HomeMy WebLinkAboutUnion 15-11-24IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION
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MULTIPLE COLLEGES
Grievance 2013-0415-0067 and all consolidated grievances concerning
letter of understanding, Changes to College’s Mandate or Objects
Mary Ellen Cummings, arbitrator
Award in respect of preliminary argument, prematurity
Appearances:
Richard Blair, JP Hornick, R.M. Kennedy and L.D. Eason for OPSEU
Wallace Kenny, Peter McKercher and Christiane Emond for the
colleges
Hearing held on November 19, 2015
Award issued November 24, 2015
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AWARD
1. The Ontario Public Service Employees has filed a number of grievances alleging
that all of the colleges in the Province have breached the Academic collective agreement,
and in particular the Letter of Understanding called “Changes to College’s Mandate or
Objects”. All of the colleges, represented by the College Employer Council, have asked
me to dismiss the grievances on the basis that they are premature.
2. The parties agree that the fact situation in respect of the grievance filed at Durham
College on May 13, 2014 may give rise to a prematurity argument, but a different one. So
the parties have agreed to set the Durham situation aside.
3. Of course, the language of the Letter of Understanding is important:
When a significant change to the College’s mandate or objects is directed by the Government,
the parties agree to establish a Joint Task Force made up equally of representatives of the Local
Union and the College.
The functions of the Joint Task Force shall include making recommendations to:
1. achieve the objectives of the changed mandate or objects;
2. facilitate any necessary reassignment of employees;
3. reduce any negative impact on employees.
The Joint Task Force is not an alternative to the existing bodies and provisions set out in the
collective agreement.
4. At issue between the parties is whether the Ontario Government’s policy of
differentiation for post secondary education had progressed to a point where it triggered
the Letter of Understanding, requiring each college to establish a joint committee. The
union asserts that by November and December 2013 when it filed the grievances, the
Government’s intentions and activities had advanced to the point where it was
appropriate for the colleges to establish joint committees. The colleges disagree.
5. The facts are not in dispute. OPSEU provided a letter of particulars, dated
September 9, 2015, outlining the facts on which it relies. The parties are in agreement
about the chronology of events. They disagree about their significance.
Chronology of events
6. On May 30, 2011, Minister of Training, Colleges and Universities, the
Honourable John Milloy, gave a speech at the Canadian Club in which he talked about
the successes of Ontario’s post secondary education system but also focused on the
future. He talked about providing more student loans, more spaces in colleges and
universities, development of online learning, and linking learning to employment
opportunities. In one paragraph (of a 5 and a half page speech), Minister Milloy said that
while every college and university should offer a full range of core programming, and
that both universities and colleges should focus on research “…putting students first
means focusing our resources on what each institution does best so that collectively they
offer the maximum choice, flexibility and quality experience to Ontario students”. The
union characterized that speech as the first announcement of the Government’s intention
to implement a policy of differentiation.
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7. On June 27, 2012, the Ministry of Training Colleges and Universities convened a
meeting with representatives of the colleges and followed up with a letter outlining its
plans;
This summer our government will lead two milestone initiatives. First, we are entering into the
process of establishing strategic mandate agreements with institutions. This collaborative
process between your institution and the government will be based on your institution’s key
objectives and priorities. Second, the ministry is releasing a discussion paper that will launch a
consultation process about sector transformation…..
The initiatives around strategic mandate agreements and the discussion paper about
“sector transformation” are linked and are both relevant to the issues before me. The
letter continued with deadlines for submissions by colleges with input to the strategic
mandate agreements and a promise of “consultations with the sector to identify
innovations that will help transform it…”
The Discussion Paper
8. The discussion paper is titled “Strengthening Ontario’s Centres of Creativity
Innovation and Knowledge”. The 25 page document sets out the history of post
secondary education in Ontario and then a vision for the future, focused on more
innovation without spending more. The discussion paper talks about the learning
advantages technology brings, the mobility of students, the competitive environment.
