A recent BC Supreme Court decision struck down key sections of Gordon Campbell’s 2002 law eliminating teachers’ right to bargain class size, effectively rewriting the ground rules for current negotiations with the BC Teachers Federation (BCTF).
But the significance of the ruling goes much further.
It confirms the belief of many on both sides of the bargaining table that a 2007 Supreme Court of Canada decision arising from those long-ago political battles may be as important for organized workers as the 1973 Nisga’a decision was for aboriginal people.
It’s more evidence, if more is needed, that Campbell’s direct assault on union rights in 2002 is now rebounding to labour’s advantage right across the country.
Campbell passed three bills that year – 27, 28 and 29 – that took direct aim at public sector unions, not only eliminating certain provisions from their agreements in education and health care, but also forbidding them from ever discussing them again.
Bill 29, which targeted the Hospital Employees Union (HEU), triggered years of turmoil, illegal strikes and litigation.
The government was upheld all the way to the Supreme Court, but there its luck ran out.
The nation’s top court decided in 2007 that collective bargaining was a protected right under the Charter’s freedom of association clause.
As many noted at the time, this was a 180-degree shift from jurisprudence up to that point.
Campbell’s attempt to limit union rights had produced a legal victory that the labour movement had long sought but never achieved.
Once the HEU decision was in, it was only a matter of time before the teachers went into the ring.
Madame Justice Susan Griffin ruled April 13 that “most, but not all, of the challenged legislation is unconstitutional as violating [the Charter’s] Section 2 (d) freedom to associate and to engage in collective bargaining.”
Her decision slammed the Campbell government, declaring that evidence the government relied on to show that class-size limits caused hardship to students was “anecdotal hearsay.”
The ruling documents the work done by the BC Public School Employers Association, even before the 2001 election, to ready itself for a new Liberal regime prepared to deliver a law to the employers’ liking.
The legislation was drafted in consultation with the employers but in strict secrecy from voters and, of course, the BCTF. As one melodramatic employer note put it, “run silent and run deep.”
It’s all over now. Victoria has 12 months to revise the law.
Media analysis of the decision focused on the impact on current negotiations with the BCTF, which is now facing off against Premier Christy Clark, the minister who shepherded the 2002 bill through the House.
But, based as it is on the HEU decision, it may have repercussions for everyone in the labour relations field.
“The legislation undoubtedly was seen by teachers as evidence that the government did not respect them or consider them to be valued contributors to the education system,” the judge wrote, “having excluded them from any freedom to associate to influence their working conditions.”
When the Nisga’a decision was handed down by the Supreme Court – a split decision that opened the door to affirmation of aboriginal rights and title – then-prime minister Pierre Trudeau famously remarked to the Nisga’a that “perhaps you had more legal rights than we thought you had.”
It’s clear now that the HEU decision will have similar far-reaching impacts.
When employers learn in future that workers “have more rights than we thought you had,” they can thank Campbell’s 2002 legislative blitzkrieg for that reality.
