bctf application to lrb re employer threat to benefits

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Legal Services Fax No.: 604-871-2288

Our File No. 4800-25 – 2014-0009

By e-mail

May 14, 2014

Labour Relations Board

Suite 600, Oceanic Plaza

1066 West Hastings Street

Vancouver, BC V6E 3X1

Attention: Ken Saunders, Registrar

Dear Sirs/Mesdames

Subject: British Columbia Public School Employers’ Association and British Columbia

Teachers’ Federation - Application pursuant to s.133 (1)(a), 73(2), 47 and 133(5) of

the Labour Relations Code

Nature of Application

1. British Columbia Public School Employers’ Association (“BCPSEA”) has informed the

union that school districts intend to unilaterally suspend the payment of certain health and

welfare premium benefits provided for in the collective agreement.

2. British Columbia Teachers’ Federation (the “BCTF”) asserts that, by virtue of the essential

services order in B74/2001 and s.73 (2) of the Code, school districts are not authorized to

cease making payments required by the collective agreement.

3. BCTF brings this application pursuant to sections 133 (1)(a), 133(5) and s. 73(2) of the Code

for the following:

a. A declaration that employers are bound by the terms and conditions of the expired

collective agreement, including the provisions relating to payment of premiums for

health and welfare benefits;

b. A declaration that the discontinuation of payment of premiums for health and welfare

benefits is a violation of Part 6 of the Code;

c. An order that employers comply with the collective agreement provisions regarding the

payment of health and welfare benefit premiums.


May 14, 2014

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Applicant Information

Name: British Columbia Teachers’ Federation

Address: 100 – 550 West 6th

Avenue, Vancouver, BC V5Z 4P2

Contact: Jim Iker, President of BCTF

Counsel: Carmela Allevato

Telephone: 604-871-1904

Fax: 604-871-2288

Respondent Information

Name: British Columbia Public School Employers’ Association

Address: 400 – 1333 West Broadway, Vancouver, BC V6H 4C1

Contact: Michael Marchbank, Public Administrator of BCPSEA

Telephone: 604-730-4515

Fax: 604-730-0787

Interested Party

Name: Canadian Union of Public Employees

Address: 500 - 4940 Canada Way, Burnaby, BC V5G 4T3

Contact: Robin Jones, Regional Director

Counsel: Matt Yun

Telephone: 604-291-1940

Fax: 604-291-1194

Facts:

A. The obligation of employers to pay benefit premiums is found in the collective

agreement.

1. The collective bargaining scheme that governs the parties is set out in the Public Education

Labour Relations Act, R.S.B.C. 1996, c. 382 (“PELRA”). Section 7 sets out the content of

the collective agreement as follows:

7. Content of collective agreement – (1) The collective agreement entered into

under this Act with respect to teachers must include all Provincial matters and local

matters that have been agreed on by the parties.

2. Section 7(3) of PELRA establishes that all provisions relating to salaries and benefits are

“cost provisions” and that these must be negotiated at the provincial table.

3. Prior to PELRA, and since 19871, all collective bargaining occurred between local unions of

the BCTF and local school boards. The terms and conditions of employment reflected the

1 When teachers acquired full collective bargaining rights under the Industrial Relations Act, R.S.B.C. 1979, c. 212


May 14, 2014

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community priorities of the local parties and as a result there were variations in provisions

across school districts. In the area of health and welfare benefits there was wide diversity

relating to eligibility for coverage, content of the various plan, and responsibility for

payment of the premiums, among others.

4. In the 2012 round of bargaining the provincial parties negotiated a Letter of Agreement Re:

Extended Health and Benefits Standardization. Under this agreement local unions had the

option to choose a standardize extended health benefits plan to replace the plan that had been

negotiated locally. Benefits such as dental, accidental death and dismemberment, group life

insurance and MSP, remained unaffected. Many, but not all of the locals chose this option2.

5. Important for this application is the fact that opting for the 2012 standard extended health

benefits plan had no impact on other local provisions of the collective agreement such as

eligibility, benefits administration and payment of premiums. With respect to benefit

premiums, school districts have continued to regularly deduct premiums from teachers’

paycheques, add to them their own share of the premiums and submit these to the insurer as

required by the collective agreement provisions.

6. A review of the 60 local collective agreement provisions relating to benefit eligibility and

premium payment indicates the following general common characteristics:

a. Entitlement to health and welfare benefit coverage

Teachers are entitled to health and welfare benefit coverage by virtue of status and

not based on time worked.3

b. Administration of benefits

School board employers are charged with administering the plans, including

ensuring that employees are enrolled, premiums are remitted and coverage is

maintained.

c. Who pays the premiums

School board employers are responsible for paying anywhere from zero to 100% of

premiums depending on the benefit and depending on the local provisions in the

collective agreement. There is a high degree of diversity among local provisions

with respect to the sharing of premium payments for extended health benefits.

