AUFA wins permanent jobs and damages for term academics

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 Earlier this month, AUFA successfully concluded a long-standing grievance about the mis-use of term staff in the MAIS program. The crux of the grievance was that AU had improperly used or extended limited-term appointments under Article 5 of the collective agreement.

The effect of this behaviour was to make the employment of 9 AUFA members precarious and deny them certain benefits under the collective agreement. The arbitration resulted in a combination of permanent appointments and/or damages paid to the affected AUFA members.

The Grievance

Article 5 outlines when it is appropriate to use limited-term positions.

Link to agreement

5.2 A term appointment shall be for a contractually limited period, and shall terminate automatically on a specified date. It shall not carry any implication that the term appointee will be considered for a regular appointment. A term appointment will normally be made where one or more of the following conditions apply:

d. the duties associated with the position are for a limited period and are not expected to be required to be performed after the specified date;

5.5 a. a term appointment may commence at any date during the year. With the exception of term appointments made under 5.2 c, f., and g., a term appointment will not normally exceed two (2) years;

AU repeatedly hired certain term employees, in some cases for more than a decade, to perform work that clearly was not temporary. Hiring these members as term employees made their employment precarious and denied them certain benefits under the collective agreement.

Arbitration and Decision

AUFA filed this grievance on April 14, 2015. After lengthy efforts to resolve this issue were unsuccessful, AUFA moved this grievance to arbitration. Hearings took place in November of 2016, with 5 witnesses testifying and over 150 exhibits submitted.

Arbitrator Andy Sims released a decision in August 2018 that determined:

[T]he ongoing nature of most courses, the proven demand for those courses, and thus the need for people like the grievors to teach those courses, establishes that the need could not reasonably be seen as term limited and unlikely to continue. I find the University’s handling of the MA-IS work demands through the excessive creation and use of term positions violated the provisions of the collective agreement. (pp. 67-68).

Had the agreement been followed rather than breached by the creation of temporary positions beyond the parameters of Article 5, the University would have either discontinued the MA-IS program or else, and this is in my view far more likely, created at least two regular positions for academic coordinators. … On balance, I find that, had the University appropriately created the regular positions I describe, the grievors would have applied for and obtained those positions. (p. 68)

Remedies

Sims gave the parties 45 days to work out reasonable remedies. AU declined to meaningfully engage in discussions of remedies with AUFA for the remainder of 2018.

In March of 2018, Sims mediated a settlement affecting the 9 AUFA members.

While the specifics of the settlements are confidential, each grievor has received some combination of a permanent appointment and/or damages.

AU has also agreed to no longer use term positions in a way that violates the collective agreement.

The Lessons

This grievance holds lessons, both about grievances and about Athabasca University as an employer:

1. Grievances are slow. The contract violations date back as far as 2005. It took 5 years to bring to about resolution after the grievance was filed. The pace of grievance arbitration is hard on grievors. Employers know this and drag their feet in the hope of wearing the grievors and the union down. An alternative to a grievance is taking direct action in the workplace.

2. Grievances are expensive. AUFA spent approximately $100,000 on this grievance (not including staff and volunteer time, which were substantial). AU’s costs were likely higher because their law firm charges more. Whatever AU saved in staffing costs (by violating the agreement) was almost certainly exceeded by its legal bill and the cost of remedies.

3. AU violates the contract. This decision is another example of AU egregiously violating the agreement that it signed. Such behaviour is profoundly damaging, both to the individuals’ affected and institutional morale. This is a pattern of behaviour at AU and you can read about another example here:

Link to another example.

4. AU drags out settlements. AU was unwilling to meet with AUFA to discuss remedies following the decision. AU’s executive will not even discuss grievances with AUFA. Consequently, AUFA was forced to return to the arbitrator (incurring additional costs for both parties) in order to get remedies for the members.

It is a shame that AU does not live up to its I-Care values of integrity (which entails “ethics, honesty and fairness in all our actions, engendering trust within our university community”) and respect (which includes “an environment in which every individual is valued”).

Jolene Armstrong, AUFA President

Conference Talking Points on AUFA Bargaining

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Bargaining between AUFA and AU has reached a standstill. This raises the spectre of a strike or a lockout within the next year.

Some faculty members have asked how they might talk about this situation if it comes up during the upcoming conference season. The talking points below may be of use:

The Situation

  • AUFA and AU have been in bargaining for more than a year, and without a contract, since July 1, 2018.

  • AU is demanding a wage freeze despite a $9m surplus and >12% enrollment growth.

  • AU is unprepared to offer any quid pro quo for the wage freeze.

  • After 19 days of bargaining, it appears AUFA and AU have reached impasse.

