by the time the school year commenced in September 1998. Before the industrial action commenced, OECTA had proposed to the Ontario Catholic School Trustees that a series of questions affecting the outstanding matters in dispute be referred to a mutually agreed-upon arbitrator for determination. These questions related to issues arising from the new statutory class size and instructional time provisions of Bill 160. The trustees would not accept this proposal.
   • The Back to School Act and its impact
9. 385. The Back to School Act was adopted on 28 September 1998. No jeopardy finding was requested or made prior to the Government passing the back-to-work legislation. The complainants point to a number of consequences arising from the adoption of the Act:
   • -- the termination of the secondary school strikes and lockouts taking place in eight school boards, seven of which were Catholic school boards;
   • -- the establishment of penalties for failure to comply with its provisions;
   • -- the reinstatement of terms and conditions for teachers, including incorporating any changes in effect on 25 September 1998 which had been unilaterally made by school boards after the expiry of the statutory freeze period (with the exception of salaries and benefits which were to remain at the levels provided for in the most recent collective agreement);
   • -- arbitration of outstanding disputes;
   • -- plans to be made by the parties to address the loss of instructional time - in the absence of a plan prepared by the parties and approved by the Minister of Education and Training, the Minister was empowered to prepare a plan which the school board was required to implement.
10. 386. The complainants characterize the interest arbitration under the Act as unique to this legislation and highly restrictive. They submit that the Act imposes a scheme that completely fettered the mediator-arbitrator's jurisdiction in relation to any substantive matter in dispute, effectively required the mediator-arbitrator to implement the Government's funding decisions, and effectively prohibited the mediator-arbitrator from dealing with the issues in dispute on their merits. The following requirements under the Act are highlighted by the complainants:
    • -- the parties could jointly appoint the mediator-arbitrator or either party may request an appointment by the Minister of Labour, and the parties would share the cost;
    • -- the mediator-arbitrator was to make an award that would be consistent with the Education Act and regulations and was to have regard to any further amendments to the Education Act, including to a pending Bill defining instructional time for the purposes of the minimum instructional time standards legislated in Bill 160 (the Instruction Time: Minimum Standards Act, 1998, received first reading on the same day the Back to School Act was passed and was adopted on 7 October 1998);
    • -- the scheduling of pupils' instruction, the length of instructional programmes provided to pupils on school days and the length of pupils' instruction periods "are education matters for boards to determine under the Education Act", and mediator-arbitrators were prohibited from making an award that would interfere with such determinations;
    • -- the mediator-arbitrator was to make an award "that he or she considers, having regard to relevant education funding regulations and Ministry of Education and Training policies, can be implemented in a reasonable manner without causing the scheduled boards to incur a deficit";
    • -- where the implementation of the award would result in an increase in costs, the mediator-arbitrator was to include a written statement explaining how the costs could be met without incurring a deficit, and having regard to the relevant education funding regulations and Ministry of Education and Training policies;
    • -- the mediator-arbitrator was empowered to provide for retroactive alteration of one or more terms and conditions of employment;
    • -- either party could submit the mediator-arbitrator's award to judicial review for failure to meet the requirements of compliance with the Education Act and regulations.
11. 387. The complainants state that the Government did not engage in any consultation with OECTA prior to passing the legislation and did not make any efforts to determine whether there were alternative options for ending the labour disputes and for providing dispute resolution mechanisms. The complainants state that OECTA remained open throughout the strikes and lockouts to referring questions relating to the interpretation and application of the new class size and instructional time provisions to a mutually agreed-upon arbitrator. The complainants note that most renewals of collective agreements which were reached by agreement between OECTA and the school board maintained the teaching workload provided for in the prior collective agreement, including teaching workloads of six out of eight periods.
12. 388. Six of the seven Catholic school boards' labour disputes were subjected to interest arbitration under the Act; the dispute concerning the seventh school board was ultimately resolved by agreement. In two of the cases subject to arbitration the parties agreed on the mediator-arbitrator, who was an experienced labour relations arbitrator. In the remaining four cases, the Minister of Labour appointed a retired judge as the mediator-arbitrator rather than an adjudicator with experience in the arbitration of interest disputes. In all the disputes that went to arbitration, the last collective agreement had provided for teaching assignments of six out of eight periods. The school boards had already implemented an increase in the teaching assignments and were proposing that these be maintained. OECTA's proposal was to continue the teaching assignments under the previous collective agreements. All the arbitrators concluded that increased teaching assignments were necessary to meet the financial restrictions based on the financial information available.
