In-Depth Analysis

Employers’ Advisor – Special Edition

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Workplace News in the Education Sector

Race to the Bottom in Ontario’s Elementary and Secondary Schools

We like to believe that in our elementary and secondary schools the interests of our students are appropriately balanced with the interests of our teachers.  But that isn’t necessarily so when the delivery of education is the compromise that results from collective bargaining as it is practised in the Ontario education system.

What has developed is a system in which the interests of the students are subordinate to the interests of the teachers in ways which previously would not have been imaginable.  Instead of the children studying from teachers in the schools, it now is as if the students are incidentally present in the teachers’ workplaces.  Or as one negotiator of the teachers’ union expressed it to me during bargaining, she agreed as a parent with what the Board was proposing but she didn’t agree as a teacher and the union represents the teachers.

Consider this fundamental question:  what is the school board entitled to consider when it decides who will instruct your child?  On July 12, 2012 the previous provincial government entered into a deal with 1 of the unions representing teachers.  It provided that whenever a school board hired a new teacher it was limited to making the selection from the 5 most senior applying supply teachers who held the minimum qualifications set by the government.  What this means is that school boards could not consider the most meritorious teacher for your child if that teacher was not in the top 5 senior applicants.  This is a standard more applicable to the selection of workers in jobs with mechanical tasks and limited judgement.  Then on September 11, 2012 the previous government filed a regulation making this the standard for the hiring of all new teachers in Ontario.

During the negotiations for the subsequent round of teacher bargaining, the teachers proposed with considerable success to extend this standard from new teachers to all existing teachers who apply for a new vacancy.  Criteria other than seniority and the minimum required qualifications, no matter how relevant, were to be given no significant weight.  How extraordinarily limiting this is.  A junior teacher, with say 4 years’ seniority but with 10 years’ relevant experience as a social worker helping the very children who are the students of the vacant position would lose a competition to a 6 year teacher who had no other reasonably relevant experience.  Maybe the children covered by the vacant position were children from an identifiable demographic group with whom the social worker spent years living in their community helping them succeed in life; perhaps they were children with special needs or they were children who suffered from low self-esteem or how to respond to constructive criticism.  In all cases the junior teacher who had demonstrated expertise in helping that group of students cope would lose regardless of other reasonably relevant experience.

Here are two more troubling aspects of this.  The junior teacher may have taken the time to earn additional qualifications also set by the government, over and above the minimum qualifications.  This too wouldn’t count and with that the incentive to earn these additional relevant qualifications is reduced.  Or perhaps the vacancy existed at a school in an upscale neighbourhood where senior teachers want to teach because the parents in that community actively impart to their children the importance of education and good study habits.  If the board cannot consider the needs of the system in addition to the needs of the school where the vacancy exists, over time this school would have a complement of senior teachers where there would be no new ideas introduced by recent teacher graduates and in less desirable schools junior teachers would be left without senior mentors.

The predominant reliance on seniority in the private sector may be a practical selection criterion for jobs of minimal skill; that most decidedly is not the case for teachers.  So what is it about the theory of collective bargaining as it is now practised for teachers that has resulted in this dumbing down of our schools?

Where the right to strike exists in the private sector, there is a built-in tendency for striking or locked out employees to settle because the employees are not getting paid; and the employer is losing money, and potentially its market, and it too has an incentive to settle.  Does this logic apply to school board bargaining?  Teachers don’t get paid during a strike, so in theory they have an incentive to settle and the more the students are not in class, the more the students suffer and the more the parents are denied the day care function that schools provide, so the pressure on the school boards by the parents encourages the trustees to settle.

But that is not how it now plays out in school board bargaining.  Instead the teachers are instructed by their union to continue to teach but to withhold that part of what they do which the union describes as voluntary.  They call it working to rule.  Throughout all of this the teachers portray themselves as showing concern for the children by continuing to teach.  But consider the impact on the child as the union instructs teachers not to participate in the math club and library club and stamp club; then tells the teachers not to participate in doing concerts and plays and musicals; maybe pizza days are next to be prohibited, along with trivia nights, celebration of accomplishments of students; and of course they are instructed not to coach or participate or convene or have any involvement in soccer, basketball, volleyball or any sporting event; the science fair is cancelled; the music workshop is abandoned; and on and on it goes, escalating day by day or week by week, until the teachers who continue to teach stop doing even core functions such as recording comments in report cards.  It is the child who bears the full brunt of this tactic.  The child who needs the added stimulus of the math club to keep engaged suffers.  The child who struggles with the 3 R’s but sticks with the program because at the same time she achieves self-esteem on the soccer pitch suffers.  The child who receives comfort and moral compass from attending spiritual clubs in the Catholic system suffers.

Throughout all of this there is no compelling incentive for the teachers to settle:  they are receiving full pay while the child is left to shoulder the full weight of these python-like stifling sanctions, with the colour and interest sucked out of their day.   With the children as pawns the pressure mounts for the board to settle even though what is at stake is that the teachers don’t care that your child gets the best teacher as long as your child gets the teacher who has the minimum qualifications and has been with the board the longest.  It is no answer to say that school boards can end the work to rule by locking out the teachers.  An employer should not have to shut down its workplace to stop a union from introducing change that is designed to undermine the system.  If that is what the union wants, it has the power to strike.  What we have is a lopsided balance of power and during the last round of local bargaining it led to an erosion of the quality of education, as witnessed by the expanded use of seniority.  The system now favours the interest of the teacher over the interest of the child:  the very child for which the education system was constructed.

If we are to be a more productive society, we must improve the quality of our education and certainly not reduce it.  A system that treats the placement of teachers in positions comparably with the selection of warehouse workers and that imposes a regimen for resolving labour disputes which allows the unions to punish the children while its members receive full pay is a race to the bottom.  It is time to remove the offending regulation introduced by the previous government for the hiring of new teachers.  The Ontario Labour Relations Board has recognized that the elementary and secondary system in Ontario relies on voluntarism in the aggregate if not on an individual basis to deliver components of education.  It is time to level the playing field for bargaining by legislating that when a union directs its teachers to work to rule that all the teachers shall receive no pay.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact the authors, or any Mathews Dinsdale lawyer.

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