Charter Challenges: Cancellation of the College Task Force & Back-To-Work Legislation
It was on June 29, 2018, immediately after he became the Premier of Ontario, that Doug Ford decided to cancel the College Task Force, a committee created to address and resolve key issues from the last round of bargaining. As a result, the members of the Task Force filed a Charter challenge regarding this cancellation on September 5, 2018, bringing our Charter challenge count to two. Recall that in 2017, a Charter challenge was filed regarding Bill 178, the back-to-work legislation. The injustice of the cancellation of the Task Force, which was set up to resolve issues that were not resolved after we were unconstitutionally legislated back to work, is obvious.
Both of these charter challenges continue to work their way steadily through the courts. Affidavits and replies have been filed by both sides, and we continue to meet with our legal teams as we eagerly await dates for next steps.
On April 11, 2018, the Ford government announced that 60% (by 2025) of Ontario post- secondary funding would be linked to performance metrics determined by them through the SMA3 process. This is a remarkable jump from the 2-3% proposed by the previous government and raises many concerns for our sector around employment stability and quality of education.
The colleges are expected to have these metrics finalized by Spring 2020 for its implementation beginning in the 2020-2021 academic year.
The funding will be based on ten metrics – nine that are system-wide metrics and one institution-specific metric for colleges:
1. Graduate earnings
2. Experiential learning
3. Skills and competencies
4. Graduate employment
5. Institutional strength and focus
6. Graduation rate
7. Apprenticeship-related metric
8. Innovation: Industry Funding
9. Community / Local Impact
10. Institution-specific Economic Impact Metric
These metrics will be phased in over a three-year period beginning in 2020. In addition, colleges are also required to report on faculty compensation and faculty workload (reporting metrics). These reporting metrics do not affect performance funding.
Colleges that fail to meet the government set targets around these metrics stand to lose a significant portion of their government funding. Further, these measures are likely to have a negative impact on access to education, since students who require more supports aren't likely to be recruited or targeted by colleges concerned with meeting government set retention targets (Institutional strength/focus metric).
The implementation of the new SMA3s may result in serious change to the mandate of the colleges, and a potential violation of the Letter of Understanding in our CA on changes to a college's mandate or objects. The DivEx is consulting with the OPSEU Grievance Department on next steps in this area, while continuing discussions about the SMA3s and its impact with Council through EERC. We will keep you posted on further developments as they arise.
In February 2019, the MTCU invited the DivEx to a very last-minute consultation on the topic of
“Postsecondary Education: Sustainability and Renewal.” While named “faculty renewal”, the
content of the consultation seemed to be related to concerns about the aging PSE workforce
and “pension double dipping”, or in other words, employees who continue to work past 65 and
who also collect pension. In the consultation, the DivEx reiterated that this circumstance is
statistically insignificant in the college system. At the same time, we insisted on the value of
employees over the age of 65, and the fact that faculty often need to work later in their lives
because they begin their careers as professors later (on average at age 42). We also made the point that faculty renewal should be based on hiring more entry level faculty, not getting rid of older ones.
In June 2019, the DivEx met with the Ministry again to offer feedback on their discussion paper on sustainability and renewal. While we respect the government’s move to improve the system, we were deeply concerned by the narrow focus of the MTCU discussion paper. We were also alarmed that the MTCU report stigmatizes older workers. Their focus appeared to be on faculty who work full-time while collecting a pension. As previously mentioned, there are very few members in our system who fall into this category. We offered the Deputy Minister our comments, along with written feedback following the meeting, and asked for a meeting with Minister Romano to address any outstanding concerns or questions he might have. To date, we have not received a reply from Romano.
It appears that this entire misguided process is the government’s attempt to reverse the elimination of mandatory retirement that was enacted back in 2006. All of this is merely a distraction from the real issues facing the post-secondary education system in Ontario. The sustainability and renewal of post-secondary education would be best achieved through the following key actions:
1. Properly fund the public post-secondary education system.
2. Reinstate the Joint Task Force which has a mandate to improve the system.
3. Create full-time, permanent jobs that support the economy and quality education.
4. Ensure that students have access to education, unhampered by funding issues, and recognizing that education is a right.
In 2017, the Bargaining Team worked toward a Letter of Understanding that the parties would meet to discuss making our Collective Agreement compliant with the at-the-time unfinalized Bill 148 Fair Workplaces, Better Jobs Act. Bill 148 eventually did bring many positive changes for workers in Ontario, including equal pay for contract and permanent workers. Unfortunately, the Ford Government’s anti-worker repeal of Bill 148 with Bill 47 left us with few options to try to preserve the gains made by Bill 148 in our CA.
