Report in which the committee requests to be kept informed of development - Report No 343, November 2006

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

Allegations: The complainant organization alleges that the Government has further violated international principles of freedom of association and free collective bargaining with the enactment of Bill No. 12 (the Teachers’ Collective Agreement Act 2005), which unilaterally extended the collective agreement and ensured that the teachers could not bargain a wage increase or any other working conditions through the appropriate mechanism, ended the partial strike engaged in by members of the BCTF and prevented the Labour Relations Board from issuing its ruling on essential services that would have permitted teachers to engage in some form of withdrawal of educational services

318. The Committee last examined this case at its March 2006 meeting, where it issued an interim report, approved by the Governing Body at its 295th Session [see 340th Report, paras. 433-457].

1. 319. The Government of Canada transmitted the observations of the Government of British Colombia in a communication dated 21 May 2006.
2. 320. 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. Previous examination of the case

1. 321. At its March 2006 meeting, the Committee made the following recommendations in relation to this case [see 340th Report, para. 457]:
2. (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.
3. (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.
4. B. The complainant’s additional allegations
5. 322. In a communication of 7 February 2006, the complainant organization, Education International, provided additional information in connection with alleged further violations of freedom of association and collective bargaining. The complainant summarized the issue as follows (a detailed chronology of events specifically related to this new development is attached as annex to the present document).
6. 323. On 6 October 2005, the British Columbia Government appointed a new commission to inquire into labour relations matters between the BCFTU and the employer as requested by the Committee on Freedom of Association. The commission’s mandate is to make recommendations to the Minister of Labour regarding: (i) determining which matters, if any, should be concluded at local bargaining; (ii) methods and costs associated with the harmonization of compensation structures within the financial mandate established by the Government from time to time; (iii) establishment of a provincial master collective agreement; (iv) bargaining processes for provincial negotiations that are timely, structured, provide for public accountability, promote settlement at the bargaining table and foster effective and productive union/management relations, and to provide the Commissioner’s “thoughts on the viability of a local bargaining system, the structures and strategies that would support such a system and the related accountabilities necessary to ensure a local bargaining structure”.
7. 324. On 7 October 2005, the British Columbia Government passed the Teachers’ Collective Agreement Act, (Bill 12/2005). This legislation contravenes previous recommendations and the fundamental principles of free collective bargaining and freedom of association. Bill 12/2005 was introduced in the British Columbia Legislature on 3 October 2005. The Bill went from first to third reading in four days. Bill 12/2005 was passed on 7 October 2005 and received Royal Assent that same day. By extending the collective agreement that expired on 30 June 2004 to 30 June 2006, Bill 12/2005 accomplished three British Columbia objectives: (1) the Government ended the partial strike engaged in by members of the BCTF; (2) the Government prevented the Labour Relations Board from issuing its ruling on essential services that would have permitted teachers to engage in some form of full-scale withdrawal of educational services; and (3) the Government ensured that the teachers could not bargain a wage increase or any other working conditions through the appropriate mechanism, free collective bargaining. Bill 12/2005 resulted in five years of imposed conditions of employment, no improvement in students’ learning conditions, and a freeze on teachers’ salaries. It also resulted in teachers exercising their right to strike outside of the structure of the British Columbia Labour Relations Code.
8. 325. The complainant recalls that the Committee has already condemned the British Columbia Government for enacting Bill 18/2001 (the Skills Development and Labour Statutes Amendment Act) which extended the concept of “essential services” to include the provision of educational programmes), Bill 27/2002 and Bill 28/2002. Despite the Committee’s condemnation, teachers are still governed by essential services legislation, restricting their right to strike. In addition, Bills 27/2002 and 28/2002 have never been repealed or amended to reflect the needs or rights of teachers. Consequently, the British Columbia Government continues to violate international standards. The British Columbia Government sets the framework for teacher collective bargaining through legislation. Despite being governed by the Labour Relations Code which permits free collective bargaining (with some restrictions such as essential services), teachers have been arbitrarily excluded from the rights to collective bargaining under the Code for two successive rounds of bargaining. In both 2002 and 2005, the British Columbia Government imposed a collective agreement; ended the strike before teachers had an opportunity to withdraw instructional services for a single day; and did not attempt to duplicate, in any fashion, the results of collective bargaining, such as occurs in an interest arbitration structure.