There are 6 discussion topics, all pretty broad. I give one example:
Discussion: in what ways are learning technologies best used to promote effective learning?
How could a degree and diploma granting Ontario Online Institute interface with existing
institutions?
9. None of the topics relate to the policy of differentiation. But of course, it is fair to
assume that advancing differentiation was an underlying aspect of each discussion topic.
Strategic Mandate Agreement submissions
10. As set out above, the Ministry directed each college and university to provide
submissions that would be relevant to the creation of Strategic Mandate Agreements.
Each college and university had to prepare an up-to 8 page submission outlining a
proposed mandate statement, and its three priority objectives. The college or university
had to identify a vision and “demonstrate how it aligns with the proposed differentiated
mandate statement”. For each objective, the college or university had to define how
achievement of the objective would affect its enrolment; any distinct advantage that made
the objective’s achievement credible; the timeframe, resources and measures for
achievement; innovations and productivity improvements related to the objectives; public
policy tools needed to achieve the objective and finally “how the objective correlates to
one or more of the principles presented in the attached document”, which is the
discussion paper I explained in paragraph 8.
11. The Legislature established the Higher Education Quality Control Council of
Ontario (HEQCO) by statute in 2005. The object of the HEQCO, set out in section 5 , is
“to assist the Minister in improving all aspects of the post secondary education sector,
access to post secondary education and accountability of post secondary educational
institutions”. It is intended to be an expert body of advisors. On April 4, 2013, HEQCO
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released a report called “Quality: Shifting the Focus” which assessed the Strategic
Mandate Agreement submissions I referred to above.
12. HEQCO identified one of the goals of the Strategic Mandate Agreement
submission as “promoting the government’s stated goal of increasing the differentiation
of the Ontario post secondary system by asking each Ontario post secondary institution to
articulate an institutional mandate statement identifying its distinctive strengths or
aspirations and to identify key objectives aligned with that aspiration”.
13. HEQCO observed that the Strategic Mandate Agreement submissions provided
important information for government to consider. At the risk of oversimplifying in my
paraphrasing, HEQCO said that colleges showed more differentiation than universities,
but neither was striving for it. After talking about the benefits of differentiation, HEQCO
wrote at page 12 that “there must be a decision about the dimensions along which
institutions in the system would be differentiated”. The HEQCO report emphasized how
important funding levers are to advance change, concluding “a differentiated funding
mechanism would be instrumental to any move to increase the differentiation of the
Ontario system”.
14. Among its nine recommendations, HEQCO wrote “A policy of greater system
differentiation is beneficial and is compatible with greater institutional collaboration and
greater system integration. Achievement of the government’s goal of increased
differentiation requires clear policy direction and consistent and disciplined commitment
to system re-design”. That echoes the first recommendation which suggests that
“Government must play a more active, assertive and purposeful role to drive system-level
planning and change”.
15. I understand the HEQCO’s views were as follows; the government has announced
a policy of differentiation, and differentiation is a good thing. Colleges and universities
will not differentiate on their own so government is going to have to get involved and
stay involved to make it happen. The government’s ability to direct funding is a good
way to make change, including implementing a policy of differentiation.
16. In July of 2013, OPSEU was invited to participate in a round table with the
Ministry. The Ministry’s discussion guide had three topics; Differentiation; Ontario
Online Initiative and Credit Transfer. The topic on differentiation clearly articulated that
the Ministry was advancing the policy of differentiation but was interested in discussing
“principles that will guide the development and implementation of a policy of
differentiation”.
17. In September 2013, the Ministry introduced a draft discussion paper called
“Ontario’s Proposed Differentiation Policy Framework”. A final version was released on
November 29, 2013. A cover letter from Deputy Minister Deborah Newman explains the
linkages between Ontario’s Proposed Differentiation Policy Framework and the Strategic
Mandate Agreements process and next steps. Deputy Minister Newton wrote that the
Framework would be the “…foundation for the Ministry’s decision-making and ongoing
dialogue with institutions, students and all stakeholders going forward”. She also wrote
that “over time, the Ministry will align its policy, processes and funding levers with the
Framework and the SMAs to ensure coherent decision-making”. The Deputy Minister
reinforced that “One of the most influential levers available to the Ministry to d rive
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differentiation is funding”. But she continued that the Ministry did not anticipate
immediate change and was committed to ensuring that any changes to the funding
frameworks were made in consultation with the colleges and universities. I summarize
the state of events at that point as follows: the Government wants differentiation; the
Strategic Mandate Agreements will advance differentiation; Government funding choices
will advance differentiation.
