the comfort of why

E.80 – What It Is And What It Is Not

In the almost three years in which I’ve maintained this blog, I don’t think there’s another instance where I’ve posted two articles in two consecutive days.  In fact, I’m lucky if I get something up once a month.  Last night, I posted an article about class size and some of the difficulties involved in trying to negotiate the issue in the context of a collective agreement.  Today, I’d like to look at what’s called E.80 – that’s the proposal from the BC Public School Employers’ Association (BCPSEA) which was put forward to initiate bargaining on class size, class composition, and specialist educators.

Why?

Because to understand the current impasse we need to understand the background to the proposal and, more importantly, we need to understand what it is and what it is not.  Given the complexity of the issue, this may be a somewhat longer than usual post.

Before I get into the heart of what I’d like to say, please note that any errors of fact are my own as are the views expressed here: these are not the views of the West Vancouver Board of Education.

Library Book Sale

Let’s backtrack first to 2002. To quote from my article last night about class size,

To understand the class size issue in relation to the public education labour dispute, we have to consider the contract language before and after the benchmark year of 2002.  That is the year in which then Minister of Education, Christy Clark, led a government initiative which removed class size and composition from the collective agreement with BC’s teachers.  This unilateral change has since been deemed unconstitutional by the BC Supreme Court in two court cases which the government has lost. The second of the two court cases is currently under appeal and the BC Court of Appeal hearing is scheduled for mid-October 2014 with a decision to follow.

What did Justice Griffin say in her final ruling on these two court cases?

Let’s focus on one paragraph in particular, paragraph 679, which reads as follows:

[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.

What does this mean?  It means that the language which the government removed from the teacher’s collective agreement has been restored to the old contract. But Justice Griffin also realized that 12 years had elapsed and notice what she says next: “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.”

Her ruling clarifies that although the language was restored to the 2002 contract is was not guaranteed to be part of any future contract. Again, the judge made it very clear that the contract language “can and likely will need to be the subject of ongoing collective bargaining.”

Justice Griffin’s direction to both parties, the provincial government and the BC Teachers’ Federation (BCTF), was to engage in collective bargaining to determine language for a new 2014 contract. Because the contract expired a year ago, a new contract would in fact be deemed to be in effect from June 2013.

So, what is bargaining?  Bargaining is where two parties put forward proposals.  Neither side has to like the proposals submitted and neither side has to accept the proposals outright. What both parties need to do is talk about the proposals.  There may be some which are rejected without any further discussion, there may be some which are accepted as is, and there may be some which are modified.  There are some which are modified and then modified again and then modified again and then modified again until such point as both parties are satisfied.

Bargaining is not about being offended by the proposals of the person with whom you are negotiating because it’s only to be expected that each side is negotiating from their point of interest and to try to satisfy the myriad of concerns with which they must contend.

As we can see, Justice Griffin put class size and composition back on the table to be bargained between BCPSEA and the BCTF.  To bargain on these issues, both parties had to put forward proposals for consideration.  So what did BCPSEA propose?

This brings me to E.80 or the section in the comprehensive package put forward by BCPSEA on June 15, 2014, which dealt with class size and composition.

Class Size

Essentially, BCPSEA is proposing that the new collective agreement would align with the School Act and its regulations which define class size limits as follows:

  • Kindergarten: 22 students (in 2002, this was 20)
  • Grades 1 to 3: 24 students (in 2002, this was 22)
  • Grades 4 to 12: 30 students, subject to defined exceptions, that is, which can be exceed if certain guidelines and protocols are followed (in 2002, this was a hard cap of 30)

If the government were to amend the School Act or the regulations, the matter could be raised for further collective bargaining and if that’s unsatisfactory, the BCTF could seek arbitration.

In response to this proposal, the BCTF seems to have moved away from trying to bargain fixed limits and has proposed to establish a fund.  This means that even the BCTF is not looking to carry over language from 2002, but has proposed an alternative mechanism to deal with the class size issue.

Class Composition

Without reprinting all the details, BCPSEA is essentially proposing that the Learning Improvement Fund (LIF) be incorporated into the collective agreement with some changes to the process by which the funds are allocated to “ensure that the union is involved in each of the provincial, district and school levels.” The LIF would be set at $75 million.

It appears that BCTF is comfortable with the format of the fund rather than the 2002 standard which addressed class composition through a formula based on the number of Individual Education Plans (IEPs) in a classroom.

