Case Name:

Calgary Roman Catholic Separate SchoolDistrict No. 1 v. Alberta Teachers'Assn. (Hours of Work Grievance)

ArbitrationPursuant to the collective agreementin force from September 1, 2003 to

August 31, 2006Between

Calgary Roman Catholic Separate SchoolDistrict No. 1 (the "School District"

or the "Employer"), andAlberta Teachers' Association (the "ATA" or the "Association"

With respect to the ATA's grievance datedDecember 14, 2005 about hours ofwork for the 2005-06 school year

[2009] A.G.A.A. No. 62

AlbertaGrievance Arbitration

Calgary, Alberta

Panel: D.P. Jones, Q.C. (Chair); WilliamJ. Johnson, Q.C. (Nominee of the

ATA); David R. Laird, Q.C. (Nominee of the School District)

Heard: June 17, 18, 22, 23 and 24, 2009.Award: December 15, 2009.

(208 paras.)

Labour Arbitration -- The collective agreement -- Interpretation -- Particular words.

Labour Arbitration -- Management rights -- Assignment of work.

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The collective agreement provided that a school-based full-time equivalent teacher would not beassigned duties in excess of 30 hours per week, with not more than 23.83 hours per week for theinstruction of students. The collective agreement provided that "each teacher will have regularlyscheduled school class time free from classroom instruction or supervision for the purpose ofattending to professional responsibilities including preparation, consultation and administrativetasks". The parties agreed that there were 3 issues: Question 1: Which activities were to be includedin calculating the 30-hour maximum weekly average for assigned duties? Question 2: Whichactivities were to be included in calculating the 23.83-hour maximum weekly average forinstructional time? Question 3: How many and which days were to be included in calculating themaximum weekly limits "averaged over the school year" for (a) "instructional time" and (b)"assigned duties"?

HELD: Question 1: Held: The following were "assigned duties": the 15 minutes before and after theschool day when teachers were required to be at the school; the time between the warning bell andthe start of classes; class change time; nutrition breaks at the junior high level; and teachers'convention days. "Time free from instruction" did not constitute an "assigned duty" merely becauseit appeared on the timetable. If the teacher was free to do whatever the teacher liked during this timeand was not even required to be at the school, this time was analogous to lunch period. However, ifthe teacher was required to do a particular duty during the "time free from instruction", that dutywould be an "assigned duty". Question 2: Held: Junior High home room and high school checkoutwere not "instructional time". Question 3: Held: The 2005-06 "school year" consisted of 197.5 days,and that was the number to be used for determining the denominator for calculating both averages(or the equivalent for weeks, hours and minutes). In particular, with respect to the limit oninstructional duties, the collective agreement did not contemplate that the maximum average limitof 23.83 hours devoted to instructional duties would be "averaged over the number of instructionaldays in the school year", but rather was to be averaged over the entire "school year".

Tribunal Summary:

Appearances:

Representatives of the ATA: L. Frank Molnar (Counsel), Christin Elowny (Counsel), StephenJones (Executive Assistant, Local 55), Sharon Vogrinetz (Coordinator, Teacher Welfare), LisaEveritt (ATA).

Representatives of the School District: Damon Bailey (Counsel), Richard Shaw (GeneralCounsel), Mike Krupa (Director of Labour Relations), Gary Strother (Superintendent for SoutheastSchools and Information Technology).

SUMMARY OF AWARD

The collective agreement provided that a school-based full-time equivalent teacher will not beassigned duties in excess of 30 hours per week, with not more than 23.83 hours per week being

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devoted to the instruction of students (both averaged over the school year). The collectiveagreement also provided that "each teacher will have regularly scheduled school class time freefrom classroom instruction or supervision for the purpose of attending to professionalresponsibilities including preparation, consultation and administrative tasks". The parties agreedthat there were 3 issues:

Question 1. Which activities are to be included in calculating the 30-hour maximum weekly averagefor assigned duties?

Held: The following are "assigned duties": the 15 minutes before and after the school day whenteachers are required to be at the school; the time between the warning bell and the start of classes;class change time; nutrition breaks at the junior high level; and teachers' convention days.

"Time free from instruction" does not constitute an "assigned duty" merely because it appears onthe timetable. If the teacher is free to do whatever the teacher likes during this time and is not evenrequired to be at the school, this time is analogous to the lunch period. However, if the teacher isrequired to do a particular duty during the "time free from instruction", that duty would be an"assigned duty".

Teacher Way's involvement with the school patrol was an extra-curricular activity and not an"assigned duty".

Question 2. Which activities are to be included in calculating the 23.83-hour maximum weeklyaverage for instructional time?

Held: Junior High home room and high school checkout are not "instructional time".

Question 3. How many and which days are to be included in calculating the maximum weeklylimits "averaged over the school year" for (a) "instructional time" and (b) "assigned duties".

Held: The 2005-06 "school year" consisted of 197.5 days, and that is the number to be used fordetermining the denominator for calculating both averages (or the equivalent for weeks, hours andminutes). In particular, with respect to the limit on instructional duties, the collective agreementdoes not contemplate that the maximum average limit of 23.83 hours devoted to instructional dutieswill be "averaged over the number of instructional days in the school year", but rather is to beaveraged over the entire "school year".

The ATA's Nominee concurred with the majority's award except would have held that "time freefrom instruction" constitutes "assigned time".

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AWARD

I. BACKGROUND

1 The collective agreement contains the following provisions:1

ARTICLE XI

EMPLOYMENT CONDITIONS

11.1 Hours of Work. Effective September 1, 2005, a school-based full-timeequivalent teacher not in receipt of any salary allowance will not be assignedduties in excess of thirty (30) hours per week, averaged over the school year. Amaximum of one thousand four hundred and thirty (1,430) minutes (23.83 hours)per week, averaged over the school year, shall be devoted to the instruction ofstudents. The remainder of the assignable hours shall be devoted to professionalduties including, but not limited to, supervision of students, preparation, staffmeetings, consultation, parent-teacher conferences, and administrative tasks....

11.2Professional Staff Deployment.

11.2.1 Staff deployment within a school shall be the responsibility of thePrincipal and the Staff.

11.2.2 Teachers will be expected to assume, outside of regular school class time,professional duties including, but not limited to, supervision of students,preparation, staff meetings and parent-teacher conferences. Extra-curricularactivities will be the collective responsibilities of the staff of the school.Individual teachers choose from among these activities based upon theirknowledge, skills and interests.

11.2.3 The parties to this Collective Agreement recognize that, except whentemporarily impractical, each teacher will have regularly scheduled school classtime free from classroom instruction or supervision for the purpose of attendingto professional responsibilities including preparation, consultation andadministrative tasks.

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2 The parties disagree about three issues:

1. Which activities are to be included in calculating the 30-hour maximumweekly average for "assigned duties"?

3 The ATA says that the following activities should be included as "assigned duties" (in additionto instructional time): preparation periods, the 15 minutes before and after the school day whenteachers are expected to be at the school, the time between the warning bell and the start of classes,the class change times, nutrition breaks at the junior high level, teachers' convention, and the timespent by Greg Way on the school patrol. All of these activities require the teachers' attendance.Section 11.1 effectively means that the Employer cannot require a teacher to be at school more than6 hours per day (on average).

4 The School District says that the 30-hour limit only applies to duties which have been assignedby the School District. It does not include all of the professional work which teachers perform awayfrom school or beyond the regular school day (such as preparation in the evenings or on theweekends); and it does not include professional work which teachers undertake on their owninitiative (such as deciding to call a parent) or which is part of their general professional work (suchas preparing long-range plans) which the School District has not specifically directed the teacher toperform during a specified period of time. Accordingly, the School District excludes the itemsidentified by the ATA because it has not assigned specific duties to the teachers during those times.

2. Which activities are to be included in calculating the 23.83-hour maximumweekly average for "instructional time"?

5 The ATA says that "instructional time" includes junior high home room and high school checkout.

6 The School District says that these are administrative tasks and do not have an instructionalcomponent.

3. How many and which days are to be included in calculating the maximumweekly limits "averaged over the school year" for (a) "instructional time" and(b) "assigned duties"?

7 The ATA says that only the actual number of instructional days (188)2 should be used incalculating the instructional time average, and that the number of "teacher days" (197.5) should beused for the calculation of the assigned duties average.

8 The School District says that both averages are to be calculated by reference to the "schoolyear", which consisted of 197.5 days in the 2005-06 school year, and this figure should be used asthe denominator in calculating both averages.3

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Remedy

9 The parties ask the Board of Arbitration to answer these questions to provide direction aboutthe proper interpretation of section 11.1; declare whether the School District has complied with orviolated Article 11.1; and, if there has been a violation, retain jurisdiction with respect to remedybut give the parties an opportunity to reach a resolution themselves.

II. EVIDENCE FOR THE ATA

10 In addition to considerable documentary evidence which was admitted by agreement, the ATApresented oral evidence from the following witnesses.

11 (a) Sharon Vogrinetz obtained her Bachelor of Music degree in 1981 and her Bachelor ofEducation degree in 1982. She taught from 1982 to 1995. From 1995 to 2008, she was an executiveassistant in the Teacher Welfare section of the ATA, where her duties included negotiatingcollective agreements and advising teachers about collective agreement issues. She obtained anM.Ed. in Educational Administration and Policy Studies in 1998. Since August 2008, she has beenthe Coordinator of Teacher Welfare.

12 Ms. Vogrinetz's M.Ed. involved a study about teachers' workload in Alberta. She concludedthat for every hour of teaching, teachers spend 80 minutes on related activities such as lessonplanning, report cards, and parent/teacher interviews. Accordingly, every one hour reduction inteaching time would reduce a teacher's work load by 2 hours and 20 minutes.

13 Approximately 60% of Alberta teachers are currently covered by a work limit clause in theircollective agreements.4

14 Ms. Vogrinetz referred to Alberta Education's Guide to Education5 and noted that thedefinition there for "instructional time" for Grades 1 to 9 includes "time scheduled for purposes ofinstruction, examinations/testing and other student activities where direct student-teacher interactionand supervision are maintained" but does not include teachers convention, professionaldevelopment days, parent-teacher interview days, teacher planning days, staff meetings, statutoryand school authority-declared holidays, lunch breaks, breaks between classes, recesses, time takenfor the registration of students, and extracurricular activities.6 In her view, most of the excludeditems constitute "assigned duties".7

15 Section 97(2) of the School Act provides that a school board cannot require8 a teacher toinstruct students for more than, namely, 1100 hours9 or 200 teaching days10 in a school year.However, the School Act does not prescribe the length of the school year itself--section 56 providesthat it is the school board which determines (a) the school opening date, (b) the number and the daysthe school operates, (c) the length of the school day, (d) the number and length of recesses, and (e)the number of hours of instruction (subject to being at least the minimum total hours of instructionprescribed by the Minister).11

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16 Alberta Education requires the following minimum amount of instructional time for studentsin the school year: 475 hours for Kindergarten; 950 hours for Grades 1 to 9,12 and 1000 hours forGrades 10 to 12. However, this does not mean that a particular teacher necessarily has to instructthis amount. For example, a teacher might only be required to teach 900 hours in a school year (buta particular teacher cannot be required to teach more than 1100 hours in school year).

17 Ms. Vogrinetz explained that Alberta Education's minimum 1,000 hours of instructional timefor high school students works out to approximately 1600 minutes per week.13 If 1,430 minutes isthe maximum average number of weekly instructional minutes for a teacher under the collectiveagreement, then one teacher could not provide all of the instructional time required by thosestudents; at least 170 minutes of instruction per week would have to be provided by another teacher.Similarly for elementary school teachers--Alberta Education's 950 required hours of annualinstruction equals approximately 1500 minutes of instruction per week,14 so the 1,430 weeklyinstructional minute limit under the collective agreement means that a particular teacher could notprovide all of the instructional time; at least 70 minutes of instruction per week would have to beprovided by another teacher.

18 Because section 11.1 of the collective agreement also provides that the total assignable timefor a teacher cannot exceed 30 hours (or 1800 minutes) per week on average, a teacher with thisSchool District could have a maximum of 370 minutes per week for assigned duties other thaninstruction (1800 minus 1430).

19 Ms. Vogrinetz also explained that section 11.2.3 of the collective agreement requires teachersto have some regularly scheduled school class time free from classroom instruction or supervisionfor preparation, consultation and administrative tasks (commonly referred to as "prep time"). In herview, this scheduled prep time is "assigned", just as instructional time is assigned in the timetable.(However, this is one of the issues in this arbitration.)

20 Ms. Vogrinetz then described the District's school calendar for the 2005-06 school year.15

There were 188 instructional days that year (which she defined as days on which students were inschool). There were 197.5 teachers days, which included 2.5 organizational days, 4 professionaldevelopment days, two days for teachers' convention, and 1 faith day (in addition to the 188instructional days). The organizational days occur at the beginning or end of the school year, andinvolve getting materials ready, opening the school for the new year, team meetings about specialneeds students, and clean up at the end of the year (perhaps including preparing final report cards).Professional development days involve speakers on particular topics or group work and projects,might discuss school issues, and might involve joint meetings with other schools.

21 Ms. Vogrinetz then described her understanding about how the 1,430 maximum weeklyaverage for instruction is to be calculated under section 11.1 of the collective agreement. Saturdays,Sundays and statutory holidays are excluded; as well as any other day on which no instructionoccurs.16 As a result, the calculation should be based on the 188 instructional days, to permit a

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comparison of "apples to apples"; not the 197.5 total teaching days, which would compare "applesto oranges" because no instruction occurs on 9.5 days.

22 Ms. Vogrinetz then described her understanding of what constitutes "assigned duties" for thepurpose of section 11.1:

* In her opinion the scheduled prep time is an assigned duty. It is included inthe teacher's timetable. Teachers do a lot during these scheduled prepperiods, including working on long range plans, preparing lesson plans,preparing activities for their class (such as activity centres), establishingmarking schemes, marking, preparing report cards, consulting withspecialists and parents, doing photocopying and other administrative tasks.The fact that these prep periods are scheduled during the day is veryimportant, because that allows teachers to contact others during the dayand also reduces the amount of work teachers need to do during theevenings or on weekends.

* Similarly, she would include the teachers' convention days as assignedduties. The purpose of teachers' convention is to access professionaldevelopment on a wider-than-school basis, making available a wider rangeof speakers and workshops. Attendance at teachers' convention ismandatory and paid time. Unauthorized absence may result in losing1/200th of the teacher's annual pay and may be subject to professionaldiscipline by the ATA (which organizes the program).