13. 389. The complainants note that the two mediator-arbitrators with labour relations experience expressed concern in their awards about the process imposed by the Act. One arbitrator made the following comments in his award:
    • This process, because of the limits imposed by the legislation, clearly did not allow either the parties or the mediator/arbitrator to fashion the same solution that would have been reached under normal collective bargaining, or even under a more conventional arbitration process ... The statutory restrictions imposed by the provincial government, however, have clearly created a situation where both parties were forced to adopt positions that were far from ideal from the perspective of the parties' mutual desire to provide a high quality education to their students. These constraints apply to me as mediator/arbitrator and, because of these constraints, my award is far from an ideal solution to the difficult problems now facing the board and teachers ... .
    • The mediator-arbitrator in this case concluded that since the union's final position on the teaching workload would result in the school board incurring a deficit, he was obliged to accept the school board's position.
14. 390. The complainants submit that the back-to-work legislation was not justified since teachers are not public servants engaged in the administration of the State and the labour disruptions did not threaten the life, personal safety or health of the whole or part of the population. Teachers in Ontario are not generally denied the right to strike and never have been since their formal coverage under collective bargaining legislation. The complainants state that, moreover, the Government took this extreme course of action in the absence of a finding that the continuation of the strikes or lockouts would place in jeopardy the successful completion of courses of study by the affected students, and there was no evidence that the Government sought the advice of the appropriate person or body with respect to this question. The complainants state that the power to terminate lawful strikes and lockouts by legislation is an extraordinary measure which sends a message that the voluntary collective bargaining system has failed, a message which has the potential to undermine the confidence in the collective bargaining system.
15. 391. On the allegation of failure to consult OECTA prior to passing the Act, the complainants state that as a result of its massive intrusion into the funding, governance and management of the education system, the Government is now in effect acting indirectly as the employer of teachers, and in assuming this role, must also assume responsibility for ensuring adequate consultation on alterations to the bargaining structure for teachers. The complainants submit that it was incumbent on the Government to have engaged OECTA in a meaningful consultation process about alternative options for resolving the labour disputes before giving any consideration to the drastic option of imposing back-to-work legislation.
16. 392. The complainants contend further that the scope of arbitration provided under the Act is too restrictive. The Act, together with the Instruction Time: Minimum Standards Act, were, according to the complainants, clearly designed to place comprehensive fetters on the arbitrator's jurisdiction to resolve the disputed issues. The combination of express restrictions on the arbitrator's authority to consider matters related to instructional time, and the requirement that the arbitrator's award not increase a school board's compensation costs or result in a deficit, removed any actual scope for decision-making on the key issues in dispute. The substance and breadth of the restrictions on the arbitrator's jurisdiction under the Act effectively removed fundamental issues of working conditions from the scope of collective bargaining.
17. 393. According to the complainants, the interest arbitration under the Act is further flawed from a freedom of association perspective in that the process is not impartial and independent. The complainants state that where an interest arbitrator is directly appointed by the Government which also prescribes the legislative criteria that he or she must follow, the independence of the system is compromised. The independence of the arbitration system is also fatally compromised whether the arbitrators are chosen by the parties or appointed by the Government since the restraints on the arbitration process and outcome imposed by the Act left the arbitrators no alternative but to implement objectives of the Government of Ontario with respect to important working conditions for teachers. The complainants state that legislative restraints of this order are fundamentally incompatible with an arbitration system which is intended to replicate the results achieved where there has been no interference with free collective bargaining.
18. 394. Finally, the complainants submit that the arbitration process has been subverted for political ends. Though the Ontario Government is not the employer of teachers, it has through Bill 160 effectively usurped the role played by local school boards as employers of teachers. The Government has similarly effectively inserted itself directly into the long-established collective bargaining system for teachers. The Back to School Act in the view of the complainants furthers the Government's interference by imposing conditions on the arbitration process requiring the arbitrators to implement the Government's policies on funding of education and on matters that are directly related to teachers' working conditions. By such interference, the Government has effectively turned the arbitration system into a vehicle through which to achieve its own controversial political ends, which the complainants characterize as an abuse of legislative authority. The Government's action threatens to undermine the collective bargaining system as a whole by negatively affecting workers' perception of the ability of trade unions to represent their interests through collective bargaining, and constitutes an attempt to hijack what should be an independent adjudicative process to achieve its political goals with respect to funding of the education system and with respect to issues directly related to teachers' working conditions.
