The testimony of Tom Paci

Dr. Mark Hudson had already softened me up, but the tale told by Thomas Patrick Paci was what broke my heart.

Imagine that 32 years ago, you started an orchard from seedlings and grass. Over time, with your care, it has become fertile and lush. The trees have all grown and you now know just how to trim them. Each year you begin anew a now well-established process of preparing the fruits to ripen and the flowers to bloom. And then, suddenly, one day without warning, someone bulldozes through, crushes it all down, uproots all the stumps, and burns all the refuse, leaving you to start over, with no source of water and just a few crusted seeds.

When Tom Paci looks back on what the Public Services Sustainability Act has done to collective bargaining between Manitoba’s teachers and school divisions, this is what I think he sees.

Direct Examination – by Garth Smorang

We begin with some background.

Tom Paci has spent 32 years with the Manitoba Teachers Society, 11 as an economist, and 21 in the collective bargaining department of which he is now in charge. He is a solid man, dignified, resolute, and principled, and as we will hear, justifiably proud of the way labour relations have been handled between the Manitoba Teachers Society and their umbrella counterpart, the Manitoba School Boards Association.

There has been a Manitoba Teachers Society since 1919, and it functions as both a union and a professional development organization. Unlike so many other jurisdictions, Manitoba’s teachers don’t strike. They gave up that right in 1956 in exchange for the right to go to binding arbitration. Sixty-three years on, they haven’t asked for that to change.

Every four years, every school division and its teachers negotiate a new collective bargaining agreement. There are 38 separate locals and thus 38 separate collective agreements, which are all negotiated during the same year. Both sides elect or select their local bargaining representatives, who are assisted by staff from the Manitoba School Boards Association for the schools, and from the Manitoba Teachers Association for the teachers.

Each school division has its own unique set of concerns and constraints, and receives funding from the Province on the basis of some complicated formula. We don’t need to know how exactly it works for these purposes, other than to note that part of any school board’s funding comes from the government. However, even though each collective agreement is negotiated separately for those reasons, what almost always happens is that one of the locals ends up being the first to reach an agreement and then that first agreement tends to set a pattern for all the others, especially for wages and benefits.

Despite all the variability, going to binding arbitration because collective bargaining has failed is relatively rare. In the ten years between 2009-2018, there were only 10 bargaining tables that ended up at binding arbitration, out of around 300 tables in total. In the two most recent rounds, only Seven Oaks School Division went to arbitration in 2010, and in 2014, all agreements were settled at the table.

All of that changed in 2018.

COLLECTIVE BARGAINING in schools – 2018

The collective agreements between Manitoba’s 38 school divisions and their respective teachers were set to expire on June 30, 2018. As per their usual practice, the Teachers Society prepared an opening proposal of one year with a 3.9% wage increase, knowing of course that they would likely end up with some other arrangement over four years as they had so many rounds before.

Both sides knew about the Public Services Sustainability Act, but no one was really sure how or whether the PSSA would affect the 2018 bargaining. This was mostly because the Act wasn’t in force yet, but also because historically, the Province never got involved in the collective bargaining process between independent school divisions and their teachers.

A PSSA EXPLOSION

Suddenly, however, there was a huge change. On February 8, 2018, the government issued a News Release which said:

For the 2018-19 school year, the Minister [of Education and Training] has directed school divisions to limit any increase to their local education property tax to 2% … the Minister pointed out that the Public Services Sustainability Act wage freeze would alleviate some expenditure pressure on divisions.

Uh, what?

In addition to their funding formula, each school division has the right to impose property taxes on residents in their area, which they, of course, use to meet their budget concerns. What the Minister is saying is – hey school divisions, you cannot raise your school property taxes by more than 2% this year (whether you need to or not), but don’t worry, we have saved you money by limiting the wages you have to pay teachers through the Public Services Sustainability Act.