Teachers Teaching On Call (TTOC) may enrol in some plans by paying 100% of

the premiums.

2 For example, Vancouver and Coquitlam chose to maintain their own plans

3 Some local provisions require that part-time teachers hold a minimum FTE percentage in order to be entitled to

access benefit coverage.


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B. The essential services order prohibits the unilateral amendment of terms and conditions

of the expired collective agreement

7. On March 6, 2014 teachers voted 89% in favour of a strike.

8. On March 28, 2014 BCPSEA advised the union that it was its intention to,

...require the union (in accordance with section 62 of the Labour Relations Code) to

tender an amount sufficient to continue [teachers’] health and welfare benefits, on

or before the regular due date of the payment. The effective date of this

requirement will be the date of commencement of strike activity as defined in the

Code.

(see attached letter dated March 28, 2014 from BCPSEA to the BCTF)

9. On April 2, 2014, the union made an application under s.72 of the Code.

10. On April 7, 2014 BCPSEA responded to the union’s application including the following

comments:

On March 28, 2014 BCPSEA wrote to BCTF to inform them that it was BCPSEA’s

intention to require the union to tender payment for its members’ health and

welfare benefits in accordance with Section 62 of the Code.

It was only on April 2, 2014, months after the formulation of its strike plan, but

shortly after BCPSEA’s March 28 letter, that BCPSEA was advised that the BCTF

would be filing this application. It would appear, therefore that this application has

been brought, not to protect students, but in response to BCPSEA’s letter of March

28, 2014…and in an effort to avoid the application of section 62.

(see attached BCPSEA’s Response to the Labour Relations Board dated April 7,

2014)

11. The parties engaged in essential services mediation and were successful in reaching

agreement with the assistance of former Vice-Chair Mark Brown. The results of that

mediation were incorporated into the Board’s April 17, 2014 essential services order in

decision BCLRB No. B74/2014 (“Order”).

(See attached Order)

12. Paragraph 4. 5 of the Order states:

The provisions of Section 73(2) of the Code apply.

13. In proceedings before the Board, BCPSEA sought no limitation to the application of this

provision, nor did it seek an amendment to the collective agreement.


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14. Section 73(2) of the Code provides:

73(2) If a designation is made under section 72, the relationship between the

employer and his or her employees, while the designation remains in effect, must

be governed by the terms and conditions of the collective agreement last in force

between the employer and the trade union except as that collective agreement is

amended by the board to the extent necessary to implement the designation of

essential services.

15. The union issued 72 hours strike notice advising that job action as per paragraph 1 of the

Order would commence in all school districts on April 23, 2014. During this limited job

action (Stage 1) teachers would not:

a. Undertake any mandated supervision of students outside of regularly scheduled

classes.

b. Attend any meetings with management, other than worksite Joint Health and Safety

Committees.

c. Provide administrative officers with any routine printed, written or electronic

communications.

d. Receive any printed, written or electronic communication from an administrative

officer.

e. Be at a worksite prior to one hour before commencement of instructional time and

one hour after the end of instructional time, other than for pre-arranged voluntary

activities.

16. Since the commencement of the job action, teachers have been at work during, and beyond,

their regular workday and are carrying out all of their duties as teachers without impact, let

alone serious and immediate disruption, on the delivery of educational programs.

17. Teachers perform activities related to their teaching outside of regular hours. In the Essential

Services Order B132/2011 the Board recognized that lesson preparation, planning and

marking, among others were services that teachers performed outside of the regularly

scheduled day.4

18. Teachers are salaried professionals. They are paid an annual salary. Most teachers receive

their salary during the ten months of school. During those months they pay their share of the

benefits for the full year as required by the collective agreement.

4 British Columbia Public School Employers’ Assn. (Re), [2011] B.C.L.R.B.D. No. 132, BCLRB No. B132/2011 at

para. 13.


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C. BCPSEA renews its threat not to pay benefit premiums required by the collective

agreement

19. On April 30, 2014 BCPSEA wrote to BCTF providing “formal notice” of its intent to

“require BCTF to pay the employers’ cost of all health and welfare benefits” with the

exception of premiums for life insurance and accidental death and dismemberment plans.

(See attached letter dated April 30, 2014 from BCPSEA to the BCTF)

20. In that letter, BCPSEA also gave notice of a one day lockout on June 27, 2014.

21. On May 2, 2014 the union replied that in its view there was nothing in the Code that allowed

BCPSEA to unilaterally transfer the employers’ obligations to the BCTF. As BCPSEA had

not sought amendments to the collective agreement pursuant to s.73 (2) school districts were

prohibited from acting on BCPSEA’s threat. Additionally, the union gave notice that it

would seek redress for its members and their dependents for any damages they might suffer

as a result of the improper discontinuation of teachers’ benefits.

