Keeping Students in Class Act, 2022, S.O. 2022, c. 19 - Bill 28

• Jurisdiction: Ontario
• Date: 03 November 2022
• Bill Number: 28

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 28 and does not form part of the law. Bill 28 has been enacted as Chapter 19 of the Statutes of Ontario, 2022.

The Bill enacts the Keeping Students in Class Act, 2022.

The Act addresses the labour disputes involving school board employees represented by the Canadian Union of Public Employees.

The Act provides for new collective agreements. The central terms for those collective agreements are set out in the Schedule. The Act requires the termination of any strike or lock-out and prohibits strikes or lock-outs during the term of the collective agreement.

The Act is declared to operate notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms and the Act will apply despite the Human Rights Code.

The Act limits the jurisdiction of the Ontario Labour Relations Board, arbitrators and other tribunals to make certain inquiries or decisions. It also provides for there to be no causes of action or proceedings against the Crown for certain acts. Certain proceedings are deemed to have been dismissed.

The Act provides for regulations, which may be retroactive. Regulations providing for transitional matters will prevail over the Act in the event of a conflict.

chapter 19

An Act to resolve labour disputes involving school board employees represented by the Canadian Union of Public Employees

Assented to November 3, 2022

CONTENTS

Preamble

The negative impact of the COVID-19 pandemic on student learning and their mental health and well-being requires all education partners to work together to provide stability and to ensure that after two years of pandemic disruptions and learning loss there are no further interruptions to learning, so students can be supported to achieve their full potential. The Government, through its Plan to Catch Up, is supporting Ontario’s students by enabling them to benefit from a normal school experience, including academic engagement, extracurricular activities and other opportunities in school that contribute to their learning and development.

The Government is committed to bargaining with its education labour partners to reach negotiated settlements within a responsible fiscal framework. However, the Canadian Union of Public Employees (CUPE) has taken steps to initiate strike action in early November 2022, two months into the school year. Such action would destabilize the school experience for Ontario’s students and threaten their learning recovery.

This Act would terminate any on-going strike or lock-out by, or in respect of, employees of school boards who are represented by CUPE, restoring and maintaining stability for students in class. This Act would deem fair, fiscally responsible collective agreements to be in operation with respect to those employees for the period beginning on the date this Act receives Royal Assent and ending on August 31, 2026.

In order to secure the purposes of this Act against legal challenges, which may create destabilizing uncertainty for students and families, this Act would provide that it shall operate notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms and despite the Human Rights Code.

Therefore, His Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation and Application

Definitions

1 In this Act,

“bargaining agent” means the Canadian Union of Public Employees and any of its affiliated local trade unions; (“agent négociateur”)

“bargaining unit” means a bargaining unit of employees of a school board represented by the bargaining agent; (“unité de négociation”)

“employee bargaining agency” means the Canadian Union of Public Employees designated as the employee bargaining agency under subsection 3 (1) of Ontario Regulation 144/22 (The 2022 Round of Collective Bargaining) for the purposes of subsection 20 (2) of the School Boards Collective Bargaining Act, 2014; (“organisme négociateur syndical”)

“employees” means the employees in any bargaining unit; (“employés”)

“employer” means a school board that employs employees; (“employeur”)

“employer bargaining agency” means the council of trustees’ associations designated as the employer bargaining agency under subsection 3 (2) of Ontario Regulation 144/22 (The 2022 Round of Collective Bargaining) for the purposes of subsection 21 (6) of the School Boards Collective Bargaining Act, 2014; (“organisme négociateur patronal”)

“Minister” means the Minister of Education or such other member of the Executive Council to whom responsibility for the administration of this Act may be assigned or transferred under the Executive Council Act; (“ministre”)

“new central terms” means the terms, including letters of understanding, contained in the document provided on behalf of the Crown to the bargaining agent on October 30, 2022, the text of which is set out in Schedule 1 to this Act; (“nouvelles conditions négociées centralement”)

“new collective agreement” means a new collective agreement that is deemed to be in operation under subsection 5 (1). (“nouvelle convention collective”)

Interpretation

2 (1) Expressions used in this Act have the same meaning as in the School Boards Collective Bargaining Act, 2014, unless the context requires otherwise.

