Teachers’ rights at issue in case
Court of Appeal hearing arguments for and against restoring class size rules to contract
Three weeks after the end of their strike, teachers and the government are fighting again.
This time, it’s in a B. C. courtroom, where a panel of five judges are to hear the government appeal of Justice Susan Griffin’s decision earlier this year to restore 2002 classroom composition rules, class size rules and specialist teacher ratios to the teachers’ contract.
For the government, the case is about its ability to legislate collective agreements and how the rights of employees should be balanced with government fiscal policy. For the teachers, the case is about their constitutional right to bargain about working conditions.
Griffin has twice ruled that government action in legislating contracts for teachers, in 2002 and 2012, infringed on their constitutional rights.
Should Griffin’s ruling be upheld and the working condition rules restored to contracts, hundreds of teachers would need to be hired and millions of dollars added to provincial education budgets, according to affidavits submitted to the court this year by school superintendents.
Surrey would need to hire 445 new teachers, including 273 teacher- librarians, English as a second language teachers, school counsellors and teachers who help struggling and special needs students, at a cost of $ 40 million a year, Surrey’s superintendent of schools Jordan Tinney said in his affidavit.
Vancouver was not represented in the affidavits, but earlier this year, Vancouver school board chairwoman Patti Bacchus said her board estimates it would cost an additional $ 47 million a year to restore service levels to those provided in 2002.
Other figures given in the affidavits include 228 teachers needed in Langley ($ 20.1 million), 277 in Coquitlam ($ 26.3 million), 52 in Kamloops-Thompson ($ 4.6 million) and 34 in Delta ($ 3.4 million).
In 2002, the Liberal government stripped class size, class composition and specialist teacher provisions from the teachers’ contract and passed a law denying teachers the right to bargain those issues in the future. The government also imposed a contract by legislation in 2012.
The latest contract was by negotiation and was reached in mid- September after students missed five weeks of classes to the strike. It includes a provision allowing the contract to be reopened if the final court judgment restores the 2002 contract’s working condition clauses. If that happens, the parties would bargain from the basis of the restored language.
But first, the B. C. Court of Appeal must rule on the case. It is trying the case Oct. 14 to 16, and then will likely take several months to issue a ruling. And, after that, the losing side is expected to go to the Supreme Court of Canada, a process that could take several years.
Questions at the heart of the case include whether the government can legislate away contract terms, what the term “consultation” means and whether consultation adequately addresses the constitutional right of association.
Government lawyers, led by Karen Horsman, will argue that Griffin was wrong in her assessment of the government’s motives, that legislation preceded by consultation is a tool government can use to end a labour dispute without sacrificing fiscal and policy imperatives and that collective agreement terms are not constitutional entitlements. They will argue that what the Constitution protects is the activity of association, not its outcome. The government will argue that it acted in good faith, by consulting with the union, the B. C. Teachers Federation, before legislating the 2012 contract.
“More importantly, government considers class size limits, formulas and staffing ratios to be an inefficient means of allocating funding, unresponsive to actual school need, and restrictive in terms of the ability of school districts to offer a range of school programming,” the government case states. “The issue with the deleted clauses, accordingly, is not simply how much money should be spent on K- 12 education, but how it is to be spent and who should make such decisions.
“Legislation, while perhaps a blunt tool for resolving impasse, is at times a necessary one. The threat of legislation itself may act as a settlement pressure in a controlled strike model where the usual pressures are either absent or modified.”
Griffin’s ruling said “the government discussions with the union did not cure the unconstitutionality of the legislation.”
As Sun columnist Vaughn Palmer reported in February, the government side added Vancouver lawyer Howard Shapray, “a heavyweight in every reckoning” to the appeal effort. Shapray was successful in getting a stay of the Griffin judgment, pending the appeal.
The issue with the deleted clauses, accordingly, is not simply how much money should be spent on K- 12 education, but how it is to be spent and who should make such decisions. EXCERPT FROM LEGAL BRIEF LIBERAL GOVERNMENT
During the appeal case, Shapray will address only the aspects of the case that deal with the disclosure of cabinet documents.
BCTF lawyers, led by John Rogers, will argue that Griffin’s judgment is correct and should stand. They will argue that pre- legislative consultation isn’t enough to ensure a person’s rights are protected.
“The appellant’s argument that prelegislative consultation is sufficient would result in a judicial ‘ no go’ zone. It would allow the governments to ignore fundamental constitutional rights and freedoms as long as they notified citizens and ‘ consulted’ with them prior to eliminating their rights,” the BCTF case states.
“Such an interpretation would not be acceptable when interpreting other Charter rights. We do not accept that other freedoms — such as freedom of expression and freedom of religion — can be restricted as long as the citizens affected are ‘ consulted’ first. We would not accept that legislation could prohibit free speech so long as the government first ‘ consulted’ with those who intended to speak.
“This appeal is not about government’s ability to legislate collective agreement terms that a union views as unfavourable. This appeal is about fundamental freedoms and teachers’ rights protected by ... the Canadian Charter of Rights and Freedoms.”
Both, B. C. Education Minister Peter Fassbender and BCTF president Jim Iker refused to comment, saying the case is before the courts.
Significant portions of the arguments filed by both sides are redacted — literally blacked out — presumably to protect cabinet privilege on the issue of whether the government was bargaining in good faith in 2012. Griffin has ruled that the government was deliberately trying to provoke a strike by teachers in 2012, to build support for legislation it wanted to introduce.
The Coalition of B. C. Businesses was granted intervener status in the case earlier this year and will argue that the case must consider that public sector bargaining includes balancing terms and conditions of employment with the public interest and that governments must be able to amend collective agreements when it is in the public interest to do so, as long as “meaningful consultation and negotiation” takes place first.
“Depriving the government of the capacity to modify collective bargaining and labour relations regimes generally, and the terms and conditions of employment of public sector workers specifically, can have important economic, as well as social, repercussions,” the Coalition’s argument states. “The ability to legislate where negotiation does not produce outcomes in the public interest operates as a democratic safety- valve.”