By Graeme McFarlane

The importance of true collective bargaining has been once again highlighted in British Columbia. The British Columbia Government has been ordered to pay the British Columbia Teachers’ Federation $2 million in damages for once again breaching teachers’ constitutional rights.

Pertaining to Class Acts
The case before the court has had a long and storied past. In 2002, the government proclaimed the Public Education Flexibility and Choice Act otherwise known as Bill 28. That statute removed from collective bargaining certain items like class size and class composition. Any terms in the then collective agreement relating to those items were declared void. In conjunction with this step, the provincial government also amended the School Act to increase class sizes.

In 2011, following a Supreme Court of Canada in an associated case relating to Bill 29 (a case that involved interfering with collective agreements in the health sector), British Columbia Supreme Court Justice Susan Griffin, decided that Bill 28 was unconstitutional, and she struck it down. The portions of the Bill that interfered with teacher’s collective bargaining rights were declared void. However, the government was give 12 months to fix the problems described in the decision.

The government did not appeal that decision, and in the 12 month period engaged in a process of consultation with the Union. It offered to spend $165 million over three years to address class composition issues. However, the government did not take action to revive any of the rights struck out be Bill 29.

Net Zero Mandate No Negotiation Assist
Just as the 12 month grace period was about to expire, the government passed Bill 22, the Education Improvement Act. The government also enacted two regulations that provided some additional funding for class size increases and class composition. However, this Act essentially repealed Bill 29 and then re-enacted very similar provisions. This statute also appointed a mediator who was to assist the parties to settle the terms of a new collective agreement, but any such settlement was limited by the government’s net zero mandate. This provision meant that the employer could not agree to any term that would have the effect of raising the cost to government.

The parties were able to reach an agreement under these constraints. However, after the agreement was ratified, the Union filed a lawsuit claiming that the government had failed to bargain in good faith and had “re-breached” the teacher’s charter rights in various ways including by re-enacting illegal terms.

Bargaining Below the Belt
In a scathing decision, the judge agreed with the Union and allowed the vast majority of its claims. She held that the Education Improvement Act was legally indistinguishable from Bill 28. It too, substantially interfered with teachers’ Charter rights. The statutes were declared void and the terms deleted from the teachers’ collective agreements were restored. The Union was also awarded $2 million in damages.
The judge also went on to discuss the “consultation” that occurred between the parties. She held that the process was no meaningful consultation. In discussing this aspect she said that “[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.” This position was described as being “manifestly unreasonable.”

Provoking Stoppages, Incurring Ire
The judge further criticized the government for playing politics. She found that notwithstanding that no strike had occurred, the government had acted in a way so as to provoke a work stoppage. In her view, such a strike would allow the government to enact legislation against the teachers that the public might support where otherwise it would not. As a result of this failure to consult, the legislative interference was viewed as being more serious.

The government has appealed this decision. It applied for and received a stay of the decision pending that appeal. If the stay had not been granted, the government would have been forced to hire a large number of additional teachers to bring the class sizes down to the 2002 levels.

Duty to Consult Driven Home
This case is important to employers because it provides guidance on the duty to consult in the governmental context. Some commentators had suggested the notion that only a surface consultation with the union in name will suffice. That proposition cannot stand, and if this case is upheld, governments will be required to allow for meaningful consultation before enacting legislation that has the potential effect of infringing on constitutional rights.

The end of this saga has not yet been written. Stay tuned.

Graeme McFarlane is a partner at Roper Greyell LLP which is a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk Spring 2014)