FURTHER COMPLAINT. BRITISH COLUMBIA TEACHERS FEDERATION (the BCTF ) to the

Transcription

1 FURTHER COMPLAINT of BRITISH COLUMBIA TEACHERS FEDERATION (the BCTF ) to the COMMITTEE ON FREEDOM OF ASSOCIATION OF THE INTERNATIONAL LABOUR ORGANIZATION (the Committee ) with respect to Case No. 2173, being Complaints against the Government of Canada concerning the Province of British Columbia September 2004

2 I. Introduction The Government of the Province of British Columbia, Canada has over the past three years enacted legislation affecting tens of thousands of working people in British Columbia, contrary to the fundamental principles of free collective bargaining and of freedom of association. The British Columbia Teachers Federation ( BCTF ) previously filed two complaints, one dated November 23, 2001 and one dated June 21, 2002, alleging violations of international principles. These two previous complaints became part of the International Labour Organization ( ILO ) Case No Drafts of the previous complaints are attached at Tabs 1 and 2. On March 27, 2003, the ILO Governing Body adopted and released the 330th Report of the Committee on Freedom of Association (the Committee ) regarding Case Nos. 2166, 2173, 2180 and This is a Report in which the Committee drew the legislative aspects of these cases to the attention of the Committee of Experts on the Application of Conventions and Recommendations and requested to be kept informed of further developments. We write to inform the Committee of significant further developments affecting 42,000 teachers and associated professionals employed in public schools in British Columbia. Specifically, we write to inform the Committee about a British Columbia Supreme Court ruling in favour of the BCTF and its members, and about British Columbia Government (the B.C. Government ) legislation overturning that same British Columbia Supreme Court ruling. By way of background, the Governing Body adopted the recommendations of the Committee contained in para. 305 of its 330th Report. In its recommendations the Committee stated that the Government of the Province of British Columbia should: (1) repeal the Skills Development and Labour Statutes Amendment Act, S.B.C. 2001, c. 33 ( Bill 18/2001 ); (2) adopt a flexible approach to amending the Education Services Collective Agreement Act, S.B.C. 2002, c. 1 ( Bill 27/2002 ), to permit the parties to vary by agreement the working conditions unilaterally imposed by the legislation; (3) establish a commission and raise the issues in connection with the Public Education Flexibility and Choice Act, S.B.C. 2002, c. 3 ( Bill 28/2002 ), namely the scope of permissible collective bargaining between teachers and their employers; (4) in future, the B.C. Government was to (a) (b) refrain from legislatively imposed settlements, respect the autonomy of bargaining partners in reaching negotiated settlements, and 2

3 (c) hold meaningful consultations with representative organizations when freedom of association and collective bargaining may be affected; and (5) provide the Committee with judicial decisions concerning pending court challenges in connection with the complaints and keep the Committee informed of all developments. In terms of item (3), the BCTF notes by reading the Committee s 333rd Report, para. 27, that the B.C. Government has informed the Committee of the establishment of a commission to consult with groups in the education sector. The commission s mandate is to recommend new collective bargaining structures in education. Despite the Committee s recommendation (330th Report, para. 305) that scope of collective bargaining issues arising out of Bill 28/2002 be raised, the terms of reference for the commissioner deliberately omit these issues. The BCTF continues to urge that scope of bargaining issues be addressed in the final report of the commissioner. It is anticipated that the commissioner will complete his work by the fall of 2004, but it remains unclear whether scope of bargaining will be addressed in any substantive way. The BCTF writes to inform the Committee of the following subsequent events: (1) the January 22, 2004 judgment of the British Columbia Supreme Court in British Columbia Teachers Federation v. British Columbia Public School Employers Association, 2004 BCSC 86 (the 2004 B.C. Supreme Court Ruling ), a copy of which is attached at Tab 4; and (2) legislation passed by the B.C. Government on April 22, 2004, the Education Services Collective Agreement Amendment Act, S.B.C. 2004, c. 16 ( Bill 19/2004 ), a copy of which is attached at Tab 5. As well, the BCTF informs the Committee of the July 7, 2004 judgment of the British Columbia Court of Appeal in Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2004 BCCA 377, in which the appeal of the constitutional challenge to Bill 29 is dismissed. A copy of the judgment is attached at Tab 6. The health unions are seeking leave to appeal to the Supreme Court of Canada. Even though the British Columbia Court of Appeal decision involves the health and social services sector and not the education sector, we are providing the Committee with a copy for its information and because the Committee wanted to be kept informed of the outcome of judiciary proceedings. The BCTF has advanced similar constitutional challenges to Bill 27/2002 and Bill 28/2002 but these challenges are on hold pending the outcome of the Health and Social Services case. II. The Complainant The Complainant is the BCTF. The BCTF is a trade union representing 42,000 teachers and associated professional workers employed by school boards in the Kindergarten to Grade 12 3