* She would also include other professional duties, such as class changetime, the 15 minutes which teachers are required to be present at the schoolbefore and after the school day, and the time between the warning bell andthe start of classes. Although there may be some variation in the specificduties of teachers at different schools for these items, the teachers arerequired to be in the school and cannot leave, and they are involved insupervising and interacting with students.17

23 Ms. Vogrinetz then described her involvement with the School District about this issue. Shetook over responsibility for it in Fall 2005. The provisions in question were new, and the ATAwanted to track whether the collective agreement was being complied with the way it believedshould be done. The ATA requested information from the School District with respect to six sampleschools,18 and there was subsequently a meeting to discuss the issue. Ultimately, the matter wasreferred to arbitration.19

24 On cross-examination, Ms. Vogrinetz confirmed that she has never taught for this School

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District, and that her description about what teachers do during the various times at issue in thisarbitration is derived from her personal experience elsewhere, what she has learned during her 14years as an ATA representative, what she learned from her own research, and what she has learnedfrom teachers at this School District. She agreed that different school boards do things differentlyand may have different views from Alberta Education, but she knows that there are school boardswhich define "home room" (for example) as instructional time, although she agreed that one wouldhave to know precisely what occurred during their home room times. She agreed that "dealing witha student" is not sufficient to constitute "instructional time", which she would define as "time spentby teachers as a group as indicated on a scheduled timetable". However, there might also be some"instructional time" that falls outside that definition, such as a tutorial. An essential element of"instructional time" is student/teacher interaction, and she ultimately agreed that it would need acurriculum of some sort, thereby not including mere taking of attendance (which she distinguishedfrom "registration" as a student in a school).

25 With respect to why teachers get deducted 1/200th of their salary for an unauthorized absencefrom a teachers' convention day, Ms. Vogrinetz explained that the quantification of the deductionwas actually a bit more complicated under section 111 of the School Act. She agreed that thededuction is not necessarily directly related to the actual number of days in a particular school year.

26 Ms. Vogrinetz explained that she wanted to be present at the meeting with the School Districtbecause she worked with three collective agreements that had hours of work clauses which werebeing differently applied. For example, the Calgary Board of Education has a letter ofunderstanding with the ATA that uses 190 days for the purpose of calculating the limit oninstructional time in the school year and 200 days for the purpose of calculating the limit onassigned duties, which she believe is correct under that contractual language.

27 With respect to her understanding that the collective agreement requires the School District toschedule prep time, Ms. Vogrinetz confirmed that the School District has not been identifyingspecific prep times on the timetable since the beginning of the 2005-06 school year (as opposed todescribing it as "time free from instruction"), and confirmed that the ATA had filed grievancesabout this. She also agreed that section 11.2.3 refers to more than just "preparation"; it refers to"professional duties including preparation, consultation and administrative tasks"; in her view,"preparation" is a broad term that would include all of those activities.

28 Ms. Vogrinetz agreed that it was the School District which determined the opening, closingand operational days for its schools.20 She agreed that the 2005-06 school year went from August29th to June 30th inclusive. She agreed that section 11.1 refers to the "school year" for thecalculation of the maximum averages for both "instructional time" and "assigned duties", but saidthat the context differed for these two concepts and therefore one needs to use different numbers inthe denominators for these calculations (188 days for instructional time, and 197.5 days for assignedduties).

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29 She confirmed that her position is that "assigned duties" includes all of the time that a teacheris required to be present in the school. Even if the teacher were given permission to be away fromthe school for personal reasons during the scheduled prep time, "permission comes with strings".The reason the prep time is scheduled is to recognize that teachers are required to do other workbesides instruction, which therefore needs to be scheduled at least in part.

30 With respect to teachers' convention, Ms. Vogrinetz confirmed that the ATA does not controlwhether teachers attend, but noted that teachers need permission from the School District to beabsent (such as using a sick day or compassionate leave or a personal leave day). The program is setby teachers from the district who are on an ATA committee; the School District has no input intothe program. She understood that the School District included the teachers' convention days in thedenominator for the calculation of the maximum average assigned duties, but not in the numeratorbecause the School District did not assign those duties.

31 On redirect examination, Ms. Vogrinetz confirmed that the ATA can permit a teacher toattend an alternative activity instead of the teachers' convention. If a teacher is ill and cannot attendthe convention, then they need to access sick leave with the School District in the normal way. Ateacher failing to attend teachers' convention without accessing some form of leave could bedisciplined by the ATA (exercising its professional regulatory jurisdiction).

32 (b) Carol Morrison started teaching in 1986 and is now a teacher at St. Jean Brebeuf School.During the 2005-06 school year, she taught at St. Helena Junior High School, where she had beensince 1996.

33 Ms. Morrison referred to her timetable for the 2005-06 school year.21 The school used a 6-dayrotation. That year she taught Grade 7, 8 and 9 French; Grade 7 Social Studies; Grade 8 Religion;and Grade 8 Reading. She had prep periods on Day 1 from 08:58 to 09:47 and on Days 1, 3 and 4from 11:33 to 12:21 (which are shown as blanks on the timetable).

34 She testified that she was expected to be at school 15 minutes before the warning bell rang,and to stay 30 minutes after the end of the last class; and she identified the School Handbook whichcontains this expectation22 as well as the School District's policy on the Supervision of Students.23

She usually got to the school by 8:10 to 8:15 a.m., and would do photocopying, work on reportcards or filing, make phone calls to parents, and sometimes had meetings.

35 The morning warning bell sounded at 8:50 a.m. (8 minutes prior to the start of the first class inthe morning). From 8:50 to 8:55, students were at their lockers, and she would be outside her dooror by their lockers or in the classroom, depending on where the students were. At 8:55, all of thestudents were expected to be in the classroom by then for prayers, O Canada, attendance,announcements, hand-outs and hand-ins. These tasks were part of her job as a home room teacher.As home room teacher, she was responsible for being the main point of contact for her students,organizing report cards with marks from their various teachers, preparing IPPs for coded students,and being an advocate for and doing all of the administrative stuff for the students in her home

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room.

36 Although specific teachers were assigned hallway supervision during class changes, andduring the 7-minute midmorning nutrition break, every teacher was expected to participate inmaintaining order. If there was time during these breaks, she could get a coffee or go to thewashroom or do some in-school errand.

37 Ms. Morrison was free during the 33-minute lunch break, unless she was assigned tosupervision (or if there was a meeting). The students were free to leave the school during the lunchbreak, but were supposed to stay on the school grounds. The afternoon warning bell sounded at12:54, three minutes before the commencement of the first afternoon class, and students wereexpected to check in at their home rooms for attendance and dealing with any issues.

38 The last class ended at 3:15 p.m. She was required to stay at the school for 30 minutes, duringwhich she was by the lockers seeing students packing up and leaving (even if she was notspecifically assigned to supervision), dealt with students on detention, or was involved with clubs orcoaching. She usually went home around 4:30 or 5:00 p.m.

39 Ms. Morrison said that the purpose of her prep periods was to "get work done". Days whenshe did not have prep periods were "very hard". Among other things, she used the prep periods towork on IPPs for her four coded students, which were due by the end of October and needed to beupdated thereafter, which were the responsibility of the home room teacher, but needed input fromall affected teachers, specialists, administrators, parents. This work needs to be done at the schoolbecause she needs access to the student's file. Prep periods were not like lunch breaks when shecould do what she liked. She also used prep periods to work on her course outlines, which needed tobe done by the end of September, before the first oral interviews with parents. Long-range plans hadto be submitted to the Principal, and unit plans had to be made and be available for inspection;marking schemes and progressive discipline procedures had to be prepared. Not all of this could bedone during the prep periods; some had to be done before or after school, or at lunch, or on theweekends. She used to have six prep periods, then five, now four. It wasn't her practice to leave theschool during her prep periods--if she did, it would be to get something for the school, such ascroissants for her French classes.

40 Ms. Morrison said that the timetable was prepared by the vice-principal. The administrationdidn't tell the teachers specifically what to teach in any specific class, nor what specific duties toperform during the prep periods. Everybody is expected to attend teachers' convention, and shewould have had to phone in if she couldn't attend, just like on any other day.

41 According to the calculations done by the ATA,24 her total instructional time for the 2005-06school year was 915.9 hours,25 compared to the maximum allowable of 891.2 hours.26 The ATAcalculated that her total assigned time for the year came to 1332.8 hours, or an average of 33.74hours per week,27 instead of the permitted maximum average of 30 hours per week.

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42 On cross-examination, Ms. Morrison confirmed that the principal in 2005-06 was DonSummersgill. He would have prepared the school handbook for that year, and it might have differedsomewhat from the one we have in evidence from 2007-08.28 She agreed that she could choose whatshe did when she arrived at the school before the first bell, unless she had been assigned tosupervision (there is a supervision schedule)--including marking, last-minute preparation, having acup of coffee or making a personal phone call.

43 Ms. Morrison confirmed that the School District stopped calling prep time by that name in2005-06. She had never heard it referred to as "time free from instruction"; most people just called it"unassigned time". She agreed that she was free to decide what to do during thoseperiods--including some preparation for classes, working on IPPs, marking, consulting withcolleagues, taking a coffee break. She said she could leave the building during prep periods, so longas she let the office know, but only for school reasons--they were told this by the Superintendentduring her first year of teaching (1986). She says she had no idea that other teachers were leavingthe school for personal reasons during their prep periods.

44 Ms. Morrison agreed that she could go to the washroom during class change times, butprobably wouldn't have had enough time to make a personal phone call. She said there was anexpectation that all teachers would keep an eye on the students during class change times. Sheagreed there was a distinction between keeping an eye out (for example, to intercede if there was afight among students), which was a professional expectation of every teacher, and being assignedspecific supervision duties.

45 With respect to the 7-minute midmorning nutrition break, she agreed that she had discretionabout what to do with this time (if she wasn't specifically assigned to supervision, which someteachers are for nutrition breaks), but it really wasn't enough for a phone call, although it was longenough to go to the washroom.

46 Detentions were assigned by teachers; they would generally last for 20 minutes.

47 On reflection, she thought the time teachers were required to stay at the school after the lastclass ended was 15 minutes, not 30, although she generally stayed longer. She could do what shewanted during this time (unless she was assigned supervision, or there was a staff meeting, or shewas involved in an extracurricular activity), though it usually took students 10 to 15 minutes to allget out the door. She didn't know whether the pre- and post-school times were enforced or not; shewas always earlier and later.

48 (c) Bonnie McIntyre has taught for 28 years with the School District, the last 26 at St. FrancisHigh School. She has been on the ATA local's Economic Policy Committee as well as its Council ofSchool Representatives.

49 Ms. McIntyre identified her timetable for the 2005-06 school year.29 The school operated on asemester system with a two-day schedule of four periods a day, and early dismissals on Fridays. She

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had Block 4 as a prep period throughout the year.

50 The School District required teachers to be at the school 15 minutes prior to the start ofclasses, and to stay 15 minutes after the last class. She usually arrived between 7:00 and 7:30 a.m.,and would check her email and phone messages, organize instructional materials that would be usedthat day, might mark papers or work on an IPP, some students might come in for help, particularlyif they had been absent. She gave Instructional Seminars or tutorials from 8:15 a.m. to 8:45 a.m. onMondays, Tuesdays and Wednesdays.

51 The bell rang at 8:45, followed by 10 minutes for students to get organized at their lockers andto receive their picture ID lanyards. From 8:55 to 9:55, there was the Teacher Advisory when therewere announcements, attendance was taken, and any issues dealt with. She had 23 to 25 students inher home room, from all three grades who stayed with her throughout their high school career; shewas the one adult who was their constant point of contact. From 9:05 to 9:08, students went to theirclasses, and she was in the hallway moving them along. She identified a handout about this from thevice-principal, as well as extracts from the Handbook for the school.30

52 Lunch was from 12:01 to 12:31 p.m. This was "her time" if she did not have scheduledsupervision (which occurred during three or four weeks per year), and sometimes students cameover the lunch hour for tutoring. She was allowed to leave the school during lunch break withoutnotifying the administration.

53 The afternoon classes started at 12:31 p.m. At the end of Period 4, students returned to herroom between 3:29 and 3:34 p.m. to hand in their ID lanyards, talk, and to get handouts. She was inher room or by the lockers during that time. She generally left the school between 4:00 and 4:30p.m.

54 During her prep periods, she tried to get in contact with all the people she needed to speak to,whether by email, phone or in person. She might also do marking and inputting data into thecomputerized student record system, including checking whether students had the requirements tograduate. She also worked on IPPs during this time or before or after school, because that oftenrequired looking at the students' cumulative file. She generally prepared her long-range and dailylesson plans at home.

55 On September 9, 2005, she received a memorandum in her mailbox from John McFarland, thePrincipal, which stated as follows:

To: All TeachersFrom: John McFarlandDate: September 9th, 2005

Subject: Unassigned Time

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Teachers:

Each day you have an 85 minute or a 70 minute block of unassigned time.

This unassigned time is your time and may be used for run time to do an errandor any activity that you choose. The only stipulation is that if you leave theschool you must sign out at the office in the case that we have an emergency.

If you have any questions, please see your Coordinating Teacher or any memberof your Administrative Team.

56 This surprised Ms. McIntyre because for 20 years they had been told that prep time was nottheir "own time" and that they couldn't leave the building. She had never received a memo like thisbefore, or after. She does not regard prep time as "free time" or like her lunch period. Afterreceiving this memo, she did leave the school from time to time during her prep periods. The SchoolDistrict encouraged teachers to make medical or dental appointments during prep periods, becausethat would avoid the need to get a substitute, which costs money. She did understand that theadministration could direct her not to leave the building during any particular prep time.

57 Ms. McIntyre referred to the minutes of a staff meeting from April 200531 which contemplatedthat the 23.83 hours per week of instructional time would be met by having some teachers teaching6.5 and others offering 3 tutorials weekly plus CALM, as well as reducing the lunch break from 42to 30 minutes. That resulted in the Instructional Seminars being added in the early mornings threedays a week.

