The BC Liberals are making it up as they go along.

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):

Summary

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.

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2 thoughts on “The BC Liberals are making it up as they go along.

  1. The media, and the reporters themselves, are not interested in the truth. They are interested in the easy story, such as the recent insulting editorial in The Sun: http://www.vancouversun.com/business/Editorial+Teachers+government+just+along/9500861/story.html.

    The media’s contribution to this important issue – after a few days of careful and craven “outrage” at the government (see Vaughn Palmer for an example) – is to push the idea that both sides contribute to the problem, and that we should all just “get along.” as the Sun editorial states.

    No, don’t look to the mainstream media for any investigative journalism; in fact, you are correct to call them what they are: “reporters.” All they do is receive press releases, rewrite them to suit their owners’ agendas, and “report” them as “news.” The media will not now, and never has, reported fairly on education and teaching in BC.

    The sad, but ever true fact is this: labour and professional unions will need to fight their own fight, using all the tools and tactics available to them. In the 1930s and 1940s, the tactics were often violent, but resulted in the creation of a booming economy that benefited all. Today, we don’t want the fights and violence of the old picket lines, but we do still have one major source of power: our bodies, and what we do with them. We can choose to not work, shut the whole system down, and if any of the other unions have any guts, they will stand in solidarity with us.

    If we lose this one source of power – our selves, our physical bodies and minds – we are nothing better than the wage slaves forced to work for minimum wage because there is nothing better on offer. My greatest worry is not that the government will legislate away our union rights; my fear is that we ourselves, through weakness, worry, petty concerns, and general pusillanimity, will destroy our union from within. I know for a fact, as an example of what I fear, that many of our fellow union members would read the Sun editorial I linked to above, and agree with the general sentiment. Because, after all, isn’t it easier and much more pleasant to “just get along”? It’s this kind of thinking that will weaken us. It’s this kind of thinking that keeps us mice, quite happy to placate the fat cats.

    No, I have little hope in our fellow brothers and sisters, and their true commitment once the bullets start to fly (metaphorically, of course!). I hope I am proven wrong, because I think this cold war we’ve engaged in for a decade is about to heat up.

    1. Steve, when I read this sycophantic pandering I want to scream. The illegal legislation that terminated our contract in 2002 has wounded my morale almost mortally. As long as the same smirking thug who gloated over the passing of this illegal bill in the house of commons remains in power, I’ll never be able to escape the stench of its infection. The latest reiteration of the court ruling, and the latest ignoring of it has felt like a bandage being ripped off – exposing the wound afresh. I didn’t know that I still could feel the injustice so acutely. In all sincerity, there are times when I don’t know if I can carry on teaching.

      And yet there is a salve. When I think I’m about to lose my mind, I go back to the court documents. In her level, measured way, Judge Griffin has studied our issue, and with the full certitude and weight of law, has declared our rights. Furthermore, our fifth estate is coming out of its anaesthesia. We have the truth and the law on our side. No thinking person can any longer hide his faces from the truth. And somewhere in every journalist is a hopeful spirit that wants to champion the truth.

      In America, where Republican values have been the model our government would like to follow, the greed of the corporate elite has gotten the better of them. They’ve gone too far. The mortgage-backed securities crisis has exposed the shameful cynicism of the very rich. As much money as the Romney campaign threw at Obama, they couldn’t knock him down. The people have risen up to vote for something better (if only marginally better). Friedman’s Chicago-boy economic theories have failed. European nations have abandoned them. Even in China, the union movement is gaining steam.

      In Canada, intellectuals are starting to make a loud noise. The Conservatives may get one more kick at the can, but they’ve shown their stripe. They have done egregious harm to themselves out of sheer hubris. And now they are stupid enough to insult the veterans.

      And except for the insulting behaviour of our government, we are still in pretty good shape. We work in of one of the few professions on earth that can claim to make the world a better place. This offers tremendous peace of mind, and though we’ll never be rich, we get paid enough that we need not dread the future.

      We must continue to fight for the sake of our profession and ultimately for the sake of beauty and truth, but we’ve won a huge battle. Right now we’re witnessing the final throes of a government that will fall. It will get ugly, as you say. They’re angry vipers. But we’re heading back in the right direction, I think.

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