If you’re upset about the fact that work to rule in schools is going to affect your child, take a look at this legislative history (OLRB Ruling 3042-12-U).  There had been varying attempts to include co-instructional activities in the definition of a strike.  All of it undone by the McGuinty-Wynne-Sandals regime.  The result: students will suffer from job action while teachers continue to collect a salary.  Non-union education partners claim this creates an imbalance in collective bargaining.

Here is a useful legislative history that I’ve taken from the above cited OLRB ruling.  Notice how it is all undone by the time you reach the end in 2009.  I tried to rectify this last year which included a filibuster to make the point.  If you’re looking for somebody to blame for not having comments on your child’s report card, this falls squarely on the Liberals.  Take a look at this useful legislative history:

“(i) School Boards and Teachers Collective Negotiations Act, R.S.O. 1990, c. S.2 (Bill 100) … Bill 100 first introduced what the parties referred to as an education-specific definition of strike (as opposed to the general industrial definition contained in the Labour Relations Act): “strike” includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed to curtail, restrict, limit or interfere with the operation or functioning of a school program or school programs or of a school or schools including, without limiting the foregoing, (a) withdrawal of services, (b) work to rule, (c) the giving of notice to terminate contracts of employment;

“(ii) Education Quality Improvement Act, S.O. 1997, c. 31 (Bill 160) 60. 61. 62. 63. This act repealed the School Boards and Teachers Collective Negotiations Act (Bill 100)… the Labour Relations Act definition of strike (the traditional industrial non-educational definition of strike) applied.

“(iii) Education Accountability Act 2000, S.O. 2000, c. 11 (Bill 74) … essentially having three components: (a) creation of a whole statutory regime with respect to “co-instructional” activities; (b) workload issues including restrictions on class size and stipulating instructional time; (c) increase in ministerial oversight and control of district school boards and their finances. In terms of the new regime for “co-instructional activities”, the Education Act was amended to include for the first time the following definition: “co-instructional activities” means activities other than providing instruction that, (a) support the operation of schools, (b) enrich pupils’ school-related experience, whether within or beyond the instructional program, or (c) advance pupils’ education and education-related goals, and includes but is not limited to activities having to do with school-related sports, arts and cultural activities, parent-teacher and pupil-teacher interviews, letters of support for pupils, staff meetings and school functions but does not include activities specified in a regulation made under subsection … As well, section 277.2 of the Education Act was amended by adding subsection (4): “(a) the definition of “strike” in section 1 of the Labour Relations Act, 1995 does not apply; and (b) “strike” includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed to curtail, restrict, limit or interfere with the operation or functioning of one or more school programs, including but not limited to programs involving co-instructional activities, or of one or more schools including, without limiting the foregoing (i) withdrawal of services, (ii) work to rule, (iii) the giving of notice to terminate contracts of employment.”  In other words, the use of the industrial definition of strike in the LRA was short-lived and Bill 74 again introduced an education-specific definition of strike. It expanded the definition beyond what had existed in Bill 100 and specifically included co-instructional activities as part (or a subset) of “interfering with the operation or functioning of one or more school programs”. These sections were not only included in Bill 74 but actually proclaimed in force. The balance of those sections of Bill 74 providing the actual operational provisions or the mechanism for the regulation, assignment and supervision of coinstructional activities, though passed, were never proclaimed. Those unproclaimed amendments were quite extensive. They included multiple amendments to section 170 (the duties of school boards), section 264 (the duties of teachers), and section 265 (the duties of principals). The oversight contemplated in these amendments was quite extensive requiring the development of “plans”, “frameworks”, and “guidelines” for co-instructional activities by the various players and all with ministerial oversight – either through the Minister issuing guidelines for the plans that school boards were required to develop or requiring the filing of any school board plan and the authority of the Minister to direct any changes in the plans with which directions the school board had to comply. In the specific words of section 170(2.2) a school board’s framework: In a manner that is consistent with the manner in which coinstructional activities have traditionally been provided to pupils in Ontario, in terms of when and where such activities take place, the framework shall address the assignment of duties, (a) on school days and on days during the school year that are not school days; (b) during any part of any day during the school year; (c) on school premises and elsewhere. Further amendments to section 170(2.3) made it clear that: “It is the exclusive function of the employer to determine how coinstructional activities will be provided by elementary school teachers and elementary school temporary teachers and no matter relating to the provision of co-instructional activities by elementary school teachers and elementary school temporary teachers shall be the subject of collective bargaining nor come within the jurisdiction of an arbitrator or arbitration board.” Section 170(2.4) contained the mirror provision for secondary school teachers. Equally, the duties of teachers were amended in section 264 to make it clear that it was the duty of a teacher “to participate in co-instructional activities, in such manner and at such times as the principal directs under clause 265(2)(b)”. Again, other than the definition of co-instructional activities and the definition of a strike, none of these operational sections were ever proclaimed.

