the comfort of why

When Is One Reopening Clause Better Than Another?

Today will be a historic day in BC public education.  Members of the BC Teachers’ Federation (BCTF) will be voting on whether or not to ratify the tentative agreement their union hammered out with the BC Public School Employers’ Association (BCPSEA) earlier this week.

As of about 9:00 p.m. Wednesday evening, the BCTF had shared summary information with its members and conducted information sessions on the tentative agreement although they had not yet released the full text of the proposed contract.

While the BCTF executive and bargaining team have maintained that the tentative agreement does not infringe on the court case regarding class size and composition, there are those who dispute their assertions particularly with regard to what’s being called the “reopening” provision.

Not only do I believe that the BCTF is correct in saying that the reopening provision does not hamper the court case, but I see it as a “give” on the part of BCPSEA and the government.

Why?

Before I explain and as I’ve done in previous articles, I’d like to note that any errors of fact in the following discussion 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.

While I haven’t seen the final text of the reopening provision, this summary represents my analysis based on the preliminary information I’ve received from two different sources.

Open Window

According to what I know, if the government wins the appeal, the collective agreement will remain in place until the end of the term which will be June 2019. During that time, if the BCTF has lost the appeal, it may try to refer the decision to the Supreme Court of Canada (SCoC) (which may or may not grant leave to hear the case), but in the time it may take for such action, teachers will be at work and students will be in school.

If you remember, this is significantly different from BCPSEA’s original E81 proposal which would have allowed reopening of the collective agreement by either party following the appeal decision.  Due to intense public pressure, this clause was dropped by BCPSEA during bargaining.

So if the government wins the appeal — which may mean that the class size and composition language would not be restored to the collective agreement — the contract would not be affected. I say “may” because we don’t know if the appeal will address all of the Griffin judgement or only parts of it. There’s no way of saying with absolute certainty what a government win would look like.

On the other hand, if BCTF wins at the Court of Appeal, then the collective agreement may be opened for discussion by the parties. The draft language I’ve seen seems to indicate that the collective agreement would only be opened on this issue. If this holds true in the final text of the proposed clause, it is significant because it means the talks which would result from any reopening would only contend with class size and composition and not any of the other terms or provisions.  That means wages, benefits, prep time, and the changes regarding TTOCs agreed to in this round of bargaining would all be protected.

Faced by a BCTF win at the Court of Appeal, which many presume is likely but which is not a predetermined nor a guaranteed outcome, the government may choose to petition the SCoC.  I’m not clear yet on what that means with regard to negotiations on class size and composition.  That is, if the government appeals to the SCoC, will the parties still open that part of the collective agreement even though the court process has not been completed or will they wait until such time as the SCoC, if it agrees to hear the case, makes its final determination?

Nonetheless, the current deal, if ratified, would remain in place until such time as changes regarding the restored language around class size and composition was agreed to and implemented.  If I’m understanding this correctly and if the court decision comes down sometime before June 2019, the talks on class size and composition could take place without a strike or lockout which would only be options available when the contract does expire.

Looked at in this way, it seems to me that this reopening clause is a vast improvement, from the perspective of the BCTF, over what had been proposed by BCPSEA in E81.

With regard to the view that the reopening clause imperils the court case, it seems to me this opposition is based on an interpretation which is not aligned with the Griffin judgement nor in the spirit of it.

This discrepancy is at the heart of the legal conundrum and which will only be clarified by the upcoming rulings at the BC Court of Appeal and the SCoC if this case goes that far.

The conundrum is this: in the face of a lack of agreement on class size and composition, once and if the collective agreement is reopened for bargaining, which language carries forward into future contracts?

The assumption by many BCTF members seems to be that in such an eventuality the 2002 language, as it was and in full, would carry forward with fixed limits on class size, a fixed cap on class composition, and fixed ratios for specialist teachers.

I’m not sure that’s a valid assumption because it seems to me Justice Griffin restored the language to the historic contract with a clear admonition that it would likely change through collective bargaining.

But, what did Justice Griffin mean by change? Does change mean the same language, different numbers? Different language, same numbers? Different language, no numbers?  How large a scope does collective bargaining have when it comes to new language in a contract for pre-existing provisions?