18. It is around the time that the Deputy Minister released the Framework, discussed
the Strategic Mandate Agreement process and the relationship between the two, that
OPSEU requested each of the colleges to establish a task force in accordance with the
Letter of Understanding. All of the colleges said no. Consequently, OPSEU filed
grievances in November and December 2013 and those are the grievances that are before
me.
19. I pause in the chronology at this point to emphasize that what I have recounted to
this point is the state of affairs, or factual foundation, upon which I must assess the
colleges’ assertion that these grievances are premature.
20. In the same statement, the Deputy Minister said that the S trategic Mandate
Agreements for all colleges and universities would be in place by the end of March 2014.
We now know that many were not signed until April and May 2014. But it is agreed that
Strategic Mandate Agreements between the colleges and the Government were not in
place in November and December 2013.
A little bit about Strategic Mandate Agreements
21. I am reluctant to say much about the content of the Strategic Mandate Agreements
because they were not in place, that is that they were not signed by individual colleges
and the Ministry, at the time that the grievances were filed. But since the Strategic
Mandate Agreements, or at least the Ministry’s desire to establish them, is part of the
narrative that precedes the filing of the grievances, I need to explain a bit about them. The
Ministry engaged Special Advisors, to work with the colleges to prepare the Strategi c
Mandate Agreements. Counsel for OPSEU noted that the Agreements are remarkably
similar across the colleges, perhaps because of the role of the Special Advisors. I will use
Algonquin’s as an example. It was signed between the college and the Ministry on May
8, 2014. On page 1, the preamble says the Agreement is intended to outline the role
Algonquin presently performs in the post secondary sector, how it will build on its
strengths and “help drive system-wide objectives articulated by the Ministry’s
Differentiation Policy Framework”. Page 16, the last page of the Agreement, sets out the
Ministry/Government Commitments. It begins with the statement, we have heard before,
that:
Over time, the Ministry commits to align many of its policy, process and funding levers with the
Differentiation Policy Framework and SMAs in order to support the strengths of institutions and
implement differentiation. To this end the Ministry will…
22. The list of things the Ministry will do includes “engage with both the college and
university sectors around potential changes to the funding formula, beginning with the
university sector in 2014-2015”, update the funding approval process, streamline
reporting requirements, consult on the “definition, development and utilization of
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metrics”, undertake a review of credential options and “continue the work of the Nursing
Tripartite Committee”.
Submissions and analysis
23. As I said, I am reluctant to say much about the Strategic Mandate Agreements
because none of them were in place at the time that the grievances were filed. But a
significant aspect of the union’s argument is that everything leading up to the signing of
the Agreements was pointing in a single direction; the implementation of the Ministry’s
new policy of differentiation, which would be achieved by the “negotiation” of Strategic
Mandate Agreements between the Ministry and the colleges, backed up by the Ministry’s
declared plan to exercise policy control and direction through the use of funding levers. It
is not difficult to see that this is the plan. The union argued that the Government has
embarked on a program of transformational change that has both process and substantive
elements. Both the process and the substance are part of the “change” that the Ministry
has been directing since Minister Milloy’s speech in May 2011.
