Ruling reiterates B.C. Medical Services, limits gov’t power to rewrite collective agreements
The B.C. Supreme Court has reaffirmed collective bargaining as a constitutional right for Canadians. In a recent ruling, the court said legislation imposed on B.C. teachers almost 10 years ago substantially interfered with their bargaining rights and violated their freedom of association guaranteed under the Charter of Rights and Freedoms.
“While not a perfect tool, collective bargaining has long been seen as the best vehicle for resolving differences between management and labour,” wrote Justice Susan Griffin. “Giving workers a voice in the process of determining their working conditions, even where they are not substantially successful in advancing their position, is regarded as a means of increasing stability in the workplace.”
In 2002, the B.C. government rushed three bills through the provincial legislature in a weekend, without consulting the unions involved. Two of them affected teachers.
Bill 28, the Public Education Flexibility and Choice Act, prohibited certain items from collective bargaining, including staffing, class size and classroom makeup (including the number of children with special needs integrated into a class). Teachers argued these issues had a substantial impact on their working conditions and affected other aspects of their job, including hours and days of work. The government said they were matters for educational policy decisions.
Bill 27, the Education Services Collective Agreement Act, imposed one collective agreement on teachers in newly amalgamated districts where there had previously been two or three local ones.
Meanwhile, Bill 29, the Health and Social Services Delivery Improvement Act, allowed healthcare providers to contract out services regardless of collective agreement restrictions, effectively overriding existing agreements. A challenge to that law led to a landmark ruling in June 2007 (B.C. Health Services) at the Supreme Court of Canada, which ruled collective bargaining should be protected by the Charter.
That decision formed the basis for the recent ruling on Bills 27 and 28, which found that removing the provisions from collective bargaining without consultation violated the Charter.
Derek Fudge, national director of policy development with the National Union of Public and General Employees (NUPGE), called the ruling “significant” for government employers.
“The courts are saying governments have an obligation to sit down and consult with employees before they go to legislation,” he said. “You have to demonstrate that you’ve approached collective bargaining in good faith, and if you’re going to interfere you have to limit the amount of interference.”
Fudge said since 1982, governments in Canada (including federal, provincial and territorial) have passed 193 laws that restrict collective bargaining rights; 75 per cent of them were introduced to deal with a government’s own employees.
“Governments wear two hats: one as an employer and one as a government,” he said. “Over the past three decades, when they can’t get their way, they change from their employer hat to their government hat. The courts are saying they can’t do that anymore. They have to take time, consult with their employees and talk.”
Fudge said the B.C. decision is “reassuring” given the situation in the U.S. where several state governments have stripped the collective bargaining rights of public servants.
“These decisions reflect Canadian values,” he said. “It’s an important piece but we recognize that the union movement can’t become stronger and more dynamic by just relying on the courts.”
The legislation was introduced almost 10 years ago when current B.C. premier Christy Clark was the education minister. “It’s obvious we didn’t get it right back then and going forward we want to ensure we deal with the teachers’ union in the right way and in the way the Court has directed us to,” Clark commented on the decision.
The B.C. government has one year to respond to the decision. Meanwhile, the current contract with teachers expires in June and the province has maintained there is no money for wage hikes.
