As reported extensively in previous issues ofNewsLink, Minister of Skills Development andLabour Graham Bruce announced on September8, 2003, that he was proceeding with a review ofthe teacher collective bargaining structure, asper Section 5 of the Education Services CollectiveAgreement Act.

A s the first step, the Minister appoint-ed Don Wright, a respected seniorcivil servant, to assist in developing

the terms of reference for this review.Specifically, he was asked to:

• Review the history of collective bargaining in BC

• Consult with the key stakeholders and seektheir recommendations concerning the development of terms of reference

• Establish draft terms of reference for a commission of inquiry.

On December 19, 2003, the Minister appointedWright as a one-person commission to reviewand recommend improvements to the struc-tures, practices and procedures for collectivebargaining.

Wright consulted with the key stakeholders inthe sector. The organizations consulted covereda broad spectrum of stakeholders includingorganized labour, trustees, parents, govern-ment, and employers.

On December 16, 2004, Wright released hisfinal report, entitled Voice, Accountability andDialogue: Recommendations for an ImprovedCollective Bargaining System for Teacher Contractsin BC. Following is a summary of the report andWright's recommendations.

A copy of the full report can be accessed onthe BCPSEA website at www.bcpsea.bc.ca(http://www.bcpsea.bc.ca/public/emplgroups/teacher/teacherintro.html)

ECONOMIC AND POLITICAL CONTEXTWright prefaces his recommendations with adetailed analysis of the political and economicenvironment within which teacher collectivebargaining occurs. At page 4, he distinguishesbetween the economic marketplace where pri-vate sector collective bargaining occurs and the

WRIGHT REPORT RELEASEDRECOMMENDATIONS FOR TEACHER COLLECTIVEBARGAINING STRUCTURE

WINTER 2005

IN THIS ISSUE

COVERWright Report Released 1

INSIGHTWright’s Proposed Dispute Resolution Mechanism: Is it Déjà vu All Over Again? 3

SPOTLIGHTAgeism in the Workplace 7Mandatory Retirement 9

CASE CLOSEUPMedical Forms 11Definition of Strike: Appeal 12“No Cuts” 13Arbitrability of Class Size: Appeal 13The Education Services Collective Agreement Act, Public Education Flexibility and Choice Act and the Charter 14Essential Services: Status Update 14

OCCUPATIONAL HEALTH & SAFETYExpert Panels 15Teacher Exchange Programs & WCB Coverage 16Bill C-45 17WCB Assessment Rates 18How Do You Rate? 19

CURRENT AFFAIRSBC Public Sector Settlements 21Changes to the Teaching Profession Act 22

BULLETIN BOARDSupport Staff Bargaining 17BCPSEA Client Services Survey 23Exempt Staff Total Compensation Survey 23

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political marketplace where public sector bargaining occurs. In discussing the politicalcontext, he notes that labour relations in thepublic education system are different and distinct from labour relations in the privatesector and in other public sectors. These dis-tinctions include the monopoly or nearmonopoly arrangement of education services,the importance society attaches to the publiceducation system, and the custodial functionof the education system.

“The reality is that there will be intense polit-ical pressure on the provincial governmentto prevent, or to intervene in, any disputethat carries on for any length of time…Rather than wish away the political contextand reality, we would be better advised toask ourselves some hard-headed questionsabout their implications for a workable collective bargaining regime.” (p. 6-7)

With respect to the economic context, theunderlying message in Wright’s analysis andreview is that collective bargaining in the pub-lic sector is, and must, be guided by the stateof the provincial economy and financialresources.

“ It is natural for any group of public sectoremployees to want to see the activities theydeliver well funded. Their motivation forthis is an understandable mixture of com-mitment and self interest…Accordingly, alevel of disappointment among teachersabout funding levels over the last dozenyears or so is understandable…It is neces-sary, however, to put this disappointment incontext. The unhappy fact is that BritishColumbia has had, in economic terms, a disappointing quarter of a century. We havegone from a “rich" or a “have” province atthe start of the 1980's to a “poor” or “havenot" province by the start of the twentyfirst century.” (p. 9)

NECESSARY CONDITIONS FOR MATURECOLLECTIVE BARGAININGThroughout his report, Wright refers to “ma-ture collective bargaining.” He defines this as:

“ …a state where parties go to the bargainingtable with an expectation that a settlementwill be reached, are prepared to make the compromises that will be required to achievethat settlement and generally prefer making

the necessary compromises to avoid the consequences of an impasse…” (p. 13)

He identifies five criteria that he believes arenecessary to reach a state of mature collectivebargaining between teachers and theiremployers in British Columbia:

1. Government recognizes that teachers musthave an effective voice in determining theterms and conditions under which theyteach

2. Teachers must recognize government'sinterests in funding the K-12 system

3. Both parties must bring genuine desire toavoid legislative intervention

4. Both bargaining agents must be governedeffectively so that they can come to thetable with the ability to make a deal

5. The public must be able to hold the appro-priate agency accountable for the adequacyof funding, the effectiveness of how thatfunding is utilized and the outcome of thecollective bargaining process.

WHERE WILL ISSUES BE BARGAINED?From the outset, Wright has stressed theimportance of alignment of accountability forfunding the public education system and thecollective bargaining structure. He also recog-nizes that the direct employer-employee rela-tionship is between teachers and local schoolboards and acknowledges the importance ofthis relationship. Wright recommends main-taining the current two-tiered bargainingstructure. However, he also recommendsamending the provincial-local split of issues.Under his recommendations, major cost drivers would continue to be negotiatedprovincially as would matters that are general-ly common to most collective agreementsregardless of industry. Issues which are prima-rily what he terms “relational” would be negotiated at the local level. In addition tothose issues currently negotiated locally, thefollowing matters would be added to the localtable:

• Unpaid leaves of absence• Leaves of absence paid or subsidized by the

employer• Discipline and dismissal for misconduct

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A particular focus of conflictand debate is Wright’s pro-posed dispute resolutionmechanism.

Wright proposes a multi-phase impasse resolutionprocess which incorporatesseveral different forms ofassistance and intervention,noting that the terms of refer-ence for the Commissionerunder this process must care-fully balance the interests ofteachers, employers and thefunder of the public educationsystem, the provincial govern-ment.

Some believe that the newsystem doesn't in fact repre-sent a new method of disputeresolution but rather, repre-sents a return to a system inplace in the 1970s and 1980s.In a Victoria Times-Colonistarticle, “Back to the Future,”author Geoff Johnson, aretired superintendent ofschools, comments that,“referring bargaining deadlocksto an arbitrator operating withinfixed timelines is the way teacherbargaining was conducted in the'70s and early ’80s, before fullunionization of the province’s42,000 teachers….”

Is this the case? Does thesystem of dispute resolu-tion proposed by Commis-sioner Wright represent areturn to the past?

In short, the answer is no.

Forms of compulsory arbitra-tion have existed before inthe K-12 public educationsector, but not in the form asproposed by CommissionerWright. In 1919, the provin-

cial government amended thePublic Schools Act to enable aschool board to enter into anagreement with its teachers,essentially creating a weakform of voluntary arbitration.In the event of a disagree-ment over salary, the matterwas referred to arbitration.There were, however, noprovisions for compulsoryarbitration, no recognition ofthe local teachers’ associationor the BC Teachers'Federation as the exclusiverepresentative of teachers,and no provision compellingthe board to pay additionalsalaries awarded by the arbi-tration board.

In 1937, legislation was enact-ed which provided for com-pulsory arbitration in teachersalary disputes, making arbi-tration for teachers a rightrather than a matter of aschool board's discretion.Many school boards opposedthe legislation, either refusingto send a salary dispute toarbitration or refusing to rec-ognize the outcome of thearbitration. In the 1939-1940school year, Langley teachersand the Langley school boardwere unable to reach anagreement on salaries.Teachers asked to have thematter submitted to arbitra-tion, but the board refused tocooperate. The board did notmake a presentation to thearbitration board and thenrefused to pay the arbitratedaward. The Langley schoolboard even went so far as tofire all the teachers on thearbitration list. In the end, the provincial governmentstepped in, fired the school

board, and appointed a singletrustee administrator. In theend, the teachers were allreinstated and paid the arbi-trated award.

In 1958, reacting to legislationwhich gave trustees the rightto fix salaries, the BCTFforced 58 districts into salaryarbitration. This was sufficientto persuade the provincialgovernment to amend thelegislation to provide teachersthe right to negotiate salaries.Later that year, the PublicSchools Act was amended toreflect this right.

