B.C. Today: Labour Conflict or School Reform?

The most lucid post on Liberal public education strategy that I’ve read in a while.

Did the BC Liberal government just bluff on that forty-dollar a day voucher plan or do they really want to have THAT battle over public education now?

It was telling that one of the earliest responses to the announcement came from a former top ranking BC Liberal. “Hmm. Did BC govt just take the first $40 per day step towards a voucher system for public education?” asked former Attorney General, Geoff Plant on Twitter.

Yes! Was the resounding answer from those who know what a voucher school system is.

If you don’t know about vouchers here’s a quick explanation. A voucher system is one of several in the ‘school choice’ basket. I use quotes here because ‘school choice’ is a codified term that is synonymous with privatized, typically non-union schools.

The government issues parents a voucher worth a specific amount of funding towards their child’s education. Parents…

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The government’s mess in BC education: How it affects negotiations

Make no mistake. The BC Liberals have got the province into a terrible mess. It’s not unlike their BC Hydro fiasco in which years of lack of oversight of the crown corporation have led to retroactive costs that will need to be funded by sudden massive increases in citizens’ Hydro fees.

In education, the problem is similar. Bad policy has led to a huge burden on taxpayers years later. The trouble started on January 26, 2002, when Education Minister Christy Clark stood up in the BC Legislature and proudly announced the new Bill 28, which removed class size and composition limits from the teacher contract and enshrined them in law. In effect, what Christy Clark was announcing was that the government was reneging on its part in a contractual agreement, and creating a law that prevented the teachers from ever even asking for such an agreement again.

Naturally, the teachers’ union took the government to court. It took 8 years for the case to wend it’s way through the legal system, but when it finally did, the result was that the court found that the government had acted unconstitutionally.

Recognizing that simply restoring contract language from 2002 and leaving taxpayers on the hook for 10 years of grievances as class size numbers had crept ever higher, the court ordered a year’s time for the government to seek a solution through negotiations with the union.

Two years later, the court re-convened. This is what it found: The government had made no effort at all to seek a solution with the teachers. In fact, it had not only squandered the opportunity the court had given it, but it had also rewritten the impugned legislation, repeating some of the passages word-for-word.

Worse, the Court found that the government had engaged in bad faith negotiations – using the union’s outrage as a tool for its own political purpose. The government strategy (the court found through its reading of cabinet documents) was to goad the union into a strike so that the BC Liberals could look like heroes when they ordered an end to the strike.

For the Court, that was the last straw. The government was not taking teacher negotiations seriously; it was toying with 40,000 dedicated professionals, and worse, it was showing utter contempt for the Court itself by completely disregarding the 2010 ruling. The law does not look favourably on people who openly flout it. The court ordered the government to pay $2 million in damages to the union, to cover all court costs, and to re-implement the 2002 class size and composition language retroactively over the past 12 years.

This ruling would be a huge cost to taxpayers – courtesy of a government that continuously broke the law. Furthermore, the court ordered that the teachers be allowed to negotiate class size and composition language in future contracts. The ruling was worded thus:

[677] The result of both the Bill 28 and Bill 22 Actions is that the Working Conditions clauses are returned to the collective agreement between the BCTF and BCPSEA as of July 1, 2002. The subject matter of the Working Conditions is a matter for collective bargaining between the BCTF and BCPSEA. [678] The parties have been unable to point me to any other case where the present process has occurred: where legislation that was ruled unconstitutional because it interfered with rights guaranteed under the Charter was re-enacted in substantially the same form and the government argued that the unconstitutionality was fixed or ameliorated by the fact of the government having “consulted” with the affected party and, or, by the fact that the government made on part of the legislation temporary. [679] The outcome of this case means that teachers have once again had their right to collectively bargain over their working conditions restored. They have had certain language returned to their collective agreement retroactively. This does not guarantee that the language is clad in stone, as it can and likely will need to be the subject of ongoing collective bargaining.

Regarding the retroactive nature of the re-instatement of class size and composition levels, the Court says,

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.

The ruling uses strong wording to emphasize a rationale for such a costly penalty to government. The court felt that the penalty for violating Charter rights needed to be harsh enough to discourage governments from ever wanting to do so.

