Tuesday, February 14, 2017

Saturday, February 11, 2017

What Happens If The Legislature Is Called Back

Edited at 6:00pm February 11, 2016 to match actual recall of the legislature:

There’s lots of speculation that the government will call the legislature back to impose a contract on teachers in Nova Scotia. This is entirely plausible and is anyone’s guess, but as I have written elsewhere, I haven’t figured out why the government would bother expending political capital with an emergency session just to impose what would amount to a financial settlement. (But in fact they have done it. The legislature will resume at 8pm on Monday, February 13) Whether they impose such a contract now, or wait until the regular session which is likely to start the end of March or early April makes no significant difference to the budget or the current state of affairs. It’s unlikely (or some would even go so far as to say impossible) for an imposed contract to have any ability to end the majority of things some people seem most concerned about such as the lack of extra help during lunch hours, proms and grads (which to my knowledge have not been cancelled and which in many communities alternate plans are already underway), supervising sports teams, after school activities, and so on. That’s because most of them are outside both the contract offers and the Education Act.

That being said, I have been asked by many people what would happen in the event the legislature is called back. Here is a cheat sheet. There are two resources which are useful in looking at for further information about these situations. Graham Steele has written extensively on Facebook and his blog about processes, and the legislature has on its website a Rules and Procedures book which is fairly instructive.

Under the rules of the legislature, a minimum of 30 days notice is required to recall the legislature. In December the government asked the Speaker to recall the legislature without 30 days notice using rule 5. That rule says:

if the Speaker is satisfied, after consultation with the Government, that the public interest requires that the House shall meet at an earlier time, the Speaker may give notice that being so satisfied the House shall meet, and thereupon the House shall meet to transact its business

The Speaker is supposed to be independent. He or she cannot be directly fired by the Premier as the replacement takes a vote in the legislature. In the UK, whose rules Nova Scotia is ultimately modeled on, the Speaker actually gives up party affiliation for their time in the big chair. I can’t recall a time when the Speaker has been asked to explain why a public interest exists in recalling the legislature, but there is no reason people cannot demand the answer. In essence the public interest requirement to be answered is always “why does the legislature need to return earlier than it could with 30 days notice”. The rule is admittedly broad, but that doesn’t mean an answer shouldn’t be given.

That being said, understanding there are a million possible exceptions, here’s basically what happens (I have offered two start days, Thursday – which some people have speculated on – and Monday, just move the days around if it changes beyond that):

Day 1 (Thursday/Monday) The bill is introduced. This is first reading but nothing really happens except reading the title of the bill. Exciting stuff. There will be some resolutions from opposition members, but the bill will be introduced and the legislature will adjourn. If it’s not a Monday there will also be a 50 minute question period. It won’t matter what time of day the first day begins because it will be a short sitting. A few hours at most.

Day 2 (Friday/Tuesday) This day will see one hour of resolutions, ministerial statements, and so forth (the “Daily Routine”). Question period will take place for 50 minutes and debate will begin. This is second reading. Each member in the legislature can speak for up to one hour. It’s reasonable to assume based on past history that the government will call the legislature in at 12:01am for 24 hour sittings throughout from this point forward. A minister, presumably Education but could be Finance or another department, will have introduced the bill and will speak. The minister will not speak for long as they will want to move things forward. No other government member is likely to speak as they will hope to get the bill through first reading in day one

Day 3 (Monday/Wednesday) This will depend solely on whether the bill gets through second reading on Day 2. If it doesn’t, Day 3 will be made up with finishing first reading. Assuming first reading passes, then the Daily Business will occur but the big thing will be Law Amendments. How long this goes will depend on how many people sign up. The government can run it 24 hours and can limit the amount of time it lasts. If this is a Monday the legislature would likely not sit at all, so no daily business. Only Law Amendments would sit. Anyone can come and speak but you will get little notice.

Day 4 (Tuesday/Thursday) That thing called Daily Routine? Yeah. That again. During Daily Routine the government will report back from Law Amendments (assuming it is complete). Government might even delay the start of the legislature day until late in the evening to wrap up Law Amendments. Other than reporting back, Daily Routine, and Question Period nothing else will happen.