(See attached letter dated May 2, 2014 from the BCTF to BCPSEA)

22. On May 6, 2014 BCPSEA responded to the union disputing the interpretation of s.73 (2) of

the Code as follows:

BCPSEA believes that the purpose of section 73 is much narrower. It applies only

to employees performing designated services for the time that they are performing

those services. Consistent with this interpretation, we have undertaken to pay a

portion of the benefit costs. This includes the premium cost for life insurance and

AD&D.

(See attached letter dated May 6, 2014 from BCPSEA to the BCTF)

The issue in dispute

23. The issue in dispute between the parties is a narrow one. Are school board employers bound

by the provisions of the collective agreement, including provisions relating to benefit

premiums, while teachers are engaged in job action pursuant to the Essential Services Order?

Submission

Section 73(2) provide a complete answer to the issue in dispute

24. The union submits that s.73 (2) of the Code provides a complete answer to this matter.

73(2) If a designation is made under section 72, the relationship between the

employer and his or her employees, while the designation remains in effect, must

be governed by the terms and conditions of the collective agreement last in force


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between the employer and the trade union except as that collective agreement is

amended by the board to the extent necessary to implement the designation of

essential services.

25. All of the factors of s.73 (2) are present in this case:

a. The Board has made a designation under s.72.

Paragraph 4 of B74/2014 reads:

The Board is satisfied that the terms of the agreement are not contrary to the

Code and parties have requested the Board to issue the following Order

pursuant to Section 72 of the Code:

b. The designation is in effect.

Under the scheme of the Code every new round of bargaining requires a new

Essential Services Order. The current Order is in effect for the course of this round

of labour dispute.

c. Teachers are employees of school districts members of BCPSEA. This is self-

evident.

d. The collective agreement last in force between the parties has not been amended.

BCPSEA had the opportunity during the designation process to apply to amend the

collective agreement with respect to the payment of benefit premiums. It did not

do so. On the contrary, BCPSEA acknowledged that an essential services order

could “avoid the application of section 62”.

26. Additionally, the parties specifically agreed, and the Board endorses, in paragraph 4.5 of the

Order that the provisions of Section 73 (2) of the Code apply.

27. In decision B214/2011, upheld on reconsideration, the Board explained the effect of s.73 (2).

In that case BCPSEA had applied for an order requiring BCTF to reimburse the individual

school districts a monthly amount equal to 15% of the gross salary and benefits. The

decision states:

Under Section 73(2), the terms of the collective agreement remain in effect. The

collective agreement contemplates payment of wages for teachers who are working

full time unless the collective agreement is amended by the Board to implement the

designation of essential services. No such application has been made here.5

28. The Board went on further to explain its role in a controlled strike:

5 British Columbia Public School Employers’ Assn. (Re), [2011] B.C.L.R.B.D. No. 214, BCLRB No. B214/2011 at

para. 61


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“In a controlled strike, the Board tries to preserve the ability of parties to apply

economic pressure to the extent possible while still protecting the public interest

through the designation of essential services. However, it is not the role of the

Board in an essential services dispute, to attempt to balance the respect bargaining

power of the parties beyond the designation of essential service and ensuring that

essential services are provided or that a Board order is being given effect. That is

particularly the case where, as here, the “balance” sought is in the context of a

limited job action which only peripherally impacts the provision of essential

services.

I note that the parties do have other options by which to ensure maximum

economic pressure is brought to bear in this dispute. For example, while

unattractive, the parties have the right to expand the strike or to lockout which

would trigger the next phase in the labour dispute and more fully engage the

essential services designation process.”6

29. Throughout its correspondence, and in its submissions prior in the essential services

application, BCPSEA has complained about the supposedly “unequal bargaining climate that

existed in the last round of bargaining.” As the union documented in its submission to the

Board of April 8, 2014, the evidence has now disclosed that insofar as the bargaining climate

was unequal, it was unequal to the union. And insofar as the process of collective bargaining

was frustrated, that was not the fault of the essential services approach adopted by the parties

and sanctioned by the Board. The problem in the last round of bargaining was that the

government sought to manipulate the essential services process, and the processes of the

Board, in order to provoke a full strike and for its own political purposes.

30. Finally, the union submits that BCPSEA’s own explanation of how it intends to implement

its “much narrower” interpretation of s.73 (2) reveals its arbitrariness and absurdity.

31. BCPSEA has advised that because it views s.73 as applicable only to “employees performing

designated services for the time that they are performing those services,” employer will

continue to make premium payments for life insurance, accidental life and dismemberment

and perhaps MSP, for all teachers. There is no basis in law or in reason for this position.

32. Moreover even in accordance with BCPSEA’s narrow approach, BCPSEA is in violation of

the Code for it has unilaterally decided that those employees to whom it says s.73 applies are

entitled only to some, not all, of their benefits under the collective agreement.

6 Ibid, paras. 67-68

bctf application to lrb re employer threat to benefits

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