The dispute resolutionprocess under the PublicSchools Act in 1958 remainedlargely unchanged throughthe ‘60s, ‘70s and early ‘80s.The parties were able tonegotiate salary and wherethey were unable to reach anagreement, the parties wouldproceed to interest arbitra-tion. Only salaries and bonus-es could proceed to arbitra-tion. In 1987, teachers weregranted the right to organizeunder the labour relationscode of the day and bargaincollectively with theiremployer. With that rightcame the right to strike underthe code.

The salary and bonus arbitra-tion process of old andWright’s recommended pro-cess are quite different inboth scope and operation.Under Wright’s proposed dispute resolution mecha-nism, all issues subject to col-lective bargaining would bearbitrable: salaries, benefits,

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WRIGHT’S PROPOSED DISPUTE RESOLUTIONMECHANISM: Is it Déjà vu All Over Again?

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• Evaluation• Posting, filling and assignment• Layoff and recall• Supervision and duty-free lunch.To ensure that the split of issues is real; i.e.,that “…the local tables…have the autonomyto negotiate whatever agreement makes senseto the local board and the local teachers’ association…” (p. 20), Wright recommendsthat local issues negotiated by the local partiesnot be subject to the approval of either of theprovincial bargaining agents.

WHO SHOULD BE THE BARGAININGAGENT?Wright recommends the maintenance of boththe BC Teachers’ Federation and the BCPublic School Employers’ Association as the

bargaining agents for employees and employ-ers, respectively. He observes that thechanges to the provincial-local split of bargain-ing issues and the greater delegation ofauthority to the local level can be addressed, ifnecessary, through amendments to the PublicEducation Labour Relations Act (PELRA).

HOW WILL IMPASSES AT THE BARGAININGTABLE BE RESOLVED?Commissioner Wright proposes two disputeresolution alternatives that have as a basis thesame multi-phase process. The multi-phaseprocess incorporates several different formsof assistance and intervention. The proposedcollective bargaining process would start withcollective bargaining for a finite period of time(Phase 1: April 1 to September 30). If the par-ties are unable to reach an agreement during

leaves, supervision, prepara-tion time, evaluation, etc.

This arbitration process isvery different in bothnature and complexitythan the processes thatexisted historically in thesector. The proposed arbitra-tion process includes terms ofreference for the arbitrationprocess, unlike the system inplace pre-1987, where arbi-trators had no specific criteriaor guidelines.

Another key difference isthe form of arbitrationused. Prior to 1987, if theparties were unable toreach an agreement theywould proceed to interestarbitration on the narrowissue of salaries as associ-ated bonuses. In general, toarrive at the terms, this formof arbitration attempts to re-plicate what the parties wouldhave negotiated had they bar-gained collectively, taking intoconsideration similar settle-ments or arbitration awards

of this nature. Under Wright’sproposed structure, disputeswould progress to Final Offer Selection (FOS). Whilethere are a variety of forms ofFOS, Wright’s proposal hasthe arbitrator choose eitherthe employer’s final offer orthe union’s – what is some-times referred to as strict ortrue FOS.

FOS is a form of interest arbi-tration. The goal of FOS is torefashion interest arbitrationso it is comparable to a strike.Both parties put their finaloffers on the table and if theycan’t agree, the arbitratorselects one of the two offers.In Wright’s proposal, the arbi-trator is not allowed to puttogether a new package; oneof the two packages must beselected.

The purpose is to force bothparties to make reasonabledemands, by considering theneeds and demands of theother party. If one partychooses to make unreason-

able demands, that partyfaces the risk of losing it all.That risk is intended to makethe negotiations and the bargaining atmosphere moreconducive to reaching a voluntary settlement.

Finally, Wright has included anelement of public disclosure(Phase 2). A Commissionerwill be required to issue a pub-lic report outlining the issuesat the table, which issuesremain unresolved, positionsof the parties and the implica-tions of those positions.

Clearly, the Wright Com-mission’s recommended dis-pute resolution mechanismrepresents a departure frompast structures and anopportunity for the parties“to find the compromises necessary to get negotiatedagreements.”

If you have any questions or requirefurther resources/information, pleasecontact Hugh Finlayson, ExecutiveDirector/CEO, at 604.730.4515 orhughf@bcpsea.bc.ca

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that time, they would progress through aseries of time-bound interventions (p. 34-35):

• Phase 2 (October 1 to October 31): A Commissioner would be appointed toinvestigate the status of negotiations. TheCommissioner would issue a public reportoutlining issues at the table, the positions ofthe parties and the implications of thosepositions.

• Phase 3 (November 1 to January 31): If theparties remain at impasse, theCommissioner would be appointed asMediator/Arbitrator and would attempt tomediate an agreement between the parties.

• Phase 4 (February 1 to February 28): If theparties are still unable to reach an agree-ment, each party would propose a final offerand present it to the Mediator/Arbitrator.The Mediator/Arbitrator will select one ofthe final offers to be the “Default Contract.”

• Phase 5 (March 1 to March 15): The partieshave two additional weeks to continuenegotiations to negotiate an alternativeagreement. If the parties are able to reachan agreement in that period, the alternativeagreement becomes the contract. If not, the“default contract” developed in Phase 4becomes the contract (dispute resolutionoption 1.)

(See chart on page 23)

Wright notes that the terms of reference forthe Commissioner under this process mustcarefully balance the interests of teachers,employers and the provincial government asthe funder of the public education system.

With respect to Phases 4 and 5 at page 37 ofhis report, Wright makes the following obser-vations which form the basis of the second ofthe two options:

“ If I am wrong in my judgement about thefeasibility of a right to strike, the arbitrationat the end would not be necessary. I wouldstill, however, recommend maintaining thebasic process proposed here. The only modi-fication is that the final offer selection at theend of Phase 4 would be a “recommendedcontract.” After that recommendation theparties would remain free to pursue theiroptions unencumbered by arbitration.” (p. 6-7)

WHAT IS TO BE BARGAINED? THE SCOPE OF BARGAININGInitially Wright did not intend to address theissue of scope and thought it would be betterdealt with at a later time. At page 30 ofTowards a Better Teacher Bargaining Model,November 2003, when recommending termsof reference for the inquiry Wright observed:

“ In recommending that the commission stayaway from scope issues, there may appearto be a bit of a contradiction with the direction to consider whether there shouldbe different “tiers” of bargaining. Suchconsideration will involve what should bebargained by who – which might lead usinto the scope issue. What I have in mindin this context, however, is more of a focuson clarifying where responsibility is bestlocated than on the bigger “what is to bebargained” question.”

Through his consultations, Wright made thedetermination that some changes wererequired to improve labour relations in thesector and “to find the fair middle groundsooner, rather than later” (p. 42). He recom-mends that the government establish aprocess for policy discussions, parallel to thecollective bargaining table. These collaborativeand interest-based policy discussions wouldserve to seek agreement on cost effectiveapproaches to improving working and learningconditions. The sessions would be facilitatedby an individual acceptable to both teachersand school boards. The facilitator would berequired to report out on the efficacy of thediscussions for dealing with these issues, participation of the parties, and recommendan approach for dealing with these issues inthe future.

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“…these recommendations will not significantly improvethe state of bargainingunless there is an attitudinal and behavioural change on both sides.”

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TRANSITIONWright highlights the need for one masterprovincial agreement for matters deemedprovincial. He observes that the current struc-ture – one master agreement with sixty sub-agreements remaining from the 1994 changeto provincial bargaining – makes progress atthe bargaining table difficult. Negotiations areabout tradeoffs; however, the internal politicsof making these tradeoffs becomes more difficult for the bargaining agents to manage,especially in terms of the internal dynamics,including internal politics.

Wright is of the view that transitioning the sector to one provincial agreement will putthe parties in a position where mature collec-tive bargaining is more probable. Wright recommends that an Industrial Inquiry Commissioner be appointed to supervise thecreation of a first “provincial agreement.” TheCommissioner would first attempt to mediatea provincial agreement between the parties. Ifmediation is not successful, then theCommissioner would arbitrate the agree-ment. To make the process as fair as possible,Wright recommends that the process have anotional net cost of $30 million – the amountdedicated to the implementation of the salarystructure – and notes that no teacher shouldsuffer a reduction in salary as a result of thisprocess.