There’s another piece of the puzzle to consider. If the class size and composition provisions had remained in the 2002 collective agreement, the parties would have potentially negotiated at least two or three or more collective agreements since then.  I think it’s reasonable to assume that the language of those hypothetical agreements may have looked different from 2002 (especially when you consider the unconstitutional measures the government took to remove those sections from the contract).  As much as we might conjecture, we can’t say with certainty what the modified language would have looked like.

Although we don’t know what a consistently negotiated contract may have looked like, it seems to me that in the face of a lack of agreement now, the language of the most recent agreement — the agreement we can imagine but which never existed — would be the language to go forward NOT the historically restored language from 2002.  And, that’s why there’s room in this particular case to consider significantly new language for class size and composition albeit it is new language which the two parties will have to agree upon through a process of good-faith collective bargaining.

Because the puzzle of what happens in the absence of an agreement remains unsolved, I’ve come to understand much better why the most reasonable approach in this situation has to be “let the courts decide” and the only path to a negotiated settlement, at this time, was a “work around”.

The need to let the courts decide is clearly one of the factors which has made this round of bargaining so difficult.

It’s also why I believe that the proposed reopening clause works in favour of the BCTF and its members because it seems to provide a way to discuss the most critical issue in the collective agreement without any further labour disruption to the public education system until June 2019.

And I can’t help but feel that’s a good thing.

4 Responses to When Is One Reopening Clause Better Than Another?

  1. As you may remember from a twitter debate you witnessed between me and Sandy Garossino, This is a quote from the Bill 22 ruling:

    When legislation is struck down as unconstitutional, it means it was never valid, from the date of its enactment. This means that the legislatively deleted terms in the teachers’ collective agreement have been restored retroactively and can also be the subject of future bargaining.

    I interpret this to mean that 1. Class size and composition HAS BEEN RESTORED to pre-2002 levels. And that 2. This will be the starting point for future negotiations on CSC (provided that the matter survives appeal).

    Also, my reading of the whole ruling suggests that its main effect is to restore the right for teachers to bargain class size and composition as a working condition. It does not say that the parties must interpret the meaning of the restored language. The language IS RESTORED, and just as it was unconstitutional to remove the language unilaterally in 2002, it would be unconstitutional to remove it unilaterally now.

    The starting point for negotiations is pre-2002 levels. If the BCTF wishes to negotiate those provisions away, leveraging them for other benefits once the contract has expired, they may use whatever legal job action they want to pressure government for this. And similarly, if the government wants those provisions removed, they can use whatever legal employer action they want to pressure the union to remove them.

    However, what the ruling does NOT say is that the levels are to be determined through negotiation. The levels are now set and can only be CHANGED through negotiation. There’s a difference. I’m not sure what the effect of the reopener clause will have if the union refuses to relinquish these restored terms from its contract. I suppose the government could lock the union out until teachers capitulate, but until the next contract negotiations, I don’t see the government having much power to change the terms.

    I’d dearly love a legal interpretation of this from a labour lawyer, if you happen to know one.

    • Thanks Jim for writing and I hope you don’t mind, but I formatted the second paragraph so that it appeared as a direct quote as you had specified.

      I don’t know a labour lawyer although I do know a number of lawyers, and I’m sure you’d get as many different interpretations as you would lawyers you consulted! That’s why both the BCTF and the government are pursuing this case: they are operating under legal advice which differs and we’ll have to wait to see what the court decides.

      I think you have to read the section you’ve quoted with 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.

      And this brings us to where those legal interpretations differ. In the absence of agreement, which language carries forward?

      In practice, if both parties cannot agree on changes to particular provisions, then that section remains as is. So, there’s a valid argument to say that it would be the 2002 language which would carry forward. But, as you rightly point out, if the BCTF refuses to bargain in good faith on those clauses and stonewalls in the belief that they will automatically go forward in the absence of negotiated changes, then that’s problematic because they will not be adhering to the spirit of collective bargaining. In that scenario, you could actually see the government sue the BCTF! Okay, that’s far-fetched, but I’m simply using it to illustrate my point.

