BC Supreme Court decision on bargaining rights hands teachers a major victory

By David F. Rooney

In what amounts to a major victory for BC’s teachers, the Supreme Court has declared as unconstitutional and invalid the legislation that stripped teachers of collective bargaining rights in 2002.

In her decision, handed down on April 13, Madam Justice Susan Griffin found that Bills 27 and 28 were a substantial interference in bargaining rights and infringed on freedom of association guaranteed under the Charter of Rights. The decision could well prove to be an embarrassment for new Premier Christy Clark, who was the minister of education at the time that working and learning conditions clauses, such as class size, support for special needs, and hours of work were stripped from all subsequent collective agreements.

“This is mind boggling,” said Revelstoke Teachers Association President Bill MacFarlane. “You know I was in Vancouver when this came down and it’s still just sinking in.”

The ruling should have an immediate impact on the labour agreement process that has been underway between the British Columbia Teachers’ Federation and the government at the provincial level and “at the 60 local tables, of which Revelstoke is one,” MacFarlane said, adding that bargaining has been underway since March 1.

He pointed to three key paragraphs in Madame Justice Griffin’s decision — paragraphs 146, 160 and 380:

  • [146] The evidence that the government relied on in the hearing before me, to support its assertion that class size limits were causing hardships to students and parents, was anecdotal hearsay. It was so vague and unsubstantiated that it was impossible for BCTF to challenge it meaningfully. It would be unfair to give it any weight for the truth of its contents. However, members of government were told of these stories by BCPSEA in 2001, and may have believed them, and so it has some relevance as potentially informing the government objective of the challenged legislation.
  • [160] BCPSEA minutes of a board meeting on June 15, 2001 record a report by representatives of BCPSEA on their meeting with the Minister of Education, Christy Clark, and the Minister of Finance, Gary Farrell-Collins and ministry staff to discuss “teacher bargaining and essential services as well as a brief synopsis regarding the status of teacher bargaining with the BCTF and the possible outcomes if policies currently under consideration were enacted through legislation”. The minutes also record Mr. Finalyson reporting on the fact that BCPSEA had expended considerable time and effort working with the new government “regarding policy considerations that would impact on the K-12 sector. This work will continue over the coming months.”
  • [380] The legislation undoubtedly was seen by teachers as evidence that the government did not respect them or consider them to be valued contributors to the education system, having excluded them from any freedom to associate to influence their working conditions. This was a seriously deleterious effect of the legislation, one adversely disproportionate to any salutary effects revealed by the evidence.

Collective bargaining is “not a perfect tool” but remains “the best vehicle for for resolving differences between management and labour,” Madame Justice Griffin said. Further, she said that “giving workers a voice in the process of determining their working conditions, even where they are not substantially successful in advancing their position, is regarded as a means of increasing stability in the workplace.”

“We once again have the right to negotiate our working conditions,” MacFarlane said. “School boards (and the provincial government) can no longer use Bills 27 and 28 as a shield to hide behind.”

The local school board “must bear some responsibility for not speaking out against the inequity of government’s strategy at the time (in 2002).”

Alan Chell, chairman of Revelstoke’s School District 19, was not immediately available for comment.

Please click here to read the decision in its entirety.