Information and Views on Ontario Secondary School Teachers Federation Proposal for Binding Interest Arbitration

Information and Views on Ontario Secondary School Teachers Federation Proposal for Binding Interest Arbitration

Discussion has begun on the agreement between the Ontario Secondary School Teachers’ Federation (OSSTF) provincial executive, endorsed by a majority of the district presidents and chief negotiators, and the Ford government in Ontario to resolve the government-imposed impasse in bargaining through voluntary binding interest arbitration (VBIA). Voting on the proposal is open for all members of OSSTF who are employed by school boards The OSSTF said it will be a one member one vote process with no separate voting for teachers and support staff. The threshold for passage of the vote is not currently known.

On September 7 a province-wide town hall meeting was hosted by OSSTF’s provincial executive to present their rationale for what they are proposing and to hear questions from members. More than 2,000 members logged on to participate despite it being the first week of school when most teachers and education workers are in the midst of all it takes to get classes up and running and relating to new students. More virtual and in-person town hall meetings continue to be held by the provincial executive during the month of September. On September 12, the Ontario Education Workers United held a virtual forum entitled “The Dangers of Binding Interest Arbitration” in which a former OSSTF local president and past provincial president spoke about their concerns over the proposal. Various Facebook groups have also been established for discussion by all those concerned. That so many are participating in the discussion provincially and in their own workplaces shows members want to know what the arguments are so that they can have informed discussion with their colleagues and cast an informed vote. This is a good sign as whatever way the vote goes, the open discussion to sort out a way forward is what will permit all teachers and education workers irrespective of the unions they are members of to determine what will favour them, their working conditions and students’ learning conditions. 

What the Proposed Pathway is About

The pathway being proposed by OSSTF and the Ford government to resolve negotiations in K-12 education in Ontario includes both entering into voluntary binding interest arbitration (VBIA) and a remedy for its violation of OSSTF members’ rights with Bill 124. In return for OSSTF agreeing to enter into VBIA, and giving up the right to strike, the government has agreed to pay back wages for the wage restraint it imposed through Bill 124 using its majority in the Legislature. Bill 124, Protecting a Sustainable Public Sector for Future Generations Act, imposed wage restraints on public sector workers. It was struck down in November 2022 when the Ontario Superior Court of Justice ruled that it unduly infringed on workers’ rights as recognized by the Canadian Charter of Rights and Freedoms. The government is appealing that ruling and meanwhile, the wage restraints remain in effect, causing serious harm to health care and education sectors of the economy.

The remedy proposed should the OSSTF go into VBIA would be retroactive wage increases for the three years teachers and education workers were subject to restraint from 2019 to 2022. For the years 2019 and 2020 there would be awards of 0.75 per cent for each of those years and for 2021 when inflation increased substantially, an award in the range of 1.5 per cent to 3.5 per cent would be decided through arbitration. In “exchange,” OSSTF members employed by school boards would give up any further claims for a remedy for Bill 124 which is currently the subject of the government appeal of the Court’s ruling. Note that the remedy would not apply to OSSTF members who are not employed by school boards who would continue to be affected by the provisions of Bill 124 and whether or not it is upheld by the court of appeal.

The remedy for Bill 124 for teachers and education workers the government has agreed to is part of what is called “the pathway to a settlement” OSSTF members are being asked to vote on, and will only apply if the VBIA process is agreed to. Thus, while the government continues to argue in court that its violation of rights in Bill 124 was justified, it has agreed to provide OSSTF members with a remedy for violating their rights if it gets the union to give up its right to strike in this round of negotiations. The OSSTF provincial executive argues that the government is doing this because it is in a weak position due to the corruption of the Housing Ministry over the Greenbelt Scandal.

While the government is using the courts to rule in favour of its continued violation of rights, the OSSTF points out that its acceptance of OSSTF’s proposal for VBIA is based on its weakness due to the housing scandal. It is something unique to the current circumstances which should be seized upon, the union says. It says the union re-tabled its proposal for the VBIA now after having had it rejected by the government in the past and it says it was surprised the government agreed to the process “minus any poison pills it had demanded previously” and also that it agreed to have William Kaplan as the chair of a tripartite arbitration board. Kaplan’s appointment was considered key by the Union as after Bill 124 was found by the Ontario Superior Court to have violated workers’ rights, he ruled on a recent case of VBIA which the union says awarded hospital nurses, who are deemed essential workers without the legal right to strike, significant pay raises based on inflation and the crisis in retention of staff.

