Faculty bargaining rights at risk?

A decision on a policy grievance released last year by BC Arbitrator David McPhillips puts at risk provisions in Faculty/Instructor Collective Agreements dealing with evaluation, workload, tenure and promotion.

The policy grievance was brought by the UBC Faculty Association subsequent to the UBC Vancouver Senate’s adoption of a Policy on Student Evaluation of Teaching. The University’s position, upheld by the arbitrator, was that the Collective Agreement was only binding on the Board of Governors and not the Senate. Therefore, Senate policy could override a signed Collective Agreement. Almost all Canadian universities have bicameral governance enshrined in their governing statutes. Hence, this ruling will likely be influential across Canada. The Faculty Association is appealing the ruling to the BC Court of Appeal this Fall.

The University Act provides that the University consists of “a chancellor, a convocation, a board, an Okanagan senate, a Vancouver senate, a council and faculties.” The UBC Board of Governors is the sole part of the University corporation which has the authority to enter into Collective Agreements and appoint members of the teaching staff. The Senate has general authority over academic matters and is statutorily barred from being a party to a Collective Agreement.

In May 2007, a new Policy on Student Evaluation of Teaching was adopted by the UBC Senate. This policy was introduced without consultation with the Faculty Association . The Policy ran afoul of certain provisions in the Collective Agreement that protected faculty rights in evaluation and ensured that consultation would occur prior to any such new policy.

The University’s position was that the Senate had the sole statutory authority over the “quality of academic performance” at UBC. Further, the University asserted that the Board could not enter into a contract in an area of exclusive Senate responsibility and the Senate could not enter into any agreement whatsoever.

The Faculty Association’s position was that the Collective Agreement is with the University of British Columbia, a body corporate with multiple component parts. Hence, any Senate policy that conflicted with the Collective Agreement (or adopted in contravention of the CA) could not prevail. Moreover, the Collective Agreement is executed by the President of the University on behalf of the University as a whole.

The concern of the Faculty Association is clear. Evaluations of teaching form part of the review for tenure and promotion. Protecting that process is a core concern of any faculty association.
Unfortunately, the Arbitrator upheld the University’s position and concluded that any Senate policy affecting academic matters would override any Collective Agreement provision to the contrary. Speaking on behalf of university faculty, Brenda Austin-Smith, President of the University of Manitoba Faculty Association, observed: “If the arbitrator’s position is upheld, it is possible that university Board of Governors across the country could sign off on Collective Agreements with provisions that their Senates could then overrule.”

The outcome of the appeal this October will be watched by faculty associations and universities across the country.

Should we be concerned about the labour relations consequences of the pending ruling?