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Fairness for Parents and Employees Act
(Teachers’ Withdrawal of Services), 1997

S.O. 1997, CHAPTER 32

Consolidation Period: From April 9, 2014 to the e-Laws currency date.

Note: This Act is repealed on a day to be named by proclamation of the Lieutenant Governor. See: 1997, c. 32, s. 11.

Last amendment: 2014, c. 5, s. 49.

SKIP TABLE OF CONTENTS

CONTENTS

Interpretation and Application

1.

Application

2.

Interpretation

Prohibitions

4.

Prohibition, employers

5.

Prohibition, teachers’ unions

General

6.

OLRB powers and procedures

Interpretation and Application

Application

1.  (1)  This Act applies with respect to schools, and child care facilities and day nurseries located on the premises of schools, that were affected by a province-wide withdrawal of services by teachers from October 27 to November 7, 1997. 1997, c. 32, s. 1 (1).

Exception, lawful strike

(2)  This Act does not apply with respect to the period beginning on November 3 and ending on November 7, 1997 at schools affected by the strike by the branch affiliates of The Ontario English Catholic Teachers’ Association and l’Association des enseignantes et des enseignants franco-ontariens against The York Region Roman Catholic Separate School Board that was permitted under the School Boards and Teachers Collective Negotiations Act. 1997, c. 32, s. 1 (2).

Interpretation

2.  Expressions in this Act relating to education and the school system have the same meaning as in the Education Act unless the context requires otherwise. 1997, c. 32, s. 2.

3.  Repealed: 2009, c. 33, Sched. 20, s. 5 (1).

Prohibitions

Prohibition, employers

4.  (1)  No employer or person acting on behalf of an employer shall dismiss or discipline an employee because the employee was, on any day during the period beginning on October 27 and ending on November 7, 1997, unable to perform some or all of his or her duties because the employee was engaged in caring for his or her eligible child (within the meaning of subsection 3 (1)) because of a circumstance described in clause 3 (2) (a), (b), (c), (d) or (e). 1997, c. 32, s. 4 (1).

Prohibition

(2)  No employer or person acting on behalf of an employer shall dismiss or discipline an employee because the employee requested permission to be absent from work or to restrict his or her duties in order to care for an eligible child in the circumstances and during the period described in subsection (1). 1997, c. 32, s. 4 (2).

Prohibition

(3)  No employer or person acting on behalf of an employer shall dismiss or discipline an employee because he or she seeks to enforce this Act. 1997, c. 32, s. 4 (3).

Same

(4)  A complaint under this section may be made in respect of an action taken either before or after this Act comes into force. 1997, c. 32, s. 4 (4).

Restriction

(5)  Subsection (1) applies only if the employee notified the employer in advance that he or she would be unable to perform some or all of his or her duties. 1997, c. 32, s. 4 (5).

Same

(6)  Subsection (1) does not apply with respect to a teacher who, on the applicable day, was participating in the province-wide withdrawal of services by teachers. 1997, c. 32, s. 4 (6).

Salary

(7)  Subsection (1) shall not be interpreted to require an employer to pay salary to an employee in respect of time during which the employee was absent from work. 1997, c. 32, s. 4 (7).

Evidence

(8)  An employer may require an employee to provide evidence that the circumstances described in subsection (1) existed on the applicable day and that the employee’s inability to perform some or all of his or her duties was caused by those circumstances; the employer may also make reasonable inquiries respecting those matters. 1997, c. 32, s. 4 (8).

Burden of proof

(9)  The onus is on the employee to prove that subsection (6) does not apply with respect to his or her complaint. 1997, c. 32, s. 4 (9).

Collective agreement

(10)  If the employer has entered into or is bound by the terms of a collective agreement with respect to an employee, subsections (1), (2) and (3) are enforceable as if they were terms of the collective agreement,

(a) if the contravention of the applicable subsection is alleged to have occurred when the collective agreement is in force; or

(b) if the contravention of the applicable subsection is alleged to have occurred when the terms of the collective agreement apply. 1997, c. 32, s. 4 (10).

No collective agreement

(11)  If subsection (10) does not apply, an employee may file a complaint with the Ontario Labour Relations Board that subsection (1), (2) or (3) has been contravened, and the Board shall determine the matter. 1997, c. 32, s. 4 (11).

Jurisdiction

(12)  The Ontario Labour Relations Board has jurisdiction to determine a complaint by a Crown employee that the Crown has contravened subsection (1), (2) or (3). 1997, c. 32, s. 4 (12).

Burden of proof, complaint

(13)  If a complaint that subsection (1) has been contravened is filed with the Ontario Labour Relations Board, the onus is on the employee to prove that his or her inability to perform some or all of his or her duties resulted from the circumstances described in subsection (1). 1997, c. 32, s. 4 (13).