The union leadership emphasizes this is a one time option in the here and now based on the current circumstances of the government’s need to overcome its scandal. The union feels the process will also force school boards to engage in “good faith bargaining” given that they would hope to negotiate a resolution to differences with teachers and education workers rather than have them decided by an outside arbitrator. Plus there is a “wage re-opener” provision as part of the deal.

This means that if, after the arbitration award another union achieves a better agreement for their members, thanks to the wage re-opener clause, the OSSTF would be able to ask the arbitration board to reconsider their award in light of another union’s gains. This, the union argues, is “win-win.” It says it is not a “me-too” clause which refers to something the McGuinty Liberal government used in the past to get the Ontario English Catholic Teachers’ Association (OECTA) to approve a deal which harmed the interests of other education unions. It said that what others obtained after them, they would get too. The terms of the contract agreed to with OECTA’s executive at the time of the “me-too” clause was later imposed on the other education unions through legislation using Bill 115. When the Ontario Superior Court eventually ruled the government had violated education workers’ rights and ordered the government to negotiate a remedy with the unions, OECTA was able to benefit from that as well as a result of the “me-too” clause. This mechanism to encourage unions to break ranks with others in the sector on the promise that they would still benefit after the fact has been widely criticized by teachers and education workers as something that foments divisions among the unions and their members. They say it should be rejected in favour of working together.

OSSTF’s argument today is that the wage re-opener provision that would be included in an arbitrated settlement is not the same as the one OECTA had. This is based on the fact it would not take effect automatically but would have to be decided by an arbitrator. What is the same is that the government is getting one union to go off on its own with the promise that if it does it will still benefit if others fight and make advances. The fact that it divides the unions and their members and deprives them of the right to strike is ignored despite the fact that it is the significance of this that teachers and education workers have to address.

The other provisions of the VBIA proposal only emphasize this further. When it comes to central bargaining between the government and OSSTF, the proposal for VBIA provides for any issues not resolved through negotiations by October 27, 2023 – i.e. anything either side wants an arbitration board to decide – to go to binding arbitration for a final decision. In fact there would be two arbitration processes for central bargaining – one for teachers and one for all other OSSTF members in the K-12 education system who are lumped together for bargaining purposes as support staff.

As for local bargaining, the process provides for an “expedited arbitration process” involving a single arbitrator for both the teacher and support staff tables rather than a three-person board for each. There will be a deadline of March 28, 2024 for local deals to be reached by the union and local Boards of Education through negotiations. Any agreed-to contract provisions can go forward to be implemented while all outstanding matters will go to VBIA. Bargaining units can combine their positions if they have common issues so as to have a single arbitration process for local negotiations. Decisions by the arbitrator would have to be rendered within 45 days of the completion of the hearing. All arbitration at the local level would need to be complete by December 31, 2025.

Given that settling local issues could conceivably involve several or even many school districts needing an arbitrator during the same time frame, and that local unions often have problems scheduling an arbitrator to hear grievances in a timely manner, and given that arbitrators preferred by unions are typically in high demand, what prospects teachers and education workers can expect in VBIA is not good. When it comes to hearing grievances, unions are often told that the earliest dates these arbitrators can give them are months away, with this problem carrying on as new dates are needed to continue the process of gathering facts, hearing both parties’ arguments and examining the evidence. It is not uncommon for it to take well over a year if not more for grievances to be heard, then more time for a decision to be rendered.

Without control over the VBIA process, it looks like an endless nightmare would lie ahead for negotiating teams while members are in the dark in more ways that one.

Keep in mind that the teachers and most education workers have been without a contract since August 2022 and under three years of mandated one per cent wage increases before that, following wage freezes in four years prior. Most importantly, the government does not negotiate. It dictates that it is its way or the highway. 

