Sunday, September 7, 2014

Dignity not in anti-union Liberal playbook

Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter. - Supreme Court of Canada

One reason government functionaries and media loyalists are now focused on damaging the stature of public school teachers is that rulings of the Supreme Court of Canada indicate ongoing actions of the Teachers' Federation will be be successful - for teachers.

In 2011, BC Supreme Court determined "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..." Rejection of laws that removed teachers' ability to negotiate class size and composition, was suspended for 12 months. Justice Griffin wrote about the first court decision in Reasons for Judgement in the 2014 action,
"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."
Within her lengthy reasons for judgement, Justice Griffin repeatedly faulted government actions,
[191] I find that what Mr. Straszak communicated to the BCTF was that the government considered the post-Bill 28 Decision discussions as its opportunity to document that it consulted with the BCTF “in good faith” concerning its legitimate policy objectives, without the necessity of changing the end result. The message he communicated was that the government was not planning to restore the BCTF’s members’ ability to collectively bargain the Working Conditions nor would it restore any Working Conditions language to the collective agreement.

[192] A party cannot say it is consulting if it starts from the position that its mind is made up no matter what the other side presents by way of evidence or concerns.

[235] Mr. Drescher acknowledged in cross-examination that he could not identify specific examples of the problems he described... He said that he was relying on what Rick Davis told him regarding past problems.

[236] The Bill 28 Decision found that Rick Davis’s understanding of problems was based on unsubstantiated hearsay, and that his many examples of problems could have been resolved under existing collective agreement language... While Mr. Davis was called by the government as a witness during the present hearing before me, he again did not substantiate these alleged past problems with the past collective agreement language.

[237] Furthermore, Mr. Drescher’s presentation was unduly alarmist from an administrative standpoint about the potential impact of the restoration of Working Conditions terms in the collective agreement.

[238] For example, in his presentation Mr. Drescher identified that one significant problem that would be caused by the Working Conditions language in the collective agreement, was the problem of a possible increase in combined and multi-age classes, also known as split classes. This potential problem was purely speculative.

[242] Mr. Drescher’s evidence revealed that the employer side of running schools would prefer to make decisions unencumbered by the employee’s union.

[243] Most employers would naturally find that they would have more flexibility and choice if they were not encumbered by a union. That as an end in and of itself does not justify legislative interference with freedom of association.

[244] The fallacy in the government position to the effect that collective agreements were not flexible is that the government legislation imposed class size limits that were absolutes and not open to negotiation, whereas the collective agreement terms were open to negotiation and to exceptions.

[249] ...Mr. Drescher’s presentation appeared based on false logic.

[347] Unfortunately the first several meetings were taken up by the government representatives speaking about “policy” in vague terms. The government representatives discouraged BCTF representatives from asking questions about their position and were not interested in providing substantive answers.

[348] The evidence of Paul Straszak at trial suggested that at times he found the fact of questioning by BCTF representatives during government presentations to be inappropriate and disruptive.

[349] I find that the BCTF representatives were trying to understand the government positions, which were framed as explaining why the deleted contract language was contrary to government policy. This was a difficult framework for the BCTF representatives to understand, given that during the Bill 28 Action, the union had shown that the collective agreement terms were flexible, and given the absolutist nature of the government position which was not proposing new collective agreement language but instead seemed to be premised on a continued prohibition on collective bargaining.

[350] Part of good faith consultation requires giving the other side the opportunity to ask questions, and not simply going through the motions of meeting where one side lectures the other.

[351] In this regard, I find helpful the description of government consultation given by Saunders J.A. in Gardner v. Williams Lake (City), 2006 BCCA 307 at paras. 29-30:

At a minimum, "consultation" anticipates bi-lateral communication in which the person consulted has the opportunity to question, to receive explanation and to provide comment to the local government upon the proposal. … The essence of the requirement is that those consulted have the opportunity to question and provide their comment, and that the local government weigh that comment, before advancing in the legislative process.

… the "consultation" conducted must be meaningful; that is, the consulting body must do more than pay lip service to the requirement.

