Introduction
The Canadian Charter of Rights and Freedoms (“Charter”) sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society. Section 2(d) of the Charter grants everyone the fundamental right of freedom to associate. The right to freedom of association provides employees with the right to form associations to achieve collective goals and, in 2007, was interpreted to include the right of associated employees to engage in collective bargaining with their employers on matters of significance.1
Background
Prior to 2007, and following the exclusion of principals and vice-principals from the teachers unions in 1998, the negotiating landscape for principals and vice-principals was very uneven. In some school boards, principals and vice-principals enjoyed efforts made in good faith by their employer to reach agreement. In other school boards, terms and conditions of employment were imposed unilaterally. Most boards were somewhere in between these two extremes – there would be some discussion, but ultimately, even absent any agreement, terms and conditions were imposed by school boards. During this time, there was no legal basis to require school boards to negotiate in good faith if the school board did not see fit to do so. Minimal informal processes for negotiations were in place and, as such, district school boards ultimately controlled the process for the determination of terms and conditions of employment.
The Right to Negotiate in Good Faith
In 2007, the Supreme Court of Canada in BC Heath Services2 expanded the scope of the rights under s.2 (d). The BC Health Services case dramatically altered the legal landscape and with it the legal backdrop for employment relations between principals and vice-principals and their employer school boards. The Supreme Court of Canada expanded the meaning of the Charter guarantee of the freedom to associate to include not only the right to form associations, but also the right of employees who form such associations to negotiate collectively with their common, public employer via a process of good faith negotiations.
The Supreme Court of Canada stated that:
Section 2(d) guarantees the process through which those goals are pursued. It means that employees have the right to unite, to present demands to employers collectively and to engage in discussions in an attempt to achieve workplace-related goals. Section 2(d) imposes corresponding duties on government employers to agree to meet and discuss with them. Employees’ right to collective bargaining imposes corresponding duties on the employer. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation.3
Moreover, in 2011, the Supreme Court of Canada in Fraser4 confirmed the Charter protection regarding the freedom of association and good faith negotiations aspects of B.C Heath Services. The court affirmed the protection of collective bargaining in Health Services as “quite simply a necessary condition of meaningful association in the workplace context5 and recognized that the bargaining activities protected by s.2 (d) in the labour relations context include good faith bargaining on important workplace issues.6 More importantly, the court stated “it is difficult to imagine a meaningful collective process in pursuit of workplace aims that does not involve the employer at least considering, in good faith, employee representations.7
Following the BC Heath Services Case, OPC took the position that principals and vice-principals, who had associated as members of the OPC, were entitled to negotiate the substantive terms and conditions of employment in good faith with their respective school board employers.
OPC advocated for the implementation of good faith collective negotiation processes and practices for principals and vice-principals. The government created a working group of stakeholders (School Board Associations, Superintendent Associations, Directors of Education, and Principal Associations). The discussions led to the government’s publication of the Effective Practices Guide for Principals and Vice-Principal’s Terms and Conditions of Employment.8 Unfortunately, many boards did not recognize the Guide and OPC lobbied for the government to adopt a formal instrument to protect principals and vice-principals’ right to good faith collective negotiation processes and practices. In 2010, the Ministry of Education established Policy/Program Memorandum No.152 in order to promote good faith collective negotiations. PPM 152 reinforced and expanded on the Effective Practices Guide.9 The objective of PPM 152 was to establish common practices and consistent terms and conditions across Ontario in order to attract and retain the highest calibre of administrators.10 Most importantly, PPM 152 recognized the right of principals and vice-principals to negotiate collectively the terms and conditions of their employment and mandated school boards to set up processes to allow principals and vice-principals to negotiate collectively in good faith through the local representatives of their associations.11
To date, not all boards have implemented all aspects of PPM 152. The power imbalance between employer and employees continues to exist and this makes it difficult for local OPC Districts to insist upon compliance. OPC will continue to work with local T&C representatives to support them in advocating for good faith negotiations and a terms and conditions document consistent with PPM 152. It is hoped that the provincial bargaining framework discussions may assist in reinforcing the key elements of PPM 152.
[1] Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391,
2007 SCC 27, para. 90.
[2] Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391,
2007 SCC 27
[3] Ibid, at para 89 & 90
[4] Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 SCR 3
[5] Ibid, para 43
[6] Ibid, para 40
[7] Ibid, para. 51
[8] Ontario. Ministry of Education. Effective Practices Guide for Principal/Vice-Principals Terms and Conditions of Employment. April 2009.
[9] Ontario. Ministry of Education. Questions and Answers: Terms and Conditions of Employment of Principals and Vice-principals, 2010.
[10] Ontario. Ministry of Education. Terms and Conditions of Employment of Principals and Vice-Principals, Policy/Program Memorandum No. 152, February 12, 2010.
[11] Ibid at pg. 2