Interim Report - Report No 340, March 2006

Case No 2405 (Canada) - Complaint date: 31-JAN-05 - Closed

Allegations: The complainant organization alleges that the Government, in order to re-impose an arbitration decision that had been overturned by the British Columbia Supreme Court, has adopted unilaterally and without any consultation with social partners, retroactive legislation (Bill No. 19/2004) that modifies or eliminates numerous provisions from freely negotiated collective agreements in the education sector. These actions deprive teachers of lawful means to promote and defend their occupational interests, and undermine the right of the complainant organizations to act as bargaining agent for their members

433. The complaint is contained in a communication dated 31 January 2005 from Education International (EI) on behalf of the British Columbia Teachers’ Federation (BCTF). EI submitted additional allegations in a communication dated 7 February 2006.

1. 434. The federal Government transmitted the provincial Government’s observations in a communication dated 17 August 2005.
2. 435. Canada has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 436. In its communication of 31 January 2005, the complainant organization indicates that the British Columbia Teachers’ Federation (BCTF) represents 42,000 teachers and associated professional workers, from kindergarten to grade 12, in the public education sector of British Columbia. The BCTF bargains with the British Columbia Public School Employers’ Association, the central bargaining agent of the 60 school boards in the province.
2. 437. The complainants recall that, over the past three years, British Columbia has enacted legislation affecting tens of thousands of workers in the province, contrary to fundamental principles of freedom of association and free collective bargaining. They refer in particular to a complaint previously submitted by the BCTF (Case No. 2173) in view of its close connection to the present case, and to the decision issued in that respect by the Committee [March 2003, 330th Report, paras. 239-305].
3. 438. The complainants summarize the issue as follows (a detailed chronology is attached as annex to the present document): the Government had enacted legislation granting an arbitrator jurisdiction to remove hundreds of provisions from the parties’ collective agreement; the arbitrator appointed by the Government deleted these provisions from the collective agreement on 30 August 2002; the BCTF sought judicial review of the arbitrator’s decision; on 22 January 2004, the British Columbia Supreme Court upheld the application and restored many of the collective agreement provisions deleted by the arbitrator; in response to the Supreme Court ruling, the Government introduced Bill No. 19/2004, removing from the parties’ collective agreement those provisions that the British Columbia Supreme Court had restored.
4. 439. Bill No. 19/2004 amended the previous legislation (the Education Services Collective Agreement Act, ESCAA, and the School Act) to remove hundreds of provisions from the parties’ collective agreement, effective 1 July 2002. The Bill went from first to third reading in three days (20-22 April 2004) and received Royal Assent on 29 April, whereupon it became the Education Services Collective Agreement Amendment Act, 2004 (ESCAAA). By overturning the 2004 British Columbia Supreme Court ruling, the ESCAAA accomplished three government objectives: (1) remove the collective agreement provisions that had been partially restored by the Supreme Court; (2) delete from the School Act (retroactively to 1 July 2002) the section that gave the arbitrator jurisdiction to remove provisions from the collective agreement; and (3) provide that the Bill applies “despite any decision of the court to the contrary”. Section 5 of the Bill also provides that it applies retroactively. The legislation thus ensures that despite the Supreme Court ruling that there were “fundamental errors” on points of law, the judicial process is not available to either party to challenge the legislation and its impact on teachers and students; this prevents any adjudication of legal claims which rely on the deleted collective agreement’s provisions, regardless of when the claim was filed.
5. 440. The complainants give some examples of provisions that have been deleted from agreements under the ESCAAA: evacuation procedures and fire drills for students with special needs (Kamloops-Thompson agreement); placement of students with special needs (Cariboo-Chilcotin agreement); number of students in laboratories, etc. where safety is a factor (Qualicum agreement); integration of students with special needs into regular classrooms (Delta agreement).
6. 441. The complainants point out that the Committee has already criticized the British Columbia Government for enacting Bill No. 27/2002 and Bill No. 28/2002, and for its dismissive reply to their previous complaint; the Committee then stated that when a State decides to become a Member of the ILO, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including freedom of association principles [330th Report, para. 288]. Despite the Committee’s unequivocal condemnation, the Government continues to violate international labour standards. When the British Columbia Supreme Court ruled that the manner in which collective agreement provisions had been eliminated was fundamentally flawed, the Government unilaterally imposed legislation overruling it, thereby placing itself above the law. As shown by the Minister’s declarations in Parliament, the objective was to avoid “the hassle of court challenges” (Hansard, 22 April 2004).
7. 442. The Government has not followed the Committee’s previous recommendations: that it avoid legislatively imposed settlements [330th Report, para. 305(c)]; that it respect the autonomy of bargaining partners in reaching negotiated agreements [330th Report, para. 305(c)]; 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 following these recommendations, the Government again unilaterally adopted draconian legislation. The Government has thus imposed terms and conditions of employment on teachers without discussion or consultation, and contrary to the ruling of its own provincial Supreme Court, thereby depriving teachers of any lawful means to promote and defend their occupational interests.
8. 443. The complainants submit that the Government has demonstrated utter disregard for both the ILO and the Supreme Court. By including the provision that the legislation applies “despite any decision of a court to the contrary”, the Government has shown its contempt for the rule of law and any restraints on its power. The latest actions of the Government undermine the democratic collective bargaining system, contrary to ILO international standards to which Canada is a signatory; they further confirm and expand its disturbing pattern of disregard for basic freedom of association principles, free collective bargaining and the rule of law.
9. 444. In its communication of 7 February 2006, EI provides information in connection with alleged further violations of freedom of association and collective bargaining, in particular in respect of the enactment of Bill 12, the Teachers’ Collective Agreement Act, S.B.C. 2005, Chap. 27.
10. B. The Government’s reply
11. 445. In its communication of 17 August 2005, the Government states that it disagrees with the allegations made by the Canadian Teachers’ Federation (CTF) and the British Columbia Teachers’ Federation (BCTF). The Education Services Collective Agreement Amendment Act (ESCAAA) does not violate Convention No. 87 as it does not restrict workers’ rights to: establish or form organizations of their own choosing; draw up their own constitutions and rules; elect their representatives; organize their administration or formulate their programmes. Nor does it dissolve or suspend workers’ organizations, infringe on their right to join federations, impede their legal personality, or contravene the law of the land.
12. 446. According to the Government, the ESCAAA does not overturn the British Columbia Supreme Court ruling as alleged by the complainants. In July 2002, an arbitrator was appointed to determine which provisions in the 60 teachers’ collective agreements needed to be changed because they conflicted with the School Act, after it had been amended by the Public Education Flexibility and Choice Act (PEFCA). The PEFCA includes limits on class size, which the Government decided is a matter of provincial public policy and not something to be negotiated at the bargaining table. The PEFCA also returns to local school boards the decisions about school year structure, and allows decisions on other matters (e.g. non-classroom educators such as librarians, counsellors, special needs assistants, teachers of English as a second-language) to be driven by student needs, parents’ concerns and local priorities, rather than by rigid, provincially imposed ratios that have been negotiated at the bargaining table.
13. 447. The ESCAAA removes those contract provisions identified by the arbitrator as being in conflict with the School Act. The British Columbia Supreme Court rejected the BCTF’s claims of bias and challenged the legality of the arbitrator’s appointment, and said that he should not have deleted all sections of the agreement where those sections only partly conflicted with the PEFCA; the court ruled that the arbitrator should have sought to harmonize those sections with the Act by changing the wording used in these sentences and paragraphs, and set his decision aside. This left the teachers’ collective agreements as they stood prior to the arbitrator’s decision, i.e. containing limits on class size different from those now present in the School Act.
14. 448. The court upheld the validity of the legislation that removed class size from collective agreements and the arbitrator’s authority to make changes to collective agreements. The court decided that the arbitrator had interpreted his mandate too narrowly and, on that basis, set his decision aside. Although the ESCAAA deletes all sections of the collective agreements that the arbitrator had listed, the parties are able to negotiate replacement language as long as the negotiated terms are not in conflict with the School Act.

