Welcome!
This is my personal blog on labour and employment law. It is intended to be a resource for both my students at the Centre for Industrial Relations and Human Resources at the University of Toronto and for those generally interested in the subject. Over the next few weeks, there will be some changes and additions to the site as I retool it a little bit. Thanks for following!
Cheers,
Mikael Swayze
Tuesday, June 18, 2013
Monday, November 28, 2011
Waiting for Fairness
On November 17, the Supreme Court of Canada ruled in a major case involving pay equity first filed by the Public Service Alliance in 1983. The Supreme Court’s rare unanimous ruling from the bench (with reasons to eventually follow) overturned the Federal Court decision from 2010 and ordered Canada Post to make pay equity payments amounting to approximately $150 million to employees who worked in the clerical group of employees between 1982 and 2002. The issue concerned the fact that employees in the primarily female Clerical and Regulatory Group were paid less than employees in the primarily male Postal Operations Group.
The Union brought the complaint in August 1983 because the employees in the primarily male postal operations group were receiving wages up to 58% higher than those employees in the primarily female clerical group for work of equal value. The issue involved in pay equity is the issue of historical “group discount” on the basis of protected human rights grounds. So, in this case, although the value of the work of the two groups of workers was the same, the workers in the primarily female job class were paid much less because they were primarily female.
In the 1980s and 1990s a couple of comprehensive job evaluations were done in order to
determine whether the work was of equal value. In determining “value”, employers, unions, tribunals and courts use a “composite of the skill, effort, and responsibility required in the performance of the work, and the conditions under which the work is performed.” The job evaluations determined that the work performed by these two groups was of equal value even though the pay for the primarily female job class was much lower.
determine whether the work was of equal value. In determining “value”, employers, unions, tribunals and courts use a “composite of the skill, effort, and responsibility required in the performance of the work, and the conditions under which the work is performed.” The job evaluations determined that the work performed by these two groups was of equal value even though the pay for the primarily female job class was much lower.
Because of the length of this dispute, in many cases the estates of these women will be receiving their pay equity adjustments.
Unfortunately, the Conservative government in Ottawa in 2009 stripped the Canadian Human Rights Tribunal of the authority to inquire into pay equity matters in the federal public service through the passage of the Public Sector Equitable Compensation Act.
The new act adds the following considerations to a pay equity complaint: “an employer’s recruitment and retention needs, the qualifications required to perform the work, and the market forces affecting employees with those qualifications.” The preamble to the act also has a nod to the fact that Canada is a market economy.
Of course, the problem is that inequitable wages, that is, unequal pay for work of equal value, emerges naturally in a market economy. The problem of systemic discrimination in the labour market is found in the creation and maintenance of wage structures that reflect a systemic undervaluing of women’s work because it is work primarily performed by women. Because the market cannot remedy a systemic undervaluing of certain kinds of work is precisely why a pay equity system is needed in the first place. The current situation for federal employees, in which pay equity is to be dealt with in collective bargaining and then through a complaint to the Public Service Labour Relations Board which will consider market conditions is terribly unlikely to achieve pay equity in the public service.
This case, which consumed more than 400 working days of human rights hearings between 1992 and 2003, demonstrates that Canadians need a better system for arriving at pay equity. It is, or should be, unacceptable that wage differences grounded primarily in gender stereotypes continue to persist in the Canadian labour market. Moreover, it is entirely unreasonable to expect Canadians to wait 28 years to resolve this kind of a dispute. Canada needs a new, and faster, system of pay equity. Twenty-eight years is too long to wait.
What do you think about pay equity? Did the Court get it right here? Should we have a better system?
Friday, June 3, 2011
Summertime and the livin’ is easy - unless you're an Ontario farm worker
As we all get ready for summer and the wonderful fruits and vegetables grown in Ontario, it is important to think about the labour conditions and rights of Ontario farm workers. While many people have idealized conceptions of the “family farm”, the modern reality is that most agricultural enterprises are large industrial businesses operating year round. Greenhouse and mushroom facilities in particular are far more akin to manufacturing plants than they are to ‘Old Macdonald’. Currently there are no unionized farm workers in Ontario because they have been legislatively prevented from joining unions and engaging in collective bargaining.