With respect to the transition of local collec-tive bargaining, Wright proposes that local andprovincial agreements expire in differentyears. This would allow local school boardsand local teachers’ associations to havegreater access to the provincial collective bar-gaining expertise available via their respectivebargaining agents. With respect to employers,he notes that “…support from BCPSEAshould be a core part of the bargaining infra-structure needed” (p. 53). Wright also recom-mends that local school boards consider coop-erating regionally for the negotiation of localmatters. At present two voluntary multi-

employer associations exist in the sector forbargaining purposes.

THE NEED FOR DIALOGUEWright reiterates that the parties are a longway from being able to engage in mature col-lective bargaining. He believes he is proposinga process that will motivate and encouragethe parties to develop this capacity and tomake the necessary changes/compromises tobe able to negotiate good collective agree-ments. However, Wright cautions that,“…these recommendations will not signifi-cantly improve the state of bargaining unlessthere is an attitudinal and behavioural changeon both sides” (p. 55).

BCTF REACTION TO THE REPORT

The BC Teachers’ Federation reaction to thereport was swift and negative. In a BCTF newsrelease dated December 16, 2004, the follow-ing comments were attributed to BCTFPresident Jinny Sims:

“ …implementing the recommendations inthe Wright report would enshrine govern-ment intervention and further jeopardizeany possibility of fruitful negotiations.”

In a School Staff Alert (2004-05, #14) issuedlater the same day, the BCTF stated:

“ There are no solutions in the document. It takes a system which all parties agreedwas dysfunctional and adds further dysfunction. If these recommendations arelegislated by the government, they will leadto further chaos in the public education system.”

NEXT STEPSBCPSEA is reviewing Wright’s report further to identify whether the structural rec-ommendations are consistent with the criteriaor themes developed as the basis for theBCPSEA submission to the Commission.

BCPSEA will also reflect on the capacity,capability and willingness of the parties, asevidenced by their reaction to the report,and attempt to answer the question: If therecommendations are adopted, will they leadto improved collective bargaining practices,procedures and outcomes for teachers andpublic school employers?

“…support from BCPSEAshould be a core part of the bargaining infrastructure needed”

Ageism – an attitudinal barrier that often caus-es age discrimination – affects the law becauseattitudes about age often form the basis forpolicy and decisions.

Governments have tended to useage as an easy and efficient crite-rion, as a substitute for “vulnera-

bility,” “ability,” and as a tool to redistrib-ute a scarce resource.

Ageism occurs when planning and design choicesdo not reflect the circumstances of all age groupsto the greatest extent possible.

Canadian workplaces tend (though this is changingwith demographics) to perceive older people asless enthusiastic, less productive, less committed,more difficult to train, unreceptive, and undynam-ic compared to younger workers.

However, the Ontario Human Rights Commissionhas recently published its Policy on DiscriminationAgainst Older Persons Because of Age. This docu-ment describes aging as a “highly individual experi-ence” and provides examples whereby olderworkers are highly productive, offer considerableon-the-job experience, are creative, flexible, canlearn well and be trained, and do not fear change.

HIRING PRACTICES CAN HIDEAGEIST ATTITUDES

Older people do face significant barriers in findingemployment; these can result from explicit dis-crimination, such as not hiring a person simplybecause of his/her age, but also from more subtleor systemic discrimination, based on ageist atti-tudes. For example, an applicant might be toldthat he or she lacks “career potential.” TheOntario Human Rights Commission reports in itsabove-mentioned policy that employers rarelystate age as the reason for not giving an applicantthe job; it lists several examples of neutral state-ments which might have a disproportionateimpact on older persons, such as refusing an appli-cant with “too much experience,” who is“overqualified,” who has “too diversified” a back-ground or “too specialized” a set of skills andwould have trouble learning new skills.

These statements have a disproportionate effecton older people. Since human rights law is basedon the principle that employment decisions shouldbe based on the applicant’s ability to do the job,cloaking ageist attitudes with these neutral state-ments can give rise to human rights claims.

When recruiting employees in BC, an employercan ask an applicant only if he or she has reachedBC’s legal working age, but nothing that wouldreveal any more about a person’s age. However,the BC Ministry of the Attorney General explainsthat once an employer has decided to offer theposition to the applicant, they can ask about theperson’s age, but only for enrolment in pensionand benefits plans. Statements in advertisementsshould not directly or indirectly relate to age, andapplication forms should ask no questions otherthan: “Are you 18 years or older and less than 65years of age?”

This does not mean that an employer can neverdisqualify someone because of age. In law, anemployer can justify a practice that has a discrimi-natory effect if it is shown to be a bona fiderequirement in the workplace. For example, busdrivers must be able to see. However, even in thisinstance, the Supreme Court of Canada has heldthat the employer still has a duty to accommodatethe adversely affected employee to the point ofundue hardship. The trend in the courts, however,is that it is very hard to justify turning someoneaway solely because of their age, especially if theconcern for the employee’s capacity is largelybased on cost.

SENIORITY RIGHTS NOT“RIGHTS OF SENIORS”Although seniority can serve as an important safe-guard against overt ageism, the seniority systemitself is a form of constructive discrimination.Often, layoffs are made for financial reasons,according to seniority; the more junior employeesare often disproportionately female or members ofa racial minority. However, the trend is to respectseniority rights, and seniority is likely accepted as areasonable factor in layoffs or promotion cases.The Supreme Court of Canada has validated the

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AGEISM IN THE WORKPLACEWhere does the law stand? By Graeme McFarlane and David YuleReprinted with permission from the BC Human Resources Management Association’s PeopleTalk magazine, Winter 2004 issue

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importance of seniority rights and their ongoingprotection.

Protecting seniority rights seems a departure fromageist attitudes. It respects the experience of moresenior employees and places great value on retain-ing older employees within the workforce.However, seniority rights should not be read as“rights of seniors.” Seniority rights last only as longas the employee remains in the workplace; while protecting an older worker’s employment,they might be balanced with early or mandatoryretirement policies.

Seniority rights, like any other workplace right,must also be balanced with other protected rights.While important to the ongoing protection of seniority rights, it is clear that non-discriminationand the duty to accommodate require a balancingof competing interests. Many seniority rights willnot be discriminatory, but in some circumstances,seniority must be modified. For example, anaccommodation plan might place an employee in aposition out of seniority order. The pursuit of amore equal workplace should lead unions andemployers to discuss ways to reduce the detrimental impact of seniority systems on allgroups, such as job-sharing alternatives, or earlyretirement incentives (see Katherine Swinton,Accommodating Equality in the UnionizedWorkplace, (1995) 22 Osgoode Hall L.J. 703-747).

MANDATORY RETIREMENT CAN REINFORCENEGATIVE STEREOTYPES

No policy lies more rooted in ageism than manda-tory retirement, which chooses a particular agelimit that employees are not welcome to surpass.Often cited in support of mandatory retirementare classic ageist assumptions about older workersthat their productivity declines with age, that theycannot learn new skills, or that it is less cost effec-tive to retain them.

Companies often offer early retirement packagesas an incentive to promote voluntary exit from theworkforce. These might have many benefits to allworkers, young and old. They can be designedappropriately without raising human rights con-cerns. However, as early retirement schemes, bydefinition, target older workers, they must be sen-sitively created. The Supreme Court of Canada hasupheld mandatory retirement schemes as valid,

but a current trend within arbitrations insists thatemployers justify these policies (see “Mandatoryretirement: Can you defend your policy?” in thisissue.)

However, early mandatory retirement has a dis-proportionate impact on diverse groups of olderadults. Women might have more interruptionsregarding work outside the home because of child-rearing responsibilities. Recent immigrants mightalso have a relatively short amount of time to con-tribute to a pension plan, and it might take themlonger to build a sufficient pension fund, sincemany of them face lower wages than theirCanadian counterparts. Mandatory retirement canreinforce negative stereotypes of older workersand eliminate a potential role for mentorship in anorganization. Forcing older adults out of the work-force can create their greater need for financialsupport.

MAKE EMPLOYMENT DECISIONSBASED ON INDIVIDUAL MERIT

An overall goal of human rights law, as it relates tothe workplace, is to have the individual judged onmerit, without unfairly bearing the social baggageof assumptions about membership in a particulargroup whenever possible. This approach has givenrise to a duty on the person responsible for a dis-criminatory decision to take “reasonable steps” toaccommodate the protected group, if this can bedone without undue interference in the operationof the business.