But the PSSA isn’t law yet. Heather Leonoff keeps repeating that it isn’t in effect. So how can it be saving anyone anything? Or, more importantly, how come the Province is saying that the PSSA is working already when at the same time they are telling everyone that it hasn’t been proclaimed?

That is, of course, the question that the MTS was asking. But then it got worse after a press conference held later that day by Minister Wishart and Richard Yeo (Executive Director of Policy, Planning, and Performance in the Department of Education and Training).

Here are some highlights:

 

1. The PSSA wage freezes are already in effect

Minister: We believe this limit on education property taxes is achievable in light of the Bill 28 wage Freeze which comes into effect for all public school teachers as of July 1, 2018.

                What are you talking about? The PSSA isn’t coming into effect on that day; its still not “in effect” the government wants it that way.

                But the teachers’ existing collective agreements expire June 30, 2018, and any new collective agreements will be backdated to July 1, 2018. So, Mr. Minister, what you are really saying is that you are expecting the PSSA to apply to those new agreements, whether it has been proclaimed or not.

 

 2. That’s why we are doing this 2% cap on school taxes, because of the PSSA wage freeze savings

Reporter: If [the teachers] are coming in under Bill 28, what is there to bargain fiscally?

Minister: Well that’s why the timing is pretty good to do this. We know that, you know, the financial returns, in particular the salaries, for the next four years are laid out so it’s a good window of opportunity to begin this process.

Translation: That’s exactly why we are starting this 2% limit on the increase in school taxes now, because we know that the PSSA will force wage freezes on teachers for the next four years.

 3. And the schools will save so much money because of the PSSA 

Reporter: Wonders if the school divisions will be able to pay their bills if they cannot increase their school property taxes by more than 2%.

Minister: But they are coming in with Bill 28 … more than 50% of their costs are teachers’ salaries. That will be a change … it’s something they didn’t have to negotiate and [won’t] have an increase there.

Translation: The school divisions will not have to worry because they will be saving so much money on teachers’ salaries because of the PSSA (which, as a result of the government’s own careful planning, is not legally in force or effect yet).

 

4. We have no idea how much money the PSSA will save the school divisions, but we know it’s a lot. 

Reporter: But the wage freeze itself, are there any estimates on what the savings are?

Yeo:        I don’t think we have those saving but I think if you estimated that teacher contracts have been coming in at 2 or 3% a year, the fact that those remuneration levels will be frozen now for the next two years means that whatever [the school divisions] would have been providing will no longer be spent. I don’t know.”

Minister: And we don’t know hard numbers, we just know there are significant savings to be had there.

                Translation: The Government of Manitoba is out of its mind. “We just know we are going to save all this PSSA money, but we’ve never done any calculations to determine how much.”

You in trouble, Manitoba. You seem to be trying so hard to say that because the Public Services Sustainability Act has not been proclaimed, it is not in effect.

Yet here, not only does the Minister demonstrate that the Province intends for the PSSA to have an effect (saving money on teachers’ salaries), even while the Act is not in effect, according to Minister Wishart, the Department of Education and Training is counting on it.

And oh yeah, we haven’t crunched the numbers, so we don’t know how much the school divisions will save, but it’s probably a lot.

Oooh, that’s gonna hurt when your lawyers try to argue that the PSSA was necessary, was well-planned out, and did not go any farther than you had to, all the sorts of things you need for your Section 1 defence.

Now What?

After that unpleasant surprise, the Teachers Society didn’t know whether there was even any point in bothering with collective bargaining. Maybe every single table should just go straight to binding arbitration, because if the Minister is right and the school divisions are going to rely on the PSSA, we’re all just going to end up at binding arbitration anyway. And by the way, what is the Government of Manitoba suddenly doing at our bargaining tables?