On April 29 the Supreme Court of Canada handed down its long-awaited ruling pertaining to farm workers’ collective bargaining rights in Ontario. The decision in Fraser addressed the constitutionality of the provincial Agricultural Employees Protection Act (AEPA). The Court found that the Act was constitutional only by engaging in judicial gymnastics and reading into the legislation provisions that substantially alter it. At the same time, the constitutional protection for freedom of association has been watered down.
Workers on the increasingly industrialized farmscape of southern Ontario have been seeking to bargain collectively for decades. Ontario and Alberta are the only provinces to prohibit collective bargaining for farm workers. Seemingly all other provinces are able to extend collective bargaining rights to farm workers without creating chaos on the farm. This anomalous situation was rectified in 1994 when the NDP government enacted the Agricultural Labour Relations Act (ALRA), extending trade union and collective bargaining rights to farm workers. Sadly, the following year the new Conservative government repealed the ALRA thereby excluding farm workers from collective bargaining rights. This repeal was challenged on the basis that excluding workers from collective bargaining violates the freedom of association contained in s. 2(d) of the Charter of Rights and Freedoms. In Dunmore, the Court agreed that this repeal was unconstitutional. In response, the Conservative government enacted the Agricultural Employees Protection Act.
This latter Act allows agricultural workers the right to form associations and to make representations to employers. Employers must listen to the representations. However, on the face of the Act there is no requirement to engage in good faith discussions or negotiations. There is certainly no acknowledgement of majoritarian exclusivity (i.e., the requirement to recognize the union selected by the majority as the sole and exclusive collective bargaining agent), nor a requirement to come to an agreement, nor any process for dealing with an impasse.
Subsequent to the adoption of the AEPA, workers at the Rol-land Farms Limited mushroom factory in Kingsville asked the United Food and Commercial Workers’ Union to represent them. More than 70% of the 200 workers employed signed union cards. In a secret ballot vote held pursuant to the Labour Relations Act, 75% voted in favour of the Union as their agent. In response, Rol-land created a company led “employees’ association” and refused to meet the Union. They informed their workers that the Union would never be recognized. They refused to respond to a request from the Union to meet.
At the same time, workers at Platinum Produce, an industrial greenhouse in Chatham, also asked the UFCW to represent them. The Employer agreed to meet the Union. This meeting lasted 15 minutes. The Union followed up with written proposals for a collective agreement. That meeting lasted 5 minutes. Platinum Produce has not responded to the proposals nor made any other communications regarding terms and conditions of work.
As a result, UFCW took the government to court alleging that the AEPA violated section 2(d) of the Charter, freedom of association.
While Fraser was making its way through the court system, the Court issued an important ruling in BC Health. The BC Health ruling made it clear that freedom of association includes “a process of collective action to achieve workplace goals....[requiring] the parties to meet and bargain in good faith on issues of fundamental importance in the workplace” In addition, the Court found that employees’ constitutional right to collective bargaining “imposes corresponding duties on the employer. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation.”
Clearly neither Rol-land nor Platinum engaged in any kind of good faith discussions. One reason is the AEPA itself does not require, at least on its face, anything other than listening to representations. In fact, as Abella, J states in her withering dissent, “we find that the following language is missing in action: ‘negotiate’, ‘meet’, ‘good faith’, ‘engage’, ‘exchange’, ‘dialogue’, ‘consultation’, ‘consideration’, ‘accommodation’, and ‘union’. Nor does the key work ‘bargaining’ appear.”
The Court made the AEPA square with the Charter by implying or reading into the Act’s provisions a requirement of employers to consider and discuss employee representations in good faith. According to the Court, the parties must engage in “meaningful dialogue” because this is a derivative right required to give meaningful expression to the constitutionally protected freedom of association.
The Court was reluctant to find that the AEPA was unconstitutional because the Union had not taken its complaints to the Agriculture, Food and Rural Affairs Tribunal. The Court argued that until the Tribunal has an opportunity to rule on matters like “meaningful dialogue” and make remedial orders, the Court cannot ascertain that the AEPA violates section 2(d).
