HomeMy WebLinkAboutUnion 18-04-30IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act, 2008
BETWEEN:
FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(“College”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(“Union”)
(Union Grievance re: Partial-Load Contracts)
ARBITRATOR: Jasbir Parmar
On Behalf of the Employer:
Lisa M. Kwasek, Counsel, Hicks Morley Hamilton Stewart Storie LLP
Jerry Tapley, Labour Relations Consultant
Teresa Richman, Program Manager
On Behalf of the Union:
Lesley Gilchrist, Grievance Officer, OPSEU
Darryl Bedford, President, Local 110
This matter was heard on June 23, 2017 and March 12, 2018, in London, ON.
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I. INTRODUCTION
1. The Union grieves that the College has “arbitrarily reduced partial-load faculty contracts
from 15 weeks (covering the full academic semester) to 14 weeks”. The grievance
alleges that this has resulted in employees being expected to perform work after the
expiry of the contract, and that is a violation of the collective agreement.
II. EVIDENCE
2. The parties agreed to the following facts:
1. Most of the courses offered at the College are scheduled for a 15 week period.
14 weeks are instructional time and the 15th week is the examination week.
2. Some Schools within the College offer shorter or longer lengths of courses,
depending on the particular program and course.
3. Although some Schools have offered partial-load employees contracts which were
15 weeks in duration, the College now offers many partial-load employees 14
week contracts, commencing on the first day of instruction and ending on the last
class of the course. In these contracts the last day of the course refers to the last
day of class room instruction and does not include the week of the exam period.
4. Some partial-load employees are offered part-time contracts to invigilate an
examination in the 15th week of the course.
5. Regardless of the employee who invigilates an examination, the instructor of that
examination is still expected to mark the examination or assess the final work of
the students and submit grades accordingly. This occurs after the examination
which is in the 15th or 16th week of the course, unless, of course, there is no final
examination.
6. On April 22, 2015, OPSEU initiated a Union Grievance pursuant to Article 32.09,
grieving the College’s practice of offering partial-load employees 14 week
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contracts on the basis that partial load employees would be required to conduct
work outside of the parameters of the 14 week contract.
3. Viva voce evidence was also provided by Darryl Bedford, the president of the local union,
and Sandra Fieber, Chair of the School of Community Studies. There was little dispute
between Mr. Bedford and Ms. Fieber. I have considered all the evidence, and will outline
below what I viewed to be material to my conclusion.
III. THE COLLECTIVE AGREEMENT
4. The following are the relevant collective agreement provisions:
Article 11
WORKLOAD
11.01B2A “teaching contact hour" is a College scheduled teaching hour assigned to the
teacher by the College.
11.01C Each teaching contact hour shall be assigned as a 50 minute block plus a break of up
to ten minutes.
The voluntary extension of the teaching contact hour beyond 50 minutes by the
teacher and any student(s) by not taking breaks or by re-arranging breaks or by the
teacher staying after the period to consult with any student(s) shall not constitute an
additional teaching contact hour.
****
Article 26
PARTIAL-LOAD EMPLOYEES
26.01A This Article contains provisions exclusively related to partial-load employees.
However, this Article is not inclusive of all rights of partial-load employees under the
Collective Agreement.
26.01B A partial-load employee is defined as a teacher who teaches more than six and up to
and including 12 hours per week on a regular basis.
26.02A A partial-load em ployee shall not receive salary or vacations but shall be paid for the
performance of each teaching contact hour at an hourly rate calculated in accordance
with 26.04.
26.02B A portion of the hourly rate for partial-load teachers is in lieu of vacation pay.
….
26.10D Subject to the application of Articles 2.02 and 27.06 A, where the college
determines that there is a need to hire a partial-load em ployee, it will give priority in
hiring to current partial-load employees whose contracts will expire prior to the start of
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the assignment, and partial-load employees whose contracts have ended within six
months of the start of the assignment if the following conditions are met:
(i) The partial-load employee must have previously been em ployed as a partial- load
em ployee for at least 8 months of service as defined in 26.10 C within the last 4
academic years, and
(ii) The partial-load employee must have previously taught the courses that form the
new partial-load assignment.
