the comfort of why

What’s Wrong With E.80?

During a one-day excursion to Victoria this summer with family members and friends, I had the opportunity to visit Craigdarroch Castle. It’s a landmark with a very interesting history including a period of time in which it served as the offices for the Victoria Board of Education. However, from 1921 to 1946, the castle was home to Victoria College and so it bears witness to the legacy of teaching and learning from an earlier era. In one of the rooms, I spotted this note on an information display:

Bill Thackery (class of 1947) … “he was an amazingly effective teacher. I guess we were doing European history, and because people were at war or people had been at war, … he’d give one side of the problem and then the next lecture he’d give the opposite side of the problem … he was very good at it … I never ran into anybody else that did that quite the same.”

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.

Given the feedback I’ve received and given the opportunity to reflect on the information I’ve gleaned since, I want to try to present the other side of the debate to demonstrate the concerns embodied in the BCTF’s position at the bargaining table.

Why?

Victoria Parliament

Because in such a contentious dispute as this one, I think it’s important to reflect on the position of both parties and to understand why a resolution has been so difficult to reach.  Professor Wayne Ross from UBC did an excellent job in summarizing the difficulties inherent in this dispute during his appearance on today’s episode of BC Almanac which aired on CBC Radio One today at noon. You’ll find a link to the audio here.

As I did on Sunday, I’d like to 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.  I’d also like to clearly acknowledge that this is not a legal opinion.

To frame the discussion, we have to remember that when speaking about 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.

Let’s look again at the issues of class size, class composition, and the ratio of specialists, the stumbling blocks in the current negotiations.

Class Size

In the 2002 collective agreement, class size limits were as follows:

  • Kindergarten: 20 students
  • Grades 1 to 3: 22 students
  • Grades 4 to 12: 30 students

After these provisions were stripped in 2002 and with the impact of other initiatives, the current class limits, as contained in the School Act and accompanying regulations, are:

  • Kindergarten: 22 students
  • Grades 1 to 3: 24 students
  • Grades 4 to 12: 30 students, subject to defined exceptions. That is, the limit of 30 can be exceeded if certain guidelines and protocols are followed or for those subject areas in which larger classes may be preferable.

In E.80, BCPSEA has proposed to use the current class size limits as a guideline to school organization but to house them within the School Act and not in the collective agreement. Any changes to these limits would then be subject to further collective bargaining and failing a resolution to that, arbitration.

This is problematic for two main reasons.

First, it’s evident that the current limits are higher than those which existed in 2002.  While the impact on kindergarten and the primary grades may be within a range of acceptability, the impact on classes from Grades 4 to 12 has been significant and led to larger classes albeit not on a consistent basis throughout the province given varying local contexts.

Why the trend to larger classes? Because of the constraints on funding, school districts will always work towards the maximum limit in order to be more efficient with the funds they have available.  This “efficiency”, although it may be construed as sound fiscal management, may not coincide with the most desirable learning conditions for students. I’ve written about class size in a number of articles, most recently in It’s All About The Facts, Not The Spin.

The second key reason for objecting to BCPSEA’s E.80 proposal is that by putting the class size limits in the School Act, the government could opt, at its own volition and at any time, to legislate changes. This means that any remedy for such unilateral action would always be after the fact with no guarantees that a resolution would be found except through an extended and expensive process.

Before I try to explain why this has served as a logjam to current negotiations, I’d like to look at the other two components in E.80 which have to do with class composition and the ratio for specialists in schools and school districts.

Class Composition

Without going through the details of the 2002 contract language around class composition, I’d like to highlight the key principle it embodied.  That is, class sizes were adjusted and classroom organization was altered to take into account the challenges which may be presented based on the specific needs of students.  To capture this complexity, the collective agreement specified a limit of three students per class with Individual Education Plans (IEPs).