What does this ruling mean for agricultural workers in Ontario? Likely, very little. The real test of the AEPA will come when complaints are filed to the Tribunal. If the Tribunal imposes on employers an obligation to meet the Union, to engage in negotiations in good faith, we may see some improvement. However, the fact is that the Act, even on the Court’s read, still permits employers to deal with multiple representatives (including “company unions”), does not require the parties to attempt to reach an agreement and does not provide a process to resolve impasses. These are all vital parts of any viable labour relations regime.
As you flip your marinated portabella mushroom on the BBQ, think about the fact that the workers who grew that mushroom are condemned to live in a 19th century labour relations regime solely because their factory is deemed “agricultural.” You should also consider the fact that a large portion of farm workers in Ontario are also oversees migrant workers denied many of the basic benefits and protections of Canadian workers. If most farm workers from the Annapolis Valley to the Okanagan are able to form unions, why can’t the folks in Kingsville and Chatham? I think the Court here got it wrong. What do you think?
The Fraser decision is a pull back from the more courageous decisions in Dunmore and BC Health. I fear that the Court has substituted “paper rights” for real rights which will thus leave unprotected some of the most vulnerable workers in our economy.
On April 29 the Supreme Court of Canada handed down its long-awaited ruling pertaining to farm workers’ collective bargaining rights in Ontario. The decision in Fraser addressed the constitutionality of the provincial Agricultural Employees Protection Act (AEPA). The Court found that the Act was constitutional only by engaging in judicial gymnastics and reading into the legislation provisions that substantially alter it. At the same time, the constitutional protection for freedom of association has been watered down.
Workers on the increasingly industrialized farmscape of southern Ontario have been seeking to bargain collectively for decades. Ontario and Alberta are the only provinces to prohibit collective bargaining for farm workers. Seemingly all other provinces are able to extend collective bargaining rights to farm workers without creating chaos on the farm. This anomalous situation was rectified in 1994 when the NDP government enacted the Agricultural Labour Relations Act (ALRA), extending trade union and collective bargaining rights to farm workers. Sadly, the following year the new Conservative government repealed the ALRA thereby excluding farm workers from collective bargaining rights. This repeal was challenged on the basis that excluding workers from collective bargaining violates the freedom of association contained in s. 2(d) of the Charter of Rights and Freedoms. In Dunmore, the Court agreed that this repeal was unconstitutional. In response, the Conservative government enacted the Agricultural Employees Protection Act.
This latter Act allows agricultural workers the right to form associations and to make representations to employers. Employers must listen to the representations. However, on the face of the Act there is no requirement to engage in good faith discussions or negotiations. There is certainly no acknowledgement of majoritarian exclusivity (i.e., the requirement to recognize the union selected by the majority as the sole and exclusive collective bargaining agent), nor a requirement to come to an agreement, nor any process for dealing with an impasse.
Subsequent to the adoption of the AEPA, workers at the Rol-land Farms Limited mushroom factory in Kingsville asked the United Food and Commercial Workers’ Union to represent them. More than 70% of the 200 workers employed signed union cards. In a secret ballot vote held pursuant to the Labour Relations Act, 75% voted in favour of the Union as their agent. In response, Rol-land created a company led “employees’ association” and refused to meet the Union. They informed their workers that the Union would never be recognized. They refused to respond to a request from the Union to meet.
At the same time, workers at Platinum Produce, an industrial greenhouse in Chatham, also asked the UFCW to represent them. The Employer agreed to meet the Union. This meeting lasted 15 minutes. The Union followed up with written proposals for a collective agreement. That meeting lasted 5 minutes. Platinum Produce has not responded to the proposals nor made any other communications regarding terms and conditions of work.
As a result, UFCW took the government to court alleging that the AEPA violated section 2(d) of the Charter, freedom of association.
While Fraser was making its way through the court system, the Court issued an important ruling in BC Health. The BC Health ruling made it clear that freedom of association includes “a process of collective action to achieve workplace goals....[requiring] the parties to meet and bargain in good faith on issues of fundamental importance in the workplace” In addition, the Court found that employees’ constitutional right to collective bargaining “imposes corresponding duties on the employer. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation.”
