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The workers need Chapter 11


As for all that self-righteous hot air about how B.C. teachers should set a better example by obeying the “law,” I can’t imagine a better lesson in democracy than watching a group of citizens collectively resisting injustice.

Karl Marx argued that under capitalism, the legal system was pretty much a tool of the ruling class, designed to protect property rights and keep workers in line. This is quite an oversimplification, but every now and then Marx comes close to the mark. If he could see what’s been happening in British Columbia, he’d probably say, “I told you so.”

B.C.’s so-called Liberals have never been shy to wield custom-made legislation – arbitrarily, unilaterally, retroactively – to drive down wages and undermine unions. They’ve been quick to rip up labour contracts (both negotiated and arbitrated) whenever it suited their political or fiscal interests: health-care workers, doctors, even Crown attorneys.

Now the government has invented a new law to eliminate collective bargaining for teachers before it even got started. The courts have largely validated this violation of labour rights, including a path-breaking order putting the union’s assets under control of a court-appointed monitor.

Premier Gordon Campbell is hardly unique in his opportunistic use of legal weapons to beat down the workers; there’s a long and dishonourable history in Canada of union suppression in the name of the “law.” Federal and provincial governments have used customized legislation 170 times since 1982 to forcibly end strikes, impose settlements, and otherwise restrict union activity. But Mr. Campbell has been the most blatant.

I often wonder what would happen if a government unilaterally overruled the rights of corporations, ripped up corporate contracts, or seized control of corporate assets. Suppose, instead of targeting teachers, Mr. Campbell passed a law prohibiting oil companies from selling gasoline for more than, say, 80 cents per litre. If the energy giants resisted, a court-appointed monitor would seize their multibillion-dollar assets.

Of course, this will never happen. Even if it did, the hue and cry at every venue (political, legal, media, even international) would drown out all contrary opinions. And at the end of the day, the corporations could play their trump card: Chapter 11 of the North American free-trade agreement.

NAFTA’s Chapter 11 allows corporations to sue governments for any policy change held to undermine their future profits (defined broadly as “expropriation”). Corporations have sued governments over everything from environmental regulations to postal delivery. Canada has been targeted the most.

Why don’t B.C.’s teachers launch a Chapter 11 lawsuit, since Mr. Campbell’s arbitrary laws effectively expropriate their future salaries (not to mention their ability to negotiate working conditions)? I’m no lawyer (thankfully), but here is a revolutionary legal strategy for the teachers to defend their contractual rights, just as effectively as corporations do.

* First, the teachers must incorporate (Chapter 11's provisions only apply to corporations, not people). They could call themselves "Red Apple, Inc." And they must do this in a foreign country (Chapter 11 allows foreign companies to sue, not domestic ones).

* Put a hefty monetary value on every conceivable monetary or non-monetary loss, injury, or inconvenience they will endure, into the infinite future, due to arbitrary, confiscatory legislation. Then double the tab: The best Chapter 11 suits are settled out of court, so you should always demand twice as much as you actually think you deserve.

* Hire some high-priced trade lawyers from the cottage industry that's been spawned by Chapter 11, then sit back and wait for the money to roll in -- or, more likely, for the government to quickly change its legislative tune.

My brilliant legal opinions notwithstanding, the power structure that underlies contract law will never be turned upside down like that. So B.C.’s teachers will have to rely on more traditional remedies – namely, the willingness of their determined members to fight for their rights. Even though the strike has been settled, the B.C. government could still unilaterally overturn the resulting contract – this year, next year, or whenever it’s convenient.

As for all that self-righteous hot air about how B.C. teachers should set a better example by obeying the “law,” I can’t imagine a better lesson in democracy than watching a group of citizens collectively resisting injustice. They can teach my kids any day.

Jim Stanford is an economist with the Canadian Auto Workers.

This article appeared in the September/October 2005 issue of Canadian Dimension (The Battle for Canadian Universities).


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