Pathway to a Strike

  • AUFA has requested informal mediation on June 17 and 18

  • If this informal and formal mediation fails, AUFA will proceed towards a strike vote.

  • AUFA expects a strike vote will be held in the early autumn.

  • Once a strike mandate is in place, AUFA can strike with 72 hours of notice.

Impact of a Strike

  • Approximately 5000 students will be without instruction (i.e., teaching or marking) for the duration of a strike.

  • AU’s administrative functions (e.g., Registrar, IT, Library) will also be impeded.

What You Can Do to Help

  • Students: Advise any students considering taking an AU course of the risk of a work stoppage, so that they may make an informed decision about enrolling.

  • Faculty: Contact AU President Neil Fassina (neil.fassina@athabascau.ca) and ask him to conclude an agreement to avoid a strike.

Bob Barnetson, Chair

AUFA Work Stoppage Committee

barnetso@athabascau.ca

Update: AUFA Bargaining and Strike Preparation

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Collective Bargaining

AUFA has been bargaining with the employer for 12 months and we have been without a contract for the past 10 months. After 19 days of bargaining, here is where we are:

  • AUFA has agreed to about 15 small contract changes;

  • AU is insisting upon a two-year agreement (ending June 30, 2020); and,

  • AUFA is prepared to accept a two-year wage freeze but seeks something in exchange for the wage-freeze.

AUFA has offered a variety of items it would accept in exchange for a wage freeze. These include contract language improvements (including creating a meaningful path to regularization for term employees), one-time payments, and a wage-re-opener.

So far, AU has not accepted these options, and indeed has ruled many of them out. AU has also not proposed any meaningful quid pro quos itself.

Informal Mediation

AUFA and AU will be meeting with a government-appointed mediator (Mia Norrie) on June 17 and 18. Informal mediation was recommended by the Labour Board and essentially is a form of facilitated bargaining.

Essential Services Agreement (ESA)

The Labour Relations Code requires that public-sector employers have an ESA in place (or have the requirement waived) before the union and employer can proceed for formal mediation and onwards to a work stoppage.

AUFA proposed a draft ESA in November to ensure counselling services and practicum instruction in the GCAP program continue to function during a work stoppage. AUFA asserts the cessation of these functions creates risk to the health, safety, and/or life of the public.

AU disputes this characterization. AU’s reluctance to agree to an ESA may reflect that the existence of an ESA bars AU from hiring replacement workers (i.e., scabs) during a work stoppage.

An umpire (Deborah Howes) has been appointed by the Labour Board to determine if an ESA is necessary and, if so, which functions would be covered by it. AUFA and AU will be making submissions to the umpire in May and June (respectively) with a hearing date tentatively set for mid-July.

Formal Mediation

Assuming informal mediation does not bring about an agreement, once the ESA question has been decided, AUFA and/or AU can apply for formal mediation. Completion of formal mediation is required before a union can take a strike vote or an employer can take a lockout poll.

Formal mediation operates much like informal mediation. The difference is in the end point. At the end of formal mediation, a mediator may make a recommendation for a settlement that both sides are required to vote upon.

If both sides accept the recommendation, than the recommendation forms a new collective agreement. If one or both sides reject the recommendation, then mediation has failed and the parties proceed towards strike/lockout.

It is difficult to know what a mediator might recommend, but looking at provincial patterns suggests most agreements entail a two-year freeze, language improvements for the union, and a wage-re-opener for at least one year. This is the deal AU signed with AUPE just recently.

Strike Vote/Lockout Poll

If formal mediation does not result in a new collective agreement, then the union can apply to hold a strike vote to seek a strike mandate. A mandate requires greater than 50% support from the members who vote. A successful strike vote is required for a union to strike.

The employer can also apply to hold a lockout poll of the Board in order to lock workers out. A successful strike vote or a lockout poll is valid for 120 days.

While a successful strike vote can precipitate a work stoppage, it  often forces the employer back to the bargaining table. For example, the University of Regina had a successful vote, issued strike notice, and had a deal within 3 days.

Strike/Lock Out

Once a strike or lockout has been authorized, either party can give 72 hours of notice of a work stoppage.

A common employer tactic is to issue notice of a lockout and then bring workers back almost immediately. A lockout (or a strike) ends the existing collective agreement. This allows the employer to bring workers back to work under the employer’s terms (commonly the employer’s last offer).

The union’s only response to such a tactic is to issue strike notice (which allows its members to not return to work under the employer’s terms). For this reason, unions often hold a strike vote so that they can respond immediately to a lockout notice.

Is a Strike or Lockout Likely?