So, the disagreement at the bargaining table is not about the fund, the disagreement is about the amount and in this BCTF is correct — $75 million is not sufficient either in terms of the need in schools or in terms of the spirit of the Griffin decision.

So, what should the amount be?  As I understand it, BCTF has proposed a fund of $225 million.  That means, in my opinion, there’s a number between $75 million and $225 million which would result in a deal.  It cannot simply be $75 million and if the BCTF will not lower the amount it expects, that’s fine.  However, to get the government to agree to expand the LIF by $150 million means that the BCTF will have to adjust its proposals on other provisions in the agreement.

Specialist Educators

The BCPSEA proposal is to create a fact-finding committee “to establish a base of information to better inform decisions in the allocation of the LIF.  The committee may make recommendations to the school districts with respect to general principles for allocation.”

Rather than commit to a specific number of specialists, BCPSEA is suggesting that data be collected and reviewed to determine the number of specialists required and then to incorporate those requirements into the allocations of the LIF.

BCTF’s proposal is structured to address needs now via the funds which would address class size and composition issues as a whole or by a return to the specific ratios of 2002.

Where’s the common ground between the parties on this issue?  To be honest, I’m not sure I see any, but it does seem like an increase in the LIF along with a process to determine needs would be feasible.

I hope, if you’re still reading at this point, that you recognize these bargaining proposals set out the position of each party and that the commitment to a negotiated settlement would be to continue talking on these points. In and of themselves, the proposals do not preclude an agreement, but they do show that to find a solution which both parties can sign-off on is going to take some work.

At the end of E.80, there’s a final point and it reads as follows: “(Note: These provisions supersede and replace all previous Articles that addressed class size, composition and staffing levels.)”

This is not a proposal, nor is this a clause nor is this the government’s attempt to nullify or prejudice any current or future court ruling.  This note simply means that if the parties are able to settle on these issues of class size and composition, then this new contract replaces the old contract, this becomes the contract of record, and the next time the parties are meeting to negotiate (which I hope would be at the end of five or six years depending on the term of the collective agreement) the language of this new contract would be the language upon which the discussions in 2018/219 would be based and which would have to include bargaining on class size and composition because nothing will have removed the status of these items as working conditions to be negotiated.

So why did Twitter explode last night with the view that E.80, which represents the government’s bargaining proposals, which is not a final offer, and which has been known about since mid-June, was an attempt to circumvent the Griffin decision or to compromise the status of the BCTF’s standing at the Court of Appeal?

Here’s the thing: I don’t know and I don’t understand although I can only conclude that there is some misunderstanding of the legal context.

In my view, if a negotiated settlement is agreed to, then we have to presume it represents the outcome of bargaining arrived at by the exercise of the free will of both sides.  If so, then such an agreement would have honoured the spirit of Justice Griffin’s ruling and theoretically the appeal could be dropped.  If the appeal were dropped, there would be no need to take the case any further because there would be no further legal recourse required with regard to this particular contract.  So, the problem can’t be a scenario in which there is a negotiated agreement.

If the problem is not a hypothetically negotiated agreement, then the problem must be with what happens if the parties can’t reach a negotiated agreement.

The presumption on the part of the BCTF seems to be that in the absence of a negotiated settlement, the government must abide by the terms of the 2002 agreement. That is, the government must automatically accept the ratios and caps regarding class size and composition.  But, that is not what Justice Griffin said nor what she implied because the government cannot be compelled to accept the language of the 2002 collective agreement if it does not represent terms to which it has agreed to in this round of collective bargaining. Remember her words? “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.”

With regard to the appeal, the proposals in E.80 do not compromise the outcome just by virtue of the fact they were proposed. An appeal looks at the errors of law which a judge may have made in their judgement; it does not retry a case and it may be upheld in part or in whole.  If the BCTF wins the appeal, it does not gain much further leverage because it simply upholds the Griffin decision with which we are already familiar.  The government may or may not appeal to the Supreme Court of Canada, but there’s no guarantee that the Court would give leave for the case to be heard.

Where does that leave us?  At this point in the talks, we’ve seen the involvement and withdrawal of three of this province’s best facilitators and mediators.  Vince Ready has declared an impasse, but he will keep tabs on both sides.  As I hope I’ve demonstrated above, there’s lots to talk about with regard to class size and composition and I actually believe agreement could be found on these provisions. What does that leave as a possible stumbling block?

Wages and benefits.

For the sake of the 559,000 students in the BC public education system, I sincerely hope that both parties will make every due effort to return to the mediation zone.  That’s the right thing to do for teachers, for families, and for our children who have a right to an education.