19. 395. The complainants request the Committee: (i) to declare that the Act is inconsistent with ILO Conventions and principles; (ii) to ask the Ontario Government to repeal the Act, to restore free collective bargaining with respect to teachers in the province, and to refrain from any further interference in the collective bargaining process for teachers in Ontario; (iii) to consider proposing a direct contacts mission.

B. The Government's reply

1. 396. In its communication of 1 September 1999, the Government sets out the conditions that in its view justified the adoption of the Back to School Act. It states firstly that it is the policy of the Government of Ontario that negotiation by the parties is the most desirable means of resolving labour disputes. In the ordinary course, the Government acts only to support collective bargaining processes or as a neutral facilitator through its arms-length conciliation and mediation services. It is only as a last resort, in the circumstances where vital public interests are at stake, that the Government will intervene directly by way of legislation.
2. 397. The Government states that in the autumn of 1998, the absence of teachers from their classrooms in eight Ontario school boards interrupted the education of 130,000 students. The interests of the students, parents and the broader community demanded that the Government act decisively. The Government submits that conditions justifying back-to-work legislation were clearly present, and that for the provincial government not to have acted to protect the public interest in these circumstances would have been an abdication of its responsibilities. Decisions to legislatively remove the right to strike must be made on a case-by-case basis within a flexible framework that permits the Government to be responsible to the public interest.
3. 398. The Government states that it is the policy of the Government of Ontario to permit collective bargaining to run its natural course, and that parties should be given every opportunity to negotiate a settlement on their own. The Government contends that in this case, the parties were afforded every such opportunity, and the Ministry of Labour's conciliation and mediation services were made available to the parties, as is ordinarily the case. The Government did not intervene with legislation immediately; rather, it exercised restraint to allow the strike to influence bargaining positions. However, after three weeks of strikes without a settlement, the Government decided that the interests of Ontario's students in resuming their education should prevail.
4. 399. Concerning the allegation of the lack of consultation prior to the adoption of the Act, the Government states that prior to the introduction of the education reforms in Ontario, education stakeholders and the general public were able to express their views about the reforms, both by direct communication and through the legislative process. In this respect, the Government refers to its reply in the context of Case No. 1951 (see 311th Report, paras. 208-210).
5. 400. With respect to the issues relating to the arbitrator's jurisdiction under the Act, the Government states that the scope of the mediator-arbitrator's jurisdiction as it relates to issues of class size and instructional time is consistent with the Government's educational policy as set out in the Education Act. Both issues relate, in the view of the Government, primarily to educational policy, as opposed to terms and conditions of employment subject to negotiation. Both class size and instructional time are issues that relate fundamentally to the quality of education provided to Ontario's pupils. It is, therefore, appropriate that those issues reside with the legislature, outside an arbitrator's jurisdiction. Concerning the fiscal considerations that direct the arbitrator, the Government states that these provisions are part of the provincial government's overall education policy goal that attempts to balance fiscal objectives with effective delivery of services.
6. 401. Regarding the allegation that the arbitration process under the Act is not impartial or independent, the Government states that school boards in Ontario provide a vital public service; they have a duty to operate schools for approximately 2 million pupils in the province who have a statutory right to an education. The operation of schools as a workplace, therefore, must be consistent with the broader public policy framework in which quality education is paramount. It is, therefore, in the view of the Government, reasonable to require arbitrators to fashion their awards in a manner that recognizes the unique duty of school boards and which demands sound fiscal management. The Government submits that the mediation-arbitration system was a fair and open process in which parties could voluntarily participate if they were unable to reach an agreement themselves.