24. I can accept the union’s argument that Government can direct in a number of
ways. It can create policies that colleges must comply with. Government can direct the
“negotiation” of agreements, that are really a soft and collaborative way of creating the
outcomes Government wants. And perhaps most significant, Government can use its
“funding levers”, that is, the ability to feed or starve the colleges and college programmes
that Government believes are compatible or incompatible with the policy of
differentiation. So I looked to the Strategic Mandate Agreements for the sole purpose of
seeing if they are the culmination of any decision-making that would link back to the
earlier documents I have discussed, and most important, trigger the application of the
Letter of Understanding in the parties’ collective agreement? I will set out the language
again:
When a significant change to the College’s mandate or objects is directed by the Government,
the parties agree to establish a Joint Task Force made up equally of representatives of the Local
Union and the College.
The functions of the Joint Task Force shall include making recommendations to:
1. achieve the objectives of the changed mandate or objects;
2. facilitate any necessary reassignment of employees;
3. reduce any negative impact on employees.
The Joint Task Force is not an alternative to the existing bodies and provisions set out in the
collective agreement.
25. The Letter of Understanding the parties’ have negotiated is triggered by the
direction of a change from the Government. Until that change is directed, there is no
basis for the union to demand that the colleges establish a Joint Task Force.
26. There is no evidence in the documents I have reviewed, and the chronology of
events that I have discussed, that discloses the Government has directed a change to any
college’s mandate or objects. The Government has certainly signalled that colleges and
universities should be thinking about the programs they deliver, should be focused on
differentiation and should be expecting the Government to make funding decisions based
on differentiation. But the Government has also stated that it has not made any decisions
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in this area and it is continuing its consultations with the college and university sector.
The Government is also collecting and evaluating the information provided in the
Strategic Mandate Agreements. I noted that the Agreement for Algonquin stated a
Ministry commitment that it would begin a review of the funding formula in 2014-2015,
starting with universities. In my view, the Government has not directed anything that
could even remotely be said to direct a change to any college’s objects or mandates.
27. One of the exhibits placed before me is an excerpt from the September 20, 2013,
Minutes of the Colleges of Applied Arts and Technology Employee/Employer Relations
Committee (Academic). The Minutes show that the union raised the release of the
Ministry’s “Ontario Proposed Differentiation Policy Framework: Draft Discussion Paper”
and the union said that “it would have an impact on the Colleges’ mandate”. The union
also noted that colleges had to make submissions in respect of the Strategic Mandate
Agreements by March 2014. The Minutes continue:
The Union reminded the employer that proposed changes to a college’s mandate should be
discussed by a local joint task force established under the Letter of Understanding re; Changes to
College’s Mandate or Objects.
28. In its submissions, counsel for the College Employer Council said that these
minutes show that the union, understandably, wanted to have input into the colleges’
Strategic Mandate Agreement submissions, but the Letter of Understanding does not
provide for such an opportunity. I agree. The Letter of Understanding commits OPSEU
and individual colleges to meet in reaction to a direction from the Government. The
Letter of Understanding does not require the establishment of a Joint Task force when
Government direction may affect a college’s mandate or objects in the future.
29. Both the words of the opening lines of the Letter of Understanding and the
functions of the Joint Task Force support such a reading. The Task Force is to be
established “when a significant change to the College’s mandate or objects is directed”
by Government, which can rationally occur only after the change has been directed. The
listed functions are also predicated on knowing what change to the mandate or objects
has been directed. The Task Force cannot make recommendations to “achieve the
objectives of the changed mandate or objects” until after it knows what change has been
directed by Government.
30. No change to the mandate or objects had been directed, no matter how broadly
one applies the word “directed”, by November or December 2013 when the grievances
were filed. I conclude that all of the grievances, except the one filed in respect of Durham
College, are premature. The triggering event for the establishment of the Joint Task Force
had not occurred at the time the grievances were filed. Consequently, the colleges were
not in breach of the Letter of Understanding when they refused the set up Joint Task
Forces in the Fall of 2013.
Disposition
31. I dismiss all of the grievances (except the one involving Durham College, filed on
May 13, 2014) on the basis that the employer did not breach the collective agreement, for
the reasons set out above.
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32. I trust the parties will advise me about how they want to proceed with the
remaining Durham College grievance.
Signed at Georgetown, Ontario, this 24th day of November 2015
Mary Ellen Cummings