AU Walks out on Mediation over IT Optimization

AUFA has had to deal with multiple grievances relating to AU’s so-called ‘IT Optimization’ strategy, including layoff language forcing members into new jobs, coercive language, and the exclusion of AUFA members from the bargaining unit. Most recently, AU abandoned the mediation that it had proposed to resolve many of these issues.

The IT department, as a result of this upheaval, is in a bad state.

Current State

The problems in IT are complicated, but are broadly categorized into issues with backward planning, unclear job descriptions, inadequate transition plans, and absent training. Normally, completion of a major reorganization would rely on documenting the current state of the department and establishing transition and training plans.

AU instead completed the major reorganization first, and then tried to coax the current state of the department into establishing transition and training plans. The expectation from IT leadership was that this ought to be accomplished in 2 – 4 months.

Not surprisingly, a smooth transition has not happened. As of writing many AUFA members are dealing with multiple jobs, confusing squad assignments, poor communication on training, inappropriate job descriptions, and a lack of management over their old work. This is particularly true with members moved from the Faculty of Business, whose original jobs were not understood at all by the central IT department. There is no indication of progress on resolving these issues. Nothing is documented, and service from the IT department is suffering.

The most recent message to members from IT deputies is that transitions can’t happen until all new hires are complete. This is the third time the goal posts have moved on transition plans, which have only been communicated verbally with no acknowledgement of the past timelines.

IT leadership have thus far refused to acknowledge any problematical issues, and statements from HR and the employer’s legal counsel have reinforced the belief that the IT department is working well, and that staff are happy.

Results from a recent survey sent to IT members last month suggest otherwise.

Grievances and Mediation

AUFA has launched multiple grievances due to problems in the IT department:

• The use of layoff language to force staff into new jobs without consultation

• A “take this job or quit” approach to redeployments

• The exclusion of IT middle managers

• Denial of Research and Study Leave (despite repeated claims all requests will be honored)

• Denial of leave time for AUFA duties (historically always granted)

• A reclassification request that was never processed by HR for two years

• A harassment complaint that was ignored by IT management and HR

Every issue in this list has been forwarded to arbitration. The employer’s lawyer contacted AUFA over the first four issues and requested mediation. AUFA requested VPIT Jennifer Schaeffer attend this mediation.

She refused.

Nevertheless, the first day of mediation was productive. We discussed a potential settlement that would walk back aspects of a grievance in exchange for a commitment from IT management towards documented, accountable solutions for issues in the department. Unfortunately, just one day before the second meeting, the employer pulled out of mediation, claiming entirely unrelated posts on the AUFA blog as a reason. This continues a pattern of the employer refusing to engage in good faith collaborative measures with AUFA, and instead push every issue to arbitration no matter the cost to AU.

Everything is being overruled and nothing is documented

In the new IT department, the average staff member reports to a manager, director, deputy, and then the VPIT. None of these four layers of management appear to have any power within the department; every request related to IT Optimization problems goes directly to the VPIT.

And there it is typically overruled.

There is now a familiar pattern of members raising issues: getting ‘buy-in’ from managers up the chain, followed by a period of awkward silence before news of the rejection arrives.

IT’s hierarchy seems to exist solely to keep staff away from the VPIT who, it’s worthwhile noting, only appears in once-monthly staff meetings where recordings are not shared and questions are not permitted.

There is also a dire absence of documentation in the department. The way the new model works—assurances for training, transition timelines, and so on – is mostly done verbally. New roles such as Technical Lead, for instance, require management-level work from AUFA members, and yet their actual duties were only ever communicated in a brief introductory presentation of the model earlier in the year.

With nothing documented, the promises and timelines from IT management are fluid and can change constantly with no memory to the past. As a result, the department is stuck in place and unable to advance. Without documented plans, accountability, and empowered managers, there is no way forward.

What’s Next?

AUFA will continue to pursue its legal strategy as it brings multiple grievances in IT to arbitration. This is a slow process, and although we hope for a positive outcome, results will take time. In the meantime, the status of the IT department continues to worsen. IT leadership has shown no interest in even admitting to, let alone resolving, issues as they have been repeatedly raised by AUFA and AUFA members in every possible venue.

It takes two parties to negotiate. Going forward, AUFA will continue working with members of the IT department on member-driven solutions to these issues.

Solidarity,

David Powell

AUFA President

Strike Primer

One possible outcome of bargaining is reaching impasse (i.e., neither side is prepared to make further concessions in the hope of reaching a deal). If this happens, AUFA members may choose to go on strike to pressure AU to compromise. AU may also choose to lock AUFA members out to pressure us. (And both of these things can happen at once). This blog post is the first of several that will examine what a work stoppage would entail at AU and how AUFA members can prepare for it.