      As I tried to indicate in my article, even though that language is restored to the 2002 collective agreement I can’t see the basis for assuming it would carry forward because there could have very well been changes if each subsequent contract had been negotiated. In other words, we actually don’t have the language that would carry forward in the absence of agreement and that’s why I think Griffin has potentially opened a real Pandora’s box. The scope of what might be considered fair changes to contract language could be significantly altered depending on how the next court ruling — and the one after that if it goes to the Supreme Court of Canada — comes down.

      In a recent conversation, someone said to me that it’s very difficult to remove clauses and provisions from a contract once they’ve been inserted. But here’s another thought I have: that might have been the traditional understanding, but I think we may be on the verge of a new understanding because the outcome of these court cases may very well decide on a precedent-setting bar for what constitutes acceptability when it comes to new language for a collective agreement.

      That may work in the BCTF’s favour and it may not. One thing I do know: it’ll keep many lawyers busy for years to come and it’ll be required reading for the future generations of labour lawyers, too!

  2. Hi Reema. Thank you for the article. I had some questions which may have been answered in your article but I may have missed it. If the BCTF wins the appeal, and they re-open the CSC issue they would have to bargain again with the government. Now the BCTF would want to start bargaining with the class size numbers prior to when they were stripped by the government and the government will want class sizes much higher than what the BCTF wants. This will probably invite another round of acrimonious debate. Will Vince Ready be called in again to mediate? Also, if the two sides agree on a number that is higher than what the government wants would there be a gradual timeline to implement these new changes. Hiring new teachers (many of whom would have no significant classroom experience) reducing class sizes, etc would create chaos and you would have some very inexperienced teachers in the classroom. This would not be a good thing for students. Also I remember a while ago, that Sandy Garossino mentioned on the Bill Good Show, that if the BCTF wins the appeal, the judge who makes the ruling, MAY NOT grant the government a stay in proceedings (like they got in this round.) Would that mean that class sizes would be immediately reduced? Do you know if this is true and if it is, how would it play out. I know there are a lot of “if’s” in my comments, but it seems that this may be the calm before another storm.

    • Thank you again for writing with another series of great questions!

      Here are my thoughts and please remember that my responses are not legal opinions. I like to think that at least they are well-informed ones!

      1. If the BCTF wins the appeal, they will start bargaining with the government on class size and composition. However, changes in classrooms would not be evident in the short term because of two things. First, the government may decide to apply to the Supreme Court of Canada which extends the final decisions into the future yet again. Second, the end of the contract is not till June 2019. That means the discussions on class size and composition could start before then, but no direct job action can take place until then. If – by some miracle given the toxic nature of the relationship – the BCTF wins the appeal, the government doesn’t decide to go to the Supreme Court or the Supreme Court refuses to hear the case AND they agree on class size and composition language before the end of the contract, then changes would be made, but slowly and with careful planning.

      2. Vince Ready may be called in again to mediate, but remember he only comes in to sew up the deal. I would very much doubt that he’d be involved with those discussions right from the start. It’s likely, or I should say reasonable to expect, that a facilitator may be engaged to work with the parties to help with what will be difficult talks, just as Mark Brown was at the table at the beginning of this round of negotiations.

      3. If discussions were concluded and new teachers were to be hired, remember that there are many teachers on call who could go from being part-time to full-time. Some of these teachers have lots of experience, but because of the way hiring in the sector works, they may not have had a full-time contract yet. Don’t forget that the universities continue to produce new teachers every year as well. I don’t think there would be difficulties in filling positions except for certain areas where we have challenges now such as French Immersion.

      4. Even without a stay, changes — some of which could be very significant — cannot be made at the drop of a hat. It would take time and patience, so I don’t think that ought to cause you too much concern.

      Finally, this may very well be the calm before the storm, but the storm won’t hit until June 2019. There may be many squalls along the way — and there’s bound to be a lot of rhetoric — but I’m hoping this experience will guide the parties to a new way of working together because these last few months have been dreadful.

      I hope that helps and I look forward to hearing from you again. Thanks, too, for taking the time to read my articles and for engaging in this very worthwhile dialogue.

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