I would rather be writing about a resolution to the current labour dispute in public education.
Instead I’m left to speculate on why, with the many alternatives available, there is no settlement between the two parties after approximately 18 months of bargaining. I would simply like them to agree on one resolution mechanism and to move towards a deal rather than perpetuating this untenable situation.
Because while there are many improvements required to ensure the future health and vitality of the public education system in BC, this dispute is doing harm with every day that passes. It is damaging working relationships, it is negating the brand of public education which may drive parents into the private system, it is denying gainful employment to teachers and others, it is affecting families, it is compromising the year for students, and it is potentially setting the stage to keep education in the courtrooms and not the classrooms for years to come.
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.
So what are the options available to the BC Public Schools Employers’ Association (BCPSEA) and the BC Teachers’ Federation (BCTF) to pursue a settlement? There may be many more, but I would like to focus on four which have been a feature of the on-going public dialogue, whether in the media, online, or in conversation. These are a negotiated settlement, mediation, binding arbitration, and the appointment of an industrial inquiry commissioner.
I’ve publicly stated that in my opinion a negotiated settlement would be the best outcome for the public education system in BC.
I remember hearing Dr. Charles Jago on CBC radio a few months ago. He was the mediator who helped arrange the last settlement between BCPSEA and the BCTF. In the interview, he said that the key to achieving a negotiated settlement is to find one area where the two parties seem to have a common interest and to build from that base of consensus. In the deal he mediated, that base of consensus was an incredibly narrow plank which had to do with one benefits issue. It may have been narrow, but it was enough to get the process in motion.
One would like to think that the public education system itself represented a common base of interest, but the challenge is that the two negotiating parties in this dispute, BCPSEA and the BCTF, seem to interpret public education in very different ways.
Given the current status of the relationship between the two sides, let alone the history and the legacy of a litigious nature now seemingly endemic in the system, the likelihood of a negotiated settlement seems remote. If so, what are the prospects of success with the remaining three options I’ve identified?
Both parties have expressed interest in mediation as a means by which to resolve the dispute and it is a viable option. I’d like to suggest that in the absence of a negotiated settlement, a mediated settlement would likely be the next best approach for the parties to resolve this crisis.
Although BCPSEA and BCTF have supported the notion of mediation, based on the evidence of the revolving door of possible mediators there is cause for concern regarding the viability of this option.
Facilitator Mark Brown, who had been an observer at the bargaining table from very early on, bowed out of the process when the BCTF issued a public call for Vince Ready to become involved. Brown took this, rightly, as an expression of non-confidence and graciously stepped aside. At first Vince Ready, after reviewing the position of each side, declined to take the task on as did Justice Stephen Kelleher. Subsequently, and which perhaps we misinterpreted as a sign that the parties had moved in any substantive way, Vince Ready agreed to a weekend of exploratory talks to determine if the time had come for mediation.
It’s important to explain here that a mediator’s role is not to negotiate for either party in a dispute. The mediator’s skill is his/her ability to pull, push, and prod both parties to help them overcome the gap between their positions. In essence, the mediator is an advocate for the deal, not for one side nor for the other.
After the weekend of exploratory talks, Ready declared an impasse. That is, his evaluation of the willingness of the parties to “mind the gap” and to get to the other side led him to believe that mediation would not be successful. In his remarks, he identified wages and benefits as a continuing obstacle to an agreement as well as the larger issue, and perhaps the most contentious, around the language of contract provisions relating to class size and composition.
Since the shutdown of those talks, Mr. Ready has stepped back, but he has not entirely stepped away which means that mediation remains an option. However, mediation will not be the option for a resolution until such time as we see Mr. Ready call the two parties back together. Until he does that, we can rest assured that the two sides remain too far apart.
If mediation continues to be an option, but not a likely one at the moment, what are the remaining options for potentially securing a settlement?
On Friday, the BCTF called for binding arbitration to help break through the impasse in bargaining.
Binding Arbitration is another accepted mechanism to help sort out contentious collective agreements where the bargaining process appears to have reached a stalemate. With binding arbitration, each side puts forward their “final” offer and the arbitrator — who is recognized as an independent third-party — fashions a collective agreement which they feel represents the best solution. It’s binding because both parties have to accept the arbitrator’s decision. It is essentially ceding control of the bargaining process.
