Today in the legislature we debated Bill 41: Advanced Education Statute Repeal Act, 2018 at second reading. This bill repeals the Public Flexibility and Choice Act, brought in by the BC Liberals in 2002. The original version of the bill included language stripping class size and composition rights from teachers’ collective bargaining.

That version led to the British Columbia Teachers’ Federation going on strike, and created a decade-and-a-half long dispute ending with the legislative change being deemed unconstitutional by the Supreme Court of Canada.

Once the original version of the bill received royal assent the School Act amendments came into force. This is why they are no longer seen in the present version.

The powers granted to postsecondary institutions that remain in the original version have never been used. Nevertheless, in light of the recent Supreme Court of Canada BCTF decision, if a postsecondary institution were to invoke the Public Flexibility and Choice Act, it is likely it would be deemed unconstitutional, as it is very similar language to what has already been deemed unconstitutional.

Below are the text and video of my second reading speech.

Text of Speech

A. Weaver: I rise to take my place in the debate on Bill 41, Advanced Education Statute Repeal Act.

As the minister mentioned, this act repeals the Public Education Flexibility and Choice Act that was brought in under the previous government in 2002.

Within the language of that bill brought in in 2002, restrictions were removed, in particular the clause:

Despite any other Act or a collective agreement, an institution has the right to

(a) establish the size of its classes, the number of students who may be enrolled in or assigned to a class and the total number of students who may be assigned to a faculty member in a semester, a term or an academic year,

(b) assign faculty members to instruct courses using distributed learning,

(c) determine its hours of operation and the number and duration of terms or semesters during which instruction is offered to students,

(d) allocate professional development time and vacation time to facilitate its organization of instruction, and

(e) provide support for faculty members, including, but not limited to, teaching assistants, senior students, contractors and support staff members.

This legislation, brought to 2002, was fortunately never actually challenged and never actually used, because universities and colleges recognize that the governance style within these academic post-secondary institutions is more of a collegial form of governance, one in which an academic environment is governed by the senate, where there is input from faculty and staff and students in terms of the academic direction of an institution.

What was very troubling, of course, is that when this act was introduced, it also amended sections of the School Act, which stripped teachers’ bargaining rights — or when the prior act was a similar thing — related to class size and composition.

Remember the infamous Health and Social Services Delivery Improvement Act, which started major labour disputes in our province with health care workers. Again, that was also implemented at the same time. It was rather a classic example of a pendulum that swings, when we have governments shift from one to the other side of the political spectrum.

If ever there was a compelling testimony as to why proportional representation is important, it’s that it limits these kinds of pendulum swings because of the fact that we typically don’t go from one extreme to the other. In this example, we’re going back to legislation coming in, being repealed. Of course, this should never have been brought in, in the first place.

With the B.C. Teachers Federation, of the examples I just raised, that dispute lasted for a decade and a half. How much money, how many hours lost, how much stress put on teachers, how much education was not delivered because of time being put to this because of, frankly, punitive measures that were brought forward by the previous government to the employees within the education sector, whether it be K-to-12 or post-second institutions?

The amendments to the School Act that were brought in with the Public Education Flexibility and Choice Act were poorly thought out. It was legislation that caused, as I mentioned, a decade of turmoil, including the longest strike in BCTF’s history, in 2014, when I was on the other side there. It was based, frankly, on ideology that the government of the day doubled down on as it lost decision after decision, until it went to the Supreme Court, which, only for a few minutes, deliberated before they ruled unanimously on the direction that this should take.

I remember, frankly, three years ago standing in this House and speaking about the approach of the previous government toward education. At that time, I said that moving the relationship forward between the BCTF and the government would require trust — mutual trust. It was easy, of course, for me to see why the BCTF and other stakeholders in public education were leery to trust the direction of the previous government.

At the time, I was arguing that the Education Statutes Amendment Act, 2015, was a classic example of putting the cart before the horse. Rather than engaging education stakeholders in meaningful dialogue, the government was providing itself with rather sweeping powers to appoint special advisers and issue administrative directives. Needless to say, that was not building trust. It was a classic example of the previous government’s approach.

Instead of working to build trust, the previous administration spent years fighting the BCTF — and countless dollars in doing so — creating labour disputes, court battles and strikes until finally the Supreme Court of Canada ruled in favour of the BCTF.

They won their challenge because the legislative changes infringed on B.C. teachers’ freedom of association, guaranteed under the Canadian Charter of Rights and Freedoms.

I use this example because the Public Education Flexibility and Choice Act that this bill is repealing here today — that is, Bill 41, Advanced Education Statute Repeal Act — has very similar language, which I read out earlier, very similar language in it, which, in theory, could render key sections in collective agreements with post-secondary educators void.

Coming to a specific example in the previous bill, the Public Education Flexibility and Choice Act, which is being repealed, it states here, as well: “Despite any other Act or collective agreement, an institution has the right to…assign faculty members to instruct courses using distributed learning,” and to establish class sizes and “the number of students who may be enrolled in or assigned to a class and the total number of students who may be assigned to a faculty member….”

The total number of students who may be assigned to a faculty member — this shows such a fundamental misunderstanding of how universities operate.

I taught at a university for 25 years before coming here. I had PhD students and master’s students. To think, here, that somehow government was enabling that my institution could tell me how many PhD students I could supervise…. Who’s going to pay them? We have departmental policy that requires us to find money to pay our students. What about if I was no longer active in research, and on and on. It just showed such a fundamental misunderstanding.

But in fact, in 2007, the Federation of Post-Secondary Educators noted this, and they stated that this act overruled provisions of their collective agreements that dealt with class size. At the same time, their statement read as follows. This is the statement that they read: “Although we have succeeded in preventing post-secondary employers from using the legislation, today’s decision adds to our case that the legislation should be scrapped all together.” That was with respect to a ruling, one of the many rulings that came in the BCTF’s favour.

The Public Flexibility and Choice Act has still not been used to this day, thank goodness. But if it were to be used, I cringe to think of the disputes it would cause, and the subsequent legal challenges that could arise.

Now, I recognize that this legislation, which is still on the books, is a blight on the previous government, is a blight on the official opposition, which is why it seems that there are no speakers to this at second reading, and that they’ll accept it, and quickly, apart from one just saying, in a matter of moments, that they’ll accept it.

We’re not getting a detailed discussion and rationale on why this was brought in, in the first place. Why was this brought in, in the first place? We have members sitting opposite who’ve been in the B.C. Legislature since 2002, when, in fact, this legislation was brought. Rather than simply giving us a history, rather than telling us why it was brought in and why they’re now supporting it, all they say is we support repealing it, in essence.

I recognize this is a blight. It’s a shameful blight on 16 years of actually not putting education as a priority in this province. This bill before us today is seeking to remove the controversial piece of legislation, which, fortunately, has never been used before, and, frankly, if it were, would almost certainly have triggered legal challenges to the Supreme Court of Canada, where, once again, it would’ve been deemed unconstitutional and a violation of the Canadian Charter of Rights and Freedoms.

This is the legacy that the new government has to deal with. It is repealing legislation that, yet again, would almost certainly have been unconstitutional. My caucus and I are 100 percent behind this bill, and with that, I thank you for your attention.

Video of Speech