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.

An Open Letter to the Premier of British Columbia

Dear Christy,

I hope you don’t mind me calling you Christy.  We’ve never met, but you seem to pride yourself on connecting personally with British Columbians, so I’m sure you won’t mind my use of your first name.

I think it’s critically important for women to be involved in politics at all levels of government.  I ran for the first time in 2011 and was honoured when the residents of West Vancouver elected me to be one of their trustees to the Board of Education.

Given my belief that women in politics are agents for change, it is with some hope that I viewed your election as leader of the BC Liberal Party and, subsequently, as Premier. 

The opportunity to have a woman at the helm of the governing party seemed to me to be an opportunity to do things differently, to do things in a manner which is more collaborative and more substantive.  To rise above partisanship and to focus on the overall good of our province and not merely to wallow in ideology.

Since then I’ve grown increasingly disillusioned by your approach to politics and governing.

Why?

Victoria Parliament

Because rather than being an innovator in politics, you seem to be perfecting the art of politics by photo opportunity and soundbite rather than by policy and depth.

This is perhaps most evident in your approach to public education in our province and your reaction to the decision by Justice Griffin of the BC Supreme Court.

Essentially, Justice Griffin reaffirmed her earlier finding that legislation in 2002, enacted when you were Minister of Education, was unconstitutional and that the remedies subsequently introduced were insufficient.

This means that hundreds of millions of dollars that should have been invested in the public education system have been diverted.  Not only that, but in the intervening twelve years, increases in costs, inflationary increases in conjunction with downloaded costs, have outpaced increases in funding which means that Boards of Education throughout BC have done more and more with less and less.

The continuing success of Boards should not be taken as an indication that funding is adequate.  Rather, it is a testament to their resilience, and the resilience of all the partner groups including parents, that our students have continued to thrive and excel.

Imagine the success we would have had if you had maintained funding according to the terms of the 2002 collective agreement!

We would have had greater equity across school districts.

We would have more successfully addressed the needs of our most vulnerable students.

We would have kept more schools open.

To argue now, in light of the court judgement, that the solution is not affordable and that it will cause irreparable harm to students is to focus on being right rather than doing what’s right.  

I’m confident that Justice Griffin was not counting on a time machine to carry us back in time and I recognize that filing an appeal is an option available to you in our legal system. I also believe the time has come for you to show leadership and to do things differently.

Negotiate a new contract with the BCTF, with new parameters for September 2014, and agree to provide the additional funding which will be required to fulfill the terms of a new agreement.

That, Christy, would reaffirm my belief in the power you have, as a woman in politics, to make a difference and, in particular, to make a difference which will undoubtedly benefit students in BC’s internationally recognized public education system.