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Court grants government stay on teacher ruling

The B.C. Court of Appeal has ruled government does not have to return provincial classrooms to 2002 class size and composition rules before its appeal of the recent teachers' union court case on bargaining rights is heard later this spring.

The decision comes as a response to government lawyers' request to hold off on hiring more teachers in order to meet the recent court order granting teachers the right to bargain class size and composition as they did in 2002.

Government argued if their appeal is granted, it could cause "irreparable harm" to make changes to class size and composition they didn't need to make.

Justice David Harris agreed, granting government's stay of the ruling until the appeal is heard, which could be as early as May. In his ruling, Harris said government's evidence about the significant cost and disruption of meeting those requirements was enough to validate a stay.

"There is every reason to anticipate that beginning to implement the restored clauses of the collective agreement may well lead to substantial disruption of several kinds. First, with respect to staffing, non-teaching staff may have to be laid off, it may be impossible to recruit qualified teachers to the required staffing levels, and teachers who are not fully qualified may have to be hired. Second, with respect to school programmes, some may have to be cancelled, student choice may be limited, or access to programmes restricted. These consequences may affect special needs students and affect programmes for vulnerable youth. Third, with respect to space and classroom availability, new portables will be needed and students may have to be transferred to other schools or boundaries changed because of a lack of space in existing schools. Those space constraints may also lead to the closure of day care centres and StrongStart programmes, and lead to the disruption of existing agreements with third parties for the use of school space. Current expectations of students and parents about which schools students will attend and what programmes will be available to them are cast in doubt."

Harris also ruled the teachers' union, which wants to send its members their arguments from the recent court case, would have to wait until the appeal decision is handed down. The arguments contain un-redacted quotes from confidential court documents that could harm cabinet confidentiality if released before an appeal is heard, he said.

"If the stay is not granted, the Province will suffer irreparable harm. If the appeal should succeed and the Province is constitutionally entitled to maintain confidentiality over the Cabinet documents referred to in the argument, that confidentiality will be irretrievably lost if the written submission is disseminated to the membership of the BCTF. Not only will the appeal be rendered moot, but there will have been a public dissemination of constitutionally protected confidential information. That harm cannot be undone."

Justice Harris maintained his decision was not a reflection on the merits of the appeal itself.

In a scrum with reporters this morning, Education Minister Peter Fassbender said he was pleased with the decision and government would "now allow the court process to take its natural course" and will return to the bargaining table to negotiate a teachers' contract.

"I want to thank all the school districts that submitted affidavits to the court that really showed the impact of the judgment. I think that had a large part to play in us being able to move forward now and see the justice process take its full course," said Fassbender, adding all the "pieces are in place" for the appeal to go forward.

BC Teachers' Federation President Jim Iker said he hoped that decision means the appeal will happen soon, as he is confident it will uphold Justice Griffin's decision. In the meantime he said the stay won't affect contract negotiations, which resume March 4.

"We had already put proposals on class size at the bargaining table -- and class composition and minimum specialist [teacher to student] ratios -- and the proposal that we put on the bargaining table actually mirrors the restoration of the provisions," said Iker. "And we don’t think that's unreasonable at all."

Iker also responded to comments made yesterday by Peter Cameron, government's lead negotiator at the bargaining table, about how the union shouldn't be conducting a strike vote on March 4 to 6 when it hadn't yet tabled a salary proposal. The teachers' union president said all its proposals were tabled March 12, 2013, including one asking for a salary increase to meet the cost of living in B.C.

"We haven't put a number on the table, but we've given an indication to government that we're looking for cost of living, as well as a market adjustment to address the gap between teachers in British Columbia and teachers across Canada," he said.

The union maintains teacher salaries in the province are some of the lowest in the country.

There have been plenty of opportunities, the union feels, to take a strike vote before this, including when government replaced the BC Public School Employers Association’s negotiating team at the table with Cameron. But Iker said the union wanted to reach a negotiated settlement with government.

"But the time had come: we'd had government making public messages about labour stability and peace and working with the BC Teachers' Federation," said Iker. "But their message at the bargaining table is not the message they say publicly."

Katie Hyslop reports on education and youth issues for The Tyee Solutions Society. Follow her on Twitter.

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