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Teacher Newsmagazine Volume 16, Number 4, March 2004

Class-size arbitration result

With the government’s January 2002 imposition of a contract on teachers and school boards, class-size and class-composition provisions were stripped from the collective agreement. At the same time, the legislation enshrined in Section 76.1 of the School Act district averages for class sizes in Grades K–12 and absolute maximums for primary classes (K: 22 , Grades 1–3: 24).

BCTF filed a provincial grievance in 2002 to remedy situations where school districts were violating either the absolute maximums or the district averages. The British Columbia Public School Employers’ Association, acting on behalf of school boards, raised a preliminary objection to the grievance, insisting that the matter was not arbitrable. The basis for the objection was that all grievances must arise from matters that form part of the collective agreement. Because class-size provisions are now found only in the School Act, the BCTF can no longer have recourse to the grievance arbitration procedure to address violations.

Arbitrator Don Munroe heard argument on the preliminary objection in December 2003. On January 13, 2004, he issued his award, which found in favour of the employer, held that BCTF’s grievance is not arbitrable, and dismissed it.

In his reasoning, Munroe said that he would have jurisdiction to decide on the merits of the BCTF grievance only if he could find that the provisions of the School Act governing class size were incorporated either expressly or inferentially into the collective agreement. When he considered the intent of the January 2002 legislation, he found that he could not.

"In sum, the Legislative Assembly caused class size provisions to be stripped from existing teachers’ collective agreements and directed that such provisions not again be included in teachers’ collective agreements." (p.18)

Munroe characterized this legislative initiative as a "substantial intrusion by the Legislative Assembly in free collective bargaining in the public education sector." For teachers and students, the intrusion was not merely "substantial"; it was unwarranted, unwelcome, and unhelpful.

While Munroe acknowledges that school boards and their employees are equally bound by the statutory class-size maximums, his award means that teachers will not have access to the grievance procedure to address violations of those maximums unless the decision is overturned.

The BCTF is considering an appeal of the decision to either the Labour Board or the Court of Appeal. Beyond that, there are other avenues of redress that must be carefully assessed. They include civil suits by individual teachers or parents against school boards for breaches of the class-size maximums, support for teachers who may risk discipline for refusing to teach oversize classes, and/or applications to the B.C. Supreme Court to compel the ministry to enforce the statute.

Notwithstanding the decision of the arbitrator, the voices of the BCTF, local associations, and individual teachers will continue to be raised to ensure that class-size and class-composition issues remain in the forefront of the public debate.

– Brian Porter

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