What are strikes and lockouts?

A strike is a cessation of work by employees in order to pressure the employer to agree to a set of proposals. Usually, this involves not attending the workplace but can also entail a formal work-to-rule campaign.

A lockout is when an employer denies its workers work (usually by restricting access to the workplace) and wages in order to pressure the workers to agree to a set of proposals.

In any dispute, workers may strike, their employer may lock them out, or sometimes both of these things can happen. Strikes and lockouts occur after collective bargaining has reached impasse. Strikes and lockouts end when the parties agree to a new collective agreement.

One of the nuances of labour relations is that, while workers must choose to go on strike (see below), an employer can often precipitate a strike by acting unreasonably at the bargaining table and leaving workers no other choice.

What is bargaining impasse?

Bargaining impasse occurs when one or both sides conclude that no further progress at the table is likely to be made. At this point, there are several ways to break the impasse:

• Both parties can agree to enter voluntary mediation, where a mediator helps the parties to seek resolution.

• Both parties can agree to send the dispute to arbitration to have it resolved by a neutral third party (see below). It is worth noting that AU has declined to do this in past negotiations with AUPE.

• Either party can request that the Labour Board hold a proposal vote. If the employer sought a proposal vote, AUFA’s members would be polled by the Labour Board to determine whether they wish to accept AU’s current proposal.

• Either party can commence a process that may lead to a work stoppage.

It is possible for more than one of these scenarios to happen, and the parties may cycle between them. For example, the employer may want to seek voluntary mediation. The union may initially participate but, seeing no progress, offer voluntary arbitration. The employer may decline this and seek a proposal vote by the Labour Board. If the union members turn down the employer’s offer, the union may look to hold a strike vote to improve its bargaining position and then return to voluntary mediation to see if the employer has changed its mind.

As the above example suggests, this process is messy and slow and frustrating. It is designed to be that way in order to give both sides every opportunity to consider the costs of a work stoppage and come to a deal. At any time, though, the union or the employer (or both) can decide to move toward a work stoppage. Similarly, they can also choose to stop moving towards a work stoppage and explore settlement.

What steps precede a work stoppage?

The parties must complete five steps before a work stoppage can commence:

1. Essential services agreement (ESA): The parties must come to an arrangement that ensures that services essential to ensuring the life, health and safety of others and public order continue to be provided during a work stoppage. AUFA filed for an exemption to the ESA requirement in mid-September.

2. Formal Mediation: Upon application of either party, the government appoints a mediator who works with the parties to try to fashion an agreeable settlement. If both sides accept the mediator’s recommendation, then it becomes the new collective agreement. Seeking formal mediation will be the next step towards a work stoppage if there is no meaningful progress in bargaining.

3. Cooling-Off Period: If no agreement is reached during mediation, there is a mandatory cooling-off period of at least 14 days. During this time, the parties can continue negotiations.

4. Strike Vote/Lockout Poll: After the cooling-off period, the union may apply to the Labour Board for a supervised vote to authorize strike action. Similarly, the employer may apply to the Labour Board for a supervised lockout poll to authorize lockout action. A strike may only commence if a majority of AUFA members who vote cast their ballot in favour of a strike. A strong strike mandate will often cause an employer to reconsider what is their true bottom line.

5. Notice of Strike or Lockout: Once one (or both) of the parties has secured authorization (i.e., a majority vote) to strike or lockout, it may serve 72 hours of notice on the other party that a work stoppage will commence.

At any time during this process, the parties can conclude a new collective agreement. The process is lengthy to allow time for the parties to explore all settlement options.

What will happen during a strike or lockout?

This depends for the most part on the employer, but you can likely expect to lose physical and digital access to the workplace for the duration of the work stoppage. A future blog post will discuss making practical preparations for a work stoppage.

You will also likely see a cessation of your wages and a suspension of pensionable service and contributions. A future blog post will discuss the arrangements AUFA has made to assist members to weather a wage cessation, as well as steps to take to prepare for this possibility.

How will AUFA continue operations during a work stoppage?

AUFA has collected non-AU phone numbers and email addresses for approximately 95% of its members. AUFA will use this information as well as its blog to maintain contact with members during a work stoppage. If you have not provided this information in the past and would like to do so, please email aufahq@aufa.ca .

What will AUFA expect of members during a work stoppage?

The withdrawal of labour is a key source of pressure on the employer during a work stoppage. The main purpose of withdrawing labour is to disrupt AU’s operations. AUFA’s executive will determine how a labour withdrawal will work. This might include a full walk out, a partial walk out, or rotating walk outs. AUFA members will be expected to comply with directions from the AUFA executive to not report for or otherwise perform AU-related work during a work stoppage.

