Upcoming changes to the Post-Secondary Learning Act

by Faculty Association | Filed under March 2017, President's Message.

– By Sandra Hoenle, Faculty Association President –

In the Fall, I reported to you on the provincial government’s consultations regarding changes to the Post-Secondary Learning Act (PSLA), focusing on matters related to Faculty Associations and labour relations. The need for these changes had arisen because of the Supreme Court’s decision that freedom of association included the right to strike, and thus the right to strike is protected by the Charter. As a result, the provincial governments were required to amend any legislation where strikes had previously been prohibited. In Alberta, the Faculty Associations at colleges as well as graduate students’ associations have been prohibited from striking. The research university Faculty Associations (at Calgary, Alberta, Lethbridge, and Athabasca) are not prohibited from striking, but there is no clear mechanism for how strikes would occur. In order to resolve bargaining disputes in lieu of strikes, the research universities have provisions in their Collective Agreements for binding arbitration. These will now likely be eliminated by the government as they install strikes/lockouts as the preferred method of resolving disputes. Of course, with strikes also comes the possibility of lockout by the employer as their method to resolve disputes.

Rather than simply establish a strike mechanism and leave everything else intact (which they certainly could have done), the provincial government seems to have decided that they wanted to significantly change the nature of Faculty Associations. Most simply put, in my own personal reading of the situation, the New Democrats wanted to turn all Faculty Associations into trade unions established under the Labour Act. Initially there had been a government round-table in the Fall of 2015 at which the consensus view of all stakeholders (Faculty Associations and Administrations) was that Faculty Associations should remain under the Post-Secondary Learning Act. At that time, for the research universities, all of the Faculty Associations unanimously agreed that it would be preferable to stay under the PSLA. In spite of this strong consensus opinion, the government undertook a second round of consultations in the following year.

In the summer of 2016, the government introduced a new discussion paper, which we shared with you, along with a discussion paper of our own highlighting numerous concerns with the government’s direction. From those papers, we consulted with you and the Department Representatives before making a submission to the government. We sent this final submission to you in an email in October, and you can also find it on our website here. The government subsequently held a series of round-tables with stakeholder representatives. At the invitation of the government, I attended one such round-table together with our Executive Director, Sheila Miller. The key issues discussed at the round-table were: 1) the potential implications of Faculty Associations becoming unions under the Labour Act; and 2) how and by whom designation of academic staff should occur.

The government’s consultant and moderator of the round-tables, Andy Sims, stated he would consider all submissions and discussions at the various round-tables in formulating his recommendations to the Government, which he would present in early 2017, after which new legislation would be tabled in the Spring sitting of the Legislature (scheduled from March 2 – June 1).

No matter how the government decides to proceed, there will be a profound impact on Faculty Associations and the nature of bargaining. Until now, if there was an impasse at the bargaining table, either side could take the matter to arbitration. There was inherent risk to both sides in taking matters to an arbitrator, as it could backfire and one might get stuck with something worse than what could have been achieved at the bargaining table.  This meant there was a tendency at the bargaining table to judge proposals based on how an arbitrator might rule. Moving to strike and lockout, we will no longer judge issues based on what an arbitrator might rule, but rather on where our/their bottom line is, how far we/they are willing to push on an issue, and where the possible overlap exists. This is not necessarily a better or worse system, but it does change the way we (and the Board of Governors) will approach bargaining in the future.

There is also the question of whether there will be a ‘phase-in’ period or whether strike/lockout will be established when Royal Assent is given to the new legislation. While this was a point of discussion at the round-table, until the legislation is brought forward, we do not know how long, or even whether, there will be a transition phase. As a result, we are about to enter bargaining in a state of uncertainty (our current Collective Agreement expires June 30, 2017). We do not know when the legislation will be enacted and what effect it could potentially have on bargaining in progress, especially what dispute mechanism might be in effect if we are unable to come to agreement at the table.

Once the legislative rules are made clear, we will need to discuss ‘essential services’ with the Board of Governors – that is those parts of our work which would continue even in the event of a strike or lockout. As ‘essential services’ are generally only considered to be those aspects of work where health and safety might be at risk, it is likely that work considered to be ‘essential service’ will be relatively rare. However, there will be exceptions – especially in positions with an urgent clinical component or where researchers are dealing with dangerous materials which need monitoring.

The Association membership will also need to decide on whether to establish a strike fund. There are a number of possibilities, for which we have gathered the relevant information: We can join the CAUT Defense Fund, establish our own fund, do both, or do neither. Again, once the legislation is clear, the Board of Directors will be coming back to you with a proposal for your consideration.

At this time, we can make no concrete plans for how to move forward until we see what the provincial government decides to do. Until we see the new legislation, we are not sure whether all of our current members will continue to be part of the Faculty Association or whether new groups of members might become part of the Association. We could grow, shrink, or remain the same. We are not sure how our powers, organizational structure, or mandate might change. There are potential indirect effects on various university policies, member benefits, and the pension plan that could occur as a result of the coming legislative changes. It is no exaggeration to state that this is the most significant change to the Faculty Association since we were established as a bargaining unit in the early 1980’s. We will keep you informed as we find out more and we will seek your input as we begin to develop our plans for charting our course through the new legislative environment.



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