If the argument about the government’s current weakness holds water, many are asking why the demand for the government to negotiate in good faith immediately, backed up by the decision to exercise the right to strike if they so decide, is not the teachers’ best defence. It is not the teachers and education workers who are causing the disruptions to the school year but the cutbacks in education funding, privatization of education and government refusal to recognize their rights. It is the government which is engaged in anti-social activity and teachers and education workers are determined to hold them to account.

In deciding how to vote on the proposal for VBIA, the basic issue is whether this will hold the government to account or merely disempower the teachers and education workers and embroil them in an endless process where they do not have the right to strike while they continue to suffer the anarchy in the schools which goes hand in hand with violence of all kinds – rights which are violated, mental well-being which is violated, their dignity which is violated and even an increase in physical violence in the schools due to untenable conditions as well as the government’s refusal to uphold norms and standards as it is duty-bound to do.

As for how the negotiations with the arbitrator would take place: both sides would present arguments and evidence to the arbitration board, or in the case of local bargaining, to the single arbitrator. Arbitrators supposedly try to replicate free collective bargaining and impose terms which they believe would have been achieved through collective bargaining. In this light, it can be expected that “breakthrough proposals” which go beyond what already exists in terms of collective agreements in the area are unlikely as arbitrators are reluctant to establish new precedents. The union’s answer to this is that in tracking recent decisions, arbitrators are more and more considering inflation and recruitment and retention issues in their awards. In other words, the union is saying the odds are good for getting substantial pay increases given inflation and the retention crisis in schools for support staff and teachers.

As for the arguments being made that, by agreeing to this, OSSTF would be opening the door for the government to declare teachers and education workers an essential service, the union says there is no legal basis for this as teachers and education workers’ strikes do not threaten the health and safety of the public. Often cited is the recent ruling of the Ontario court in the case of Toronto transit workers. That ruling overturned the government’s attempt to declare transit workers essential. That ruling is said to set a “high bar.”

Addressing concerns that the union is giving up the right to strike and that this could lead to it being legally removed in the future, the union leadership says it will always protect the right to strike but that the majority Ford government has no respect for labour and would not hesitate to use any tool at its disposal if the union went on strike. The Ford government would smear the union and its members and blame them for it. In other words, despite the government agreeing to this process, the union considers that the government wants a strike as it would act as a distraction from the public relations disaster it faces over the housing scandal. The leadership of OSSTF thinks there is a great deal of concern about further disruptions to learning given all the disruptions the government has caused, especially in its handling of the pandemic.

This is a defensive, apologetic position which does not take into account all that can be done to mobilize the strength of the union’s members behind their just cause, as well as the strength of public opinion in favour of respecting the work teachers and education workers do and the demand to increase investments in public education. It also attempts to put teachers and education workers’ faith in an arbitration system instead of their own power to change the situation. The more governments cater to narrow private interests, pay the rich and use billions of public funds for armaments, the more the public can see that increasing funding for education and health care is not a problem of lack of money. It is a matter of governments which are corrupt because narrow private interests have taken over decision-making on government spending in their favour. Why does the union not discuss how to engage in tactics which establish a vantage point which favours teachers, education workers, parents, students and the future of public education and society? There is plenty of experience in the last 10 years alone that shows that when teachers and education workers take up their own cause, they are able to make advances and hold their heads high. 

Saying a strike will favour the government which will unleash a huge propaganda machine against teachers and education workers begs the question of why the use of public funds for such a propaganda offensive is not opposed. Such opposition would further expose government corruption as concerns the private interests it is serving in the field of education as well. It is not just the Housing Minister who should resign over charges of corruption. To this day the former Premier of Ontario Mike Harris who did a lot to privatize health care while in office, launching a vicious anti-social offensive, is making huge profits as the head of private senior’s homes which current government’s continue to provide with public funding to guarantee the private profits. It is doing the same in the education sector. Bringing all this to the light of day is what the government is trying to avert by eliminating the right to strike with either the carrot or the stick.

By speaking out in defence of the rights of all, teachers and education workers are quite capable of taking the decisions which do not marginalize them, silence them and criminalize them. On the contrary, experience has shown that the public will rise in their defence. Whatever tactics are used, they must serve to empower teachers and education workers because they are the custodians of a healthy new generation and must be supported. It is society’s duty which governments are duty-bound to uphold.