Day 5 (Wednesday/Friday) Daily Routine again. Then Question Period. Then Committee of the Whole House. This is limited to 20 hours. It's an archaic part of the process where the legislature is supposed to examine every bill clause by clause but it rarely happens. The only real value in it is it is where amendments to clauses from government or opposition can be put most easily into the bill (though it can happen at other stages too). The government will almost certainly bring the legislature in at 12:01am because that will all but guarantee clearing the bill in one day. In fact, while I am sure they will, there is almost no value in opposition parties using much time in Committee of the Whole House if the government calls in the legislature at 12:01am. This is because whether the legislature ends at 4am or 11:55pm the next step cannot begin until Day 6 and it is impossible to delay it beyond 20 hours.

Day 6 (Thursday/Monday Tuesday) Daily Routine but if it’s Monday there is no question period. Monday is a holiday in Nova Scotia. So Day 6 will be Tuesday. Third reading debate will begin following Daily Routine and Question Period. There are pretty good odds that, again with a 12:01am start, and given the number of opposition members, the bill would clear and be law by the night of Day 6 though it is technically possible for it to stretch into Day 7.

There are all kinds of exceptions. There are things such as dilatory motions which can delay things, but over eight years in the legislature I have never once seen them used as extensively as they could be. Also, while many try, only some MLAs are capable of speaking non-stop for an hour basically on topic (shocking, I know) so the maximum time is rarely used. There is a reason for this and it isn’t because the opposition is lazy. 

Delaying the inevitable by a day or two has little benefit. Speaking out the time through 24 hour sessions takes a lot of stamina as it is (I have seen cots setup in the rooms behind the legislature floor, take-out food becomes a staple, and members on all sides end up having shifts so they can duck out for an hour or two of sleep here and there - in many ways it’s not the best our democracy has to offer). Unless there is a clear reason why delaying things by one or two more days would change the outcome or impact of the legislation, it just doesn’t have much value.

Finally, as an aside, you may have noticed weekends are not included. The legislature is not allowed to sit on weekends under rule 3  unless there is a 2/3 majority vote to suspend the rules, and the government does not quite have 2/3 of the members in the legislature to do that (plus such a motion would trigger another debate which everyone could speak for an hour on).

(3) The House shall not meet on New Year’s Day, Good Friday, Easter Sunday, Easter Monday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day, a Saturday, a Sunday or a Monday, and the week in each year customarily observed by the schools at the seat of the Legislature as the “March Break” in accordance with a determination made by the Minister of Education.
(3A) Notwithstanding paragraph (3), the House may meet on a Monday and on a Monday the Order of Business for the consideration of the House on a Monday shall be the same as for Tuesday, Thursday and Fri- day except that there shall be no ORAL QUESTIONS PUT BY MEMBERS TO MINISTERS.

Thursday, February 9, 2017

Three Strikes - But For Government or Teachers?

To no one’s real surprise teachers voted overwhelmingly against a proposed contract offer from the provincial government. With 78.5% of teachers voting against, it’s a clear indictment of the offer. It also suggests that chatter on social media from day one by teachers that the deal was not acceptable was accurate. This also puts credence to the notion that the priority for teachers in this dispute is addressing classroom issues. You might say it's three strikes and you're out. But who's out? Government supporters would position the union as the batter and say they should have a contract forced upon them. Others would say teachers are the pitchers in this game and have pitched three clear strikes leaving the government out.

This contract offer was not particularly different from the last two in terms of classroom issues. It offered one committee to look at some of the classroom issues (with no guarantees of implementation) and another more controversial one set up to look at inclusion that appeared to exclude the very people it needed to include. No doubt much of the commentary in the next few days will be about why the executive of the NSTU recommended the deal, and whether that executive or Minister Casey should resign. I will leave that to others. I want to consider what comes next.