The corollary of this duty to accommodate is thata policy that discriminates on the basis of age mightbe justified if it is a reasonable or bona fide require-ment (see previous reference under hiring sec-tion). However, the Supreme Court of Canada hasmade it clear that it is no longer acceptable tostructure systems in a way that assumes thateveryone is young, and then try to accommodatethose who do not fit this assumption. Rather, agediversity, as it exists in society, should be reflectedin the design stages, so that physical, attitudinal,and systemic barriers do not result.

Graeme McFarlane is an associate lawyer at OgilvyRenault who provides advice on labour and employmentmatters. David Yule is an articling student at OgilvyRenault. Contact: GMcFarlane@ogilvyrenault.com

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Under provincial human rights legislation, people over the age of65 in BC and in Ontario enjoy no

protection against age discrimination.

Hence, employers in those provinces can pro-vide for mandatory retirement at age 65 withno fear that their policy is discriminatory.However, the Ontario government has recentlyannounced that it will introduce legislation toend mandatory retirement.

With this move, Ontario joins Prince EdwardIsland, Quebec, Manitoba, Alberta, and thethree territories, as well as the United States,Australia, and New Zealand, all of which prohibit mandatory retirement with limitedexceptions. Why this stance? The Ontario government and those who favour endingmandatory retirement, including 66-year-oldPrime Minister Paul Martin, cite factors such aslonger life expectancy and an aging population.Some consider mandatory retirement an outdated concept in a country with a shrinkingworkforce, shortages of skilled workers in certain occupations, and large pension liabilitieslooming. Forced retirement can also prove afinancial hardship to some people, particularlyrecent immigrants and women who have takentime off from employment.

The BC government has not indicated that it isconsidering a similar change. However, tworecent arbitration awards suggest that employ-ers in BC might not be entitled to requireemployees to retire at age 65 simply becausemandatory retirement does not contravene theHuman Rights Code. Different considerationsapply, depending on whether the employer is inthe public or private sector.

WHERE DOES MANDATORY RETIREMENT

STAND IN THE PUBLIC SECTOR?In the case Greater Vancouver Regional District(2000), 90 L.A.C. (4th) 93 (Germaine), the arbi-trator held that there is an onus on a govern-ment employer, whose mandatory retirementpolicy has been found to violate the Charter’sequality rights provision, to justify its policy as areasonable limit under section one of theCharter. The GVRD policy of mandatory retire-ment was struck down on the basis that theemployer offered no evidence in support of itspolicy.

The Supreme Court of Canada had previouslyheld, in a trilogy of cases, that the restricteddefinitions of age in the BC and Ontario humanrights statutes contravened the Charter guaran-tee of equality. The legislation was found, how-ever, to be a reasonable limit under section one.Since that time, most observers considered theconstitutionality of mandatory retirement a set-tled issue. The award in the GVRD case indi-cates that the mandatory retirement policies ofpublic sector employers will not be presumedconstitutional but will require justification on acase-by-case basis.

In late 2001, the BC Court of Appeal upheld thearbitration award in GVRD (GVRD Employees’Union v. GVRD, 2001 BCCA 435). The majorityof the Court agreed that the employer neededto demonstrate that its mandatory retirementpolicy was a reasonable limit on the right of itsemployees to be free from unequal treatmenton the basis of age. The majority was not per-suaded that the previous Supreme Court deci-sions meant that any government mandatoryretirement policy would be justified under sec-tion 1 of the Charter. The Court also “respect-fully suggested” that it was time to revisit theissue of mandatory retirement. The Supreme

Mandatory retirement remains legal in B.C., although changing demographics andviews on aging have created today's trend toward its abolition. Within this climate,private and public sector employers in this province must be prepared to defend apolicy of mandatory retirement.

MANDATORY RETIREMENTCan you defend your policy? By Muriel HenryReprinted with permission from the BC Human Resources Management Association’s PeopleTalk magazine, Winter 2004 issue

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Court of Canada did not have the opportunityto do so as the GVRD did not seek leave toappeal.

Mandatory retirement has been held constitu-tionally permissible for employees of the BCprovincial government and other entities towhich the Public Service Act applies. In the caseGovernment of British Columbia (WybertGrievance), [2002] BCCAAA No. 294 (Glass),the mandatory retirement provision in the Actwas found to be a reasonable limit on theCharter rights of the grievor, a LiquorDistribution Branch clerk forced to retire at age65. To justify its policy, the employer led evi-dence of a need for succession planning, and acommitment to an employment equity program.

THE “HOW” COUNTS WITH MANDATORY

RETIREMENT IN THE PRIVATE SECTOR

Mandatory retirement policies in the privatesector continue to be lawful under the HumanRights Code, but a recent arbitration awardserves as a reminder that, as with other policies,the manner of implementation, communication,and application of a mandatory retirement poli-cy might render it invalid.

In the case Pacific Newspaper Group, [2003]BCCAAA No. 225 (Germaine), the arbitratorstruck down the employer’s mandatory retire-ment policy on the grounds that it was discrim-inatory and arbitrary. The union had grieved theforced retirement of four employees under thepolicy. Each of the four employees had turned65 prior to receiving their notice of retirement.Labour relations between the employer andunion were complicated: seven previously sep-arate bargaining units had each retained specialterms under the current collective agreement;not all of these groups were subject to manda-tory retirement under the collective agree-ment, and some employees had historical life-time guarantees against layoffs. The employer’sevidence at the hearing was that an employeewould normally work until the end of themonth in which he or she turned 65, but couldbe allowed to work for up to a year beyond hisor her sixty-fifth birthday.

The union argued that the policy was arbitrary,discriminatory, and an unreasonable exercise ofmanagement rights. The employer argued thatmandatory retirement was legal both in regardsto the law and under the collective agreement,and that the only reason the grievors wereallowed to work past the age of 65 was humanresources’ mistaken belief that they had lifetimejob guarantees. The employer also led evidenceof employees’ retirement over the previous 16years, which showed that, excluding those whotook early retirement or who had lifetime guar-antees, only 14 of 198 employees worked morethan a month beyond their sixty-fifth birthdays.

The arbitrator found that the employer’s policywas not valid under the test for a policy ofmandatory retirement. Such a policy must meetfour conditions to be valid: it must not contra-vene human rights legislation; it must complywith any restrictions in the collective agree-ment; management must not exercise rightsunder the policy in an arbitrary, discriminatory,or unreasonable manner; and employees musthave adequate notice of the policy.

In this case, the policy met the first two condi-tions, but failed to meet the second two. Theemployer’s practice of allowing employees toretire at an undefined point between their sixty-fifth and sixty-sixth birthdays resulted in anuneven pattern of retirement. This patterndemonstrated unequal treatment of employeesunder the policy, which was held to be both discriminatory and arbitrary. Furthermore, theemployer could not provide evidence that thepolicy was ever written down or communicatedto the employees and union; therefore, neitherunderstood the employer’s policy. This inade-quate notice also rendered the policy arbitrary.The arbitrator stated that the employer mustcommunicate the content of the policy andshould provide for a minimum of six months’notice of retirement to an affected employee.

Muriel Henry is an associate with Ogilvy Renault and practises labour and employment law. Contact: mhenry@ogilvyreneault.com

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At issue: How much baseline medical infor-mation is the employer entitled to withrespect to all sick leave applications that areover one month in duration or are of a partialleave nature?

T he BCTF grieved new medicalforms developed by BCPSEAfor districts’ use in assessing

employees’ requests for extended(one month or more) and partialsick leave.

These forms are intended for use on a rou-tine basis as a minimum prerequisite forevaluating sick leave requests. The formsinclude questions sanctioned in previousarbitration awards issued by arbitratorsDonald Munroe, QC, and Judi Korbin, plusnew questions considered to be reasonableand necessary.

In applying the test of balancing the privacyinterests of the teacher with the legitimatebusiness interests of school districts,Arbitrator Colin Taylor reaffirmed the ques-tions sanctioned by Munroe and Korbin.With respect to the questions concerningfunctional abilities and non medical barriers,he indicated that the first line of inquiry as towhether a teacher is capable of reduced,modified or alternative duties or whetherthere are any non medical barriers should bemade directly with the teacher. He alsoagreed that both employees and their physicians should be made aware of theavailability of EAP programs and services.

