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Supreme Court decision strengthens bargaining rights

November 22, 2016 Gordon Thomas

Question: In 2002, following provincewide strikes, the Government of Alberta stripped clauses from collective agreements relating to teachers’ conditions of professional practice as part of the Education Services Settlement Act. Does the Supreme Court of Canada decision that reinstates similar clauses into the British Columbia collective agreement also reinstate clauses into Alberta collective agreements?

Answer: No. While the decision of the Supreme Court of Canada does apply to all of the country, it does not have the effect of reinstating clauses stripped in 2002 in Alberta.

The British Columbia Teachers’ Federation BCTF challenged the law passed in 2002 that stripped class size and class composition provisions from collective agreements and prohibited the future negotiation of clauses related to teachers’ conditions of professional practice. In 2011, Justice Griffin of the Supreme Court of British Columbia found that the legislation violated the Canadian Charter of Rights and Freedoms and gave the government a year to fix the law.

The government passed new legislation the following year that included some provisions of the previous law that had been declared unconstitutional, resulting in a further appeal by BCTF. Justice Griffin ruled, in 2014, that the B.C. government had failed to bargain in good faith and that the government’s actions had deliberately forced a strike by BCTF. Her award included payment of $2 million in damages.

The B.C. government appealed Justice Griffin’s decision, and the matter was heard by a five-person panel of the B.C. Court of Appeal. Four of the five justices concluded that the trial judge had erred; Justice Donald provided a dissent, supporting most of the decision of Justice Griffin. BCTF appealed the Court of Appeal decision to the Supreme Court of Canada, and the court, in a 7–2 decision, supported Justice Donald’s decision. In a very rare event, the court heard the arguments, recessed for a brief time and returned to deliver an oral decision from the bench.

The B.C. government is now required to reinstate the clauses that were stripped from the collective agreement, including a class size maximum in elementary, a class size maximum in secondary and the number of school counsellors in schools. BCTF anticipates that the cost of the reinstatement of approximately 3,500 teaching jobs will be more than $250 million.

Here’s the result of the Supreme Court of Canada decision. A government can unilaterally remove or impose collective agreement terms of substantial importance as long as it engages — in good faith — in pre-legislative consultation. Good faith consultation involves meeting and engaging in meaningful dialogue where positions are explained and each party reads, listens to and considers various representations made by the other; parties must not be inflexible or intransigent, and there must be an honest effort to find middle ground.

The BCTF decision does not give the Alberta Teachers’ Association any ability to go back and challenge older legislative provisions. Pre-legislative consultation was not discussed at all until 2007, so the provisions stripped from agreements in 2002 could not be reinstated. However, a government today could not do what the Ralph Klein government did in 2002. There are some constitutional protections to collective bargaining rights in Canada.❚

Questions for consideration in this ­column are welcome. Please address them to Gordon Thomas at Barnett House

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