2001 Legislative Session: 2nd Session, 37th Parliament
THIRD READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


Certified correct as passed Third Reading on the 27th day of January, 2002
Ian D. Izard, Law Clerk


HONOURABLE GRAHAM BRUCE
MINISTER OF SKILLS DEVELOPMENT AND LABOUR

BILL 28 -- 2002

PUBLIC EDUCATION FLEXIBILITY AND CHOICE ACT

Contents

Section  
Part 1 College and Institute Labour Adjustment
1  Definitions
2  Restrictions removed
3  Dispute resolution
4  Application
Part 2 Education Statutes Amendments
5-15  School Act
16  Public Education Labour Relations Act
17  Commencement


HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Part 1 College and Institute Labour Adjustment

Definitions

1 In this Part:

"class" means a set of students to which a faculty member delivers a course or unit of curriculum or instruction;

"collective agreement" means a collective agreement between an institution and a bargaining agent for faculty members of that institution;

"distributed learning" means a method of instruction that, in whole or in part, uses information technology, teleconferencing or correspondence as a means of instruction;

"faculty member" means a faculty member under the College and Institute Act or the Institute of Technology Act;

"institution" means a college, a university college or a Provincial institute or other institute established under the College and Institute Act, the Institute of Technology Act or the Open Learning Agency Act;

"professional development time" means time allocated under a collective agreement to faculty for professional development.

Restrictions removed

2 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.

Dispute resolution

3 (1) Any dispute between an institution and a trade union over the interpretation, administration or application of this Part in respect of a collective agreement may be resolved through the grievance and arbitration procedure under the collective agreement.

(2) An institution exercising or purporting to exercise a right under this Part must not be restrained by injunction, prohibition or stay of proceedings by an arbitration board or the Labour Relations Board.

Application

4 (1) The Labour Relations Code and the regulations made under it apply in respect of the matters to which this Part applies, but if there is a conflict or inconsistency between this Part and those enactments, this Part applies.

(2) A provision in a collective agreement entered into before or after the coming into force of this section that is inconsistent with or that limits, restricts or interferes with an institution's exercise of the rights established in this Part is void to the extent of the inconsistency, limitation, restriction or interference.

(3) A provision of a collective agreement that requires an institution to negotiate with a trade union to replace any provision of the agreement that is void as a result of subsection (2) or is consequential to a matter to which this Part applies is also void.

Part 2 Education Statutes Amendments

School Act

5 Section 1 (1) of the School Act, R.S.B.C. 1996, c. 412, is amended by adding the following definition:

"employers' association" means employers' association as defined in the Public Education Labour Relations Act; .

6 The following section is added:

School year continuity in the assignment of
special needs teachers' assistants

18.1 (1) In this section:

"collective agreement" means, in relation to a special needs teacher's assistant, a collective agreement between the employers' association and a union certified to represent the special needs teacher's assistant;

"special needs teacher's assistant" means a person employed by a board under section 18 to provide assistance in relation to a student with special needs;

"student with special needs" means a student who

(a) has a learning disability, or

(b) has a disability of an intellectual, physical, sensory, emotional or behavioural nature.

(2) The Lieutenant Governor in Council may make regulations as follows:

(a) providing a prescribed class of students with special needs with continuity in the assignment of special needs teachers' assistants during the school year;

(b) prescribing one or more classes of students with special needs who meet prescribed criteria for the purposes of paragraph (a) and prescribing those criteria;

(c) requiring boards to assess students with special needs annually to determine whether they fall into a prescribed class of students with special needs under paragraph (b);

(d) providing that, despite a provision of a collective agreement, a special needs teacher's assistant, who provides assistance in relation to a student assessed by a board as a student of a prescribed class under paragraph (b), not be displaced or laid off during a school year because of the exercise of bumping or displacement options under a collective agreement;

(e) limiting a regulation under this section under prescribed circumstances or imposing conditions on the regulation, including, without limitation, providing that continuity under paragraph (a) ceases if, during the school year, the student stops attending a school in the school district of the board that assesses the student under paragraph (c);

(f) restricting, limiting or suspending the right of a special needs teacher's assistant under a collective agreement to exercise bumping or displacement options during a school year.