This guideline, over time, was eliminated with a number of consequences. Chief among these is simply that the number of children with special needs, a designation which in fact covers a wide spectrum of issues, has increased in classrooms.  Matched with a decrease in funding which has led to reductions in programs, services, and resources, this no-limit approach, while perhaps more equitable in some respects, has had a noticeable impact on teacher workload and has also had an impact on students who may not be receiving the care and attention they need.  For more on this, please read Tracy Sherlock’s two part series on class composition which appeared in the August 30 and September 2 issues of the Vancouver Sun.

As a consequence of their first loss in the BC Supreme Court, the one in which class size and composition were confirmed as working conditions to be bargained, the government introduced the Learning Improvement Fund (LIF).  This additional funding is distributed within a school district based on a consultative process which is meant to identify the needs at each school.

Here’s the problem: the LIF, as currently structured, is like asking your three children what they need in order to learn better and then having to choose which of your three children you are going to help. Or, you try to do a little bit for each child and fail to do enough for any one of them. It becomes a competition for meagre resources.

As you can see, by structuring the remedy as a centralized fund, the ability to structure each classroom in a way which balances the teacher’s workload and the student’s needs has been greatly diminished.

However, it is my understanding that the BCTF, in its proposals, has indicated a willingness to work with the concept of the LIF, to make adjustments to the consultative process it entails, and to increase the amount of funds available for disbursements.

E.80 would appear to indicate that the parties are in agreement on the mechanism, but it’s important to understand that the value of the fund continues to be a point of disagreement and that the value of the fund may never match what was provided for in the language of the 2002 contract.

WVSS BandSpecialists

The term specialists, in the context of public education bargaining, refers to teacher librarians, teacher counsellors, english as a second language teachers, psychologists, language pathologists, learning assistance teachers, and special education resource teachers.

In the 2002 collective agreement, the number of specialists was determined by the application of a ratio which dictated how many teacher-specialists there would be per a specified number of students. I believe these ratios are no longer in effect which essentially means each school district staffs its contingent of specialists depending on what it can manage for student support services within its budget.  That is why so many of these positions have been lost over the past twelve years and it’s only logical to conclude that the fewer specialists you have, the fewer services you can offer.

As I wrote on Sunday, “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.

The problem with BCPSEA’s proposal is that the issue of the number of specialists in a school district is essentially deferred to a solution sometime in the future with no guarantee that the results from the fact-finding exercise will actually be implemented.  In other words, today’s clearly demonstrated needs would remain unfulfilled and could remain so indefinitely.

So, what does this all mean?

I hope I’ve shown how BCPSEA’s proposals, as set out in E.80, are very far removed from the caps, limits, and ratios specified in the 2002 collective agreement. Given the manner in which the government removed class size and composition language from the 2002 agreement, it can’t be a surprise that they are reluctant to return to it.

But let’s look again at what Justice Susan Griffin said particularly in this paragraph from the second court case, the one which is currently under appeal:

[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.

BCPSEA argues that in E.80 it is putting forward proposals to negotiate new language around class size and composition for a collective agreement in 2014 (which would be in effect as of 2013 because the contract expired a year ago).  This seems to me in keeping with the spirit of the Griffin decision which is that these items are subject to collective bargaining.

As part of the collective bargaining process, BCTF is under no obligation to accept E.80 as written, but there is room, if it so wishes, to discuss and modify the proposals.  For example, would it be possible to accept the class limits of 22-24-flexible 30 but have those put into the collective agreement for the five or six year term instead of leaving it in the School Act? Instead, the BCTF has chosen, with cries that E.80 must go, to reject them outright and one can understand why.

This is the quandary for BCTF: it’s evident that the BCPSEA proposals do not match the value or effect of the 2002 language which has been retroactively restored to the collective agreement.  This is what the BCTF means when it says it should not have to settle for anything less than what it has won in the courts.

My difficulty with this is that Justice Griffin said the working conditions were retroactively restored to the collective agreement; she didn’t say that the 2002 collective agreement was preserved in perpetuity.  And if the BCTF position is that the language from 2002 is not only the starting point for negotiations, but the end point, then one has to question whether that is bargaining in the spirit which Justice Griffin envisioned.

