BC Court of Appeal strips faculty collective agreement rights

The BC Court of Appeal has upheld the rights of University Senates to enact provisions contrary to collective agreements in a ruling issued yesterday.

The situation briefly is that the UBC Senate enacted a policy on student evaluation of university teachers. The UBC Faculty Association, which is a trade union under the BC Labour Code, challenged the policy as inconsistent with the Collective Agreement. I blogged about the arbitration case here.

The Court held that the appropriate standard of review was correctness(the highest standard). I think that is right. However, their conclusion on the substance I don't believe is correct. The Court upheld the arbitrator's view completely. In sum, the view was that the Senate possessed sole statutory authority over academic matters and that the Board had no statutory authority to bargain away that authority. This means that any provision of any bicamerally governed university (that would be all universities in Canada except UofT and OCAD I believe) that falls even loosely under the broad statutory grant to the Senate can be abrogated at will.

The only potential bright spot in the whole ruling can be found in this one line: "If an employee is unfairly affected by the application of the policy (as opposed to the content of the Policy), he/she can grieve and an arbitrator clearly has jurisdiction over such a grievance." I like this and I think I understand what the Court might mean. I think that it might mean that an individual who is affected by a Senate policy that violates a Collective Agreement provision can seek a remedy from a Board of Arbitration because the University Board has a statutory responsibility for human resources. However, the Court doesn't spend a lot of time on this point and it is not clear how this line conforms with the rest of the ruling.

I understand that the Faculty Association plans to take this to the Supreme Court. Should be interesting!

What do you think?
Did the Court get it right?
Does the peculiar governance structure of most universities give them special privileges in collective bargaining?
Does the BC Health case have any relevance here?