HomeMy WebLinkAboutUnion 96-07-31 HEADNOTE
GSB NO: N/A
OPSEU NO: 95A676
LOCAL NO: 110
OPSEU LOCAL 110 (Union Grievance)
- and -
FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
Decision Dated: July 31, 1996
Arbitrator: M.G. Mitchnick
Keywords: classification; part-time employees;
Summary:
Issue(s): Union alleged that any single week in which a part-time professor is
employed to teach more than six hours, must be paid by the College at the
partial-load rate.
Held: Grievance dismissed.
Facts: The grievance addressed situation of part-time professors whose hours
fluctuate from week to week and on some weeks would work more than six
hours per week but were not paid as partial-load. The Board held that the
reference to "on a regular basis" in Article 14.04 A of the Collective
Agreement, defining partial-load employees, and the statutory language in
Schedule 1 of the Colleges Collective Bargaining Act referring to teachers
who teach for six hours or less per week as a kind of averaging or continuum
and therefore a single week "spike" beyond the six hours does not give rise
to partial-load status.
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
(hereinafter referred to as "the Union")
- and -
FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(hereinafter referred to as "the College")
Grievance #s 95A676 & 95A677 (Academic)
Before: M.G. Mitchnick - Chairman J. McManus - Union Nominee
R. Gallivan - College Nominee
Appearances:
For the Union:
R. Wells - Counsel
P. Musson - President, Local 110
G. Fordyce - Chief Steward, Local 110
For the College:
R. Atkinson - Counsel
G. Rozell - Sr. Human Resources
Consultant
Hearing held in London on December 12th, 1995
AWARD
This matter i~ concerned with persons at the College who are
engaged typically to teach 6 hours or less per week, but who from
time to time, for any reason (replacements, for example, or just
where the needs are), see their hours "spike" up in occasional
weeks to a number of teaching hours above 6. From an
administrative point of view, the College has unilaterally
adopted a payroll practice to deal with this situation, and that
practice is the focus of the present policy grievance. The case
accordingly comes before the board on the following Agreed
Statement of Facts:
1. There are teachers of the College working on part-time
assignments; i.e., less than 6 hours per week.
2. If for a period of less than 15 consecutive calendar days,
the teaching hours of these teachers are increased to an
amount greater than 6 and less than 13 hours per week, then
the following pay practice is applied.
3. For that period the College continues to pay the teacher at
the part-time rates.
4. If the period of time is more than 15 consecutive days, the
College pays the partial load rate for the whole period (the
College looks for any [consecutive] 3-week period; if it
finds a teacher working 7 to 12 hours in each of the 3
weeks, the teacher is paid at the partial-load rate for all
3 weeks; if less in any week, at the part-time rate for the
full 3 weeks.
The Union, as stated, challenges the propriety of the above-
described pay practice of the College, and takes the position
that any week in which an individual is employed to teach more
than 6 hours must be paid for by the College at the "partial-
load" rates, as set out in the Collective Agreement in Article
14.04 B 1. That Article sets out a wage schedule for "Post
Secondary Partial-Load Professors" (without further commentary),
and is introduced by Article 14.04 A, which states:
14.04 A Persons who teach over six and up to and
including 12 hours per week on a regular basis shall be
referred to as "partial-load" employees. They shall
not receive salary or vacation but shall be paid for
the performance of each teaching hour at an hourly rate
in accordance with the rates set out below. A portion
of the hourly rate is in lieu of vacation pay.
The Union recognizes the inclusion in Article 14.04 A of the
words "on a regular basis", but essentially argues that they are
over-ruled by the exclusions from the bargaining unit permitted
by the governing statute, being the Colleges Collective
Bargaining Act. In that regard Schedule I of the Colleges
Collective Bargaining Act provides:
SCHEDULE 1
The academic staff bargaining unit includes the
employees of all boards of governors of colleges of
applied arts and technology who are employed as
teachers, counsellors or librarians but does not
include,
(i) chairs,
(ii) department heads,
(iii) directors,
(iv) persons above the rank of chair, department head
or director,
(v) other persons employed in a managerial or
confidential capacity,
(vi) teachers who teach for six hours or less per week,
(vii) counsellors and librarians employed on a part-time
basis ...
(Emphasis added)
The Union notes section 48 (2) of the Act as well, which states:
Where a conflict appears between any provision of an
agreement and any provision of any legislation, the
provision of the legislation prevails.
