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“I’ll teach you...!”

Collective agreements are under scrutiny at the Supreme Court.

Over the last few years, there have been a series of cases in BC so earth-shattering to labour law that the shockwaves are going to ripple to Cape Cod and back. But the game is not over just yet for the British Columbia Teacher’s Federation (BCTF).

Let’s introduce the players; wearing green and yellow are the BCTF, a teacher’s union in BC with no less than 41,000 members. They’re facing off against the BC Provincial Government (the “Province”), and you had better believe there is a heated, longstanding rivalry between these two teams right now.

Here’s why; back in 2002, the Province thought it would be fiscally responsible to pass a law called Bill 28, which voided hundreds of clauses in the BCTF collective agreement that dealt with issues like class sizes and accommodation for children with special needs; essentially, important teacher stuff. Put another way, Bill 28 took the power in the BCTF’s collective agreement to make decisions about things like class sizes, and gave it to the Province - permanently.

In response, the BCTF successfully nullified Bill 28 in 2011 at the British Columbia Superior Court, arguing that the Charter of Rights and Freedoms protected their collective agreement from that sort of legislative interference. The trial judge agreed with the BCTF, and gave the Province twelve months to perform the necessary surgery to make Bill 28 constitutional. Score is 1-0 for the BCTF, and the game ends.

Fast-forward to 2012. The twelve month timer has expired, and the Province reveals their new Bill, anointed ‘Bill 22’. The only problem is that the new Bill is identical to the old Bill in almost every way imaginable; the voiding of important collective agreement clauses remains. The Province claims, though, that Bill 22 should pass the constitutionality test this time around, for one reason: they consulted the BCTF before enacting it.

That turned some heads down at BCTF Headquarters, and they waste no time bringing Bill 22 (which is really just Bill 28 with a haircut) back to the judge at the BC Superior Court. In what must have felt like déjà-vu, the judge renders a second decision of unconstitutionality in favour of BCTF. Score is 1-0 again for BCTF, but this time, the Province appeals. They bring the issue to the next level, the BC Court of Appeal, where it is decided that Bill 22 does, in fact, pass the test of constitutionality. Their reasoning? That pre-legislative consultation (in other words, the talks that the Province had with BCTF prior to enacting Bill 22) means that the legislation did not infringe on the Charter, because the two parties ‘bargained’. Not only that, but because the BCTF Collective Agreements deals with public policy (their members are, after all, public school teachers), the Province gets a little more freeboard to edit the BCTF collective agreement unilaterally.

A point of contention by the BCTF is that the “pre-legislative consultation” in question was in itself a bit questionable. Although the meetings did occur, the Province stated from the outset that they were not going to alter their stance in any way, no matter what the BCTF proposed. So much so, in fact, that the Province’s representatives at the meetings acknowledged not even having read the clauses which were being discussed. Nor did the BCTF have any teeth to protest this behaviour; any strike activity would have been illegal given the situation.

So the Province scores a touchdown at the Appeal Court, tying everything up 1-1. Thus, here we stand at halftime, because the BCTF stole a page out of their opponent’s playbook, and have appealed to the next and final level - the Supreme Court.

There are arguments to be made for both positions, but we in the Legal corner are throwing our support to the BCTF’s side of the stadium. Because if the Province wins this one, you can bet that governments outside of BC will take full advantage of the fact that even if pre-legislative consultation is lop-sided, it can still be used to push through legislation that defies the Charter’s protection of collective bargaining. And, what’s worse, public service collective agreements risk taking an extra beating if the Supreme Court rules that governments have the authority to unilaterally alter employment terms, so long as they are ‘linked’ to public interest.

So stay tuned, because things are just warming up.

Publish Date: 08-MAR-2016 12:18 PM