19 Responses to E.80 – What It Is And What It Is Not

  1. Thanks for the long and thoughtful process on this matter but I take great issue with the final point in the E80 clause and asked my husband is who is indeed a practicing lawyer to clarify this point in greater depth. By essentially bargaining CS & C within the LIF framework and having the final note on provisions in there, the BCTF is within their right to believe that this would have a nullifying affect on the Appeal Court decision or the Supreme Court of Canada decision if it ever gets that far. When the decision from the Appeal Court does come down, the clause shows to the court that they are agreeing to less than what they are originally seeking for in court. BCTF wants the old language retroactively back in the contract, but because the matter was bargained by both sides with the provision in there, it sabotages their attempt to have it fully restored. This means the BCTF could be awarded less than what was determined by Justice Griffin in Jan 2014. Who knows what the court will decide on this matter, but the gov’t is basically insuring itself that they will never have to go to 2002 numbers on cs & c and after going through 2 court battles, the BCTF would be reluctant to give up any of its victories. By removing the provision, both sides can agree to collectively bargain but the court will have the final say which probably scares the gov’t as it feels it will lose.

    • Thank you so much for reading the article and for taking the time to provide me with additional information to consider. You’ve also helped clarify one of the sticking points with regard to the interpretation of E.80. I understand the technicality of the interpretation (please pass on my thanks to your husband), but here’s what I do not get. If the BCTF wants to preserve the Griffin judgement then why do their own proposals envision establishing a fund rather than strict class sizes? Or is the idea that the fund will substitute a dollar value for the former provisions in the contract? Here’s another question: Griffin said the fully restored language was not clad in stone and was subject to collective bargaining. If the BCTF’s position is that it wants that language, then it is not bargaining: it is simply trying to preserve the 2002 contract in full and apply it to today. I can’t see how that can be taken as bargaining in the context of the Griffin decision unless the BCTF is taking the position that the class size and composition of the 2002 agreement carries forward as is and they are bargaining because they are discussing wages and benefits. But, again, their current proposals don’t reflect that position.

      The Appeal decision deals with errors in law. If the BCTF wins the appeal, the 2002 language is fully restored, but then class size and composition still have to be bargained. If the government wins the appeal, and applies to the Supreme Court of Canada and if they get leave to be heard, who knows what the decision may be and who’s favour. But while that higher appeal is underway, we’d be in the same position: bargain class size and composition from the fully restored language of 2002. It does not mean the government has to agree to that fully restored language in a new contract.

      So, here’s the thing: I understand that the government may not want to go to the 2002 numbers, but I don’t think the Griffin decision says they have to because she anticipated new language based on what the government’s stated interests had been shown to be. But they can’t do so unilaterally – they need to have the BCTF to sign off if an agreement is to be a negotiated one. Similarly, if the BCTF is bargaining from 2002 levels, that language cannot stand as a new negotiated agreement unless the government agrees to it.

      In the end, then, I have a better understanding of the BCTF position, but I’m still not convinced of the interpretation. Guess it will be a matter for the courts to decide and I just don’t know how that gets school back in session on any sort of timely basis.

  2. Your conclusion about the “stumbling block” is entirely erroneous and insincere. Teachers current request for a wage increase is considerably less than the rate of inflation. I cannot speak for others in any official way, but I believe many teachers feel as I do: I would absolutely settle for the governments wage offer even though I don’t believe it’s fair, but 2002 class size language must be put back in return for concessions on wages. And to those who are hung up on the signing bonus, I say this: you could offer me a $100 000 signing bonus and I would not take it – restore class size and composition language. PERIOD.

    • Thank you Dave for reading the article and for sending me your comment. My conclusion may be erroneous, but it is not insincere. In fact, your own message may support my point.

      You have just said to me that you would settle for the government’s wage offer even though it’s not fair. It may not be fair and it may be less than what teachers deserve, but in the context of trying to secure a negotiated settlement, it may be a way forward. However, this view, this willingness to compromise on wages and benefits is not what has been presented to BCPSEA or if it has, it has not been understood that way.

      With regard to restoring class size and composition language, while I appreciate the many benefits this would entail, I do not believe that was Justice Griffin’s intent. Her ruling indicated that the language was to be restored retroactively to the old contract with the understanding that it would then be subject to negotiating through the collective bargaining process. I understand, after reflecting upon the many messages and comments I’ve received, that the BCTF – based on the legal advice it has received – believes that in the absence of a negotiated settlement the language from 2002 would automatically carry forward. I question this assumption because it doesn’t show that the issues of class size and composition have been bargained as per the judge’s ruling, but that it was expected to carry forward. However, that is a matter for lawyers to debate in court and I’ll be very interested, as we all are, in the outcome.

