Q56. What is repeal? Can Bill 75 be repealed?

To repeal a law means to rescind it; any law can be rescinded

A56. Repeal is the legal word for rescinding a law.

This question comes up a lot with respect to Bill 75, the controversial law enacted in February 2017 to impose a contract on teachers.

The short answer is that any law made by the House of Assembly can be unmade by the House of Assembly. To repeal a law requires a bill, and that bill must go through all five stages of the law-making process.

That’s the short answer; of course there’s a longer, more complicated answer. The legal effect of repeal can be a remarkably convoluted legal issue, especially in criminal law.

When a law is repealed, that means it is not the law from the moment the repeal comes into force, either through proclamation or Royal Assent. The repeal can even be worded so that the repealed law is deemed never to have been the law.

Repealing a law will leave a legal void. Sometimes that’s okay. Most times, another law will have to be passed to fill the void. In fact, it’s quite common to pass a new law, and the new law states at the end that such-and-such a law is repealed. The new law has replaced the old law.

If Bill 75 is repealed without something to replace it, that means we would go back to the way things were before it was enacted, i.e. we would go back to having a teachers’ professional agreement that expired on July 31, 2015. A new contract would have to be negotiated covering the period from July 3, 2015, forward.

What most complicates the question of repeal is that a number of things will start happening immediately under Bill 75. Repeal of Bill 75 can change the law, but it can’t change the facts on the ground.

The best example of “facts on the ground” is the Commission on Inclusive Education. According to Bill 75, the Commission must be appointed by no later than March 23, 2017, must issue an interim report by June 30th, and must issue a final report by March 23, 2018. If Bill 75 is repealed, any work done by the Commission before the date of repeal can’t be undone. It’s just a fact.

The teachers’ contract imposed by Bill 75 expires July 31, 2019. If there is a change of government after the next provincial election, the new government might devote its energy to negotiating the next NSTU contract, rather than repealing Bill 75. If Bill 75 is repealed, it might have more symbolic than practical value, depending how much time has elapsed.

Q55. What is in Bill 75?

It’s complicated, but essentially it legislates the second tentative agreement with teachers

A55. Bill 75, the Teachers’ Professional Agreement and Classroom Improvements (2017) Act, received first reading in the legislature on February 14, 2017. It received third reading and Royal Assent on February 21, 2017.

Bill 75 is too long to reproduce here. The official version of the bill is available via the legislature’s website. The key features of the bill are:

  1. The bill imposes a four-year professional agreement that expires July 31, 2019. Because a professional agreement is being imposed, any strike action will be illegal as soon as the bill passes.
  2. The bill incorporates the wage and long-service award provisions from the second tentative agreement. Over a four-year contract, that’s 0-0-1-1.5 and a final 0.5% on the last day of the fourth year. Long-service awards are calculated by multiplying (i) years of service on July 31, 2015, and (ii) salary at retirement.
  3. There will be a Commission on Inclusive Education (sections 4-11). There will also be a Council to Improve Classroom Conditions.
  4. The bill does not apply to other unionized public-sector workers, except for one small detail concerning long-service awards.
  5. Class-size guidelines in Schedule B (page 24) are in force for 2017-18 and 2018-19.
  6. Work-to-rule cannot include any of the teachers’ duties listed in sections 26 or 31 of the Education Act (section 13). Enforcement of these duties is not specified in the Act, and would presumably fall to normal performance management and discipline procedures.

There is also a provision stating that the constitutionality of Bill 75 cannot be decided by an arbitrator.  That does not oust the jurisdiction of the courts.

 

Q25. What is Bill 148? How is it connected to Bill 75?

Bill 148 imposes a wage pattern on public-sector workers; it is not yet in force

A25. Bill 148 is a piece of labour-relations legislation that passed through all stages of the law-making process in December 2015 but has not yet been proclaimed in force.

The correct name of Bill 148 is the Public Sector Sustainability (2015) Act. That name is hard to remember, so most people still call it Bill 148.

Bill 148 does two things:

  1. It imposes the government’s four-year fiscal framework on all public-sector employees, including teachers. (The most prominent part of the framework is wage increases of 0% in the first year, 0% in the second year, 1.0% in the third year, 1.5% in the fourth year, and another 0.5% at the end of the fourth year.)
  2. It forbids any arbitrator from making an award outside the fiscal framework. (Arbitration is a common process by which labour-relations disputes are decided if collective bargaining does not result in an agreement. An arbitrator is like a judge or referee. The two sides in the labour dispute present their arguments, and then the arbitrator makes a final decision.)

Even though Bill 148 passed through the legislature and received Royal Assent, it is not yet in force. That’s because Bill 148 is subject to proclamation. A bill that is subject to proclamation comes into force only when Cabinet issues an order saying that it is in force. Proclamation can happen at any time, or it may never happen. Proclamation does not require any further action by the House of Assembly.