C. The Committee's conclusions

1. 402. The Committee notes that the allegations of violations of freedom of association arise from the adoption of the Back to School Act ("the Act") in September 1998. The Act required teachers to return to work after three weeks of lawful strikes and lockouts in eight school boards which had been unable to reach new collective agreements. The Act also provided for the parties jointly to appoint a mediator-arbitrator to determine matters remaining in dispute, or for either party to at any time request the Minister of Labour to appoint a mediator-arbitrator. The allegations raise three main issues concerning the Act: (i) the violation of the right to strike;(ii) violation of the right to bargain collectively through the imposition of arbitration which fails to meet the requirements of independence and impartiality and improperly restricts the scope of the arbitrator's jurisdiction; (iii) lack of consultation prior to the adoption of the Act. The complainants also raise more generally the issue of this Act being one of a series of enactments passed by the Government of Ontario since 1995, and allege that they constitute an attack on collective bargaining.
2. 403. The Committee notes that the complainants and the Government appear to agree generally on the events that led to the adoption of the back-to-work legislation. In eight school board jurisdictions, the boards and the teachers' unions had reached an impasse in the negotiation of collective agreements. These were the first set of negotiations subject to the requirements of the Education Act, as amended by the Education Quality Improvement Act, 1997 (Bill 160). The preamble to the Act summarizes the main reason for the impasse: "A major cause of the parties' inability to reach new collective agreements is differing interpretations of the standards contained in the Education Act, in particular, the meaning of 'instruction'." The complainants state that the outstanding matters in dispute related to the new statutory class sizes and instructional time provisions of Bill 160. The provisions of Bill 160, which had been particularly controversial, were addressed in some detail by the Committee in Case No. 1951 (see 311th Report, paras. 170-234; 316th Report, paras. 214-228). As a result of the disputes, in each of the eight boards, the secondary-school teachers either took legal strike action or were locked out when the school year commenced in September 1998. Three weeks after the start of the industrial action, the strikes and lockouts were brought to an end through the adoption of the Back to School Act.
3. 404. The Government states that it did not intervene with legislation immediately but exercised restraint to allow the strike to influence bargaining positions. The Government maintains that the legislation was justified in order to protect the public interest, particularly the interests of Ontario's students in resuming their education. The complainants disagree that there was justification for mandating a return to work, and note that teachers in Ontario are not generally denied the right to strike and never have been since their formal coverage under collective bargaining legislation. They also point to the provisions of the Education Act, as amended by Bill 160, allowing in the event of a strike, a "jeopardy finding" to be made, namely that the continuance of the strike or lockout would place in jeopardy the successful completion of courses of study of the affected students. The complainants note that no such jeopardy finding was made, or even sought, prior to the enactment of the legislation, and in the past, no such finding had been made prior to a strike or lockout continuing for at least 27 school days (it appears that in the present case, the strikes lasted approximately 15 school days).
4. 405. The Committee notes that it has recently addressed the issue of special legislation being adopted to put an end to a lawful strike in the context of the Canadian postal service (see Case No. 1985, 316th Report, paras. 275-326). As in that case, the Committee is bound to recall 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 (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 474-475). The Committee again draws the Government's attention to the principle of freedom of association according to which the right to strike may be restricted or prohibited with respect to public servants exercising authority in the name of the State; and in essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see Digest, op. cit., para. 526). The education sector does not fall within either of these categories (see Digest, op. cit., para. 545; see also Case No. 1928 (Canada/Manitoba), 310th Report, para. 176). The Committee has noted in the past that teachers should enjoy the right to negotiate freely their working conditions and have recourse to strike action as a legitimate means of defending their economic and social interests (see Case No. 1430 (Canada/British Columbia), 256th Report, para. 185; see also Case No. 1943 (Canada/Ontario), 310th Report, para. 226).
5. 406. While the Committee recognizes that unfortunate consequences may flow from a strike in the education sector, 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 (see Digest, op. cit., para. 541), which has not been asserted by the Government; in fact it appears that no finding was made or even sought on the lower statutory standard, namely that the continuation of the strikes would place in jeopardy the successful completion of courses of study of the affected students. The Committee, therefore, requests the Government to take measures to ensure that teachers in Ontario are entitled to exercise the right to strike, and in future to make every reasonable effort to avoid recourse to back-to-work legislation.
6. 407. Concerning the arbitration process provided for in the Act, the Committee notes that the complainants question its independence and impartiality, and raise concerns regarding the restrictions placed on the scope of the arbitrator's jurisdiction. The Government maintains, however, that the mediation-arbitration system was a fair and open process in which the parties could voluntarily participate if they were unable to reach an agreement themselves.
