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Court Sides with BC Gov't in Battle over Teacher Bargaining Rights

Ruling a stunning setback for province's 40,000 educators.

By Rod Mickleburgh 30 Apr 2015 | TheTyee.ca

Rod Mickleburgh was a journalist at the Globe and Mail for 22 years, until leaving the paper last year. He is currently freelancing and writing a blog.

One of the most hotly-anticipated court rulings in years has resulted in a stunning setback for British Columbia's 40,000 teachers.

A five-judge panel of the B.C. Court of Appeal found Thursday that provincial government legislation imposing contract terms on members of the BC Teachers' Federation in 2012 was constitutional. The appeal court further ruled that the government had, in fact, bargained in good faith with the union, before introducing the legislation that ended months of teacher job action.

The two findings overturned a landmark B.C. Supreme Court decision early last year by Justice Susan Griffin that provided the teachers with a huge legal victory. Justice Griffin ruled not only that the 2012 legislation contravened the teachers' Charter rights to free collective bargaining, but also that the government was guilty of bad faith bargaining by trying to provoke an all-out teachers' strike. She fined the government $2 million. The government appealed her decision.

At the heart of the long, bitter wrangle is the teachers' ongoing fight to regain their right to negotiate class size and class composition as part of their working conditions. They lost those rights back in 2002, when the Gordon Campbell government unilaterally stripped them from their contract.

Judge Griffin ordered them restored in an earlier ruling in 2011. But a year later, after months of on-and-off consultation with the BCTF, the government now headed by Premier Christy Clark moved again to impose contract conditions on the union that did not include any right to bargain class size and class composition.

The appeal court ruling, which included a dissent by Justice Ian Donald, rejected Justice Griffin's conclusion that the government's pre-legislation consultation with the teachers was irrelevant.

"In our opinion, teachers were afforded a meaningful process in which to advance their collective aspirations," the court said. "Their freedom of association was respected."

In its lengthy decision, co-authored by B.C. Chief Justice Robert Bauman and Justice David Harris, the appeal court also found that Justice Griffin's determination that the B.C. government had not bargained in good faith was based on "legal error and must be set aside.

"Courts are poorly equipped to make such assessments," the appeal court said. "What matters in this case is the quality of the consultation process, itself, and whether it gave teachers a meaningful opportunity to make collective representations (through the BCTF) about their shared workplace goals. We find that it did."

In a separate ruling, the appeal court overturned another of Justice Griffin's decisions: that parts of confidential cabinet documents related to the case could be made public, when they were referred to in court by BCTF lawyers. The appeal court judges said an earlier condition that the documents would remain confidential should not have been varied by Justice Griffin. "The fact that counsel for BCTF read out portions of the confidential documents in open court does not change [this]."

Union aiming for top court

BCTF President Jim Iker wasted little time saying the union will seek leave to appeal the ruling to the Supreme Court of Canada. He told a hastily called news conference that he was "very disappointed" by the decision. "[It] goes too far," Iker said. "This is not the decision teachers had hoped for."

Canada's top court has made several strong recent judgements asserting that a union's right to free collective bargaining is included in the Charter of Rights and Freedom.

The union head said the government should not be able to dictate what it wants through legislation, rather than negotiation. "The government was wrong [to do so]."

Iker praised the strong opinion by dissenting appeal court Justice Donald, who said he agreed with Justice Griffin that the 2012 legislation was unconstitutional.

The premier gave a statement on the ruling to reporters at the legislature on Thursday, but did not take questions. "We are very pleased with the outcome of the decision from the B.C. Court of Appeal," said Clark. "It was a very clear and unambiguous decision."

The ruling presents "a chance for us to focus on doing what's really best for kids, and for students, by working together," Clark said. "My view has always been that the education system will work better for teachers and for students and for citizens if we find a way to put the disputes of adults behind us."

Education Minister Peter Fassbender said the government's priority is to act in the best interests of students. "Today is another step where we can lay down the gauntlet to each other and say we're going to focus on student outcomes, we're going to focus on the future of education, we're going to build on a system that is great and has the ability to continue to move forward in a very fast moving world."

The ruling will prompt a huge sigh of relief from Clark and Finance Minister Mike de Jong, who had been worried about the impact of a teacher legal victory on the government's bottom line. It had been estimated that forcing the government to restore pre-2002 classroom limits would cost the provincial treasury at least $300 million a year.

The teachers' protracted struggle to regain their right to negotiate class size and class composition, including numbers of students and special-needs kids, finally came to a head last summer with a five-week strike, the longest teacher walkout in B.C. history. Although the six-year contract that returned teachers to their classrooms settled some of the outstanding matters, the two sides agreed to put off the main issue until it was finally settled by the courts.

Thursday's verdict caps off five years of legal wrangling in B.C. courts over the controversial legislation passed by successive Liberal governments that wiped out the right of teachers to negotiate classroom working conditions. The BCTF first won that right under the NDP government of Glen Clark, in return for accepting a wage freeze.

With files from Tyee legislative bureau chief Andrew MacLeod.  [Tyee]

DISSENTING JUDGE'S VIEW

Before the Court of Appeal, B.C. government lawyers had argued that the legislation in question went beyond normal collective bargaining matters such as job security and seniority to address resource allocation and education policy issues for which the province is politically accountable.

"The Province says that during the 12-month suspension it consulted with teachers in good faith, in a matter that respected their freedom of association," the appeal court recounted.

In a lengthy dissent, however, veteran Justice Ian Donald referred to the position of the Supreme Court of Canada "that [the Charter] does not protect a particular regime for collective bargaining, but instead is a bulwark that protects the ability of employees to pursue workplace goals collectively."

He said his appeal court colleagues erred by disregarding "key findings of fact" made by Justice Griffin, which were based on the lengthy history of the dispute between the province and the BCTF. She concluded that pre-legislation consultation was irrelevant, given the government's strategy to provoke the teachers onto the picket line. 

Justice Donald said the appeal court's decision would allow governments to pass whatever legislation it wants and "spend all consultation periods repeatedly saying: 'Sorry, this is as far as we can go.'" He said this would make "a mockery of the concept of collective bargaining." -- Rod Mickleburgh

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