Anyway, for timing reasons, Pembina Trails School Division was in a position to go first, with Louis Riel coming up in a close second. Before anything else is said, done, or planned, the Teachers Society wanted to know the answer to this one important question:

It is the position of the Manitoba Teachers Society that the Public Services Sustainability Act has no legal force or effect (i.e. totally irrelevant), so then, Manitoba School Boards Association, what do you say?

In a letter dated February 28, 2018, through the Pembina Trails School Division, the School Boards Association says this:

The [Teachers] Association has expressed the position that it intends to bargain as if The Public Service Sustainability Act will have no force or effect. That Act poses significant restrictions and limitations on amendments in a renewed collective agreement. The Province could proclaim that legislation at any time, in which case it will have a retroactive effect. It would be imprudent, in that case, to negotiate as though the legislation does not, nor will not, have any impact on collective bargaining.

Translation: Even though the PSSA is not legally in force, or in effect, it will have an impact on what is happening today because of the retroactivity provisions.

The Pembina Trails School Division table goes on to say that they cannot agree to open collective bargaining yet because, among other reasons, the government may be changing the system to a province-wide central table, and the municipal elections (which include school trustees) are scheduled for the end of this year.

MTS replies that since we don’t know if or when the Province may or may not change the system, and since we have a system now, let’s go ahead and use it, rather than wait for a “might be.” Besides (I’m not sure whether Paci said this or whether I just inferred it), the municipal elections take place every four years, and for the past two or three elections at least, the collective agreements are on exactly the same schedule. So, the collective agreements always expire the same year as the municipal elections, and no one has ever asked to wait before.

But the School Division stays the course – we are stuck with what the Minister said on February 8, and therefore the PSSA.

Ok then, say the teachers, we’ll just go straight to binding arbitration. We would still like to negotiate, but if you can’t do anything, then I guess we won’t bother.

Somebody in government sends a letter which, I assume, is supposed to help resolve the impasse. Roughly paraphrased, it said something like:

There seems to have been some erroneous conclusions vis-à-vis the Public Services Sustainability Act. The Act is not law. The Manitoba Government traditionally sets mandates for the public sector. There is still a full range of collective bargaining available, except that the parties must adhere to the 0%, 0%, 0.75%, 1% pattern for wage increases.

Well, that’s not much help – the PSSA doesn’t apply because it is not law, but we are still using its mandate on wages? Seems as though the government is getting tangled in its own web of spin.

Naturally, this solves nothing. And there is much back and forth between the Teachers Society and the School Boards Association. It’s all about whether the School Boards are going to rely on the passed-but-not-proclaimed PSSA wage restraints, because as far as the Teachers Society is concerned, if they are, there is no point in bargaining.

It’s frustrating for both sides. The Teachers Society want a definite answer – will we be negotiating under the PSSA or not? I gather that since the School Boards know that everything is over if the answer is yes, they try in avery was possible not to answer this question.

It gets so bad that someone from the School Boards Association suggests that the School Boards may have a claim of an unfair labour practice against the Teachers Society because no bargaining has occurred. (I’m not sure how serious this threat was, but it does tend to demonstrate what a difficult situation everyone was in).

In any event, the Teachers Society is adamant. If the School Boards are going to stick to the PSSA pattern on wages, there is no point in bargaining because even if any agreement is reached at the table, the members won’t ratify it.

Paci points out here that because of inflation, a 0% wage increase isn’t a freeze, but rather a cut.

Let’s Try Anyway …

This is all taking place in the Pembina Trails bargaining round. Sticking to their guns, the Pembina Trails Teacher Association starts binding arbitration with the Labour Board. They do, however, reluctantly (I assume) agree to meet with the School Board to try bargaining anyway.

The Teachers start off with their opening position, which has not changed – an offer of a 3.9% increase over one year.

When it is the School Board’s turn, they aren’t sure what to do. Morgan Whiteway was leading the negotiations for the School Board. He says something about how the School Board “isn’t opposed to wage increases” but makes some vague reference to the “economic situation.”