If the BCTF and BCPSEA were able to negotiate a settlement, it would likely involve changes to the language of the collective agreement. However, by virtue of being a negotiated settlement the implication is that both sides have consented to the new terms and conditions.  That is, each party may have gained something, lost something; they may despise certain aspects and be thrilled with others, but overall it’s something which each party has voluntarily decided they can live with for a limited term.

So even if the negotiated settlement were not as strong as 2002, by virtue of signing it, BCTF would have indicated that overall the deal was satisfactory and would forego any improvements which may result from winning the appeal or at the Supreme Court of Canada if the case does go that far.

I can understand the BCTF reluctance to proceed with a negotiated settlement, but I don’t think that’s the reason we are sitting without a resolution after eighteen months of bargaining.

Photo by: Reema Faris - West Vancouver School Board Trustee

And this is where I think the real impasse lies.

The real impasse lies in what happens if, even after their efforts to bargain as per Justice Griffin’s ruling, BCPSEA and BCTF have failed to negotiate a settlement.

BCTF’s interpretation is that the provisions of the 2002 contract, in the absence of a settlement, would carry forward with its language intact.  That is, the clauses on class size and composition will have been deemed to be tabled and the government will then have to return to class sizes of 20-22-30, a class composition of three IEPs per classroom, and specific ratios for specialist teachers.

The government doesn’t agree and that’s why this remains a legal debate.

As stated earlier, the court of appeal hearing has been scheduled for mid-October 2014 with a decision to follow at some point in the future. Chances are very good that whichever party loses at appeal will apply to the Supreme Court of Canada although there is no guarantee that the application to hear will be accepted.  That all takes time and a long time.

In the absence of an immediate court decision, how do we get teachers back to work and students back in schools?

The government, in the face of intense public pressure, may choose to legislate in which case we may end up with something that looks very much like E.80 for the next five to six years and which will ensure that education stays in the courts rather than in our classrooms.

The BCTF will argue that the government can make all this go away by essentially agreeing to a 2013/14 edition of the 2002 contract along with increases to wages and improvements to benefits which adds to the overall cost of the agreement.

The result of these irreconcilable differences is that we have reached September 2, schools did not open, and there’s no end in sight. You can choose to blame one side or the other, you may choose to support one side or the other, but until both sides find a way to move into the mediation zone — with a sustained bargaining effort aimed at securing a negotiated settlement — we are at an impasse.

16 Responses to What’s Wrong With E.80?

  1. Thanks Reema for unpacking this, your posts have helped to clarify quite a bit. A few questions:

    1 – Is it fair to say that as long as E.80 and wages/benefits are the subject of one and the same contract negotiation, we will most likely be stuck in this impasse?

    2 – Fassbender’s suggestion to get back to school to cool off and set aside CS & C for now wasn’t all that crazy as he thought to disconnect the two (the fact the BCTF distrusts his motives is quite another matter of course). Correct?

    3 – The government appeal hangs over this thing big time. A ruling in favour of the BCTF would potentially force changes to a negotiated as well as to a legislated settlement. A ruling in favour of the government would also have an impact, so why indeed not defer this portion until the court has spoken? You say: “This is what the BCTF means when it says it should not have to settle for anything less than what it has won in the courts” but technically this is still under appeal so why should BCPSEA budge at this stage?

    4 – Did I understand from your earlier post and the Vince Ready failure on Sunday that wages & benefits were the breaking point and that the parties hadn’t even gone as far as talking about or negotiating E.80?

    Many commentators including you have stated that this is ‘complicated’. I do not think that is the case. The bargaining structure and actors have chosen to complicate matters, but on a purely factual basis it should not be hard to separate matters and negotiate a middle ground in each area, at least that is what I have taken away from it all. The problem lies in the fact that both parties have chosen to politicize the negotiation to an extent that neither can turn back and that has created ‘complication’. The underlying facts to me are not that complicated.