The McNeil government has not yet proclaimed Bill 148 because it does not yet need to. When Bill 148 was passed, the McNeil government still hoped to reach agreements through collective bargaining. If collective bargaining breaks down and any public-sector labour dispute reaches the arbitration stage, it is likely Bill 148 will be proclaimed.

Once Bill 148 is proclaimed, it applies to everybody in the public sector, except teachers, who are governed by Bill 75.

Some people believe that Bill 148 is unconstitutional. If it is, then it cannot be enforced. The same constitutional question has been raised about Bill 75.

 

Q22. What is collective bargaining? How is it connected to the legislature?

When bargaining breaks down, governments may impose a contract by legislation

A22. Collective bargaining is the process by which an employer and a union negotiate a contract. It has no connection to the legislature, except that if negotiations break down the government may impose a contract by legislation.

Over the past 20 years or so, many of the most controversial bills have been attempts by the government to impose a legislated contract.

In Nova Scotia, collective bargaining for teachers is governed by the unimaginatively titled Teachers’ Collective Bargaining Act (TCBA). Everything to do with the teachers’ contract is in the TCBA.

In collective bargaining, the teachers are represented by the Nova Scotia Teachers Union. The employer is the Minister of Education.

What counts as good collective bargaining? The TCBA says only that the two sides “shall make every reasonable effort to conclude and sign a professional agreement”. (section 21)

In recent years, the Supreme Court of Canada has had a lot to say about collective bargaining, especially in light of the “freedom of association” guarantee in the Charter of Rights. There is more on this point in a post on whether Bill 75 is unconstitutional. For now, I will repeat only this passage from an important recent decision in the British Columbia Court of Appeal. The judge is writing about what it means to have meaningful collective bargaining:

Parties are required to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other party. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground.

So that’s what good collective bargaining looks like. According to the TCBA, here’s how the process unfolds:

  1. When an existing contract is within two months of its expiry date, one side may give the other side notice to bargain. (section 18)
  2. Bargaining must begin within twenty days. (section 21)
  3. If the parties reach agreement on their own, that’s great. That’s the new contract.
  4. At the request of either party, the Minister of Labour may appoint a conciliation officer to assist the parties. (section 23)
  5. At the request of both parties, the Minister of Labour may appoint a conciliation board to assist the parties. (section 25)
  6. If both parties agree, the dispute may be settled by binding arbitration. (section 26)
  7. At any time, the Minister of Labour may appoint a mediation officer to attempt to effect a settlement. (section 27)
  8. If agreement is reached, it is binding on the NSTU, every teacher, the Minister of Education, and every school board. (section 28)
  9. No strike or lockout is permitted unless bargaining has been attempted and unless a conciliation officer or conciliation board has tried to resolve the dispute. (section 34)
  10. No strike is permitted unless a strike vote is taken by secret ballot, and until the Minister of Labour has received a 48-hour strike notice. (section 34)
  11. No strike or lockout is permitted if there is a professional agreement in force. (section 35)

From all of this, I want to highlight two key points.

Point #11 tells you why the McNeil government wanted to pass Bill 75. Bargaining has failed to produce an agreement. Conciliation has also failed. Bill 75 imposes a contract by law, and that contract would be retroactive to the date the last contract expired. A legislated contract is still a valid contract, and so no strike would be permitted.

Point #6 tells us that binding arbitration—sending the whole dispute to a neutral third party, whose decision would be final—is a possibility. However, the McNeil government has said it will not agree to send the dispute to arbitration. Moreover, the legislature passed another law in December 2015 (known as Bill 148) that tells arbitrators what they must decide. Bill 148 is not yet in force, but it can be proclaimed in force at any time.

 

 

Q21. What did the December 5, 2016, bill say?

It would have imposed a contract on teachers

A21. Normally every bill is posted on the legislature’s website shortly after it is introduced. But the bill the government was planning to introduce on December 5, 2016, was never introduced, so there is no official version that I can point to.

However, the NDP caucus released a copy of the bill that they said the government was planning to introduce. The government did not deny that the NDP document is accurate. This post is therefore based on the document released by the NDP.

