12/20/2011 08:56 EST | Updated 02/19/2012 05:12 EST

Talks in B.C. teachers dispute "fundamentally flawed": labour board

VANCOUVER - British Columbia's Labour Relations Board has concluded bargaining between teachers and their employers is so dysfunctional, changes are needed — but that could increase the impact on students and their families.

In a ruling released Tuesday, three panel members for the board said so-called Phase One of the teachers' strike action isn't putting pressure on either side to come to an agreement.

The panel called it "fundamentally flawed."

Instead, the board said both sides need to come up with a narrow definition of what teachers do that is essential, and what parts of their jobs students can live without, at least for some time.

Provincial legislation declares teachers to be an essential service and bars them from walking off their jobs en masse.

But the board said the teachers and employers in this dispute have taken an unconventional and overly broad view of what constitutes essential.

The ruling repeated the words of the board's earlier finding, which concluded that the meaning of essential "may not be the same for every grade and may not be the same for any time of year.

"If the parties determined the minimum number of days of instruction necessary to meet the core learning outcomes, the balance of instructional days may be the number of days that a teacher may be absent from the classroom."

The board noted that although there's no question education is critically important, the same goes for workers in the health-care sector and there are disputes there that involve withdrawal of services without endangering lives.

"These are difficult matters," the ruling said. "Taking an effective approach in the educational context would also very likely require taking hard-nosed decisions with their concomitant serious impact."

The bargaining agent for the teachers' employer, the B.C. Public School Employers' Association, had asked the board last week to take another look at its November ruling that threw out the association's demand to force teachers, through their union, to pay back 15 per cent of their salaries and benefits.

The association argued that the teachers' job action since September allows them to continue teaching and drawing their usual salary while still refusing to do out-of-classroom duties such as playground supervision.

But the board refused again in Tuesday's ruling to roll back teachers' salaries, saying that's not a solution that will solve the problem.

Susan Lambert, president of the B.C. Teachers Federation, said Tuesday the board has once again confirmed that teachers are conducting responsible job action.

"There's very little we can do short of going out on a full-scale strike to indicate that we need to get a collective agreement," Lambert said.

"This was what we thought would be a moderated, responsible approach. We've been under such pressure over the last decade over how to get the government to come to the table with any kind of infusion of funding."

But Melanie Joy, chairwoman for the association, said both sides will have to spend some time figuring out what to do next.

"I don't know what our choices are going to be at this time," she said, noting that coming up with a new definition of what is essential will take more time.

"The root of the issue is Phase One is not working, the balance isn't there. Phase One could go on for eternity and the employer wouldn't have any repercussions on trying to put pressure on the BCTF.

"Our options are very limited."

Bargaining resumes Jan. 4.

(The Canadian Press, CHNL)