[621] The evidence is that the government knew, following the Bill 28 Decision, that the legislative prohibition on bargaining over Working Conditions was unconstitutional, and so must have known that continuing the prohibition was also unconstitutional. [622] As noted in Ward, the awarding of Charter damages on the basis of deterring government conduct is meant to deter the government from engaging in conduct that is not in compliance with the Constitution. Furthermore, this deterrence is not aimed at influencing the errant behaviour of a specific government actor but is meant to serve a much broader purpose: to influence government behaviour in general, in order to ensure government compliance with the Charter in the future. [623] I conclude that unless there is a sufficient deterrent, and some significant cost to a government if it violates s. 2(d) Charter rights even temporarily, the motivation to act unconstitutionally by substantially interfering with the freedom of association of public sector workers can simply be too tempting on the part of governments. [624] As for the seriousness of the Charter violation, the fourteen month extension of the legislative prohibition on collective bargaining over Working Conditions has to be viewed in context. It was not simply a one-off temporary suspension of rights. It was a continuation of unlawful conduct which had been then on- going for ten years. Further, when combined with the unlimited continuing legislative deletion and prohibition on including certain terms on Working Conditions in the collective agreement, the right to collective bargain over Working Conditions would still not be fully restored even after the fourteen months prohibition on bargaining expired. This Charter breach was more than slight or moderate.

The problem for government in the current negotiation is that if it fails to negotiate new terms, the class size and composition terms set by the Court (pending court appeal) remain in effect. If the government were to simply renege on yet another standing contract, one would think that the Court would invoke severe penalties indeed.

It would certainly be in the best interest of all citizens that negotiations with the teachers go well this round. The electorate should be aware of the past calumny of its government, and it should be watching to ensure that elected officials don’t continue down the same unconstitutional path.

The constitution is meant to protect citizens from the government. Teachers are citizens. If government is allowed to go unpunished for breaching teachers’ rights, it can then proceed to violate anyone’s rights. A society where this is allowed lives in tyranny.

P.S. – Update. The BC Court of Appeal has overturned Justice Griffin’s latest decision. In a move that has very little precedent in appeal matters, it ruled on not just the interpretation of law, but the findings of fact. The Supreme Court of Canada has agreed to hear the case.

For my part, I am still deeply wounded and offended by the actions of my provincial government, as are most teachers. We feel our rights have been denied us. Meanwhile Christy Clark and her colleagues smirk. It’s worth remembering that the first president of the BC Liberal party so many years ago was an educator who didn’t like unionism. Slamming teachers was the original raison d’être of the BC Liberals.

Can the government be trusted to accept mediation?

Things would seem to be crackling along here on the Wednesday before school is set to start for September… or not –depending  on how negotiations go. With Vince Ready agreeing to meet both parties in the same room, there is faint hope that a mediated settlement can be found that will be agreeable to both parties.

But that hope is faint indeed.

Considering all that has happened, it would be courageous almost to the point of foolhardy for the teachers union to trust that the government will accept mediation in good faith. This is the same government that has tried every conceivable stunt to discredit the union. This is the government who was first to begin a long campaign of negotiating in the press. It’s the same one that saw the Minister of Education spectacularly break the media blackout agreed to by both parties while a potential mediator was being consulted.

This is the same government that illegally stripped a contract and then when ordered by the court to make restitution, rewrote the contract with the same illegal conditions.

This is the same government that used the union in order to score political points in an election campaign by goading them into a strike so that they could stride in like Gary Cooper in “High Noon” and order the teachers back to work.

This is the same government that threatened to stop paying health benefits during the teachers’ Phase 1 campaign. Then, finding out that such action would be completely illegal, came up with a 10% reduction in pay and a bogus “partial lockout” to justify it.

This is the same government whose Premier actually called the membership “greedy”. It’s the same government who made a promise to negotiate over the weekend before a full scale strike started, and then disappeared for 48 hours only to reappear with a lowered wage offer. It’s the same duplicitous government that has been mired in scandal after scandal, and ugly demeaning campaigns agains its rivals.

Bad faith negotiating has been their hallmark. It would take some kind of fool to trust them now.

The truth about the teachers dispute in BC: The emperor is naked. It’s just that people prefer not to notice.

I don’t go looking for trouble in my personal conversations at social gatherings. I really don’t, but trouble follows me. You see, I’m a teacher, and as soon as that little fact enters the conversation, people start asking me questions about the current teacher job action. I try to appear balanced, and non-confrontational, but inevitably it takes less than a minute for the conversationalist to weigh in with his or her opinion on what should be done to solve the current labour impasse.

And almost always I’m confronted with opinions (I can usually cite the articles that gave rise to these opinions) that are formulated out of untruths and half truths told by government officials, and repeated by editorial writers in the main stream press. Most of the people I talk to are intelligent, news-literate people. They read the mainstream papers and they have life experience and education that allow them to be important contributors to our economy and our democracy. So it is no fault of theirs that they are so very much in the dark as to what is going on in BC’s education system. For this I blame the corporate-owned press itself.