Clearly neither Rol-land nor Platinum engaged in any kind of good faith discussions. One reason is the AEPA itself does not require, at least on its face, anything other than listening to representations. In fact, as Abella, J states in her withering dissent, “we find that the following language is missing in action: ‘negotiate’, ‘meet’, ‘good faith’, ‘engage’, ‘exchange’, ‘dialogue’, ‘consultation’, ‘consideration’, ‘accommodation’, and ‘union’. Nor does the key work ‘bargaining’ appear.”
The Court made the AEPA square with the Charter by implying or reading into the Act’s provisions a requirement of employers to consider and discuss employee representations in good faith. According to the Court, the parties must engage in “meaningful dialogue” because this is a derivative right required to give meaningful expression to the constitutionally protected freedom of association.
The Court was reluctant to find that the AEPA was unconstitutional because the Union had not taken its complaints to the Agriculture, Food and Rural Affairs Tribunal. The Court argued that until the Tribunal has an opportunity to rule on matters like “meaningful dialogue” and make remedial orders, the Court cannot ascertain that the AEPA violates section 2(d).
What does this ruling mean for agricultural workers in Ontario? Likely, very little. The real test of the AEPA will come when complaints are filed to the Tribunal. If the Tribunal imposes on employers an obligation to meet the Union, to engage in negotiations in good faith, we may see some improvement. However, the fact is that the Act, even on the Court’s read, still permits employers to deal with multiple representatives (including “company unions”), does not require the parties to attempt to reach an agreement and does not provide a process to resolve impasses. These are all vital parts of any viable labour relations regime.
As you flip your marinated portabella mushroom on the BBQ, think about the fact that the workers who grew that mushroom are condemned to live in a 19th century labour relations regime solely because their factory is deemed “agricultural.” You should also consider the fact that a large portion of farm workers in Ontario are also oversees migrant workers denied many of the basic benefits and protections of Canadian workers. If most farm workers from the Annapolis Valley to the Okanagan are able to form unions, why can’t the folks in Kingsville and Chatham? I think the Court here got it wrong. What do you think?
The Fraser decision is a pull back from the more courageous decisions in Dunmore and BC Health. I fear that the Court has substituted “paper rights” for real rights which will thus leave unprotected some of the most vulnerable workers in our economy.
Wednesday, February 23, 2011
TTC Essential Services - constitutional? wise?
Yesterday, Charles Sousa, Minister of Labour for the Province of Ontario, introduced Bill 150, Toronto Transit Commission Labour Disputes Resolution Act, 2011. The Province has acted on a request from municipal council to declare all TTC employees essential workers and to deprive them all of the right to strike in all circumstances. Maybe it is just my old constitutional law class with Professor (now Madame Justice) Swinton causing me to think about this twice.
Now that the right to collective bargaining (and possibly strikes) has been constitutionalized (in accordance with the ruling in BC Health), the Court is going to apply the standard section 1 test. And blanket bans tend to run afoul of section 1. Every worker at the TTC is deprived of his/her right to strike according to this bill. Drivers, ticket collectors, maintenance workers, trades, secretaries, cleaners, etc. are all essential workers in the eyes of the government. The section 1 test is as follows: the measure must be rationally connected to pressing and substantial objectives, must minimally impair the right and the impairment must be proportional. I cannot see how the government can meet that test.
In addition, the transit workers' union, ATU 113 had voluntarily offered to submit outstanding matters in the upcoming round of bargaining to binding arbitration in order to allow full consultation. Yet, the Government has acted unilaterally once the City indicated that it desired the legislation.
The failure to consult with worker representatives was one of the things that ticked off the Supreme Court in BC Health. I think the Court is going to be equally confused by the failure of the City and the Government to take the Union up on its offer so as to allow more consultation.
Readers, what do you think?