Constitutional rights and privileges

(2) This Act does not prejudicially affect any right or privilege guaranteed by section 93 of the Constitution Act, 1867 or by section 23 of the Canadian Charter of Rights and Freedoms, and every authority given by this Act shall be exercised in a manner consistent with those rights and privileges.

School board as employer

(3) Nothing in this Act changes the status of a school board as the employer of its employees and the application of this Act does not create an employment relationship between the Crown and employees or a deemed employment relationship between them for the purposes of this or any other Act or any law.

Application of Act

3 This Act applies to every employer, every employee, the bargaining agent, the employer bargaining agency and the employee bargaining agency.

Application of School Boards Collective Bargaining Act, 2014

4 (1) Except as modified by this Act, the School Boards Collective Bargaining Act, 2014 continues to apply.

Same, conflict

(2) In the event of a conflict between this Act and the School Boards Collective Bargaining Act, 2014, the Labour Relations Act, 1995 or the Education Act, this Act prevails.

Collective Agreements

New collective agreements

5 (1) As soon as this Act receives Royal Assent, new collective agreements between every employer and the bargaining agent are deemed to be in operation with respect to every bargaining unit.

Same

(2) A new collective agreement is deemed to be a collective agreement for the purposes of the School Boards Collective Bargaining Act, 2014 and the Labour Relations Act, 1995.

Terms of agreement

(3) A new collective agreement includes:

1. The new central terms.

2. Subject to subsections (5) and (6), the local terms set out in the collective agreement that expired on August 31, 2022 and that applied with respect to the applicable bargaining unit.

3. The terms and conditions that, under the School Boards Collective Bargaining Act, 2014 and the Labour Relations Act, 1995, are deemed to be included in it.

No further changes to compensation terms

(4) No decision, direction, order or award, or any other determination made by any court, administrative tribunal, arbitrator, mediator-arbitrator or arbitration board, under the Canadian Charter of Rights and Freedoms or otherwise, after this Act receives Royal Assent, that affects a central or local term respecting compensation that applied to a bargaining unit during the period from September 1, 2019 to August 31, 2022 shall alter, modify or otherwise affect any amounts payable as compensation to an employee under a new collective agreement.

Nullification of local terms

(5) Any local term that has the effect of limiting the ability of the employer to implement a program to support employee attendance is null and void to that extent.

Local terms modified by new central terms

(6) Any modification or adjustment to a local term, or any nullification or substitution of a local term, that is required under the new central terms is deemed to have been made.

Term of operation

(7) A new collective agreement shall have a commencement date that is the day this Act receives Royal Assent and an expiry date of August 31, 2026.

Strikes and Lock-outs

Duties of employer and employee bargaining agency

Application of section

6 (1) This section applies if a strike or lock-out involving any employees is in effect immediately before this Act receives Royal Assent.

Resumption of operations

(2) As soon as this Act receives Royal Assent, every employer shall use all reasonable efforts to resume any operations interrupted during any strike or lock-out, by or with respect to any employees, that is in effect immediately before this Act receives Royal Assent.

Termination of lock-out

(3) As soon as this Act receives Royal Assent, every employer and employer bargaining agency shall terminate any lock-out of employees that is in effect immediately before this Act receives Royal Assent.

Termination of strike

(4) As soon as this Act receives Royal Assent, the bargaining agent and employee bargaining agency shall terminate any strike by employees that is in effect immediately before this Act receives Royal Assent.

Same

(5) As soon as this Act receives Royal Assent, each employee shall terminate any strike that is in effect immediately before this Act receives Royal Assent and shall, without delay, resume the performance of the duties of the employee’s employment or shall continue performing them, as the case may be.

Exception

(6) Subsection (5) does not preclude an employee...