9. 326. As in 2002, in 2005 teachers attempted to follow the rules that the Government itself had established under the Labour Relations Code. They participated in hearings to set the essential service levels prior to engaging in their job action. The first part of those hearings addressed what duties were essential in the context of a partial strike. The second part of the hearings addressed the extent to which teachers could withdraw instructional services. The teachers engaged their limited right to strike by following essential services orders with respect to their partial strike. Just at the point that the British Columbia Labour Relations Board was to rule on the permissibility of teachers withdrawing instruction, the British Columbia Government imposed a contract on the teachers to end the strike. This meant that teachers were unable to exercise even their limited right to withdraw instructional services under essential services legislation. In both 2002 and 2005, the British Columbia Government ensured that teachers were not permitted to withdraw any instructional services. When the British Columbia Government announced that it would deny even this most trivial interference with employer operations and moved swiftly to end bargaining, any vestige of free collective bargaining was shattered. The teachers were forced to respond outside of the legal framework. The BCTF was penalized for this: the employer enforced the Labour Relations Board Order in the British Columbia Supreme Court, resulting in a $500,000 penalty on the BCTF.
10. 327. In enacting Bill 12/2005, the British Columbia Government imposed terms and conditions of employment on teachers without discussion or consultation, contrary to the Committee’s recommendations. By its actions, the British Columbia Government deprived teachers in British Columbia of any lawful means to promote and defend their occupational interests. It also undermined the institutional right of the BCTF to act as the bargaining agent for its members.
11. 328. The complainant further refers to the following statement of the Vice-Chairperson and Registrar of the British Columbia Labour Relations Board regarding the British Columbia Government’s propensity to impose collective agreements on working people:
12. … having established this public policy and statutory framework, governments have reacted to public pressure and imposed collective agreement terms by legislation to end several disputes. While the legislation may end a dispute, it cannot force cooperation, it cannot force creative and innovative thinking to find long-term solutions to problems and it cannot force the necessary dialogue to create productive, flexible and adaptable workplaces. Imposing terms of a collective agreement by legislative intervention has a chilling effect on the long-term collective bargaining relationship. Parties may not be motivated to find collaborative solutions and will let government make the tough choices; or, parties may reach a short-term strategic solution in order to avoid the legislative “hammer”, but the long-term relationship may not be improved.
13. In his view, governments should establish public policy, establish the statutory framework and then “let the community operate within the established framework”. Without commenting on the current framework, he considered that a re-evaluation of collective bargaining in some sectors may be necessary. He pointed out that collective bargaining in the K to 12 education sector had been reviewed under the auspices of the Wright Commission Report, released in December 2004. With regard to this report, the complainant states that the British Columbia Government has not acted on the recommendations contained therein and has instead imposed another collective agreement and appointed another commissioner.
14. 329. The complainant feels that the British Columbia Government has demonstrated an utter disregard for its own rules and the rights of working people in British Columbia. The abrogation of the collective bargaining process through legislative intervention is inconsistent with and contrary to the whole system of free collective bargaining and freedom of association. The actions of the British Columbia Government undermine the democratic collective bargaining system in British Columbia, contrary to international standards developed and adopted by the ILO to which Canada is a signatory. Not only has the British Columbia Government refused to follow the recommendations adopted by the Governing Body and ignored the ILO’s fundamental principles, it has again unilaterally imposed legislation contrary to the Committee’s recommendations as adopted by the Governing Body.
15. C. The Government’s reply
16. 330. In its communication of 21 May 2006, the Government of Canada provides the observations of the British Columbia Government on the additional allegations of the complainants contained in the communication of 7 February 2006. In keeping with its previous observations on this case, the Government disagrees with the allegations made by the Canadian Teachers’ Federation (CTF) and the British Columbia Teachers’ Federation (BCTF). In the Government’s opinion, the Teachers’ Collective Agreement Act (TCAA) does not violate ILO 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 workers’ organizations’ right to join federations, impede their legal personality, or contravene the law of the land.
17. 331. The Government explains that the TCAA was intended to extend a collective agreement so that children would have full access to their education throughout the school year and to ensure that the Government could proceed with plans to find effective ways to resolve the existing failing bargaining system before resuming negotiations.
18. 332. As for the Industrial Inquiry Commission, the Government explains that it was appointed by the British Columbia Government to examine effective ways to resolve the failing bargaining system currently in place with the BCTF. The Commission was charged with reporting to the Government by 31 March 2006. The report has been received and the Government is currently considering the recommendations of the Commission.

