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Teachers on strike rally outside of Queen's Park in Toronto on Thursday, May 14, 2015. Ontario high school teachers to receive full pension credits for ‘unlawful’ strikes, according to a memo obtained by The Globe and Mail from the Ontario Teachers’ Pension Plan.Matthew Sherwood/The Globe and Mail

Ontario high-school teachers who staged illegal strikes last spring will receive full pension credits for the time they were off the job, after the Liberal government quietly agreed to create an exception to the rules for them.

The move raises tough questions on whether the province is setting a precedent and removing a disincentive for public employees to illegally strike.

A memo obtained by The Globe and Mail from the Ontario Teachers' Pension Plan to school boards, dated Oct. 1, says the government made a deal to ensure teachers do not lose any pension over the walkouts.

"A plan amendment has recently been signed enabling the OSSTF [Ontario Secondary School Teachers' Federation] illegal strike from this past Spring to be treated as pensionable. This change to Schedule 1 to the Teachers' Pension Act (TPA) was approved by the Plan Partners last week," the memo reads. "In light of this change, the affected employees will have their pension credit restored for the period of the strike."

The memo says teachers who tried to make up the days by working extra will be eligible for refunds of those pension contributions; teachers who took part in the illegal strike but have since retired will have their benefits recalculated.

The decision is the latest in a series of unusual moves from the government in its dealings with the teachers' unions They include $3.74-million in secret payments the province made the unions over the last seven years to cover their bargaining costs. The confidential payments only came to light last month when they were uncovered by The Globe.

High school teachers at three school boards walked off the job in the spring, at the height of tense negotiations between the OSSTF and the province. Durham Region teachers went on strike on April 20, Sudbury on April 27 and Peel Region on May 4. The strikes left 74,000 students out of class.

On May 26, the Ontario Labour Relations Board ruled that the strikes were "unlawful" because they were partly motivated by province-wide issues, not only local ones. The board decreed that local strikes must be confined to local issues and must not be used to pressure the government over province-wide matters.

The board told the OSSTF to immediately stop the local strikes, but it said teachers could go back on strike after two weeks if they struck over purely local matters. Before that could happen, the governing Liberals passed back-to-work legislation preventing further strikes for the rest of the school year.

Typically, Ontario teachers lose pension credits in the case of an illegal strike. That's what happened in October, 1997, for instance, when teachers walked off the job for two weeks to protest then-premier Mike Harris's decision to cut their preparation time.

Teachers' pensions are calculated using the number of years of service and the average salary of the best five years. In the case of illegal job action, if the missed pay reduces the total of one of the teachers' five best years, it cuts the size of their pension.

Education Minister Liz Sandals' office said the government decided to give the OSSTF a break this time because it was unclear before the labour board's ruling whether local strikes over province-wide matters were illegal. The OSSTF, for its part, dropped its court challenge of the labour board's ruling.

"The OLRB decision clarified the legal status of the strikes under the new two-tier bargaining structure by establishing that an otherwise legal local strike is illegal if it is conducted in respect of central bargaining issues," Ms. Sandals's spokeswoman, Alessandra Fusco, wrote in an e-mail.

She insisted this would be a one-time exception.

"These are unique circumstances and the legal status of local strikes under the new two-tier bargaining structure has now been clarified. This means that illegal strikes will not be pensionable [in future]. This does not set any precedent for other education sector or broader public-sector strikes," she wrote.

Ms. Fusco said the teachers or their union would pay the pension contributions for the strike period, and the government will not be on the hook.

OSSTF president Paul Elliott said the agreement to give teachers full credits applies only to the illegal strikes in the spring and is not retroactive to previous illegal strikes, nor will it apply to future job actions.

He said this year's strike was different from the 1997 walkout because teachers this time were in a legal strike position.

"During the Harris years, the two weeks was not a strike because we were not in a strike position. It was a two-week political protest and recognized as such by the courts," he wrote in an e-mail.

He also pointed out that the strikes went on for up to six weeks, in the case of Durham, before the labour board ruled them to be illegal.

"The strikes were deemed to be 'illegal' after they had been in place for weeks. The labour board had deemed them legal up until the decision. And we were given two weeks to 'cleanse' the strike of central issues and then were given the green light to continue," he wrote.

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