(3) The Lieutenant Governor in Council may make different regulations under this section for different classes of students with special needs and for the special needs teachers' assistants assigned to them.

(4) A provision of a collective agreement that conflicts or is inconsistent with a regulation under this section is void to the extent of the conflict or inconsistency.

7 The following section is added to Division 1 of Part 3:

School Meals Program

26.2 (1) In this section:

"School Meals Program" means a School Meals Program approved by the minister and funded in whole or in part by the government;

"support staff collective agreement" means a collective agreement between the employers' association, on behalf of a board, and a support staff union;

"support staff union" has the same meaning as in the Public Education Labour Relations Act.

(2) Despite any provision of a support staff collective agreement, a board may contract with any person to provide meals to students, or a group of students, at one or more schools in its school district under a School Meals Program.

(3) A support staff collective agreement must not contain a provision that in any manner restricts, limits or regulates a board's authority to contract with any person to provide services under a School Meals Program referred to in subsection (2).

(4) A support staff collective agreement that conflicts or is inconsistent with subsection (2) or (3) is void to the extent of the conflict or inconsistency.

(5) A provision in a support staff collective agreement requiring the employers' association or a board to consult with the support staff union prior to contracting out work in relation to services provided under a School Meals Program is void.

8 Section 27 is amended

(a) in subsection (1) by repealing paragraph (b) and substituting the following:

(b) the terms and conditions, not inconsistent with this Act and the regulations, of a teachers' collective agreement, and ,

(b) in subsections (3) and (4) by striking out "a collective agreement" and substituting "a teachers' collective agreement",

(c) in subsection (3) by striking out "or" at the end of paragraph (b) and by adding the following paragraphs:

(d) restricting or regulating a board's power to establish class size and class composition,

(e) establishing or imposing class size limits, requirements respecting average class sizes, or methods for determining class size limits or average class sizes,

(f) restricting or regulating a board's power to assign a student to a class, course or program,

(g) restricting or regulating a board's power to determine staffing levels or ratios or the number of teachers or other staff employed by the board,

(h) establishing minimum numbers of teachers or other staff,

(i) restricting or regulating a board's power to determine the number of students assigned to a teacher, or

(j) establishing maximum or minimum case loads, staffing loads or teaching loads. , and

(d) by adding the following subsections:

(5) A provision of a teachers' collective agreement that conflicts or is inconsistent with subsection (3) is void to the extent of the conflict or inconsistency.

(6) A provision of a teachers' collective agreement that

(a) requires the employers' association to negotiate with the Provincial union, as defined in the Public Education Labour Relations Act, to replace provisions of the agreement that are void as a result of subsection (5), or

(b) authorizes or requires the Labour Relations Board, an arbitrator or any person to replace, amend or modify provisions of the agreement that are void as a result of subsection (5),

is void to the extent that the provision relates to a matter described in subsection (3) (a) to (j).

9 The following section is added:

Transitional appointment of arbitrator

27.1 (1) The Minister of Skills Development and Labour must appoint an arbitrator to determine whether a provision in the teachers' collective agreement constituted under the Education Services Collective Agreement Act conflicts or is inconsistent with section 27 (3) (d) to (j), as enacted by the Public Education Flexibility and Choice Act.

(2) The arbitrator appointed under subsection (1) must resolve all issues and make a final and conclusive determination before May 11, 2002.

(3) Despite subsection (2), the Minister of Skills Development and Labour may

(a) order that the arbitrator conclude resolution of issues and make a final and conclusive determination on an earlier or later date than May 11, 2002, as specified in the order, and

(b) make an order under paragraph (a) applicable in relation to one or more boards, as specified in the order.

(4) Sections 89 to 92 of the Labour Relations Code apply to an arbitration under this section.

(5) If the arbitrator under this section determines that a provision in the teachers' collective agreement constituted under the Education Services Collective Agreement Act conflicts or is inconsistent with section 27 (3) (d) to (j), as enacted by the Public Education Flexibility and Choice Act,

(a) the arbitrator's decision takes effect on the date section 27 (3) (d) to (j) comes into force,

(b) section 27 (5) and (6) applies in respect of that decision on that date, and

(c) the arbitrator must delete the provision from the collective agreement on that date.

(6) An arbitrator's decision under this section is final and binding and not open to appeal or review by the Labour Relations Board.

