Wednesday, March 31, 2010

Index of March 2010 Posts

March 29
Class size calculations under ELP

March 23
Financial implications of permanent layoffs –Employment Law Basics

March 21
Planning for 2011-12 (Year 2) of the Early Learning Program

March 14
Bill 242 – What does it say?

March 11
Bill 242 – An opportunity to make your views known

Monday, March 29, 2010

Class size calculations under ELP

Jim Grieve, Assistant Deputy Minister in the Ministry of Education, has issued a memorandum, 2010: EL4 dated March 5, 2010, to board Directors of Education providing school Boards with information about calculating class size under the Early Learning Program (ELP).

While the meaning of much in the memorandum is not entirely clear to us, it does raise some interesting questions for which answers are not immediately apparent. Please keep in mind that ELP is for children of junior and senior kindergarten age – 3.8 to 5. Specifically (in order in which the points are raised in the memo):

  1. The class size regulation changes have "an automatic sunset provision that comes into force on September 1, 2012". What will happen after that?

  2. Boards should "conform closely to an average full-day JK/K class size of 26". This is vague and raises the possibility that some classes will have more than 26 children. The class size is not capped at 26 so presumably a board could have classes with in excess of 13 children to each adult and still maintain the average. Is it possible that going above the average of 26:2 would help schools manage the Phase One implementation deficits we understand they are expecting to experience?

  3. There does not appear to be a provision for replacement of staff temporarily absent in the school-day portion. For example, what will happen during prep time for certified teachers and registered early childhood educators? Is it possible that a class size could conceivably be 26:1 for periods in the day? Consider that the existing Day Nurseries Act regulated adult child ratio for junior kindergarten children is 1 to 10 with a maximum group size of 20.

  4. The memorandum states "These class size calculations apply to the ELP's school-day portion; the intent is not to apply to the extended day." Under proposed Bill 242, children in the extended day childcare program are considered pupils under the Education Act and therefore not governed by adult to child ratios specified in the Day Nurseries Act. It is not yet clear what adult to child ratios will apply to children enrolled in the before and after school portion of the ELP.

Tuesday, March 23, 2010

Financial implications of permanent layoffs –Employment Law Basics

The introduction of full day kindergarten combined with boards of education providing before-and after-school care could result in centres having to close down playrooms for four- and five-year olds. As employment costs are by far the most significant cost component of any childcare program great care must be taken when making changes to staff.

We often get questions on the financial implications of laying off staff. We have also observed that mistakes made in this area can be very costly. Getting professional advice is almost always a must before initiating any staff reductions for cause or otherwise.

In unionized centres, the extent of the employer's obligations to provide notice and/or severance pay and who may be selected for the layoff will likely be governed by a collective agreement, which may or may not be limited to the notice requirements under the Employment Standards Act, 2000. Depending on the agreement, there may also be a positive obligation to advise and consult with the union in relation to a permanent lay off of some staff or closure of the centre.

In non-unionized centres, the requirement to provide notice of termination and/or severance pay may be governed by an enforceable employment agreement (if the employee has one) or by the common law. As part of those requirements, the centre will have to meet the minimum statutory requirements under the Employment Standards Act, 2000. It is important to establish a process early on and very clearly document considerations that will lead to a proposed change in the duties, a temporary lay-off, or a termination.   If the process is followed and bona fide considerations well documented, the employer will be better able to address an allegation of constructive dismissal or an allegation that it has failed to honour its obligations under the Human Rights Code.

The specific obligations will always depend on individual circumstances of the centre's and the employee(s) in question.

While a centre may be able to provide working notice to affective staff, doing so may also have practical implications on the day-to-day operations of the centre and these will need to be considered beforehand.

The Ministry of Labour's web-site provides information on minimum statutory obligations under the Employment Standards Act at the following link: http://www.labour.gov.on.ca/english/es/

Please keep in mind that compliance with the minimum legislated requirements in either a union or non-union workplace may not satisfy broader contractual obligations that may come into play when there is a permanent layoff (termination of employment).

We contacted Ian Werker, a lawyer with much experience in the field of labour law in childcare in Toronto, to answer some frequently asked questions on the subject of permanent layoffs in a daycare environment. http://www.lawchambers.com/Lawyers/Ian_Werker.htm.