58 The ATA calculated Ms. McIntyre's total instructional time to be 889.0 hours compared to theallowable 896 hours, and her average total assigned time to be 35.28 hours per week compared tothe allowable 30 hours.32

59 On cross-examination, Ms. McIntyre confirmed that the prep periods were not called that inthe 2005-06 school year, but rather "time not used for instruction". She agreed that these periods areused for other things in addition to what might strictly be called "preparation", such as consultationand administration. She gets to choose what specific things she does during these periods. Sheagreed that sometimes other events took precedence over prep periods, such as being Rallysupervisor or involved in the enhanced hallway supervision program just before Christmas or theend of the school year.

60 With respect to Principal McFarlane' s memo from September 2005, she reiterated that it wascontrary to the message they had been given over the previous 25 years, and she thought itconflicted with District policy. She does not know if teachers did leave the school building duringtheir prep periods, for example to go for a run.

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61 She stated that she was required to be in her classroom for student checkout after the last classof the day, and for the following 15 minutes. Although she was always at school earlier and laterthan required, she understood from a colleague that an administrator sometimes went through theschool checking to see that teachers were there the required 15 minutes before and after the schoolday.

62 (d) Greg Way is in his 19th year of teaching and currently teaches Grade 6 at St. BonifaceSchool. In 2005-06, he taught Grade 6 at St. Joseph School, which has Kindergarten to Grade 9.There was another Grade 6 class at the school that year.

63 Mr. Way identified the timetable which he prepared for 2005-06.33 The Phys. Ed and Musicclasses were the first ones scheduled because there were limited facilities for these subjects. Thenhe filled in the other classes with the appropriate number of minutes, and submitted it to thePrincipal for approval. He had three 40-minute prep periods that year (while the students weretaking Music, which he did not teach).

64 Teachers were required to be at the school 15 minutes prior to the morning bell, and stay 15minutes after the last class. He says that has always been the expectation, and has frequently beenarticulated by the Principal at staff meetings.

65 Mr. Way generally arrived at the school about 7:40 a.m., got things ready for his class, didlast-minute photocopying. At 8:10 a.m. the students for the school patrol arrived at his class, and hewent with them to the street at 8:15 a.m. The first bell rang at 8:30 a.m.,34 when the students linedup at the door outside and he went to bring them in to the school and supervise while they put awaytheir boots, coats and backpacks, and then did the opening exercises with them prior to the secondbell at 8:38 a.m. when instruction began. The students went out for recess between 10:15 and 10:30a.m., which was more or less free time for him. The students came back for more classes from10:30 a.m. till 12:05 p.m. when lunch started and he went back out with the school patrol. While hegenerally did one of the two school patrols over the lunch hour, he did not always go out the secondtime (usually the one at the end of lunch). The rest of the lunch period was free time to eat and visitwith colleagues. School reconvened at 1:03 p.m. and ended at 3:00 p.m., when he again went outwith the school patrol for about 20 minutes.

66 Teachers were always expected to be visible and proactive between the bells.

67 During his prep periods, he took care of a wide variety of duties, including makingarrangements for field trips, contacting parents, working on IPPs, photocopying. He generallyworked on his long-range and unit plans at home. At the beginning of his prep periods, he wouldwalk his class to the music room. He generally spent his prep periods in his room, the library or theoffice. His prep periods were "really valuable time to take care of administrative things", and werenot like his lunch period. He never left the school during prep periods for personal matters, and itwas never communicated to him that he could do so. He also did a lot of preparation on his owntime during evenings and weekends.

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68 Mr. Way says that he was never given any direction by the Principal or anyone else aboutwhat specifically he was to instruct on any given day, nor on what he was specifically to do duringhis prep periods.

69 He attended teachers' convention that year, and the Principal had communicated theexpectation that all teachers would do so.

70 The ATA calculated his total instructional time to be 894.0 hours compared to the allowable891.2 hours, and his average total assigned time to be 32.14 hours per week compared to theallowable 30 hours.35

71 On cross-examination, Mr. Way confirmed that he did not have responsibility for anyextracurricular activities that year, and that the school patrol counted as his supervision. He wasunaware that a teachers' committee had determined that the teachers who were doing band and theschool patrol would be expected to do fewer extracurricular activities. He did coach the juniorvolley ball team that year.

72 He was not aware of whether other teachers used their prep time for personal errands.

73 (e) Stephen Jones has been the Executive Assistant for Calgary Local 55 of the ATA since2003. He started teaching with the School District in 1974 and spent 15 years as an administrator inelementary and junior high schools. At the beginning of the 2001-02 school year, he was elected toa two-year term on the ATA's Provincial Executive Council as the representative for the teachersfrom the School District and the Calgary Board of Education, and reduced his teaching to half-time(while keeping his designation as a vice-principal). In 2003, he was acclaimed for a second term.When an opening came up for the Executive Assistant's position with the Local in 2003, he was thesuccessful applicant, at which point he then resigned as a teacher with the School District. Apartfrom these positions, Mr. Jones has had a wide range of other involvement with the ATA at thelocal level as a school representative, a member of the Local's executive, a member of the EconomicPolicy Committee and its Negotiating Sub-Committee, filling in as Vice-President ofCommunications, and serving as Secretary-Treasurer. In his current position, his primaryresponsibility is to work with the School District in resolving problems, filing grievances ifnecessary, and acting as advisor to the members of the local's executives. The School District hasabout 104 schools and employs about 2,700 teachers.

74 Mr. Jones explained that section 11.1 came into effect on September 1, 2005. The Localviewed this as ground-breaking because they had tried many times to get such a provision into thecollective agreement.

75 Mr. Jones referred to the School District's calendar for the 2005-06 school year.36 Heexplained that there were 9.5 non-instructional days that year. There were two organizational daysat the end of August. On the first one, teachers went to their schools to meet colleagues, go to staffmeetings, go through the school handbook, and prepare the classroom. On the second organizational

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day, there was a District Mass at the Jubilee Auditorium. Similarly, on June 30th there was anorganizational half-day to close up the school. On October 31st, there was a Faith Day when allemployees gathered together at the Telus Round-Up Centre. There were four professionaldevelopment days during the year. Teachers' convention took place on February 16th and 17th.

76 Mr. Jones then referred to the disagreement between the ATA and the School District aboutthe number of days to be used for calculating the average instructional time.37 The ATA says thatthe actual number of instructional days should be used, which has varied from year to year and fordifferent grades from 186 to 189. By contrast, the School District says that the denominator shouldbe the total number of teacher days in the school year, which as far as he can remember had neverbeen more than 197.5.38

77 Mr. Jones explained that the reference in Article 11.1 of the collective agreement to teachers"not in receipt of any salary allowance" is meant to exclude principals, vice-principals, assistantprincipals, supervisors, consultants, coordinating teachers.39

78 With respect to the reference to "supervision of students" at the end of Article 11.1, Mr. Jonesconsidered that to include the 15 minutes before and after classes which the School Districtsrequires teachers to be at their schools, time between the warning bell and the beginning of class,class change and nutrition break times, and assigned supervision at recess and at lunch.

79 With respect to the reference to "preparation" in that provision, Mr. Jones says that wouldinclude the specifically assigned prep time on teachers' schedules, where they are expected to bedoing a whole assortment of duties from working on long-range and unit plans to marking orworking on IPPs for coded students. There is no need for principals to specifically tell teachers todo preparation, just as they do not specifically tell teachers what they are to instruct. Prep time isessential to teachers, and Mr. Jones says that it should be included in the 30-hour maximum averagefor assignable duties.

80 With respect to the reference to "consultation" in that provision, Mr. Jones says that wouldinclude contacting and meeting with parents, fellow teachers, administrators and districtconsultants. These activities can occur during the prep periods or before or after school, as canadministrative work such as preparing report cards, updating students' cumulative records,collecting and recording funds and the like. Other activities included in Article 11.1 would be staffmeetings, teachers' conventions, special evening events like awards nights, school patrol,professional development and organizational days. Mr. Jones says that this time should be includedin the 30-hour maximum average for assignable duties.

81 Mr. Jones viewed Article 11.2.2 as dealing with the professional duties outside of class timewhich can be assigned beyond the 23.83-hour maximum instructional time but within the maximum30-hour maximum for all assignable duties. In his view, all of the professional duties referred to inArticle 11.2.2 must fall within the 30-hour maximum limit.

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82 Mr. Jones described Article 11.2.3 as enshrining prep time into teachers' regularly scheduledtimetables.

83 The ATA and the School District had discussions when Article 11.1 came into the collectiveagreement about how it was to be administered.40 For example, it was discussed at a joint AdvisoryMeeting in April 2005,41 which was attended by the Chief Superintendent (Dr. Sims), theSuperintendent of Labour Relations (Mike Krupa), the Superintendent of Human Resources (Mr.Foley) and the Superintendent of Finance as well as the President of the ATA Local, the Chair of itsEconomic Policy Committee, and Mr. Jones. The School District presented a document whichindicated that the maximum instructional time for teachers would be based on 190 instructionaldays (905 hours), and was not linked to the minimum instructional hours for students as prescribedunder the School Act. The document indicated that "total assignable time" would be based on 200teacher days (1200 hours). The document also described "other assignable time" as being "anythingoutside of instructional time", and referred to a list of duties which could be assigned by theprincipal including supervision, parent-teacher conferences, preparation, staff meetings,consultation and administrative tasks. This was the first time the ATA came across the concept of"unassigned time" on a teacher's timetable, rather than "prep time" (as had been its longstandingpractice); the ATA was concerned that this might be contrary to Article 11.2. Mr. Jones says that heasked whether this meant that a teacher could leave the school building, and the Superintendent ofHuman Resources (Mr. Foley) said no, that teachers needed to stay in the building in case theprincipal decided to assign specific duties to them. The parties agreed that this needed furtherdiscussion.

84 They met again on April 26, 2005, when the School District presented a hypothetical exampleof the calculation of instructional time.42 The calculation used 183.5 instructional days as thedenominator. They also looked at the actual timetable for a particular teacher for the 2004-05 schoolyear.43

85 After the April 26th meeting, Mr. Jones started to receive calls from teachers who weregetting their draft timetables for the following year, which contained blank periods where they hadpreviously had prep periods. Their principals told them that these were "unassigned time". Mr.Jones told them that they were the previous "prep periods".

86 On June 27, 2005, the President of the ATA Local received a letter44 from the District'sDirector of Labour Relations (Mr. Krupa) enclosing a document explaining the District'sinterpretation of Article 11.1, which was being sent to all of the principals. This document used 190days (or 905.67 hours) for the denominator for calculating the maximum weekly average forinstructional time, and 200 teaching days (or 1,200 hours) for the denominator for calculating themaximum weekly average for assignable duties. Mr. Jones testified that he has never seen a schoolyear with either 190 instructional days or 200 teaching days. In its discussion of Article 11.2.2, thedocument also stated that the professional duties "outside of regular school class time" was "deemedto mean the time between 1,200 hours of assignment per year and the 905.67 hours of instruction

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per year"--which Mr. Jones says the Local understood to mean all of the teachers' professionalduties were to be included in the 30-hour limit.

87 In September 2005, teachers contacted Mr. Jones after they received their timetables withblank spaces for "unassigned time". Many of these teachers came from St. Francis High School, soMr. Jones called the Principal, Mr. McFarlane, who sent him a copy of his memo to teachersindicating that they could leave the school building during their unassigned time.45 This surprisedMr. Jones, because at the April 8th meeting Mr. Foley had indicated that teachers could not do so.Mr. Jones wrote to Mr. Krupa on September 12th indicating that "unassigned time" was not a phrasecontained in the collective agreement and was counter to the requirements of Article 11.2.3,46 andasking that principals be directed not to use it. Mr. Jones also asked for a working copy of theprogram used by principals to determine total instructional minutes per year for their teachers, aswell as various other information about teachers' timetables.47 The parties met on November 30th todiscuss data from six schools as well as the concepts involved. Mr. Jones says that, at that meeting,Mr. Foley repeated that teachers were not free to leave the schools during the "unassigned time" incase the principal needed to assign something to them (which is not consistent with PrincipalMcFarlane's memo from September).

88 Mr. Jones then referred to the calculations which he had made for the three teachers who hadtestified earlier at the hearing,48 as well as three other teachers at three other schools.49

89 On cross-examination, Mr. Jones confirmed that he had included the time between classes inhis calculation of assigned duties, and had done so because it was an expectation and referred to inthe various school handbooks. When asked if he would exclude that time if that expectation wereremoved and only one teacher was specifically assigned to supervision between classes, Mr. Jonesreplied that the District would never do that for liability reasons, and teachers have a professionalresponsibility to intervene if they see something inappropriate going on. When pressed with theanalogy with the lunch break (which he excluded from the calculation because he agreed thatteachers were "on their own time" unless specifically assigned to supervision), Mr. Jones stated thatif that happened, then he would not count the class change time as assigned time. He agreed that itwas the direction to be in the hallways which made the time "assigned".

90 When asked whether "time free from instruction" meant that there was no direction to ateacher to do anything in particular, Mr. Jones disagreed and said that was time to do other thingsbesides instruction. He agreed that the teachers could do anything they felt was necessary duringthat time, but said that was just like their ability to do anything they felt was necessary during theirinstructional time because no one tells them specifically what to do then either. He agreed that whatArticle 11.2.3 requires is for the District to include "time free from classroom instruction orsupervision" on each teacher's timetable, but said that is nevertheless "assigned duty time" just likeinstructional time is. As soon as it was on the timetable, it was assigned duty time. He also agreedthat there are times when a teacher does not have the freedom to decide what they will do duringthose periods, for example if the principal directs or assigns the teacher to do something specific

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like attending a pep rally, a meeting with a speaker, or a meeting of the Special Education teachers,or a meeting for the "Teachers At Risk" program, or to develop a specific lesson plan (if the teacheris struggling, for example). He agreed that all of these are examples where the teacher losesflexibility to use the "time free from instruction" as the teacher wishes, but did not agree that theseconstitute a conversion of "assignable-free-from-instruction time" to "assigned time", because it wasalready "assigned time" by virtue of being on the timetable.

91 Mr. Jones agreed that the number of instructional days differs from school board to schoolboard, but was not aware that some rural schools have fewer but longer instructional days due tobussing constraints or that there are variations for some programs of study (such as those dealingwith learning disabled students). He agreed that Article 11.1 does not apply to part-time teachers,but said that they were always paid half of what a full-time teacher was paid, and the limits on theirinstructional and assignable time should be prorated, too.50

92 With respect to whether teachers were able to leave the school building during the "time freefrom instruction", Mr. Jones reiterated that he understood Mr. Foley to categorically state thatteachers could not do this in case the principal wanted to assign any specific duties to them; itwasn't just a case of touching base to let the principal know that the teacher was going to be off-site.Mr. Jones said that it was the idea of needing permission which was key, which made this situationdifferent from lunch when the teacher could leave the premises without letting anyone know orhaving anyone's permission.

