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Government seeks delay to teacher bargaining changes

The B.C. government and the teachers' union were back in court again today, this time with government requesting the right to not meet the class size and composition requirements in current teacher bargaining negotiations until its appeal.

The government argues that meeting these requirements -- which set limits on the number of special needs students per class, and mandate a minimum number of specialists like teacher librarians and counsellors per certain number of students -- would cost government over $1 billion to implement and result in school closures and program cancellations, disrupting student learning.

The request comes in response to a ruling made by Justice Susan Griffin last month, which found government had unconstitutionally prevented teachers from bargaining their working conditions, specifically class size and composition, in 2011 and 2012.

The case followed another 2011 case, in which Griffin ruled the government’s stripping of class size and composition bargaining rights from teachers’ collective agreements in 2002 was unconstitutional. At the time, she gave the government one year to find a solution on the issue.

The government’s response was the Education Improvement Act, which set hard limits on class size* and prevented teachers from bargaining them until after a one-year collective agreement had been reached.

Griffin’s ruling last month found the Act was also unconstitutional. She declared government must restore the class size and composition language found in the 2002 teacher contracts, which government had previously stripped.

The government is also requesting the union not be allowed to send its arguments from the case to its 40,000 plus members. The arguments include quotes from un-redacted cabinet documents the government argues must remain confidential, otherwise it runs the risk of preventing future cabinets from having “full and frank discussion” behind closed doors.

The “stay” of the ruling government is requesting would be in place until the B.C. Court of Appeal has a chance to rule on Griffin’s decision, which could happen as early as May. Griffin granted the government 31 days to argue for the stay. That timeline runs out midnight on Feb. 27.

Today in court, government lawyer Karen Horsman said there is no current ban on bargaining class size and composition, and in fact teachers are currently bargaining these conditions in ongoing contract negotiations.

However, citing evidence from the superintendents of Surrey, Abbotsford, Peace River South, and Southeast Kootenay, Horsman argued that immediately reverting to 2002 bargaining language would cost districts millions of dollars, and may require them to hire less non-teacher employees like education assistants, in addition to shutting down specialty programs like Strong Starts, daycares, and other community services that take place in their schools in order to provide extra classroom space.

Horsman said the government must announce education funding for the 2014/15 school year by March 15, meaning any additional funding for hiring teachers or buying portable classrooms to accommodate larger classrooms would need to be included.

The government is not arguing with Griffin's requirement it pay the union $2 million in damages. Horsman said the government could easily recoup that expense if the appeal decision is in government's favour.

The recent provincial budget announcement indicated no new funding for education, which the teachers’ union President Jim Iker said is actually a funding decrease when inflation is considered.

Union counsel said this is the first time government has raised the prohibitive cost of negotiating class size and composition. Union lawyer John Rogers argued its cost calculations are wrong, too, as it accounts for hiring teachers with 10 years experience, not new teachers, whose lower salaries would cut government’s cost estimates by a third.

The union added teachers have already agreed to grant an extension to class size and composition until September to prevent disruption to the current school year. Rogers said previous to the contract stripping of 2002, local union representatives and school districts had the flexibility to negotiate changes to the size and composition rules if a district didn’t have the funds or classroom space required. The union is open to having that flexibility again.

Rogers took issue with the fact government doesn’t mind paying the $2 million, too, saying it makes more sense to pay use the money to hire more teachers.

Outside the court, BC Teachers' Federation President Jim Iker agreed, adding complaints about cost come too late when it was government funding cuts that created this issue.

“We've seen about 200 schools close across this province: districts were forced to close schools because of the underfunding,” he said, adding government underfunds education by $1,000 per student compared to the national average.

“Let's sit down. Restored provisions are in, so let's work out a way so that we can do this for September. We're not asking that classrooms be changed around in any way right now, we've got some time. But government does need to put the necessary funding in.”

A court decision on government’s request of a stay is expected some time next week.

*Updated: February 21, 2:26 p.m. Previously said "and composition". This was incorrect.

Katie Hyslop reports on education and youth issues. Follow her on Twitter.

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