      The challenge now, as I see it, is how to structure an agreement, even a temporary one, which would see teachers back at work and students back at school. It seems to me that legislation is looming as the only way out of the impasse. It’s not what I think is best for the public education system and it will mean many more years of legal action to come. I hope that the BCTF and BCPSEA will find their way back to the bargaining table although I have a much clearer idea on why the results thus far have fallen so short of expectations. I remain hopeful.

  3. Hi Farris,

    From what I am interpreting from the Jan 2014 court ruling is that yes, the language is to be reinstated from 2002 and yes it can and should be subject to further bargaining. So the 2002 class sizes should be the framework to collectively bargain cs & c going forward. The numbers for class sizes for K, primary and 4 – 12 can change throughout the negotiation process but it needs to be unilaterally bargained by both sides. Looking at what the firm numbers were back in 2002, the limits were 20 students for K, 22 for Grades 1–3, and in most districts Grades 4–12 classes were capped at 30. It’s interesting to see that prior to the BCTF’s workload proposal fund the numbers they the proposed are different than what the limits were back then. K and primary grades remain the same but instead of 30 students for 4 – 12, BCTF proposed the cap to be at 28. And then that number dropped down in subsequent years. Those limits can go up and down by both sides within contract negotiations so the term “set in stone and subject to further bargaining” would be the intent. Theoretically speaking, BCTF can propose a class size limit of 15 and the BCSPEA can propose 40 but that discussion on numbers has to happen. Or both sides can also unilaterally agree to drop the issue of class sizes and ratios altogether in favour of something else that they both can come to terms with like a LIF/Workload fund or another creative idea that I’m not sure exists in this world. But in the spirit of Griffin’s ruling, it needs to collectively bargained if the appeal goes in the BCTF’s favour and that is what I think the union interprets her reading to be.

    As you are aware, the gov’t’s stance on this is that the union should not bargain on class size limits within the collective agreement; it should stay within the School Act which basically sidelines the union from ever having a say on this issue unless it is detrimental to a teacher’s workload and most likely would be on a case by case basis. Within E80, the LIF covers the aspect of composition and ratios. I know you questioned the fund as opposed to class size limits. I think the fund was an interim measure to deal with this issue of cs & c while the Court of Appeal decision is made. Since there is a stay on bargaining on restoring the 2002 language, the BCSPEA is not legally obligated to negotiate this issue at the moment and the BCTF knew that avenue was fruitless. They are trying to bargain with the numbers on their LIF/Workload fund, which in my opinion are exactly the same but the BCTF’s proposal is substantially higher than BCSPEA. But they can’t bargain with the final E80 provision in place. As my husband puts it, “they will be bargaining themselves out of what was previously rewarded” hence this will be a long fight….

    • Thanks so much for writing back (please note my first name is Reema) and I really appreciate the time you’re taking to think through the issues.

      You’re exactly right: the discussion on numbers has to happen. As you’ve noted, the BCPSEA proposal is to have those class size numbers in the School Act. I can understand the apprehension the BCTF has about that because the government could unilaterally change those and remedies would have to be sought after the fact. So, if we bargain out the insistence on the School Act as the home for class size limits and put the BCPSEA numbers into the collective agreement given that it’s only for five years, would 22 for K, 24 for primary, and 30 for the rest be acceptable? To say that 20-22-and the hard 30 is the only acceptable outcome is not to honour the spirit of the Griffin ruling in my opinion. Could the numbers be 21-23-29? Could they be 22-24-29? I don’t know, but I don’t believe that’s being discussed.

      I understand the intent of an interim agreement, but this has never been properly explored it would seem to me. Let me explain: the negotiations have focused since June on either a 5 or 6 year term. If one of those time limits is agreed to, then the question is how do you address cs&c once the appeal comes down? BCPSEA’s E.81 proposal was meant to provide an avenue to reopen the agreement at that point. However, it’s since been pulled from the table and perhaps rightly so. But, how does one agree to a five or six year term, claim to want to adjust for the appeal court decision, and then not figure out a way in which the collective agreement can be reopened? It just doesn’t make sense to me. I understand the objections to E.81, but what mechanism was proposed by the BCTF to allow for a reexamination of the collective agreement after the appeal decision? Or is the BCTF proposing an interim agreement and then “topping-up” when the result of the appeal is known? Is that practicable?

