BC government appeals court ruling slamming its abuse of bargaining rights of teachers

By Roger Annis, Feb 11, 2014

VANCOUVER — The British Columbia government has decided it will appeal a damning BC Supreme Court ruling on January 27 that said the province has grossly violated the bargaining rights of teachers since 2002.

As reported previously in Rank and File.ca, the court voided 2002 legislation that stripped teachers of the right to bargain class sizes and special education services. It said the government interfered with and violated the right to collective bargaining in other ways, too.

The judge’s ruling means that the actions of education authorities since 2002 are now subject to review and appeal. She also awarded $2 million in damages to the B.C. Teachers’ Federation. (See below an open letter by the Vancouver School Board to Premier Clark and Minister Fassbender dated Feb 12, 2014 insisting that the government not offload onto school boards the financial consequences of the government’s fiasco over its court loss.)

The court ruling and the government’s decision to appeal it has sparked a broad discussion on public education in the province, focused on the failings of 12 years of cuts to education services by successive Liberal governments and the harsh attacks on bargaining rights that have facilitated that.

Education Minister Peter Fassbender explained the government’s decision to appeal the ruling by saying, “In practical terms, the judgment is completely unaffordable for taxpayers.”

BCTF President Jim Iker responded to the decision to appeal the judge’s ruling at a news conference on Feb. 4. He said, “By announcing their intent to appeal B.C. teachers’ important and historic court victory, Christy Clark’s government has shown they think they are above the law.

“The government has broken the law, the Constitution, twice. But, they continue to put their own political agenda before students.”

In her ruling, Justice Susan Griffin’s said Clark’s government deliberately sought to provoke a strike of teachers as part of its stonewalling during a tough round of collective bargaining in 2011-12. The government believed this would help to swing public opinion to its view that funding for public education should remain frozen, including if it proceeded to declare strike action to be ‘illegal’.

The judge wrote, “The government thought that a teachers’ strike would give the government a political advantage in imposing legislation that the public might otherwise not support.”

Ultimately, the government was forced into a standoff in the form of a mediated settlement in June 2012 that left disputed issues such as classroom sizes unresolved. Teachers had waged three days of rotating strikes in March, at which time the government brought in draconian legislation (Bill 22) that ordered an end to any such action.

The BC Teachers Federation wants to see the government documents that Justice Griffin viewed in making her determination about the government’s conduct in those negotiations. She issued a publication ban during her proceedings, in the name of protecting cabinet confidentiality. That ban will soon be up for renewal.

Minister Fassbender falsely claims that the ruling could cost up to $1 billion. He also denies there was a policy to provoke teachers. He has taken the unusual step of e-mailing his interpretation of the court decision to all teachers in the province. B.C. Teachers’ Federation president Jim Iker says the letter is historically inaccurate.

A press release by the BCTF on January 27 notes the following about what has happened to public education in BC since 2002:

• BC is last on seven key measures of education funding in Canada.
• BC is second worst in terms of per-student funding at $1,000 less than the national average. Only PEI is doing worse.
• BC has the country’s worst student-educator ratio.
• There are over 16,000 classes, 25 per cent of BC’s total, with four or more children with special needs in them. That is an increase of 70 per cent since 2006.
• BC has lost 1,400 specialist teachers since 2002 even as the need for their services has gone up significantly. Close to 700 special education teachers, over 100 counsellors, and 300 teacher-librarians have all been cut from the system.

The string of court rulings on education is the second such legal rebuke of BC government anti-union policy. In 2007, the Supreme Court of Canada ruled that the Liberal government violated the Canadian Constitution in 2002 when it tore up collective agreements in the public health care system. The government privatized more than 7,000 non-medical jobs in hospitals and cut the salaries and benefits of remaining employees. The court said the government violated its obligation to negotiate in good faith with the affected unions, notably the Hospital Employees Union (a division of CUPE).

The remedial measures of that ruling were limited to financial compensation for the more than 7,000 workers who lost their jobs as public service workers ($68 million in total). But the HEU built on the court ruling to assert anew its right to negotiate over any further contracting out of jobs, and it convinced most privatized workers to join the union. Together, the workers and the union won important improvements to the exceptionally low wages and work conditions to which the original government action had condemned them.

Writing about the 2007 decision, Michael Lynk, associate professor of law at the University of Western Ontario, said, “As with any Supreme Court decision, Charter watchers must avoid the temptations of irrational exuberance… For all its constitutional vigour, the Supreme Court’s ruling has visible weaknesses: the ‘substantial interference’ standard is quite demanding, and the decision’s focus on legislative process may well enable cunning governments to meet the consultation requirements without curbing their objective of rolling back statutory or bargained employment rights.”

Bargaining for a new collective agreement with teachers is underway. The government’s decision to appeal its harsh losses in the courts will only delay and complicate matters.

In other public sector bargaining, the government has signed five-year collective agreements with some 67,000 public sector workers. These contain wage increases of 5.5%. Most of the affected workers are members of the BC Government and Services Employees Union; they also include the 16,000 members of the Health Sciences Association (health professionals).

The new agreements introduce a novel feature. The government says it would pay up to one half a per cent wage increase for each year that growth in provincial GDP exceeds a pre-determined formula.

There are app. 300,000 unionized public sector workers in British Columbia, including some 40,000 teachers. The province has the smallest per capita public sector of all provinces in Canada.

Two postscripts:

1. On Feb. 13, the NDP opposition read out in the provincial legislature excerpts it had obtained of the testimony before Justice Susan Griffin last September of Paul Straszak, the government’s chief negotiator with teachers in 2011-12. Under cross-examination by the lawyer representing the BCTF, Straszak was asked, “So your objective as government was to increase the pressure on teachers to have them go out on a full-scale strike?” Straszak answered, “Yes, I’ll say that’s correct.”

Premier Christy Clark and Education Minister Peter Fassbender have emphatically denied that such a strategy existed. So they were asked in the Legislature on Feb. 13 if Straszak had perjured himself in his testimony. Attorney General Suzanne Anton, until recently a failed Vancouver municipal politician, refused to answer that question.