The bill is short. Keep in mind that the “whereas” clauses are not legally part of the bill. If you ignore them, the bill is really, really short:

An Act Respecting a Teachers’ Professional Agreement

WHEREAS the members of the Nova Scotia Teachers’ Union have voted twice to reject tentative agreements reached between the Minister of Education and Early Childhood Development and the Union respecting a new professional agreement;

AND WHEREAS negotiations, conducted in good faith, between the Minister of Education and Early Childhood Development and the Union respecting a new professional agreement are now at an impasse;

AND WHEREAS the Union has given the Minister of Labour and Advanced Education a 48-hour notice of strike as provided under the Teachers’ Collective Bargaining Act;

AND WHEREAS it is of vital importance that the education of the students in public schools in Nova Scotia not be disrupted by a prolonged labour dispute between teachers and the Minister of Education and Early Childhood Development;

AND WHEREAS, in setting the terms of the professional agreement established by this Act and to remain in force until July 31, 2019, the Government of Nova Scotia has taken into account the representations made by the Union in the negotiations;

THEREFORE be it enacted by the Governor and Assembly as follows:

  1. This Act may be cited as the Teachers’ Professional Agreement (2016) Act.

  2. Words and expressions used in this Act have the same meaning as in the Teachers’ Collective Bargaining Act.

  3. The Teachers’ Provincial Agreement made on May 14, 2013, between the Minister of Education and Early Childhood Development and the Nova Scotia Teachers’ Union, as modified by the tentative agreement reached on September 2, 2016, between the Minister of Education and Early Childhood Development and the Union, is deemed to constitute a professional agreement entered into by the Minister of Education and Early Childhood Development as an employer and the Union as a bargaining agent

The effect of this bill is simple: It imposes a contract on teachers. The imposed contract is the deal reached with the NSTU bargaining committee on September 2, 2016. On October 4, 2016, 70% of teachers voted to reject that deal.

Once a contract is in place—even if it is imposed by legislation—any strike action by the teachers’ union would be illegal.

One last detail. You may be wondering how the NDP got their hands on a bill that was never introduced. Here’s my guess. The government usually gives the opposition parties a bill briefing. That briefing is usually held shortly before a bill is introduced. It’s likely the government held a briefing for the NDP, and then decided not to introduce the bill after all. It is very naughty of the NDP to share the bill in these circumstances.

As it turns out, the December 5, 2016, bill was superseded by Bill 75, which was duly passed into law on February 21, 2017. In separate posts, I discuss whether Bill 75 is unconstitutional. I also discuss how Bill 75 relates to Bill 148.

Q15. Is Bill 75 unconstitutional?

Darned if I know; here are the tools you need to make up your own mind

A15. I know this question isn’t really about the Nova Scotia legislature, but I’ve been asked a lot for my opinion, and it’s relevant to the reason I started this Citizens’ Guide.

To be enforceable, a law has to respect Canada’s constitution. It’s not clear if Bill 75 is constitutional.

In our system of government, a legislature can pass any law it wants. The only restriction is that a law must respect the constitution, which is Canada’s supreme law.  Many people have asserted that Bill 75 violates the constitution.

In this post, I’m not going to try to give a definitive opinion. That’s impossible. I do want to offer a few thoughts that may help you to make up your own mind.

Over the past 10 years or so, the Supreme Court of Canada (SCOC) has issued a series of decisions that “constitutionalize” labour relations. As a result, governments have to be very careful about how they handle labour legislation. Legislatures used to have a free hand. Not any more.

The McNeil government is currently walking several tightropes simultaneously (if that metaphor makes any sense): labour relations with the NSTU; public opinion; and constitutionality. Every move it makes represents a careful consideration of these three tightropes.

The constitutional tightrope is based on s. 2(d) of the Charter of Rights. That clause says that Canadians have the right to “freedom of association”. That’s it. All the SCOC decisions are based on those three words.

The SCOC has decided that “freedom of association” must include the right to form a workplace union. To have a meaningful union, the union has to be able to engage in collective bargaining with the employer. And collective bargaining has to be meaningful. But what is meaningful collective bargaining? That’s what the SCOC is still trying to figure out. The law inches forward, one decision at a time. It is always a work in progress.

On November 10, 2016, the SCOC issued a new decision in this ongoing story. The decision involved a challenge by the BC Teachers’ Federation to a law passed by the BC government in 2002. The SCOC ruled the law was unconstitutional.

In the heated debate around the impasse with teachers, the BC Teachers’ Federation decision was gasoline on the fire. But what did the SCOC actually decide?

All written court decisions are available in a free database called CANLII. If you don’t know about it, this is a fantastic public database. The SCOC decision in the BC Teachers’ Federation case is available in CANLII.

The SCOC decision is very short. Here it is in its entirety:

The majority of the Court would allow the appeal, substantially for the reasons of Justice Donald. Justices Côté and Brown would dissent and dismiss the appeal, substantially for the reasons of the majority in the Court of Appeal.