    • Thank you Pieter for reading and for your excellent questions.

      Here are my thoughts:

      1. The combination of wages and benefits as well as class size and composition in one contract is, in fact, a complicating factor in the negotiations. There may have been a supportable argument for the attempt to separate the two in 2002, but the actions of the government in unilaterally stripping the provisions from the collective agreement was just wrong. Plain and simple and now proven in court – twice. However, I do not think it follows that the reason we are in this impasse is the structure of the contract. It has to do more with the legacy of mistrust which has built up over the past twelve years and the acrimonious relationship between the two parties.

      2. Fassbender’s suggestion to treat the two separately is disingenuous because there is no effective means of breaking the contract into two portions — at least in my opinion and it’s something you’d have to ask a labour lawyer (ask two and you’ll probably get two different answers!). The suggestion for a cooling off period, while admirable in intent, is really about attempting to weaken the resolve of the teachers and to swing public opinion. Can you imagine if the teachers went back for two weeks and then walked out again? It’s really not a supportable suggestion and it’s all about deflecting from the key issue of the government’s intransigence on class size and composition.

      3. The issue of the appeal is the one that continues to be a mystery to me. If both sides felt that nothing would be settled unless the results of the appeal were known, then why was there a rush to escalate the job action? On the other hand, is it really supportable to continue without a contract in place? Remember, the current contract expired in June 2013.

      To try and figure this out, I keep running through various scenarios. If the government wins the appeal, they still have to negotiate class size and composition because that was determined in the first court case which was never appealed. They may, however, catch a break with regard to the viability of the LIF as a model to address class composition and with regard to the retroactivity of the 2002 language. However, I’ve also learned that an appeal may address sections of the judgement and not others. For example, the Court of Appeal could find that Justice Griffin was wrong with regard to the acceptability of the LIF, but that she was right regarding the language being retroactive to 2002 or vice versa. A government win at appeal, which most people consider the less likely outcome, doesn’t seem to me to provide them with that much more and I struggle to explain their seeming indifference to the consequences which I believe to be very, very significant. It would take far less, in my estimation, to settle a negotiated agreement now than it might if they rely on the courts and I’ve written about that before.

      Similarly, I’m unclear as to what an appeal win for the BCTF means because the government may make application to the Supreme Court of Canada and if the hearing is accepted, then we really don’t know where the endpoint is in terms of a final judgement. By pushing the final resolution into the distance and by presuming that an appeal win is more likely for them, the BCTF – albeit on legal advice – appears to believe their hand will be stronger in the future than now or that somehow the possibility of a loss will drive the government to change it’s outlook. I get it, but I don’t see it.

      4. Vince Ready raised questions with regard to the BCTF’s position on wages and benefits. He also raised questions regarding the government’s position on class size and composition. The BCTF seems to have rejected E.80 outright and is calling for it to be removed from the table for all the reasons I tried to outline in my article today. My point has been, in conversations on Twitter, that even if E.80 is dropped, the likely outcome is that BCPSEA will introduce new proposals. It seems to me that BCPSEA wants to talk about class size and composition on the basis that E.80 is proposed new language and is in the spirit of collective bargaining as envisioned by Justice Griffin. Similarly, it seems to me that BCTF wants to talk about class size and composition on the basis of modifications or changes to the 2002 language which they see as being in the spirit of the collective bargaining as ruled by Justice Griffin. I think the BCTF proposals at the bargaining table now are an attempt to bridge until the court case, but as you might well anticipate I think the government is more interested in trying to get a collective agreement that would stand as the contract of record and not have to reopen negotiations before the end of the term. The net result is the impasse we see today.

      Pieter, it is complicated – by politics to a degree, but more fundamentally by the question of what is the role of public education, to what extent it should be funded, and who has the bigger say with regard to policy issues such as class size and composition. And that’s before you address the question of why does the government seem to be trying its best to avoid what the court has ruled on the basis of affordability rather than living up to its legal obligations? Whatever happened to peace, order, and good government?