The offer of partial-load employm ent is conditional on the college subsequently
determining there is sufficient enrolment to warrant the assignment being offered.
IV. SUMMARY OF PARTIES’ SUBMISSIONS
5. The Union acknowledges that partial-load employees are paid per teaching contact hour
(“TCH”), which is a reference to the assigned classroom time. The Union also
acknowledges that these employees are required to perform ancillary duties outside the
scheduled class time for which there is no separate compensation. Rather, it is
understood that all of that work is compensated under the TCH model.
6. However, the Union submits that not all work related to the instruction of a course can be
“leveraged” into a TCH regardless of the connection of that work to the course. For
example, the Union points to the fact that course development is obviously connected to
a course but is assigned separate from a partial-load contract for teaching that particular
course.
7. Accordingly, the Union submits, employees can only be expected to perform ancillary
duties which are attached to a specific TCH. They cannot be expected to perform duties
which may happen to attach to a course, but are not specifically tied to a TCH. The
Union submits that the College cannot expect a partial-load employee to mark an
examination that is written after the end of his or her contract. The Union submits the
marking of that examination is not an ancillary duty flowing from the TCHs for which the
employee is contracted and paid.
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8. The Union notes that the TCH model represents an ‘averaging of work’, such that
employees may actually perform more work in certain weeks than in others. The Union
submits that the College is seeking to shave off the ‘end of the bell curve’, taking out what
may be a slower week, when the professor may not have any classroom instruction. The
Union does not challenge the College’s ability to do that. However, it submits it cannot
still enjoy the benefit of requiring the employee to perform work in that week. Otherwise,
the College is extracting work for free.
9. The Union noted that normally an employer cannot require employees to outwork a
temporal contract. The Union acknowledges that partial-load instructors do perform
some work outside of the specific period of the contract, such as advance preparation for
the first class. However, the Union submits, the College is trying to extend the period of
work while reducing the pay. The Union submits that there needs to be clear language to
support the conclusion that an employer is permitted to require an employee to work
beyond the period of the contract.
10. The Union notes that the exam cannot be marked during the term of the contract
because it is not administered until later. The Union submits that if the College wants
work done at a particular time, they must assign work at that time and also pay for that
time. The Union submits that if the College is requiring employees to perform work past
the end of the employment contract, the employment relationship still exists.
11. The Union also expressed concern that the College is negotiating directly with
employees, undermining the role of the bargaining agent. The Union submits employees
are agreeing to do the work of marking examinations after the expiry of the contract,
despite the fact they are not paid for it, because of concerns about receiving subsequent
contracts.
12. The Union also notes that the start and end date of the contract is significant because it
impacts other rights under the collective agreement, such as job security rights for future
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employment (i.e. Article 26.10D) or holiday pay. The Union also raised concerns about
how the period of the contract may impact employment insurance or Workplace
Insurance and Safety Act benefits, which are tied to dates of employment.
13. The Union seeks a declaration that the College is violating the collective agreement,
specifically articles 1, 10, and 26, by demanding partial-load employees perform work
that is not ancillary to a TCH. The Union also seeks an order that the College cease and
desist from engaging in this conduct.
14. The Union acknowledged there are no decisions directly on point. However, the Union
cited the following authorities to consider: Richmond Lions Senior Citizen Housing
Society – and – B.C.N.U., 1982 CarswellBC 2640; Duxbury v. Training Inc., 2002
CarswellAlta 334 (Prov. Ct.); RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc.,
2008 SCC 54; Fanshawe College – and – OPSEU, 1999 CarswellOnt 6639; College
Employer Council – and – OPSEU, 2015 CarswellOnt 2538; Seneca College – and –
OPSEU, 2013 CarswellOnt 18463; and Confederation College – and – OPSEU, 2016
CarswellOnt 1675.
15. The College submits the issue is whether offering a 14 week contract to partial-load
employees is a violation of the collective agreement. The College submits it is not. The
College submits that Article 26.02A is clear and unambiguous; partial load employees are
paid on the basis of each TCH.
