Bill 22 has mandated the end to teacher job action in BC. Teachers have decried this bill as being unconstitutional. But for some reason, despite that assertion, teachers are not challenging the bill. Their work-to-contract campaign protests, but does not challenge. The only way to test whether a law is supported by the constitution is to violate it. This is the heart of civiil disobedience. In the case of Bill 22, disobedience means full scale walkout.
Violation of Bill 22 is particularly risky as the bill mandates huge fines for striking, but ironically, these fines are the very provisions that may make the bill unconstitutional. The Canadian Charter of Rights and Freedoms guarantees the right to free assembly. Until recently, the meaning of that right as it applies to labour disputes has been somewhat vague, and in recent years (largely due to labour challenges to government in BC) the meaning of the Charter right is being clarified. A precedent established in one such case is the stipulation that no government may put into place any statute that limits the right to free assembly which is for the purpose of strengthening a position in collective bargaining. Bill 22’s fines, which are inordinately large and which are aimed at individual teachers, do exactly that. They discourage, under threat of significant financial hardship, the right to gather in protest (i.e. strike). The only way to challenge these fines is to actually invoke them.
If teachers really want to protest what they perceive to be a violation of the Charter right to free assembly they MUST stage a full scale walkout. So what stops them? After all, there is unquestionably a large contingent of teachers who are in favour of a strike. I can think of three possible reasons the BCTF has not mandated a strike. One is that the executive is afraid of the financial consequences of being wrong. At $20 million dollars a day, bankruptcy would happen quickly. The second is that the one-year deadline for the government to address the repercussions of its unconstitutional legislation of a teacher contract in 2002, is April 13, 2012, and the BCTF is hoping for some kind of salvation from the court. The third, and what I think is most likely, is that part of Bill 22 calls for a government appointed mediator and the TF must try in good faith to work with the mediator before it is able to claim that Bill 22 is a violation of constitutional rights.
The stakes are high, not just for teachers, but for labour unions all across Canada. And all eyes are on BC. The next few weeks will be very interesting. History will be made one way or another.