I just listened to Minister Fassbender assert to British Columbians that the government sought a settlement with the BCTF. This is untrue vis a vis the issue at hand, which is the order from the Supreme Court that they address the repercussions of the 2011 ruling that Bill 28 was unconstitutional.
To all reporters in BC:. If you actually care about the truth, you will weigh everything that the BCTF or the Government says against the truth. I challenge you. If BCTF members lie, call them liars. If the government ministers lie, call them liars.
The truth can be found in the BC Supreme Court ruling. It’s easy to expose the liars. Just compare everything they say to what the court says. Here is the unredacted BC Supreme Court summary (underlining is mine):
The hearing before this Court follows on the Court’s declaration on April 13, 2011 that legislation interfering with teachers’ collective bargaining rights was unconstitutional as a breach of s. 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association.
The legislation at issue deleted collective agreement terms and prohibited collective bargaining having to do with a range of working conditions, many having to do with class size and composition and the number of supports provided in classes to students with special needs.
The freedom of workers to associate has long been recognized internationally and in Canada as an important aspect of a fair and democratic society. Collective action by workers helps protect individuals from unfairness in one of the most fundamental aspects of their lives, their employment.
Normally the result after legislation is determined by a court to be unconstitutional is that it is struck down. This is part of Canada’s democratic structure, which requires that governments must act legally, within the supreme law of the country, the Constitution. Here this result was suspended for twelve months to give the government time to address the repercussions of the decision.
The government did not appeal.
After the twelve months expired, the government enacted virtually identical legislation in Bill 22, with the duplicative provisions coming into force on April 14, 2012.
The over-arching question, then, is whether there is something new that makes the new legislation constitutional when the previous legislation was not.
The government argues there are two new facts that make the new legislation constitutional.
First, the government argues that its “good faith consultation” with the union after the first court decision declaring legislation to be unconstitutional, essentially immunized the subsequent duplicative legislation from a similar constitutional challenge. This Court concludes otherwise. The government discussions with the union did not cure the unconstitutionality of the legislation.
The Court has concluded that the government did not negotiate in good faith with the union after the Bill 28 Decision. One of the problems was that the government representatives were pre-occupied by another strategy. Their strategy was to put such pressure on the union that it would provoke a strike by the union. The government representatives thought this would give government the opportunity to gain political support for imposing legislation on the union.
The second argument by the government is that the new legislation has a critical difference from the otherwise identical legislation found to be unconstitutional, and that is that one of the two branches of the legislation was time limited.
There were two branches to the Bill 28 legislation previously declared unconstitutional. One was a deletion of existing terms in the collective agreement and a prohibition on including terms in the collective agreement in the future regarding these working conditions. The second was a prohibition on collective bargaining over certain working conditions.
The government argues that there is a crucial difference between the Bill 22 package of legislation and the earlier legislation declared unconstitutional, in that in Bill 22 it temporally limited the second branch of the legislation: the continued prohibition on collective bargaining about the working conditions terms was extended until the end of June 2013 and then repealed.
However, in Bill 22 the government re-enacted legislation identical to that first branch of what was previously declared unconstitutional, namely, the deletion and prohibition of hundreds of collective agreement terms on working conditions.
The Court concludes that there is no basis for distinguishing the new legislation from the previous findings of this Court. The new duplicative legislation substantially interferes with the s. 2(d) Charter rights of teachers, which protects their freedom to associate to make representations to their employer and have the employer consider them in good faith.
As a result, the Court finds the duplicative legislation in Bill 22 to be unconstitutional, namely s. 8, part of s. 13, and s. 24, set out in Appendix A. The unconstitutional provisions that have not already expired, ss. 8 and 24, are struck down.
When legislation is struck down as unconstitutional, it means it was never valid, from the date of its enactment. This means that the legislatively deleted terms in the teachers’ collective agreement have been restored retroactively and can also be the subject of future bargaining.
Striking down the unconstitutional legislation will have implications for teachers and their employers but both sides will have interests in resolving these implications through collective bargaining and the tools already existing to resolve labour disputes.
The Court has also concluded that it is appropriate and just to award damages against the government pursuant to s. 24(1) of the Charter. This is in order to provide an effective remedy in relation to the government’s unlawful action in extending the unconstitutional prohibitions on collective bargaining to the end of June 2013. The government must pay the BCTF damages of $2 million.
The BCTF has also challenged other action taken by the government since the Bill 28 Decision: the government’s conduct in issuing Mandate 2010 to the employers’ association for collective bargaining, commonly known as the net zero mandate; the government’s legislation appointing a mediator with a narrow mandate at the end of the 2011- 2012 round of collective bargaining, Mr. Charles Jago; and two regulations enacted by the government, the Learning Improvement Fund Regulation, and the Class Size and Compensation Regulation.
The Court concludes that none of this other challenged government conduct was unconstitutional. The government has a role and responsibility in respect of the education system that entitles it to establish some fiscal and policy parameters around the collective bargaining between the teachers’ employee association, the BCTF, and that of the employers’ association, BCPSEA, so long as there can still be room for movement within those parameters.