      On that philosophical note, I thank you again for your comments and questions. More importantly, I thank you for take the time to think and reflect on the issues.

  2. Hi Reema. Bill E80 has been known since June. Why is it only now, that the BCTF is commentating on it so vociferously? It had three months to dissect it. Mr. Iker, when asked this, said they weren’t negotiating at that time. Well, he could have taken to the airwaves, to the newspapers, social media, etc to air out it’s negative consequences for education. Why only now is this clause coming up?

    Also, it has been mentioned in the last couple of days (Vaughan Palmer) that their is a good chance that the government is willing to top up the LIF but only if the BCTF FIRST negotiates on wages and benefits. The government does not want to commit extra monies to the fund and then find out that the wages and benefits package is still too rich. So, if this fight is about classroom resources and the government is willing to increase it, then why for goodness sake, doesn’t the BCTF negotiate wages and benefits first so we can get to classroom resources?

    • Those are great questions and thank you for sending them in.

      The government, in this round of negotiations, has proven to be particularly intransigent. I think that the BCTF’s strategy — and I’m only speculating — is to try and focus on one clause at a time. So, the outrage two weeks ago was regarding clause E.81 and with good cause. The clause was dropped this past weekend from the government package and I had maintained all along that it would be. I still believe it could have been bargained at the table, but I think the table isn’t functioning as it ought to because of the nature of the relationship between the two parties and the history of this dispute which extends back even beyond 2002. With E.81 gone, attention turned to E.80 which is BCPSEA’s proposals on class size and composition, one of the most significant blocks to a negotiated settlement.

      The challenge for the BCTF is this: if they do come to terms on wages and benefits, who is to say the government WILL increase its investment in class size and composition to any significant degree?

      Do you see how it’s circular? So, the government says settle on wages and benefits, and then we’ll bargain on class size and composition. The BCTF says, show us that you will make the substantial investment in class size and composition which is warranted by your consecutive losses at court (albeit the second case is under appeal) and we’ll settle on wages and benefits. It’s a standoff.

      In a healthier working relationship, the element of trust may have been there for one side or the other to move, but with no sign that the government is willing to seriously consider the consequences of their court losses, why should the BCTF accept an agreement which continues the erosion of the public education system?

      That’s the impasse you see today and the ones left out in the cold are the teachers themselves who are trying so very hard to make a difference at significant personal expense, the families who have paid their taxes to support the public education system, and the students who have a right to resume their learning in a timely fashion and with the resources to allow them to do so to the very best of our ability to provide for them.

  3. Thanks for the analysis, on both sides, Reema. In this dispute it is so easy, for me anyways, to hear what I think is a reasoned response from someone on the government’s or BCTF’s side or a political, educational, etc commentator and think, yes that makes sense why doesn’t the other side respond. Not realizing, that I am hearing a proposition or commentary from people, even though very informed and educated, have a philosophy which they deeply believe in and at times, causes them to downplay the other sides concerns.

  4. the one shoe fits all for CS&C does not work at a provincial level. negotiate all CS&C concerns with the government and individual districts as they all have different needs.

    • Thank you for writing. The challenge is that the bargaining framework is not provincial and has been since the 1990s. We can’t simply expect issues to be resolved locally when the funding model is still provincial. I think part of the problem is that we have a hybrid system; it’s a mish-mash of pieces that’s evolved over time. My only hesitation about saying that is I’m quite fearful the gov will act unilaterally to make changes without due process and consultation. I continue to hope that the parties will see the damage that’s being done by letting the dispute fester and that we’ll get a move back to the bargaining table.