AU’s most recent communication (March 23) asserted that “AU believes that AUFA and AU remain close to an agreement.” On the surface, this appears to be true: only small compromises by AU would be required for an agreement.

Link to AU’s assertion.

Looking more deeply, two things suggest this statement is untrue:

  1. AU is stalling bargaining. AU was unavailable to negotiate between February 13 and April 15,and it is again unable to negotiate between April 22 and June 17. No agreement is likely if the parties aren't talking. And AUFA and AU can't talk if AU won't come to the table.

  2. AU is refusing to compromise. On April 22, AU categorically ruled out an agreement longer that two years or any financial payments to AUFA to offset the two zeros that AU is demanding. AU also did not advance any new positions about regularizing term staff (Article 5). No agreement is likely if AU demands two zeros but offers no offsetting improvements for AUFA members. AU’s position is particularly unreasonable in light of AU’s >$9m surplus and soaring enrolments.

What are the Next Steps?

  • Information picket in Edmonton: May 21 at noon.

  • Informal mediation: June 17 and 18.

  • Information picket: June 17/18 (location TBD).

  • ESA hearing: Tentatively June 19

  • ESA decision: Date unknown (autumn)

  • Formal mediation: Date unknown (autumn).

  • Strike vote: Date unknown (autumn).

  • Strike: Date unknown.

Who Can I Contact?

Information about bargaining: Eric Strikwerda, Chair, AUFA bargaining committee

Information about work stoppage: Bob Barnetson, Chair, AUFA work stoppage committee

Register concern about AU’s behaviour: Neil Fassina, President, AU

Bob Barnetson, Chair

AUFA Work Stoppage Committee

barnetso@athabascau.ca

Information Picket Held in Edmonton

AUFA Picketers outside of the Board of Governors Meeting

AUFA Picketers outside of the Board of Governors Meeting

On March 28, Athabasca University Faculty Association (AUFA) members picketed the Athabasca University Board of Governors Dinner in Edmonton to express their dismay with a lack of progress in negotiation for a new collective agreement. A second picket is scheduled for April 15 in the town of Athabasca.

AUFA is presently offering a four-year deal that includes:

  • A two-year wage freeze,

  • Language to prevent further abuse of precariously employed term staff, and

  • Additional negotiations about cost of living increases in the final two years of the agreement.

This agreement broadly mirrors settlements across Alberta’s public sector as well as the settlement Athabasca University just ratified with its support staff. It also addresses the University’s long-term mistreatment of term employees(an arbitration settlement last fall has forced the University to offer permanent appointments or make monetary settlements to numerous term employees).

The University’s Board of Governors turned down AUFA’s proposed deal during a Labour-Board-supervised vote on March 21. The University and AUFA have met 18 times since bargaining began in May of 2018. One additional bargaining date is scheduled for April 15.

The University and AUFA will be before the Labour Board to continue sorting out an essential services agreement on April 8. An essential services agreement is a prerequisite to formal mediation and a strike vote.

If a new collective agreement in not reached, 40,000 students from across Canada could be affected by a work stoppage in the early autumn. Faculty have been without a contract since June 30, 2018.

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Clarification on AU's Election Communication

As you may be aware, VP Kristine Williamson sent an email regarding communications during the election period. Some members have expressed confusion and concern about the possible limitations. AUFA has sought information from Ms. Williamson, Elections Alberta, the Ministry, and sister organizations to clarify this communication.

Last month, the Government of Alberta published its Election Communication Policy, which restricts “government advertising and other communications activity to ensure that governments neither involve themselves in nor influence elections.” Universities are specifically mentioned as an entity that is to comply with this policy which is available online.

The Elections Act allows the University to continue with communications that are “continuous and “required” but the institution must ensure its communications are in step with provincial requirements during the writ period. The policy is not intended to limit or interfere with academic freedom and does not preclude staff members from engaging with political parties, their candidates or other political party representatives in conducting teaching and research.

Some key guidelines:

  1. Athabasca University cannot make contributions (money or donations in-kind) to any political party or candidate running in an election.

  2. University funds cannot be used to cover the cost of attending partisan political fundraising or campaign events.

  3. University resources cannot be used to promote partisan political events or campaigns.

  4. This would include using your AU email address for partisan political purposes, including distributing campaign information, forwarding campaign materials received in your AU email inbox, or using university mailing or email lists to distribute campaign materials.   

  5. Election signs and posters for candidates may only be placed on the publicly available bulletin boards inside university buildings.  Signs placed elsewhere may be removed.

AUFA will reiterate that the University must recognize the right of students, employees, and professional and academic staff members to participate as individuals in the political process provided they do not use university resources to do so. The pursuit of academic activity related to the election is an important and acceptable activity, subject to applicable legislative frameworks. 