On October 21, 2019, we presented the last two viable issues left after the Bill 148 repeal: vacation pay for partial load faculty and the Employment Standards Act (ESA) personal leaves. In his recent decision, Kaplan did award the explicit inclusion of the ESA leaves into our collective agreement; however, he did not award any additional vacation pay for partial load faculty due to the collective agreement language that states that “A portion of the hourly rate for partial-load teachers is in lieu of vacation pay.” In our next round of negotiations, we will need to address this language and continue to fight for fairness for our contract faculty.
Several OLRB hearings occurred in 2018-2019, where the College Employer Council continued with its relentless delay tactics. One of the most important topics in question at these hearings concerned who belongs to the part-time academic bargaining unit. OPSEU argued that all academic duties are relevant, and thus should count towards determining an individual’s employment status. The Council argued that only teaching contact hours (TCH) should be counted. In late August 2019, the OLRB ruled in favour of Council, stating that only TCH, and not other academic ancillary duties such as coordination or curriculum development, were relevant in considering whether an individual falls within the part-time academic bargaining unit. This decision was a setback to recent arbitration decisions, such as the Parmar/St. Lawrence award, that allowed contract faculty to combine teaching and non-teaching academic work to make the case for sessional 12/24 roll overs. Nonetheless, DivEx sought a legal opinion on the implications of this OLRB decision which suggests that we still have solid ground to continue arguing for all academic work to be considered when determining an employee’s status.
Earlier this year, OPSEU filed a freeze violation against George Brown College in response to the College rolling back personal emergency leave days for non-unionized contract faculty. GBC did this after we filed the certification application to unionize part-time and sessional faculty, effectively changing their working conditions, claiming that they “had to” due to Ford rolling back workers' rights with Bill 47.
We had a hearing at the Ontario Labour Relations Board on October 3, 2019. The union's position is simple: that although this is a fairly unique set of circumstances in that the employment standards legislation changed twice after the certification application was filed in June 2017, the college was nonetheless wrong when it rolled back the personal emergency leave days without seeking the union's consent.
When Bill 148 came into effect January 1, 2018, changes to the Employment Standards Act resulted in enhanced entitlements to all workers, including those in the colleges. Contract faculty enjoyed those enhancements, which the college was obligated to apply, until Fall 2018, when the government passed Bill 47. While the colleges were obligated to apply the enhanced entitlements to the ESA, they were under no obligation to withdraw any of them, and their unilateral exercise of employer discretion in reducing those terms violates the freeze provision of the Colleges Collective Bargaining Act.
We are currently researching cases at Niagara, Fanshawe, and Centennial, where college administrators have unilaterally decided to roll back other enhancements, including wages or planned pay increases. In many cases, the colleges continue to assert that they have been directed by Council to enact these punitive measures, while we have made it perfectly clear that the union will consent, if asked, to changes that actually enhance conditions for contract faculty. OPSEU pressed further on the matter, and on November 4, 2019, Ed Ogibowski, Supervisor of the Organizing Unit at OPSEU, sent an official letter to Graham Lloyd, CEO of College Employer Council, shaming the CEC for its unprofessional and unlawful decision to withhold a scheduled wage increase for part-time faculty at Centennial. In addition, he also provides clear written notice to the CEC that OPSEU fully consents to the wage increase.
We encourage Locals to ask at your Union College Committee meetings, or in any forum where you are meeting with admin at your college, about planned or existing rollbacks to wages or leaves for contract faculty, as well as why they have chosen to reduce working conditions. Sheridan has not yet initiated a roll-back, but they have not committed to keeping it so.
The Feet on the Ground program, run by the Workers’ Action Centre, began in February 2019 and will be concluding in November 2019. The purpose of the program is to train participants to develop leadership and community organizing skills. OPSEU sponsored 3 contract faculty (1 GTA, 2 non-GTA) to participate in this program. These members currently teach at Algonquin College, Niagara College, and Humber/Centennial College. Our participants have successfully held Contract Faculty Info Session presentations at their respective colleges, inviting contract faculty to learn about their rights, and to get the latest update on issues facing precarious workers. As the program begins to wrap up, the DivEx would like to thank our 3 contract faculty for their dedication and courage in participating in this program. It is our hope that they will continue their organizing work at their respective colleges, and that their Locals will continue to support them in their work.
With the new Articles 26.10 D and 26.10 E language in the Collective Agreement, many colleges did not agree with the Union’s interpretation of how the Partial-Load Registry should be implemented. This led to 3 central Union grievances being filed by OPSEU in Fall 2018. Two grievances were heard by Arbitrator Knopf, and in August 2019, ruled upon. The CEC refused to consolidate the third - and arguably most important - Union grievance, which relates to whether priority hiring is based on individual courses or course bundles. While this Union grievance is still in play, we await a ruling on an individual grievance out of Niagara College that deals with the same question.
