VANCOUVER -- The Labour Relations Board will decide next Wednesday if the employer’s lockout of the teachers and 10-per-cent pay cut is legal, although some teachers have already seen the reduction on their pay cheques.

The B.C. Public School Employers’ Association argued that teachers’ work has been reduced, so their proposed 10-per-cent pay cut should be legal, while the B.C. Teachers’ Federation argued that because an essential services order is in place, any change that could affect students must be approved by the LRB.

Teachers have been on rotating strikes since Monday, with several school districts closed each day. Schools were closed in the province’s largest district, Surrey, Thursday, and the rotating strikes will continue next week.

The teachers’ employer has initiated a partial lockout and pay cut for teachers who participate in the job action. The lockout restricts teachers from working during recess or lunch hours, or from arriving at school any earlier than 45 minutes before classes start, or staying 45 minutes after they end. Both sides were arguing at the LRB offices in Vancouver in front of the board’s vice-chairman Richard Longpre.

“If you don’t do the work, not being paid for it is not an alteration of the collective agreement,” BCPSEA lawyer Eric Harris said. “It is simply that if you don’t do the work, you’re not going to be paid.”

He said teachers have three categories of work: instructional time, non-instructional time and volunteer extracurricular activities. He said teachers have been told not to perform specific non-instructional duties, such as assessing curriculum, planning for class structure for next year or attending departmental meetings.

He said none of those provisions violates the essential services order and that the 10-per-cent reduction is a “conservative” estimate of the duties that teachers are not performing.

“(The lockout defines) very tangible, very discrete functions that are performed by teachers during school hours. These are measurable, and are not merely administrative, but also involve planning and development,” Harris said.

He calculated that the reduced duties add up to 6.1 hours in a 45-hour work week, which includes meetings and other administrative work. He emphasized that the lockout prevents teachers from adding other work in place of the work they are locked out from doing.

During job action in 2011, the employer applied to the board to have the BCTF pay 15 per cent of teachers’ salaries and benefits and lost. Teachers were refusing to do some of their administrative duties, but the board found they had replaced that work with other duties.

Harris argued the Labour Relations Board does not have jurisdiction over pay reductions, but only over measures that violate the essential services order. He said arbitration would be a more appropriate venue to decide whether the pay cut is appropriate.

The teachers’ lawyer, Carmela Allevato said the lockout is illegal and that the employer is not entitled to implement a lockout and pay cut without first having those steps approved by the Labour Relations Board under essential services.

“Once we’re in our essential service setting, it is for the board to determine what is essential,” Allevato said. “The pay cut violates the code and the employer must come here first if it wants to alter that.”

Allevato argued the employer has a requirement to apply to the LRB and that it is the appropriate venue to determine both the legality of the lockout and the proposed pay cut.

“They have to come here to make application to vary the provisions of the collective agreement,” Allevato said. “They can’t just make it up.”

She said the 10-per-cent pay cut has caused a lot of confusion, with some teachers seeing the pay cut affect their pay for the week before rotating strikes started and some teachers being docked a day’s pay who did not have a contract to work on the day schools were closed in their district.

Allevato said the lockout has meant the employer has cancelled meetings that could have a significant effect on students, such as those that determine the services a special needs student will receive next year.

“We say that has an impact on these students,” Allevato said. “In our view, what the employer is instituting at the very minimum falls within the scope of what the board has an obligation to review under the directive you were given by the minister.”

“You can’t be a little bit pregnant. … Once you’re in essential services, that’s the regime that you’re under. If we have to give notice, they have to give notice. If we have to be consistent with (essential services) they have to be consistent.”

The employer said there is no obligation for it to get approval from the LRB before implementing a lockout.

“Their application isn’t about protecting children, … it’s about protecting their income,” Harris said.

All LRB decisions can be appealed within 15 days.

Sun Education Reporter

tsherlock@vancouversun.com

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CLICK HERE to view the list of school closures for each school district this week and next week.

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