Arbitrator Taylor then went on to say thatadditional medical information may berequired in some instances based on specificindividual facts and circumstances. “It bearsrepeating that employers have other meansof requiring employees to account for theirabsences where the information in hand is,reasonably speaking, insufficient. They mayparticularize their concerns to the employeeand request that his or her physician

respond or they may ask the physician tocomplete a supplementary report.”

The issue of who should pay (employer oremployee) for medical forms where physi-cians charge a fee was addressed. ArbitratorTaylor ruled that unless the collective agree-ment specifically states otherwise, theemployee is responsible for such payment.

IMPLEMENTATION OF THE AWARD

Revised partial and extended medical leaveforms in accordance with the Taylor award,as well as draft guidelines for managingemployee medical information, have been e-mailed to district contacts. These formscan be used by districts on a blanket routinebasis for all applications for partial sick leaveand extended sick leave of one month ormore. Before using such forms, pleaseensure that your district has a policy andprocedure in place in line with the guidelinesprovided to ensure that strict confidentialityprotocols are adhered to by the employer.

Should your district choose to use theseforms, you can be assured that the informa-tion requested meets the arbitration test ofreasonableness and your district should notface legal challenge.

Although the award found certain questionsto the physician with respect to functionalabilities and non-medical barriers were notappropriate to be included on initial baselineforms, the award affirms that such questionsmay be appropriately asked of employees.Based on these findings, we are presently inthe process of developing further guidelinesfor the administration of sick leave requestsand accommodation that will complementthe medical forms and also deal with situations where further medical clarificationis required based on the individual circum-stances of a particular case.

Should you have any questions, comments or concerns on this topic, please contact Brian Chutter at 604.730.4520 or brianc@bcpsea.bc.ca

MEDICAL FORMS

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At issue: Does a day of protest during theterm of a collective agreement constitute astrike under the Labour Relations Code (theCode)? If it does constitute a strike, does theCode violate the Charter protected rights offreedom of speech and association? (LRB,Saunders, February 24, 2004; March 19, 2004)

I n response to Bill 27, the Educa-

tion Services Collective Agreement

Act that imposed a collectiveagreement on teachers and publicschool employers, and Bill 28, thePublic Education Flexibility and Choice

Act that amended the School Act andremoved school organization mattersfrom the scope of collective bargain-ing and into public policy, the BCTFheld a day of political protest.

BCPSEA took the position that this action con-stituted a strike under the Code. The BCTFasserted that it is unconstitutional for the Codeto define strike to include political protests.

The Code defines a strike as follows:

“strike” includes a cessation of work, a refusalto perform work or to continue work byemployees in combination or in concert or inaccordance with a common understanding, ora slowdown or other concerted activity on thepart of employees that is designed to or doesrestrict or limit production or services…

As we reported in the Spring 2004 issue ofNewsLink, in March 2004 the LRB found that theCode’s prohibition against mid-contract politicalstrikes does not violate employees’ right to free-dom of association or freedom of assemblyunder the Charter.

The BCTF filed an application for reconsidera-tion of the decision with the LRB. In a relatedLRB decision (LRB, O’Brien, February 24, 2004),the LRB found that the definition of strike didviolate the Charter. For the purposes of recon-sideration the two applications – HealthEmployers’ Association of BC (HEABC)-Hospital Employees’ Union (HEU) and BCTF-BCPSEA – were combined and heard by a threeperson panel of the LRB, chaired by BrentMullin, on September 29, 2004.

THE DECISION

The LRB issued its decision on December 17,2004. While differing analyses were provided byeach of the three reconsideration panel mem-bers, the effect of the award is that the definitionof strike remains constitutionally valid and appli-cable, unless and until a court decides otherwise(BCLRB Reference No. B395/2004). Following isa brief summary of the three panel members’decisions.

MICHAEL FLEMING Vice-Chair; Associate Chair

A complete ban on all forms of political proteststrikes is not justified. Political protest strikesthat have significant adverse impact on the public interest will not be permitted. It may bedifficult for public sector unions and employees– particularly those in health – to engage in apolitical protest that does not have significantadverse impact. He would have allowed theBCTF action but not that of the HEU.

MARK BROWN Vice-Chair; Registrar; Manager,Mediation Services

Prohibiting mid-contract political strikes main-tains a stable structure but does not eliminatepolitical protests. The LRB needs to establish“bright lines” so that the labour community isfaced with clear and practical tests, thus reduc-ing the need for litigation. He agrees with KenSaunders’ earlier decision that the definition ofstrike is constitutionally valid.

BRENT MULLIN Chair

The Saunders decision would apply in the vastmajority of circumstances. An exception wouldhave been granted to the HEU (unique govern-ment action that significantly rewrote a collec-tive agreement mid-term) had the HEU notinterfered with the public interest. The block-ades and violent nature of the HEU actionswere not within the form of proper expressionand could not be protected. While he indicatedthat the BCTF action (in response to govern-ment legislating a collective agreement to endimpasse/strike) was not protected by theCharter, Mullin called the BCTF behaviour“exemplary” – away from the worksite, volun-tary and no unlawful picketing. Had the HEUacted in this manner, he would have consideredtheir actions protected by the Charter.

DEFINITION OF STRIKE: APPEAL

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“NO CUTS”At issue: Is the BCTF able to bring to arbitra-tion matters that were resolved between theparties in a previously signed Letter ofUnderstanding?

Arbitrator John Kinzie has ruledthat where the BCTF and BCPSEAsigned a Letter of Understanding

to address outstanding amalgamationissues, the BCTF cannot bring issues,decided in that letter, to arbitration.

In 1996, 31 British Columbia school districtswere amalgamated into 15. Some school dis-tricts were able to negotiate a consolidationof the two separate collective agreementsinto one covering the new amalgamatedschool districts. By 2001, nine school districtshad not been able to do so.

The Education Services Collective AgreementAct, enacted in January 2002, addressed theexistence of multiple collective agreements inthose nine school districts. One existing col-lective agreement was identified to nowcover all teachers in each school district.Those agreements not identified had no fur-ther application. In some cases, teachers mov-ing from an eliminated collective agreementreceived a benefit, as the agreement theywere moved to had superior provisions. Inother circumstances, the opposite was true.

The BCTF filed a grievance to address thoselatter circumstances. The union alleged thatthe employer was in violation of the respec-tive identified, and now solely applicable, col-lective agreements, by failing or refusing toapply the “no cuts” articles in those agree-ments. A common “no cuts” provision reads,“No teacher shall suffer a reduction in salaryor benefits as a result of implementation ofthis contract.”

BCPSEA opposed the grievance on its merits.However, in addition, BCPSEA raised a pre-liminary objection to the hearing of the griev-ance. It was argued that the issues raised bythe grievance were finally resolved and set-tled by a Letter of Understanding entered intoby the employer and the union in June 2002.As such, BCPSEA argued that the matter wasnot arbitrable. The Letter of Understandingprovided a process for transitioning teachersto the identified, and sole, collective agree-ment.

Arbitrator Kinzie allowed the employer’s pre-liminary objection and concluded that the par-ties did reach a settlement on the issues to bedecided. Having settled the matter, neitherparty may back away from it at a later date.The grievance was dismissed on the employ-er’s preliminary objection and the merits ofthe grievance were not heard.

ARBITRABILITY OF CLASS SIZE: APPEALAt issue: Was arbitrator Donald Munroe,QC, correct when he decided (January 13,2004) that class size matters in the School Actand Regulations are not arbitrable?

In 2002, the BCTF filed a policy griev-ance alleging that a number of school boards had violated the School

Act in exceeding class size maxima andaverages contained in the Act andRegulations.

BCPSEA took the position that the issue is notarbitrable, as the dispute arose from theSchool Act, not the collective agreement.

In January 2004, Arbitrator Munroe found in favour of BCPSEA and dismissed thegrievance.

The BCTF appealed both to the LabourRelations Board (LRB) and to the Court ofAppeal. BCPSEA agreed to hold the LRBapplication in abeyance until the Court ofAppeal determines in which forum the appealshould be heard. Should the appeal be heardat the LRB, it would probably result in a lessexpeditious resolution of the appeal. Thematter is is scheduled to be heard on January31, 2005 at the BC Court of Appeal.

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THE EDUCATION SERVICES COLLECTIVEAGREEMENT ACT AND THE PUBLIC EDUCATIONFLEXIBILITY AND CHOICE ACT AND THE CHARTER

At issue: Does the legislation that imposed acollective agreement on the parties and thelegislation that removed school organizationprovisions from the collective agreement vio-late the Charter protected rights of the BCTF?