      The question, in my mind, remains this: is the BCTF saying that the only agreement they are willing to sign in 2014 is one whereby language relating to class size and composition replicates all the language of 2002 with no changes? If so, how is that collective bargaining in the spirit of the Griffin decision?

      That’s why I can see now that this has become a matter for lawyers to sort out and my question is how do we get schools open again in the meantime?

  4. Hi Reema. I am a mom of two kids in Surrey. I have followed this dispute since the teachers voted for strike action in March. Your description and analysis of the whole issue of class size and composition and the Judge’s ruling on it in January, is the best I have read so far and I now clearly understand the ruling and it’s intentions and the spirit it was made in. Today, Glen Hannsman was on the radio telling listener’s what a grave injustice E80 is and how it was the major stumbling block to getting a deal done this weekend. He even said that Mr. Ready told the BCTF bargaining team that the government wants to negotiate away the court rulings. Yes he said that on radio! Did he grossly misrepresent Mr Ready. Surely Mr. Ready would not have said that. I think the reason this E80 clause has become such a big deal overnight is that Mr. Ready said on Saturday night that the impasse was on Benefits and Wages. Wow what a surprise that was to me because Mr. Iker has always downplayed that and said the main issue for them was class size and composition. And to hear it from Mr. Ready’s mouth that it was wages and benefits made me livid. So I think the BCTF is trying to do damage control and now they are making out E 80 to be the stumbling block and not wages and benefits. Very disappointing to find this out as a parent. I at this point, don’t believe anymore what is coming out of the government’s or the BCTF’s mouth anymore. So much rhetoric, misrepresentations and probably outright lies. . Perhaps for the outcome of this strike, you could provide us with reasoned updates as to what is “really” going on. It would be much appreciated and needed.

    • Thank you so much for reading the article and for taking the time to send me your comments. I’m pleased to know that you found my interpretation helpful.

      Glen Hansman is not mis-representing the challenges regarding class size and composition and let me try to explain a bit further. E.80 does represent the government’s proposal on class size and composition. When you look at the language in the collective agreement from 2002, there’s a wide gap between what was there before, what the court has ruled ought to be there, and what the government is proposing now. However, Justice Griffin said the language from 2002 was not cast in stone and would likely change through the process of collective bargaining. The government has taken that to mean there’s room for new language and to an extent they are correct, but a negotiated settlement will only come if the BCTF agrees to the new provisions.

      The BCTF does not want to agree to anything less than what was in the 2002 agreement. Their argument is that in the absence of a negotiated agreement — that is, no agreement on new language — the old language automatically carries forward. So, in the absence of agreement, the parties will go with the last contract of record which would be the fully-restored 2002 agreement. I get that and I understand why that may be their objective. My problem with this stance is that it shows a reluctance to negotiate new language which to me is contrary to the spirit of the Griffin agreement. That makes this a matter for a legal resolution which is going to take time.

      With regard to wages and benefits, the BCTF has put its proposals forward which are not in line with what the government is calling the public sector union pattern. The messages I’ve received from teachers is that they would be happy to compromise on wages and benefits IF there is a substantial reinvestment in class size and class composition. However, BCPSEA doesn’t feel that the BCTF bargaining team has given the same indication regarding flexibility to them. To be fair, the BCTF bargaining team may have made it clear or thought they made it clear, but the message hasn’t been received that way by the government’s bargaining team.

      Which brings me to your last point. Both sides have done their best to keep this issue in the spotlight and education deserves to be one of our top priorities. The problem is it’s not education that’s being highlighted, but political agendas to win the public’s heart for one side or the other. The BCTF is absolutely right: more money is needed for class size and composition, but that has to be considered in the context of the overall agreement. The government is also right in that it has a duty to be fiscally responsible, but, as I’ve argued elsewhere, this current course of action is not the one that will balance the needs of the education system, the obligations of the court rulings and financial considerations.

      We are at an impasse and I regret that the focus is not at the bargaining table, but on the media spectacle. I will continue to do my best to provide some different ways of looking at the issues and to press for a negotiated settlement which I still believe would be the best outcome for the public education system. Please feel free to send me specific questions which you may have and I’ll do my best to answer them or at least provide some suggestions on where you can go to get more information.

      Thanks again for engaging me in this dialogue and I wish you and your family all the very best as you find ways to manage in the absence of school opening tomorrow.

