Chapter Nine: Teachers and the Teaching Profession
9.7 Collective Bargaining
A major function of teachers’ associations has been the negotiation of collective agreements with the employer that outline the conditions of employment for their members. A collective agreement is a legal agreement between a group of workers or employees, who have organized themselves into a union or bargaining unit, and their employer. The bargaining unit must be formally organized according to relevant provincial labour laws. It then elects or otherwise chooses a team or committee to represent its members in negotiating a contract with the employer.
Although collective bargaining by teachers takes place in all the provinces, the procedure assumes various forms and is covered by different legislative provisions. An account of these provisions is provided in Slinn and Sweetman’s 2012 edited collection Dynamic negotiations: Teacher labour relations in Canadian elementary and secondary education as well as the Canadian Teachers’ Federation publication, Where education and legislation meet: Teacher collective bargaining in Canada (Hanson, 2013). All but three provinces have enacted collective bargaining legislation that is specific to teachers. Bargaining in New Brunswick is regulated by general public-sector bargaining legislation; in Alberta and British Columbia, it is regulated by general labour legislation. Provinces like Manitoba and Ontario utilize a combination of general labour legislation and specific education provisions.
Table 9.7.1 shows that collective bargaining also varies across provinces in terms of the level at which bargaining actually occurs. In some cases, all negotiations occur centrally, and agreements affect all teachers in the province; in others, bargaining is a purely local activity between school boards and the local bargaining unit. A third version, generally referred to as two-tier, or two-table, bargaining, sees major cost items (primarily salaries and main benefits) addressed provincially and organizational matters at the local level.
Salaries and benefits represent a major component of all collective agreements, although by no means the only one. Procedures for laying off teachers are also included in collective agreements. Teacher layoffs have occurred, particularly in districts with significant declines in enrolment. In such cases, contracts usually provide that laid-off teachers have the first rights to any vacancies that may arise. Collective agreements may have very complicated provisions regarding the basis for layoffs and recalls, particularly concerning the extent to which seniority will apply in determining who will lose jobs, and the procedures to be followed. There may also be some modifications of seniority arrangements to accommodate specialists in particular subjects.
Working conditions provide a third area of concern in collective agreements. A wide range of matters may be specified, including maximum limits on a teacher’s teaching time, maximum class sizes, and minimum amounts of preparation time during the day or week. In some provinces, collective agreements may require teachers to have an uninterrupted lunch hour. Some collective agreements also contain clauses that spell out teachers’ responsibilities for supervising students on playgrounds or in other settings outside the classroom.
Finally, collective agreements may contain clauses having to do with the union, the employer, and the bargaining process. Most agreements, for example, recognize the particular teachers’ association as the sole bargaining agent for teachers, and require teachers either to belong to the association or to pay fees to it even if they do not belong. Agreements also have provisions for settling disputes that may arise while the agreement is in force. If a member of the bargaining unit feels that the agreement has been violated, the association may file a grievance. The collective agreement lays out the steps that must be followed to resolve the grievance, with the final step usually being binding arbitration by a third party. The arbitration process can be very expensive, however, because of the cost of lawyers for each side, there is an incentive for both the union and the employers to settle grievances without arbitration.
Collective Bargaining Procedures
Provinces have legislated different processes for collective bargaining between teachers and employers. Collective agreements are negotiated to be valid for a specified period of time (typically one to three years), at the end of which they must be renegotiated. While many items may stay the same from one contract to the next, others are subject to negotiation and change. Teachers’ associations normally try to improve salaries and benefits in each round of bargaining, while school boards and provincial governments try to limit salary increases and maintain control of working condition issues outside the collective agreement, so as to have more freedom to arrange things as they see fit in light of public pressures and interests.
When the two sides in the bargaining process appear unable to come to an agreement in contract talks, collective bargaining legislation usually provides for a number of outside interventions to facilitate an agreement. These may include fact-finding, mediation or conciliation, arbitration, binding arbitration, and final offer selection. The first two of these are voluntary. Fact-finding is a process in which a neutral third-party studies each side’s position and issues a report outlining his or her view of the issues involved. This report is for information only. Mediation (sometimes called conciliation) involves having a third party meet with the two sides, either separately or together, to try to help them work out a solution. The parties do not have to listen to the mediator, but sometimes an outside person can cut through the bad feelings and suspicions separating the two sides.
In contrast, arbitration involves a process whereby the two sides select a third person (or persons) to settle the dispute for them. The arbitrator listens to both sides and then makes a decision as to what should be in the contract. Both sides, if they agree to arbitration in the first place, must accept the arbitrator’s decision, no matter what it is. Final offer selection is a form of arbitration in which the arbitrator must pick the position of one side or the other in its entirety. The idea behind final offer selection, which remains a controversial practice, is that each side must put forward as reasonable a package as it can; if it is unreasonable, the arbitrator will select the other side’s proposals entirely.
