In a lengthy decision, Bernie Fishbein, Chair of the Ontario Labour Relations Board, has determined that teachers withdrawing voluntary activities at the urging of their Federations constitutes an unlawful strike.
The Teachers’ Federations unsuccessfully argued that the repeal of Bill 115 meant that the collective agreements created pursuant to Bill 115 were also ‘repealed’. Not surprisingly, the OLRB did not agree. The OLRB made reference to a decision of Arbitrator Shime that I discussed in my recent post about Bill 115, which had been affirmed by the Divisional Court in the early 80’s. In fact, it was a case that I argued on behalf of the Hamilton Board of Education. That case discussed the difference between a strike where services were withdrawn, as opposed to one in which only voluntary activities were affected, and affirmed that a ‘work to rule’ was nevertheless a strike. The OLRB adopted a similar approach and found the withdrawal of voluntary services to be a strike within the meaning of the definition set out in the Education Act.
The decision leaves open the opportunity for the Teachers’ Federations to argue that this interpretation of the legislation offends the Charter and is therefore precluded. In my view, that argument has little chance of success. It remains to be seen now that all the Federations have ‘called off’ their work to rule ‘advice’ whether that argument will actually be made before the OLRB.
The Court challenge to the constitutionality of Bill 115 however continues.
At the end of the day, this case may finally settle this issue: any teachers’ concerted campaign to withdraw voluntary services constitutes a strike.