4 public education sector of British Columbia. It is affiliated to the Canadian Teachers Federation and Education International. The BCTF bargains with the British Columbia Public School Employers Association, the central bargaining agent of the 60 school boards in British Columbia. BCTF and British Columbia Public School Employers Association are jointly referred to as the parties. III. The Government The Government of Canada, Ottawa, Ontario, Canada, is a member state of the United Nations and of the International Labour Organization. Canada has ratified Convention No. 87, the Freedom of Association and Protection of the Right to Organize Convention (1948). The Honourable Joseph Frank Fontana is the Federal Minister of Labour. The Government of the Province of British Columbia, Canada, is situate at Victoria, British Columbia. The Premier of the Province is the Hon. Gordon Campbell. The provincial Minister of Skills Development and Labour, the Hon. Graham Bruce, introduced Bill 27/2002, Bill 28/2002 and Bill 19/2004. IV. Events Giving Rise to Further Significant Developments Our initial facts are contained in our complaints to the ILO dated November 23, 2001 and June 21, 2002 (Tabs 1 and 2). The following is a brief chronology of events specifically related to the further significant developments: January 27, 2002 January 28, 2002 Bill 27/2002 legislatively imposed a deemed collective agreement on the parties, modifying the previous provincial collective agreement by making changes largely on the terms sought during negotiations by the British Columbia Public School Employers Association. Section 9 of Bill 28/2002 extensively amended section 27 of the B.C. School Act by setting out a number of subjects that may not be included in a collective agreement. The list of items which previously could not be included in a collective agreement included terms: (a) (b) regulating the selection and appointment of teachers under this Act, the courses of study, the program of studies or the professional methods and techniques employed by a teacher, restricting or regulating the assignment by a board of teaching 4

5 (c) duties to principals, vice principals or directors of instruction, limiting a board s power to employ persons other than teachers to assist teachers in the carrying out of their responsibilities under this Act and the regulations. Bill 28/2002 added a further list of items which cannot be included in a collective agreement between the parties. These include terms: (d) (e) (f) (g) (h) (i) (j) restricting or regulating a board's power to establish class size and class composition, establishing or imposing class size limits, requirements respecting average class sizes, or methods for determining class size limits or average class sizes, restricting or regulating a board's power to assign a student to a class, course or program, restricting or regulating a board's power to determine staffing levels or ratios or the number of teachers or other staff employed by the board, establishing minimum numbers of teachers or other staff, restricting or regulating a board's power to determine the number of students assigned to a teacher, or establishing maximum or minimum case loads, staffing loads or teaching loads. An unusual process was mandated by Bill 28/2002 which eliminated the consensual appointment model of arbitration utilized in British Columbia. In place of the consensual appointment model, the Minister of Skills, Development and Labour (the Minister ) was given the power to appoint an arbitrator to determine whether a provision in the Teachers Collective Agreement constituted under Bill 27/2002 conflicted with or was inconsistent with section 27(3)(d) to (j), as enacted by Bill 28/2002. Section 27.1(2) required that the arbitrator resolve all issues and make a final and conclusive determination. Arbitrator Eric Rice was appointed by the Minister on July 17, 2002 pursuant to section 9 of Bill 28/2002 to determine which provisions in the parties' collective agreement needed to be modified or eliminated due to the enactment of Bill 28/2002. August 30, 2002 (Tab 3) Arbitrator Rice rendered his decision on August 30, In his decision, Arbitrator Rice deleted hundreds of provisions from the parties collective agreement. These deletions covered a wide range of voluntarily agreed-to contractual provisions including class size, class composition, schoolbased teams, specialized services, staffing formulae, equitable distribution 5

