The B.C. Teachers' Federation is going to court Tuesday in a gamble that it will gain more legal weight to throw behind slow-moving negotiations in the ongoing strike at B.C. schools.

But one labour expert says the return to court is a risky move for the union.

The 40,000-member BCTF will ask B.C. Supreme Court Justice Susan Griffin to clarify what she meant in April when she ruled the Liberal government violated the union's constitutional rights to negotiate their workplace conditions.

Griffin rapped the government's knuckles for passing legislation in 2002 that stripped the rights of teachers to negotiate class size and composition. She gave the Liberals until April 2012 to resolve the situation.

Bill 27, the Public Education Flexibility and Choice Act, prohibited the inclusion of certain items in teacher collective agreements, including staffing, class size and composition limits.

Bill 28, the Education Services Collective Agreement Act, amalgamated school districts and local bargaining units, imposing one collective agreement on teachers in newly amalgamated districts that had previously been covered by two or three local agreements.

Rolling the dice

BCTF president Susan Lambert said the court declared the two laws unconstitutional and restored the union's rights to bargain the class size and composition issues without the spectre of restrictive legislation hanging over the talks.

But Education Minister George Abbott said the laws remain on the books as the two sides take the court's direction and attempt to resolve the class size and composition issues.

Prof. Ken Thornicroft, a University of Victoria labour relations expert,  said the teachers are rolling the dice by taking the matter before the court once again.

He said since Griffin's clear-cut ruling in their favour, the Supreme Court of Canada has upheld soft labour laws from Ontario relating to union rights for agricultural workers.

"I'm not so sure what their bargaining goals are, but I'm not so sure they are going to get it," he said.

Thornicroft said the Ontario government granted agricultural workers union rights after a court battle, but those rights did not include the right to strike. The law was good enough for the Supreme Court of Canada.

"When all was said and done, the Supreme Court of Canada upheld the Ontario legislation," he said.

"So, if that's all you really need in order to meet your constitutional rights — it's really kind of a wimpy duty to consult, provide some sort of mechanism for some sort of recognition and you're good to go."

Province, teachers negotiates class composition issues

The government decided against appealing Griffin's decision, choosing instead to launch a process to negotiate class composition issues with teachers.

Last week, the government offered to spend $165 million over three years to address class composition issues to offer more help for students with special needs.

Abbott said the government will not contribute extra money to renegotiate class-size limits because research indicates cutting class sizes costs millions but produces limited results.

The BCTF rejected the offer, calling it inadequate in the face of class size and composition cuts estimated at $336 million annually.

But Abbott said the government believes the class composition offer will be viewed by Griffin as the initiation of a process to resolve the issues with the teachers.

The $165-million offer is similar to moves the the government made to reach agreements with the Hospital Employees Union and B.C. Nurses Union after the courts also ruled in favour of those unions in their complaints over Liberal legislation.

"The court did not direct an outcome [for the teachers]. The court directed a process," said Abbott. "We believe we are doing precisely that. We believe our reading of the decision by Justice Griffin is correct."

'Violation of our constitutional rights'

The teachers have been in a legal strike position since the start of the school year and have been refusing to do most administrative work.

The union has refused to talk about the class size and composition issues at the negotiating table until it hears from the court.

"Legislation that was brought in in 2002, Bills 27 and 28, was a violation of our constitutional rights of association," said Lambert. "If that's the case, the obligation of government is that that legislation be repealed."

Opposition New Democrat Leader Adrian Dix laid the blame for the slow pace of contract talks and Tuesday's court appearance on the government, saying the 2002 legislation has hurt education for years and Abbott's comments about legislating an end to the dispute sidetracks negotiations.

"The problem on the teachers issue for 10 years has been that the government removed from the negotiating table the issues that might have allowed both sides to arrive at agreements," said Dix.

"Their actions damaged bargaining for a long time."

School Trustee Melanie Joy, spokeswoman for the B.C. Public School Employers' Association, said threats of legislation and court cases can disrupt the bargaining process.

"We need to have those conversations at the bargaining table," she said.