The Collective Agreement itself provides, in terms of its scope:
Article 1
RECOGNITION
1.01 The Union is recognized as the exclusive
collective bargaining agency for all academic employees
of the Colleges engaged as teachers, counsellors and
librarians, all as more particularly set out in Article
14, Salaries, except for those listed below:
(i) Chairs, Department Heads and Directors,
(ii) persons above the rank of Chair, Department
Head or Director,
(iii) persons covered by the Memorandum of
Agreement with the Ontario Public Service
Employees Union in the support staff
bargaining unit,
(iv) other persons excluded by the legislation,
and
(v) teachers, counsellors and librarians employed
on a part-time or sessional basis.
NOTE A: Part-time in this context shall include
persons who teach six hours per week or less ....
Thus, states the Union, one is thrown back to the interpretation
of the statute once again. An individual can only be excluded as
"part-time" if they in fact teach 6 hours or less in a given
week; and if they teach more than that in a given week, what are
they? The Union responds to that question by saying they must be
4
"partial-load", because there is no other category under the
Collective Agreement that could conceivably catch them. And as
such, says the Union, they are entitled to be paid in that week
according to the "partial-load" rate schedule set out in Article
14.04 Bi. It is only Article 14.04 A that contains the reference
to "on a regular basis", and Article 14.04 BI can stand on its
own. Article 14.04 A is written the way that it is because it is
recognized that individuals may fluctuate between full-time and
partial-load hours. That is wholly different from the notion of
an individual being said to fluctuate in and out of the
bargaining unit, a matter controlled by the statute, which, once
again, says that if an individual teaches more than 6 hours in
any one week, they are not an individual excluded from the
Colleges' academic bargaining unit. As to whether the
exclusionary language of 6 hours or less per week contemplates
some kind of an "averaging", the Union points to Article 11.01 K
3 of the Collective Agreement, which also uses the term "per",
and clearly isn't averaging:
11.01 K 3 Teaching contact hours shall not exceed
648 teaching contact hours per academic year for a
teacher in post-secondary programs or 760 teaching
contact hours per academic year for a teacher not in
post-secondary programs.
Finally, on this point, the Union refers to Schedule II of the
Act, which sets out the description for the support staff
bargaining unit, and which states:
SCHEDULE 2
The support staff bargaining unit includes the
employees of all boards of governors of colleges of
applied arts and technology employed in positions or
classifications in the office, clerical, technical,
health care, maintenance, building service, shipping,
transportation, cafeteria and nursery staff but does
not include: ...
(vi) persons regularly employed for not more than
twenty-four hours a week, ...
Thus, says the Union, when the Government wanted to incorporate
the notion of "regularly" into a definition, it knew how to do
it.
As an alternative argument, the Union points to Appendix
VIII of the Collective Agreement, which provides:
APPENDIX VIII
SESSIONAL EMPLOYEES
i A sessional employee is defined as a full-time
employee appointed on a sessional basis for up to 12
full months of continuous or non-continuous accumulated
employment in a 24 calendar month period ...
4 A person assigned to replace a full-time regular
employee for up to 14 working days for unplanned
absences in any month shall not have such period(s)
considered as sessional employment for the purpose of
the computation of the 12 months sessional employment.
During such periods such a person shall be paid as if
partial-load and within the range of partial-load
hourly rates as set out in Article 14.
The Union cites also Article 2.02 of the Collective
Agreement which states:
2.02 The College will give preference to the
designation of full-time positions as regular rather
than partial-load teaching positions. Subject to such
6
operational requirements as the quality of the
programs, attainment of the proper objectives, the need
for special q~alifications and the market acceptability
of the programs to employers, students, and the
community.
That, the Union submits, must mean that any "part-time" positions
that are left are only in situations where the College has been
unable to address their staffing needs through full-time
positions. And thus (though there is no evidence on the point),
it has to be assumed that any part-timer whose hours have been
bumped up to more than 6 in a given week is necessarily replacing
a full-time employee.
There have, as the parties are aware, over the years been a
number of cases having to deal with the problem of the
fluctuations in work assignments that arise in the College
"academic" setting, and the effect on the status of affected
individuals as a result. See, for example, Algonquin College
(Clarke), award of K.P. Swan dated April 26th, 1988, particularly
at page 8; Fanshawe College (Anderson), award of Gail Brent dated
May 9th, 1983; and St. Lawrence College (Arsenault), award of
Gail Brent dated November 16th, 1982. The nature of the exercise
is always to find the appropriate test for assessing the issue on
some kind of reasonable continuum, or general basis, as opposed
to attempting to do so on an isolated or abstracted basis.