93 With respect to whether home room for junior high teachers is instructional time, Mr. Jonesconfirmed that he reached this conclusion from Alberta Education's Guide to Education51 whichrefers to instruction as involving "direct student/teacher interaction". He did not know that theGovernment did not allow the School District to count this as part of the minimum requiredinstructional time for students (although Teacher Advisory in high schools was counted). Using thedefinition of "direct student/teacher interaction" as the test for instructional time, he would includetaking attendance, check out when high school students return their lanyards at the end of the day.

III. EVIDENCE FOR THE SCHOOL DISTRICT

94 (f) Gary Strother is the Area Superintendent for the South East and Information Technology.He has worked for the School District for 26 years, first as a teacher, then for five years in schooladministration, and for the last eight years as a superintendent. He is part of the senior leadershipteam for the District, which consists of the Chief Superintendent (Dr. Lucie Miller), four AreaSuperintendents, the Superintendent for Instructional Services and the Superintendent for SupportServices. His Area has 24 schools, and he is in those schools and works with their principals on adaily basis. As head of the fifteen staff in the Information Technology group, he is also responsiblefor all of the computers in the School District.

95 Mr. Strother was a member (and later chair) of the Instructional Minutes Committee for theDistrict, which involved principals from all of the divisions as well as people from the IT

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department. This Committee was created around 2002 after an issue arose when Alberta Educationthought that the District's teachers were not teaching enough. One of the functions of the Committeewas to create tools to be able to gather accurate information in order to address the Department'sconcerns.52 This revealed that the District's high school teachers did not have enough instructionalhours per week; after consultation with the ATA,53 their weekly instructional load was increased to23 hours in 2003. The Committee was later involved in considering how to meet Article 11.1 beforeit came into effect at the beginning of the 2005-06 school year. Among other things, it developed adiagram that showed how the District understood the relationship among instructional time,assignable time, and the totality of a teacher's professional responsibilities.54 He explained that"assignable teacher time" in the diagram referred to everything that a teacher could be assigned todo, whether or not such an assignment was made.

96 Mr. Strother stated that the District does not consider "time free from instruction" to beassigned time (unless some duty was specifically assigned to be done during that time)--the teachersare not assigned any specific duties to be done during that time; the teacher is not assessed orevaluated or directed about what to do during that time; they are free to do whatever they choose todo. From Mr. Strother's observation, teachers use this time to correct tests, prepare classes,photocopy, call parents, run errands for supplies for class, have coffee in the staff room, read thepaper or professional journals, or do whatever they choose to do during this time whetherwork-related or not. He stated that there was an expectation that teachers would let the office knowif they were leaving the building, in case there was an emergency; protocols differ somewhat fromschool to school. In addition, a principal might assign a specific duty to a teacher which wouldprevent the teacher from leaving the building (but which would have the effect of converting thetime from "unassigned" to "assigned").55

97 With respect to the District's expectation that teachers be present 15 minutes before and afterthe school day, Mr. Strother said that teachers were not assigned any particular duties for thesetimes, but just required them to be present at the school. In his experience, teachers vary about howthey use this time--getting ready for classes, going to the staff room, getting coffee, checking in atthe office, chatting with students. The District does not count this time as "assigned duty time".

98 Similarly, the District does not count the time between classes in the junior and senior highs asbeing "assigned duty time" because while there is an expectation that teachers will be around andvisible, they do not have any specific assigned duties and can use that time to go to the washroom orthe office, or use the phone or make photocopies. The same is true for most teachers for the7-minute midmorning nutrition break in junior highs, except for those who are specifically assignedto be on supervision for this break.

99 Mr. Strother stated that there is always a warning bell at all schools, although there is variationin the time it rings and the length of time between it and the commencement of the first class. Whilethe teachers are in the hallways and classrooms during this period, they are not assigned anyparticular duties, and the District does not count this as assigned time.

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100 The School District does not count teachers' convention as assigned time because the SchoolDistrict is not involved in that activity--the ATA does everything (although the teachers are paid bythe District for these days, and would need to follow the usual formalities under the collectiveagreement if they needed to be absent).

101 Mr. Strother stated that the District does not count school patrol as assigned time because itis an extracurricular activity. Extracurricular activities are distributed more or less equitably amongthe staff, and are usually agreed to in the previous May or June. He described the wide range ofextracurricular activities which occur at the schools, and referred to documentation about theseactivities from a number of different schools.56 At all of these, school patrol is treated as anextracurricular activity and not supervision.57

102 With respect to instructional time, Mr. Strother explained that Alberta Education hasminimum requirements for the amount of instruction to be given to students each year: 475 hoursfor kindergarten, 950 hours for Grades 1 to 9, and 1000 hours for Grades 10 to 12. If the SchoolDistrict failed to provide at least these amounts, Alberta Education would withhold funding for thestudents in question. For high school students, the calculation is done by "credit enrolment units"which is calculated down to the minute. There are four required elements for time to count as"instruction" for this purpose: there has to be a teacher in charge of the course; attendance must betaken; there must be a set curriculum; and there must be an evaluation or an assessment.

103 The School District does recognize two types of instructional time which Alberta Educationdoes not count: (1) the Teacher Advisory at the senior high level (which involves a cross-gradegroup of students who stay with a particular teacher for their entire three years in high school, andinvolves taking attendance, prayers, O Canada, and various announcements, and lasts for 10 to 12minutes, which the District believes is an important relationship for its students); and (2) theTutorial or Instructional Seminar at the high school level (which do not meet Alberta Education'scriteria because there is no set curriculum and no evaluation or assessment, but the District thinks isimportant because the students involved need extra help). About seven years ago, the District foundout the hard way that Alberta Education does not consider these to be "instruction" when it did anaudit after Bishop O'Byrne School was opened and used quite a number of tutorials during the day.Nevertheless, because of their value to students, the District made the decision to continue these twonon-funded types of instructional time, and it includes this time in the calculation of teachers'instructional time for the purposes of Article 11.1.

104 With respect to the junior high home room time, the District counts it as assigned time, butnot as instructional time. It is quite short (often 3 minutes, perhaps 5) and only involves takingattendance, O Canada and prayers. Unlike the Teacher Advisory at the high school level, thestudents do not stay in the same group for all three years. Alberta Education has made it very clearthat it does not consider this time to be instructional within its definition or for funding purposes.

105 With respect to senior high checkout at the end of the day, the District again counts this as

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assigned time, but not as instructional time. It is not common throughout the system, and even at St.Francis lasts perhaps 5 minutes, where the teacher is often just waiting for students to hand in theirlanyards. No instruction is going on; and it does not meet Alberta Education's definition or funding.

106 Mr. Strother then described what the School District considers to be the "school year" for thepurposes of Article 11.1. Prior to the provision coming into effect, they talked with other schoolboards which had experience with similar provisions. In particular, they talked with the CalgaryBoard of Education, which had a similar provision from 1971 until 2001 when it was deleted fromtheir collective agreement by the Education Services Settlement Act. CBE had used 190 days forcalculating the instructional average, and 200 days for calculating the assigned time average. So theSchool District reviewed its own statistics from the previous years,58 and discovered that there wassome variation from school to school, division to division (with high schools typically having morebecause of diploma exams), rural compared to urban, and depending on the length of the school dayat a particular school.

107 Mr. Strother then identified the calculations which have been made by the School Districtwith respect to the instructional time and assigned time for each of the six sample teachers involvedin this arbitration.59 As an example, he went through the calculations for Kevin Bedier. Includingthe items which Mr. Strother had identified in his testimony as instruction, and using 190instructional days as the denominator, the School District calculated that Mr. Bedier's averageweekly instructional time was 23.63 hours.60 Using the items Mr. Strother had identified in histestimony as assigned, and using 200 days as the denominator, the School District calculated Mr.Bedier's average weekly additional assigned time to be 2.72 hours,61 and the total average assignedtime (instructional time plus additional assigned time) to be 26.35 hours.62 All of these numbers arewithin the requirements of Article 11.1.

108 On cross-examination, Mr. Strother clarified how the School District had done itscalculations for Mr. Bedier during the examination period in January 2006. Mr. Bedier taught highschool students in the mornings and junior high school students in the afternoon. The Districtincluded the morning periods as part of his instructional time (which is recognized by AlbertaEducation). However, the junior high students were not required to be at school when the seniorhigh students were writing examinations, so Mr. Bedier did not do any teaching during theseafternoons. The District treated these afternoons as unassigned time.

109 Mr. Strother stated that Mr. Bedier would have needed permission to leave the school duringthese afternoons, as is the case during the scheduled prep periods. If he directed not to leave andassigned something specific to do, then that time would have been treated as assigned time. Mr.Strother confirmed that discipline could be imposed if a teacher left notwithstanding such adirection.

110 Mr. Strother confirmed that it is the principals or vice-principals who make up the timetablesfor their teachers, whereas elementary teachers make up their own timetables (subject to approval

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by their principals). He also confirmed that principals do not direct teachers what specific thingsthey are to instruct on any given day. And he agreed that every increase in instructional time alsoentails an increase in related preparation and administration, although he did not know that therewas an exact correlation.

111 Mr. Strother also confirmed that there is nothing in the School Act which prescribes aminimum amount of instruction which a teacher is required to do in a school year (as opposed tothe minimum amount of instruction which is to be provided to students). Nevertheless, in 2002 and2003 Alberta Education was polling school boards across the province to determine how muchinstruction teachers were actually doing, in order to determine whether there was a need for more orfewer teachers (which affects costs). As a result of its inquiries, Alberta Education concluded thatthe District's high school teachers were not spending enough time on instruction, so the Districtincreased the amount of their instructional time in the next school year (2003-04)--which is whatMs. McIntyre was speaking about from her experience at St. Francis High School.63

112 Mr. Strother confirmed that the use of the designation of "prep periods" was dropped in2005-06, with these periods instead being shown on the teachers' timetables either as "time freefrom instruction" or simply a blank. Unless the teacher is specifically assigned to do some particularduty during these times, the District does not count these periods as "assigned time" for thepurposes of Article 11.1. Each school was asked to track any "time free from instruction" which wasconverted to "assigned time", and if possible pay it back by freeing up an equivalent amount oftime; but Mr. Strother did not know if that happened in every case, and the District does not trackthis.

113 He also agreed that if one adds a teacher's instructional time, their specifically assigned time,and their "time free from instruction", it would equal the instructional time which the District wasrequired to provide to students.

114 Mr. Strother acknowledged that a teacher could ultimately be disciplined if the teacher failedto plan for a course, do IPPs, prepare marks, or be present 15 minutes before or after the school day,or be present in the hallways during class changes and the junior high nutrition break, or be presentin their classrooms between the warning bell and the start of classes (although formal disciplinewould not be the first step).

115 With respect to teachers' convention, Mr. Strother confirmed that both the District and theATA have an expectation that teachers will attend, and that school boards have the right to deductpay for unauthorized non-attendance.

116 With respect to the check out at the end of the high school day, Mr. Strother agreed that therewas an expectation that there would be an opportunity for discussion between the teacher and thestudents, as a continuation of the relationship created by the morning Teacher Advisory, but saidthat the principal purpose of the checkout was for the students to drop off their ID lanyards. Heagreed that not all high schools collect the lanyards at the end of the day; for example, St. Mary's

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students can take them home. He noted that the District has included TA in its calculation ofinstructional time, even though Alberta Education does not recognize or fund it as instructionaltime.

117 He confirmed that parent-teacher meetings and staff meetings are counted as assigned time,but said that characterization was not just because those items appeared in the school calendar.

118 On redirect examination, Mr. Strother noted that there would be no increase in preparationor administration if one were to treat high school check out, tutorials or the Teacher Advisory as"instructional" rather than "assigned"--the general correlation that increases in instructional timeresult in greater preparation or administration would not apply with respect to these items. He alsonoted that teachers are not required to do all of their preparation or administrative work during thescheduled "time free from instruction"--they generally do at least some of this work during eveningsand weekends. And he confirmed that there is a general constantly-speaking professional obligationon teachers to intervene if they see a problem, regardless of whether that happens duringinstructional time, or "time free from instruction" or any other time.

IV. SUBMISSIONS FOR THE ATA

119 After identifying where the parties disagreed at the end of the hearing, Mr. Molnar made thefollowing submissions on behalf of the ATA.

1. Which activities are to be included in calculating the 30-hour maximumweekly average for "assigned duties"?

120 Mr. Molnar submitted that the following activities should be included as "assigned duties"(in addition to instructional time): preparation periods, the 15 minutes before and after the schoolday when teachers are expected to be at the school, the time between the warning bell and the startof classes, the class change times, nutrition breaks at the junior high level, teachers' convention, andthe time spent by Greg Way on the school patrol. All of these activities require the teachers'attendance.

121 With respect to the "prep periods" or the "time free from instruction", Mr. Molnar referred tothe following authorities:

* Calgary Board of Education and ATA ("Central Memorial #2"), 20 April1978 (Mason) dealing with a similar clause in another bargaining unit,which treated preparation time as part of the 30-hour-per-week limit onassigned duties.

* Wilkinson Steel and Metals, A Division of Premetalco Inc. v. DamonD'Arcy Hebert, 4 October 2007, AB Prov Ct File No. 54341/13 (Judge

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M.M. Donnelly) as an analogy with "voluntary overtime".

* Ottawa Civic Hospital and Retail Wholesale Canada, Local 414, (1996) 61L.A.C. (4th) 101 (Brown) as an analogy with being required to remain onthe premises during "paid breaks".

* Skeena Sawmills and International Woodworkers, Local I-71, (1988) 5L.A.C. (4th) 214 (Bird) as an analogy with being on standby duringunscheduled lunch breaks.

* Town of Midland and OPSEU, Local 328, (1987) 31 L.A.C. (3d) 251(Saltman) as an analogy with restrictions on the use of lunch breakswithout paying employees overtime.

122 With respect to the other categories (class change times, the junior high nutrition breaks, timeafter the warning bell, teachers' convention), Mr. Molnar emphasized that failure to do any of thesecould ultimately result in discipline. Accordingly, these items clearly had to be characterized asassigned duties.

