Executive Offices fax: 604-871-2290 By email: LRCReview@gov.ba.ca. Labour Relations Code Review Panel Panel Members: Barry Dong Michael Fleming Sandra Banister, Q.C., Dear Panel Members: Subject: B.C. Labour Relations Code Review We are writing in response to your call for submissions from stakeholders regarding your review of the Labour Relations Code (the Code). The British Columbia Teachers Federation (BCTF) represents over 43,000 public school teachers and associated professionals in the province. Our submissions focus on the issue of education being designated as an essential service, but we also make limited submissions on other areas of the Code, and one related area of the Administrative Tribunals Act, that we submit the panel should consider in its review. As a starting point, we submit that any review of labour law must consider recent Supreme Court of Canada jurisprudence that gives constitutional protection to the right to join a union, engage in meaningful collective bargaining, and the right to strike. In addition to the submissions set out below, we also note that s. 3 of the Code contemplates continuing review of the Code. This review of the Code is long overdue. Although the stakeholders need a degree of certainty with respect to applicable legislation, the Code must also be responsive to changing societal and workforce realities. We hope the continuing review of the Code will occur on a more regular basis going forward. Similarly, the BCTF submits that the Labour Relations Board has not been adequately funded and it imperative that the Board receive adequate resources in order to conduct its work. We also note that we support the submissions made by the BC Federation of Labour to the panel. Education is not an Essential Service In 2001, the BC Liberal government extended essential services legislation to education, contrary to international law. Under international law, essential services are restricted to those services that protect the life, health, and safety of citizens. All other unionized workers have a right to strike. 1
As you are aware, the controlled strike, accomplished through essential services designations, seeks to balance the workers right to strike (or the employer s right to lockout) with the public s right to the provision of essential public services. The union is free to engage in its strike (or the employer its lockout) provided that essential services are maintained. The levels of essential services can significantly undermine the bargaining power of the union and should only be used in life and limb situations, as reflected in international law. The provision of education, while important, is not a life and limb service. By way of background, the first comprehensive labour legislation in British Columbia, the Labour Code of British Columbia, S.B.C. 1973, c. 122, contained a provision regarding essential services. It focused on health care workers, firefighters, and police (i.e. services designated to protect the life, health, and safety of citizens). The term welfare was added in 1977 when the Essential Service Disputes Act, S.B.C. 1977, c. 83 was enacted. The Act replaced the essential service provisions in the 1973 Labour Code. Section 8 of that Act added the phrase immediate and substantial threat to the economy and welfare of the province and its citizens. Otherwise the legislation was similar to the 1973 legislation. In 1987 teachers were given collective bargaining rights. At the same time, the Essential Service Disputes Act was repealed and incorporated into the Industrial Relations Act, R.S.B.C. 1979, c. 212, as amended. This legislation included the provision of educational services in the essential services section. During this time there was only one application for essential services designations, which was dismissed (Abbotsford 1991). In 1992, the newly elected NDP government appointed a tripartite panel of experts (John Baigent as union-side representative, Tom Roper as employer-side representative and Vince Ready as neutral chair) to examine BC labour legislation. After a lengthy consultation process, the panel unanimously recommended that education be removed from the essential services legislation. The panel s recommendation was consistent with the strict sense of essential services set out in international labour standards: We recommend that essential services be more narrowly defined as those necessary or essential to prevent immediate and serious danger to the health, safety or welfare of the residents of British Columbia: Recommendations for Labour Law Reform (September 1992). That change was enacted in the revised Labour Relations Code of British Columbia, S.B.C. 1992, c. 82; the essential services legislation no longer made any reference to the education sector. Despite this, a Labour Relations Board hearing panel held that under some circumstances (in that case Grade 12 exams) education could be considered essential under the heading of welfare. The dispute was settled before designations occurred: Bulkley Valley School District No. 54 (Re), BCLRB Decision No. B147/93, [1993] B.C.L.R.B.D. No. 168. In 2001, when the newly elected Liberal government added the provisions of educational programs to the essential services section of the Labour Relations Code, the Liberal government publicly stated that student entitlement to continuous instruction was their goal. As stated in the Legislature when the bill was introduced: 2