Same

(14)  Once the employee proves the matters required by subsection (13), the onus is on the employer to prove that he, she or it did not dismiss or discipline the employee for the prohibited reason. 1997, c. 32, s. 4 (14).

Prohibition, teachers’ unions

5.  (1)  A teachers’ union shall not suspend, expel or penalize a teacher or otherwise act in a manner that is arbitrary, discriminatory or in bad faith in the representation of a teacher because the teacher,

(a) did not support a teachers’ union in preparing for the province-wide withdrawal of services by teachers;

(b) opposed proposals that teachers withdraw their services;

(c) did not withdraw his or her services or did not continue his or her withdrawal of services;

(d) crossed or attempted to cross a picket line established in connection with the province-wide withdrawal of services by teachers;

(e) counselled another teacher against withdrawing his or her services or assisted another teacher who continued to provide services; or

(f) counselled another teacher to comply with the terms of the collective agreement applicable to him or her or to comply with the School Boards and Teachers Collective Negotiations Act. 1997, c. 32, s. 5 (1).

Enforcement

(2)  A teacher may file a complaint with the Ontario Labour Relations Board that subsection (1) has been contravened, and the Board shall determine the matter. 1997, c. 32, s. 5 (2).

Burden of proof

(3)  If a complaint that subsection (1) has been contravened is filed with the Board, the onus is on the teachers’ union to prove that its actions were not taken for a prohibited reason. 1997, c. 32, s. 5 (3).

Definition

(4)  In this section,

“teachers’ union” means The Ontario Teachers’ Federation, an affiliate or a branch affiliate within the meaning of the School Boards and Teachers Collective Negotiations Act or a designated bargaining agent under Part X.1 of the Education Act. 1997, c. 32, s. 5 (4).

Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “teachers’ union” is repealed and the following substituted: (See: 2014, c. 5, ss. 49, 55)

“teachers’ union” means,

(a) The Ontario Teachers’ Federation, or

(b) a bargaining agent designated by section 10 of the School Boards Collective Bargaining Act, 2014 for a teachers’ bargaining unit.

General

OLRB powers and procedures

6.  (1)  Sections 110 to 118 of the Labour Relations Act, 1995 apply with necessary modifications with respect to anything the Ontario Labour Relations Board does under this Act. 1997, c. 32, s. 6 (1).

No panels

(2)  A decision, determination or order of the Board under this Act shall be made,

(a) by the chair or, if the chair is absent or unable to act, by the alternate chair; or

(b) by a vice-chair selected by the chair in his or her sole discretion or, if the chair is absent or unable to act, selected by the alternate chair in his or her sole discretion. 1997, c. 32, s. 6 (2).

Labour relations officers

(3)  The Board may authorize a labour relations officer to inquire into any matter that comes before it under this Act and to endeavour to settle it. 1997, c. 32, s. 6 (3).

Rules to expedite proceedings

(4)  In relation to any proceeding under this Act, the Board has the same powers to make rules to expedite proceedings as the Board has under subsection 110 (18) of the Labour Relations Act, 1995. 1997, c. 32, s. 6 (4).

Statutory Powers Procedure Act

(5)  Rules made under subsection (4) apply despite anything in the Statutory Powers Procedure Act. 1997, c. 32, s. 6 (5).

Legislation Act, 2006, Part III

(6)  Rules made under subsection (4) are not regulations within the meaning of Part III (Regulations) of the Legislation Act, 2006. 1997, c. 32, s. 6 (6); 2006, c. 21, Sched. F, s. 136 (1).

Interim orders

(7)  The Board may make interim orders with respect to a matter that is or will be the subject of a proceeding under this Act. 1997, c. 32, s. 6 (7).

Timing of decisions, etc.

(8)  The Board shall make decisions, determinations and orders under this Act in an expeditious fashion. 1997, c. 32, s. 6 (8).

Finality

(9)  A decision, determination or order of the Board is final and binding for all purposes. 1997, c. 32, s. 6 (9).

Application of other provisions

(10)  Subsections 96 (4), (6) and (7) and sections 122 and 123 of the Labour Relations Act, 1995 apply, with necessary modifications, with respect to proceedings before the Board and decisions, determinations and orders of the Board under this Act. 1997, c. 32, s. 6 (10).

Arbitration Act, 1991

(11)  The Arbitration Act, 1991 does not apply with respect to a proceeding before the Board under this Act. 1997, c. 32, s. 6 (11).

7.-9.  Repealed: 2009, c. 33, Sched. 20, s. 5 (1).

10.  Omitted (amends or repeals other Acts). 1997, c. 32, s. 10.

11.  Omitted (provides for repeal of this Act). 1997, c. 32, s. 11.

12.  Omitted (provides for coming into force of provisions of this Act). 1997, c. 32, s. 12.

13.  Omitted (enacts short title of this Act). 1997, c. 32, s. 13.

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