123 With respect to teachers' convention, Mr. Molner noted that section 97(3) of the School Actsets out the required components for a teacher's contract with a school board. Section 97 includesteachers' convention as a "teaching day", part of the 197.5 teaching days in the 2005-06 school year.A school board has the right to make a deduction from the salary of a teacher who does not attendteachers' convention. Accordingly, the teachers' convention days should be included in both thenumerator and the denominator for calculating the weekly average for assigned duties (not just inthe denominator as the School District has done).

124 With respect to Mr. Way's involvement with the school patrol, Mr. Molnar submitted thatthis was a form of assigned supervision, and that there was no direct evidence (as opposed tohearsay from Mr. Strother) that it was only a voluntary extracurricular activity. Mr. Way testifiedthat his extracurricular activity was coaching volleyball.

125 Accordingly, Mr. Molnar submitted that the calculation of the weekly average of assignedduties must include all of these items.

2. Which activities are to be included in calculating the 23.83-hour maximumweekly average for "instructional time"?

126 The ATA says that "instructional time" includes junior high home room and high schoolcheck out.

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127 Mr. Molnar submitted that the junior high home room has the same sort of teacher/studentinteraction that goes on during the Teacher Advisory at the high school, which the School Districttreats as instruction. The fact that the junior high version is shorter than the senior high is irrelevant;length of time is not the determining factor.

128 Similarly, the senior high checkout is a continuation at the end of the day of theteacher/student interaction that takes place during the Teacher Advisory at the beginning of the day.

129 Mr. Molnar submitted that it is irrelevant that Alberta Education does not count these asinstructional time for students--the question is whether they should count as instruction for teachers.

130 Mr. Molnar referred to the following authority about what constitutes "instruction":

* Conseil Scolaire de District Catholique du Centre-Est de l'Ontario andA.E.F.O., (1998) 83 L.A.C. (4th) 238 (Lavery) at pp. 2, 7, 10, 11, 14 and17 [p. 262 in LAC].

3. How many and which days are to be included in calculating the maximumweekly limits "averaged over the school year" for (a) "instructional time" and(b) "assigned duties"?

131 The ATA says that only the actual number of instructional days (which varies somewhatfrom division to division) should be used in calculating the instructional time average, and that thenumber of "teacher days" (197.5) should be used for the calculation of the assigned duties average.

132 With respect to the number of days to be used in calculating the average weekly instructionaltime, Mr. Molner noted that Article 11.1 refers to the "school year", which must necessarily excludeSaturdays, Sundays, statutory holidays and other days the schools are not operating. Article 11.1does not refer to "teacher days". He submitted that it is necessary to "compare apples to apples",which means that the only days which should be used in this calculation are days on whichinstruction actually occurs. That is the only purposive interpretation.

133 Mr. Molnar drew the attention of the Board of Arbitration to the following case:

* The Alberta Teachers' Association and The Board of Trustees of theCalgary Board of Education (Joyce Brayton Grievance), 19 April 1996(Moreau) which (at p. 59) interpreted "school year" to be the "... periodselected at the instance of the school board beginning on a selected dayduring the calendar year and ending (unless the teacher agrees otherwise)after not more than 200 teaching days have been completed". It wasnecessary for the arbitration board to give a meaning to "school year"because the term was not defined in the collective agreement, and the

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ascribed meaning had to make sense wherever the term was used. Both theCourt of Queen's Bench and the Court of Appeal dismissed the ATA'sapplication for judicial review. Mr. Molnar submits that this decision isdistinguishable because it was based on wording (viz., Article 9.9) which isnot present in the Calgary Catholic's collective agreement. Accordingly,this decision is not of much assistance in the present case.

134 Mr. Molnar agreed that Article 11.1 could have been drafted better to make it clear that theinstructional average was to be determined by reference only to the days on which instruction isgiven. He submitted that nevertheless this is correct purposive, reasonable and contextualinterpretation. He submitted that it would be absurd to average instructional time over days when noinstruction was scheduled. He referred to the following authorities on interpretation:

* Calgary Health Region (Rockyview Hospital) v. United Nurses of Alberta,Local 121R, (2007) 167 L.A.C. (4th) 2 (ABCA) which held that thedecision of an arbitration board was unreasonable because it adopted aninterpretation of the collective agreement which defeated the purpose ofprovision thereby depriving employees of a bargained benefit.

* West Fraser Mills Ltd. (Hinton Wood Products) and United Steelworkers,Local 1-207, 6 December 2007 (D.P. Jones, Q.C.), confirmed by the Courtof Queen's Bench at (2008) 172 L.A.C. (4th) 206 (Hillier J.), dealing withpurposive interpretations.

* Employment Standards Regulations, A.R. 14/ 1997, which does notexempt teachers, who therefore could start counting all of the time spent onall of their duties.

Remedy

135 With respect to remedy, Mr. Molnar asked the Board of Arbitration to interpret Article 11.1as the ATA submits; to grant a declaration that the School District has violated Article 11.1; and toretain jurisdiction with respect to remedy but give the parties an opportunity to reach a resolutionthemselves.

V. SUBMISSIONS FOR THE SCHOOL DISTRICT

136 Mr. Bailey submitted that the School District has fully complied with Article 11.1.

137 He noted that Article 11.1 contains two separate restrictions, one limiting the amount of totalduties which can be assigned to a teacher; the second limiting the amount of instruction which can

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be assigned to a teacher.

1. Which activities are to be included in calculating the 30-hour maximumweekly average for "assigned duties"?

138 The first sentence of Article 11.1 provides that teachers "... will not be assigned duties inexcess of thirty (30) hours per week...". This raises the question about when and under whatcircumstances a teacher's duties can be characterized as having been "assigned".

139 Not all of the work that a teacher performs during a school year constitutes "assigned duties".Teachers do a lot of work in the evenings or on weekends; these are professional duties, but not"assigned duties". Article 11.1 contemplates that "assigned duties" are something that the SchoolDistrict can control.

140 Secondly, not all of the work expressly required by the School District is an "assigned duty".Some of the work is decided by the teacher, such as deciding to call a parent (when not specificallydirected to do so); and some of the work is required (such as preparing long-range plans).

141 Mr. Bailey submitted that the test for whether something is an "assigned duty" is not whetherit must be done by the teacher, because everyone recognizes that teachers do much of their requiredwork in the evenings and on weekends. Nor is the test whether the work is done during the "regularschool day", because duties can be assigned outside the regular school day (such as parent/teacherinterviews in the evening, or staff meetings after school). Mr. Bailey submitted that the test forwhether any particular work is an "assigned duty" is whether the teacher has been directed by theDistrict to perform specified work during a specified period of time. Such a direction can comefrom various sources, including the principal, the timetable, a communiqué from the District'soffice.

142 Mr. Bailey submitted that this test is supported by the principles of interpretation. Provisionsin a collective agreement should be interpreted in accordance with the ordinary meaning of thelanguage used. Some meaning has to be given to "assigned" in the phrase "assigned duties". TheATA's interpretation does not do this, but rather places a restriction on what time the teacher can beat school--essentially a restriction on the length of the school day. That is not what the clausepurports to do; and it would have been very easy to do this, if that is what the parties had intended.

* Westfair Foods Ltd. and UFCW, Local 401, (2001) 99 L.A.C. (4th )117(Hornung), especially at p. 126.

* Durham District School Board v. Elementary Teachers' Federation ofOntario (Instructional Time Grievance), [2002] O.L.A.A. No. 812 (27November 2002; Beck).

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* Winnipeg School Division v. Winnipeg Teachers' Assn of the ManitobaTeachers' Society, [2005] M.G.A.D. No. 24 (31 August 2005; Hamilton).

143 In addition, this test is consistent with a purposive interpretation of Article 11.1. The purposeof Article 11.1 may not be readily apparent on its face, but Ms. Vogrinetz described the purpose asbeing to reduce a teacher's overall work load to minimize work required to be done at home. This isconsistent with the District's interpretation, which limits the ability of the District to specify dutiesand tasks to be done by teachers. It is not consistent with the ATA's interpretation, which wouldonly shorten the teacher's school day and shift work to outside the school day.

* WestFraser (above).

* Calgary Health Region (Rockyview Hospital) v. UNA, Local 121 (above),especially at paragraphs 29 and 30.

144 Applying this test to the items in dispute, the largest item is the "prep period". It followsfrom the test that "time free from instruction" should not be included in "assigned duties". Theobligation in Article 11.2.3 to schedule some time free from classroom duties and supervision is topermit teachers during the regular school day to do preparation, consultation and administration. Inthe vast majority of cases, teachers are free to decide what to do with this time (even leaving thebuilding with permission). This freedom is the antithesis to an "assigned duty". This situation is notanalogous to being directed to instruct a particular subject without being specifically directed whatto teach in any particular period. There is no dispute that there will be situations where "time freefrom instruction" will be converted into an assigned duty as the result of a specific direction to do aspecific task at that time. But it does not follow that all "time free from instruction" automaticallyconstitutes an "assigned duty".

145 Further, this test is not inconsistent with the third sentence in Article 11.1: "The remainder ofassignable hours [beyond the instruction of students] shall be devoted to professional dutiesincluding, but not limited to, supervision of students, preparation, staff meetings, consultation,parent-teacher conferences, and administrative tasks." The key is the word "assignable". Most of theitems in the list could be assigned, but there is no requirement that any be assigned. It is odd that itis the employer who is advancing an interpretation that allows "time free from instruction" toflourish; the effect of the ATA's interpretation might well be in large part to eliminate "time freefrom instruction". The ATA's interpretation provides an incentive for the District to reduce "timefree from instruction" by shortening the school day; or by substituting other assigned duties for"time free from instruction" (which the ATA assumes is an assigned duty).

146 Mr. Bailey submitted that the test also applies to determine whether the various other itemsare "assigned duties":

* The times before and after class are not assigned duties because the teacher

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is not required to do any specific tasks; they are free to use this time asthey wish.

* The time between classes in junior and senior high is not an assigned duty,because the evidence indicates that teachers can do whatever they deemappropriate (for example, Ms. McIntyre's evidence that she can make theprofessional decision whether to help a student in her classroom rather thanbe visible in the hallways).

* The same is true for the midmorning nutrition breaks in junior highs: theteachers can use their professional judgment to do a wide variety of tasks.

147 The whole "supervisory expectation" is not sufficient to make mere presence an assignedduty. The supervisory expectation is a professional expectation, but it is a free-standing professionalresponsibility that applies whenever a teacher is at the school; it is not a specifically-assigned duty.

* With respect to the time after the warning bell, in general it does not meetthe test. (However, if there is a specific direction that the elementaryteacher is to meet the students at the door and escort them in to thebuilding and supervise them while they remove boots and coats, as Mr.Way described, those facts might make it an assigned activity. One wouldhave to determine the directions given at each elementary school.)

* Teachers' convention is not assigned by the District; it does not assign anyduties for teachers to perform at teachers' convention. It is the ATA whichdetermines the schedule, program and speakers. Article 11.1 does notcover assignments made by someone other than the District.

* As shown by Mr. Strother's testimony and the documents he referred to,school patrol is not an assigned duty but an extracurricular activity. Mr.Way said that he "volunteered" for the school patrol, not that he wasassigned to do it. He acknowledged that school patrol was one of hisextracurricular activities--coaching the volleyball team was the other one.

2. Which activities are to be included in calculating the 23.83-hour maximumweekly average for "instructional time"?

148 The School District says that the junior high home room and the high school check out are

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not "instructional". There is no factual dispute that they are both short in duration. Both of these areessentially administrative, unlike the Teacher Advisory which is longer and designed to build arelationship between the teacher and a student throughout the latter's three years in high school.Check out is like a "reverse attendance", whose main purpose is to get the lanyards back. Theseactivities do not fall within the plain and usual meaning of "instruction". Nor do they meet AlbertaEducation's four criteria for "instruction".

149 These two activities are, however, "assigned time" even though they are not "instructionaltime".

3. How many and which days are to be included in calculating the maximumweekly limits "averaged over the school year" for (a) "instructional time" and(b) "assigned duties"?

150 Mr. Bailey noted that "school year" is the term used with respect to both averages; it musthave the same meaning for both calculations. The term is not defined in the collective agreement.

151 As a matter of explanation for what the School District did, in 2005 it asked its sister schoolboard (the CBE) about its experience in applying similar limitations which it had had since 1971under its collective agreement. The CBE used 200 days for calculating the weekly average forassigned duties, and 190 days for the weekly instructional average. The School District decided todo the same thing, and that is what it did in the blue calculations in Exhibit 2.

152 However, this matter is in arbitration, and the question is what is the correct way for makingthese calculations. Because 2005-06 was the first school year Article 11.1 came into the collectiveagreement, and the ATA grieved the amount of work assigned by the School District, there is noissue of estoppel or past practice.

153 While the 200 days is drawn from section 97(2)(b) of the School Act, that is the maximumnumber of teaching days a teacher can be required to instruct; it says nothing about the length of theschool day. On the one hand, a school year could be longer than the maximum number of teachingdays which a teacher can be required to instruct. On the other hand, "teaching days" clearly includesome days on which instruction is not provided.

* The Board of Trustees of the Chinook's Edge School Division No. 73 andThe Alberta Teachers' Association, 16 May 2007 (D.P. Jones, Q.C.).

154 Section 56 of the School Act permits each school board to determine the length of its ownschool year. This School District did that--and the 2005-06 school year was 197.5 days long. That isthe figure which should be used in the denominator for calculating both averages under Article 11.1.

155 Mr. Bailey submitted that it would make no sense to use different numbers for differentaverages. First, that would ignore the fact that the parties used the same term ("school year"), in the

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very same clause, when describing the two averages. Secondly, there is nothing in the structure ofArticle 11.1 to indicate that different meanings were intended or needed. Thirdly, there is no logicalor equitable basis for suggesting that the average for instructional time has to be calculated usingonly the days on which instruction was given, rather than the whole school year. If that is what theparties had intended, it would have been very easy to say so. Fourthly, changing the number of dayswill change the calculation of the average--but there is no obvious tie-in between the 23.84-hourinstructional time average and any particular number of days in the school year (180, 190, 200,197.5)--it was simply a matter of negotiation about what that number would be.

Conclusion

156 Mr. Bailey submitted that the School District had no wish to nickel and dime the ATA or itsteachers about their work day, but rather is seeking a sound and sensible interpretation of Article11.1 and guidance about how it should be applied.

