Updated on May 7, 2011
How Gordon Campbell’s attempts to weaken labour rights are having the opposite effect
In his first term, Premier Gordon Campbell — remember him? — triggered turmoil in the public sector with legislation that not only rolled back the contracts of teachers and health care workers, but also banned any future negotiations on key aspects of those contracts.
Ultimately, the Supreme Court of Canada struck down those laws as they affected health care workers, declaring them a violation of the Charter of Rights and Freedoms. Now a second court decision has struck down the laws affecting teachers, suggesting that Campbell’s actions may ultimately have the opposite of the effect he intended.
I explored this issue in this column published in the May 6 issue of Business in Vancouver:
A recent BC Supreme Court of Canada decision has 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.
But the significance of the ruling goes much further.
It confirms the belief of many on both sides of the bargaining table that a 2007Supreme 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 – Bills 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, triggered years of turmoil, illegal strikes and litigation.
The government was upheld all the way to the Supreme Court of Canada, 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 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 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 prepare 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 on the decision focused on the impact on current negotiations with the BC Teachers Federation, who now are facing off against Premier Christy Clark, the minister who shepherded the 2002 bill through the House.
But the decision may have repercussions for everyone in the labour relations field, based as it is on the HEU decision.
“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 Pierrre 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 Gordon Campbell’s 2002 legislative blitzkrieg for that reality.