The Association brought evidence from faculty members about the kind of work they do for the university. It was clear from the evidence that faculty members receive an annual salary and are expected to teach, conduct research and fulfill administrative responsibilities. Faculty members are not paid on an hourly basis and have a great degree of control over scheduling of their working lives. The consistent evidence from the faculty members was that they had duties expected of them in return for which they received their salaries. However, their duties were, with rare exceptions (teaching schedules for instance), not tied to attendance at the Employer's place of business on specific days. Faculty members also testified that December is a very busy month because of the administrative requirements for grade submission for fall courses and course preparation for courses commencing in January amongst other necessary duties.
The University's position was that it was in a state of "crisis" and that the Administrative Executive Committee made a decision that a four-day shutdown in December 2009 "would satisfy the requirement for a balanced budget and have the least impact on operations." The Collective Agreement sets out a process for layoffs in the event that a bona fide crisis exists. However, the University's evidence was that this was not a bona fide financial crisis affecting the long-term well-being of the University. Hence, those provisions in the Collective Agreement were not followed.
The Association grieved the shutdown and met with the University Administration in an attempt to explore alternatives. In these discussions, the Administration admitted that an enrollment increase of merely 100 students would obviate the necessity for a shutdown.
At arbitration, the Employer took the position that the arbitrator was without jurisdiction because the Lakehead University Act vests authority to operate and manage the University in the hands of the Board of Governors. The arbitrator rejected this claim and, instead, interpreted the Collective Agreement on the basis of the fact situation before her.
In reviewing the Collective Agreement, Arbitrator Devlin came to the conclusion that "the collective agreement provides for the payment of annual salary and...makes no reference to regular daily or weekly hours for faculty members." The arbitrator acknowledged that faculty members often work at times that the employer is closed and often work off-site as well. Faculty members receive no extra compensation for any of this additional work.
Faculty members are expected to manage their time, to fulfill the
responsibilities set out in the collective agreement and to record their
activities in a report which they file annually with the Dean in return for
which an annual salary is paid.
The arbitrator concludes by finding that the University was barred from reducing the salary of faculty members during the shutdown. Her analysis entirely turns on the fact that faculty members are paid an annual salary for annual duties. While the University clearly can determine when the doors are open and closed, this cannot have the effect of reducing a faculty member's pay.
This is a significant decision in the academic sphere. Industrial facilities frequently use shut-downs in order to impose effective reductions in annual wages and salaries. However, in those cases, employees are paid on an hourly basis and the ability of an employer to change the hours of operations turns into an ability to change the annual remuneration of employees. Salaried workers with significant control over their working lives are in a different situation. Since their pay does not relate to attendance at the employer's place of business at certain times, their wages cannot be reduced through the mechanism of control over operating hours.
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