VI. REPLY BY THE ATA

157 In reply, Mr. Molnar asked the Board of Arbitration to review Mr. Way's evidence withrespect to his involvement in the school patrol, as well as about being required to collect hisstudents at the front door when the warning bell rang.

158 With respect to the School District's proposed test for what constitutes "assigned duties", Mr.Molnar submitted that the issue isn't whether the content is specified, but rather whether the personis required to do it. For example, the policy requirement for teachers to be at the school 15 minutesbefore and after the school day is a requirement regardless of the fact that the actual content of whatthey are to do has not been specified. The fact is that a teacher can be disciplined for not meetingthis requirement. Further, instructional time would not meet the District's proposed test becauseteachers are not directed about what specific things they are to teach (though they are required toteach).

159 Mr. Molnar speculated about whether work done at home could constitute "assigned duties",particularly given modern technology which allows work to be done remotely. If a duty is assigned,does it matter where or when it is done?

160 With respect to the School District's interpretation of the decision in Chinook's Edge, Mr.Molnar disagreed that professional development days and organizational days are excluded from"teaching days": see section 97(f) of the School Act. Paragraphs 65 and 66 of the decision inChinook's Edge support using only instructional days in calculating the average weeklyinstructional time.

VII. SUBSEQUENT WRITTEN SUBMISSIONS BY THE PARTIES

161 Subsequent to the hearing, the parties provided some further written submissions to the

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Board of Arbitration.

CBE (Educational Assistants Grievance)

162 Mr. Molnar wrote to the Board of Arbitration on 30 June 2009 to draw attention to thedecision by Arbitrator Tettensor in Calgary Board of Education and Calgary Board of EducationStaff Association (1 December 2004) which had been tangentially referred to at our hearing. Thatcase involved the removal of 3.5 hours from the work week for Educational Interpreters workingwith deaf and hard-of-hearing students so as to align their work day with the school day, eliminating30 minutes of scheduled time for preparation and related duties before classes started and 20minutes after classes ended. Arbitrator Tettensor found that the position description for theEducational Instructors included preparing for their interpreting duties and interpreting regularlywith teachers, so that preparation was not just a professional responsibility but also a requirement ofthe school board. Prior to the reduction, they were paid for direct classroom time and somepreparation work. However, because the reduced time also related to some other activities besidespreparation (such as guidance appointments and extracurricular activities) for which they weresubsequently paid overtime, he could not quantify how much of the reduction related to previouslyassigned and required preparation.

163 Mr. Molnar submitted that the CBE Educational Instructors decision establishes the principlethat preparation time was an assigned duty, and therefore the case is relevant to our case. Hereferred to the Handbook from St. Helena's School64 to illustrate the expectation that teachers willdo their preparation, including preparing long-range plans and unit plans, and that time must bemade beyond day-to-day classroom instruction for this type of work. Preparation is not just aprofessional responsibility, but is a requirement of the School District.

164 Mr. Molnar also referred to the recent decision by the Ontario Superior Court in Fresco v.Canadian Imperial Bank of Commerce (18 June 2009; Ontario Superior Court File No.07-CV-334223CP) which referred to the decision in Wilkinson Steel and Metals, although the courtdeclined to certify a class action.

165 In reply, Mr. Bailey submitted that the CBE decision did not provide support for the ATA'scontention that preparation periods (that is, "time free from instruction") qualify as assigned dutytime under Article 11.1 of the collective agreement. First, the CBE case did not involve theinterpretation of an hours-of-work clause such as Article 11.1, but rather addressed whether areduction of an employee's hours of work can legitimately be characterized as a reduction in theirFTE in circumstances where their actual workload remained unchanged. Secondly, the CBEdecision did not consider the status of preparation periods, and only stands for the proposition thatpreparation formed part of those employees' workloads. The School District in our caseacknowledges that preparation work forms part of a teacher's workload, but that does not mean thatall preparation work automatically qualifies as assigned duty time within the meaning of Article11.1. As noted at the arbitration hearing, much of a teacher's preparation work is performed during

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evenings and weekends, and there is no suggestion by either party that this work qualifies asassigned duty time. Thirdly, the CBE decision aptly illustrates one of the risks associated with theATA's interpretation of Article 11.1--namely, if all time spent at school qualifies as assigned dutytime, the inevitable result will be the shortening of the school day and a corresponding reduction ineach teacher's time free from instruction. However (as noted in CBE), shortening the school day willnot result in a corresponding reduction in teachers' workloads; it will simply cause teachers toperform more of their work outside regular school class time--which is not the type of outcome inkeeping with the purpose of Article 11.1.

The Bruse Decision

166 On 14 September 2009, Mr. Molnar drew our attention to the recent decision by ArbitratorElliott with respect to the Calgary Board of Education and Clara Bruse (27 August 2009).

167 Ms. Bruse was employed by the CBE on a 0.4 FTE probationary contract as a musicspecialist. Her assigned days were Tuesdays and Thursdays, but she was required to attend aprofessional development day and parent-teacher conferences on other days. She did not do so, andwas disciplined and not issued a continuing contract. She appealed under the School Act and filed agrievance under the collective agreement. Among other things, the ATA argued that these assignedduties meant that Ms. Bruse exceeded the 30-hour weekly average maximum contained in thecollective agreement for assigned duties (prorated by her 0.4 FTE).65

168 Mr. Molnar submitted that the parties made similar submissions to Mr. Elliott to those whichhave been made in the present case, although the CBE collective agreement specifically refers to"related professional duties as the principal may deem necessary", which is missing from Article11.1 in our case. Mr. Elliott indicated that teachers' convention days, gaps in the timetable andpreparation time (among others) were assigned duties (as opposed to extracurricular activities) inthe particular context of that case. Accordingly, Mr. Molnar submitted that the samecharacterization should apply in the case before us.

169 In reply, Mr. Bailey noted that Arbitrator Elliott's decision does not provide any meaningfulassistance in the present matter for the following reasons. First, Mr. Elliott expressly declined torecount in detail or make binding decisions about many of the issues raised by that particularhours-of-work clause or its application, so his decision provides no specific guidance about how"assigned duties" are to be identified. Secondly, Mr. Elliott's observations (at pp. 69 and 70) aboutthe various activities relates to whether they should be characterized as an "assigned duty" or an"extra-curricular activity", not whether they should be characterized as "assigned" or "unassigned"duties. The School District in our case is not arguing that teachers' convention days, preparationtime or gaps in the timetable are extracurricular activities, but rather that these activities have notbeen assigned--which is not the issue addressed by Arbitrator Elliott. Thirdly, Arbitrator Elliottmade it very clear (at page 69) that his observations about Ms. Bruse's activities were "... entirelycontext specific--that is, specific to Ms. Bruse, Ms. Weber, and Penbrooke Meadow, and cannot be

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generalized". It is wrong, therefore, for the ATA to try to generalize Arbitrator Elliott's observationsto bolster its argument in the present case, which concerns a different issue, arising betweendifferent parties, who are governed by a different collective agreement.

VIII. DECISION BY THE CHAIR

170 After carefully considering the evidence, submissions and authorities which the Parties havereferred to during the hearing, I have come to the following conclusions for the following reasons.

171 With respect to the evidence, while the Parties have provided evidence with respect to sixparticular teachers at six different schools, these are representative samples; it is clear that theremay be different arrangements at different schools with respect to at least some of the items indispute, which might affect the characterization of some of those items. The Parties recognize thisfactual variance, and are asking guidance from our Board of Reference about the concepts andprinciples involved so that they can apply them to the particularities of each case.

172 With respect to the authorities referred to, it is important to recognize that they involvedifferent issues, different parties, and different collective agreements. None of them squarelyaddresses the issues in this arbitration. For example, the decision in Chinook's Edge did not involvea provision limiting the average daily or weekly amount of time for either instruction or totalassigned duties. Rather, it involved a question about whether a compressed school week had theeffect of making teachers work more than the equivalent of 200 days in the school year, given thatthey were not required to be present on alternate Fridays. The fundamental issue was whether 180actual instructional days was equivalent of 190 instructional days.. There was no issue about whatconstituted "instruction"; and no need to average instructional time over the school year. Similarly,while the decision in Calgary Board of Education and ATA ("Central Memorial #2"), (20 April1978; Mason) assumes that preparation time is included in "assigned duties" within the meaning ofthat collective agreement, that was not the issue in that case. Rather, it dealt with whether the CBEcould change its existing policies and practices to increase a teacher's instructional time beyond1400 minutes per week (on average) and thereby reduce a teacher's preparation time below one40-minute period per day (on average) in a non-semestered course. In Bruse, Arbitrator Elliottcontemplated that preparation time was an assigned duty as opposed to an extracurricular activitybut made it clear that his decision was based on the evidence he heard and was entirelycontext-specific and could not be generalized. Apart from dealing with non-teachers under adifferent collective agreement, the CBE case dealing with the Educational Assistants involvedposition descriptions which specified preparation as part of their duties. As a result of theseimportant differences, the authorities referred to are useful as possible analogies, but are notdeterminative of the issues presented in the case before us.

173 Our task is to reach a purposive interpretation of the provisions in question in the context ofthe whole of this collective agreement, and apply that interpretation to the issues in dispute in thisarbitration. We are grateful to the very able submissions of counsel in helping us perform this task.

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The context and history of Article 11.1

174 I then turn to consider Article 11.1 in its entire context, which includes both the School Actand the collective agreement.

175 The School Act contains a number of constraints respecting the school year:

* Pursuant to section 39(1)(c), the Minister has prescribed the minimum totalhours of instruction to be 475 for students in Kindergarten, 950 forstudents in grades 1 through 9, and 1,000 for students in grades 10 through12.

* Section 56(1) requires the school district to specify

(a) the school opening date;

(b) the number and days of school operation;

(c) the length of the school day;

(d) the number and length of recesses; and

(e) the number of hours of instruction (subject to the minimumsprescribed by the Minister).

* Section 97(1) provides that (unless a teacher agrees) the school districtmay not require a teacher to instruct students

(a) for more than 1,100 hours in a school year, or

(b) for more than 200 teaching days in a school year.

* Section 97(1) defines "teaching day" to mean

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(a) a day on which instruction is given by a teacher,

(b) a day on which a school is closed due to an emergency,

(c) a day on which a school is closed by order of the Minister,

(d) two days on which a teachers' convention authorized by the AlbertaTeachers' Association is held,

(e) holidays declared by a Board, and

(f) any other days that are approved by the Minister.

176 The relevant provisions of this collective agreement provide as follows:

ARTICLE XI

EMPLOYMENT CONDITIONS

11.1 Hours of Work. Effective September 1, 2005, a school-based full-timeequivalent teacher not in receipt of any salary allowance will not be assignedduties in excess of thirty (30) hours per week, averaged over the school year. Amaximum of one thousand four hundred and thirty (1,430) minutes (23.83 hours)per week, averaged over the school year, shall be devoted to the instruction ofstudents. The remainder of the assignable hours shall be devoted to professionalduties including, but not limited to, supervision of students, preparation, staffmeetings, consultation, parent-teacher conferences, and administrative tasks... .

11.2Professional Staff Deployment.

11.2.1 Staff deployment within a school shall be the responsibility of thePrincipal and the Staff.

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11.2.2 Teachers will be expected to assume, outside of regular school class time,professional duties including, but not limited to, supervision of students,preparation, staff meetings and parent-teacher conferences. Extra-curricularactivities will be the collective responsibilities of the staff of the school.Individual teachers choose from among these activities based upon theirknowledge, skills and interests.

11.2.3 The parties to this Collective Agreement recognize that, except whentemporarily impractical, each teacher will have regularly scheduled school classtime free from classroom instruction or supervision for the purpose of attendingto professional responsibilities including preparation, consultation andadministrative tasks.

[Emphasis added.]

Discussion of the collective agreement

177 Before embarking on a response to the three questions which we must resolve, it is helpful toconsider what was required by Article XI prior to the introduction of Article 11.1 in the 2005-06school year.

178 Article 11.2 was in the collective agreement prior to the addition of Article 11.1 in the2005-06 school year, and provided as follows.

11.2.2 Teachers will be expected to assume, outside of regular school class time,professional duties including, but not limited to, supervision of students,preparation, staff meetings and parent-teacher conferences. Extra-curricularactivities will be the collective responsibilities of the staff of the school.Individual teachers choose from among these activities based upon theirknowledge, skills and interests.

[Emphasis added.]

179 Accordingly, before the introduction of any limits to average weekly instructional time ortotal assigned duty time, Article 11.2.2 recognized that teachers are expected to perform a numberof professional duties outside of "regular school class time". On the one hand, I note that this phraseis not the same as the time devoted by a teacher "to the instruction of students" (which is whatArticle 11.1 subsequently limited). On the other hand, I also note that Article 11.2.3 referred to"regularly scheduled school class time free from classroom instruction...", which implies that thereference to the "regular school class time" in Article 11.2.2 must be to the times during whichstudents are normally in classes at the school, or the school class timetable) and not just to theparticular teacher's "instructional time". The professional duties referred to in Article 11.2.2 include

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(but are not limited to) "supervision of students, preparation, staff meetings and parent-teacherconferences", which would take place outside of "regular school class time" This conclusion isfortified by the subsequent reference in Article 11.2.2 to extra-curricular activities, which take placeoutside of "regular school class time". There is no dispute that teachers generally do a considerablepart of their work outside of the regular school day, in the evenings and on weekends.

180 Prior to 2005-06, Article 11.2.3 required the School District to ensure that a teacher has"regularly scheduled class time free from classroom instruction or supervision" for the purpose ofattending to "professional responsibilities including preparation, consultation and administrativetasks":

11.2.3 The parties to this Collective Agreement recognize that, except whentemporarily impractical, each teacher will have regularly scheduled school classtime free from classroom instruction or supervision for the purpose of attendingto professional responsibilities including preparation, consultation andadministrative tasks.

[Emphasis added.]

181 This provision did not specify how much time is to be made for these purposes, nor did itimpose any limitation on how much time a teacher might be required to spend on classroominstruction or supervision. However, this provision did mean that at least some of the "regularlyscheduled school class time" must be available to a teacher to attend to things other than classroominstruction or supervision--things like preparation, consultation and administrative tasks. There is nosuggestion, however, that all of the teacher's preparation, consultation and administrative tasks hadto be accomplished in the regularly scheduled class time which was free from classroom instructionor supervision. As indicated above, teachers generally do a considerable part of their work(including preparation, consultation and administrative tasks) outside of the regular school day, inthe evenings and on weekends.

