Bill 148 and the Employer’s Latest Offer (#2)

Yesterday’s post concerned (amongst other things) the desirability of having the two bargaining teams explicitly assert in our Collective Agreement the importance of equity for Partial-Load faculty, and having them negotiate the implementation of Bill 148’s terms into our Collective Agreement, to the fullest degree possible.  Desirable, at least, in comparison with the Employer’s offer a) to say nothing about Bill 148, b) to make no effort whatsover to effect the kind of equity that Bill 148 is designed to legally enshrine, and c) to have all issues about how to implement such provisions (in the event that the legislation passes) to a board of arbitration, in a time-consuming formal process.

Our most dedicated correspondent responds, claiming that my…

…idea “that the College is unwilling to provide pay equity to contract faculty only a) under the force of legislation, b) to the minimum degree required by that legislation, and c) only to the further degree (and only at the time) determined at the end of an arbitral process” is not “uncharitable.” It defines the way the employer behaves with respect to all issues from salary and and working conditions to matters of pedagogy and curriculum control.

The only possible good that might come from arbitration lies in the fact that arbitrators have occasionally sided with workers as, for example, in the case of compelling colleges to open up a few more full-time positions – something local management is now claiming as a sign of its generosity and good faith, after fighting against such initiatives for decades.

Looking forward to fair arbitration results, however, doesn’t alter the fact that securing any such results would be costly. time-consuming and far from a certainty. Maybe the employer is just looking forward to a change in government on or before the scheduled election date of June 7, 2018 and is putting as many of its eggs as possible into Patrick Brown’s basket.

 

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Bill 148 and The Employer’s Latest Offer

First things first: The Employer now has a new Academic Bargaining Update out – I find it rather remarkable on many levels, and I look forward to writing about it soon. Feel free pre-empt me by offering your thoughts on it, in the meantime.

So, it appears that the latest series of face-to-face “negotiations” between the College Faculty (i.e., OPSEU CAAT-A) and College Management (i.e., the College Employer Council) bargaining teams ended recently, and I believe that leaves off meetings until late September, as we near the expiry of the Collective Agreement on September 31.

Now, it seems that my last post may have already been out of date by the time it was published, as the Employer has already presented a new offer once the previous one expired uneventfully.

Now, perhaps I could be forgiven for not knowing that there was a new offer on the table, given that it was presented with, um, minimal fanfare, and little explanation of how this new offer was better than the last one, which had been rejected by the Union’s bargaining team.

Now one possible reason for the absence of that explanation is the fact that the new offer is virtually identical to the last one, in all but one respect – that one being the subject of my last post.

With an eye to the impending passage of Bill 148 (which is designed to improve conditions for part-time or temporary workers, and would enshrine principles of equal pay for those workers), the Employer’s original “public” offer contained a provision that disputes about how to implement the provisions of Bill 148 into the Collective Agreement over the next four years would be subject to arbitration, with the understanding that all changes would be revenue-neutral to the Colleges.

That revenue-neutral language has been removed.

As a consequence of this change, if there were a dispute about how a recently-passed Bill 148 needed to be applied to our Collective Agreement, both sides would still need to resort to arbitration, but the arbitrator would not be obliged to work off the presumption that both sides agreed that any changes should present no additional costs to the employer.

So the revenue-neutrality “agreement” is off the table, but the arbitration provision is still in the new offer, and that’s not insignificant. Certainly, both sides could be at the bargaining table, negotiating what “equal pay for equal work” means in the context of our Collective Agreement. Instead, the offer remains mute on how Bill 148 would be implemented into the Collective Agreement, and dictates that all eventual disputes on the issue would be referred to arbitration.

Needless to say, this introduces a considerable measure of uncertainty regarding what benefit, if any, contract faculty might gain from the passage of Bill 148. It also means that, in the event of disputes following Bill 148, an entire arbitration process would needed to resolve every single conflict – a process that could include preliminary disputes about standing, the scope of the law, and proper procedure.

Note that this process is proposed by the Employer instead of taking the time to ensure  that the Collective Agreement already incorporates the principles of equity for contract faculty, or even (in the face of legislative uncertainty) the time to negotiate at the bargaining table a common understanding of the principles that ought to inform the application of Bill 148 to the Collective Agreement (the College already took the first step to doing that when it introduced the initial “revenue neutral” clause–a further step might involve, um, negotiation).

Back to the College’s proposal to refer all disputes about equity to arbitration: Arbitration is a time-consuming process, and it might be worth taking a moment to look off into the middle-distance, and consider why the Employer would prefer to punt all issues associated with a drafted piece of legislation, rather than negotiate such details at the table, so that both sides could confidently be on surer footing.

Since the Employer hasn’t yet provided any explicit rationale for why contract faculty should be denied the kind of rights that Bill 148 proposes to provide, I can really only come up with two explanations for why the Employer is so insistent upon its current position (i.e., do nothing to incorporate the principles of Bill 148 before it becomes law; refer all disputes to arbitration after):

1. The Employer is relying on the possibility that Bill 148 won’t become law, in its current form.

2. The Employer believes that it would fare better through arbitration than it would by negotiating the changes ahead of time.

The problem with #1? It suggests that the Employer is hoping that the law will permit the Employer to continue to treat contract faculty inequitably. That’s a disturbing line of reasoning, which might explain why the Employer has, to my knowledge, provided no argument in support of it.  What exactly, in the Employer’s opinion, would Bill 148 provide to Contract faculty that those faculty don’t currently deserve?

The problem with #2? It suggests that the Employer is hoping that an arbitration process could ultimately postpone or limit the application of any obligations that the Employer would have under the new law.

These are, quite possibly, uncharitable interpretations or imputations. Please don’t hesitate to get back to me with more reasonable ones that adequately account for the Employer’s current position.

The most reasonable argument I can come up with, to justify the Employer’s position is as follows: “Well, the law will create certain obligations, but we don’t know what they are, so we should wait until the law is implemented, to find out what the legal obligations are. After that time, there will be a legitimate question about how those new obligations would impact our Collective Agreement (if at all), so arbitration is an appropriate dispute resolution mechanism”.

The problem with that sort-of-seemingly-reasonable approach? It ultimately indicates that the College is unwilling to provide pay equity to contract faculty only a) under the force of legislation, b) to the minimum degree required by that legislation, and c) only to the further degree (and only at the time) determined at the end of an arbitral process.

So, look – implementing Bill 148 will either cost the Employer a significant sum, or it won’t. If it will, then perhaps the Employer should explain to Contract faculty which components of Bill 148 would produce the added expense, and why contract faculty should now support an offer that lacks those provisions.

I’ll finish off with the return of a welcome voice from Northern Ontario:

Bill 148 attempts to address precarious work, such as the work of part time and sessional faculty. There would be no revenue-neutrality in recognizing these workers as actually working in ONTARIO (rather than for the federal Crown) and their being entitled to the protections of the (Ontario) Employment Standards Act such as vacation pay and stat holiday pay. With or without a SWF, PT and sessionals have been getting screwed for a long time!