16. The College submits that there is a shared understanding between the parties that
ancillary work related to those TCHs is expected to be performed. The College submits
that compensation for all of that work, by way of reference to the assigned TCHs, is the
payment structure negotiated by the parties. The College submits that the Union’s
argument, that work cannot be performed after the final TCH, is inconsistent with its own
acknowledgements. The Union accepts that employees, even in the case of 15 week
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contracts, perform work preceding the first TCH (such as preparing for the first day of
instruction) and perform work after the final TCH (such as tallying and submitting grades).
17. The College acknowledges there is no definition of ancillary duties in the collective
agreement. However, it submits that it is clear from the partial-load contracts issued by
the College that assignment/exam grading is an ancillary duty. In fact, the College notes,
final examinations are a common and routine method of evaluation, and so the parties
have always understood the professor teaching the course would mark the exam as part
of the evaluation duties connected to teaching the course. The College submits that the
duties expected of the partial-load employee under a 15 week contract are exactly the
same as a 14 week contract, except for the invigilation of an exam. The College notes
that an instructor is not always assigned to invigilate their own exam in the 15th week.
The College notes the Union does not explain how invigilating an exam for a different
course creates an ancillary duty to mark your own exam.
18. The College submits that just because employees are now not assigned to invigilate an
exam does not mean that exam grading is no longer an ancillary duty flowing from their
assigned TCHs. It is simply that there is no specific TCH assigned in the 15th week, and
so there is no payment for that week. The College notes that there always has been the
possibility that employees perform work after the 15th week, since grades are not required
to be submitted until the Tuesday of the 16th week.
19. The College submits there is ‘no magic’ in a 15 week contract with respect to other
collective agreement rights/benefits. For example, Article 26.10D, which provides for
preferred hiring depending on when previous contracts end; employees may or may not
be eligible with a 15 week contract just as they may or may not be eligible with a 14 week
contract.
20. The College submits that each TCH is intended to reflect all the work that flows from
being an instructor in the course. There is nothing in the collective agreement, the
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College argues, which supports the Union’s position that an ancillary duty must be tied to
a specific TCH.
21. Alternatively, the College submits that if an ancillary duty must be related to a TCH, then
marking the examination flows from all of the TCHs. It is an evaluation of the curriculum
taught in the entire course, throughout all the TCHs.
22. The College also argues that the Union’s position creates a disparity between courses
with final examinations and other courses. For example, some courses have a final
project which is submitted in the 15th week; there is no exam to invigilate. The College
notes that an employee is required to mark that assignment as part of their duties of
teaching that course, even though there is no specific assigned TCH in the 15th week.
Employees who teach courses with final exams should be no different.
23. Finally, the College notes that if the Union’s concern is about work being performed after
the end date of the contract, then the appropriate remedy should be either that the
contracts are silent on the end date or that the end date be the date final grades are to be
submitted. The College submits this would be consistent with the collective agreement.
24. In reply, the Union submits that it agrees Article 26 is clear and unambiguous. The Union
submits that while there has been a shared understanding that ancillary duties would be
performed, the fact that the College has unilaterally changed the total compensation for
the same work has impacted this shared understanding. The Union submits that the
evidence about past practice, that the College did offer 15 week contracts previously (in
some Schools), is relevant as context. The Union also notes that the employment
contract does not indicate the employee is required to perform duties after the expiry of
the contract.
25. With respect to the College’s suggestion of changing the end date of the contracts, the
Union submits that the date cannot be changed if the employee is not being paid.
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V. ANALYSIS
26. The Union has grieved the College’s requirement that partial-load employees mark
exams that are written after the expiry of their employment contract.
27. The parties agree the relevant provisions of the collective agreement are clear and
unambiguous. They did lead some evidence about past practice and the nature of the
work performed by employees. However, there was no suggestion, by either party, that
there was in fact a consistent past practice, either of 14 week or 15 week assignments
(see paragraph 3 of the Agreed Facts above). Furthermore, there was no suggestion by
either party that the past practice indicates the collective agreement requires that
contracts of a particular length be assigned to partial-load employees. Accordingly, I
have considered this evidence primarily as a contextual aide to the parties’ understanding
of the work of teachers.