6 of workload provisions, and limitations concerning home education students. November 20, 2002 January 22, 2004 (Tab 4) February 20, 2004 April 22, 2004 (Tab 5) April 30, 2004 The BCTF applied to the British Columbia Supreme Court for judicial review of Arbitrator Rice's decision. The matter was heard in the fall of Justice Shaw of the British Columbia Supreme Court issued the 2004 B.C. Supreme Court Ruling. Although he rejected the BCTF's challenge on the legality of Arbitrator Rice's appointment, Justice Shaw found five errors of law. Justice Shaw ruled that Arbitrator Rice should have applied the principle of harmonization to attempt to reconcile the differences between the legislative intention and the language embodied in the parties collective agreement. Justice Shaw concluded that: The errors of law that I have found are of such fundamental importance to a correct determination of the issues put to arbitration that it would be wrong to refuse a remedy. He therefore quashed the decision of Arbitrator Rice (Tab 4, paras ). The British Columbia Public School Employers Association filed notice to the British Columbia Court of Appeal appealing the 2004 B.C. Supreme Court Ruling. The BCTF cross-appealed. The B.C. Government enacted Bill 19/2004, effectively re-imposing Arbitrator Rice's decision stripping hundreds of provisions from the parties' collective agreement. The British Columbia Public School Employers Association filed notice abandoning its appeal of the 2004 B.C. Supreme Court Ruling since the B.C. Government had legislatively rendered its appeal academic. The BCTF abandoned its cross-appeal. In summary, the B.C. Government enacted legislation granting Arbitrator Rice jurisdiction to remove hundreds of provisions from the parties collective agreement. Arbitrator Rice deleted these provisions from the parties collective agreement on August 30, Consequently, the BCTF sought judicial review of Arbitrator Rice s decision, and the British Columbia Supreme Court restored many of the collective agreement provisions. In response to the Court ruling, the B.C. Government by legislation removed the provisions from the parties collective agreement that the 2004 B.C. Supreme Court Ruling had restored. 6

7 V. The Legislation: Bill 19/2004 Bill 19/2004 amended Bill 27/2002 and the School Act to remove hundreds of provisions from the parties collective agreement and to make those deletions effective July 1, The Bill went from first to third reading in three days, April 20-22, Bill 19/2004 was passed on April 22, 2004 and received Royal Assent on April 29, By overturning the 2004 B.C. Supreme Court Ruling, Bill 19/2004 accomplishes three B.C. Government objectives: 1. Section 1 again removes the collective agreement provisions that had been deleted from the parties collective agreement by Arbitrator Rice and partially restored by the 2004 B.C. Supreme Court Ruling. 2. Section 3 deletes section 27.1 from the School Act which created Arbitrator Rice s jurisdiction to remove provisions from the collective agreement and made the deletions retroactive to July 1, Section 5 provides that Bill 19/2004 applies despite any decision of the court to the contrary. With respect to the third objective, Bill 19/2004 amends section 28 of the School Act by inserting the following: (3) For certainty and despite any decision of a court to the contrary made before or after the coming into force of this subsection, nothing in this section is to be construed as authorizing a board or the Provincial union to enter into a collective agreement that includes a provision that is prohibited under section 27(3) or void under section 27(2), (5) or (6). Bill 19/2004 also provides: Retroactive effect 5 (1) Despite any decision of a court to the contrary made before or after the coming into force of this section, (a) (b) the deletion under section 1 of words, phrases, provisions and parts of provisions from a collective agreement between the British Columbia Teachers' Federation and the British Columbia Public School Employers' Association is deemed to have taken effect on July 1, 2002, and those deleted words, phrases, provisions and parts of provisions must not for any purpose, including any suit or arbitration commenced or continued before or after the coming into force of this section, be considered part of that collective agreement on or after July 1, The legislation ensures that despite the 2004 B.C. Supreme Court Ruling that there were fundamental errors on points of law, the judicial process is not available to either party to 7

