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Teachers’ Union Wins Battle in Supreme Court of Canada

Top court restores contract provisions on class size, composition stripped by Liberal government.

By Katie Hyslop 10 Nov 2016 | TheTyee.ca

Katie Hyslop is The Tyee’s education and youth reporter. Find her previous stories here.

The BC Teachers’ Federation is claiming victory Thursday after the Supreme Court of Canada ruled in its favour in a 15-year legal battle over class size and composition provisions stripped from contracts by the BC Liberal government.

The decision, which came immediately after a three-hour hearing, restores language on class size, composition and specialist teachers removed from contracts by legislation in 2002, says BCTF president Glen Hansman.

The union says the legislation resulted in 3,500 teacher layoffs and more than $200 million in cuts to the education budget. Government could not confirm how many teaching positions were eliminated as a result of the legislation.

“Government is going to have to figure out ASAP where it’s going to get the money from, and work with us to get those teaching positions back in schools,” said Hansman, estimating the cost to be $250 to $300 million a year.

Finance Minister Mike de Jong confirmed the stripped language has been restored, but said it will serve as a basis for new negotiations on class size, composition and teacher-student ratios with the union — something both parties agreed to in the 2014 teachers’ contract.

De Jong refused to speculate on the cost of restoring the language, but said he was “somewhat relieved” by the speed of the court’s decision.

“Imagine this decision being handed down on Feb. 16, two days before a budget,” de Jong said. “We’re now in a position where we can sit down with the BCTF and begin the process of the negotiation that the court contemplated in its decision.”

The teachers’ contract removes their ability to file retroactive grievances based on the restored language. Instead the government paid the BCTF $105 million that was divided among the province’s more than 40,000 public school teachers.

The 2014 contract also included a $400-million Education Fund (also known as the Learning Improvement Fund) to address class size and composition issues over the five-year agreement.

The Supreme Court of Canada ruling follows the union’s challenge of a 2015 B.C. Court of Appeal decision. That decision overturned a B.C. Supreme Court judgment that declared the government’s class size and composition legislation, imposed during bargaining in 2012, was unconstitutional.

But the roots of the dispute lie in 2002 legislation introduced by then-education minister Christy Clark that stripped class size, composition and teacher-to-student ratios provisions from collective agreements.

Just two months after Clark became premier in February 2011, B.C. Supreme Court Justice Susan Griffin declared portions of Clark’s legislation banning negotiations on class size and composition and teacher-student ratios unconstitutional. Griffin ordered the government and union back to the negotiating table.

But after a year of fruitless negotiations and teacher job action, the passed Bill 22, which delayed class size and composition negotiations until a new contract was reached. The union returned to court, and in 2014 Griffin again declared government legislation banning class size and composition negotiations unconstitutional.

The government took the case to the B.C. Court of Appeal, which overturned Griffin’s decision in 2015.

The Supreme Court of Canada decision upholds the dissenting opinion of B.C. Court of Appeal Justice Ian Donald in that judgment.

Donald found that Griffin was correct in ruling that government’s consultations with the teachers prior to passing the 2012 legislation denying the right to negotiate class size and composition were not conducted in good faith, making the legislation unconstitutional.

De Jong said he did not know how much the court cases have cost taxpayers. However, he added he wouldn’t dispute the Supreme Court case alone is “maybe in excess of $1 million.”

Nevertheless, he maintained the expense was worth it because of the “important principles at stake.” Government now has a clear ruling from the court “around the broad issue of collective bargaining, and the circumstances in which it is appropriate or necessary and acceptable for the legislative branch of government to intervene in that process,” he said.

Asked what incentive the union had to agree to anything less than the fully restored 2001 contract language, de Jong pointed to an improved relationship with the union.

“Our most recent track record with the BCTF is one of success, and I’m optimistic that will continue,” he said.

Hansman says negotiations must start and conclude quickly.

“We’re not going to let them drag this on for another couple of years. They need to resolve this.”

Prior to today’s ruling, in the face of school district deficits and the threat of more school closures, the BCTF had promised to make education a big issue in next May’s provincial election.

That won’t change, Hansman said.

“This is not an issue that’s going to go away. Government could have resolved this a long time ago, and it chose to fight us tooth and nail through the courts instead of doing the right thing and respecting the original decision of Justice Griffin,” he said.

“They’ve always had on hand the dollars to be able to have proper staffing levels in our schools so that our members have reasonable workloads, and so that our students get the frontline supports they need.”  [Tyee]

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