D. The Committee’s conclusions

1. 333. The Committee recalls that this case concerns allegations of legislative intervention in the collective bargaining process in the education sector in the Province of British Columbia. In its previous examination, the Committee had examined allegations that the Government, in order to re-impose an arbitration decision that had been overturned by the British Columbia Supreme Court, had adopted unilaterally and without any consultation with social partners, retroactive legislation (Bill 19/2004, amending the Education Services Collective Agreement Act and the Schools Act) that modified or eliminated numerous provisions from freely negotiated collective agreements in the education sector. The Committee had firmly requested that the Government of British Columbia amend this legislation and refrain in future from having recourse to retroactive legislative intervention in the collective bargaining process. The Committee had also recalled that it examined this case in the context of its previous decisions in Cases Nos. 2166 and 2180 (all relating to legislative interventions in collective bargaining), and more particularly Case No. 2173, which involved closely related legislation: the Education Services Collective Agreement (Bill 27/2002) and the Public Education Flexibility and Choice Act (Bill 28/2002).
2. 334. In their latest communication dated 7 February 2006, the complainants averred that the British Columbia Government has further violated international principles of freedom of association and free collective bargaining with the enactment of Bill 12 (the Teachers’ Collective Agreement Act, 2005). The complainants summarized the issue as follows: Bill 12/2005 was passed on 7 October 2005 and received Royal Assent that same day; by extending the collective agreement that expired on 30 June 2004 to 30 June 2006, Bill 12/2005 accomplished three British Columbia Government objectives: (1) it ended the partial strike engaged in by members of the BCTF; (2) it prevented the Labour Relations Board from issuing its ruling on essential services that would have permitted teachers to engage in some form of withdrawal of educational services; and (3) ensured that the teachers could not bargain a wage increase or any other working conditions through the appropriate mechanism. Bill 12/2005 resulted in five years of imposed conditions of employment, no improvement in students’ learning conditions, a freeze on teachers’ salaries and in teachers exercising their right to strike outside of the structure of the British Columbia Labour Relations Code. According to the complainants, the latest government action further confirmed and expanded the British Columbia Government’s disturbing pattern of disregard for the basic principles of freedom of association and free collective bargaining. Although the British Columbia Government may recognize collective bargaining for teachers on paper, teachers have been “effectively” deprived of any lawful means of exercising their right to strike. The British Columbia Government had shown disrespect both for its own rules and the decisions of the ILO.
3. 335. The Committee deeply regrets the allegations of the Government’s continuing interference in collective bargaining through legislation aimed at stripping the BCTF of its collective bargaining rights. While taking due note of the Government’s indication that the Teachers’ Collective Agreement Act (Bill 12/2005) was intended to extend a collective agreement so that children would have full access to their education throughout the school year and to ensure that the Government could proceed with plans to find effective ways to resolve the existing failing bargaining system before resuming negotiations, the Committee is particularly concerned at this latest unilateral intervention on the part of the Government despite previous recommendations of the Committee to avoid doing so. Noting that all the acts complained of in these recent cases against the Government of British Columbia involve 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, the Committee once again reiterates what it had previously stressed.
4. 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 and 340th Reports, paras. 304 and 452 respectively].
5. 336. Emphasizing once again the utmost importance attached to the voluntary nature of collective bargaining and to the autonomy of bargaining partners, the Committee urges the Government to refrain in future from having recourse to such legislative intervention in the collective bargaining process. Noting that the Government is currently considering the recommendations of the Industrial Inquiry Commission, appointed by the British Columbia Government to examine effective ways to resolve the failing bargaining system currently in place with the BCTF, the Committee expects that these recommendations will assist in resolving the difficulties encountered in the collective bargaining system in British Columbia in a manner fully consistent with the principles of freedom of association. The Committee urges the Government to review these recommendations in full consultation with the social partners concerned and requests the Government to keep it informed of developments in this regard. The Committee suggests that the Government avail itself of the technical assistance of the Office with respect to the matters raised in this case.
6. 337. Deeply regretting further that the Government’s reply does not indicate the measures taken or envisaged to implement the Committee’s previous recommendation to amend Bill 19/2004 (amending the Education Services Collective Agreement Act and the Schools Act), which unilaterally modified or eliminated hundreds of provisions from negotiated collective agreements, the Committee requests the Government of British Columbia to amend the impugned legislation in line with freedom of association principles.