8 challenge the legislation and its impact on teachers and students. This prevents any adjudication of legal claims which rely on the deleted collective agreement provisions, regardless of when the claim was filed. Here are some examples of provisions that have been stripped under Bill 19/2004: From the Kamloops Thompson agreement: "Clear administrative procedures shall be established for the carrying out of fire and earthquake drills that expedite the evacuation and care of students with special needs." From the Cariboo-Chilcotin agreement: "The placement of a student with special needs shall be determined by the student's intellectual, emotional, and physical needs." From the Qualicum agreement: "Where safety is a factor, the number of students in a laboratory, shop or other specialized class shall not exceed the number for which the facility is designed." From the Delta agreement: "Mainstreaming and Integration of Special Needs students into regular classrooms should provide a positive educational experience for both the Special Needs student and the other students in the classroom. To this end the Board will make every reasonable effort to provide the conditions and resources necessary for a successful educational experience for all students." VI. Analysis The Committee has already condemned the B.C. Government in its 330th Report for enacting Bill 27/2002 and Bill 28/2002. It also condemned the B.C. Government for, in its response to the Complaint, stating that the Complaints were without merit, were motivated by politics, were frivolous and vexatious, and served to trivialize the important role of the ILO. As the Committee ruled in para. 288: As regards the Government s submission, in its communication of 8 August 2002, that the complaints are fundamentally frivolous, vexatious, driven by political motivation, without any merit, and only serve to trivialize the important role of the Committee on Freedom of Association, the Committee notes that the impugned Acts affected large number of employees in the health and education sectors, and imposed terms and working conditions for an extended period of time, i.e. three years. Furthermore, they do constitute, prima facie, an interference by the authorities in the regular bargaining process, since the Government intervened legislatively to put an end to a legal strike (Bill No. 2) and to impose the contents of collective agreements (Bills Nos. 15 and 27). Whether, and to what extent, these Bills and the other pieces of legislation (Bills Nos. 18, 28 and 29) amounted to violations of freedom of association principles is for the Committee to determine. The Committee recalls in this respect that when a State 8

9 decides to become a Member of the ILO, it accepts the fundamental principles embodied in the Constitution and Declaration of Philadelphia, including the principles of freedom of association [see Digest of decisions and principles of the Freedom of Association Committee, 4 th edition, 1996, para. 10] and all governments are obliged to respect fully the commitments undertaken by ratification of ILO Conventions [see Digest, op. Cit., para. 11]. Despite the Committee s condemnation of its actions, the B.C. Government continues to violate international standards. When the British Columbia Supreme Court ruled that the manner in which the collective agreement provisions were eliminated was fundamentally flawed, the B.C. Government unilaterally imposed legislation overruling its own provincial Supreme Court, thereby placing itself above the law. Not only has the B.C. Government refused to follow the recommendations adopted by the Governing Body, in an extraordinary and unprecedented move it has now re-imposed an arbitration ruling that was overturned by a British Columbia Supreme Court judge. The B.C. Government has not denied that its objective was to avoid the hassle of court challenges 1 and to re-impose the flawed arbitration ruling. As the Minister stated during the debates regarding Bill 19/2004: [Bill 19/2004] removes those contract provisions identified by Eric Rice as being in conflict with the School Act. 2 It's designed to avoid litigation about whether "amended and modified" includes deleted. What this does is provides the clarity all right? So you've deleted a number of parts from the bill, and what this does, within the collective agreements, so that you don't get through a hassle of court challenges and such. It's very clear that this is deleted. Clarity is meant to minimize or avoid litigation. 3 This clarifies that the Rice arbitration is the law of the land and that from there whoever is adjudicating would have to be cognizant of that ruling, of that adjudication. What this is saying is that the Rice arbitration, with this legislation, is what is in effect. 4 1 British Columbia, Legislative Assembly, Hansard, Vol. 24, No. 2 (April 22, 2004) at p (Hon. G. Bruce) 2 British Columbia, Legislative Assembly, Hansard, Vol. 23, No. 10 (April 21, 2004) at p (Hon. G. Bruce) 3 British Columbia, Legislative Assembly, Hansard, Vol. 24, No. 2 (April 22, 2004) at p (Hon. G. Bruce) 4 British Columbia, Legislative Assembly, Hansard, Vol. 24, No. 2 (April 22, 2004) at p (Hon. G. Bruce) 9