Collective bargaining can also involve the use of sanctions by either side if a collective agreement expires without a new one being signed. Teachers can engage in what is called work to rule, which means that teachers will withdraw all those services, such as coaching or other extra-curricular activities, that are not required in the collective agreement. Employers are entitled to lock out teachers or other bargaining groups, which simply means that they close the schools and stop paying salaries until the dispute is settled. Finally, employees can withdraw their services (strike) in an attempt to force their employer to come to an acceptable agreement with them. Even though most provinces do allow teachers to strike as part of the collective bargaining process, strike action by teachers remains a controversial issue that tends to generate fierce discussion within the profession and in the public. For some teachers, strike action and its impact on children’s education remains incompatible with their vision of teaching as a profession committed first and foremost to the well-being of their students. Conversely, others argue that it is precisely because they are committed to the well-being of their students that they must use all options available to them to ensure effective working conditions and salaries that will attract and retain good teachers. Despite the controversy, as long as teachers constitute an employee group whose wages and working conditions are set through collective bargaining, strikes are likely to continue as part of the bargaining process.
In recent years, several provincial governments have attempted to intervene in the collective bargaining process through legislation. These actions have led to successful court challenges from teacher associations and other unions arguing that such action is an infringement of the freedom of association guaranteed in Section 2 of the Canadian Charter of Rights and Freedoms. Areas of intervention have included working conditions as well as salaries. In 2016 the British Columbia Teachers Federation (BCTF) won a landmark court ruling when the Supreme Court of Canada ruled that legislation that removed BCTF’s ability to negotiate class size and composition as part of working conditions was a violation of teachers’ constitutional rights of association (Axelrod, 2017).
Nova Scotia, Ontario, and Manitoba governments have all introduced legislation in the last six years imposing multi-year wage settlements and/or wage freezes on public sector employees. In each case teacher federations have been active in challenging the constitutionality of the legislation. In June 2020, a Manitoba Court of Queen’s Bench ruled that the Manitoba legislation substantially interfered with the collective bargaining process and violated associational rights (Rachel Cardozo, August 12, 2020). It further ruled that the government’s case could not be rescued by the “reasonable limits” provisions of Section 1 of the Charter. The ruling is being appealed, and a final ruling on each of these challenges may have to come from the Supreme Court of Canada.
Canadian Provincial Collective Bargaining Structures
|Province||Bargaining Structure||Teachers Bargaining Agent(s)||Employer Bargaining Agent||Principals and Vice-principals in Unit||Final Dispute Resolution Mechanism|
|British Columbia||Two-tier||British Columbia Teachers’ Federation||British Columbia Public School Employers Association||No||Strike – subject to essential service designation|
|Alberta||Two-tier||Alberta Teachers Association||Teachers Employer Bargaining Association; School Boards||Yes||Strike|
|Saskatchewan||Two-tier||Saskatchewan Teachers’ Federation Committee; Affiliates||Provincial Bargaining Committee; School Boards||Yes||Strike|
|Manitoba*||Provincial||Manitoba Teachers’ Society; Affiliates||School Boards||No||Binding Arbitration|
|Ontario||Two-tier||Elementary Teachers’ Federation of Ontario; Ontario Secondary Teachers’ Federation; Ontario English Catholic Teachers’ Association; l’Association des enseignantes et des enseignants franco-ontariens||Government of Ontario; Council of Trustees Association; School Boards||Yes||Strike|
|Quebec||Three-tier – Central, Sectorial, and Local||Quebec Provincial Association of Teachers; Federation des syndicats des l’enseignement; Local and regional affiliates||Provincial Negotiating Committee||No||Strike|
|New Brunswick||Provincial||New Brunswick Teachers’ Association||Treasury Board||Yes||Strike – No strike/lockout article in collective agreement|
|Nova Scotia||Two-tier||Nova Scotia Teachers’ Union||Minister of Education and Early Childhood Development||No||Strike –
No strike/lockout article in collective agreement
|Prince Edward Island||Provincial||Prince Edward Island Teachers’ Federation||Education Negotiating Agency||Yes||Binding Arbitration|
|Newfoundland and Labrador||Provincial||Newfoundland and Labrador Teachers’ Association||Treasury Board and Newfoundland and Labrador School Boards Association||Yes||Binding Arbitration|
|Yukon||Territorial||Yukon Teachers’ Association||The Government of Yukon||Yes||Strike –
No strike/lockout article in collective agreement
|Northwest Territories||Territorial||Northwest Territories Teachers’ Association||Minister of Human Resources; Yellowknife Board of Education; Yellowknife Public Denominational District Education Authority (Catholic Schools)||Yes||Strike|
|Nunavut||Territorial||Nunavut Teachers’ Association||Minister Responsible for the Nunavut Public Services Act||Strike|
Source. Adapted from Slinn & Sweetman (2012) (pp. 48-49), and from Hanson (2013).