28. Keeping that in mind, I turn to the issue in dispute: whether marking an exam which is
written after the partial-load contract ends is part of the ancillary duties for which
compensation is provided during the contract. If it is not, then the College is requiring
partial-load employees to perform work without compensation, and that clearly would be
a breach of the collective agreement.
29. I accept the Union’s submissions that not all work that is related in any way to a course is
automatically an ancillary duty related to teaching contact hours. For example,
course/curriculum development is clearly work related to a specific course. Yet it is
assigned to employees separate from a course teaching assignment.
30. What are the ancillary duties expected of a teacher assigned to teach a particular
course? I have some concerns about relying on the actual partial-load contracts to
determine this issue, since those are drafted unilaterally by the College with no
participation by the Union. As such, it cannot be said that they reflect a mutual intention
of what ancillary duties are expected to be performed.
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31. Fortunately, the collective agreement is not silent on this issue. While Article 26 does not
specifically detail these duties, they are referenced in Article 11. While Article 11 is about
the workload of full-time employees, there seems to be agreement between the parties
that the work expected to be performed by a teacher assigned to teach a course is the
same regardless of whether that teacher is a partial-load employee or a full-time
employee. I note that both Ms. Fieber and Mr. Bedford spoke about both categories of
employees when describing the work involved in teaching a course. As such, I view
Article 11 as instructive in understanding what the parties expected a teacher, regardless
of employment status, would do when assigned to teach a course.
32. Article 11 indicates that when an employee is assigned to teach a course, the workload of
that teacher will include the duties involved in the teaching contact hour (which is
classroom instruction), preparation, evaluation/feedback, and complementary functions
(that is out-of-class assistance and normal administrative tasks – see Article 11.01F1).
Therefore, these are also the duties that presumably would be expected of partial-load
employees assigned to teach specific courses.
33. The Union does not really dispute this. They accept that all employees, including partial-
load employees, are expected to engage in preparation, evaluation, and complementary
functions.
34. The Union’s objection is based on the submission that in order for work to be considered
ancillary, it must attach to a specific teaching contact hour. I accept that general
principle, to the extent it means that the ancillary duty must attach, or be rationally
connected, to fulfilling the assigned duty of teaching the course through the assigned
TCHs.
35. However, I do not accept the assertion which underlies the Union’s grievance, that
marking of the final examination is connected to the specific time the students are
assigned to complete the final examination, and that if a partial-load professor is not
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assigned to invigilate the final examination (and thus not assigned a TCH in the exam
week) he or she is not responsible for marking that examination.
36. The evidence of both Mr. Bedford and Ms. Fieber is that there is no collective agreement
requirement that a professor assigned to teach a particular course be assigned to
invigilate the final examination of that course. In fact, they noted that employees may be
assigned to invigilate an exam for a course they did not teach, or even not be assigned to
invigilate any exam even though they had taught courses. These assignments are based
on scheduling and availability, and not on who taught the course for the exam. Mr.
Bedford and Ms. Fieber also agreed that the task of exam invigilation did not actually
require the presence of the teacher, since invigilators are prohibited from answering any
content or substantive questions. Their role is limited to ensuring the examination is
written in accordance with the proper procedures (within the specified time and with no
cheating). In other words, there is no practical reason that the individual who teaches a
particular course needs to be present when the exam for that course is written.
37. A final examination is one method of evaluating a student’s performance or competency
with the materials taught in the course. While it is a commonly used method of
evaluation in the College, there are also other methods. These include final papers (due
in the final class or after the final class), exams written in the final class, or in-process
examinations (which are essentially practical examinations where the professor observes
the individual student while he or she is performing the assigned task).
38. Exams written in class are done so during an assigned TCH. But those exams are not
typically evaluating the students’ knowledge of the information taught in that particular
TCH. Rather they are evaluating the students’ knowledge of information taught in the
other TCHs. Similarly, final papers, even though they may be submitted after the final
class, are evaluating the students’ knowledge of information taught during the 14 weeks
of class. The marking of these forms of evaluations are considered part of the ancillary
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duties flowing from the assigned TCHs. The Union does not suggest that partial-load
employees should not have to perform these marking duties.