Mr. Speaker, this bill puts children first. It will restore education as an essential service under the Labour Code to ensure that no child's right to an education is denied during school strikes and lockouts.: Hon. G. Bruce, August 14, 2001. This amendment to the Labour Relations Code ensures that educational programs are protected in the event of a school strike or a lockout. This legislation is a statement of our principles. Education must come first, learning must continue, and students must be able to complete their school year, regardless of their age or grade level. It is about recognizing that our children's right to an education must take precedence over labour disputes. Teachers and support staff will have the right to strike. That's not being taken away. Employees will continue to bargain, and they will still be able to put pressure on their employers. They just won't be able to shut down schools : Hon. S. Bond, August 15, 2001.. I look at the essential service education. To debate whether ten minutes or one hour or two hours is acceptable for our children to lose in education is not the point. Not one minute is acceptable, in my heart. Hon. B. Lekstrom, August 16, 2001 (Hansards, emphasis added). Despite the above comments, rather than stating that instruction must continue, the legislation states that if the Minister: considers that a dispute poses a threat to the provision of educational programs to students and eligible children under the School Act, the Minister may direct the board to designate as essential services those facilities, productions and services that the board considers necessary or essential to prevent immediate and serious disruption to the provision of educational programs: Labour Relations Code, R.S.B.C. 1996, c.244, as amended (emphasis added). The legislation enables the employer, the union, or the Chair of the Labour Relations Board to trigger an investigation regarding whether a dispute poses a threat to the provision of educational programs to students and eligible children under the School Act : s. 72(1). The Minister of Labour may also direct the Board to designate essential services (and usually does) after receiving the investigation report from the Chair of the Board: s. 73 (1). In any event, it was left to the Labour Relations Board to determine the meaning of educational programs and immediate and serious disruption. The government also allowed the Labour Relations Board to determine at what point during job action essential services would be triggered, and how many services should be designated as essential. Canada is a party to International Labour Organization ( ILO ) Convention (No. 87) Freedom of Association and Protection of the Right to Organize, ratified in 1972. Although the Convention does not explicitly refer to the right to strike, there is a body of international jurisprudence finding that meaningful collective bargaining requires a concomitant right to strike. The Freedom of Association Committee of the ILO has consistently held that governments cannot undermine the right to strike by characterizing education an essential service. While education is obviously a very important service in all countries, the Committee has repeatedly held that it is not an essential 3
service in the strict sense that is, not in the sense that justifies interference with the fundamental right of workers to collectively withdraw services. In 2002, the BCTF made a complaint to the ILO regarding the new essential services provision in the Labour Relations Code. In its 330th Report regarding complaint number 2173, the committee noted that the complaint concerned the education sector which is not considered an essential service in the strict sense of the term. The committee held that the legislation arbitrarily deprived teachers of their right to strike to freely negotiate their terms and conditions of employment. It concluded that the BC legislative provisions which make education an essential service are in violation of freedom of association principles The committee stated that the Canadian government should repeal the legislation so that teachers can exercise their right to strike in accordance with the freedom of association principles. Since 2015 Canadian jurisprudence came into compliance with ILO jurisprudence. In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, the Supreme Court of Canada held that the right to strike, like the right to the process of collective bargaining, is protected by s. 2(d) of the Charter. At issue in SFL was new essential services legislation enacted in Saskatchewan. According to the Court, given that it limited the right to strike (as all essential services legislation does), Saskatchewan s legislation could only be saved if it could be justified as a reasonable limit under s. 1 of the Charter. In order to be saved by s.1, the Court stated that the legislation must be based on a proper interpretation of the term essential services. That is, it must only pertain to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In that case, the legislation was struck down. Legislators must be cognizant of this constitutionally protected right to strike. Education, while important, does not fit within this description of essential services. Yet, the BC Liberal government made no move to amend the Code to accord with the Charter. In addition to its dubious legal status, the essential service designation process that teachers went through in 2001, 2005, 2011 and 2014 was time-consuming and expensive and resulted in extensive litigation before the Labour Relations Board for both parties. In all the strikes that have been governed by the essential service legislation, the teachers had a phased in approach (i.e., they started with a partial strike). The Labour Relations Board s orders set out the tasks that were not essential and did not have to be performed in the context of a job action. Phase 1(a) was the withdrawal of many administrative, non-instructional duties; Phase 1(b) was the withdrawal of extra-curricular activities. Phase 2 was the full withdrawal of services (which did not occur until 2014). The essential service process that resulted in the orders deflected attention from the substantive contract issues since there had to be two separate teams and two sets of negotiations. Implementing the ultimate orders, and the ongoing monitoring of them, took time and energy away from negotiations at the bargaining table. Despite complying with essential services designations, and spending weeks at the Labour Relations Board in meetings and mediations prior to the orders, when teachers attempted to escalate their partial strike to a full-scale withdrawal in 2001, 2005 and 2012 the government simply legislatively intervened to end the strike. The essential service legislation was not allowed to run its course. 4
