What is designation?

Designation is the power given to the Board of Governors of post-secondary institutions in Alberta to determine which individuals or positions are considered to be academic staff members. Under the Labour Relations Code, academic staff members comprise the membership of AUFA. This arrangement is different than almost every other union, wherein the workers choose which union they wish to represent them. The direct relationship between designation and bargaining unit membership is unique to Alberta.

Who is presently designated?

Under the 1983 policy, all AU employees whose jobs are categorized as academic or professional are academic staff members and, thereby, members of AUFA. There are a small number of professional staff (whose jobs are related to labour relations) who are excluded from this broad rule.

Why are professionals and academics in one bargaining unit?

The group of employees designated as academic staff in 1983 was much broader than is common in traditional, bricks and mortar institutions. This was, in part, a reflection of AU’s unique model—quality distance education is a collaborative effort, with many individuals contributing to the success of a course or program. The architects of the original policy intended that the faculty association at AU would be inclusive, encompassing professors, professionals, and academic coordinators.

What change has AU enacted?

On September 11, 2020, AU’s Board of Governors passed a new designation policy. This new policy creates a process by which AU can de-designate staff members (i.e., carve them out of the union).

A strict interpretation of the new policy would make it possible for AU to reduce AUFA’s membership to research-based professors only (approximately one third of its present size). This would significantly undermine the bargaining power of AUFA.

While AU claims it had “no master plan” about de-designating staff, earlier drafts of the policy did explicitly seek to de-designate deans, associate deans, managers, and IT staff. These direct impacts were removed from the policy after nine months of hollow consultation alongside significant pressure from AUFA members and allies.

What are the next steps?

Under the procedure associated with the new policy, AU must identify any positions it seeks to de-designate and consult with the affected unions and staff members. AU’s leadership has indicated they will implement the policy but refuse to identify who they will seek to de-designate first or when they may initiate this. So, the ball is in AU’s court.

AUFA is prepared to respond to attempts to de-designate staff. AUFA will appeal any de-designations to the Alberta Labour Relations Board, though this may be a lengthy and inconclusive process.

Other faculty associations across Canada have pledged to direct their members to no longer send visiting students to AU should AU’s leadership proceed with de-designations. Some faculty associations have also promised to refuse transfer credit and seek to terminate transfer agreements with AU.

AUFA will continue to engage current members by providing up-to-date information, soliciting feedback, and facilitating collective responses.

Why is the AU proposing de-designating AUFA members?

AU has not provided a clear rationale for de-designation. The explanations that have emerged in various employer communications (and a response to each) are as follows:

This policy was among the 60-ish selected as priority for revision among the 200+ that will eventually be reviewed. The reason it was prioritized is that it is old and out of date.

Just because something is old doesn’t mean it’s broken. The university has not provided any indication that the current composition of AUFA poses significant challenges for the university or for the goals of the Imagine plan.

This explanation also doesn’t account for why the university chose to start with a totally new policy rather than tweak the existing one. The university has not provided any explanation of what, exactly, is wrong or not working with designation as it is was previously defined.

We have to revise the policy because of changes in legislation and because of a Labour Relations Board decision (Northern Lakes College).

A 2017 change in legislation gave faculty associations the ability to appeal decisions around designation to the Labour Relations Board (previously, there was no appeal mechanism). It also requires that institutions engage in meaningful consultations with unions if they choose to make changes to the designation policy. It does not spell out any specific parameters for designation—this is still within the authority of each university.

The faculty association at Northern Lakes College tried to appeal a change to their designation policy to the Labour Relations Board. The Board essentially pointed to the process for meaningful consultation in the legislation and pushed it back to the college and faculty association to continue to consult.

Neither of these developments require AU make changes to its 1983 designation policy.

This is not a labour relations issue; we’re simply trying to establish an authentic definition of what an academic at AU does. Any discussion of impact is premature and speculative.

It is difficult to understand how a policy that directly affects the membership of a bargaining unit is not a labour relations issue. The university focused the consultations on what amounts to a thought experiment (“what does ‘academic’ mean to you?”), disconnected from any of the real and urgent implications of changes to the policy. That is, they wanted to focus on content, not impact.

AUFA is asserting that designation is primarily a labour relations matter, and was therefore reluctant to engage too deeply with the definition put forward in the policy in its draft stages. Designation affects AUFA’s membership which, in turn, affects AUFA’s bargaining power. While it isn’t yet possible to determine exactly how a changed policy might specifically impact each individual, there is absolutely cause to sound the alarm about the potential for a large portion of AUFA members to be kicked out of their chosen union.

How will being de-designated affect current AUFA members?

This is very difficult to say as AU has refused to engage in any meaningful discussion of the matter. In the absence of any communication from the employer, what follows is AUFA’s best guess.

THE BIG PICTURE

If you are de-designated, you would continue to have an employment relationship with AU and similar job duties. You may be represented by a different union or you may become a non-unionized employee.

Your substantive rights as set out in the AUFA collective agreement (e.g., wages, leaves, and benefits) are unlikely to change in the short term. AU may subsequently seek or impose changes to your wages and benefits. It will be easier for AU to impose changes if you are a non-unionized employee.

