School Boards Successful in Recent Arbitrations: No Jurisdiction for Arbitration Panels

In two very recent separate grievance arbitrations (Alberta and Ontario), arbitration panels dismissed each grievance for lack of jurisdiction under teacher-related statutory and negotiated framework (“Framework”) structures which governed teacher collective bargaining as well as teacher collective agreements.

On November 21, 2016, in Buffalo Trail Public Schools Regional Division No. 28 v. ATA (November 21, 2016), the Arbitration Panel dismissed a grievance filed by the ATA relating to a teacher work load grievance which alleged that the Buffalo Trail School Board had breached the Teacher Workload Ministerial Order (August 28, 2013).

The preliminary issue at the grievance arbitration hearing was whether the Arbitration Panel had the authority to hear the grievance under the collective agreement. The Alberta legislation and related Framework dealt with a number of teacher workload issues such as limits on teacher instruction time and teacher professional development (“PD”). Buffalo Trail argued that the grieved teacher workload issues were reflected in Framework wording which had not been subsumed into the collective agreement and thus were not grievable.

The Arbitration Panel agreed. It found that the Legislature did not provide clear legislative intent as to whether the Framework wording was subsumed in the collective agreement and did not go as far as stating that the Framework terms and conditions ‘shall be incorporated’ into the collective agreements. Collective agreement arbitration was not intended to be used as the method to resolve the allocation of teacher PD time from allotted non-instructional days. Rather, the legislation provided that the 62 Alberta school boards were to bargain collective agreements with the ATA that would accord with what is found in the Framework. As such, the grievance was dismissed.

A similar outcome was reached in Ontario Public School Boards’ Association v. Ontario, in which Ontario arbitrator James Haynes dismissed a grievance about whether the terms in the Elementary Teachers Federation of Ontario Central Agreement granted teachers the ability to ignore local board policies in the exercise of their professional judgment when completing report cards.

After a detailed review of the legislation, documents and collective agreement Arbitrator Hayes concluded he did not have jurisdiction under the ETFO collective agreement to hear the grievance. The central agreement (and originating Minutes) made no reference to report cards - apart from a reference to an expired return to work MOA (which was not applicable). Arbitrator Haynes determined the issue regarding report cards was not based in any substantive provisions of the central terms of the collective agreement, including those relating to teacher professional judgment and as such, there could be no breach of the collective agreement.

These decisions serve as important reminders that:

• The jurisdiction of labour arbitrators derives from the collective agreement (Alberta’s Labour Relations Code requires every collective agreement to contain a method to settle collective agreement disputes).
• Grievances which do not find root in the collective agreement can be dismissed (as in the above cases).
• If a school jurisdiction does not wish a particular subject matter to become part of the collective agreement (and thus not subject to a grievance arbitration), it should draft appropriate language, including the express exclusion of issues in the collective agreement.