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July 12, 2014

Bargaining Working Conditions

"If a teacher finds the rewarding aspect of teaching to be the connection with a child and the sense that the child is learning from the teacher's efforts, which one hopes is the motivation for most teachers, then it is obvious that teacher job satisfaction will decrease dramatically the less opportunity there is to make this connection. Teacher job satisfaction will also decrease dramatically the less opportunity there is to influence these Working Conditions."

The Honourable Madam Justice S. Griffin, paragraph 459

In 2001 the Campbell government broke an election promise when it introduced contract breaking legislation. The Hospital Employees' Union took the lead in fighting Bill 29 (2002) all the way to the Supreme Court of Canada and winning a decision in 2007, in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27[Health Services] The hated Bill 29 ironically made labour history by producing a ruling that recognized a Charter right for collective bargaining.
A parallel piece of contract breaking legislation was introduced by then Minister of Education, Christy Clark. Bill 28 (2002), was directed at the teachers, removing (or stripping as the teachers say) language in their collective agreement that dealt with class size and class composition. That language was negotiated in 1998 but it was legislatively imposed after school trustees voted against ratification. On April 13, 2011, Justice Griffin ruled that three sections of Bill 28 (2002) were unconstitutional, 2011 BCSC 469 (the "Bill 28 Decision"). The ruling was suspended for twelve months to give the government time to consider the repercussions of the decision. The government did not appeal, but on February 28, 2012 it introduced what Justice Griffin later described as virtually identical legislation, Bill 22 (2012). The BCTF took Bill 22 to court where on January 28, 2014, Justice Griffin again ruled sections of it to be unconstitutional. 2014 BCSC 121 (the "Bill 22 Decision"). This time the government said it would appeal; the Appeal Court is expected to hear the case in October. Meanwhile collective bargaining is underway in the shadow of a full strike and partial lockout.

Practitioners and students of industrial relations will probably find the Bill 22 Decision required reading. At over 50,000 words it provides impressive examples of argument, logic and fact-finding that the government must hope few ever read. Some sections cannot be read without thinking government representatives were behaving like the Keystone Cops.

The contract language that was deleted by Bill 28 involved hundreds of clauses. Paul Straszak, then President and CEO of the Public Sector Employers Council, led discussions for the government with the BCTF regarding the repercussions of the Bill 28 Decision. His evidence played a crucial role in the Bill 22 Decision. It is hard to believe, but Straszak and his team didn't read the clauses that had been deleted until the time limit he imposed for discusses had almost expired. In the Bill 22 Decision (para 344), Griffin wrote: "Yet the government representatives did not even read the Working Conditions clauses until after a sixth meeting took place with the BCTF on October 24, 2011. They were not in a position to comment on these clauses until as of the November 21, 2011 meeting with the BCTF. This was far too late in the process, given the government's deadline to complete these negotiations by the end of November." In might be unfair to the Keystone Cops to compare the government team to them!

The issue of contract language relative to class size and composition and the necessary budget to fund that language appears to be the major issue in the strike/lockout. The BC Public School Employers Association website summarizes its view of the differences between the parties on that issue as follows:

class size and composition

A key BCPSEA proposal is missing from its summary, contract language that would allow either party to serve 60 days notice that the collective agreement would be terminated if it doesn't like what the Appeal Court rules. It is impossible to think teachers would ratify any agreement that contained a clause like that so it would be best if that controversal proposal were removed from the table. Apart from that clause, the government's position on class size and composition is to put the status quo in the collective agreement and revisit the issue once the courts have ruled, probably meaning both the Appeal Court and possibly the Supreme Court of Canada.

Some have asked why the government has appealed. Is it just a stalling tactic to postpone implementation of Griffin's ruling? The government hasn't helped by remaining silent except for the Minister of Education complaining about the cost of implementing Griffin's decision and disagreeing with her findings of fact. Neither of those objections are likely to form the basis of the government's argument before the Appeal Court. In the Bill 22 Decision (para 149), Griffin wrote: "It is very important to note that the government did not assert before this Court at any time that the costs implications of restoring the collective agreement clauses amounted to exigent circumstances justifying the government's re-interference with collective bargaining rights in Bill 22. To so argue would be to reargue the facts before the Court at the time of the original Bill 28 Decision."