If you are planning an event or meeting during this time where you would normally consider extending invitations to provincial elected officials, please contact your supervisor first.

AUFA Executive Statement on New Zealand Terror Attack

AUFA expresses deeply heartfelt condolences to all affected by the recent mass shooting in New Zealand, followed by the shooting in the Netherlands on Monday. AUFA joins in the mourning of the victims of this terrorism. In this time of sorrow, AUFA reaffirms that it strongly condemns racism, discrimination, and religious intolerance of any kind and urges anyone who experiences threats to contact the AUFA office.  AUFA would also like to remind its members that if dealing with any distressed students, Athabasca University has a Counselling Services Unit that they can approach to address matters of a personal or sensitive nature. 

—Jolene Armstrong, AUFA President

Is Athabasca University Prepared for a Work Stoppage?

With the risk of a work stoppage ongoing, a number of AUFA members have raised important questions about how a work stoppage would work in practice.

The work stoppage planning committee pooled these questions and posed them to Alain May (head of AU’s bargaining team) and Charlene Polege (AU’s Director of HR).

The questions we asked were:

  1. Will AU be limiting or disabling AUFA members’ access to AU’s email systems during a work stoppage? This has implications for ongoing research and disciplinary service work.

  2. How will AU handle ARL, PD and vacation leaves that are underway when a work stoppage commences? Will the leaves be suspended for the duration of a work stoppage and then resumed once the work stoppage ends?

  3. AUFA members often book conference attendance months in advance. If an AUFA member is booked to attend a conference during a work stoppage, will AU reimburse expenses associated with conference attendance (which will mostly be incurred regardless of whether or not the member attends) from PD, APDF, and research grant funds?

  4. How will AU handle AUFA members on causal sick leave (of up to six months) during a work stoppage? Specifically, will AU continue their salaries or suspend such payments?

  5. How will AU handle AUFA members on Research and Study Leave (i.e., sabbatical)? Will such members (some of whom will be overseas) have their pay suspended? Will sabbatical be suspended and extended based upon the length of the dispute?

  6. How will the AU handle AUFA members on term contracts? Will their terms be suspended and extended (which may make sense if they are covering leaves that will also be extended)? Or will their contracts be terminated? Will term members who are CUPE members who are temporarily in AUFA revert back to CUPE appointments during an AUFA work stoppage?

  7. Approximately 200 AUFA members work from home offices and privately pay for telephone and internet access required for their job (for which they receive a stipend). Will AU continue to pay for these services during a work stoppage? If not and, consequently, AUFA members disconnect these services, will AU pay for reconnection fees (plus knock-on costs like new business cards, new letters to students)?

  8. Many AUFA members have possession of AU computers. Will AU ask that members return computers to AU for the duration of the work stoppage? Will AU attempt to remotely limit the operation of these computers (which, again, has significant implications for research and external service activity)?

  9. Some AU programs have practicum (or clinical) components where AUFA members teach and supervise students in a professional setting but that do not appear to meet the definition of an essential service (I’m specifically thinking about undergraduate nursing practicums). How will AU handle such practicums when notice of a work stoppage is served? Will the practicum be suspended and resumed? Or simply discontinued? I would expect that students would also want to know the answer to this question.

  10. AU has certain contractual obligations (e.g., to supply data to third parties) associated with grants. How will AU meet these requirements during a work stoppage? If AU cannot meet these requirements, will AU be alerting third parties to the disruption?

Polege’s response (in its entirety) was:

Thank you for your email. At this time in the bargaining process we are focusing our energy on finding creative solutions that will result in a collective agreement.  If and when there is a strike, we will share information that we deem appropriate within the 72 hour notice period.

 

One explanation for this unsatisfactory response is that AU hasn’t put its mind to how a work stoppage would actually work. An alternate explanation is that AU is withholding this information as a form of leverage. And, of course, both of these things could be true.

Since AU does not seem prepared to address these questions, the work stoppage committee recommends you email any questions you have to your supervisor, cc’ing Polege. cpolege@athabascau.ca

Bob Barnetson, Chair

Work Stoppage Planning Committee

Bargaining Chair Response to President Fassina’s Message to the AU Community

On February 7th, AU President Neil Fassina sent out a direct communication to AUFA members, other AU staff, and students in the form of an open letter and ‘Fact Sheet’ in an attempt to characterize the Board’s proposals as beneficial to AUFA members. Attached is Chief Negotiator Dr. Eric Strikwerda’s response to AU’s Fact Sheet.

In good faith, AUFA will return to the bargaining table starting February 12th in the hopes that the Board team have changed or withdrawn their objectionable language.

Please click the below link to read the AUFA response.