This week, the British Columbia government announced that if the current strike by the British Columbia Teachers’ Federation (BCTF) extends into the start of the new school year, parents of public school students under the age of 13 will receive $40 per day for as long as the strike lasts. The reaction to this announcement was less than positive. Many parents stated they would sooner see the money go into funding public education or settling a collective agreement with the BCTF, and a University of Victoria economist pointed out how poorly organized the plan seemed to be. But another question that was raised in the discussions of the plan was: in announcing that plan, was the BC government bargaining in bad faith?
It isn’t easy to answer that question with a definitive “yes” or “no”. And here’s why.
When it occurs, bad faith bargaining is a serious problem. It undermines some of the basic principles of the collective bargaining process – namely, that both parties should be honest with each other in their discussions, and both parties should genuinely want to reach a mutually acceptable collective agreement. But having said that, it’s difficult to define clearly in policy or legislation exactly what good faith bargaining looks like. That’s because each bargaining situation has its own context, participants, issues, and behaviours. So to determine whether one or both parties are bargaining in good faith, labour relations boards or courts usually look closely at the specific situation and make a determination based on the facts and evidence around that particular set of events.
To determine what is and isn’t good faith bargaining, it’s also important to understand the formal guidelines that do exist. The BC Labour Relations Code – the provincial legislation regulating most union-employer relationships – is the legislative framework that sets the expectation of good faith bargaining, and establishes that expectation as one of the responsibilities of the employer and the union when the union is certified as the workers’ representative. Here is the language in the BC Labour Relations Code that describes the expectation of good faith bargaining:
11 (1) A trade union or employer must not fail or refuse to bargain collectively in good faith in British Columbia and to make every reasonable effort to conclude a collective agreement.
The BC Labour Relations Board, in its Guide to the Labour Relations Code, explains some of the practical implications of that wording:
The requirement for good faith bargaining generally means that both parties must be sincere in their attempts to reach an agreement. This includes meeting with the other side and making every reasonable effort to conclude an agreement. The bargaining process calls for a certain amount of give and take. Failure to agree with the other side’s bargaining demands does not, in itself, mean that a party is not bargaining in good faith. However, a deliberate strategy by either party to prevent reaching an agreement is considered to be bad faith bargaining.
And in the 2014 BC Supreme Court decision involving past bargaining disputes between the BCTF and the provincial government – the decision which the provincial government is currently appealing – Madam Justice Susan Griffin outlined four “standards” of good faith bargaining:
- A commitment of time and preparation;
- A willingness to exchange and explain positions;
- Avoidance of unjustified delays in negotiations; and,
- Endeavouring to reach an agreement and to strive and find a middle ground. [paragraph 100]
Clearly there are some events that are easily identifiable as bargaining in bad faith: not scheduling or not attending negotiation sessions, presenting an initial offer as a final offer, or bypassing the other side’s negotiating team and making offers directly to the employees or management. But bad faith bargaining is sometimes demonstrated through a pattern of behaviour, rather than through individual events. (Paragraphs 330 to 440 of Justice Griffin’s decision are an excellent point-by-point analysis of a pattern of bargaining events which, Justice Griffin ruled, collectively constituted bargaining in bad faith.)
On its own, the BC government’s payment plan is probably not bargaining in bad faith. The financial offer is not directed at the BCTF membership, and the plan shows some foresight in preparing contingencies if school doesn’t start as scheduled. However, the publicly available information on the bargaining events around the announcement do not necessarily demonstrate a pattern of bargaining in good faith.
- The government has emphasized repeatedly that the BCTF needs to enter the “affordability zone” if a settlement is going to be reached, on the basis that it is not prepared to settle for a higher wage rate than the rates in its other public sector contracts. The government has stated that the $40 payments to parents will be funded by its savings from not paying teachers’ wages during the strike. But it is reasonable to question why, if the government claims it can’t afford to make a higher wage offer to the BCTF, it can commit to making payments to parents for an apparently indefinite period.
- The government has refused to enter mediation with the BCTF without the BCTF accepting pre-conditions: namely, that the BCTF must agree to the government’s wage offer in the “affordability zone” before other issues can be discussed. As noted in the information above, setting conditions on an offer or refusing to move from an offer are not in and of themselves evidence of bad faith bargaining. But continued insistence on particular conditions or outcomes could be interpreted as a lack of commitment to reaching a collective agreement, or as unjustly delaying the progress of bargaining – particularly when, in this case, that insistence may be impeding third-party intervention that could potentially assist in resolving the parties’ bargaining disputes.
- The public statements of the parties give different versions of the parties’ willingness to participate in negotiations. BC Premier Christy Clark has claimed that government negotiators have been calling the BCTF regularly to get negotiations restarted, while BCTF president Jim Iker says he has not received any such calls. It is impossible to tell whose version of events is more accurate, but the discrepancies are troubling – and not ensuring that appropriate contact is made to faciliate negotiations could be interpreted as evidence of a lack of reasonable effort to conclude an agreement.
- Along similar lines, the government announcing plans that will commence if the school year doesn’t start on time could be interpreted as prudent planning – or it could be interpreted as evidence of an intention to unduly prolong the dispute. Because, theoretically, as one of the participants in the collective bargaining relationship, the government has the power to avoid having to use that plan – by working toward settling a collective agreement before school starts in the first week of September.
The BCTF and the government’s bargaining representative, the BC Public School Employers’ Association, are meeting on August 8, for the first time in several weeks. The scheduled start of school is less than a month away, in the first week of September. I hope that in their meetings both parties will seriously commit to reaching a collective agreement, and will work towards that goal through respectful and constructive interactions. A perception, accurate or otherwise, of either party engaging in bad faith bargaining will only cause more hostility in these already tense negotiations.