7. 408. The Committee notes that the Act, having terminated and prohibited strike action, allows either party to initiate mediation-arbitration procedures, allows either party to at any time request the Minister of Labour to appoint a mediator-arbitrator, and the mediator-arbitrator has exclusive jurisdiction to determine all matters that he or she considers necessary to conclude a new collective agreement. Since either party can unilaterally initiate the arbitration procedure, the Committee cannot agree with the Government's characterization of the process as "voluntary", but rather considers it to be compulsory. The Committee recalls that recourse to compulsory arbitration in cases where the parties do not reach agreement through collective bargaining, is not in conformity with the principle of voluntary negotiation, and is permissible only in the context of essential services in the strict sense of the term (see Digest, op. cit., paras. 860-864). If the parties accept a system of arbitration as a means of interest dispute resolution (which is not the case of the complainants concerning the dispute at issue), the Committee recalls that the bodies appointed for the settlement of such disputes should be independent, and recourse to these bodies should be on a voluntary basis (see Digest, op. cit., para. 858). The Committee, therefore, requests the Government to ensure in future that recourse to arbitration for the settlement of interest disputes concerning teachers in Ontario is voluntary and the dispute settlement body is independent.
8. 409. The complainants assert that the Government did not engage in any consultation with the OECTA, which represents the teachers in seven of the eight school boards at which the Act was directed, prior to passing the legislation, and did not make any efforts to determine whether there were alternatives for ending the labour disputes. While the Government states that there was consultation with education stakeholders prior to the introduction of the broad education reforms in Ontario, which preceded the adoption of the Act, it does not contest that there was no consultation specifically concerning the back-to-work legislation. The Government does state, however, that the parties had been given every opportunity to negotiate a settlement on their own and that the Government's conciliation and mediation services were made available to the parties.
9. 410. The Committee recalls that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers (see Digest, op. cit., para. 931). 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 Case No. 1928 (Canada/Manitoba), 310th Report, para. 183; Case No. 1943 (Canada/Ontario), 310th Report, para. 230).
10. 411. The Committee notes that while there were some earlier consultations concerning the broader education reforms (see Case No. 1951, 311th Report, paras. 208-210), there was no consultation on the piece of legislation relevant to the case at hand, which raises specific and important issues for the workers concerned and their organization. The Committee requests the Government to ensure in future that consultations in good faith are undertaken prior to the adoption of legislation affecting the ability of teachers to strike or to bargain collectively.
11. 412. The Committee notes with serious concern that this case is one of a series regarding 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 (310th Report, para. 241).
12. 413. The Committee notes that since Case No. 1943 the Committee has been asked to consider further legislative initiatives of the Government of Ontario, and again has found incompatibilities with freedom of association standards and principles (see Case No. 1951, 311th Report, paras. 170-234; 316th Report, paras. 214-228; see also Case No. 1975, 316th Report, paras. 229-274). The Committee requests the Government to consult fully with trade unions and employers' organizations in order to reach agreement concerning the improvement of the labour relations system in Ontario. The Committee also once again suggests that the Government consider having recourse to the assistance of the Office, and requests to be kept informed in this regard. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendation.

The Committee's recommendations

1. 414. In the light of its foregoing conclusions, and noting that certain provisions of Bill 160 are not in conformity with the principles of freedom of association, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take measures to ensure that teachers in Ontario are entitled to exercise the right to strike, and in future to make every reasonable effort to avoid recourse to back-to-work legislation.
   • (b) The Committee requests the Government to ensure in future that recourse to arbitration for the settlement of interest disputes concerning teachers in Ontario is voluntary and the dispute settlement body is independent.
   • (c) The Committee requests the Government to ensure in future that consultations in good faith are undertaken prior to the adoption of legislation affecting the ability of teachers to strike or to bargain collectively.
   • (d) The Committee requests the Government to consult fully with trade unions and employers' organizations in order to reach agreement concerning the improvement of the labour relations system of Ontario.
   • (e) The Committee once again suggests that the Government consider having recourse to the assistance of the Office, and requests to be kept informed in this regard.
   • (f) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.