182 This is how things stood prior to the implementation of Article 11.1 in the 2005-06 schoolyear.

183 When Article 11.1 was incorporated into the collective agreement in 2005-06, it created twolimitations. First, it provides that the School District will not require a teacher to instruct studentsfor more than 23.83 hours per week, averaged over the school year. Secondly, it provides that ateacher's assigned duties will not exceed 30 hours per week, averaged over the school year. Itprovided that the remaining 6.17 of assignable hours (in excess of the 23.84 instructional hours)shall be devoted to "professional duties including, but not limited to, supervision of students,preparation, staff meetings, consultation, parent-teacher conferences, and administrativetasks..."--thereby picking up all of the duties specified in Articles 11.2.2 and 11.2.3.

184 While Article 11.1 was added to the collective agreement, Article 11.2.2 and 11.2.3 were not

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deleted. Accordingly, all three of these provisions must be interpreted together in a purposivemanner.

185 This is the context in which we must answer the three questions posed by the parties in thisarbitration.

1. Which activities are to be included in calculating the 30-hour maximumweekly average for "assigned duties"?

186 The items in dispute are: the preparation periods (that is, the "periods free from instruction"),the 15 minutes before and after the school day when teachers are expected to be at the school, thetime between the warning bell and the start of classes, the class change times, nutrition breaks at thejunior high level, teachers' convention, and the time spent by Greg Way on the school patrol.

187 In my opinion, the test for whether a duty is "assigned" is whether the teacher is required todo it at a particular time and place. It is not sufficient that the teacher would usually be at the schoolduring that time--for example, the lunch break is not an "assigned duty" because the teacher is freeto do as the teacher wishes, and indeed is free to leave the school. (If the teacher is required to be onsupervision during the lunch break, then that time is "assigned".)

188 On the other hand, I do not think that the concept of an "assigned duty" requires detailedspecification of the particular things which are to be done during that time. For example, there is nodispute that instructional time is an "assigned duty", even though the teacher is not usually directedabout the specific content of any particular period.

189 In my opinion, the following are "assigned duties": the 15 minutes before and after theschool day when teachers are required to be at the school, the time between the warning bell and thestart of classes, the class change times, and nutrition breaks at the junior high level.

190 I also think that attendance at teachers' convention is an "assigned duty". Section 97(1)recognizes that these days are "teaching days". Teachers are clearly required to attend, and can losea portion of their salary and be disciplined both by the School District and the ATA forunauthorized absence. Further, Article 11.1 does not required that duties be assigned only by theSchool Board. Nor in my view is it relevant that it is the ATA and not the School District whichdetermines the actual program at the teachers' convention. The relevant question is whether theteacher is required to attend as part of her duties as a teacher pursuant to her teaching contractwhich incorporates the relevant provisions of the School Act. In my view, this question must beanswered affirmatively.

191 On the other hand, I do not think that the time free from instruction (the "prep periods" asthey were called prior to the 2005-06 school year) constitutes "assigned duties". Although Article11.2.3 requires the School District to provide some time free from classroom instruction orsupervision, the mere fact that that time appears on the timetable is not sufficient to constitute it to

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be "assigned duties". If the teacher is free to do whatever the teacher likes during this time and isnot even required to be at the school, the better analogy is to the lunch period (which also appearson the timetable). In my view, the requirement that the teacher notify the office that the teacher isleaving the premises is not sufficient to make this period an "assigned duty"--rather, it is simplygood manners and good operating procedure for the teacher to let the administration know wherethe teacher will be. However, if the administration requires the teacher to stay at the school, or to doa particular task, then the time would be properly characterized as "assigned". Similarly, if theteacher is required to do a particular duty during the "time free from instruction", that duty would bean "assigned duty".

192 With respect to Mr. Way's involvement with the School Patrol, in my opinion this as anextracurricular activity and not an "assigned duty". It might have been otherwise if the evidence hadindicated that he was directed to do this, or if there were clear evidence that the school patrol waspart of school's supervision schedule and was assigned to him. Accordingly, different facts mightresult in a different characterization; and it is not possible to articulate a general rule about whetherresponsibility for school patrol always is or always is not an assigned duty.

193 Similarly, I recognize that different arrangements might be made at different junior highschools for supervision during the seven-minute midmorning nutrition breaks, so that particularteachers would not be expected to be in the halls, visible, and on-duty during this time, which wouldmake it more akin to the lunch break than assigned supervision.

2. Which activities are to be included in calculating the 23.83-hour maximumweekly average for "instructional time"?

194 The items in dispute are the junior high home room and the high school check out.

195 In my opinion, these are administrative tasks and are not properly characterized as"instruction". Although the collective agreement does not contain a definition of "instruction",Alberta Education does have a definition that it uses for the different (but related) purpose ofdetermining which minutes to count as part of the minimum instructional time which it requiresschool boards to deliver to students. The departmental definition requires not only direct interactionwith students, but also the need for there to be a set curriculum and a method of appraisal orevaluation. Neither the junior high home room nor the senior high checkout meets this definition;and the evidence is clear that Alberta Education does not permit the School District to count eitherof these times as instructional time.

196 In reaching the conclusion that these two items are not "instruction", I recognize that theSchool District has for its own reasons counted the Teacher Advisories at the beginning of the highschool day as "instruction", even though Alberta Education does not recognize or fund that time.Given that the School District has treated Teacher Advisories as instructional time, that time shouldbe included in the numerator when calculating the relevant teachers' weekly instructional timeaveraged over the school year.

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3. How many and which days are to be included in calculating the maximumweekly limits "averaged over the school year" for (a) "instructional time" and(b) "assigned duties"?

197 In my opinion, the 2005-06 "school year" consisted of 197.5 days, and this is the propernumber to be used for determining the denominator for calculating both averages.66

198 In reaching this conclusion, I note that both limits are contained in the same provision(Article 11.1), and both limits specify that the average is to be calculated "over the school year". Ona plain reading, it makes sense that "the school year" would have the same meaning in bothcontexts.

199 With respect to the limit on assigned duties, the parties agree that 197.5 days is the propernumber to be used for the denominator.

200 With respect to the limit on instructional duties, I do not accept the ATA's argument that it isnecessary to use 190 days in the denominator in order to compare "apples to apples". In the firstplace, this is not what Article 11.1 says. It does not say that the limit is 1,430 minutes "averagedover the number of instructional days in the school year". On the contrary, the reference in Article11.1 is to the "school year", which on its face must mean the whole school year and not just part ofit. Secondly, neither the School Act nor the collective agreement specifies the length of theinstructional day or imposes any limit on the number of instructional minutes that a teacher can berequired to perform on any given school day. The effect of the ATA's interpretation would be tochange the instructional average depending upon how the school district deploys instructional time.While it is common for many schools to provide instruction on 188 days in a school year, it isentirely possible for a school district to have longer but fewer instructional days during the schoolyear (as occurred with the compressed school week in Chinook's Edge). In the latter case, the ATA'smethod would yield a different average if the same total annual amount of instructional time takesplace on a different number of instructional days.67 Finally, Article 11.1 specifically contemplatesthat there can be a direct comparison between the 30 hours of maximum weekly assignable hoursand the 23.83 hours of maximum weekly instruction. The provision speaks of "the remainder ofthe assignable hours shall be devoted to professional duties". In order to calculate theremainder--that is, the difference between 30 hours and 23.83 hours--the units must be the same;namely, hours averaged over the school year. It would make no sense to calculate a remainder bycomparing different units--by comparing an average which is calculated over the school year (30hours per week of total assignable duties) with an average which is calculated over some lesserperiod of time (e.g., 23.83 hours per week averaged over the number of instructional days). In orderto get a remainder, one must compare like averages to like averages, like units to like units; the twoaverages must be calculated using the same denominator.

201 For all of these reasons, I conclude that 197.5 days is the denominator to be used incalculating both averages in Article 11.1.

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IX. DECISION BY THE OTHER MEMBERS OF THE BOARD OF ARBITRATION

202 Mr. Laird concurs with the decision by the Chair.

203 Mr. Johnson concurs with the majority's decision except with respect to whether "time freefrom instruction" constitutes "assigned time". His partial dissent is attached.

SIGNED, DATED AND ISSUED on behalf of the Board of Arbitration at Edmonton, Alberta onDecember 15, 2009 by:

D.P. Jones, Q.C., Chair

Partial Dissent by ATA Nominee

204 WILLIAM J. JOHNSON, Q.C. (NOMINEE OF THE ATA) (dissenting):-- On a grievance inthe nature of this dispute, it is first necessary to address the principles of interpretation and then toapproach the interpretation.

Principles of Collective Agreement Interpretation

1. "The object in construing an agreement is to ascertain the intention of theparties."68 "First principles require that the Arbitrator interpret the salientprovisions in the context of the Agreement as a whole and in a manner thatavoids conflicts or internal inconsistencies with the Collective Agreement.The parties are presumed to have drafted an agreement that avoids suchinconsistencies. It follows that the interpretation which accords with thatend reflects the parties' true intent."69

2. "Collective agreements are contracts. The law regarding the interpretationof contracts is similar to that utilized in the interpretation of statues"(Purolator70 Tab 2 at paras. 79, 92). The Supreme Court of Canadaadopted Driedger's approach (Tab 12) to statutory interpretation in Rizzo(Tab 11): "Today there is only one principle or approach, namely, thewords of an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act,the object of the Act, and the intention of Parliament."71 Since then theSupreme "Court has repeatedly cited, and this across a wide range ofinterpretive settings, that the preferred approach to statutory interpretationis that set out by E.A. Driedger."72 In Bell ExpressVu (Tab 14),73 IacobucciJ. added the following for the unanimous Supreme Court of Canada:

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[28] Other principles of interpretation--such as the strict construction ofpenal statutes and the "Charter values" presumption--only receiveapplication where there is ambiguity as to the meaning of a provision. ...

[29] What, then, in law is an ambiguity? To answer, an ambiguity must be"real" (Marcotte, supra, at p. 115). The words of the provision must be"reasonably capable of more than one meaning" (Westminister Bank Ltd. v.Zang, [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity,however, one must consider the "entire context" of a provision before onecan determine if it is reasonably capable of multiple interpretations. In thisregard, Major J.'s statement in Canadian Oxy Chemicals Ltd. v. Canada(Attorney General), [1999] 1 S.C.R. 743, at para. 14, is apposite: "It is onlywhen genuine ambiguity arises between two or more plausible readings,each equally in accordance with the intentions of the statute, that the courtsneed to resort to external interpretive aids" (emphasis added), to which Iwould add, "including other principles of interpretation".

[30] For this reason, ambiguity cannot reside in the mere fact that severalcourts--or, for that matter, several doctrinal writers--have come to differingconclusions on the interpretation of a given provision. Just as it would beimproper for one to engage in a preliminary tallying of the number ofdecisions supporting competing interpretations and then apply that whichreceives the "higher score", it is not appropriate to take as one's startingpoint the premise that differing interpretations reveal an ambiguity. It isnecessary, in every case, for the court charged with interpreting aprovision to undertake the contextual and purposive approach set out byDriedger, and thereafter to determine if "the words are ambiguous enoughto induce two people to spend good money in backing two opposing viewsas to their meaning" (Willis, supra, at pp. 4-5).

[Emphasis added].

3. As noted by Arbitrator Smith (Purolator Tab 2 at para. 92), "in the contextof the collective agreement, I look to the 'Modern Approach' rules for theinterpretation of statutes and contracts" and "[t]his approach was used byArbitrator Elliott in the Owens-Corning Canada case." Arbitrator Elliottwrote in Owens-Corning (Tab 15):74

9 I use as my approach to the interpretation of collective agreements the

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same approach that the Supreme Court of Canada has adopted for theinterpretation of legislation. In this award I refer to this approach as themodem method of interpretation. In my view, the modern method ofinterpretation is a superior statement, as a guide to interpretation, than therule stated in Halsbury's Laws of England to which Canadian texts refer,which relies heavily on the "intention of the parties". The modern methodof interpretation is, I believe, particular apt for interpreting collectiveagreements which, of course, are based upon legislation.

10 The modern Canadian approach to interpreting agreements (includingcollective agreements) and legislation, is encompassed by this statement:

In the interpretation of collective agreements, their words must beread in their entire context, in their grammatical and ordinary sense,harmoniously with the scheme of the agreement, its object, and theintention of the parties.

11 Using this method, interpreters look not only to the intention of theparties, when intention is fathomable, but also to the entire context of thecollective agreement. This avoids creating a fictional "intention of theparties" where none existed, but recognizes their intention if an intentioncan be determined from the language used in the collective agreement. Themodern method also looks into the entire context of the agreement todetermine the meaning to be given to words in dispute. ...

In Strathcona Refinery,75 Arbitrator Elliott added:

Once an interpretation is settled upon, it should be tested by asking thesequestions:

(1) is the interpretation plausible - is it reasonable?

(2) is the interpretation effective - does it answer the questionwithin the bounds of the collective agreement?

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(3) is the interpretation acceptable in the sense that it is within thebounds of acceptability for the parties and legal values offairness and reasonableness?

4. In Real Canadian Superstore (Tab 17),76 Arbitrator Powers wrote: "Iacknowledge ... that the plain meaning rule has been supplanted by anapproach mandating that, as Arbitrator Elliott said in his paraphrase of theSupreme Court of Canada's Re Rizzo decision, words in a collectiveagreement must be read in their entire context, in their grammatical andordinary sense, harmoniously with the scheme of the agreement, its object,and the intention of the parties."77

5. The Alberta Court of Queen's Bench cited Strathcona Refinery withapproval in Fire Fighters (Tab 18),78 which was affirmed by the AlbertaCourt of Appeal:

51 ... interpreting the provisions of the [Calgary FirefightersSupplementary Pension Plan] at issue in this case is no different from theinterpretation of statutes, private contracts and other authoritativedirectives. The method of interpretation to be used by the Court is thatwhich has been adopted by the Supreme Court of Canada in Re Rizzo. Theprinciple [is] called the "modern principle of interpretation," ...