39. I see no basis to distinguish the final examination method from any of the other methods.
In marking the final exam the teacher is not evaluating the student in respect of
information taught during the writing of the exam; the teacher is evaluating the student in
respect of information taught during the 14 weeks of classroom instruction. Therefore,
marking this exam is the ancillary duty of evaluation flowing from the 14 weeks of
classroom instruction.
40. My conclusion is supported by the compensation system set forth in Article 26. As
acknowledged by the Union, partial-load employees are not compensated on the basis of
the actual work performed by the individual employee. The parties have chosen a
compensation method which does not differentiate between the specific tasks performed
by each teacher, which is a lengthy and varied list given the various forms, structures,
and content of courses . Rather, the parties agreed that partial-load employees would be
compensated for all the duties involved in teaching, including evaluation, on the basis of
the assigned TCHs. As such, there is no basis to conclude that a teacher who is marking
an exam that is written outside of the assigned TCHs is performing ancillary work any
different from a teacher marking a final paper that is submitted outside of the assigned
TCHs, or any different from a teacher who is marking an exam that is written in the final
class.
41. I pause to note that there is evidence that partial-load employees have in the past been
assigned to invigilate exams as a TCH. While the Employer may choose to assign a
TCH in the 15th week, the period during which the examination is written, that does not
alter the fact that the marking of the examination is still an ancillary duty connected to and
flowing from the 14 weeks of instruction, not the time during which the exam is written. I
appreciate the unfortunate, and obviously intended, result of the College’s actions is a
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reduction in pay for those employees who previously were given 15 week contracts.
However, it is not a violation of the collective agreement.
42. With respect to the fact that the final exam is written and marked after the expiry of the
partial-load employees contract, there is no dispute that partial-load employees may well
perform work outside of the specified start and end times of their contracts, even if they
were issued a 15 week contract. For example, a professor is expected to be prepared to
teach the first day, and so will likely have to do some preparation at some point prior to
the first day. How much advance preparation is required will vary, as a professor who
has recently taught that same course may have very little preparation to do prior to the
first class. At the other end of the contract, grades are not required to be submitted until
the Tuesday following the 15th week. Thus, some partial-load employees may well
perform the duties involved in marking/submitting grades after the end of their contract.
43. However, choosing to complete work outside the parameters of a temporal contract is
different from being expected to perform substantive work past the end date. If an
examination is not written until the 15th week, it is not possible for the employee to
complete that work prior to the 15th week. In other words, the employee is expected to
perform work in that 15th week. It is unreasonable for the College to issue a contract with
parameters knowing it is not possible for the employee to complete substantive work
associated with the contract during the life of the contract. The term of the contract
should acknowledge the period the employee is expected to perform work. This is
consistent with the other rights in the collective agreement which are based on the
partial-load employee’s period of employment. If the employee is expected to be
performing work (i.e. marking an exam which is not written until a particular date), then
that should be considered part of the employee’s period of employment.
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44. The Union submitted that the Employer’s suggestion, of changing the period of the
contract, was not appropriate because employees should not be kept under contract if
they are not being paid.
45. However, the term of the contract, which is the temporal period during which the work will
be performed, is a separate and distinct issue from the compensation payable under the
contract. The parties chose a particular method of payment for partial-load employees
teaching a course, and it is not task based or even week based. Just because there is no
TCH in a particular week of the employment contract during which it is understood the
employee is expected to be performing work, it does not mean the employee is not being
paid for that work. Rather, as prescribed by Article 26.02A, they are paid on the basis
of assigned TCHs, for all the work flowing from those TCHs. As I noted above, the task
of marking a final exam, even if it is not written during classroom instruction time, is an
ancillary duty and flows from the assigned 14 weeks of classroom instruction (i.e. the
assigned TCHs).
V. DISPOSITION
46. The grievance is allowed only to the extent that I find it is a breach of the collective
agreement for the Employer to issue partial-load contracts which do not properly reflect
the period in which work is expected to be performed. The Employer is directed to cease
and desist from this practice.
47. In all other respects, the grievance is dismissed.
Dated this 30th day of April, 2018.
“Jasbir Parmar”
___________________
JASBIR PARMAR