  5. The Gov’t deleted class size etc from the master agreement in 2002. How was it inserted in the first place? Did the School Trustees request it originally? I find it bizarre that if you insert benefits or advantages to one side in a public sector agreement, it magically transforms into a constitutional right and a violation of that right if it removed at a later date. What are BCTU union dues? $1,200 or $2,400 per annum? The union is in the business of growing it’s business, which is more paid up members. Lower class sizes achieve this growth objective. Not bad when you have a declining student population Gov’t numbers [anyone have different ones?] show an average teacher salary increase of 46% from 2001-2 to 2012-13. Inflation rate was 19%] I doubt whether benefits or pension contributions were reduced over this same period. The positions are intractable. The next step is probably a legislated back to work order in October, with no mandated contract settlement. The Court case will have to run its course. This will alter the number of aces in each player’s hand. I think the union doesn’t really care about the wage package. They are at 2%; the Gov’t is at 1%. The Union does not differentiate between a 1% deal and a current no deal. Both are viewed as zero settlements; and for 5 years! Winning a class size court case really works for the union. Wait for the court case to finalize. If the union wins more dues; replenish the war chest. Bide your time and wait for a change in Gov’t. If you make a settlement focus will then shift to fixing the broken bargaining model. Too unwieldy and unpredictable. The least worst outcome is not to reach an agreement.

    • 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.

    • 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.

      JW

      • Thank you so much Jim for reading, for sending in your comment,and for the kind words. You have a great perspective on the history of the situation and to quote one of the SFU professors I’ve worked with, “history matters.” Your input helps to add even more depth to the discussion here.

  6. Hi Reema. I had a question. If there is no negotiated settlement reached (and it appears more and more each day, that neither side wants one) and the government eventually legislates a contract on the teachers, do you know specifically what it will look like in terms of wages, benefits and more importantly, class size and composition?

    • That is an excellent question and I’m glad you’ve asked it. Since both messages from you this morning were very similar, I’ve only posted this one.

      You’ve identified the key issue with legislation: we don’t know exactly what it will look like because it will be enacted at the discretion of the government. That is, the government decides what will go in the contract and would like stick very closely to the current proposals on the table which BCPSEA has submitted.

      Given that legislation would most likely favour the government’s position, you and I and everyone else can easily deduce that it will likely encapsulate their demands, in whole or in part, and ignore most of the BCTF proposals no matter how valid they may be and would likely fly in face of the court rulings.

      This would be different if we had any assurance the government was looking beyond its own narrow agenda and its political objectives. With a government which was focused on the education arguments, perhaps we would see provisions which addressed class size limits, ensured the reintroduction of specialist ratios to improve services to students, and significantly increased funding for the LIF to ameliorate learning conditions which arise out of the complexities of class composition.

      There is no evidence that we have a government with that inclination and that’s why I’ve maintained legislation is the worst possible outcome.

      Legislation would get teachers back to work and students back in classrooms, but here are some of the negative outcomes to consider.

      First, education would be doomed to remain in the courts for years to come because the government will not take into account the need to address class size and composition in a way envisioned by Justice Griffin’s ruling EVEN IF they were to win the appeal.

      Second, given the minimal investment the government would likely make in the LIF, we would see very little net gain in programs, services, and resources for students although we would likely see an incremental increase in the amount of the fund.

      Third, if the relationship between the government and the BCTF is currently so acrimonious, you can imagine how much worse it will be at the end of the term of a legislated agreement. Not only that, and this is something the government completely fails to recognize, this will have an impact on working relationships throughout the system which helps no one.

      Finally, with a legislated agreement, the government will have ensured that our focus in the public education system for the term of the contract would continue to be on bargaining and the problems associated with securing the next agreement as opposed to having all our efforts focused on the larger dialogue and bigger picture concerns around education.

      Legislation may be a solution in the now, but it does absolutely nothing for the public education system in the long-run. It’s not short term pain for long term gain, it’s short term pain for long term pain.

  7. Reema,

    Another excellent post, and with excellent and well-reasoned comments! Are we sure this is actually a #bced discussion? 😉

    There are two links I have that may also add to the discussion. One is a commentary on how the language that was removed from the contract in 2002, came to appear in the contract in 1998:
    http://blogs.vancouversun.com/2010/03/10/clarification-a-quick-review-of-bctf-history/
    …The 1998 contract was negotiated by the BCTF and three deputy ministers after talks between the BCTF and the B.C. Public School Employers’ Association stalled. This happened during a time of restraint when Glen Clark‘s NDP government was insisting on a three-year deal for all public-sector workers with pay increases of zero, zero and two per cent. (The BCTF bargaining team had been seeking three per cent a year.)