In January 2002 the Education Services

Collective Agreement Act and the Public

Education Flexibility and Choice Act

were enacted.

The Education Services Collective AgreementAct settled the teachers’ dispute and imposeda collective agreement between the parties.

The Public Education Flexibility and Choice Actamended the School Act to move class sizelimits and composition and staffing levels intothe realm of public policy. The BCTF filed suitin BC Supreme Court alleging the legislationviolated their Charter protected rights.

A similar suit, filed by unions in the health sec-tor challenging similar legislation that facilitat-ed healthcare restructuring, was heard in BCSupreme Court in April 2003 and dismissed.The decision was appealed to the BC Courtof Appeal. Following a three day hearing inMay 2004, the Court reserved decision.

At issue: What constitutes a serious andimmediate disruption to the provision of edu-cational programs resulting from a strike?

The previous round of teacher-employer bargaining occurredunder a new essential services

regime which added the provision of edu-cational programs to the existing health,safety or welfare provisions.

Hearings were held in the Fall of 2001 andearly 2002. Although essential service orderswere issued for the first two phases of theBCTF strike plan, no decisions were maderegarding a full scale withdrawal of services.With support staff bargaining well underwayand teacher-employer collective bargaininganticipated, the LRB reconvened the hearings.The parties engaged in essential service hear-ings throughout the winter and spring of2004. The BCTF maintained their positionthat instruction could be withdrawn for up tothree months until there would be such a disruption to the provision of education programs that essential service designationswould occur.

The BCPSEA position also remainedunchanged. We argued that instruction could

be withdrawn for a maximum of 20% of aschool week during a labour dispute, and stillmeet the objective of the essential serviceprovisions of the Labour Relations Code.

In June 2004, the hearings were adjourned atthe request of the BCTF. In adjourning thehearings the LRB advised that if support staffbargaining reaches an impasse and job actionlooks imminent, BCPSEA, a support staffunion or the LRB can request that the hearingbe reconvened on short notice.

ESSENTIAL SERVICES: STATUS UPDATE

BCPSEA’s 11th Annual GeneralMeeting will be held January 28-29,2005 at the Hilton VancouverAirport Hotel, 5911 MinoruBoulevard, Richmond.Professional development opportunitieswill be offered commencing at 9:00 amFriday, January 28 (registration begins at 8:00 am). AGM will open at7:00 pm Friday evening and continueon Saturday.

ANNUAL GENERAL MEETING

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Expert Panels is the name given to a processdeveloped through discussions between theWorkers’ Compensation Board (WCB) andBCPSEA to address issues related to compen-sation claims, compliance with the WorkersCompensation Act, and requirements withinthe OH&S Regulation.

Both parties felt there was a need todevelop a better communicationsmodel with school districts that

would encourage more consistent anduniform practice among districts withrespect to workers’ compensation issuesand to promote a greater degree of con-sistency in interpretation of the OH&SRegulation by WCB officers.

One of the benefits of those discussions is aheightened appreciation by the WCB that manyof the problems faced by school districts arisefrom “unregulated areas,” and that attention tothose problems, rather than concentrating onsimple compliance with a large number of pre-scriptive regulations, should lead to lower claimscosts and improved compliance.

The approach utilized by the Expert Panels isunique in that it is based on accessing expertisein school districts and then coupling that expert-ise with outside topic experts and WCB person-nel in focused discussions on problems commonto the K-12 public education sector. Topics areselected through discussion with the WCB andthe school district representatives who havejoined the BC School Safety Association. All participants in a panel are selected on the basisof job responsibility or expertise in a topic area.Funding to support travel costs for school dis-trict representatives and the cost of outsideexperts is provided by the WCB from generalrevenues, not districts’ assessment funds.

Five Expert Panels have been established to thispoint and reports are available from two. Theother three reports are expected within two tothree months. Each of the two completedreports has identified areas where school districts can make improvements.

For example, the first Panel identified a linkbetween the organization of custodial work andthe frequency and likelihood of the severity ofinjuries among custodians. The report estab-lished that in school districts where custodiansare encouraged to work in a team, lower ratesof injury are experienced than when the custodi-ans work alone. The change to team work alsoreduces the time required by school district per-sonnel to assess how individual tasks are accom-plished by individual custodians. This is arequirement in the OH&S Regulation. Thechange to team work also simplifies the consid-eration of “return to work” programs when aninjury does occur. Administrative costs related toworking alone issues are also reduced.

The WCB used these results to work with threeschool districts to investigate and develop gener-ic work practices for school district custodians.This report should be available within two tothree months and will further reduce the timerequired by school districts to conductergonomic assessments of custodial work. Thetwo outside topic experts who assisted with thefirst Expert Panel discussions have applied for aformal research grant from the WCB to contin-ue the investigation of a link between the organ-ization of work and injuries.

The success of the Expert Panels and the result-ing reports will depend on the continued abilityof personnel in school districts to communicateand collaborate on issues of common concern.The WCB, in responding to the rapid changes inthe way organizations are doing business, willcontinue to gradually move from an inspectionsmodel that emphasizes intervention at the dis-trict level to a model that emphasizes partner-ships at the sector level. The Expert Panelsprocess will allow school districts to influencethe nature of the relationship with the WCB onhealth and safety issues.

For more information, contact John Bonnet at604.730.4518 or johnb@bcpsea.bc.ca; or Vanessa Wong at 604.730.4509 or vanessaw@bcpsea.bc.ca

EXPERT PANELS

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TEACHER EXCHANGE PROGRAMSAND WCB COVERAGE

Some school districts have recently raised questions about workers’ compensationbenefits for teachers enjoying the benefits of a teacher exchange.

COMMENTS

• The BC teacher going abroad has no entitlement to BCworkers’ compensation benefits. Eligibility for benefitsarising out of occupational injury and disease will dependon the compensation board in the country where thework is being done.

• Eligibility for BC workers’ compensation benefits isextended only partially to the teacher working in BC.Inasmuch as wage loss and pension benefits are basedon wages paid by the BC employer, the teacher now inBC has no eligibility for such benefits. Benefits arerestricted to healthcare costs only.

• All teachers on exchange programs should be advised to consider disability insurance in addition to medicalinsurance.

ISSUE

Eligibility for WCB Coverage

Financial Security

In BC, workers’ compensation benefits areextended only to workers doing work to thebenefit of the BC employer. Consequently, itis the “incoming” teacher who is consideredthe worker. Because each school district con-tinues to pay their own teacher, the incomingteacher has no reportable earnings and thuscannot claim any loss of earnings.

While participation in teacher exchange pro-grams is an enriching experience, it is notrelated to the work of BC school districts andthe “outgoing” teacher is not considered tobe doing work of benefit to the BC district.Consequently, BC workers’ compensationbenefits for healthcare and wage loss are notavailable to the outgoing teacher.

Eligibility for workers’ compensation benefitswill vary from jurisdiction to jurisdiction. Notonly are the rules different but the benefitswill differ as well. Consequently, teachersleaving on an exchange and arriving for anexchange should be encouraged to makearrangements to protect their financial wellbeing.

BCPSEA is presently in discussions with theWCB on issues related to teacher exchangeprograms and will advise further on anychanges.

While there may be great rewardsprofessionally for teachers par-ticipating in a teacher exchange

program, teachers and their employersneed to be aware that eligibility forworkers’ compensation benefits may notbe available.

The following table provides a brief outlineabout what is known so far about the issueand a recommendation for teachers whodecide to participate in a teacher exchangeprogram.

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BILL C-45: NEW LEGISLATION FOR NEGLIGENTSUPERVISION IN THE WORKPLACE

On May 9, 1992, a spark deep in the Westraycoal mine in Nova Scotia ignited accumulatedmethane gas. The resulting explosion trappedand killed 26 miners. The mine had been inoperation for only eight months.

Aprovincial inquiry into this disasterconcluded that both companymanagers and government safety

inspectors ignored glaring and obvioussafety violations, including the disconnec-tion of methane detectors.

Apparently, the warning signals frequentlyinterrupted coal production.

Senior company officials in Ontario refused toattend the provincial inquiry. The inquiry hadno federal powers and subpoenas could notbe served outside the province. The companywas subsequently charged with 52 safety violations but this came to nothing, as themine was declared bankrupt several monthslater. Two mine managers were charged withcriminal negligence but the charges werestayed because the Criminal Code provisionsmade a conviction unlikely. These eventsprompted a federal review of the CriminalCode.