  5. Hello Reema. Thank you for clarifying the issue with me. I wanted to ask a question. Many commentators (eg. Mr. Lombardi, Ms. Bacchus, etc) have been asking that Mr. Ready table his suggestions on how to solve this dispute and make it public ( I think it’s called a Industrial Inquiry) this way everyone will know what the parties are discussing and it will dispel much rhetoric. What is needed to allow this to happen? Can only the government give the green light for this? Can parents present something that will allow Mr. Ready to do this?

    • Thanks for the question. Calls have been made for binding arbitration as well as for an Industrial Inquiry. These are options which both parties would have to agree to pursue and neither, for their own valid reasons, wants to go down that path. I’m not that familiar with the parameters of an Industrial Inquiry, but with binding arbitration, both parties present their “final offers” to a third-party who then crafts an agreement which he/she believes presents the best possible outcome overall. This essentially gives away control over bargaining (they let it go) and the parties would have to abide by the terms of the arbitrator’s decision no matter what they may be. I think that would only be realistically contemplated if the two parties were much, much closer.

      The other idea is for an independent report from the table. That is, a third-party would report on the positions each party has put forward and identify the stumbling blocks to a settlement. In an agreement between BCPSEA and the BCTF in January last year, this was one of the elements which had been agreed to in what was called the Agreement In Committee (AIC). Since then, the government reorganized BCPSEA by removing the Board (which was made up primarily of Trustee-representatives) and appointed a public administrator. The AIC framework and protocol for bargaining, including the notion of an independent report from the table, was one of the victims of that reorganization process.

      Again, I think both parties would have to agree to the release of an independent report. While that makes sense to you and to me, it’s a change in the dynamic of the relationship at the table and likely won’t be contemplated in the immediate future.

      I don’t think parents or others can ask Mr. Ready to issue such a report or to call for a different resolution mechanism. It is up to the two parties which means where at the point where those who are interested in resolving this crisis and who may not be directly at the table need to speak up and speak out. So, please feel free to email the Premier, the Minister of Education, and the BCTF: tell them you think an independent report from the bargaining table should be issues because the public is not confident in what either party is saying at the moment and tell them that you want them to get a deal done for the kids and open schools as soon as possible.

  6. Thank you for this great discussion of the issue. I quite agree that any reluctance to negotiate new language is contrary to the spirit of the court decision.

    I will add that the Harris decision to grant the appeal stated:
    [35] It is also relevant to the balance of convenience that there is no current impediment to collective bargaining over Working Conditions clauses dealing with class size and composition. The parties are currently engaged in collective bargaining, the existing collective agreement having expired on June 30, 2013. The BCTF suggests that the retroactive effect of the legislation, if it is allowed to stand, will fetter current bargaining over a new collective agreement. In making that submission, it relies on a comment made by the trial judge at para. 451 of the judgment. The Province disputes the BCTF position on the effect of the retroactive
    provision and provided me with a transcript of its argument demonstrating that the trial judge attributed a position to the government that it did not take.

    [36] I am not persuaded that an interim stay pending appeal will, as argued, materially fetter the current bargaining process. The parties are sophisticated. They fully understand that a stay indicates nothing about which party’s legal position will prove to be correct on appeal (or possibly on appeal to the Supreme Court of Canada). It is the ultimate determination of the merits that will affect the bargaining process not the imposition of a stay.

    • Thank you Sarah – I believe the way forward is through dialogue and on a much wider basis than we have now.

      I appreciate the excerpts you’ve provided from the decision to grant the appeal and here are a few of my personal comments which, of course, are not those of a lawyer.

      In [35], I believe what the judge is saying is that if the retroactive language became a matter for appeal, the BCTF argued it would hamper the collective bargaining process. That is, by introducing a situation whereby one or other of the parties might be waiting for the confirmation of the Griffin judgement through the appeal process, they would not be able to fully engage in the collective bargaining process. Unfortunately, I think this is what we’re seeing now. The government’s argument was that the trial judge, Griffin, mis-attributed a position to their bargaining effort. That is, I think, likely a reference to Griffin’s finding that the government had been bargaining in bad faith.

      With regard to [36], Judge Harris is saying that the stay and appeal process would not interfere in the collective bargaining process; that it is not dependent on either. He attributed this to the sophistication of the parties. Unfortunately, that attribution is unwarranted only in that the level of acrimony and mistrust in this relationship is such that it seems to tarnish the process of trying to collectively bargain a negotiated settlement and, at this point, I only see a legislated solution as being the most realistic one. If that does come to pass, it will be, in my opinion, the worst possible outcome because it does absolutely nothing to repair the relationships in this sector and it may in fact weaken the public education system further.