    Under Krieger’s leadership, the BCTF executive was the first to accept Clark’s wage restraints in exchange for province-wide class-size limits in primary grades that were described at the time as the toughest in the country. News reports said the contract provided $150 million to permit the hiring of 1,200 new teachers and triggered a construction boom because of the smaller classes. It also introduced a formula to ensure every school had a certain number of specialty teachers, including librarians, counsellors, ESL teachers and special-education teachers.

    Many in the labour movement were furious with the BCTF for accepting 0-0-2, and the BCTF bargaining committee split with the BCTF executive over the deal. Locals in Vancouver, Surrey and Burnaby were also cross about the salary freeze and urged members to reject the deal. It was, however, approved by 73 per cent of members. …
    “Trustees did not support the proposed contract, saying the class-size limits undermined the managerial powers of school administrators. Of 60 school boards, 56 rejected the contract, but their protest was ignored — until the Liberals came to power.”…

    [full disclosure – Kit Krieger was one of my teachers, when I went to Sentinel in West Van, and a darn good teacher]

    The other link is about the 2007 court case, won by the health unions:
    https://www.cautbulletin.ca/en_article.asp?articleid=324
    This past June, the Supreme Court of Canada did something that it rarely does: expressly overrule one of its judicial precedents, acknowledge that its prior analysis was wrong, and begin to rebuild its legal foundations anew. Such a volte-face by the court is even rarer for cases under the Charter of Rights and Freedoms. Yet all of this happened in B.C. Health Services.1

    In its path-breaking decision, the Court ruled the British Columbia government had breached the Charter rights of healthcare and social service employees when it invalidated a range of substantial workplace protections won by their unions during previous rounds of collective bargaining. With the decision, the Court reversed 20 years of Charter jurisprudence on workplace associational rights and set the Constitution on a new course.

    The judgement in B.C. Health Services came as an enormous surprise to most Charter watchers. In 1987, the Supreme Court had issued its famous “labour trilogy” decisions, where it stated, with arid and unimaginative reasoning, that legislative restrictions on collective bargaining and legal strikes did not offend the freedom of association guarantee — Section 2(d) — of the Charter. Other decisions followed in the 1990s, which only confirmed the Court’s lifeless approach to Section 2(d). …

    governments must not enact legislation that “substantially interferes” with the ability of a trade union to collectively bargain over workplace issues.

    “Substantial interference” is a high bar for unions to establish. The Court defined the term as any attempt to seriously undermine the activity of workers joining together to negotiate improved working conditions. Each case is fact-specific and contextual. For the Court, two factors are important. First, what is “the importance of the matter to the process of collective bargaining?” And second, what is “the impact upon the collective right to good faith negotiations and consultations?” Thus, acts of bad faith, laws and state actions which inhibit or deny meaningful consultation about working conditions, and statutes which unilaterally renounce significant negotiated terms in existing collective agreements, would — according to the Court — likely amount to “substantial interference.”

    The Court ruled that the B.C. government failed to prove the necessary justification for the breach. It stated: “The records disclose no consideration by the government of whether it could reach its goal by less intrusive measures, and virtually no consultation with the unions . . . (Bill 29) was adopted with full knowledge that the unions were strongly opposed to many of its provisions, and without consideration of alternative ways to achieve the government’s objectives.”

