It is a great time now for free collective bargaining as key provisions of Bill 28, the Public Education Flexibility and Choice Act (PEFCA), 2002 and of Bill 27, the Education Services Collective Agreement Amendment Act (ESCAA), 2004, were declared unconstitutional and invalid. The overall effects of certain sections of these bills were to remove the ability of teachers to negotiate collective agreement terms regarding class size, composition, and student/teacher ratios. Related terms in the collective agreement were also rendered void, and those terms replacing voided terms were deemed non-negotiable. An arbitrator was appointed to delete hundreds of provisions from the collective agreement, and although a BC Supreme Court judge found that the arbitrator had made errors of law in doing so, ESCAA 2004, Bill 27 reinstated and implemented the arbitrator’s decision.
Other repercussions of these bills, which were introduced as legislation by our new premier, Christy Clark, in her days as education minister, were restrictions on negotiating school calendaring and hours and days of work.
BC Supreme Court Judge Susan Griffin made her decision on April 13, 2011 as to whether the provisions in these bills breached the guarantee of freedom of association in s.2(d) of the Canadian Charter of Rights and Freedoms. In her decision she determined that:
- “The government’s arguments do not overcome the clear result of ss. 8 and 9 of PEFCA. On the analysis set out in Health Services, ss. 8 and 9 of PEFCA interfered with collective bargaining. By rendering void provisions that had previously been included in a collective agreement, and prohibiting collective bargaining on the same subjects in the future, these provisions rendered past bargaining and future bargaining on these matters meaningless.”
- In regard to s. 15 of PEFCA, “[t]he legislation effectively took away the teachers’ right to negotiate over their required hours of work or length of the school year. How many hours of work an employee must work in a day and year is clearly a fundamental working condition…By prohibiting the inclusion of terms in a collective agreement dealing with hours and days of work, s. 15 of PEFCA rendered meaningless future collective bargaining on these issues. It therefore interfered with collective bargaining.”
- In regard to whether the interference caused by the deletion of provisions was substantial, “[i]f an employment term is important to the workers’ conditions of employment, and the ability to collectively bargain on it is negated by government action, this seriously undermines the whole point of collective bargaining for the workers and their substantive freedom to associate. This is so even though freedom of association does not guarantee any specific outcome of collective bargaining. The mere fact that workers are prohibited from bringing significant issues to the bargaining table, regardless of outcome, is an interference with their right to freely associate to try to influence these issues.”
- “It is clear from the history of teachers’ labour relations that they have long considered their working conditions a significant priority to be negotiated collectively, and this includes the conditions of class size and composition, non-enrolling ratios, and hours of work. I conclude that the legislation purging the collective agreement of these matters, and prohibiting future collective bargaining over these matters, interfered with the teachers’ ability to come together to collectively pursue goals, and significantly undermined the teachers’ s.2(d) Charter guarantee of freedom of association.”
- “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”, she concluded.
In summary, the BCTF are able to declare a victory against the government’s attempt to limit, restrict and in some instances completely strip them of their second Charter right of freedom of association, which we hope will have a positive impact on future free collective bargaining across the country.
For more information on this decision visit Lancaster House.
British Columbia Teachers’ Federation v. British Columbia
British Columbia Supreme Court
Justice Susan Griffin
April 13, 2011
 B.C.J. No. 675 (QL)