(7) This section may be repealed by regulation of the Lieutenant Governor in Council.

10 Section 28 is amended

(a) in subsection (1) by striking out "A teachers' union may," and substituting "The Provincial union, as defined in the Public Education Labour Relations Act, may,", and

(b) by repealing subsection (2) and substituting the following:

(2) Despite subsection (1), if this Act or the regulations contain provisions that limit or restrict any matter described in subsection (1) (a) or (b), those provisions prevail over the collective agreement in the event of a conflict.

11 Section 29 (b) is amended by striking out "the employers' association, as defined in the Public Education Labour Relations Act, to declare" and substituting "the employers' association to declare".

12 The following section is added:

Class size

76.1 (1) A board must ensure that the average size of its classes, in the aggregate, does not exceed

(a) for kindergarten, 19 students,

(b) for grades 1 to 3, 21 students, and

(c) for grades 4 to 12, 30 students.

(2) Despite subsection (1), a board must ensure that the size of any primary grades class in any school in its school district does not exceed

(a) for kindergarten, 22 students, and

(b) for grades 1 to 3, 24 students.

(3) The Lieutenant Governor in Council may, by regulation,

(a) establish the methods to be used by a board for determining average class size in the aggregate, including, without limitation, methods of providing for students with special needs,

(b) exclude any type of class, course, program, school or student from the determination of average class size in the aggregate,

(c) set dates by which determinations must be made under this section,

(d) define terms used in this section for the purposes of a regulation under this section,

(e) require boards to prepare, submit to the minister and make publicly available, in the form and manner specified by the Lieutenant Governor in Council, for each school district and each school within the school district,

(i) reports respecting class size, and

(ii) plans respecting allocation of resources, services and staff in order to comply with subsection (1),

(f) specify matters that must be considered by a board in preparing a plan under paragraph (e) (ii) and the information required to be included in reports or plans under paragraph (e), and

(g) require a board to establish, in respect of plans and reports under paragraph (e), a process of consultation with parents of students attending school in the school district.

(4) The limits and requirements of subsections (1) and (2) do not apply for the purposes of the 2001-2002 school year.

13 Section 77 (1) is repealed and the following substituted:

(1) On or before May 31 of each school year, a board must, in accordance with the regulations and for each school in its school district, make a school calendar for the following school year available to every parent of a student in the school.

14 Section 78 is amended

(a) in subsection (2) (e) by striking out "school week," and substituting "school year,", and

(b) by adding the following subsection:

(3.1) A board may not adopt a school calendar under subsection (3) unless, in accordance with the regulations, parents of the students enrolled in the school and representatives of employees of the board assigned to the school have been consulted.

15 The following section is added:

Extended day and year-round schooling

78.1 (1) If a board satisfies the conditions under section 78 (3.1), a provision of a teachers' collective agreement that limits or restricts, or purports to limit or restrict, the board's power to adopt and implement the school calendar approved under section 78 (3.1) for the school or the group of students concerned is void, but only to the extent that the provision limits or restricts the power in respect of that school or group of students.

(2) Without limiting subsection (1), a provision of a teachers' collective agreement is void to the extent that it limits or restricts, or purports to limit or restrict, the power of the board to establish, vary, extend or amend, in respect of the school or group of students referred to in subsection (1),

(a) the schedule of delivery of educational programs in a day of instruction,

(b) the schedule of delivery of health services, social services and other support services under section 88, in a day of instruction,

(c) the hours of the day, days of the week or months of the year on or within which educational programs are to be provided, or

(d) the days on which teachers, or persons providing services referred to in paragraph (b), are scheduled to be available for instructional, non-instructional or administrative activities.

Public Education Labour Relations Act

16 Section 7 (4) (b) of the Public Education Labour Relations Act, R.S.B.C. 1996, c. 382, is repealed.

Commencement

17 (1) Sections 6 and 7 come into force by regulation of the Lieutenant Governor in Council.

(2) Section 8 (c) and (d) comes into force on July 1, 2002, unless a different date is established by regulation of the Lieutenant Governor in Council, and the regulation establishing a different date may apply to one or more boards as specified in the regulation.

(3) Section 15 comes into force on July 1, 2002.


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