09/12/2014 04:25 EDT | Updated 11/12/2014 05:59 EST

A Rough Guide To E80 And The B.C. Teachers' Strike


Everybody watching the B.C. public teachers' strike has heard of E80, and nobody understands it. Even the negotiating teams can't agree on what it means -- a pretty good sign that it should be deep-sixed pronto.

But if you're still scratching your head about E80, it all comes down to the contentious class size and composition (CSC) clause, and this single seemingly innocuous footnote tacked on at the tail end of this document:

(Note: These provisions supersede and replace all previous Articles that addressed class size, composition and staffing levels.)

To figure out why this matters, remember there are TWO concurrent disputes, not one. The first -- the ongoing litigation over Bills 28 and 22 -- concerns the contract governing the period from 2002 to 2013.

The second is the strike and lockout over the contract between the parties for the period going forward from 2013. Just think of it as two separate time periods.

In the litigation, Justice Susan Griffin ruled that the government violated teachers' Charter rights in 2002 when it tore up their contract and imposed Bills 28 and 22. She declared both pieces of legislation invalid, leaving the teachers with the same contract terms in place since 2002. Class size and composition terms were key components of both the contract and the impugned legislation.

What Justice Griffin did not do was pull a new contract out of thin air -- rather, she merely took away the effect of the offending legislation, returning the parties to the position they held before it was imposed.

Further, she ruled that class size and composition were proper subjects for collective bargaining, and the government could not simply yank them off the table and set its own terms. Her decision is being appealed.

So when E80 is drafted to supersede all previous articles, the B.C. Teachers' Federation (BCTF) says the government is trying to pull a fast one and nullify the Griffin ruling and the effect of any subsequent legislation. The government protests that the union is just being paranoid, it would never try such a low-down dirty trick (good idea though).

But the BCTF gets into deeper waters when it suggests that the court-imposed terms on CSC from 2002-2013 bind the new collective agreement for the period starting in 2013. That's pushing it. CSC isn't cast in stone and it does need to be negotiated. Re-instated contractual terms dating back over 10 years are not the floor, but are fluid and subject to change.

The bottom line is that the parties' positions on E80 (basically the CSC clause) is fatally poisoned by distrust. Many fault the union, but it's the government who wrote the script.

This is easy to see in Justice Griffin's decision where she catalogues a damning litany of failures, incompetence and bad faith by government negotiators. Time and again the government negotiators set meetings with the BCTF that they didn't didn't prepare for, made unsubstantiated claims based on hearsay, failed any reasonable test of due diligence, and deliberately sabotaged negotiations in an attempt to goad the union into a strike so as to gain political advantage.

What's past is prologue.

The government can't escape its own record. Even today it's still stonewalling the BCTF, then going on television making wholly specious threats to raise taxes. If the government gave in to all the BCTF demands it would cost less than one per cent of the entire budget. A serious attempt to compromise would yield a fiscal result that could readily be accommodated without dinging the taxpayer. Not to mention the budget's in surplus territory already.

I challenge any journalist to read Justice Griffin's ruling and not treat the government's claims with extreme skepticism. They should apply Hemingway's adage that everyone "should have a built-in automatic crap detector operating inside," because what the government is doing today is precisely what Justice Griffin described in excruciating detail six months ago.

When Raffi tweeted at Premier Clark: "Nobody believes you," he struck a chord, because it rang true.

The government is not acting with bona fide intention to find a solution. The time has come for an expert and neutral third party to arbitrate a fair and just settlement.

B.C. Teachers' Strike 2014

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