10 With respect to the further developments, the B.C. Government has not followed the Committee s recommendations as adopted by the Governing Body: (1) that it avoid legislatively imposed settlements (330th Report, para. 305(c)), (2) that it respect the autonomy of bargaining partners in reaching negotiated agreements (330th Report, para. 305(c)), and (3) that it hold meaningful consultations with representative organizations when workers rights of freedom of association and collective bargaining may be affected (330th Report, para. 305(d)). Rather than avoid legislative intervention and engage in meaningful consultations that would respect the autonomy of bargaining partners, the B.C. Government again unilaterally imposed draconian legislation. The B.C. Government has imposed terms and conditions of employment on teachers without discussion or consultation, and contrary to a British Columbia Supreme Court ruling. By its actions, the B.C. Government has deprived teachers in British Columbia of any lawful means to promote and defend their occupational interests. It has also undermined the institutional right of the BCTF to act as the bargaining agent for its members. The leader of the opposition party made the following comments during the debates regarding Bill 19/2004: In fact, the new Minister of Education should be ashamed of the heavy-handedness of this legislation. What does Bill 19 do? Well, it reaches a new high of arrogance by this Liberal government. It erases a decision of the B.C. Supreme Court. There's a whole list of people who have had wrath brought down upon their heads by this government through their legislative hammer because the government didn't like the way things were going. But this is a new level of arrogance. They're wiping out our judiciary system. They're saying: "Oh, gosh. We don't want to bother with judicial procedures when we've got 74 people inside the Legislature that can just raise their hands and do the government's bidding." That's what we have Bill 19, a new height of arrogance, giving the old heave-ho to judicial process. Bill 19 says the government doesn't agree with the B.C. Supreme Court, so we're going to legislate the effect of that decision out of existence. Instead of doing what every other group in society in this province has to do, who doesn't have 74 sheep to follow and raise their hands to support a draconian measure of government, and instead of doing what every other group has to do and go to the Court of Appeal when they disagree with a B.C. Supreme Court decision, the Minister of Labour, the Minister of Education and all this government caucus decided they'd just legislate the B.C. Supreme Court ruling as irrelevant. How's that for arrogance? 5 5 British Columbia, Legislative Assembly, Hansard, Vol. 23, No. 10 (April 21, 2004) at p (Joy MacPhail) 10

