On April 13th, 2011 the BC Supreme Court provided a significant victory for union rights in British Columbia when it rendered its decision in BCTF v. British Columbia.
In this case, the BC Teachers’ Federation (“BCTF”) challenged the legality of Bills 27 and 28 introduced by the Province’s legislature in January 2002 (the “Legislation”). The Legislation removed from teacher collective agreements, language pertaining to class size, class composition, the ratio of teachers (not assigned to classrooms) to students, and workload (the “Issues”) on the basis that these provisions created inflexibility in the education system.
The BCTF argued that the Legislation unilaterally voided existing terms in their collective agreement and prevented future bargaining on the Issues. The government claimed that the Issues and the affected collective agreement provisions were educational policy decisions that ought not to be the subject of collective bargaining. Madame Justice Griffin agreed with the BCTF and declared sections of the Legislation unconstitutional and invalid as they interfered with collective bargaining and infringed on the teachers’ freedom of association as guaranteed by Section 2(d) of the Charter. Justice Griffin stated: “By passing this legislation without so much as consulting with BCTF, the government did not preserve the essential underpinning of collective bargaining, namely, good faith negotiation and consultation.”
The Court suspended the declaration for a twelve month period to give the Province (and school boards) time to address the repercussions of the decision.
In arriving at her decision, Justice Griffin engaged in a detailed and complex analysis of the law and the Legislation within the framework first set out by the Supreme Court of Canada in its 2007 landmark decision in Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia (“Health Services“), in which unionized health workers successfully challenged Bill 29 which was passed at the same time as the Legislation. In Health Services, the Supreme Court held for the first time that collective bargaining was protected by Section 2(d) of the Charter.
The BCTF and Health Services decisions have firmly established the principle that in BC and Canada, public sector workers have a constitutional right to collective bargaining. This is in contrast to the situation in the United States where unionized workers make up a much smaller percentage of the work force, and where a number of states (led by Wisconsin and Ohio), have recently passed legislation limiting the collective bargaining rights of public sector workers and eliminating bargained wages and benefits altogether. (It is currently estimated that there are approximately 744 similar bills across the United States). It will be interesting to see whether and how the U.S. courts will respond to challenges to these bills.
It is always interesting to compare legislative and judicial attitudinal differences in Canada and the United States, towards unionized workers. Even more interesting however, will be to see how the BC legislature, the school boards and the BCTF respond to the BCTF decision in the next twelve months.
