Peter McLellan, QC & Richard Jordan

Introduction

On February 21, 2017 the Nova Scotia Government passed Bill 75 – the Teachers’ Professional Agreement and Classroom Improvement (2017) Act. This Bulletin will provide some background to what is, today, relatively unprecedented: the imposition by law of a Collective Agreement between an Employer and a Union. There are various nuances which make this dispute interesting and unique.

The past

The Province and the Nova Scotia Teachers Union (NSTU) have had a long collective bargaining relationship spanning 122 years. In most instances the relationship has been one of mutual respect where the NSTU and teachers have worked cooperatively with the Government to enhance both the careers of teachers and education in Nova Scotia. There had never been a strike until this round of bargaining (more below). So what happened in 2015-2017?

What appears to have precipitated the dispute is the Government’s desire to impose fiscal restraint in its spending, both in wages and the phase out of the so-called Service Award as well as differences about classroom conditions. What followed was “difficult” collective bargaining – there were three tentative agreements between the Government and the NSTU – November 12, 2015, September 2, 2016 and January 18, 2017. Each was approved by the NSTU executive and recommended to NSTU members but rejected by increasingly larger margins.

After the rejection of the second tentative agreement, the NSTU characterized their job action not as a strike, but rather as a “work to rule”. Teachers were directed by the NSTU not to perform certain of their services and the NSTU publicly stated that teachers would cease to do extra-curricular activities or “above and beyond” duties, but was this a “work to rule”?

Some definitions. The Teachers’ Collective Bargaining Act defines strike in part as follows:

“Strike” includes a cessation of work, a refusal to work or continue to work, by employees, in combination or in concert or in accordance with a common understanding, for the purpose of compelling their employer to agree to terms or conditions of employment …

And “work to rule” – a term not defined by statute, but which has been defined by arbitrator Owen Shime as:

[A] work to rule is a term of art with a meaning that is well understood in collective bargaining or in an industrial relations context and the term means that employees are to strictly observe the rules with a view to disrupting the employer’s operation. But the term does not mean that employees may set their own rules or unilaterally alter the employer’s rules. The rules that must be observed are the employer’s rules.

So what was directed by the NSTU? Clearly it was a partial strike as evidenced by the following:

(1) The NSTU provided the requisite 48-hour notice of strike as required under the Teachers’ Collective Bargaining Act; and

(2) When legally challenged by certain Nova Scotia Universities with respect to the directive not to supervise education students, the NSTU submitted to the Court that this was a strike, albeit a partial strike.

It is interesting that the Government did not challenge, either legally or otherwise, the characterization of the job action as a “work to rule”. Perhaps the Government was concerned that it might inadvertently trigger a full scale strike. Possibly the Government remained optimistic that, by avoiding controversy with the NSTU, a collective agreement could be achieved through bargaining. However, after rejection of the third tentative agreement, the Government responded with Bill 75 which:

(1) Set salaries in accordance with the guidelines which the Government had established for the public service – a two year wage freeze followed by a 1% increase in year three, a 1.5% increase at the start of year four and an extra 0.5% increase on the last day of the contract;

(2) Capped the Service Award – the years of service used to calculate the Service Award will only count years of service up to July 31, 2015;

(3) Added new provisions through the establishment of a Council to Improve Classroom Conditions (“the Council”); and

(4) Included a provision (s. 13) to deal with the issue raised by the Universities, whereby the relevant sections of the Education Actapply when schools are in session and while teachers are present.

This legislation became effective February 21, 2017. The “work to rule”, or the partial withdrawal of services, ended immediately.

The future

Clearly the Government and the NSTU need to re-establish a strong working relationship in order to ensure that students are provided with the best education possible within the fiscal constraints of the Province. There remain two matters which will have to be resolved in the future:

(1) Classroom Improvements – The Council established under the legislation will hopefully provide, in a non-adversarial manner, positive suggestions to improve classroom conditions. It is suggested that such matters are best dealt with either through Department policy or with consultation with teachers. Put another way, those matters may be too complex for collective bargaining, which is designed to deal with terms and conditions of personal employment, not fundamental changes to the employer’s business – in this case, public education;

(2) Constitutionality of Act – The NSTU has indicated it will institute a constitutional challenge to the Teachers’ Professional Agreement and Classroom Improvement (2017) Act. Its argument will be that the Act violates the Charter of Rights and Freedoms – in particular the “freedom to associate”. While the Supreme Court of Canada has rejected contractual terms imposed by the British Columbia Government in its dispute with its teachers, each case is decided on its own facts. In Nova Scotia, there were the three tentative agreements which will go a long way to establish the requisite duty of collective bargaining and consultation. Stay tuned for the future – but this will be a long court process if it proceeds to the bitter end and, if the NSTU is successful, remedies could be complicated and costly for the Province.