The result of that review is a piece of federallegislation, Bill C-45, An Act to Amend theCriminal Code (Criminal Liability of Organi-zations), which took effect in March 2004. The legislation imposes a legal duty on allthose who direct work – both executive andoperational employees – to take reasonable

measures to protect employees and the pub-lic. This duty includes direction of work andresponding to knowledge of inadequacies.Reckless disregard of this duty that results inserious injury or death could result in thepolice or WCB inspectors making a recom-mendation to the Crown to prosecute forcriminal negligence.

The scope of the duty to take reasonablesteps or precautions would likely includecompliance with requirements in the WorkersCompensation Act, the OH&S Regulation, andother appropriate codes and standards orother practices, perhaps common to theoccupation or activity, considered to be pru-dent. While the duty is to “take reasonablesteps,” Bill C-45 contains the requirementthat the failure to take such steps must con-stitute reckless conduct or behaviour. In otherwords, knowledge of the appropriate safetyprocedures and the consequences of noncompliance must be present for a prosecutionto proceed.

Initial experience with this legislation indicatesthat high risk areas of employment, for exam-ple, construction and logging, will be moredirectly concerned than areas presenting arelatively low risk of injury. However, even inschool districts, we need to be aware thatprevious provisions in the Criminal Code thatrestricted acts constituting criminal negli-gence to specific direction by an officer havebeen extended to include actions by morejunior employees and include a failure to takeaction on information.

• School District No. 5 (Southeast Kootenay)• School District No. 33 (Chilliwack)• School District No. 39 (Vancouver)

(CUPE Local 15)• School District No. 39 (Vancouver)

(CUPE Local 407)• School District No. 41 (Burnaby) • School District No. 58 (Nicola-Similkameen)• School District No. 74 (Gold Trail)

In the past year, 66 support staff collectiveagreements have expired in 59 school dis-tricts. Negotiations have commenced andare ongoing in most school districts.

To date, 7 agreements in 6 districts havebeen ratified locally and provincially:

Support Staff Bargaining

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WHAT’S HAPPENING TO WCB ASSESSMENT RATES?The good news is that WCB assessment ratesare continuing to fall. The 2005 base ratedeclined 20% from $0.80 to $0.64. The dropof $0.16 returns about $5 million to schooldistricts.

The WCB collects assessmentsfrom school districts to cover thecosts of accidents and disease to

district employees. The base rate isdetermined by dividing the cost of allclaims in our sector by the total payroll in districts.

Consequently, every district pays a portion ofthe costs of claims in other districts. When thecosts of claims in all districts drop, all districtsbenefit from a lowered base or average rate.The base rate is adjusted up or down to reflectthe cost of claims in each district. This is termedthe experience rate and it is based on costsincurred over a three year period. For 2005, the

experience rate is based on claims costs from2003, 2002, and 2001. Districts with aboveaverage costs pay more while districts withbelow average costs pay less. The table at theend of this article provides a three year historyof the experience rates paid by each district.

Let’s start with the good news. From 2001 to2003, the injury rate (loosely defined as thenumber of claims per 100 employees) declinedby 19% from 2.6 to 2.1; and duration declinedby 25%. This latter figure may show the benefits of the efforts made by many districts infacilitating early return to work programs.Further evidence of this may lie in the cost fig-ures; the cost of claims for temporary disabilityclaims dropped by 40% and the cost of perma-nent disability claims decreased by 36% overthe same period. These cost declines outstripsimilar declines in all industries but only matchthe declines experienced by universities, colleges and private schools.

However, there is a dark cloud on the horizon.Preliminary claims cost data for 2004 show anincrease over 2003 costs. If these higher costshold to year end, it may signal an increase toassessment rates in 2006. One possible causefor this increase may lie in the increased numberof temporary disability claims that become per-manent disability claims. In 2001, about 3% oftemporary disability claims became permanentdisability claims. By 2003, this rate had

increased to about 6%. This increase may becaused by the backlog of claims that had devel-oped under the previous appeal system. Theseare now being decided at an accelerated rateunder the new claims appeals process. As thisbacklog is reduced, the costs are added to thebase cost for all districts. The impact of theseadditional costs may be temporary but they willcreate additional upward pressure on theassessment rate.

$0.90

$0.80

$0.70

$0.60

$0.50

$0.40

$0.30

$0.20

$0.10

$0.001995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005

Schools Private Schools Universities Colleges

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January 2005 page 19

5 (Southeast Kootenay) 30,781,170 0.55 0.73 0.83

6 (Rocky Mountain) 21,837,624 0.59 0.66 0.65

8 (Kootenay Lake) 34,976,454 0.64 0.75 0.83

10 (Arrow Lakes) 4,594,341 0.50 0.67 0.75

19 (Revelstoke) 7,110,963 0.66 0.88 0.87

20 (Kootenay-Columbia) 25,761,337 0.61 0.90 1.02

22 (Vernon) 43,806,283 0.67 0.88 0.76

23 (Central Okanagan) 96,695,467 0.48 0.67 0.74

27 (Cariboo-Chilcotin) 37,687,886 0.66 0.77 0.72

28 (Quesnel) 23,571,372 0.59 0.78 0.84

33 (Chilliwack) 56,197,569 0.52 0.66 0.77

34 (Abbotsford) 81,640,518 0.61 0.82 0.78

35 (Langley) 92,736,064 0.60 0.70 0.70

36 (Surrey) 276,911,938 0.68 0.88 0.83

37 (Delta) 82,251,201 0.68 0.90 0.77

38 (Richmond) 109,150,914 0.61 0.78 0.90

39 (Vancouver) 300,971,073 0.68 0.86 0.86

40 (New Westminster) 30,149,129 0.61 0.77 0.79

41 (Burnaby) 116,707,384 0.82 0.99 0.98

42 (Maple Ridge-Pitt Meadows) 70,346,278 0.51 0.63 0.62

43 (Coquitlam) 146,783,375 0.64 0.81 0.78

44 (North Vancouver) 83,743,201 0.76 0.80 0.76

45 (West Vancouver) 31,139,534 0.65 0.68 0.66

46 (Sunshine Coast) 20,761,538 0.59 0.66 0.73

47 (Powell River) 14,271,645 0.97 1.17 1.24

48 (Howe Sound) 21,792,000 0.67 0.88 0.94

49 (Central Coast) 2,958,551 0.52 0.69 0.75

50 (Haida Gwaii/QC) 6,181,081 0.78 0.89 0.93

51 (Boundary) 9,454,336 0.51 0.63 0.60

52 (Prince Rupert) 17,076,459 0.57 0.77 0.91

SCHOOL DISTRICT ASSESSABLE EXPERIENCE EXPERIENCE EXPERIENCE PAYROLL 2003 RATE 2005* RATE 2004 RATE 2003

$ $ $ $

HOW DO YOU RATE?

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53 (Okanagan Similkameen) 15,276,039 0.62 0.72 0.62

54 (Bulkley Valley) 14,477,781 0.68 0.79 0.66

57 (Prince George) 83,051,762 0.65 0.76 0.72

58 (Nicola-Similkameen) 16,162,373 0.59 0.66 0.68

59 (Peace River South) 25,150,545 0.62 0.72 0.70

60 (Peace River North) 27,853,693 0.59 0.72 0.72

61 (Greater Victoria) 103,855,569 0.64 0.89 0.91

62 (Sooke) 43,811,111 0.65 0.84 0.89

63 (Saanich) 41,986,463 0.73 1.02 1.07

64 (Gulf Islands) 9,883,221 0.71 0.84 0.65

67 (Okanagan Skaha) 34,102,408 0.51 0.68 0.58

68 (Nanaimo-Ladysmith) 75,921,036 0.57 0.66 0.72

69 (Qualicum) 26,240,368 0.49 0.64 0.73

70 (Alberni) 25,658,965 0.60 0.75 0.69

71 (Comox Valley) 45,351,199 0.54 0.69 0.80

72 (Campbell River) 33,570,600 0.69 0.97 1.10

73 (Kamloops/Thompson) 78,620,087 0.54 0.68 0.71

74 (Gold Trail) 13,222,234 0.64 0.71 0.59

75 (Mission) 33,845,010 0.55 0.72 0.78

78 (Fraser-Cascade) 11,832,524 0.53 0.65 0.69

79 (Cowichan Valley) 47,411,095 0.69 0.83 0.84

81 (Fort Nelson) 5,928,996 0.49 0.63 0.68

82 (Coast Mountains) 33,677,632 0.91 1.01 1.11

83 (N. Okanagan-Shuswap) 39,613,024 0.70 0.87 0.76

84 (Vancouver Island W.) 4,132,080 0.56 0.74 0.79

85 (Vancouver Island N.) 12,636,559 0.62 0.80 0.85

87 (Stikine) 3,353,628 0.51 0.67 0.70

91 (Nechako Lakes) 27,848,006 0.57 0.63 0.50

92 (Nisga'a) 4,752,458 0.72 0.93 0.90

93 (CSF) 16,625,525 0.38 0.51 0.62

SCHOOL DISTRICT ASSESSABLE EXPERIENCE EXPERIENCE EXPERIENCE PAYROLL 2003 RATE 2005* RATE 2004 RATE 2003

$ $ $ $

* Prepared from WCB data as of December 2004.