Tom Paci and the Teachers want to know – what does this mean? Does the PSSA apply or not? Because if it does, we are done here. Whiteway replies that it is not a yes or no question, and suggests that because the PSSA is not law yet, it will not predetermine any outcomes. Paci still thinks this isn’t clear enough but agrees to meet again.

At the next meeting, however, the Teachers demand that the School Board put all their cards on the table. Just tell us, are the wages going to be governed by the PSSA or not? Whiteway still doesn’t want to answer, and kicks the can down the road with “let’s review and meet again.”

So they do. It is now May 17, 2018 and the meeting lasts approximately 43 minutes. Whiteway does all the talking. He notes the great relationship between the Teachers Society and the School Boards, and, since there doesn’t seem to be any room for agreement, the School Board thinks that the risk to the relationship is too great to continue this process.

What? The School Boards pulled the plug? Why would they do that? It is hard to tell what the School Boards think of this problem, but it seems pretty clear what the problem is. The Province wants (or is perhaps telling) the School Boards that they are bound by the PSSA restrictions, but the Province doesn’t want the School Boards to say so.

Ok Manitoba, you are making a mess. You want the PSSA to have an effect, or rather apply and be effective, but you don’t want anyone in any way to admit it? Is that because you already know that regardless of whether the PSSA has legal effect or not, it will likely become open to challenge as being unconstitutional the minute it is shown to have an actual effect on reality?

And if the answer is yes, then this passed-but-not-proclaimed business is a game you already know you can’t win.

THE ANGUISH OF TOM PACI

Throughout Paci’s direct examination and then into his cross-examination, whenever the Public Services Sustainability Act comes up, he keeps repeating “but it’s not law.” 

Not quite a wail, it’s an appeal to the gods – where can we find justice for teachers in Manitoba?

So, I went looking for Lady Justice (whose greek god name is Themis), and sure enough, there she is right on our very own courthouse, not that far away from where Tom Paci sits.

       Hi Themis!

It is the pained way he strains to say it that gets to me. They hurt this person, and behind him you can see the hurt of the 15,000 teachers he is there to represent.

In accordance with tradition, Lady Justice is blind, but let us join with Tom Paci in hoping that she will not be deaf to his pleas, and offer all Manitoban public employees some comfort and relief.

SO, WHAT HAPPENED NEXT?

A whole lotta nothing, at least in respect of any collective bargaining in any of Manitoba’s 38 School Divisions. The Louis Riel School Division had a similarly short bargaining round, and after that, none of the other School Divisions bothered.

Louis Riel had their binding arbitration hearings from November 25-December 6, 2019; a decision is not expected until sometime in February, 2020. Binding Arbitration for Pembina Trails is scheduled for April 13-24, 2020.

There is no current teacher collective bargaining occurring in Manitoba. And no collective agreements have been reached.

CROSS-EXAMINATION – BY HEATHER LEONOFF

At this point, I am starting to feel sorry for Heather Leonoff. The passed-but-not-proclaimed/in effect-an effect-no effect game is so logically jumbled, it makes it almost impossible for her to do anything. She still tries.

Leonoff: Your position was that you were not bound by the PSSA because it was not law. And the School Boards could deviate from the PSSA because it was not law?

Paci:       We thought that the PSSA couldn’t bind the School Boards because that would put the Province at the bargaining table, which would be a violation of our collective bargaining rights.

Leonoff: You wrote to the School Boards Association on December 18, 2018, asking for a clear answer – was Pembina Trails going to follow the PSSA or not. And that was because you thought that they were legally bound by the PSSA, right?

Paci:       We wanted a clear answer on whether we were going to be able to have free collective bargaining without any restraint.

Leonoff: (I’m not sure exactly what she said here, something more about whether the PSSA or Bill 28 was legally binding and whether that was equivalent to saying there was no free collective bargaining. Whatever it was, Paci wound up and whacked her again.)