[352] I find that the BCTF representatives wanted to get to the heart of the issue and they were understandably confused by the tactics of the government negotiating team which appeared to be wasting time and not addressing the issues. They sought to question the government representatives. These questions would have been welcomed had the government’s representatives been sincerely wanting to have meaningful dialogue, but they were not.

[384] The government thought that a teachers strike would give the government a political advantage in imposing legislation that the public might otherwise not support. It felt that the timing of legislation to deal with a teachers strike and failure of collective bargaining could fit conveniently with the timing of legislation to address the Bill 28 Decision repercussions. The government planned its strategy accordingly so that it could have one legislative initiative at the end of the one year suspension granted in the Bill 28 Decision.

[385] Rather than taking full strike action, instead the teachers withdrew some administrative, non-essential services, such as preparing report cards. Teachers continued to provide all teaching and classroom services.

[386] When a full strike did not materialize, so important was a strike to the government strategy that in September 2011, Mr. Straszak planned a government strategy of increasing the pressure on the union so as to provoke a strike.

[387] In furtherance of this strategy, the government sought to force school districts to cancel teachers’ leaves and professional development days, including by reducing funding to school districts to get them to carry these measures out. Another aspect of these pressure tactics was to have BCPSEA apply for an order of the Labour Relations Board to vary previous essential services orders so that districts could reduce teachers’ pay. This application was brought but was unsuccessful.

[391] But with Mr. Straszak for the government on one side of the table across from the union, knowing it could serve the government’s broader political goals if no agreement was reached, there was no equality of bargaining power. I find that there was no true will on the government side of the table to reach agreement in the discussions following Bill 28.

[417] As already mentioned, the government expected collective bargaining to fail. This expectation existed even before collective bargaining commenced in the 2011 round, in large part because of the hard fiscal and policy positions the government was asking BCPSEA to take in bargaining with the union.

[418] The government expected that the BCPSEA positions would be so difficult for the union to accept that the union would take strike action.

[419] When the BCTF did not respond by calling a full strike the government followed Mr. Straszak’s recommended strategy to engage in pressure tactics to try to provoke a strike.

[441] It is curious for the government to argue in respect of Bill 22 that identical legislative deletion of these hundreds of past terms is now not significant. It clearly lost this issue in the Bill 28 Decision and did not appeal. The Bill 28 Decision made it clear that both aspects of the legislation were unconstitutional: the provisions invalidating these hundreds of terms from the collective agreement, and the provisions prohibiting future bargaining over the same subjects (para. 308).

[460] If a constitutional right to collective bargaining enhances democracy and the rule of law, as stated in Health Services, one may ask what then is the impact of government legislation which simply re-enacts the restrictions on collective bargaining previously declared by a court to be unconstitutional?

[461] That this legislation was passed after so much effort by the BCTF to restore their workers’ ability to collectively bargain had to be extremely destructive to the dignity and autonomy of the teachers which the s. 2(d) Charter right was meant to help protect (Health Services, at paras. 80-82).
Justice Griffin's judgment was definitive. She made numerous finding of fact that ought to embarrass the BC Government. Quoting extensively from directions of the country's highest court, she cultivated no new ground, made no surprising interpretations that stood apart from Supreme Court of Canada precedents.

Facts already established before the trial judge will not be reviewed because appeal courts deal only with law and its application. The Justice Education Society notes,
"Perhaps the most important thing to know is that this court only decides whether or not the trial decision was correct in law. The [appeal] judges are not fact finders. Except in very rare cases, no witnesses appear in this court to give evidence.

"Instead, judges review the written record of the original trial called the transcript and then determine whether there were any errors made in applying the law."
For years, the BC Government has worked to ensure worst possible relations with the Teachers' Federation and with individual teachers. It blew up the B.C. Public School Employers' Association (BCPSEA) to ensure labour negotiations failed and it has repeatedly demonstrated willingness to subvert elected school boards if they didn't follow BC Liberal policies.