Shockingly (or perhaps not shockingly since the Premier spoke out earlier) Education Minister Karen Casey spoke out after Thursday’s cabinet and during NSTU voting saying 
"I know that regardless of the vote there will be a period of transition when the work-to-rule no longer exists. And teachers, many of them want to get back to the classroom. I believe that transition period will begin immediately.”
Talk about inflaming an already tense situation in the middle of a vote. Teacher’s never left the classroom. Moreover, work to rule would not wind down regardless of the vote, it would only have wound down in the event of a vote favouring the contract. I thought government learned when the Premier spoke, that the only answer for government until after the vote to any question should have been “we await the results of the vote and will respond following and not before”. 
Casey went on to say that she expected things to return back to the way things were before work to rule. The union and many teachers have made it quite clear that there is now a new normal. Sure, some things are likely to return. Teachers want to be there for their students after all. But work life balance was taking on new importance to many. That shouldn’t be a surprise to anyone.

So what happens now? The only guarantee is that there isn't one. Some have speculated the union will take strike action. This seems implausible given it would give them far less leverage than the current work to rule. The union has stated they will ask the government to return to the bargaining table.

The government may introduce legislation to impose a contract. That seems widely believed, and it may happen. But it’s hard to see how the government gets any kind of win with that. If there’s no win or benefit to government, why would they bother? They can more easily impose the wage pattern on NSGEU using a combination of that union’s automatic right of arbitration combined with the imposition of Bill 148. That would not require a drawn out fight in the legislature and so has significant political benefits. Once the wage pattern is in place (which includes cancellation of the service award), the teacher’s contract, placed until then on the back burner, can be sorted out over summer when classes are not being impacted and the public is not paying attention.

Despite all that, government may still impose legislation seeking to end work to rule. It’s high risk with limited benefit. The government will surely point to an affidavit filed by the NSTU opposing action by universities. In it, the union acknowledged that work to rule is strike action and conceded that there are contractual and Education Act requirements that teachers are not doing as a result. This being the case, government could force an end to the strike portion of work to rule. But only the strike portion. 

That's where it gets rough for government. The things some people are complaining about not happening in the school system are, for the most part, not required in either the Education Act or the contract, so government legislation would likely disappoint those seeking government action. That makes it a political risk. (As an aside, given the NSTU has stated that work to rule is strike action, those who were concerned about refunds for trips where refunds required strike action should now be able to get them)

There is another option, though I think really is a long shot. Government could call an election on the teachers issue. They seem to want an election. The Liberals seem to be trying to skate around a recent court ruling which ruled the current riding boundaries unconstitutional (more on that and why it should matter to all Nova Scotians in a coming blog). You would think a responsible government, given an election is not required until fall 2018, would move to fix those boundaries before an election to avoid the risk of injunctions and court action. But who knows, maybe they will use the teachers impasse as an excuse to call, what would still be, an early election. 

I’ve held the belief all along that unless this dispute is resolve amicably – something which seems increasingly unlikely – some kind of long term work to rule is inevitable. I'm of the view that both legislation and strike action would result in making a bad situation worse, without solving anything, or moving the resolution of classroom issues forward. 

At this point the best thing both sides could do is take a step back, regroup, and figure out a way forward. That, I fear, is probably overly optimistic.

Friday, January 27, 2017

Work To Rule Returns - Are We Surprised?

It’s enough to make your head spin. Back to work to rule for teacher’s in Nova Scotia.

A lot has happened in a few days.  The Nova Scotia Teacher’s Union (NSTU) executive recommended a contract offer to its membership (some reports suggest this was a split and divisive decision by the executive) which it said was the best it felt it would get. The executive said it included two new days off (there is considerable debate about what exactly teachers could do on those days, but they wouldn’t be in class, the wording does seem to allow very broad discretion as to their use). These were sold as a trade off for the loss of the service award.

Teachers almost immediately started posting in social media that their priority was classroom conditions and that they did not want two days off. They wanted help with the workload and changing classroom environment. In fact, many were upset that the contract agreement made it seem to the public that their fight was about money and yet for those speaking out publicly, the priority was the classroom.