Paci:       We wanted to know as a fact whether the Province was forcing the School Boards to comply with the PSSA, because this would be interference..

Leonoff: You wanted more than the 0, 0, 0.75, 1 PSSA pattern, didn’t you?

Paci:       No. We wanted to know whether we would be able to bargain with the School Boards independent of any outside intervention.

Leonoff is trying to demonstrate intransigence – oh those uncooperative unions, they just won’t play ball. Paci is relentlessly consistent – we’d be happy to play ball, as long as we can be sure that the game isn’t fixed.

When Paci went on about needing to keep pace with inflation to meet the needs and aspirations of their members, Heather tried again …

Leonoff: So you wouldn’t have agreed to the PSSA numbers?

Paci:       Even the 0, 0 might have been ok if we knew that it wasn’t coming from interference by the government.

LeonoffBut you wanted to keep pace with inflation, didn’t you?

Paci:       No. We wanted to know that the government was not interfering in any negotiation over whether the salary increase would keep pace with inflation.

It was a bit of a slash, crap, and burn by Paci – objections to governmental interference in their collective bargaining at every turn. So much for that. Leonoff finally moved on.

There was a little discussion about step increases still being preserved. (I didn’t understand why they keep talking about step increases until much later. I’ll explain more when we get to the economic experts.)

The cross-examination ended with another attempt to show that even if they couldn’t negotiate about wages, there was still lots to left over to collectively bargain with. However valid this point may or may not be, it probably wasn’t wise to have raised it in this context.

Let’s let Tom Paci tell us why …

Leonoff:  So you could still have negotiated about [these other things], right?

Paci:       It was the School Board that ended bargaining, not us. They said they couldn’t continue out of respect for us and because they were afraid that if they did, they would cause great harm to our relationship.

                And nobody could do anything because the government was interfering in our collective bargaining.

Eeessh. That was a punch punch knockout. Heather was finished and Thomas Patrick Paci stepped down.

The Trial Begins

Setting the scene in Courtroom #210 as the trial of MFL v. Manitoba begins. We get some background and meet the players.

Opening Statements

The proceedings begin with opening statements. Here, the lawyers for each side give us an outline of the course they are going to take (and why it is going to take 13 days to get there).

The Testimony of Kevin Rebeck

The President of the Manitoba Federation of Labour testifies about consultations between the government and some Labour leaders prior to the PSSA being passed. They weren’t very fruitful, and there seems to have been some question as to whether the government was being truthful.

Passed but Not Proclaimed?

Why is the government waiting to proclaim the PSSA? I thought there was a financial emergency, and dire warnings of our precarious fiscal position. But it has been 2 1/2 years. Don’t they need it yet?

The Testimony of Elizabeth Carlyle

Elizabeth Carlyle gets cross-examined about what happened in a negotiation between CUPE and the Winnipeg School Division. It wasn’t a lot, and it doesn’t sound as though it was very good.

The Testimony of Dr. Mark Hudson

Remember when the faculty at the University of Manitoba when on strike in November of 2016? Dr. Mark Hudson is here to tell us why it happened. And he fills us in on what was happening between the University and the Province behind the scenes.

The Testimony of Tom Paci

Tom Paci appears on behalf of the Manitoba Teachers Society. His story? A quest for justice for Manitoba’s 15,000 teachers and an appeal to the gods of justice – how can we be bound by the PSSA when it is not law?

Indirect Taxing & Discriminatory Taxation

If a tax by any other name would be as taxing, could wage freezes be indirect taxation? And if members of public sector unions are paying more in taxes to support public services, would this qualify as discriminatory taxation?

The Testimony of Michelle Gawronsky

The leader of the Manitoba Government and General Employees Union recounts her experiences since the advent of the PSSA. Everything she says about her automatic approach to understanding concerns and finding ways to solve problems makes me think ” leader, leader, this is a great leader.”

