It’s amusing, in retrospect, to read one of the clauses in the double-barrelled legislative crackdown on health workers and teachers 13 years ago, while bracing for today’s court decision on the education component.
After demolishing most of the elaborate job guarantees woven into health workers’ contracts over the years, the 2002 bill stated: “No action for damages or compensation may be brought against the government or any person because of this act.”
Seldom has a defense mechanism failed so completely. The bills that dismantled health workers’ deals and stripped several education issues out of the teachers’ contract instead prompted a series of court actions that have stretched well over a decade.
The damages and compensation paid out have been substantial, as far the health workers were concerned.
The Hospital Employees Union eventually won a key Supreme Court of Canada case in 2007. It established that union bargaining is a constitutional right, an ironic outcome considering how hard the B.C. Liberal government tried to curb that right. It led to a negotiated settlement under which taxpayers paid out $85 million to former HEU members who lost their jobs.
Today, a verdict is due on the other part of that sweeping crackdown, the education side. The Court of Appeal is scheduled to rule on the B.C. Teachers’ Federation parallel dispute. It’s over a legislative fix in 2012, but it flows from the 2002 legislation that removed class size and other school organizational issues from the scope of bargaining and made them policy issues.
The BCTF bided its time, but after the HEU win, the teachers’ case kicked into gear. In 2011, B.C. Supreme Court Justice Susan Griffin delivered the verdict and it was a big win for the BCTF. She ruled the bill unconstitutional because it limited their bargaining power and reduced their ability to influence working conditions.
Griffin said the flexibility the government was looking for could have been negotiated. Because of the complexity, the justice gave the government one year to make changes.
The decision came four weeks after Premier Christy Clark was sworn into office. Her cabinet huddled and decided not to appeal, but to rewrite the legislation instead. The Education Improvement Act was introduced in 2012, and the BCTF responded by taking the government to court again.
In January 2014, the union won again, even more decisively. The same judge declared the legislative fix unconstitutional.
She also found the government had secretly tried to provoke a strike for its own political advantage, and found the government had bargained in bad faith, awarding $2 million in damages.
Education Minister Peter Fassbender said reverting to the old contract as required would be “completely unaffordable” and said it would create huge disruption in schools. So the government appealed the decision, and the results will be known today.
That long backstory makes last fall’s collective agreement with the BCTF all the more remarkable. The two sides signed a six-year deal that includes provisions to mitigate findings that go against the government.
Thousands of grievances over post-2002 changes that could have cost $250 million were settled in that contract for a one-time payment of $105 million. So the Appeal Court decision will have no financial impact on the grievance bill.
Reverting to the pre-2002 contract could also have cost hundreds of millions in hiring requirements. But the current contract recognizes the case could go to the Supreme Court of Canada for a final ruling, so it allows for more talks that could be years away.
It also poured hundreds of millions in new money into the system.
There’s an important side argument to be decided on cabinet confidentiality as well.
But the main issue is on class size and composition.
The government could win the appeal and the old requirements would be gone permanently.
It could lose and deal with the fact it can’t just legislate terms out of a contract.
Or it could lose, but with a silver lining. The court could find the government has a right to change contracts, but acted in bad faith in this case and can only do so if it consults properly. That would restore the old requirements, but give the government another do-over to consult on changing them.