Then on Friday AllNovaScotia.com reported that the Premier said  the union had it wrong and teachers were getting marking days and expected to be at school (there are a few versions of exactly what was said but that seems to be the gist). The union executive, already under fire from members, students, and parents who didn’t like the proposed contract, had enough and re-implemented work to rule saying they could no longer trust the Premier.

Neither the return to work to rule, or the contract dispute, is about whether there are two days off for teachers or not. Every single teacher I have spoken to has told me they did not ask for two days off, don’t really want them, and would like to have seen the value of that used to hire more EPAs for the classroom, or some other supports. (One suggested the government's value of the two days equates to hiring of 277 EPAs. I do not know if this is accurate) Teachers I have spoken to can’t even figure out where this idea originated.

This is about the fact neither side in this dispute trusts the other side. Not one bit. That leaves the chance of a resolution very low. Less than low really.

It’s obvious there is a massive communications problem between the union and government. (As well as a communications issue between at least some of the NSTU executive and their membership) The $60 million value of the contract improvements earlier reported seemed dubious as that was based on government’s largely debunked December estimates of NSTU contract asks. The fact the Premier criticized the union before a contract vote probably put the final nail in the coffin of the tentative contract, though its very likely the contract was going to be voted down anyhow.

Graham Steele called the return to work to rule an over reaction. I take his point, but it’s likely the NSTU executive saw they did not have the support of the teachers and needed to get back in line with the membership. They also knew from social media that many teachers were going to continue to work to rule (at some level) because they did not support the contract offer. Continuing to phase out of work to rule made little sense with a no vote coming.

Some pundits said earlier today that teachers will lose support and the government will win the PR battle if the current contract is refused. I’m not so sure. Even if teacher’s lose some support because their union has not mounted a credible and relatable  public relations response to the government’s campaign, many parents, students, grandparents, and others I speak to recognize the education system is broken and needs to be fixed.

It's a "pox on all their houses". Many don’t seem to accept that the promise of some committee to look at the issues is a solution. A wide swath of Nova Scotians seem to rightly recognize time is long past for committees and commissions which delay things to some future point or never. Changes and fixes need to be implemented now. So while work to rule may very well result in some drift of support from teachers, it doesn’t seem obvious that this will go to support of the government. Many of the same people who criticize their perception of the teachers’ stance to me, are equally (or more) critical of the government failure to have made substantial classroom improvements in the contract and over the past three years.

So what happens now? Some have suggested teachers should go on strike. I don’t see any value for teachers, either to win their war, or in increase public support, by doing that. If they do, government will legislate them back after some period of time (for some unknown reason 20 working days keeps getting floated) and impose a contract.

While there are some who complain teachers are well paid and that this is about wages, I believe the sincerity of the many, many teachers across the province who have spoken to me personally and told me stories of their experiences, that their priority – like those of parents and students who are supporting them – is the classroom.

Some people are also demanding the government end work to rule. No government can end work to rule. Demanding that teachers do more than their contracts require isn’t going to work. It takes a cooperative relationship with government and Nova Scotians. That is the biggest risk now. The relationship between teachers and government is all but nonexistent. 

Some of the issues seem to be around not being able to access marks on demand, online (rather than through the teacher as it was before PowerSchool), chaperoning trips during school holidays, or not being able to reach teachers after hours. These are things teachers haven’t always done. Frankly, the government doesn’t seem to think those things should be added to the list of teacher duties, so it’s another situation where some may not support teachers, but the government stance isn’t supporting that position either. If December is any guide, any imposed contract will not change the duties of teachers, so teachers will return to class, and likely work to rule or some version of it will become the norm in Nova Scotia. Government won’t want that. Parents won't want that. Students won't want that.

Teachers might take some blame for continued work to rule, but it won’t matter because they aren’t on the ballot. Government MLAs will take the blame at the ballot box if an election comes and strikes, contracts, and work to rule are not a distant, almost forgotten, memory.