The first grievance heard by Knopf questions the issue of the Registry itself: who maintains it, what information must be in it, and what information must be shared? The ruling says that the Colleges must maintain the Registry. The Registry must include all courses taught by partial- load faculty as of October 2017, regardless of their status when they taught the course (part- time, partial-load, full-time, sessional). In other words, courses that are taught while on part- time status must be recorded in the Registry as well. For courses taught prior to October 2017, the Colleges are not required to import faculty’s teaching history. If faculty can demonstrate that they have taught a specific course prior to October 2017, then it will also count as a previously-taught course in the Registry.
While the College is responsible for keeping and maintaining the Registry, it has no obligation to provide the Union with the copy of the Registry. However, Knopf strongly encourages the College to provide specific information on individual cases when requested by the Union, in order to quickly resolve matters rather than moving through the grievance process.
The second grievance heard by Knopf questions whether courses taught by a partial-load member while not in partial-load status should have any priority hiring rights. While Knopf stresses the value in hiring someone who has previously taught the course, she declares that it cannot be possible for someone who is not in the bargaining unit (part-time/sessional faculty) to gain any type of partial-load rights. Even though a registered partial-load employee who only taught the course as a part-time faculty would have no hiring rights for that course, Knopf emphasizes that it would be prudent for the College to hire that individual over someone else with no course experience.
While this ruling provides some guidance to locals, many nuances still exist, and the full shape of the Registry will be clearer when we get a decision on the so-called bundling question. If your local is seeing a trend in hiring practices that violate the Registry, please let your DivEx member know.
The Division currently has 2 strong academic freedom cases scheduled for arbitration. The first, out of Humber College, considers a faculty member’s academic freedom rights in relation to a student’s final grade and the processes by which their final grade is determined. Does the college have the right to unilaterally assign a passing grade, without consulting the professor, even though the student has committed several academic infractions? Can the college violate its own Academic Regulations in hopes of passing a student? Does the college have discretion to award a student a passing grade without any clear policy in place to do so? Hearing dates on this case are scheduled into 2022.
The second case, out of Centennial College, concerns a faculty member’s academic freedom as it relates to professional development activities. In addition, it questions who has the authority to decide academic activities during non-teaching periods and the limits that can be imposed on the employer’s demand to schedule their own activities during 11.08 time. This case was heard on November 7, 2019.
The DivEx is continuing to work with OPSEU legal and assisting Locals in putting forth strong academic freedom cases. If you think you may have an academic freedom case, please contact the DivEx immediately so that we can provide you the best support possible.
Given the Ford government's announcement that 60% of post-secondary funding will be linked to performance metrics, the DivEx is suggesting that Locals convene a meeting of their College Employment Stability Committee (CESC) to proactively gather information, and plan for mitigating any negative impact to faculty.
By starting these conversations now via the CESC process, which is well within the scope of Articles 27 and 28, we stand a chance of shaping the outcomes at our colleges.
The DivEx recommends CESC rather than UCC as the mechanism for these conversations because of the inherent timelines of the CESC. For example, as per Article 27.05 (iii), if a member of the CESC requests a meeting within 3 calendar days of the CESC process being initiated, the committee shall meet within 7 calendar days to discuss the planned staff reduction, the circumstances giving rise to it etc. Through CESC, these conversations will stay on track, meetings will occur regularly, and we will receive information in a timely manner from our colleges.
CESC discussions will also give us the opportunity to ask our colleges about their budgets and how they plan to address this potential funding shortfall. If you are unfamiliar with your college's budgeting process, use the CESC meetings to have them explain it.
The depth and breadth of knowledge from our Local leaders across the 24 college is immense. This, we have seen in action at our Divisional Meetings and Educationals, through the mentorship shared in our Google Groups, and through the committee work that individuals participate in on behalf of the Division throughout the year. What we have lacked is a way to amalgamate and share information about our Division, including useful tools and resources available to locals that new leaders would benefit from. Thus was born the Introduction to OPSEU and CAAT-A manual, or the College Faculty manual for short. The DivEx hopes that this manual will help facilitate new CAAT-A leaders transitioning into their roles by offering structured information about our Division, our members, and the resources available to all Locals. This manual can be used as a quick-access guide for information, as a tool for building local capacity, as well as to facilitate internal organizing through member education.
This manual is a living document and will be updated annually to reflect the changing landscape of our Division. At the request of the Local, a DivEx member can meet with your local to provide a more detailed walkthrough of the manual. Special thanks to DivEx member Pearline Lung for spearheading this project.
There are many more issues on the radar that DivEx is aware of and working on, including: