The British Columbia Teachers’ Federation (the “Federation”) lost an appeal from a preliminary arbitration ruling finding that the failure of school boards to implement student codes of conduct in accordance with a Ministerial Order was not an arbitrable issue since it was not a term of the collective agreement, did not have even an implicit connection to the collective agreement and was not employment-related legislation incorporated into the collective agreement by s. 27 of the School Act

28. February 2012 0

Administrative law – Decisions of administrative tribunals – Arbitration Board – Labour law – Collective agreements – Schools – Students – Code of conduct – School boards – Powers and duties – Judicial review – Ministerial orders – Compliance with legislation – Standard of review – Correctness

British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., [2011] B.C.J. No. 2473, 2011 BCCA 537, British Columbia Court of Appeal, December 29, 2011, L.S.G. Finch C.J.B.C., K.C. Mackenzie and E.C. Chiasson JJ.A.

The union for British Columbia school teachers, the Federation, negotiates collective agreements with the respondent BC Public School Employers’ Association (the “Association”) under the provincial School Act and its regulation. This provincial statutory scheme has authorized school districts to establish student codes of conduct since 1979.

In 2000, a Ministry of Education task force established to “help improve school safety” recommended that school boards implement, among other things, student codes of conduct to protect against bullying and other unsafe behaviour. In 2007, the School Act was amended to require school boards to implement student codes of conduct, and, that October, a Ministerial Order was issued requiring “school boards to establish codes of conduct for schools within their school districts, envisioning consultation “with individuals or groups the school considers are representative of” employees of the board, parents and students.”(para. 8)

The Federation conducted a survey of school districts that revealed many were not in compliance with the Ministerial Order, though the Association disputed these results.

The Federation initiated a grievance alleging that the employer (school boards) had violated collective agreement provisions with the teachers by failing to comply with the Ministerial Order. The Federation sought a declaration regarding the violation, as well as “any other appropriate remedies” that an arbitrator could provide.

The Association argued that the grievance was not grievable because it did not arise out of the interpretation, application, operation or alleged violation of the collective agreement and was not arbitrable. The Federation urged a less formalistic classification of the grievance, where non-compliance with a student code of conduct by the school district could be viewed as a failure by the employer to exercise management rights to ensure a discrimination and harassment-free workplace for teachers.

The arbitrator found that the matter was not arbitrable, applying the criteria from Weber v. Ontario Hydro, [1995] 2 S.C.R. 929,: “Does the dispute arise either expressly or inferentially out of its terms? Additionally, labour arbitrators have jurisdiction to enforce the substantive rights and obligations of employment-related statutes as if they were part of the collective agreement, and to address statutory violations that are closely connected in a contextual way to the interpretation, operation and application of the collective agreement. …” (para. 16)

While there was a similarity between the Ministerial Order and collective bargaining for items such as a harassment free workplace, the student codes of conduct had never been negotiated between the Federation and the Association, and so they were not a ”significant part of the employment relationship.” (para. 17) Beyond that, the arbitrator considered the provisions of the School Act and the Ministerial Order to see if there was an intention, on the part of the Legislature, for compliance with the Ministerial Order to fall within the labour arbitrator’s exclusive jurisdiction. The Association conceded that the portion of the Ministerial Order imposing consequences for students who violate the code of conduct would not be subject to arbitration. Thus, if the issue were arbitrable, there would remain certain disputes under the Code of Conduct which would have to be resolved outside of arbitration.

Although student behaviour has an impact on teachers’ employment, it was not sufficient to bring the Ministerial Order into the realm of exclusive arbitral jurisdiction. The code of conduct was intended for students, and student codes of conduct had not been negotiated as part of any collective agreement locally or provincially. Therefore, the Ministerial Order was not employment-related legislation.

Section 27 of the School Act provides that the terms and conditions of a contract of employment between a board and a teacher include its provisions and regulations, the terms of the collective agreement and anything else consistent with the first two that is agreed between the board and the teacher. Although the arbitrator found that the Ministerial Order is a term or condition of a teacher’s contract of employment, and one duty upon teachers is to ensure that students understand and comply with codes of conduct regarding their behaviour, the Ministerial Order is not a term of the collective agreement.

The Federation argued that the arbitrator’s decision should be reviewed on a correctness standard, whereas the Association argued for a reasonableness standard. The Court of Appeal held that a correctness standard applied because this was a decision about whether the grievance was arbitrable, but which required the arbitrator to interpret the Ministerial Order and the School Act. The Court considered these to be laws of general application “and not within the specialized jurisdiction of the arbitrator.” (para. 31), making correctness the appropriate standard of review.

“Generally, all of the terms and conditions of the employment relationship between an employer and unionized employees are found within the four corners of the applicable collective agreement, but … “the law does not preclude parties from agreeing to exceptions or prevent a legislature from legislating exceptions”.” (para. 34)

Nothing in s.27(1) of the School Act suggests that the Ministerial Order or the School Act regulations are imported into a teachers’ collective agreement.

In British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association, 2005 BCCA 92, legislation had been passed removing the issue of class size from the collective bargaining process and provided that class sizes were to be determined pursuant to s. 76.1 of the School Act. An arbitrator held that he was without jurisdiction to arbitrate a grievance alleging that a school board was non-compliant with the class size provision of the School Act. The Court held that the grievance was arbitrable, since the issue of class size had been negotiated in collective bargaining between teachers and school boards prior to the legislative change. Class sizes were held to be a significant part of the employment relationship.

However, the Court in this case did not accept that the class size jurisprudence should apply. Here, there was no historical treatment of codes of conduct in the collective bargaining process that would permit a finding that the codes were a “significant part of the employment relationship.” The inclusion of code of conduct type negotiation in some local agreements did not suffice.

In Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 33 the Supreme Court of Canada wrote:

However, the Court of Appeal agreed with the arbitrator that the Ministerial Order was not employment-related legislation, based on its content which included a discretionary consultation process that does not even separately identify teachers, and sections that impact students only. The Ministerial Order goes well beyond teachers’ terms of employment, but “In my view, the fact that the Ministerial Order benefits teachers by fostering a safe, caring and orderly school environment and providing for the prohibition of certain types of discrimination does not make the Ministerial Order employment-related legislation so as to vest enforcement authority in a grievance arbitrator appointed pursuant to the terms of a collective agreement.” (para. 52)

Finally, the Court noted that if this grievance were ruled arbitrable, then the arbitrator would also have to be clothed with tasks and powers of the relevant Government ministry to supervise, fashion and/or approve codes of conduct that impact the interests of other board employees, parents and students, none of whom would be parties to the arbitration regarding the collective agreement.

The appeal was dismissed.

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