The Super Six Speak

Six experienced union negotiators come to tell us about what has been happening in their collective bargaining worlds. We learn more about what the PSSA means for public sector unions and their collective agreements.

Labour’s Collective Bargaining Expert

Dr. Robert Hebdon testifies about the impact of the PSSA on collective bargaining in Manitoba’s public sector. It isn’t good.

The Testimony of Sheila Gordon

We end the union tales of collective bargaining under the PSSA in passed-but-not-proclaimed limbo with MGEU’s GEMA. Sheila Gordon, MGEU’s senior negotiator was there. And she is here to tell us how those negotiations did not go anywhere.

Labour’s Read-ins and One Last Reveal

You never know what read-ins from discovery might reveal.

The Testimony of Richard Groen

Richard Groen, an Assistant Deputy Minister from the Ministry of Finance, testifies about the Province’s budgets and such.

I was expecting him to demonstrate what all the financial fuss in 2017 was about, you know, why our financial ship was sinking so much that we needed all hands on deck. But …

A No-Compete Treat for the Labour Market?

I don’t understand why the government doesn’t think it should have to compete in its own labour market. It does everywhere else.

The Testimony of Garry Steski

Is it wrong to admit that before this I didn’t really know what a bond market was? Well, I do now, and we learn a little about how Manitoba’s bonds were affected by the fiscal challenges in 2016. Or not.

Bean Counters, Businessmen & Business of Government

If businessmen go into government to bring the principles of good business to government, then shouldn’t they act like good businessmen when they get there?

The Government’s Collective Bargaining Expert

It is best to talk about what happened here as little as possible. So we’ll talk a bit about the importance of turkey instead.

The Testimony of Aurel Tess

How a short day of seemingly tedious technical testimony on Manitoba’s Summary Financial Statements turned into a most unpleasant surprise.

Politicizing the Provincial Comptroller

Ok, Manitoba. Politicizing the Office of the Provincial Comptroller?

That takes the poop-cake.

The Government’s Economics Expert

The government’s economics expert, Dr. Livio Di Matteo, has a motto he lives by: Agimus Meliora – Let us do better.

It makes me wonder, Manitoba, can’t we do better than the PSSA?

Labour’s Economics Expert

Dr. Eugene “the Earnest” Beaulieu testifies that the PSSA is not only not necessary, it is a harsh measure that puts an unfair burden on public employees.

Bye Bye, Dumbo

Let’s take one last look at the Elephant in the Room, and then say goodbye.

The Mandamus Application

A day of argument about whether a statute that says “the Minister SHALL FORTHWITH” means that the Minister can decide not to do something and make up his own reasons for why he shouldn’t.

Decision on the Mandamus Application

Justice Keyser, the judge on the Mandamus Application, has spoken. Here’s a hint – MGEU wins.

Bill 9: We’re Gaming Again …

Before we begin all the good stuff, Garth Smorang has some objections to yet another litigation game the Government of Manitoba is playing.

Labour’s Final Argument

Labour’s last stand. Shannon-the-Hammer and Smorang-the-Smasher pull it all together and wrap it all up.

There is an awful lot of it, so Labour’s final arguments have been separated into four separate posts, which start here …

Butt-First Buffoonery

How did the Government of Manitoba get to such an embarrassing PSSA place? They backed into it.

The Government’s Final Argument

Forget the Elephant-in-the-Room.The Government of Manitoba has got many other ways to try to move the goalposts, as they try to change the game.

Kind of seems like they know they are losing.

Labour Replies

The Finale of the Finale. Labour replies.

(This means we are finally done. At least with the evidence and arguments.)

The Onion of Outrage

Why am I here? Why spend so much watching lawyers and judges and reading endless cases? It’s a pretty simple answer.

I was mad.

The Decision is In!!!

The Honourable Justice Joan McKelvey has ruled. Labour won. The PSSA is unconstitutional.

This is what she decided and why.