Indeed, more typically it is the Union who seeks to prevent a
college from seizing on isolated or sporadic weeks to argue for a
change in status, as can be seen, for example, in the case of
Fanshawe College (B~ocklebank), decision of P.J. Brunner dated
September 17th, 1981. Although argued in the reverse, in many
respects that award involved exactly the same issues as here,
including the question of total exclusion from the bargaining
unit, and of the appropriate reading to be given the words in the
statute stipulating the exclusion for:
(vi) teachers who teach for six hours or less per week.
At page 10 Mr. Brunner wrote:
Was she however a Teacher who taught for six hours
or less per week? The evidence indicates that for the
entire period of this Collective Agreement there were
only four weeks (except for the month of August, 1976
when we assume that she was on vacation) that she did
not teach more than six hours. In our view a person
such as the grievor who regularly teaches more than six
hours per week in an academic year cannot be taken to
be a Teacher who teaches for six hours or less within
the meaning of paragraph (VI). In our view the only
reasonable construction of this paragraph is that it
excludes only those Teachers who regularly teach six
hours or less per week but not those who consistently
and on a regular basis teach for more than the stated
minimum. We do not think that it was the intention of
the Legislature to exclude persons who only
sporadically or intermittently teach six hours or less
per week. That could happen to any Teacher. In our
view the intent was to exclude only those Teachers who
normally or usually teach six hours or less per week.
The word "regularly" is one that is commonly used in
the description of bargaining units in Collective
Agreements and it is a word that is well known to
labour and management alike. We note its presence in
paragraph (VI) of Schedule II of the Act which we take
to be the support staff bargaining unit counterpart of
paragraph (VI) of Schedule I. Any other interpretation
of paragraph (VI) would result in the automatic
exclusion of a Teacher from the bargaining unit, from
the status of employee and from the rights and
provisions under the Collective Agreement if in one
given week he or she teaches six hours of less. (See
Section 52). Such a result could not have been the
intention of the Legislature.
We agree with Mr. Brunner's perspective, and note that he
actually uses the reference to "regularly employed for not more
than 24 hours a week" in defining the support-staff exclusion as
indicative of a general intent by the Government to view the
matter on some kind of continuum. And that, we would also note,
is the way the broad parties have interpreted it in drafting
their Collective Agreement, spelling out, so that there could be
no misunderstanding, the words "on a regular basis". Mr. Wells
points out that that term appears only in 14.04 A of the
Collective Agreement, and not 14.04 B 1 under which the Union is
making its claim for the rate. But that agreed-upon rate
schedule in 14.04 B1 is only applicable, as Article 14.04 A
states on its face, to persons who meet the definition of
"partial-load employees" set out in Article 14.04 A. At best,
therefore, it seems to us that the only argument the Union could
make, relying on the statute alone, is that there is a portion of
the statutory bargaining unit for whom rates have not yet been
negotiated. But having said that, even the statutory definition
uses the phrase "six hours or less per week". The term "per" can
well be read as connoting a kind of averaging or continuum, and
we cannot disagree with the general parties' long-held view (as
disclosed in the way in which it has been translated into the
Collective Agreement) that that is the most practical and
reasonable way to understand it. (Article 11.01 K 3 is not part
of the statute, and throws no light on how the Government would
9
have intended this exclusion in employing the language that it
did). We therefore reject the submission of the Union that these
normally "part-time" Professors must fall within the bargaining
unit and be paid the "partial-load" rates under Article 14.04 B 1
for any single week in which their teaching hours spike up beyond
the number six.
At the same time, it should be noted that the pay practice
adopted by the College is nothing more than an administrative
"rule of thumb", and cannot over-ride the provisions of the
Collective Agreement itself. That is, in individual cases it
would be open to the Union to argue that a particular pattern
worked, different from what the College is looking for, is such
as to bring the individual within the scope of the Collective
Agreement. All that we are saying here is that the College's
general approach to the matter appears to be a reasonable one; we
are not saying that it is an exclusive one, since we have not had
other fact scenarios argued before us. With respect to Appendix
VIII, we note that it appears on its face to apply only to
"sessional" employees (who by definition are hired on full-time
hours); but if there i~ a case to be made under paragraph 4 of
the Appendix, it would seem, in light of the variety of
circumstances that could cause a part-timer to be assigned more
hours in a particular week, that it would be necessary to
establish the "replacement" situation.
The present grievance is accordingly dismissed.
Dated at Toronto this 31st day of July, 1996
M. G. Mitchnick
"J. McManus"
J. McManus
"R. Gallivan"
R. Gallivan