Saturday, 16 April 2011

B.C. Liberals' governing by decree backfires with Supreme Court rulings

Use of legislative sledgehammers against public sector unions proved fatal
By Vaughn Palmer, Vancouver Sun April 15, 2011 As the B.C. Liberals set about breaking public sector labour contracts during their first year in office, they received some cautionary advice from one of the most experienced negotiators in the public sector.

The legislation to strip away key provisions in collective agreements was a "case of chasing too insignificant a result over too long a time frame," he warned.

Instead there were "other options open to the government ... that would be less offensive to unions than gutting/ripping up collective agreements," and that would still allow government to "meet its fiscal challenges."

So said Gary Moser, a former deputy minister and longtime government negotiator who was then the head of the labour relations agency for the health care sector.

The alternatives suggested to government by Moser and others included consultations with the unions, formal negotiations on reopening the contracts, and outside mediation in the event of an impasse at the bargaining table.

The unions had already put out feelers along those lines. Not to say it would have been easy to reach agreement on contract concessions. But it was worth a try.

Instead, the Liberals barged ahead with legislation.

The unions in the health care sector were given just 20 minutes' notice that their contracts were to be tossed into the dumpster.

The bills themselves covering both the health care and education sectors were rammed through the legislature by the government majority (in those days the count was Liberals 77, New Democrats 2) in a marathon weekend session. Later, the decision to go with the legislative sledgehammer before even attempting some of the more respectful options would come back to haunt the Liberals.

"The record discloses no consideration by the government of whether it could reach its goal by less intrusive measures," wrote the Supreme Court of Canada in a landmark judgment that voided the Liberals' contractstripping legislation in the health sector.

"A range of options were on the table, but the government presented no evidence as to why this particular solution was chosen and why there was no meaningful consultation with the unions about the range of options open to it," the high court continued. "It was adopted rapidly with full knowledge that the unions were strongly opposed to many of the provisions, and without consideration of alternative ways to achieve the government objective, and without explanation of the government's choices."

That was in 2007. This week, B.C. Supreme Court Justice Susan Griffin (not Sandra, as I mistakenly wrote Thursday) offered a similar critique of the way the Liberals (with Christy Clark as the minister in charge) had handled the legislation that stripped away various provisions in the teachers' contract.

"The government consulted fully with the education sector employers prior to passing the legislation, over at least a seven-or eight-month period," wrote the judge.

"Internal government documents indicate that at least some government officials expected that the teachers' union would be very opposed to the legislation. The government has not offered any explanation as to why it could not also have consulted with the B.C. Teachers' Federation about the intended legislation."

In both instances, the failings in the government approach were fatal.

The legislation voiding contracts was itself voided and the Liberals were given 12 months to rectify their earlier failure to negotiate. In the health sector, those talks would eventually cost taxpayers $85 million in compensation for health care workers.

Too soon to say what might be the outcome in education; however teachers, their hand strengthened by the courts, will surely gain something at the bargaining table.

Important to note that the unions won the right to a process of collective bargaining, not to a particular outcome.

As for government, the courts affirmed that it is obliged to negotiate in good faith, using legislation only minimally and as a last resort.

Even the most heady legislative majority is obliged to respect due process.

Too often under former premier Gordon Campbell, the Liberals wielded the legislative ramrod before even giving consultation a try.

The approach reached its nadir in the summer of 2009, when Campbell sprang the harmonized sales tax on the electorate just 10 weeks after a campaign in which harmonization was barely mentioned and then only as something not on the radar screen.

Even the Liberal caucus was taken for granted on the HST, as the premier gave his MLAs only slightly more notice than the unsuspecting public.

Finally, he'd gone too far with his "just do it" approach to public policy.

The tax proved to be his ruin and remains a drag on his successor.

At Thursday's launch of extensive public consultations on the tax in advance of the coming referendum, the most telling comment was from cabinet minister Blair Lekstrom.

"I wish we'd done this 18 months ago," he said, underscoring yet another instance where the Liberals had bypassed due process and made public policy by one-sided government diktat.

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