The following comments pertain only to non-share capital companies incorporated under the Ontario Corporations act.

Who is liable for providing notice and/or compensation in lieu of notice (including statutory amounts)?

The centre is liable for the payment of wages. It is also liable to provide notice required under the contract of employment (or collective agreement if one exists). Where there is no specific agreement in place, the amount of notice required will be determined by the common law.

Where the employer has not given working notice of termination, it will generally be liable to provide compensation in lieu.

Even if an employer has given some amount of working notice, it must at least pay out any remaining amounts required under the Employment Standards Act, 2000. Again, depending on the specific contractual arrangements, satisfying the statutory requirements will probably not meet the employer's broader common law obligations to provide notice or pay in lieu of notice.

When must you pay termination pay under the ESA?

Generally speaking payments on termination must be made under the ESA on or before the regular payroll date following the employee's last day of work. However, employers and employees will often enter into mutually agreeable arrangements where payments to the employee shall be made by way of a "salary continuance".

What are the guidelines for how much termination pay must be paid or time in lieu of notice given?

In a non-union environment, or in cases where the entitlement is not governed by an enforceable written agreement, our courts look at the individual circumstances of the employee(s) involved, based on relevant factors – such as the person's age, duration of service, and position. Where a termination involves a number of employees at once, employers should get legal advice so that they can establish an approach that is internally consistent and within the range of what a court is likely to determine as reasonable. Readers should be aware that, as far as courts are concerned, there is no "general rule" that an employee should receive a "month of notice/severance for each year of service". In some cases the ratio is more. In others it will be less.

Are directors and officers personally liable for statutory termination pay, statutory severance pay or pay in lieu of notice?

No. But, they may be liable for unpaid vacation pay or wages earned.

There are a few critical messages to keep in mind in this area.

First, the rules governing severance, termination pay and notice in lieu of pay are complex and depend on the specifics of your centre's situation.

Second, if your centre plans to lay off a number of long standing employees as a result of having to close a playroom, it should do so only after careful planning and professional advice so that the centre is best-placed to meet its legal obligations and reduce the risk of surprise claims that could put the centre's future financial viability into question.

Sunday, March 21, 2010

Planning for 2011-12 (Year 2) of the Early Learning Program

Jim Grieve, Assistant Deputy Minister in the Ministry of Education, has issued a memorandum, 2010: EL3 dated March 4, 2010, to board Directors of Education providing school Boards with information about planning for year 2 of the Early Learning Program (ELP). http://tinyurl.com/y8fmu34

Why this may be important to you:

The memo provides some information about Ministry direction to boards of education in year two of ELP. The information may help childcare centres in Ontario to plan for the future. Points of interest are:

Ministry of Education comments 

Interpretation and possible implications

Boards must submit planning templates to the Ministry no later than April 16, 2010 and will announce approval of year 2 sites no later than May 21, 2010.

This appears to be a tight deadline, especially if boards of education are going to hold any form of public consultation on site selection (see next point).

Boards are directed to do their planning in consultation with, among others, local Best Start Networks and municipalities.

Consultation is mandatory but timelines are very tight. If you plan to participate in the planning process, you should consider finding out how to get involved now.

Boards are directed to "…take into consideration the impact on existing child care and early years programs, including those operating on school premises."

No direction beyond taking into consideration is given.

Boards are directed to provide to the Ministry, possible sites covering at least double the year 2 allocated spaces.

The Ministry will have significant "flexibility" (power) in approving sites.

"Boards should consider limiting plans for program expansion to the number of additional students allocated for 2011-12."

Boards may not be receiving sufficient funding to meet actual costs of delivery, for example if demand is greater than forecast or costs such as salaries are greater than provided for in the funding formula.

"…boards would have a duty to offer extended day programs to four- and five-year olds in the ELP in during the school year. [Boards can] permit older children to participate in the extended day, to support viability."

The Ministry appears to be acknowledging that it may be financially beneficial (read: necessary?) for boards to offer extended day programs for children six and up. This may have implications for those centres planning to continue to offer school-age care in schools participating in the ELP.