C. The Committee’s conclusions

1. 449. The Committee notes that this complaint concerns allegations of legislative intervention in the collective bargaining process in the education sector in the Province of British Columbia. Therefore, the Government’s arguments relating to Convention No. 87 do not find application here.
2. 450. While observing that this case concerns the Province of British Columbia, the Committee is bound to remind the federal Government that the principles of freedom of association should be fully respected throughout its territory.
3. 451. The Committee also points out that this case cannot be considered in isolation from its previous decisions in Cases Nos. 2166, 2173, 2180 and 2196 [330th Report,
4. paras. 239-305], more particularly Case No. 2173 where the BCTF was one of the complainants, and which involved closely related legislation: the Education Services Collective Agreement Act [ESCAA, introduced in Parliament as “Bill No. 27”]; and the Public Education Flexibility and Choice Act [PEFCA, introduced in Parliament as “Bill No. 28”]. The Committee thus refers, by way of background, to the conclusions and recommendations then made concerning these two statutes [330th Report,
5. paras. 295-300].
6. 452. As regards more specifically the allegations made in the present case, the Committee notes that the Government, again, intervened through legislation to modify or eliminate provisions from negotiated collective agreements. The Committee is particularly concerned at this new unilateral intervention, within a very short lapse of time, in view of its previous conclusions in Case No. 2173, and its concluding remarks, which it reiterates here: “The Committee notes that all the Acts complained of in these cases involve a legislative intervention by the Government in the bargaining process, either to put an end to a legal strike, to impose wage rates and working conditions, to circumscribe the scope of collective bargaining, or to restructure the bargaining process. 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 of decisions and principles of the Freedom of Association Committee, 1996, 4th edition para. 844] …, 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 to 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 330th Report, para. 304].
7. 453. The Committee considers in the present case that, following the decision of the Supreme Court, any changes that were made should have at least been the subject of full and frank consultations with the BCTF, especially as regards the various options to be considered. In addition, given the apparent disregard shown to the judgement of the provincial Supreme Court, the Committee recalls that respect for the rule of law also implies respect for the final outcome of the national judicial process and avoiding retroactive intervention in collective agreements through legislation. The Committee 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.
8. 454. While recalling that the determination of the broad lines of educational policy is not a matter for collective bargaining between competent authorities and teachers’ organizations, although it may be normal to consult these organizations on such matters [see Digest, op. cit., para. 813], the Committee emphasizes that matters touching upon employment terms and conditions fall within the scope of collective bargaining.
9. 455. Emphasizing the utmost importance attached to the voluntary nature of collective bargaining and to the autonomy of bargaining partners, as fundamental aspects of freedom of association principles, the Committee once again firmly requests the Government to refrain in future from having recourse to such legislative intervention in the collective bargaining process. The Committee requests the Government to keep it informed of developments of the collective bargaining situation in the education sector.
10. 456. The Committee requests the Government to provide its observations on the additional allegations contained in the communication of 7 February 2006 from EI and the BCTF.