Your continued access to procedural rights (e.g., the discipline process, probationary and reclassification, and workload appeals) may continue, may continue with changes, or may be discontinued, depending upon the specific right and whether you become a member of another union or become non-unionized. AU may also subsequently seek or impose changes to your procedural rights. It will be easier for AU to impose changes if you are a non-unionized employee.

PROFESSIONALS

We believe the de-designation of professional staff would result, at least initially, in professionals becoming non-unionized (i.e., excluded) employees. If professionals become non-unionized as a result of being de-designated, they would then have individual contracts of employment operating under the common law.

It is likely that these contracts would initially contain existing provisions around wages, benefits and other entitlements. They would also contain some of the procedural rights set out in the collective agreement. It would be up to individual employees to enforce those rights (i.e., pay for their own lawyers) if the employer violated the new individual contracts or sought to impose discipline or terminate them.

Under the common law, the employer could propose changes to the contracts of employment. For example, AU could seek to eliminate sabbaticals or reduce layoff notice in order to reduce costs. AU would need to offer to some consideration (i.e., something of value) in exchange for the contractual change. But what AU offered would not necessarily have to be of much value. For example, AU could offer a few extra days of vacation this year in exchange for eliminating sabbaticals (which are worth about 15% of wages).

If the individual workers did not accept the proposed change, the employer may be able to terminate the workers’ employment by providing whatever termination provisions existed in the contract. This dynamic reflects that the job protection and bargaining power of individual employees is weaker than those of unionized employees. Indeed, this loss of power may be one of the attractions to AU of de-designating professionals.

While we believe the most likely scenario following de-designation is that professionals would become non-unionized employees, it is possible that professionals might be rolled into the AUPE bargaining unit by the Labour Board during the litigation around de-designation. (In this scenario, some (possibly all) IT employees would not be eligible to join a union due to specific exclusions in the Public Service Employee Relations Act.)

If this was the case, AUPE would “take over” the AUFA collective agreement for professionals. Subsequently, AUPE would need to either negotiate a new agreement for professionals or incorporate professionals into the existing AUPE agreement.

It is also possible that professionals might subsequently be organized by another union (again, note the possible IT exclusions). In this case, the other union would then need to negotiate a new collective agreement from scratch.

ACADEMIC COORDINATORS

We believe the de-designation of academic coordinators would result in academic coordinators becoming a part of the CUPE bargaining unit (which presently represents “all non-designated academics”).

In this case, CUPE would “take over” the administration of the AUFA collective agreement for academic coordinators. Subsequently, CUPE would need to either negotiate a new agreement for academic coordinators or incorporate academic coordinators into the existing CUPE agreement.

AUFA expects that AU would seek to reduce the rights and entitlements of academic coordinators during any subsequent collective bargaining. It is unclear if CUPE would be able to maintain academic coordinators’ current rights and entitlements in the face of aggressive AU bargaining. A review of wage settlements at AU shows that CUPE wage settlements have significantly lagged behind AUFA settlements.

DEANS, ASSOCIATE DEANS AND MANAGERS

AU previously indicated that it desired to de-designate deans, associate deans, and managers (although it walked back the associate dean exclusion). AUFA believes that, if AU de-designated these positions, they would become non-unionized (i.e., excluded) employees. Any excluded employees would have individual contracts of employment operating under the common law.

Similarly to the professionals (above), these contracts would initially contain existing provisions around wages, benefits and other entitlements. They would also contain some of the procedural rights set out in the collective agreement. It would be up to individual employees to enforce those rights, and the employer could then propose changes to the contracts of employment or seek to terminate them.

It is not perfectly clear if terminated deans and associate deans would have a right of return to their faculty positions under the AUFA agreement. AUFA suspects a return would be possible under the current agreements in place for deans and associate deans.

PENSIONS

AUFA members are currently enrolled in the Universities Academic Pension Plan (UAPP). We expect that all contributions made by AUFA members prior to de-designation would be protected and de-designated AUFA members would be eligible to receive a pension based upon these contributions.

It is unclear whether AUFA members would continue to be eligible to be members of UAPP if they are de-designated. UAPP’s pension agreement (page 102) indicates that AU employees who are eligible to be members of UAPP comprise:

Academic staff (as that term is defined in the Universities Act), executive, management, and supervisory employees of Athabasca University (as those terms are defined by Athabasca University and filed with the Plan Sponsors) … (p. 102)

Academic coordinators and professionals who are de-designated would not likely be eligible to continue in the pension plan. By contrast, deans, associate deans and professionals with the title of director or manager may still be eligible for UAPP membership based on the management and supervisory categories above.

It may be that AU would make provisions for members ineligible to continue with UAPP due to the proposed policy to join a different pension plan. An important question in any transfer is whether the terms of the pension are comparable (e.g., some pension plans have an 85 factor (age plus years of service) to get a full pension while UAPP has an 80 factor.

It may also be possible for AU to alter its definitions on file with UAPP to maintain pension membership eligibility for de-designated staff. This is obviously an issue AUFA will be raising when AU begins consulting with AUFA about specific de-designations.