"...school boards would also have the power to provide extended services, for a reasonable fee, at other times of the year for four- and five-year olds under the guidance of early childhood educators…Where you have capacity and parent demand, the government is calling upon boards to use this power. [Boards] are called upon to provide extended services at other times of the year for children six to twelve years old."

This is the clearest message we have had to date directing boards to provide childcare to children from four to twelve years of age for the full 261 days a year. Consider taking this directive into account when forecasting future enrolment in your centre for children from four to twelve years of age.

"[Ministry approved] Selected schools must have all JK/K classes comply with the new ELP model as this is a whole school approach…"

Recommended schools should only be those a board "anticipates will remain open for the next five years." Schools must have available appropriate classroom space.

All JK/K classes in a selected school must convert to the ELP and schools must have sufficient space. This would seem to reduce the likelihood of having a non-board childcare centre for four- and five-year olds in a school selected for ELP.

Boards can only offer schools for ELP selection if they are viable for the medium to long terms.

Sunday, March 14, 2010

Bill 242 – What Does It Say?

Bill 242 is an Act to amend the Education Act and certain other Acts in relation to early childhood educators, junior kindergarten and kindergarten, extended day programs and certain other matters. The Bill has the capacity to have a significant impact on the licensed child care sector in Ontario. In our last posting – March 11, 2010 – we shared information about the Standing Committee Hearings on the legislation. This post will provide more information about some of the key components of the proposed legislation. There is much more in Bill 242 which you can find at:

http://www.ontla.on.ca/bills/bills-files/39_Parliament/Session1/b242.pdf

Positive Components of the Act:

Section Reference 

What it Says 

Interpretation and Possible Implications

General 

Universal access for 6 hours a day for 4 and 5 year old children 

When fully implemented, all 4 and 5 year old children will be able to participate in developmentally appropriate early learning programs for up to 6 hours each day. 

2. (3) and many other sections

… "the Act is amended by striking out "teacher" and substituting "teacher, designated early childhood educator"  

Throughout Bill 242, there are specific references to teachers and early childhood educators working in partnership. This represents legislated recognition of the significance of the role of early childhood educators in the implementation of full day early learning programs for children 3.8 to 5.

260.2 

"A principal may delegate any of his or her duties under this Act that relate to the operation of extended day program to a vice principal or another person approved by the board."

Given the existing workload of principals, this opens the possibility that a management structure will be created to support the extended day component of full day early learning.

260.4 

"The Minister, and, if authorized by the Minister, a board, may enter into agreements with any person or entity respecting the provision of financial assistance to persons who are charged fees under section 260.1."

Recognizes that for many families, the ability to access the extended day program is dependent on receiving financial assistance. This is an important access and equity issue. 

264.1 (2)

Specifically sets out that teachers and early childhood educators will cooperate in: planning, observing, assessing, maintaining healthy environments, communicating with families, performing duties as assigned by the Principal.

Legislates an equal role for early childhood educators and teachers. 


 


 


 


 

Concerning Components of the Act:

Section Reference 

What it Says 

Interpretation and Possible Implications 

General 

The preamble of the Act talks to the importance of "strong local partnerships" in the eventual success of the full day early learning program. 

Unfortunately, the Act itself rules out the possibility of "strong local partnerships" in the delivery of the extended day component of the early learning program.

259. (1)

… every board shall operate extended day programs in every elementary school of the board, on every school day, other than professional activity days, outside the time when junior and kindergarten are operated in the school, for pupils of the board who are enrolled in junior kindergarten or kindergarten."

The extended day (before and after school) component of this initiative MUST be delivered directly by boards of education and may not be provided in collaboration with an existing community partner. This means that by the time this program is fully implemented there will be very few 4 and 5 year old children in the licensed child care sector. While some families may chose to keep their children in licensed child care, experience suggests that the vast majority will not.

259. (2)

… "a board may also operate…for any pupils of the board to whom the board decides to provide the program."

Boards may also provide extended day programs for children who are older than kindergarten age. 

259. (4)

School boards are permitted to operate extended day programs for the pupils of other school boards. 

The argument against providing the extended day programs in partnership with community based organizations is based on the intent to provide a fully integrated program in which children experience fewer transitions and fewer staff changes. It is difficult to understand how this clause supports this important philosophical direction as moving between schools up to three times a day is a lot of transitioning for kindergarten age children.

