Sunday, September 7, 2014

CAN BINDING ARBITRATION WORK?

Resolving the Contract Impasse between Federation of Teachers versus Provincial Government


The BCFT and the government are in the midst of negotiating a new collective agreement. Negotiations have not gone well. The two parties are far enough apart and each is resistant to further accommodation that potential mediator Vince Ready walked away from the stalemate. Think about it. Over the past three months, both sides have not even met in the same room around a table yet. What kind of collective bargaining is that?
Binding arbitration is a continuation of the collective bargaining process that in calamitous cases of disruption to a critical service provides an additional or alternative method to resolve the dispute. It requires that both sides agree to abide by the judgment of an objective arbiter whom both sides endorse. Some experts state that it would be best to have a panel of three arbiters rather than one arbiter to assess the positions of both sides and come to a ruling.

It would work this way. The B.C. teachers would lift their strike and the province its lockout, effective immediately. That would not mean that the strike ends but it is suspended, and 41,000 teachers and 550,000 students can be back in school and parents can relax. The arbiter or arbitration panel would have time to adequately process a binding settlement. If the government is willing to go this route, then the teachers will have to be asked whether they too will agree.

The Vancouver School Board suggested this to both the province and to BCTF in July. Previously, both sides in the dispute have rejected binding arbitration as a solution. On Friday September 5th, B.C. Teachers' Federation president Jim Iker called for binding arbitration to settle the three-month teachers' strike asking the government to consider it.

The first hurdle is that the government will be reluctant to agree to arbitration. Education Minister Peter Fassbender has not dismissed the possibility but neither he nor Premier Clark are enthusiasts for arbitration. "We are not prepared to say to someone else, well you make our decisions for us," Fassbender said at a news conference Friday afternoon. The reluctance stems from the last time arbitration was employed in 2002 to settle an impasse with B.C. doctors, and a modest raise for doctors cost the government hundreds of millions of dollars and blew their budget plans. That would be a fear again.

A second hurdle concerns Bill C-80 or the issue at the heart of the bill.
A collective agreement establishes salaries, benefits, and working conditions for employees and is agreed upon by both the employer and the union of teachers. A collective agreement means that both union and employer have responsibility to ensure that the language within an agreement is followed. During the past decade the government removed much of the class size and composition language not by negotiation but by passage of a bill. The B.C. Supreme Court ruled twice that the province violated teachers' rights by stripping class size and staffing-level requirements from the contract. Earlier this year, the B.C. Supreme Court ordered the province to pay $2 million in damages for removing the teachers' collective rights to bargain on class size and composition and support for special needs students in 2002 — and for failing to reinstate them when ordered by the court last April. The government has an appeal pending again. Perhaps thinking that the appeal will be unsuccessful, the government, during these last three months, has introduced into the negotiation Bill C-80 as a condition to contract settlement that would require teachers to give up or sign away the outcome of that pending decision. BCTF would require that the government set this Bill aside if the arbitration process was to proceed.

Even now, arbitration aside, as the government waits for the B.C. Court of Appeals to hear and to render a decision, the government could match the $12 million it saves each day of the teachers' strike and thereby create a fund that grows by $24 million daily to address the issues of class size and assistants for special-needs students. Teachers want more assistants to deal with special needs children for whom teachers are not equipped. Even stay at home moms and dads and grandparents could be trained to be such assistants. 

Breaking News:
As I completed this piece, I learned that late Saturday September 6th, in an emailed statement, Education Minister Peter Fassbender said his chief negotiator, Peter Cameron, had recommended against accepting the offer. "I agree," said Fassender. "After due diligence and further investigation, it became very clear that it was another empty effort to give parents and teachers a false hope that there is a simple way to resolve the dispute."

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