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To date, 59 public sector collective agree-ments have been settled within the provincialgovernment’s net zero 2003-2006 fiscal man-date.

Only one of those settlements,between HEABC and the HospitalEmployees’ Union (HEU), has

been legislated.

Notable settlements include:

HEABC and the HEU• Bill 37, Health Sector (Facilities Subsector)

Collective Agreement Act, 2004

• Two year term

• Wage rollback of 15%

• Limited contracting out

• An increased workweek to 37.5 hours

HEABC and the Nurses’ BargainingAssociation. • No rollbacks to wages, benefits or time off

provisions

• Changes to bumping and posting processes

• A Phased-in Retiree / Graduate PartnershipProgram

• Reviewed casual and overtime utilization

HEABC and Paramedicals• No rollbacks to wages, benefits or time off

provisions

• Changes to the bumping process, posting, andelectronic statement of wages

HEABC and Community Health Subsector• Wage rollback of 4.06% for all employees

• Elimination of comparability, resulting in savings of 3% of wages per year

• Deferral of enrolment in the MunicipalPension Plan until April 1, 2006

• Reduction in dental benefits and vacationentitlements

BC Public Service – BCGEU• A two year term to March 31, 2006

• Agreement on the outsourcing of 16 projectsto the private sector, including MSP andPharmaCare claims management

• An expedited workforce reduction of up to1,000 employees

• Ongoing savings from benefit plan changesincluding a decrease in sick leave entitlement

• Movement from a three step wage incrementto five step

BCGEU Liquour DistributionSubcomponent• Management and operational flexibilities: opti-

mization of shift scheduling and efficient recallconfigurations; and the ability to open, closeand relocate operations

• A competitive wage structure for newemployees: reduction in full-time and auxiliarywages for new employees; the introduction ofseasonal employees; and movement from athree-step wage increment to five-step

CSSEA and Community Social ServicesUnion Bargaining Association• Move from single rated jobs to four incremen-

tal steps, with lower rates for all new hiresbeginning at 85% of current wages

• Reduction in sick leave entitlements and payout, and elimination of paid special leave

• Reduction in dental plan and disability entitlements

• Elimination of superior wages and benefits,resulting in a reduction in the top rate from$16.83 to $16.32.

• Deferral and reduction of equity paymentsuntil March 31, 2006

BC Ferry ServicesIn addition to the above settlements, BC FerryServices and the Marine Workers’ Union gavetheir special mediator, Vince Ready, full andbinding authority to settle all outstanding mat-ters in their bargaining dispute and ultimatelyconclude a collective agreement between them.

The collective agreement as awarded by Readyon October 15, 2004, provides for:

• Seven year term (November 1, 2003 - October 31, 2010)

• Wage increases: – November 1, 2003 - 0%

– November 1, 2004 - 0%

BC PUBLIC SECTOR SETTLEMENTS

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– November 1, 2005 - 0% (5% for Senior Officers, 3% for JuniorOfficers and Trades)

– November 1, 2006 - 1% (5% for Senior Officers, 3% for JuniorOfficers and Trades)

– November 1, 2007 - 1% (5% for Senior Officers, 3% for JuniorOfficers and Trades)

– November 1, 2008 - 2% or wage re-opener

– November 1, 2009 - 2% or wage re-opener

• New wage grid for new employees – 85% ofrate for first year, 90% for second year, and95% for third year

• Seasonal employees paid at 85% of classifica-tion rates, no entitlements to benefits or premiums

• Posting and Filling – amends the selection cri-teria for supervisory and “Grade 9 or above”positions from a purely seniority-based systemto a system based on seniority, qualificationsand suitability

• Reduction in special differentials from 27%and 29% to 10% (grandfathered for the dura-tion of the collective agreement)

• No payment of overtime for periods of lessthan five minutes

• Contracting out – establishes a process of con-sultation with the union prior to any contract-ing out; disputes to be adjudicated by VinceReady

• Casual employees no longer entitled to STIIP(grandfathered for the duration of the collective agreement)

• Committees:

– Workforce Adjustment

– Workforce Planning Committee*

– Hours of Work Committee*

– Committee on Increasing Productivity,Reducing Costs and Increasing Revenue*

* Differences to be submitted to Vince Readyfor adjudication

Note that BC Ferries is no longer a CrownCorporation and is no longer subject to thePSEC compensation mandate.

For further information on any of these settlements, please contact Stephanie Tassin at 604.730.4521 orstephaniet@bcpsea.bc.ca; orLaura Parks at 604.730.4522 or laurap@bcpsea.bc.ca

CHANGES TO THE TEACHING PROFESSION ACT ANDBYLAWS OF THE BC COLLEGE OF TEACHERS

In the Summer (June 2004) issue of NewsLink, we provided a summaryof Bill 55, Teaching Profession Amendment Act, 2004 and an overview ofthe BCTF response/reaction.

Since then, the members of the BCTF voted in favour of pay-ing their fees to the BC College of Teachers for the 2004-05school year.

The teachers have agreed, however, to only pay the fee on an interim basisas the BCTF continues to “pursue changes to ensure the professionalbody's independence.”

A summary chart of the legislation, including changes to bylaws and policiesthat resulted from the legislation and some of the consequences foremployers, can be found on the BCPSEA website at www.bcpsea.bc.caunder “Publications” “Legislative Updates.”

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In mid-June 2004, BCPSEA distributed toschool district Secretary Treasurers the triennial BCPSEA survey of total compensa-tion paid to exempt benchmark positions inschool districts.

This comprehensive survey is distributed to allBC school districts and a representative groupof Alberta and Ontario districts. The data iscurrently being analyzed; we anticipate thatthe full survey report will be distributed to districts in late February.

One of the projects incorporated into theBCPSEA Business Plan for the 2003-2004 fis-cal year was an initiative to gather data on theextent to which BCPSEA school board mem-bers consider the association’s services to berelevant and credible.

The online BCPSEA Client ServicesSurvey was distributed to trusteesand district staff in June 2004.

The survey response data allows for the evalua-tion of BCPSEA services and will assist us inidentifying areas which may require a greater

focus and/or allocation of resources. Over thecoming months, BCPSEA staff will undertakethis analysis as we seek to keep our commit-ment to you to continuously improve the quali-ty of services we provide. The analysis mayinclude focus groups of trustees and districtstaff, as well as targeted inquiries in specific service areas.

If you have any questions on the survey, the survey results, or would like to provide additional perspective, please contact Hugh Finlayson at 604.730.4515 or hughf@bcpsea.bc.ca

BCPSEA CLIENT SERVICES SURVEY RESULTSPRESENTED AT AGM

EXEMPT STAFF TOTAL COMPENSATION SURVEY

PROPOSED BARGAINING PROCESS (page 34)

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page 24 January 2005

O

400 – 1333 West BroadwayVancouver, B.C., V6H 4C1Telephone (604) 730-0739Fax (604) 730-0787E-mail bcpsea@bcpsea.bc.caWebsite http://www.bcpsea.bc.ca

ISSN No. 1496-9483NewsLink, Winter 2005January 2005 © British Columbia Public School Employers’ Association

Editor: Deborah Stewart Contributors: Bonda BitzerJohn BonnetBrian ChutterHugh FinlaysonMuriel HenryGraeme McFarlane Laura ParksDeborah StewartStephanie TassinVanessa WongDavid YuleDesktop Publishing: Mariana Prins

ur Mission is to develop and maintain

human resource practices that maximize the benefit

for students in our public education system

through the effective use of resources and

fair terms of employment.