The Inside Agenda Blog

Contracts Imposed Under Bill 115: What it Means

by Daniel Kitts Thursday January 3, 2013

Today, Education Minister Laurel Broten used the power granted in Bill 115 to impose contracts on teachers' unions that had so far refused to sign new collective bargaining agreements with the Ontario government. 

In a move that surprised many, Broten also announced that once the imposed contracts were in place, the government would repeal Bill 115. 

The announcement left people with a lot of questions about what it all means and what happens going forward. Here's an attempt to answer some of those questions. 

Broten announced she would be imposing contracts under Bill 115, but would then repeal Bill 115. How will those contracts hold if the law imposing them is repealed? 

I spoke to Tony Dean, former head of the Ontario public service and a former Ontario deputy minister of labour. He is currently with the University of Toronto's School of Public Policy and Governance. Dean explained that once there is a collective agreement in place, under the Labour Relations Act, the agreement stays in effect for the duration of the contract and can only be changed with the consent of both the employer and the employees. In essence, he said, it doesn't matter how you got to the agreement, whether it was negotiated or imposed. An agreement that is in effect remains in effect until it expires. So after the contracts are in force, Bill 115 is unnecessary to keep those contracts in place. (There is the question of court appeals and their effect on Bill 115-imposed contracts. More on that later). 

If Bill 115 is repealed, what law will govern these contracts?

The imposed contracts will be under the Labour Relations Act, as are all other collective agreements. 

The Elementary Teachers' Federation of Ontario has voted 92 per cent in favour of a "one-day political protest" if Broten used the power of Bill 115 to shut down strikes or impose an agreement. Are they allowed to do that under Bill 115? 

Not if they're expected to be at work. Dean said that if the day of political protest were on a school day, the employer could go to the Ontario Labour Relations Board (OLRB) and ask that the protest be declared an unlawful strike. Once a contract is in effect -- and the minister has just imposed contracts -- workers can't strike.

One way the teachers might be able to stage their political protest without running afoul of the newly-imposed contracts would be to hold it on a day where they aren't expected to be in class, like, say, a Saturday. 

Before Bill 115 is repealed, Dean said, the minister can act in the event of any kind of strike action. After it is repealed, it would be up to the school boards, who are the official employers of the teachers, to complain to the OLRB. 

If teachers do any kind of illegal action, can they be fired?

Probably not. Firings would be highly doubtful, according to Dean. Under the Labour Relations Act, unions and individual workers can be fined for taking part in illegal strike actions. But the Act does not envision people being fired for striking illegally.

Does the Ontario Legislature have to be back in session for Bill 115 to be repealed? 

No. There is language in the bill that permits its repeal by the cabinet. (Officially it's the Lieutenant Governor on the advice of cabinet, but you get the picture). 

If Bill 115 is repealed, can it still be challenged in court?

Yes. On this answer, I communicated with Lorne Sossin, Dean of Osgoode Hall Law School at York University. He wrote to me that, even with the law repealed, the courts could still hear the case based on "the fact that there clearly remains a live, adversarial dispute and that the decision will have practical effect on the rights of the parties (for example, whether the imposition of the collective agreements pursuant to the Act was legitimate)."

Sossin noted that there have been cases that the courts have declined to hear appeals because the legislation at issue has been repealed. But another factor suggesting the Bill 115 case could be heard even though repealed "is that labour is one of those fields where short-term legislation of this kind may be 'evasive of review' - that is, for example, back to work legislation. It will usually not be possible to challenge such laws prior to the workers in question being back at work, after which the laws could expire or be repealed." So if no law could be challenged after being repealed, 'it may never be possible to subject such legislation to judicial review." In other words, while the law may be no longer in effect it still may be worthwhile for the court to hear the case: if the courts rule the law was in fact unconstitutional, it will prevent governments from passing identical legislation in the future. 

So if the law is struck down after it has been repealed, what happens?
 
According to Sossin, "if the repealed law were challenged, the remedy would obviously no longer be to quash or strike down the legislation - rather, it would likely be to declare the legislation was inconsistent with the Charter. Such a declaration could call into question the legitimacy of the imposed collective agreements, which could in turn set in motion follow-up litigation challenging those collective agreements as having been imposed without lawful authority."