    I would love to hear a legal discussion of this, because when I read this, I come to several conclusions about the government’s actions at the time in removing previously negotiated items from various collection agreements:
    * was considered to be legal at the time (note I’m not saying ethical)
    * the major issue in making it retroactively illegal is that there was not any meaningful consultation with the unions
    * not to mention that it seems to have been done in haste, and without even any notification to unions, let alone consultation
    * governments could meet the meaningful consultation standards, and then put in the exact same legislation and have it be legal. The process is the issue, not the result.
    * respectful dialogue would avoid a lot of problems with government/union negotiations

    • Thank you so much Sarah for reading and for your kind words. These are the types of discussions we need to be having and the loss of space for meaningful discourse about the public education system is of great concern to me.

      Thanks, too, for the links you’ve provided. The background on how class size and composition language found its way into the collective agreement is important. However, by being incorporated into the collective agreement — over all the objections raised at the time whether they came from the BCTF or the Trustees — that language became part of a legally-binding document. Some may argue that’s the move that put us where we are today, but I don’t think that’s a fully supportable position. What’s landed us in the quagmire of today is the way in which the government unilaterally removed those clauses.

      Having said that, the Griffin decision is — as most rulings are — subject to interpretation and in this case, I believe the gap between these various interpretations has complicated this round of collective bargaining. Let me try to explain my point of view.

      Justice Griffin restored the 2002 language around class size and composition to the old contract and says specifically that despite being restored, it was not language “clad in stone”. She also said that the language would likely be and have to be changed through the collective bargaining process. So what Justice Griffin did was to reiterate the right to bargain working conditions, defined as class size and composition in this case, and that in her estimation the language from 2002 would be a starting point, not an end point. This is the court case that is currently under appeal and in which a stay was granted.

      To try and offer a more specific example of what I’m trying to say, let’s look at kindergarten class sizes. In 2002, a kindergarten class size was set at 20 students. Since then, and given the history of the past twelve years, kindergarten class sizes are now at a hard cap of 22 as contemplated by the School Act and associated regulations. What Justice Griffin said is that the parties in the public education system were obligated to talk about kindergarten class size. She didn’t say that the ideal number for a kindergarten class was 20 and that it should be that forever.

      And this is where the interpretation varies when you look at this issue from the government side and the BCTF side. The government, in it’s E80 proposal, is saying that kindergarten should be 22 as enshrined in the School Act. BCTF’s opening position seems to be more closely aligned with the 2002 agreement which would be 20 students in each kindergarten class. My question is, in the spirit of Griffin’s decision, are there other outcomes which might work? For example, would 21 in the School Act be okay? Would 22 in the collective agreement – given that the term may only be about five years — be okay? Would 19 work in the School Act? And if the class size for kindergarten were to be reduced, which would appear to be more in line with the BCTF proposal, on what part of their comprehensive package of proposals would they perhaps modify to accommodate such a gain?

      That, in my opinion, is what I would have hoped the bargaining discussion would like and it’s become apparent that it’s not happening.

      And let me add that in my opinion — and this would have to be confirmed legally — even if new language were negotiated and accepted by both parties and we had a new contract as the contract of record, if the BCTF wins the appeal, they would still be entitled to every single one of those potential grievances because a new contract does not eliminate the existence of the 2002 agreement in historical terms. I think that this may also apply if the government wins the appeal, but I’m not sure.

      Thanks also for the additional information you’ve provided with regard to the health services ruling at the Supreme Court of Canada. It looks like both parties in the public education sector feel that this dispute may also end up at the Supreme Court although there’s no guarantee that a leave to be heard will be granted. And that’s why this attitude of “let the courts decide” doesn’t move us ahead with today’s bargaining because there is currently no end in sight to that due legal process.

      With regard to the issue of good/bad faith bargaining or meaningful/meaningless consultation, the problem is that such charges can only be proven in hindsight via expensive court cases and legal challenges. Lobbing accusations at each other doesn’t constitute proof nor evidence.

      All of this leaves us with this dilemma: how do we get teachers back to work and students back into the classroom? The fact that this is still the question after 18 months of negotiations, after the loss of facilitator Mark Brown, after Justice Stephen Kelleher declined to accept the mediation request, and after Vince Ready’s brief involvement — although thankfully he’s still in the mix — is disheartening.

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