Monday, 26 March 2012

A court challenge to Bill 22 may be inevitable, but it won't improve public education

Last week the BC Teachers' Federation announced that it would launch a court challenge to Bill 22, the legislation which temporarily has brought an end to the teachers job action.
The details of the legal challenge have not been made clear.  One of the regional teacher association representatives was quoted in the media saying “It is necessary to challenge this damaging legislation. It’s necessary to challenge it from all angles.”
But almost certainly the challenge will be constitutional, based on the argument that Bill 22 violates the protection for collective bargaining which the Supreme Court of Canada established in the 2007 Health Services decision.  
The teachers are angry, and Bill 22 has limited their options.  But that’s not the only reason why a court challenge is inevitable. 
In Health Services, the Supreme Court of Canada held for the first time that the Constitution of Canada protects the process of collective bargaining.  Fair process is an important value.  But when it is expressed as a constitutional principle it has certain consequences.  This is because it is much easier to create a right than to define its limits.  More specifically, it’s hard to state clearly how much process is required before it can be said with certainty that fairness has been achieved.  
Process requirements are usually expressed in general terms.  For example, “the parties must discuss in good faith the issues each brings to the table”.  The application of a general principle to specific cases will always be somewhat uncertain.  How much discussion? What issues? Does “good faith” mean you have to agree? This in itself tends to encourage litigation.
Moreover, because in this case the right is constitutional, the ultimate arbiter of whether there has been “enough” process is the courts.  This further increases the likelihood of litigation.
Why?  Well, take the case of public sector collective bargaining.  One party, the union, makes demands that the other party, government, believes are unwarranted or unaffordable.  Bargaining begins.  How - or, more precisely, when - will it come to an end?  The parties may of course negotiate an agreement.  But what if the parties’ positions are firmly entrenched?  How will bargaining ever end?  In the days before Health Services, the answer was that the parties could simply leave the table and use the tools of job action or lockout (or legislation) to try to force the other side to come to terms.  But that becomes much more complicated when there is a constitutional requirement to bargain in good faith.  Now the union has another hammer – the threat of a court challenge to the fairness of the process.  This creates a significant incentive for government to stay at the table even if no progress is being made, because as long as the parties are willing to keep talking, it’s harder to argue that the process is unfair.
The process right will therefore tend to lengthen the bargaining process.  That makes it more expensive.  And the prospect of a court challenge tends to create at least some pressure to settle on terms more favourable to the union.  However, if government manages to resist this pressure, and no agreement is reached, then the union is almost bound to litigate.  Why would they not?  
It’s worth pursuing the point a bit further.  The objective of collective bargaining legislation is to create a framework within which employers and employees can negotiate the terms and conditions of employment.  The best collective agreements are those that are freely negotiated, because the parties then own both the process and the agreement.  It is, if you will, a process of mutual self-determination and self-governance.
Legislation which imposes an end to the dispute disrupts these objectives.  Parties have less sense of responsibility for an agreement they did not themselves create.  Legislation also makes it harder for the parties to use their successful negotiation as a foundation to help make the employment relationship work.  
You could argue that this is a good reason to impose a constitutional requirement for fair process in collective bargaining, because there’s a greater likelihood of an agreement being reached if the parties are required to bargain in good faith.  But unfortunately, the introduction of a constitutional requirement may have the opposite effect.  For the same reason that legislation undermines collective bargaining, by taking away the parties’ control over (and responsibility for) the outcome, so, too, does the prospect of a court challenge.  Introducing the courts as second-guesser necessarily displaces self-determination.  When things aren’t going well, the parties now can complain to the courts.  The result, perversely, is that it may become harder to reach agreement.  Ironically, in the name of protecting collective bargaining, the Supreme Court of Canada in Health Services may actually have undermined it. 
There’s one more reason why litigation in this situation is inevitable.  As I have suggested, the challenge to Bill 22 will almost certainly be founded on the Supreme Court of Canada’s Health Services decision. The Court made it clear in that case that what it was doing represented a significant departure from the law as it had been.  The immediate consequence of any new statement of law by the Supreme Court is more litigation.  Litigants, lawyers, and lower courts get busy applying, testing and expanding the new principle.  Sometimes the result is that the Court is later required to “clarify” its original judgement, to try to calm the waters by saying, in effect, “this is not what we meant”.  But whenever the Court introduces a new principle of constitutional law, in particular a new process principle, the result is more, rather than less, litigation.  
So a court challenge to Bill 22 is inevitable.  Will it make anything better for teachers or students?
At the heart of the current round of teacher bargaining are questions about the allocation of public resources, teacher compensation and education policy, including class size and class composition.  These are important and difficult questions.  None of them will be resolved by a court challenge to Bill 22.  
Judicial interpretation of the Charter has changed the way we deal with complex, multi-faceted, public policy problems.  It has encouraged us to ask lawyers to turn policy issues into Charter issues and to resolve them in courts rather than the Legislature or ballot box.  Thus the Charter’s express recognition of “freedom of association” has, thanks to Health Services, become “a constitutional right to the process of collective bargaining.” You could be forgiven for wondering how the “freedom” to associate became the “right” to compel government to bargain in good faith with unions, but that just illustrates the lengths to which courts are willing to go to use the Charter as an instrument of social policy.

However, there are still limits.  Health Services created a right to the process of collective bargaining, but not to an outcome.  A court challenge to Bill 22 will focus on the negotiation process, not on whether government should pay teachers more, or reduce class sizes, or adjust class composition.  At the end, the court will either hold there was enough process, or it will order more negotiations (or strike down Bill 22, which would have the same effect).  
I would hazard a guess that even if a court orders more negotiations, the position of the government on the fundamental issues will remain firm.  Abandoning the net zero mandate in these negotiations would cause a re-opening of as many as 140 other collective agreements that government has negotiated with other public sector unions.  That seems unlikely.  
Here, too, in my view, the Supreme Court of Canada has something to answer for. They have constitutionalized a process right, intending to make collective bargaining fair.  But unions don’t just want fair process, they want better terms and conditions of employment for their members.  Health Services has made public sector collective bargaining more complicated and more expensive.  It has encouraged recourse to the courts.  But it has not made it easier to resolve education funding and policy issues; it’s actually made it harder.  There will be a court challenge to Bill 22, no doubt, but it begs the question: how will litigation improve public education?

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