A judge has ruled that the British Columbia government was so hung up on provoking its public school teachers into strike action that it failed to negotiate in good faith, costing the province $2-million in damages.
In a 12-year battle over legislation that eliminated teachers’ rights to bargain on issues such as class size and composition, a B.C. Supreme Court judge has concluded – for the second time – that the law is unconstitutional.
Justice Susan Griffin said in a 115-page ruling, released Jan. 27, 2014, that the government didn’t bargain in good faith with the BC Teachers’ Federation after a court decision struck down the legislation, Bill 28, in 2011.
“One of the problems was that the government representatives were pre-occupied by another strategy,” Justice Griffin wrote. “Their strategy was to put such pressure on the union that it would provoke a strike by the union. The government representative thought this would give government the opportunity to gain political support for imposing legislation on the union.”
The judge said that the government’s extension of legislation that was already declared unconstitutional was so “fundamentally unfair” that awarding damages of $2-million against it is warranted.
But Education Minister Peter Fassbender denied wanting to goad teachers into a strike, saying the government is focused on students and long-term stability in schools.
“Those kinds of comments just inflame the situation,” he told reporters. “The reality is every meeting I’ve had with the BCTF, it has been about finding collaboration and co-operation.”
Mr. Fassbender said the government will be reviewing the court decision, and it is too early to make any statements about a possible appeal.
“As government, we’re disappointed in the ruling, but what we need to do is to sit down and look at the implications,” he said. “We’re really concerned about student outcomes and that’s where our focus has been and that’s where it’s going to continue to be.”
Opposition New Democrat education critic Rob Fleming said the ruling hurts the government’s credibility on its education agenda.
In 2002, Bill 28 removed issues such as class size and class composition from the teachers’ collective agreement. It also stripped their rights to negotiate them in the future.
In April, 2011, Justice Griffin ruled the legislation was unconstitutional and gave the government a year to address the repercussions of the ruling. The government did not repeal the legislation, but instead enacted “virtually identical legislation” after the 12-month period expired, Justice Griffin said in the most recent ruling.
The new legislation, Bill 22, still eliminated class size and composition from the contract and prohibited teachers from bargaining those terms, but the prohibition would expire by June 30, 2013.
The law sparked a three-day walkout by teachers in March, 2012, and also prompted the federation to return to court last September. The government, in its defence, said the new legislation is valid because of its time-limited nature, and because it negotiated with the union in good faith before enacting the new rules.
But Justice Griffin found Bill 22 just as unconstitutional as Bill 28. “The court concludes that there is no basis for distinguishing the new legislation from the previous findings of this court,” she said.
The judge also wrote in her decision that the negotiations that took place between the province’s team and union representatives were “largely a waste of time.”
The government’s team, led by former president and CEO of the Public Sector Employers’ Council Paul Straszak, believed the legislation was legitimate, just that it had failed to consult with the union prior to introducing it. It thought all that was needed to make the legislation constitutional was consultation – a conclusion condemned by Justice Griffin as incorrect.
“A party cannot say it is consulting if it starts from the position that its mind is made up no matter what the other side presents by way of evidence or concerns,” she said.
The decision means terms such as class size and class composition are retroactively restored to the terms of the contract and can be the subject of future bargaining.
BCTF president Jim Iker called Monday’s ruling a triumph for teachers who have fought long and hard against a law that shortchanged a generation of children in B.C.
“These kids have gone to school in larger classes, and they’ve had less access to specialists like learning assistance teachers … and special education resource teachers,” he told reporters. “Their entire education, 12 full years, has been in an era of cutbacks, reduced services and underfunding.”
Mr. Iker said he expects the province to respect the court’s ruling and bargain in good faith from now on.