  7. How did class size and composition Language get into the collective agreement with BC’s teachers in the first place? As in any business there is usually no way an employer will give any power to employees to decide working conditions that have direct budgetary connection. It is no wonder that the current government is adamant that the language change. Those responsible for school budgets must have control of these decisions and their inevitable costs. Am I missing something?

    • Thanks you John for writing. If you’ll have a look at the comment posted by Jim Watson along with my reply to Alan McNulty, you’ll see that the points you’ve raised have been addressed.

      • Sorry, Perhaps you could pardon my ignorance on these sites but I can not find either of the names you refer too in this discussion. Is there somewhere else I should be looking?

        • Sorry John – I assumed you were commenting on another post. I’ve copied and pasted the two messages to which I was referring. You’ll find them in the comments section at the bottom of another article entitled “What’s Wrong with E.80?”. Appreciate your patience.

          My reply to Alan McNulty.

          “Thank you for writing Alan.

          I wasn’t directly involved in the public education sector at the time when the class size and composition language was put into the contract nor when it was stripped out. No matter who initiated the insertion of the language, it was done so in a manner which made the language around class size and composition part of a binding, legally-recognized collective agreement. In 2002, the provisions were stripped out by the government unilaterally and via legislation. This has now been found to be unconstitutional twice by the courts with the second case currently under appeal.

          Why? Because it contravenes Canadian law. So, you are welcome to object to the establishment of class size and composition language in the contract and there may be valid reasons to do so. Whatever your feelings may be, however, the fact of the matter is the government tried to address an issue in a way that is not in keeping with our laws regarding collective bargaining rights. I would prefer to think that my government would choose to uphold the law rather than to flout it because of political and ideological reasons — or worse, personal ones.

          With regard to unions, a union does advocate on behalf of its members – that’s what unions do. I realize that many people do not value the union model and they are entitled to their point of view. Nonetheless, to base educational policy decisions on the basis of antipathy to the union model seems to me to be misguided and ill-informed.

          Class size does benefit students and there is much research available to support that assertion. Many private and independent schools, for example, offer smaller class sizes and they are not shy about promoting this fact in their marketing materials as a key selling feature of the education which they provide. Classroom sizes in the BC public education system vary because demographic factors are not the same throughout the province. That’s one reason a province-wide, formalized single number approach may not be the most effective model for determining class size. Ask a parent: if they had an option of placing their child in a class of 24 or a class of 30, with all other factors being equal – except for band, choir, and a few other specific subject areas – which would they prefer? I’m fairly confident the majority would choose the class of 24 not because of what it may mean in terms of reduced teacher workload, but in terms of what it would mean for their child with regard to the learning environment including the greater personalized attention which their child is likely to receive.

          In my opinion, the best outcome of this labour dispute is a negotiated settlement and I say that because I firmly believe a new mutually-agreed upon contract will benefit the system the most and will benefit the students in myriad ways. If you want to argue that the union’s not interested in a settlement, then that is your prerogative. If someone else wants to argue that the government’s not interested in a settlement, then that’s their prerogative.

          What I will say is that this blame game will do nothing for the public education system nor for the families and children of this province.”

          Jim Watson’s reply to me and Alan McNulty:

          “Alan,

          I was teaching when the class size and composition language was bargained for. There was a conscious choice made then by the bargaining committee to forego a wage increase so that this language could be put into the contract. All the more reason that one of my dear friends, who was on that BCTF bargaining committee, was outraged when the language was stripped from the contract. We would have been better off just taking a wage hike!

          As for the language becoming a constitutional right: In short, it’s not. The problem that the court is addressing is the fact that the language was in a contract, and that the government reneged on that contract. If they had bargained first, and seen it removed or reduced through a collective agreement, that would have been one thing, but instead, the government created a law making illegal for teachers to even ask for class size and composition language in negotiations.

          By the time the BCTF finally got the case to court, a similar lawsuit on contract stripping by the health services unions had been fought and won by the unions (having gone all the way to the supreme court of Canada). The ruling for the teachers didn’t come until 2010. At that time, the court gave the government “one year to address the repercussions” of the impugned legislation. The court expected the government to negotiate the issue with the BCTF and come to a settlement on all of the retroactive grievances.