Yeah, that’s the whole thing. Let me explain in a few easy steps:

  1. Every SCOC decision is an appeal from a lower-court decision.
  2. The BC Teachers’ Federation decision was an appeal from the BC Court of Appeal, which is BC’s highest court.
  3. The BC Court of Appeal had split 4-1. The majority (4) was in favour of the BC government and would have upheld the law. The dissenter (1) was in favour of the BC Teachers’ Federation, and would have found the law to be unconstitutional and therefore unenforceable.
  4. There are nine judges on the SCOC.
  5. In the BC Teachers’ Federation appeal, the SCOC split 7-2.
  6. The SCOC majority (7) sided with the dissenter on the Court of Appeal (his name is Justice Donald). That means the BC Teachers’ Federation won at the SCOC. (And it means Justice Donald probably popped some champagne that night.)
  7. The other two SCOC judges sided with the majority on the Court of Appeal.

Still with me? All of this means that in order to understand what the SCOC decided in the BC Teachers’ Federation case, you have to read Justice Donald’s decision in the BC Court of Appeal. Basically the SCOC said “We agree with that guy.” And that guy—Justice Donald—articulated what is now the law of Canada on s. 2(d) of the Charter, at least until the next decision comes along.

Justice Donald’s decision—in fact the entire BC Court of Appeal decision—is also available on CANLII.  Justice Donald’s decision starts at paragraph 275 and runs to paragraph 401. I know it’s long, but nobody said this was simple. If you feel up to it, try to read it. Justice Donald’s decision is well-written and can, with a bit of effort, be understood by anyone.

I hesitate to lift a single sentence or paragraph out of Justice Donald’s decision and say “Here’s what he decided.” The law is a web, and each decision is a new layer in the web, and you can’t pick out a thread from the web and say “That’s the law”.  Besides, the facts of each case are crucially important.

But if I had to try to summarize Justice Donald’s decision—a decision which the SCOC implicitly adopted—I would pick two short quotations. The first is from paragraph 293:

…if the government negotiates or consults with an association in good faith and nevertheless comes to an impasse, it will likely have satisfied its constitutional duty and may unilaterally pass necessary legislation consistent with that consultation process. If the government does not have time to consult or negotiate with a collective bargaining unit because of exigent circumstances or emergency, it may then be found to have breached s. 2(d), but such a breach may be saved under s. 1.

So the fact that there’s a negotiating impasse, and the government passes a law to deal with the impasse, doesn’t necessarily mean the law is unconstitutional. A lot depends on whether the government has negotiated in good faith.

But what does it mean to negotiate in good faith?  Here’s what Justice Donald says in paragraph 348:

Parties are required to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other party. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground. In order to determine whether the government is bargaining in good faith, it may sometimes be necessary to probe and consider the government’s substantive negotiating position.

I’m in no position to say definitively whether Bill 75 complies with this test. I have read opinions from lawyers and (surprise!) they come to different conclusions. That’s to be expected, because it’s a very complex and evolving area of law.

At least you now have the framework within which to make up your own mind. Go ahead and take a look at Justice Donald’s decision.

One last thought: Constitutional cases can take years to work their way through the courts. The BC Teachers’ Federation case was decided in 2016, and was a challenge to a law passed in 2002. It took fourteen years to get a final decision! If Bill 75 is challenged on constitutional grounds, it will likely take many years for a final decision, especially if it’s appealed all the way to the SCOC.

So one thing is for sure: the constitutionality of Bill 75 won’t be decided until after the next election, or maybe the one after that. And that may be the most important factor of all.

Q6. What is a confidence vote?

A confidence vote is any vote that could trigger an election

A6. A “confidence vote” is any vote that triggers an election if the government loses.

An annual budget is always a confidence vote. If the budget is defeated, the government must resign and there must be an election. That last happened in Nova Scotia in 1999.

There can also be a motion of non-confidence. A motion can be presented only if the House is sitting.  If a motion of non-confidence passes, the government must resign and there must be an election.  Under a majority government, there is zero chance of a non-confidence motion passing, so the Nova Scotia legislature rarely sees them any more.  There used to be at least one every year, but the practice of having an annual non-confidence vote stopped in 1998.

Apart from the budget and a non-confidence motion, there is only one other situation that involves confidence: if the government declares, in advance, that a vote is a confidence vote.

Why would a government do that? Why would they deliberately run the risk of having to resign and triggering an election? There are two possible reasons.

First, a government may actually wish to trigger an election. That happened in 2009, when the Progressive Conservative government of Rodney MacDonald was fairly certain that its budget would be defeated. Rather than wait for the budget vote, another inconsequential bill was declared to be a matter of confidence. When that bill was defeated, the government resigned and the election was on. I was there. It was weird, and is not likely to be repeated any time soon.

Second, a government may use the threat of a confidence vote to keep its own MLAs in line. The ultimate threat of a premier with rebellious backbenchers is to call an election that the backbenchers do not want. If the backbenchers believe they may be defeated in an election, they will grumble but likely fall into line.