11 The B.C. Government has demonstrated an utter disregard for both decisions of the ILO and a decision of the British Columbia Supreme Court. By including the provision that the legislation applies despite any decision of a court to the contrary, the Government has made it unlawful for the parties to challenge its legislation in court or in any other legal proceedings. In doing this, the B.C. Government has shown its contempt for the rule of law and any restraints on its power. The B.C. Government rules by fiat as opposed to being bound by the law. The actions of the B.C. Government undermine the democratic collective bargaining system in British Columbia, contrary to international standards developed and adopted by the ILO to which Canada is a signatory. The B.C. Government s actions have also undermined the public education system in British Columbia. The hundreds of provisions that have been arbitrarily stripped from the parties agreement are provisions which had previously been voluntarily agreed to in local agreements, provisions which maintained quality education and safety standards in schools. The abrogation of the collective bargaining process through legislative intervention is inconsistent with and contrary to the whole system of voluntary collective bargaining and freedom of association. Overturning a Supreme Court decision demonstrates arrogance and contempt for a cornerstone of our democracy, the judicial system. It ignores the separate and necessary roles of the executive, legislative and judicial branches of government to provide checks and balances in the Canadian parliamentary system of government. Rather than respect these necessary checks and balances, the B.C. Government demonstrates an autocratic character fundamentally inconsistent with democratic principles. The Governing Body has always recognized that the voluntary negotiation of collective agreements is a fundamental aspect of the principles of freedom of association (279th Report, Case No. 1563; Digest of 1996, para. 844). The actions of the B.C. Government in this matter are again in violation of the principle of non-interference in the collective bargaining process by public authorities (230th Report, Case No. 1173, para. 578(d)). This Body has addressed the issue in these terms: Where intervention by the public authorities is essentially for the purpose of ensuring that the negotiating parties subordinate their interests to the national economic policy pursued by the government, irrespective of whether they agree with that policy or not, this is not compatible with the generally accepted principles that workers and employers organizations should enjoy the right freely to organize their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair or be so applied as to impair the enjoyment of such right. (See Digest of 1996, para. 867) 11

12 The B.C. Government s further actions are in direct violation of the Committee s concluding remarks in Case Nos. 2166, 2173, 2180, and 2196, paragraph 304:. Recalling that the voluntary negotiation of collective agreements, and therefore the autonomy of bargaining partners, is a fundamental aspect of freedom of association principles [see Digest, op. Cit., para. 844] and that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests [see Digest, op. Cit., para. 475], the Committee regrets that the Government felt compelled to resort to such measures and trusts that it will avoid doing so in future rounds of negotiations. The Committee also points out that repeated recourse in legislative restrictions on collective bargaining can only, in the long term, prejudice and destabilize the labour relations climate if the legislator frequently intervenes to suspend or terminate the exercise of rights recognized for unions and their members. Moreover, this may have a detrimental effect on workers interests in unionization, since members and potential members could consider it useless to join an organization the main objective of which is to represent its members in collective bargaining, if the results of bargaining are constantly cancelled by law [see Digest, op. Cit., para. 875]. The Committee also hopes that, in future, full, frank and meaningful consultations will be held with representative organizations in all instances where workers rights of freedom of association and collective bargaining are at stake. VII. Conclusion The latest Government action further confirms and expands the B.C. Government s disturbing pattern of disregard for the basic principles of freedom of association, free collective bargaining and the rule of law. By considering itself above the law, the B.C. Government has shown great disrespect for both the Canadian judiciary and the ILO. We welcome an investigation and ruling by the Committee on Freedom of Association and the Governing Body of the International Labour Organization into the further developments in Case No (2002). We thank you for your consideration of this further development. We also thank you for your assistance in upholding the standards expected in the international community. Dated at Vancouver, British Columbia, Canada, this 14th day of September,

13 British Columbia Teachers Federation Per: Jinny Sims, President Attachments: Tab 1 - Complaint dated November 23, 2001 Tab 2 - Complaint dated June 21, 2002 Tab 3 - Tab 4 - Arbitrator Rice s August 30, 2002 decision 2004 B.C. Supreme Court Ruling: British Columbia British Columbia Teachers Federation v. British Columbia Public School Employers Association, 2004 BCSC 86 Tab 5 - Bill 19/2004: Education Services Collective Agreement Amendment Act, S.B.C. 2004, c. 16 Tab 6 - Tab 7 - Tab 8 - Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2004 BCCA 377 Extract from British Columbia, Legislative Assembly, Hansard: Vol. 23, No. 10 (April 21, 2004), pp Extract from British Columbia, Legislative Assembly, Hansard: Vol. 24, No. 2 (April 22, 2004), pp CAPS\ greinarz \ Data \ ILO Update 2004 # \ ILO update.doc JS:ljr/gr/tfeu 13