The Committee's recommendations

1. 457. In the light of its foregoing interim conclusions, taking into account the previous complaints concerning the interference of the Government of British Columbia in public sector collective bargaining, emphasizing the necessary respect for the principle of the rule of law, and recalling that the determination of the broad lines of educational policy that do not touch upon employment terms and conditions is not a matter for collective bargaining (although it may be normal to consult teachers’ organizations in this respect), the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting that, following the decision of the Supreme Court, full and frank consultations should have been held with the British Columbia Teachers’ Federation (BCTF), the Committee firmly requests the Government of British Columbia to amend the impugned legislation, in line with freedom of association principles; the Committee once again requests the Government to refrain in future from having recourse to retroactive legislative intervention in the collective bargaining process and to keep it informed of developments as regards the collective bargaining situation in the education sector.
   • (b) The Committee requests the Government to provide its observations on the additional allegations contained in the communication of 7 February 2006 from EI and the BCTF.

Z. Annex

1. 27 January 2002
   • Bill No. 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.
2. 28 January 2002
   • Section 9 of Bill No. 28/2002 extensively amended section 27 of the British Columbia 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) regulating the selection and appointment of teachers under this Act, the courses of study, the programme of studies or the professional methods and techniques employed by a teacher;
     • (b) restricting or regulating the assignment by a board of teaching duties to principals, vice-principals or directors of instruction;
     • (c) 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 No. 28/2002 added a further list of items which cannot be included in a collective agreement between the parties. These include terms:
     • (d) restricting or regulating a board’s power to establish class size and class composition;
     • (e) establishing or imposing class size limits, requirements respecting average class sizes, or methods for determining class size limits or average class sizes;
     • (f) restricting or regulating a board’s power to assign a student to a class, course or programme;
     • (g) 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;
     • (h) establishing minimum numbers of teachers or other staff;
     • (i) restricting or regulating a board’s power to determine the number of students assigned to a teacher; or
     • (j) establishing maximum or minimum case loads, staffing loads or teaching loads.
   • An unusual process was mandated by Bill No. 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 No. 27/2002 conflicted with or was inconsistent with section 27(3)(d)-(j), as enacted by Bill No. 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 17 July 2002 pursuant to section 9 of Bill No. 28/2002 to determine which provisions in the parties’ collective agreement needed to be modified or eliminated due to the enactment of Bill No. 28/2002.
3. 30 August 2002
   • Arbitrator Rice rendered his decision on 30 August 2002. 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, school-based teams, specialized services, staffing formulae, equitable distribution of workload provisions and limitations concerning home education students.
4. 20 November 2002
   • 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 2003.
5. 22 January 2004
   • Justice Shaw of the British Columbia Supreme Court issued the 2004 British Columbia 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.
6. 20 February 2004
   • The British Columbia Public School Employers’ Association filed notice to the British Columbia Court of Appeal appealing the 2004 British Columbia Supreme Court ruling. The BCTF cross-appealed.
7. 22 April 2004
   • The British Columbia Government enacted Bill No. 19/2004, effectively re-imposing Arbitrator Rice’s decision stripping hundreds of provisions from the parties’ collective agreement.
8. 30 April 2004
   • The British Columbia Public School Employers’ Association filed notice abandoning its appeal of the 2004 British Columbia Supreme Court ruling since the British Columbia Government had legislatively rendered its appeal academic. The BCTF abandoned its cross-appeal.
   • In summary, the British Columbia 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 30 August 2002. 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 British Columbia Government, by legislation removed from the parties’ collective agreement the provisions that the 2004 British Columbia Supreme Court ruling had restored.