For me, I don't believe that the TTC is essential for the preservation of health, safety or public order. Those are the essential criteria under ILO jurisprudence for depriving workers of the right to strike. That is why hospital workers, for instance, do not have the right to strike. Interestingly, ambulance drivers in Ontario are not all essential workers. Rather, there is an essential services regime in which some ambulance workers must continue during a strike. SO, the Government is saying that TTC workers - all of them - are more essential to health, safety and public order than ambulance workers. Interesting.
Second, I don't think that the Government will be able to show that the complete ban on strikes meets the section 1 test.
Third, I think the Court is going to be annoyed that the Government moved with such haste and failed to engage in any meaningful consultation. Rather, the City asked and the Province legislated. Surely, that is going to raise concerns.
So, I think that a Court challenge would likely find the legislation to be unconstitutional.
If that is the case, why would the Government proceed? It can't be wise to deliberately enact legislation that will be overturned and in so doing poison labour relations. I think the Government has done so in order to allow the Court to be the one that says "no" to Toronto's new mayor. The Liberals are facing an election in a few months and smart money says they don't want to annoy a popular newly elected mayor of Toronto. Liberals need Toronto seats in order to retain office.
What do you think?
Now that the right to collective bargaining (and possibly strikes) has been constitutionalized (in accordance with the ruling in BC Health), the Court is going to apply the standard section 1 test. And blanket bans tend to run afoul of section 1. Every worker at the TTC is deprived of his/her right to strike according to this bill. Drivers, ticket collectors, maintenance workers, trades, secretaries, cleaners, etc. are all essential workers in the eyes of the government. The section 1 test is as follows: the measure must be rationally connected to pressing and substantial objectives, must minimally impair the right and the impairment must be proportional. I cannot see how the government can meet that test.
In addition, the transit workers' union, ATU 113 had voluntarily offered to submit outstanding matters in the upcoming round of bargaining to binding arbitration in order to allow full consultation. Yet, the Government has acted unilaterally once the City indicated that it desired the legislation.
The failure to consult with worker representatives was one of the things that ticked off the Supreme Court in BC Health. I think the Court is going to be equally confused by the failure of the City and the Government to take the Union up on its offer so as to allow more consultation.
Readers, what do you think?
For me, I don't believe that the TTC is essential for the preservation of health, safety or public order. Those are the essential criteria under ILO jurisprudence for depriving workers of the right to strike. That is why hospital workers, for instance, do not have the right to strike. Interestingly, ambulance drivers in Ontario are not all essential workers. Rather, there is an essential services regime in which some ambulance workers must continue during a strike. SO, the Government is saying that TTC workers - all of them - are more essential to health, safety and public order than ambulance workers. Interesting.
Second, I don't think that the Government will be able to show that the complete ban on strikes meets the section 1 test.
Third, I think the Court is going to be annoyed that the Government moved with such haste and failed to engage in any meaningful consultation. Rather, the City asked and the Province legislated. Surely, that is going to raise concerns.
So, I think that a Court challenge would likely find the legislation to be unconstitutional.
If that is the case, why would the Government proceed? It can't be wise to deliberately enact legislation that will be overturned and in so doing poison labour relations. I think the Government has done so in order to allow the Court to be the one that says "no" to Toronto's new mayor. The Liberals are facing an election in a few months and smart money says they don't want to annoy a popular newly elected mayor of Toronto. Liberals need Toronto seats in order to retain office.
What do you think?
Tuesday, February 22, 2011
The Emperor's New Clothes - there is no public wage restraint in Ontario
Back in March 2010, the Government of Ontario solemnly announced a program of public sector wage restraint. What the Government did do was to legislate a freeze on non-collectively bargained wages for 2 years.
However, the Government then engaged in a process of "moral suasion" with public sector unions. In essence, the Government politely asked unions to take 2 years of zero increases and also instructed public sector employers that no additional resources would be coming to fund any increases above zero. The Government in addition asked arbitrators to adhere to these "guidelines." I have already blogged about some of the arbitration awards here and here.
Many public sector unions have also engaged in collective bargaining and achieved non-zero wage increases. Although these increases are lower than in previous years, they are nonetheless actual increases (although private sector increases are higher than public sector increases).