However, I do suspect that many of them prefer to believe that the teachers are at fault in this dispute. Most of the people I know in my personal life work in a business world –a world that has been told repeatedly that socially funded programs are a net burden to society. So they may be loathe to hear the truth and quick to jump on mischaracterizations of the truth. But truth is truth, and an ethical person, once confronted with the truth, has to finally accept it.

The situation is like the one in Hans Christian Andersen’s tale of the Emperor’s New Clothes. The villagers in the tale believe that their emperor is the best dressed man in the world. When a deceitful tailor tricks the emperor into going naked by convincing him that his cloths are so fine as to be invisible, no one says anything, preferring to live under the delusion that the emperor is well-dressed. The spell is broken when an innocent boy who is too young to be swayed by the popular delusion of a well-dressed emperor, points out the ugly truth that the emperor is naked.

What follows is a list of deluded suggestions about the teacher labour dispute – in which the emperor is most definitely naked.

Misconception #1. The BCTF and government are far apart on wages and benefits.

Actually, this is not true. The government has come off its 10 year contract idea. The BCTF has come down from its 14.5% wage demand, and now the parties are within a year an a percentage point of each other.

Misconception #2.  The teachers and government need to put aside class size and composition language until the appeal court decision, and complete negotiations on wages and benefits. 

Not a bad idea, but this has been tried. The BCTF proposed a “placeholder” for class size and composition. The government responded with a clause that allows either party to cancel the whole contract if they don’t like the court result. The union can not benefit from this arrangement. It has no means to keep negotiating ad infinitum. If it loses the support of the court, no new negotiation will help the union. On the other hand, if the government can just cancel out a court ruling, it can sustain its illegal action forever against the union.

Misconception #3. The parties are too far apart for mediation to occur.

Not really. Theoretically, a mediator can look at two parties’ positions no matter how far apart they are and come up with a suggestion. The problem here is that the government has set as a precondition that some of its terms are just not open to mediation. In effect, without saying so directly, the government is refusing accept mediation, no matter how much it protests to the contrary. On the other hand, the teachers, who have asked for mediation, are willing to compromise their demands according to the recommendations of a mediator.

Misconception #4. The teachers’ demands are unrealistic.

This is, of course, a matter of opinion, but many people who hold this opinion are unaware of some facts:

Fact 1: According to Stats Canada data from 2011 (funding has gotten worse since then) BC has the second lowest-funded education system in Canada. At that time, it’s average funding was $1000 per student per year below the national average.

Fact 2: BC’s teacher to student ratio is lower than any other province in Canada.

Fact 3: BC teachers’ wages and benefits are the lowest in Canada and if all of their demands were met, they’d still be far below the national average.

Fact 4: The government has been caught trying to incite public disdain for teachers and then using this disdain as political capital to help them win an election. This has been deemed “bad faith”in the provincial Supreme Court, and it is completely unethical as well as illegal. This fact has been confirmed by the very board chair of the employers’ association who was involved in those bad faith negotiations.

And this fact is what baffles me most. This calumny is met by the press and the public with a sort of yawn. Gone are the days when the public howled its outrage at politicians who stepped afoul of ethics. And this is but one in many ethical breaches, including sweetheart deals, golden handshakes, and failed conflict-of-interest disclosures.

Meanwhile, it is simply a cold numerical fact that BC’s education system is the worst maintained in Canada. So far the teachers have done a good job subsidizing the system with more and more hours of work and their own money, but cracks are starting to appear in student learning results.

Misconception #5. The government is negotiating within its rights just like any business.

The government is not at all negotiating in good faith. As if the opt-out clause isn’t enough, it tried to bully the union into an agreement by threatening to make the union pay teacher health benefits (which is unquestionably illegal). In another instance, when the union came way down in its salary demands, it held off responding for 48 hours, then came back with a lowered salary offer. As a friend of mine from the business world said, “That’s not cricket.”

I don’t know what more can be done to convince anyone of what is really happening in teacher negotiations. Districts all over the province are complaining of budget shortfalls, and still there seems to be a reluctance from the press to investigate. They seem content to offer soap boxes to politicians from which they distort the facts. Editorial writers in mainstream papers don’t seem to care (or know?) that the government misrepresents and mischaracterizes negotiations. The best they can seem to come up with is that both parties need to sit down and negotiate.