If there is one thing B.C. teachers and the provincial Liberal government can agree on, it's that their latest dispute isn't just about wages or class sizes or special-needs students or even the buckets of bad blood weighing both of them down.
It's about all of those, hundreds of millions of dollars and about the Liberals having their day in court - and making the teachers eat it too.
Last January, the B.C. Supreme Court twice ruled for a second time that Bills 27, 28, and 22, notorious pieces of legislation Gordon Campbell and Christy Clark orchestrated to unconstitutionally strip teachers of their rights to bargain, among other things, class size and composition.
According to Les Leyne, Justice Susan Griffin's decision effectively returned the province's education system to 2002, when limits and formulas governing class size, composition and specialist teachers. Satisfying Griffin's ruling could mean the Liberals will have to deal with thousands of grievances related to workings conditions and lost jobs; the government told the court the cost could run to $500 million retroactively and $275 million per year going forward.
However, the teachers have offered to drop any grievances related to the Griffin decision in exchange for the restoration of the 2002 levels; a Workload Fund of $225 million; and a retroactive grievance fund of $100 million (a recent union concession from $225 million) spread over five years.
The Liberals have taken Griffin's ruling to the B.C. Court of Appeal, which is set to hear the case in October and expected to rule sometime next year. In meantime, while the government has been relatively vague, Education Minister Peter Fassbender has been trying offer the line that the only way to settle the dispute is to leave grievances out of bargaining and let the courts settle the matter.
According to BCPSEA documents and TheTyee.ca, Fassbender's gambit may be linked to a seemingly modest idea with an innocuous name - B.C. Public School Employers' Association proposal E 81. There is a chance the Court of Appeal will strike down Griffin but more likely it will uphold the lower court's decision. That will likely prompt the government to appeal to the Supreme Court of Canada. E 81 delays any action to an 'ultimate judicial decision' - whether a CA or SCC ruling - that would then modify whatever collective agreement the two sides had signed.
However, either side (but likely the Liberals on the losing end of a ruling) can apply for an arbitrator to weigh in on whatever changes a court wants made to the collective agreement. If either side (again likely the Liberals) doesn't like what the arbitrator has to say, it can then, within 60 days, dissolve the collective agreement, which would then remain in effect until either the end of that school year or the following year.
That would enable the Liberals, according to the Vancouver Sun's Larry Pynn, to effectively create a trap door in the Griffin decision. As the justice wrote, "Striking down the unconstitutional legislation will have implications for teachers and their employers but both sides will have interests in resolving these implications through collective bargaining... "
Should the Court of Appeals or the Supreme Court eventually rule against the Liberals, they could invoke E 81 and begin the whole process again, with the bonus of having an even more exhausted BCTF to bargain with and Griffin's decision effectively nullified.
But it's not enough for the Liberals that the BCTF would have to agree to give up everything it's gained in court. The nasty twist of E 81 is that, in meantime, as all this meanders through the court, the government wants teachers to agree to class sizes and compositions contained in another proposal: E 80.
Under E 80, class sizes would be set by... Bill 22 and by extension Bill 27 and 28 and other government action Justice Griffin ruled was unconstitutional. The sop contained in the Bill 22 action - a $75 million Learning Improvement Fund - would also be offered, along with the establishment of a fact-finding committee to examine the need for specialist teachers.
If teachers agree to E 81, they would equivocally be agreeing to the balance of the class size and composition provisions of Bill 22, 27, 28 until the indeterminate end of the legal process and the eventually dissolution of the collective agreement.
The Liberals would delay any consequences from the Griffin decision to at least 2016 and perhaps 2019 or 2020 and then force teachers to negotiate with little legal leverage.
There are signs Fassbender and Clark may be easing somewhat on class size and composition. But the underlying impossibility of a resolution remains because teachers have a simple choice: they can either starve on the picket line or accept the last 12 years of illegitimate Liberal legislative abuse as the terms by which they will work for the immediate future and then wait for the Liberals to invoke their get-out-of-jail free card to effectively erase any legacy of Bill 22, 27 and 28.
Given how this government has and is going to treat them, they may well choose to starve.