          14 months later, the government had made no attempt to settle grievances, but rather, rewrote the same legislation – actually cutting and pasting language from the contract that got them into trouble in the first place. At the same time, cabinet documents showed compelling evidence (and an admission from chief government negotiator, Paul Straszak) that the government was not trying to find a settlement with the BCTF, but rather, was trying to use them as political fodder for their election campaign.

          Your assertion that the BCTF wants smaller class sizes so that it can grow is, in my opinion, not true. Teachers, like everyone, want to do a good job. Job satisfaction is derived from having efficacy – the ability to do the job well. When our classes become unmanageable, we lose that efficacy. It’s extremely frustrating, because it’s not like we’re painting fences; our cliental is children, and it’s a terrible thing to know you’re not giving your best for them because circumstances prevent you.

          As for salary increases, I think you may be including the 10 year salary grid? Starting teachers gradually earn more money each year until they hit their max at 10 years. It’s basically a 10-year apprenticeship. The actual contractual pay increase have been far outpaced by inflation. I have lost wages to inflation over the whole of my 27 year career. That’s no lie. In fact, through our agreements when NDP was governing, our wages stagnated worse than ever in the 90s.

          P.S. Thank you, Reema for your well-researched post. As a teacher, I’m so close to the issues that it’s not always easy for me to step outside of it all and see it as a big picture. Your blog has helped me in this.”

  8. Thanks for the links. The info seems to support my observation on the dispute and I sympathize with the teacher but if I were one I would trying to get back to work. One has to look at reality sometimes and I figure the teachers have given it a great try but continuing to strike is not going to accomplish anything. Kenny Rogers said it well… you got to know when to hold em, you got to know when to fold em. It is tough but the employer is the government and they have shown that they are absolutely determined to change the class size and composition language in the contract. They are absolutely determined to hold salary changes to the standard of other public employee settlements. The government has shown it is so determined that it will take its legal and political lumps to accomplish these goals. You can not beat that. The government can, and probably will eventually, legislate the teachers back to work. Perhaps there is some consolation to be forced back to work but the cost of waiting for this grows everyday.

    I worked in broadcasting and learned that threatening a strike was more powerful negotiating tool than going out on one. In some industries a strike can shut the employer down and they are losing money. There is motivation to settle. A strike for a broadcaster does not usually take them off the air or affect their sales. Although inconvenient operationally stations stay on the air and the employer saves all the salary that they would normally have. You have to respect that if strike is not a powerful threat against your employer you have to get your point across some other way. I think the teachers are in this situation. It is taking a lot longer for them to figure this out than I would have thought. I think the teachers should also be considering the affect their strike is having on other workers, parents and the students. How long will they all endure this pointless exercise.

    Parents, students, school board officials, MLAs and of course teachers are the ones that must adjust the class size and compositions to proportions that would be determined appropriate. The employer, the government, has made it clear these decisions will not be part of the teachers contract.

    The NDP by the way is getting away without being forced to come clean on exactly how they would be handling this issue if they were in power. Would it be any different… perhaps not. I hear lots of criticism of the liberals but I do not hear that a different government would have a much different position on the issue.

    I have bookmarked your site as I think it is very interesting. Thanks for letting me put my two bits out there.

    • Thank you, John, for taking the time to look at the links I sent you and for your comments. I’m sorry it took me a few days to get back to you — I got caught up in the day-to-day and fell behind on my correspondence.

      You’ve raised some very interesting points particularly with regard to strikes and when/how they should be deployed for maximum effect. I do think that the BCTF strategy has been faulty although I do understand why they are trying their best to hold the government to account with regard to the court rulings.

      Whether or not the escalation to the full strike was a good decision is moot. The challenge now is to craft a solution and I sincerely hope that the talks this weekend will be productive.

      I’m not surprised the NDP may be taking a slightly more discrete approach because the issues are so very complex and their focus will be on how to run a much better campaign in 2017. They’re in the midst of refashioning their image and identity and they’ll be very careful in doing that. It is after all politics!

      Again, thank you for reading and for sending in your comments. I really appreciate the dialogue even if — especially if! — there are points on which we may disagree.

  9. […] In that spirit, I’m going to do my best today to explain why the BC Teachers’ Federation (BCTF) is objecting to the proposals put forward by the BC Public School Employers’ Association (BCPSEA) in the current round of collective bargaining regarding class size and composition.  These proposals were contained in a comprehensive package which BCPSEA, the government’s bargaining agent, presented to the BCTF on June 15, 2014. The bargaining proposals are contained in Article E.80 which I discussed at length in the article I wrote and posted on Sunday. […]

Leave a reply

1 × 2 =