In the Bill 22 decision Griffin carefully set out the tests required by Health Services and she discussed how they were clarified by the Supreme Court in Ontario (Attorney General) v. Fraser, 2011 SCC 20 [Fraser]. She wrote (para 66):
"In its summary of the case law, the Court in Fraser did not mention anything about prior consultation potentially curing subsequent legislation from its substantial interference with freedom of association. It viewed the question as whether or not the legislation "makes meaningful association to achieve workplace goals effectively impossible" (at para. 98). This includes the question of whether the legislation itself (not the pre-legislation consultation process), "provides a process that satisfies this constitutional requirement", namely, "the right of an employees' association to make representations to the employer and have its views considered in good faith" (at para. 99).

[Emphasis added.]" (Griffin's text had "Emphasis added".)

Whether or not prior consultation "cures" subsequent legislation from violating Charter rights may be a central issue in the government's appeal. To succeed in its appeal, the government will have to convince the Appeal Court that the trial judge erred in her application of the principles established in Health Services and Fraser to the particulars of Bill 22 (2012) and the negotiations that occurred following the Bill 28 Decision. The government had the benefit of five years to consider the Supreme Court of Canada Health Services decision before it drafted Bill 22. It would be nave to think it didn't conduct itself both in negotiations and in the drafting of Bill 22 so as to make an effort to satisfy the tests established by the Supreme Court of Canada.

Two of Griffin's key findings will likely be challenged by the government in its appeal: whether its consultation after the Bill 28 decision was sufficient to "cure" any violation of the Charter in Bill 22 and whether the contract language that Bill 28 stripped from the agreement was collectively bargained and hence subject to the tests set out by the Supreme Court of Canada for removing clauses without violating the Charter.

In paragraphs 174-177 of the Bill 22 Decision, Griffin wrote:
"BCTF considered correctly that the effect of the Bill 28 Decision would be to restore its right to collectively bargain on Working Conditions issues. It was never given a good reason why the government did not simply act right away to repeal the legislation so that these issues could be added to the ongoing collective bargaining. The BCTF did not see the point of having a combined table -- the Bill 28 repercussion negotiations and collective bargaining -- as on its position if collective bargaining was restored then collective bargaining could deal with the issues regarding Working Conditions."

"However, the position maintained by Mr. Straszak in his discussions with the BCTF was that the government was planning not to return these subjects to collective bargaining at all and that all the government needed to do to fix the unconstitutional legislation was for the government to engage in consultation."

"In any event, I find that the process followed in the post-Bill 28 discussions between the government and the BCTF did not involve collective bargaining or any similar employer-employee negotiations."

"BCPSEA was not an active participant at the table in the post-Bill 28 discussions between the government and BCTF. While some people on the government side of the table wore two hats and may have reported to BCPSEA, the discussions did not involve BCPSEA as a party."

Finding that the post-Bill 28 discussions were not collective bargaining, means that in Griffin's interpretation of Health Services and Fraser the discussions could not "cure" Bill 22 from violating the Charter.

The issue of whether or not the stripped Working Condition provisions were part of a collective agreement was discussed in paragraphs 428-430:
"The government argues in its written submission as follows:
The final point of clarification in Fraser, a critical one for present purposes, arises from Justice Rothstein's criticism that Health Services placed "contracts above statutes in the traditional hierarchy of laws" (Fraser, at para. 216). This interpretation of Health Services was expressly rejected by the majority in Fraser at para. 76. It was the nullification of collective agreement terms, coupled with the prohibition on future bargaining that violated s. 2(d) not that concluded collective agreement terms could not be legislatively overridden. In short, under the Health Services analysis contractual terms are not given hierarchy over statutes simply because they have been collectively rather than individually negotiated.

[Emphasis in Submission.]

"The government argues in essence that the legislative deletion of terms in a collective agreement, on its own, without a corresponding legislative prohibition on collective bargaining, can never be found to be unconstitutional."

"I respectfully disagree."

As you can see the legal issues are complex, but from the tone there is no question that Griffin found the government wrong on virtually all points. It is understandable that the government is frustrated by contract language that it felt it had every right to remove since had not been ratified by the employer but imposed by the legislature. Griffin dealt with that argument when she wrote (para 162): It was the fact that BCPSEA and BCTF ultimately made the legislated terms part of their collective agreement, that made these terms the product of collective bargaining. This defeated this aspect of the government's argument in the Bill 28 Action that because the results of its own negotiations with BCTF were not collective bargaining, hence interference with the results could not be interference with collective bargaining."

When the Appeal Court, and possibly the Supreme Court of Canada, rules on the Bill 22 Decision, it will write law that will determine the limits of government power when it comes to legislatively violating agreements. Whichever side wins, the consequences of the ultimate decision will be enormous for labour law, on limits to government power, on classroom size and composition and for the government budget.