“(iv) Report of the Minister’s Advisory Group on the Provision of Co-instructional Activities – April 2001 (the “Report”) Needless to say, inter alia, the proposed regulation of co-instructional activities under Bill 74 was controversial among the various stakeholders in the education sector – school boards, unions and parents. As a result, in January of 2001 the Minister of Education established a five-member Minister’s Advisory Group on the provision of co-instructional activities “to ensure that all students in Ontario have access to a full range of co-instructional activities”. The Advisory Group issued its Report in April 2001. That report was introduced at this hearing without objection. It is useful to quote from the Report to put much of this legislative upheaval in context: The Current Situation in Ontario In the past few years, teachers’ unions and some of Ontario’s district school boards have withdrawn from leading and participating in coinstructional activities as a bargaining tactic, to influence the outcome of collective negotiations. At present, most boards do not offer their students a full range of co-instructional activities. In June 2000, the Government introduced the Educational Accountability Act (Bill 74), which included provisions for accountability at school boards, limitations on average class sizes and the minimum teaching assignments of classroom teachers in secondary schools. After introduction of Bill 74, the levels of co-instructional activity dropped in most schools. In some schools, co-instructional activities had ceased completely. All boards and schools report that the quality of the co-instructional activities that are offered have suffered significantly. Participation by teachers in such activities as conducting parent-teacher interviews, providing extra assistance to students, and attending staff meetings and student graduations is considered voluntary by teachers’ unions. Teachers have therefore withdrawn from these activities, as well as from co-instructional sports and cultural activities.  The Report considered six options: 1. Do nothing; 2. Community delivery of co-instructional activities for students; 3. Pay teachers to provide co-instructional leadership; 4. Enhance co-instructional activities in the key areas of respect, time, resources, and community involvement; 5. Determine the activities that should be considered part of the mandatory duties of a teacher, to ensure that all of Ontario’s students have access to a full and well-rounded educational experience; 6. Credit teacher participation in co-instructional activities. The Report made 16 recommendations, some of which ought to be highlighted: 1. That the Ministry of Education, district school boards, and teachers’ unions immediately and collaboratively undertake to define the professional duties and responsibilities of teachers. 2. That schools and boards recognize, in assigning a secondary school teacher’s workload, that teachers need time to participate in co-instructional activities. 4. That participation in co-instructional activities remain voluntary for teachers, and that the Ministry of Education withdraw the unproclaimed sections of the Education Accountability Act, 2000 (Bill 74), that are related to making co-instructional activities a mandatory part of teachers’ responsibilities. 5. That teachers’ unions recognize the negative impact on students when they consider using withdrawal of services from coinstructional activities as a bargaining tactic. 6. That, given that teachers’ unions believe that teachers’ participation in co-instructional activities is voluntary, and given that those teachers who do participate in co-instructional activities voluntarily choose to do so, teachers’ unions urge their members not to place pressure on fellow members who choose to participate in co-instructional activities. In the end, the Report urged the Minister of Education, trustee associations and teachers’ unions to meet as soon as possible to discuss the Report and its recommendations: “There is an urgency to begin implementing solutions now, so that another school year does not go by in which students are deprived of some of the most rewarding experiences of their educational careers.” Needless to say, that Report was almost 12 years ago. Sadly, the passage of time not only does not appear to have seen the resolution of the problem but it is unclear how many of the recommendations of the Advisory Group have actually been implemented. Regardless of each party pointing to portions of the Report to buttress its argument, it is difficult to discern from the Report alone, which recommendations the Government chose to accept and those it did not.

