School Board Update
Arbitrator Kaplan Clarifies Earlier Interest Arbitration Awards
Date: August 14, 2024
On May 29, 2024, a board of arbitration (Board) chaired by Arbitrator William Kaplan issued its decisions on two interest arbitration cases in the school board sector which addressed outstanding compensation issues between the Ontario Secondary School Teachers’ Federation (OSSTF), the Crown, and the Ontario Public School Boards’ Association (OPSBA) in respect of secondary school teachers (OSSTF Decision) and the Elementary Teachers’ Federation of Ontario (ETFO), the Crown, and the OPSBA in respect of elementary school teachers (ETFO Decision). On July 17, 2024, the Board issued two implementation awards related to each of these decisions that provide important clarity for school boards on the terms of compensation ordered.
Application of “Across-the-Board” Wage Adjustments
In both the OSSTF Decision and ETFO Decision, the Board awarded an “across-the-board” adjustment to the teacher pay grid (T grid) as follows:
September 1, 2022: 3.00%
September 1, 2023: 3.00%
September 1, 2024: 2.75%
September 1, 2025: 2.50%
After the awards were issued, the OSSTF and ETFO took the position the “across-the-board” increases were to apply to special rates of pay, premiums and allowances. While the two unions made slightly different arguments for why this approach ought to be accepted, Arbitrator Kaplan rejected both, stating:
In our view, our award requires no clarification. The compensation part of the award was narrowly and deliberately focused and deals with two matters and two matters only: first, the across-the-board increase to be applied to T grids and the OT rates, and second, the introduction of a process to reduce the gap in OT rates. The award makes this clear: “Accordingly, we have determined that the appropriate adjustments to the T grid are as follows.” We did not state, as we might have, that the across-the-board increases would likewise apply to special rates of pay, premiums and allowances. Increases to special rates of pay, premiums and allowances is not implicit, nor was it inadvertently omitted.
Had it been our intention to award the across-the-board increases to special rates of pay, premiums and allowances, the award would have clearly said so (as was illustrated in several authorities submitted by the Crown/OPSBA). To be sure, we could have, as is often the case, indicated that unless specifically addressed, all outstanding proposals were dismissed. The fact that we did not do so does not either establish that we implicitly decided that special rates of pay, premiums and allowances should be upwardly adjusted by the across-the-board increases (but for some reason decided to remain silent about that) leading to a need to clarify our award, or that we inadvertently failed to consider this matter and so and must now complete our award.
Appropriate Interpretation of “Average of All OT Rates”
A second interpretation issue arose in the ETFO Decision with respect to the occasional teacher (OT) rates. To narrow the gap in OT rates, the Board awarded that, in Year 3 of the collective agreement “a simple average of all OT rates in the province should be calculated” and adjustments to the OT rate should be made based on this average.
However, the ETFO Decision did not specify whether the average was to include all affiliate rates or just the ETFO rates, given that OTs may work for multiple school boards and sometimes in both elementary and secondary classrooms. Arbitrator Kaplan confirmed the formula was to be based only on the ETFO rates and was not to include affiliate rates.
The OPSBA was represented before the Board by Hicks Morley’s Dolores Barbini, Julia Nanos, Colleen Nevison and Grant Nuttall.
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