The Society of Hydro Professionals (engineers, scientists and professionals at Ontario Power Generation) has recently won an interest arbitration which is the latest nail in the Government's wage restraint coffin. The award by Kevin Burkett excoriates the Government's wage restraint policy in the body of the award.
Here is what he says about the effect of these non-statutory calls for wage restraint:
It should come as no surprise that the parties made very little progress in direct two-party negotiation. Once OPG made it known that it was seeking a zero net compensation agreement and that it would be maintaining that position throughout, there was no reason for the Society to moderate its position or to seriously consider the OPG demands designed to improve the efficiency of its operations. The effect of the Government pronouncement and its direction to OPG was to "freeze" the bargaining and thereby to prevent the parties from either moving to an agreement or at least prioritizing their respective bargaining positions. In the result, an inordinate number of issues have been put into dispute before me.
Of course this is the result. True negotiations cannot occur if the parties are not free to make appropriate decisions. In this case, the Government's unilateral decision that employees of this profitable Government-owned corporation were not entitled to any wage increases effectively derailed any meaningful negotiations.
In the end Arbitrator Burkett awarded the union 3% annual increases in a 2 year contract, granted a break-through benefit increase (for dental implants where the dentist recommends them), leave for Canadian Forces veterans or members on Remembrance Day, enshrined the right of employees to carry forward vacation days, allowed for averaging of overtime over a longer period among other provisions.
Clearly it is time to say that the Emperor has no clothes. There is no wage restraint. Collective bargaining is proceeding as normal and arbitrators are making awards as normal. The only effect of the Government's continued pretense at wage restraint is that it makes bargaining harder and may tend towards more impasses in negotiations. In fact, the result may be an increase in strikes. Surely, this was not the Government's intent.
Readers, what do you think?
Has there been effective wage restraint?
Was it clever for the Government to rely on "moral suasion"?
What should the Government do now?
I think that the best way forward is for the Government to make its decisions on transfer payments and formally abandon any attempt at wage restraint. Allow employers and their employees to freely bargain deals that work for them in the actual circumstances facing local employers and unions. But, that is just my opinion. Yours?
Monday, February 14, 2011
Public sector union rights under threat in Wisconsin
Yes...if you can believe this story, Wisconsin governor Scott Walker has announced a war on collective bargaining rights unprecedented in 21st century North America. On Februar 11, Governor Walker called a special session of the state legislature and proposed a budget bill that strips collective bargaining rights from nearly two hundred thousand Wisconsin public workers.
The bill, going to a vote on Thursday:
- forces public workers to recertify unions annually
- prohibits employer deduction and remittance of union dues
- allows employees to opt out of union dues
- prohibits collective bargaining on issues outside of wages
- limits wage increases to cost of living unless voters pass a referendum to the contrary
- limits collective agreements to one year in duration
- prohibits contract employees from participation in benefits and pension plans
- strips all collective bargaining rights from home care workers, child care workers, University of Wisconsin Health Centre employees, University of Wisconsin faculty and staff
Oh...and cops and firefighters are exempt from these changes......
I cannot fathom a modern North American government stripping hundreds of thousands of workers of their right to collectively bargain, but then again I don't live in Wisconsin.
Readers, what do you think of this bill? In the Great White North (i.e., Canada) such a bill would run afoul of constitutional guarantees of freedom of association. In the US, there is no similar constitutional protection. It almost makes me think of Jean Lesage's famous "the Queen does not negotiate with her subjects."
Should public employees have the same rights as private employees to bargain collectively?
Does the state have the right to impose limits on public employee collective bargaining agreements?
Is this different than legislation ordering workers back to work following a strike?
What do you think the reaction among public sector workers is likely to be?
Thursday, December 2, 2010
Arbitrator rules out "shutdown" as a way of cutting salary
On April 24, 2009, Lakehead University in Thunder Bay, Ontario announced there would be a four-day shutdown in December 2009 resulting in a corresponding reduction of pay for all non-essential employees. The Faculty Association grieved and Arbitrator Devlin has recently allowed the grievance and ordered the University to repay the lost faculty wages.
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.
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.
I think the arbitrator got it right. Do you? Join the conversation!
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