“(v) Stability and Excellence in Education Act, 2001, S.O. 2001, c. 14 (Bill 80) This Bill began to dismantle some, but not all, of the operational mechanisms for the regulation, assignment and oversight of co-instructional activities. In particular, it repealed the unproclaimed provisions in sections 170(2.1) to 170(2.4) (duties of school boards), 264(1.2) and (1.3) (duties of teachers) and 265(2) (duties of principals). Section 265(2) was replaced with: 265. (2) In addition, it is the duty of a principal, in accordance with the board plan to provide for co-instructional activities under subsection 170 (1), to develop and implement a school plan providing for co-instructional activities. Notwithstanding the repeal of many of the operational mechanisms for their regulation and assignment, the definition of co-instructional activities and its inclusion in the definition of strike remained in the Education Act unchanged.

“(vi) Ontario Regulation 209/03 under the Education Act (amending Regulation 298 of R.R.O. 1990) – May 2003 78. 79. 80. Whatever the Government made out of the Report of the Minister’s Advisory Group in April 2001, this regulation amended section 20 of Regulation 298 (which deals with the duties of teachers) to add: “(i) ensure that report cards are fully and properly completed and processed in accordance with the guides …; (j) co-operate and assist in the administration of tests under the Education Quality and Accountability Office Act, 1996; (k) participate in regular meetings with pupils’ parents or guardians; (l) perform duties as assigned by the principal in relation to cooperative placements of pupils; and (m) perform duties normally associated with the graduation of pupils.” Clearly, at least some elements of the definition of co-instructional activities in the statute were now made mandatory through the regulations.

(vii) Back to School (Toronto Catholic Elementary) and Education and Provincial Schools Negotiations Amendment Act, 2003, S.O. 2003, c. 2 (Bill 28) This statute ended a strike by the Ontario English Catholic Teachers’ Association at the Toronto Catholic District School Board. It also made amendments to the Education Act. In particular, it again changed the definition of strike in section 277.2(4)(b): “strike” includes any action or activity by teachers in combination or in concert or in accordance with a common understanding that is designed or may reasonably be expected to have the effect of curtailing, restricting, limiting or interfering with, (i) the normal activities of a board or its employees, (ii) the operation or functioning of one or more of a board’s schools or of one or more of the programs in one or more schools of a board, including but not limited to programs involving co-instructional activities, or (iii) the performance of the duties of teachers set out in the Act or the regulations under it, including any withdrawal of services or work to rule by teachers acting in combination or in concert or in accordance with a common understanding. Although still keeping co-instructional activities in the definition of strike, included as part of “the operation or functioning of one or more of a board’s schools or one or more programs in one or more schools of a board”, Bill 28 added new elements and expanded the definition by: (a) making it clear that the activity in combination or in concert in accordance with a common understanding was “effects” based rather than only “intention” based by adding the words “may reasonably be expected to have the effect”; and (b) adding a new apparently separate and freestanding component: “the normal activities of a board or its employees” … in Question Period [on Wednesday, May 23, 2003] about Bill 28 between Dalton McGuinty, then Leader of the Opposition and then Premier Ernie Eves. In the exchange, the Leader of the Opposition accuses Premier Eves of trying to “sneak in” (without an election) a fundamental change to provincial education policy in Bill 28 amendments to the Education Act. The Leader of the Opposition alleged Bill 28 changed the law by including co-instructional activities as mandatory. However, co-instructional activities had been included in the definition of strike since Bill 74 in 2000.

“(viii) Student Achievement and School Board Governance Act, 2009, S.O. 2009, c. 25 (Bill 177) The definition of co-instructional activities was repealed and deleted from the Education Act by Bill 177. Section 265(2) which had been introduced by Bill 80 in 2001 and was the last remaining operational provision with respect to co-instructional activities was repealed. Lastly, the definition of strike was amended to delete “including but not limited to programs involving co-instructional activities” in section 277.2. That is the definition of strike in the statute now.”