Arbitrator upholds job security protections for education workers
Arbitrator finds School Board’s contracting out violated job security protections in central agreement
CUPE’s Ontario School Board Council of Unions (CUPE-OSBCU) won a significant victory in a case about job security in the province-wide central collective agreement. This decision limits the ability of boards to contract out jobs if doing so would reduce the bargaining unit below the level of the “protected complement”.
The Central Agreement contains a Letter of Understanding (LOU #3) that provides for a “protected complement” of employees, i.e. a fixed number of full-time equivalent positions in the bargaining unit that was set as of the date of central ratification on December 4, 2015. Boards can only reduce the number of employees if specific circumstances arise (such as declining enrollment), or on the basis of attrition, which is defined as “positions that become vacant and are not replaced, of bargaining unit members which occurs after the date of central ratification.”
The Halton Catholic District School Board had interpreted “attrition” to mean that they could eliminate a job every time an employee retired, quit or otherwise left the board’s employ. They would then contract out work either at the school where the departing employee worked or at another school. In just three years, they had contracted out more than 18% of the custodial jobs in the bargaining unit.
The Arbitrator’s Decision
Arbitrator Mort Mitchnick found that the Board’s practice of contracting out work each time an employee left the board violated LOU #3. He ruled that where the work of the departing employee continues to be performed, whether it is performed by a board employee or an outside contractor, the work has been “replaced”. The only time the board can reduce the protected complement is if one of the circumstances set out in LOU #3 occurs, or if there is attrition. Attrition can happen when an employee leaves their job at the board and the board decides to discontinue the work. Alternatively, attrition can occur when the work performed by the departing employee is absorbed by other bargaining unit members, without any increase to the number of hours or FTE positions performing that work.
The key takeaway is that school boards cannot contract out work if it would result in a reduction of the protected complement. Boards can still contract out work if they follow the requirements of local collective language as long as the protected complement is maintained. This case ensures that the job security protections negotiated by CUPE-OSBCU remain robust to help protect good union jobs.