It is also difficult to understand why collaboration with a community based agency operating in the same school is considered more disruptive than having children move between schools for the extended day component. This clause diminishes the strength of the rationale for direct delivery of the extended day program by boards.

260.1 (1)

Fees will be charged to parents of pupils enrolled in extended day programs on a cost recovery basis. 

This changes the definition of pupils in the public school system. Currently, pupils do not pay to attend school.

260.3 (2)

Pupils do not have the right to attend the extended day fee-for-service component of the program. 

The legislation does not make it clear under what circumstances a board might decide NOT to provide the extended day component. It is understood to be in those situations where the demand is not sufficient. Is it also possible that it might be in those circumstances where the demand is such that there are too many children for one group (the size of which is not yet clear) but not enough for a second?

260.4 

"The Minister, and, if authorized by the Minister, a board, may enter into agreements with any person or entity respecting the provision of financial assistance to persons who are charged fees under section 260.1."

While this is an important access issue, where will the funding come from? If the existing subsidy for children 4 and 5 is removed from the licensed child care sector, at the same time that many communities are also losing spaces due to the end of Best Start funding, both group and home child care programs may struggle to fill their vacant spaces.

260.5 (1) (2)
(a – m)

Give the Minister authority to issue "policies and guidelines respecting all aspects of the operation of extended day programs and require boards to comply with them…"

This section includes such things as how subsidy will be calculated, the group sizes for the program, authorizing boards to enroll children in the extended day programs for the summer period.

This section allows the Minister to create policies and guidelines as the program is rolled out over the next 5 years. This is understandable given that this is a new program and there will be lots to learn, as it is unveiled. At the same time, this section creates continued confusion for parents and the licensed child care sector as it means there will continue to be many unknowns until and unless specific policies are announced.

General 

Lack of clarity about the delivery of services on PD days, school holidays and during the summer.


 

The same is true about whether or not boards will provide extended day programs for children 6 and up.  

This may create challenges for parents who require early learning and care program for their children on a year round basis. The lack of certainty also makes it difficult for the licensed child care sector to plan effectively.


 

We will continue to provide additional information about Bill 242 as it becomes available.


 


 


 

Thursday, March 11, 2010

Bill 242 – An opportunity to make your views known now

Bill 242, an Act to amend the Education Act and certain other Acts in relation to early childhood educators, junior kindergarten and kindergarten, extended day programs and certain other matters has now gone through first and second reading at the Provincial legislature. Bill 242 can be viewed online at http://www.ontla.on.ca/bills/bills-files/39_Parliament/Session1/b242.pdf.

There will be an opportunity to make oral presentations to the Standing Committee on Social Policy on the legislation on March 22, 2010 and March 23, 2010. To make a presentation, contact the Committee Clerk by 5:00 p.m. on March 17, 2010. You can email your request to:

Kate Ratinsky at kate_ratinsky@ontla.ola.org

It is also possible to make a written presentation to the committee. To comment in writing, make your submission to the Committee Clerk by 5:00 p.m. on March 23, 2010. The address is:

Katch Koch
Clerk
Room 1405, Whitney Block
Queen's Park, Toronto, ON M7A 1A2

Bill 242 is the legislation that moves the implementation of full day early learning forward. There is a lot that is positive in the legislation including the expectation that certified teachers and registered early childhood educators will work collaboratively to deliver the full day early learning program. This legislation also introduces the concept of universal access to full day early learning for children who are 4 and 5.

However, for the licensed child care sector, the legislation also raises a number of significant concerns, the most important of which is that it states that school boards and school boards alone must deliver the fee for service extended day component of the early learning program. In other words, schools will not be permitted to collaborate with existing community agencies to deliver the before and after school portion of the day.

The legislation also gives the Boards the right to deliver the extended day component on PD days, school holidays and throughout the summer. They may also provide the fee for service extended day component for children older than 4 and 5.

This has significant implications for the on-going viability of many licensed child care programs. It is also a blow to what many had hoped would be a collaborative, program model wherein schools and child care centres would work together to deliver an integrated curriculum in the extended day program that would support and build upon the full day early learning program.

Consider taking this opportunity to have your voice heard.