Phillips J. cited the following passage from Brown & Beatty:

... the task of interpreting a collective agreement is no different than thatfaced by other adjudicators in applying statutes, private contracts and otherauthoritative directives. And generally speaking, arbitrators view andapproach their function in much the same way.79

Interpretation

205 As a result of the requirement to interpret Articles 11.1, 11.2.2 and 11.2.3 in their entirecontext, in their grammatical and ordinary case harmoniously with the scheme of the agreement andits object and the intentions of the parties, it is necessary to try to apply the plain and ordinarymeaning to Articles 11.1, 11.2.2 and 11.2.3 in a harmonious fashion. As such, I note that:

1. The work of "preparation, consultation and administrative tasks" is

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included within Article 11.1 in the last sentence where it states that "theremainder of assignable hours shall be devoted to professional dutiesincluding ..." these three named tasks, among others. While Article 11.2.3indicates that a teacher is to "...have regularly scheduled school class timefree from classroom instruction for the purposes of... attending toprofessional responsibilities ..." which are these three same named worktasks.

2. Management has the right to schedule and assign work. When managementschedules work it is in essence assigning work.

3. When management is carrying out its managements rights under theCollective Agreement it is to exercise its management right in a fashionthat does not defeat employee rights elsewhere in the CollectiveAgreement.

4. The reference in Article 11.2.3 to "... except when temporaryimpractical..." indicates that management is only to be relieved from thisscheduling obligation in limited circumstances.

206 Accordingly, when management exercises its rights to schedule which is in essence assigningwork and when assignable hours include time for the three named duties (including preparation),then a plain and ordinary reading of the Collective Agreement that is harmonious with the rest ofthe document should cause the preparation time to be assigned duties.

207 The reference to being permitted to leave the school upon addressing the same with theprincipal is merely a release from duties which management always has the authority to do.

208 Accordingly, it is my interpretation that the preparation time (time free from instruction) isan assigned duty as referenced in Article 11.1.

"W.J. Johnson"December 15, 2009

qp/s/qlspi/qlaxw

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1 The term of the collective agreement was subsequently extended to August 31, 2012.

2 While there were 188 instructional days for High School teachers, the ATA could onlyidentify 187 "instructional days" for Elementary and Junior High teachers in the 2005-2006school year, so it used this number for its calculations for these two categories. In subsequentyears, the School District increased the number of instructional days for these categories to188.

3 In fact, in the 2005-06 school year, the School District followed the practice of the CalgaryBoard of Education and used 190 as the denominator in calculating the "instructional time"average because that was the number of instructional days in that school year; however, itsays that this was an error, and that in this arbitration it is entitled to use the correctcalculation.

4 The Education Services Settlement Act 2001 removed this type of clause from thosecollective agreements which had not been agreed to when the legislation was passed, andimposed collective agreements on those bargaining units. The ESSA and the collectiveagreements which it imposed expired on 31 August 2003, and work limit clauses havesubsequently been negotiated back in to all of the collective agreements which previously hadone (some in a somewhat different form). In addition, some collective agreements which werenot affected by the ESSA contained work limit clauses. See Exhibit 1, Tab 5.

During the course of the arbitration hearing, Mr. Molnar clarified that ESSA stripped thecorresponding work load provision out of the collective agreement between the CalgaryBoard of Education and the ATA, and that such a provision has not been reincorporated intothe post-2003 versions of their collective agreement, between the Calgary Board of Educationand the ATA, although there is a letter of understanding that refers to a maximum of 23 hoursof instructional time averaged over 190 days. Accordingly, the practice at the CBE is notrelevant to this arbitration.

5 Exhibit 1, Tab 7.

6 See also the definition of "instruction".

7 The exception might be statutory and school authority-declared holidays.

8 Unless the teacher agrees. The school year can be longer (or shorter) than 200 days, but ateacher cannot be required to instruct on more than 200 days.

9 1100 hours divided by 200 teaching days equals 5.5 hours per teaching day, which wouldbe the maximum instruction per teaching day permitted by the School Act for a teacheraveraged over the school year.

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10 A "teaching day" is defined in section 97(1) to mean (a) a day on which instruction isgiven by a teacher; (b) a day on which a school is closed due to an emergency; (c) a day onwhich a school is closed by order of the Minister; (d) 2 days on which a teachers' conventionauthorized by the Alberta Teachers' Association is held; (e) holidays declared by a board; and(f) any other days that are approved by the Minister.

11 See sections 56(1)(e) and 39(1)(c).

12 950 hours is 57,000 minutes.

13 Assuming 188 instructional days in the school year.

1,000 hours equals 66,000 minutes; divided by 188 days equals 351 minutes per day; whichequals 1,755 minutes for a five-day week. However, not all weeks in the school year consistof five days. A four-day week would have 1,404 minutes.

If the school year has 200 instructional days, the calculation would be 1100 hours equals66,000 minutes; divided by 200 days equals 330 minutes per day, which equals 1,650 minutesfor a five-day week or 1,320 minutes for a four-day week.

14 Assuming 188 instructional days in the school year.

15 Exhibit 1, Tab 8. Other school boards may have different school years, particularly if theyoperate year round schools or have modified school weeks (such as four longer school days,with no student attendance on Fridays, which among other things reduces bussing time andcosts). The same School Act limitations apply to these modified school years with respect tominimum instructional time for students and the maximum number of instructional hours ordays for teachers.

16 Ms. Vogrinetz also described her understanding about how the calculation would be madefor a teacher who was absent due to illness. Although this was an issue at the beginning of thearbitration with respect to Toni Filipetto who was away for a portion of the school year, in thecourse of the arbitration the parties agreed to exclude the days she was away from both thenumerator and denominator, so as to determine the average of her instructional minutes forthe days she was present. Accordingly, this issue is no longer before our Board of Arbitration.

17 See Exhibit 1, Tab 7, Alberta Education's Guide to Education, especially at pp. 31 and 42.

18 See Exhibit 1, Tabs 21 and 25, as well as 29 and 30.

19 Exhibit 1, Tab 2.

20 Referring to Exhibit 1, Tab 8.

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21 Exhibit 1, Tab 42. See also Exhibit 1, Tab 43.

22 Exhibit 1, Tab 47. The handbook was for the 2007-08 school year, but Ms. Morrison saidthat the handbook for 2005-06 contained the same information.

23 Exhibit 1, Tab 14 at pp. 2 and 3.

24 Exhibit 1, Tab 41.

25 See Exhibit 1, Tab 41. The ATA included in instructional time the classes she taught, oneminute for morning home room and one minute for afternoon home room.

26 Assuming 187 instructional days in the school year; divided by 5 to get 37.4 weeks;multiplied by the maximum permitted 23.83 instructional hours per week; equals 891.2 hours.

27 Exhibit 1, Tab 41. The ATA used 197.5 as the denominator, and included in assigned timethe prep periods, the parent-teacher conferences, staff meetings, supervision (including timeafter the warning bell, the midmorning nutrition break, assigned supervision on Day 4 formornings, lunch and after school), 15 minutes before the morning bell and 30 minutes afterthe last class, organizational days, professional and faith days, teacher convention days, andspecial evenings.

28 Exhibit 1, Tab 47.

29 Exhibit 1, Tabs 59 and 60.

30 Exhibit 1, Tabs 66 and 73. The Handbook was for the 2007-08 school year.

31 See Exhibit 1, Tab 64. See also Exhibit 1, Tab 109 which contains the timetable for theprior school year.

32 Tab 58. The ATA assumed that there were 188 instructional days at her school in 2005-06.

33 Exhibit 1, Tab 51.

34 The bell schedule is Exhibit 1, Tab 52.

35 Exhibit 1, Tab 50. The ATA assumed there were 187 instructional days at his school in2005-06.

36 See Exhibit 1, Tab 8.

37 See Exhibit 1, Tabs 9, 10, 11, 12, 13.

38 It was 198.5 in the 2008-09 school year: Exhibit 1, Tab 12.

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39 See Article IV of the collective agreement dealing with Salary Allowances.

40 The collective agreement indicates that it was signed on February 8, 2005. Exhibit 1, Tab3.

41 Exhibit 1, Tab 15.

42 Exhibit 1, Tab 16.

43 Mr. Cracknell: Exhibit 1, Tab 17.

44 Exhibit 1, Tab 18.

45 Exhibit 1, Tab 19.

46 Exhibit 1, Tab 20.

47 Exhibit 1, Tabs 20, 21, 22, 24.

48 Morrison (Exhibit 1, Tabs 41, 47, 43, 9, 11, 12), McIntyre (Exhibit 1, Tabs 58, 74, 75, 76)and Way (Exhibit 1, Tabs 50, 54).

49 Gwen Schamber-Farkas from Father Lacombe High School (Exhibit 1, Tabs 77, 78, 81,85), V. Sciore from St. Mary's High School (Exhibit 1, Tabs 87, 95, 97, 98, 89) and KevinBedier from St. Martin de Porres Junior/Senior High School (Exhibit 1, Tabs 100, 101).

50 Note: this issue is not included in this arbitration. There was then some discussion abouthow to deal with the averages for teachers who were away sick for part of the year; however,because the parties subsequently reached an agreement about how to deal with this case, thetestimony relating to it is not reproduced above.

51 Exhibit 1, Tab 7.

52 The School District's response in February 2003 is Exhibit 1, Tab 110.

53 Exhibit 1, Tab 111.

54 Exhibit 1, Tab 18 from June 27, 2005. Mr. Strother said that an incorrect version of thisdiagram (Exhibit 1, Tab 35) was eronoeously distributed at the meeting with the ATA inNovember 2005.

55 Mr. Strother prepared Exhibit 1, Tab 112 that refers to some examples of duties whichmight be assigned during time which was otherwise unassigned.

56 Exhibit 1, Tab 114.

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57 As it happens, earlier in his career Mr. Strother was the Principal at St. Joseph Schoolwhere Mr. Way taught during the 2004-05 school year, and where school patrol was treatedas an extracurricular activity and not supervision. See the documentation referred to in theprevious footnote.

58 Exhibit 1, Tab 115.

59 Exhibit 2. This is the corrected version of the calculations, and was provided to the ATAin April 2009.

60 Exhibit 2, Tab 1, second last page, the top figure in blue. If 197.5 days were used as thedenominator (instead of 190), the average weekly instructional time would be 22.74 hours(instead of 23.64). By actual count, it appears that Mr. Bedier actually instructed theequivalent of 181.5 days during that school year (combining half days to get full dayequivalents, which has the effect of reducing the total number and therefore increasing theaverage), and if this figure is used as the denominator, the average weekly instructional timewould be 24.74 hours.

61 Exhibit 2, Tab 1, second last page, the middle blue figure. If 197.5 were used for thedenominator (instead of 200), the average additional assigned time would be 2.75 hours(instead of 2.72).

62 Exhibit 2, Tab 1, second last page, the bottom blue figure. If the additional assigned timehad been calculated using 197.5 days (instead of 200), the total average weekly assigned timewould have been 25.49 hours.

63 See Exhibit 1, Tab 58 where periods were increased from 81 to 85 minutes, lunch wasdecreased from 42 to 30 minutes, and the Instructional Seminars were added.

64 Exhibit 1, Tab 47.

65 Article 21.3 of the collective agreement provided as follows:

Effective September 1, 2004, a teacher not in receipt of any administrativeallowance will not be assigned duties in excess of thirty (30) hours perweek, averaged over the school year. A maximum of 1430 minutes perweek, averaged over the school year, shall be devoted to the instruction ofstudents. The remainder of the assignable hours shall be devoted tonon-instructional duties such as marking, lesson preparation, studentinterviews, supervision and related professional duties as the principal maydeem necessary for the proper and orderly functioning of the school.

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66 Or the equivalent for weeks, hours and minutes.

67 Consider the following example. The maximum average instructional time for a teacher is1,430 minutes per week, which equals 286 minutes per day (assuming a 5-day week). If theteacher taught the same amount of instructional time on each of 188 instructional days, thatwould equal 53,768 instructional minutes in that year. However, if a school had a compressedschool week so that there were only 180 instructional days, a teacher teaching the maximum286 minutes per day would only teach 51,480 minutes in that school in that school year.Looking only to the number of instructional days in the year necessarily changes the totalnumber of instructional minutes depending upon how a particular school board deploys theinstructional time across a given number of days. Nothing in Article 11.1 contemplates that ateacher's total instructional time would vary according to the number of instructional days atthat particular teacher's school. And Article 11.1 does not contain any mechanism forconverting the actual number of instructional days to the equivalent of some notional standard(such as 188).

68 United Nurses of Alberta, Local 121R v. Calgary Health Region (Rockyview Hospital),2007 ABCA 341, [2007] A.J. No. 1213 at para. 28 (QL) ["Rockyview Hospital"] [Tab 9].

69 United Food and Commercial Workers' Union, Local 401 v. Real Canadian Superstore,2008 ABCA 210, [2008] A.J. No. 588 (QL) ["UFCW"] [Tab 10].

70 Purolator Courier Ltd. v. Canada Council of Teamsters, Local Union 395, [2005]C.L.A.D. No. 492 (QL) ["Purolator"] [Tab 2].

71 Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21 ["Rizzo"][Tab 11], citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths,1983) at 87 ["Driedger"] [Tab 12].

72 Marche v. Halifax Insurance Collective agreement., 2005 SCC 6, [2005] 1 S.C.R. 47 atpara. 54 ["Marche"] [Tab 13].

73 Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 [BellExpressVu] [Tab 14].

74 Communication, Energy and Paperworkers Union f Canada, Local 728 v. Owens-CorningCanada Inc., [2004] A.G.A.A. No. 69 (QL) ["Owens-Corning"] [Tab 15]; see alsoCommunication, Energy and Paperworkers Union, Local 777 v. Imperial Oil StrathconaRefinery, 130 L.A.C. (4th) 239, [2004] A.G.A.A. No. 44 at paras. 40-41, 47 (QL)["Strathcona Refinery"] [Tab 16].

75 Ibid. at para. 47.

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76 Real Canadian Superstore v. United Food and Commercial Workers, Local 401, 92C.L.A.S. 2, [2007] A.G.A.A. No. 70 (QL) ["Real Canadian Superstore"] [Tab 17].

77 Ibid. at para. 15.

78 Calgary (City) v. International Assn. of Fire Fighters (Local 255), 2006 ABQB 133,[2006] A.J. No. 266 (QL), affirmed 2008 ABCA 77, [2008] A.J. No. 190 (QL) ["FireFighters"] [Tab 18].

79 Donald J.M. Brown, David M. Beatty & Christine E. Deacon, Canadian LabourArbitration 3rd looseleaf ed. (Aurora: Canada Law Book, March 2006) at para. 4:2000["Brown & Beatty"] [Tab 19].

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