In stark contrast, in 2014 BCPSEA did not apply for essential services designations when teachers served strike notice. Instead it was content to allow a lengthy full-scale strike. It did later apply to the Labour Relations Board asking that Grade 10 12 exams continue, and that final grades be issued. The Labour Relations Board complied with the request, determining that these (and a few other) duties were essential. By allowing Grade 12 final grades to be issued, there was little pressure on the employer (or government) to resolve the dispute in a timely manner. In all disputes since essential services legislation was enacted in 2001 the designations simply resulted in a protracted job action. Most importantly, they were not used by the employer, or government, to prevent a single day of instruction being lost in 2014, the original stated purpose for the legislation. It was obvious that the government did not consider education to actually be an essential service. Given the degree to which essential services legislation limits workers constitutionally protected right to strike, given the protracted and complex legal disputes that have arisen under the current provisions related to the provision of educational programs as an essential service, and given that health, safety and welfare provisions will protect educational services where there is a real and substantial risk of significant harm, we recommend that s.72(1)(a)(ii) and 72(2.1) be repealed and provision of education services no longer be included as an express ground for essential service designation under the Code. Employer Communications Section 8 of the Code, titled right to communicate, has been interpreted in a manner that is very unfavourable to unions and workers. Although the provision is expressed as a general right to communicate provision, it has been viewed as an employer free speech provision. It has been applied in a way that gives employers broad latitude with respect to their communications to employees, who may be a captive audience and in a vulnerable position. Conversely, the provision has generally not been interpreted as applying to employee speech in the same broad manner. In addition, the employer free speech provision is not a fair balance to the provisions that prohibit union supporters and organizers from attempting to persuade workers to join a union during working hours. Limiting employer speech, particularly during organizing drives, to fact or opinion reasonably held with respect to an employer s business would be a more balanced approach and would allow workers to decide whether they wish to join a union without undue influence from their employer Certification The card based certification model should be restored to grant union certification to unions demonstrating more than 50% support from workers in a proposed bargaining unit. Votes could be held when applications for certification demonstrate between 40% and 50% support for the union. Remedial certification should be stipulated in the Code as a likely outcome in response to unfair labour practice violations ruing an organizing campaign. 5
The statutory freeze on terms and conditions of employment after certification should be extended until a new agreement is reached, or a strike or lockout occurs. This would be consistent with the provisions that apply to bargaining successive agreements. Conduct of Votes The voting period should be reduced from 10 days to a shorter time frame that gives the Labour Relations Board adequate time to conduct the vote, but reduces delays which harm the campaign. Mail in ballots should be eliminated, except where all parties consent. Picketing The secondary picketing provisions should be repealed, in accordance with the constitutional protection secondary picketing is afforded. Common site picketing relief should be amended to be consistent with the right to strike under s. 2(d) of the Charter. Vulnerable and Precariously Employed Workers Trends towards precarious work (including, among other things, part-time, contract, contingent employment in which workers are denied job security and decent wages) make unionization more difficult. But these trends also make unionization even more necessary. We implore the panel to consider improvement to the Code that not only reverse the anti-union provisions in the Code, but that also improve the prospects of organizing for vulnerable, precariously employed workers. This should include the introduction of multi-employer sectorial certifications for traditionally difficult to organize sectors and stronger successorship provisions that reflect the modern reality of contracting, subcontracting, contract flipping and corporate transfer. Raiding The periods when raiding may occur should be clarified and set at a regular period in the calendar year rather than the anniversary of the collective agreement, which is not readily notable to the interested parties. Administrative Tribunals Act Although not part of the Labour Relations Code, we submit that the panel should also consider recommending an amendment to the Administrative Tribunals Act, which is closely related to the labour relations regime. Sections 58 and 59 of the Administrative Tribunals Act codifies the standards of review to be applied to administrative tribunals in the province, including the Labour Relations Board. The Act sets out that certain tribunal decisions must not be set aside unless they are patently unreasonable. 6
In Dunsmuir, the Supreme Court of Canada eliminated the patently unreasonable standard from the common law and simplified the judicial review standards to consideration of two standards: correctness and reasonableness. However, since the Dunsmuir ruling in 2008, the patently unreasonableness standard has persisted in British Columbia through the Administrative Tribunals Act. The standard was removed from the common law for good reason and it is time that BC catch up with the principles of administrative law applied elsewhere in the country. Yours sincerely, Glen Hansman President GH/pm:tfeu 7