The challenge with the way that the BCTF has structured this new proposal is that it is asking for arbitration on only a few issues and not on all the issues.
To put wages, benefits, and prep time forward for binding arbitration leaves out class size and composition. This would be a viable approach if the language around class size and composition had been agreed to and these other issues were the only outstanding ones. However, there is no agreement or understanding on the language around class size and composition.
The BCTF’s argument appears to be that these specific issues can be arbitrated while the issue of class size and composition is left to the courts to decide.
The problem is we don’t know when the courts will decide on class size and composition. The appeal of the most recent Griffin decision is not till mid-October, but we don’t know when the ruling will be made. There’s also the possibility that the case could go to the Supreme Court of Canada which would further extend the timeline for any certainty on this particular issue.
In the absence of this court certainty, the BCTF has proposed the establishment of an interim fund to address the issues of class size and composition. If the government were to agree to the terms of the interim fund, then perhaps the other items could go to arbitration. But, this too is complicated because if the government agrees to the terms of the interim fund and if the courts are to decide on class size and composition, then there needs to be a mechanism by which the parties can reenter into collective bargaining once the court decision has been made.
Another complicating factor is the government’s reluctance to engage in binding arbitration because of its experience with arbitration during the 2002 dispute with BC’s doctors. You can find out more about this in Columnist Vaughn Palmer’s recent Vancouver Sun article.
While the opinion of some may be that the government can and should pay whatever it takes, there has to be some acknowledgement that the government is also required to take financial implications into consideration. We may not want money to be a deciding factor when it comes to funding public education, but I don’t think it’s fair to deny the importance of public finances either nor the multi-faceted obligations of the government to all taxpayers.
The government knows that binding arbitration would likely result in a higher financial settlement than they may want to consider. The BCTF hasn’t included class size and composition in its proposal for arbitration, partly because of the court case, but also because it could risk getting less that it is seeking.
That’s not to say, despite the government’s disavowal of binding arbitration, that this isn’t still a viable option. However, it would depend on the parties being able to agree on an acceptable framework for arbitration — something that offered each side enough comfort to allow them to cede control over the outcome.
If not mediation and if not arbitration, are there any other options left for the two to consider?
Industrial Inquiry Commissioner
I don’t know enough about what’s involved with appointing an Industrial Inquiry Commissioner, but I know it’s an approach which the Vancouver School Board has promoted and I’ve also seen it promoted on social media.
As I understand it, an Industrial Inquiry Commissioner is an independent third-party much like an arbitrator. He/she would talk to both sides and investigate the impasse they’ve come to in collective bargaining. The outcome of this investigation would be a report which would identify why the parties have failed to arrive at a settlement and the report would also contain non-binding recommendations.
I asked on Twitter last night why this would work if the recommendations were non-binding. The feedback I received was that given what the process entailed, it would create a situation where the parties would be compelled to resolve their differences based on the framework provided by the Commissioner.
It sounds like a very viable approach and the question then becomes why is this not the option that’s being pursued most actively by BCPSEA and the BCTF given the roadblocks which seem to hamper the other options we’ve discussed?
I’m not sure, but I would hazard a guess that both parties would be reluctant to face up to what the report may reveal with regard to bargaining strategies and proposals. There is also a risk involved, as with binding arbitration, of setting in motion a mechanism which entails ceding control of the outcomes and being spurred into pursuing a particular course of action.
These are the four options which I’ve seen put forward most often as ways in which this dispute could be settled and which would get teachers back to work and students back in school. If none of these options is pursued successfully, then we may see legislation to end the dispute and I believe that will be the worst possible outcome for the public education system.
Having discussed these four options and knowing that none of them appears to have led towards a solution, I’m left with one key question for each of the two parties.
My question to BCPSEA is this: after approximately 18 months of bargaining, just exactly how much money is the government prepared to put into the Learning Improvement Fund and how much money is it willing to put forward to address grievances arising from the Griffin decision in order to settle this dispute?
My question to the BCTF is this: apart from the government “giving in” by writing a cheque for the full value of the TF bargaining proposals as they currently stand, what is the way out of this current labour dispute?
My parting thought to both BCPSEA and the BCTF is this: there are many options — four that I’ve outlined in this article alone — which may help to resolve the labour dispute.
Please just pick one.
Make it work and get a deal done.
Open schools and let kids get back to learning.