May 1, 2015
The British Columbia Court of Appeal has reversed last year’s lower court decision that gave the British Columbia Teachers’ Federation (BCTF) the right to bargain issues of class size and composition with the BC Public School Employers’ Association.
In 2012, the provincial government passed Bill 22, which had the effect of voiding certain negotiated terms of the collective agreement related to class size and staffing levels, among other topics, and prohibiting collective bargaining with respect to the same topics. Bill 22 was similar in these respects to Bill 28, which had previously been declared a violation of teachers’ right to freedom of association under the Canadian Charter of Rights and Freedoms.
The 2014 decision that was the subject of the appeal concluded that Bill 22 also violated the same right. It restored the deleted terms to the collective agreement while awarding two million dollars to the BCTF as damages under the Charter.
The Court of Appeal, in a 4-1 majority decision, concluded that Bill 22 did not violate the teachers’ right to freedom of association. Because the provincial government had conducted good faith consultations with teachers prior to passing the new legislation, the teachers had still had access to a meaningful process to make collective representations about their workplace goals and have those views considered.
Further, since Bill 22’s prohibition on addressing class size and staffing levels through collective bargaining was only temporary (lasting just one round of bargaining), the Court of Appeal concluded it had “only a minor effect” on the teachers’ associational right.
The two million dollar damage award was also overturned.
The decision is significant for labour relations in the public sector, emphasizing again that the Charter does not mandate a particular model of association or of collective bargaining. The Court of Appeal viewed the province not as an “employer” in these consultations, but as acting in its capacity as the maker of education policy and custodian of public finance. Governments, unlike businesses, have an obligation to promote a broader public interest when engaging in collective bargaining.
The BCTF has indicated it will seek leave to appeal to the decision to the Supreme Court of Canada.
The full text of the decision can be found here.
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