What is the objective? Having added $135 billion to provincial debt and contractual commitments, this government has no reluctance to spend; it is little concerned with fiduciary duties. Its actions in the teachers' dispute will ultimately leave the public with responsibility for millions for legal costs of both sides. Justice Griffin awarded BCTF $2 million in damages and "costs on a scale of more than ordinary difficulty in both actions, Scale C." Additionally, the costs of restoring deleted language from labour contracts, or compensation in the alternative, could be hundreds of millions of dollars.

No, other things are at work here. It could be the education minister's belief that public schools are godless places needing punishment, it could be the Premier's lingering bitterness about her own academic failures or it could be rooted in the relationship with her father, a teacher.

My supposition is that all of those things are involved but the prime motivation is to dismantle public education. Neoliberal icon Milton Friedman promoted privatization of schooling to create "a highly active and profitable industry." Or, as the immortal Chico Escuela might have said, were he in business instead of baseball,
"Thank you berry much. Privatization been berry, berry good to me. Thank you. God bless you. Gracias!"


John Oliver talks about where the BC Liberals plan to take us: American style private education that results in student debt being second in size to mortgages and requires people to join waiting lists to be on waiting lists.

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  2. Fassbender= Promisekeepers

  3. "[192] A party cannot say it is consulting if it starts from the position that its mind is made up no matter what the other side presents by way of evidence or concerns."

    Peter Cameron basically admitted the same theme a few days ago: “When the BCTF says you are not moving, well they’re right,” Cameron, who advised Fassbender to reject the proposal, said. “The settlement on wages and benefits will be within the pattern of (other public unions) …

    Btw: your suspicion that Christy's apparent hate for teachers could be tied to her relationship with her father, a teacher — I think I know where you are going. There's a message in a bottle somewhere and I'd love to see someone in the mainstream uncork it. Michael Smyth? It would be a great way for him to show that he toasts both sides of his bread.

    Charlie Smith's piece is a good start.

  4. I still think the only solution to all of this is a GENERAL STRIKE. That’s the only think Clark understands and nothing less than a few days hits at the economy would solve a few issues for her. I also can’t understand why retailers like Pattison haven’t set her aside and had a few words with the lady. If 40,000 plus people (and CUPE) aren’t shopping doesn’t that hurt? Then where are the groups such as the Indo Canadian leaders having a wee word with her? Do they prefer the forty bucks over school? And what about those high school students – too lazy to care? Occupy the bloody schools for goodness sake and cause havoc – that’s the only thing those leaders understand. And aren’t there one or two or three or four Liberal MLAs who think this is wrong? I can’t for the life of me understand how people are so complicit in all of this. Then I was thinking if Harper wants to gain seats in BC wouldn’t he be having a wee word with Clark? I can’t see any one but the NDP sweeping BC for MPs with what Clark is doing to destroy public education but maybe I am wrong there too with what is going on here. I also can’t for the life of me understand why the Lamestream media is so in bed with Clark. I also can’t understand why Jim Sinclair hasn’t pulled the dock workers and all the other unions that help make this province strong. Maybe , I should go and read a little history about prewar Germany and how everyone was complicit and complacent there too. After watching Clark’s ex last night go after a child icon like Raffi, none of us are safe. This has so far reaching components it is scary.

    1. The reality is that most of todays union leaders are incapable of contemplating a general strike while much of the membership still remembers the betrayl of Solidarity! in the early '80s.
      While we are going to have to use different tools to provide support to teachers and students expression of that support on a personal and public level is essential.

  5. Harper give Christy a talking to, not on your nelly. The Campbell/Clark BC Liberals, work for Harper. Campbell was rewarded by Harper, the post of High Commissioner to the U.K. Now Campbell has the company of Nigel Wright.

    Christy has detested Teachers from when, she was Minister of Education. I read, Christy only has a high school education herself. So no-one will ever convince me, it is Christy running this province. Christy is merely a mouthpiece. Nor is it beneath Christy's dignity to lie. Christy lied and cheated, to win her elections too.

    I support our Teachers. They are of value and worth to parents and their kids. The Campbell/Clark BC Liberals, are worth nothing, what-so-ever.

  6. Factbebender just said No to binding arbitration. What options are left for parents and kids and teachers?



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