The Committee's recommendations

1. 338. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee suggests that the Government avail itself of the technical assistance of the Office with respect to the matters raised in this case.
   • (b) The Committee urges the Government of British Columbia to amend Bill 19/2004 and Bill 12/2005 in line with freedom of association principles and the international commitments made by the Government of Canada.
   • (c) The Committee urges the Government to refrain in future from having recourse to retroactive legislative intervention in the collective bargaining process and expects that the recommendations made in the recent report of the Industrial Inquiry Commission will assist in resolving the recent difficulties encountered in the collective bargaining system in British Columbia in a manner fully consistent with the principles of freedom of association. It urges the Government to keep it informed of developments in this regard.

Z. Annex

• April 2004:
• The parties began the process of collective bargaining for a new collective agreement.
  30. 30 June 2004:
• The collective agreement between the parties expired.
  19. 19-26 September 2005:
• Essential services hearing as the Labour Relations Board were held to determine to what extent teachers could fully withdraw educational services in the context of essential services legislation.
  20. 20-22 September 2005:
• The BCTF held a strike vote; teachers voted 88.5 per cent in favour of a strike.
  28. 28 September 2005:
• Phase (a) of the teachers’ job action plan began, which was a withdrawal of non-instructional (administrative) duties (the “partial strike”).
  3. 3 October 2005:
• The British Columbia Government introduced Bill 12/2005, intended to end the partial strike and impose another collective agreement on the parties.
  5. 5 October 2005
• Teachers voted to withdraw their services on 7 October to protest Bill 12/2005 because it imposed another collective agreement.
  6. 6 October 2005:
• The employer applied to the British Columbia Labour Relations Board for an order that an anticipated withdrawal of services on 7 October would constitute an illegal strike. The Labour Relations Board granted the order.
  6. 6 October 2005:
• The British Columbia Government announced Vince Ready as Industrial Inquiry Commissioner.
  7. 7 October 2005:
• Bill 12/2005 was passed and received Royal Assent. Teachers withdrew their services.
  9. 9 October 2005:
• The Employer sought to enforce the Labour Relations Board order in the British Columbia Supreme Court. The employer asked for a declaration of contempt of court and a fine against the BCTF.
  13. 13 October 2005:
• The British Columbia Supreme Court found the BCTF to be in contempt of court, imposed an injunction against the BCTF, and prevented the BCTF from making any expenditure in furtherance of the contempt.
  18. 18-19 October 2005:
• Vince Ready (as a mediator) began discussions between the BCTF and the British Columbia Government.
  21. 21 October 2005:
• The British Columbia Supreme Court imposed a $500,000 penalty on the BCTF for its contempt of court.
  20. 20-23 October 2005:
• Vince Ready issued recommendations which both the BCTF and the British Columbia Government accepted. Teachers voted 77.7 per cent to return to work on 24 October.
  24. 24 October 2005:
• Teachers ended their withdrawal of services and returned to the classroom.