Picketing is a common tactic during work stoppages and will form one aspect of AUFA’s strike strategy. Picketing is intended to discourage “customers” from patronizing the employer (i.e., interrupt AU’s revenue streams) and also to embarrass the employer (i.e., cause reputational harm) in an effort to get AU to make AUFA members a reasonable collective agreement offer. AUFA’s work stoppage planning committee is currently discussing various other strike activities that are appropriate given our dispersed workforce.

What happens if I choose to continue working during a work stoppage?

Under AUFA’s constitution, AUFA’s membership can vote to suspend members. Practically speaking, the consequences for crossing the picket line (which is often referred to as “scabbing”) are more informal and involve social exclusion of free-riders by their peers once the work stoppage is over. The emotional pressure caused by social exclusion is often so acute that it causes scabs to seek work elsewhere.

Are there circumstances that might warrant working during a stoppage?

The Job Action Committee has identified members on Research and Study Leave (RSL) or sick leave, and members with special research circumstances (e.g., grant reporting deadlines, data collection, or experiments ongoing on the date of the stoppage) as warranting special consideration.

What are the chances of a work stoppage occurring?

On average, only 1% of negotiations in Alberta ends in a work stoppage each year. The Board’s recent aggressiveness, the government’s rollback mandate, and the opportunity that single-table bargaining presents for them to force major changes in collective agreement language suggests the risk of a work stoppage is higher than average at AU.

How long will a work stoppage last?

The long-term data on work stoppages in Canadian post-secondary education (n=50) suggests the mean duration of work stoppage is 22.5 days and 90% of strikes last less than 6 weeks.

How long a work stoppage lasts at AU will be determined by (1) the issues over which there remains a dispute and (2) the effectiveness of the pressure brought by each side on the other during a work stoppage.

A third factor affecting duration is whether and when the government intervenes to bring an end to the dispute. The recent Ontario college strike (12,000 workers, hundreds of thousands of students) lasted over five weeks before the workers were ordered back to work.

How would a work stoppage affect my pension?

UAPP has identified two implications of a work stoppage for pensions. Both impacts are expected to be slight, based upon the historically short nature of PSE work stoppage.

First, the period of the work stoppage would not be considered pensionable service, since AUFA members would not be receiving pay and neither the member nor the employer would be making pensionable contributions. The effect of this would be to slightly delay the point at which a member received the 80 points (age plus years of service) necessary to qualify for a full pension. This would only affect members intending to retire as soon as they have their “pension numbers.”

Second, for members within five years of retirement, the loss of income may affect their pensionable income. Your pension income is based upon your best five consecutive years of earnings. This effect is expected to be slight and would vary based upon the duration of the work stoppage and a member’s employment history.

UAPP suggests that the period of a work stoppage could be treated as pensionable if that were negotiated as part of the settlement of the work stoppage.

Can the parties go to arbitration instead of having a work stoppage?

If both AUFA and AU agree, items in dispute can be remitted to an arbitrator. At arbitration, a neutral third party decides the content of a collective agreement after hearing presentations by both sides.

Why is AUFA preparing for a work stoppage instead of arbitration?

There are several reasons for this. Over the past 10 years, the Athabasca University’s Board has become increasingly aggressive during collective bargaining. This raises the possibility of the employer using a lockout to force rollbacks in our collective agreement. When there is a strike or lockout, the existing collective agreement is terminated. Employers will sometimes have a short lock out to do this and then invite workers back to work under the employer’s last offer. Unless workers are prepared to strike, they are stuck de facto accepting the employer’s last offer.

For this reason, AUFA needs to be ready to respond to a lockout while continuing to seek a fair and negotiated agreement at the bargaining table. If the employer offered to resolve matters at arbitration, the AUFA executive would consider such an offer. One of the risks that the AUFA executive would consider is that an arbitrator may split the difference between the parties’ respective positions. Depending on how far apart the parties are, AUFA may be able to get a better deal through a work stoppage than arbitration.

Finally, a seeming paradox: a credible strike plan reduces the chance of a work stoppage because it tells the employer that a lockout would be a hard road for the employer. This makes a negotiated settlement more attractive to the employer.

Who can I contact about a work stoppage?

Bob Barnetson (barnetso@athabascau.ca) is the chair of the Job Action Committee.

In the next few weeks, you can expect additional strike prep blog posts that will address making financial and professional preparations for a work stoppage.

Bob Barnetson, Chair

AUFA Job Action Committee

AUFA files for Essential Services Agreement Exemption

Prior to taking any steps towards a work stoppage, such as entering formal mediation, the Labour Relations Code requires AUFA and AU to determine if any AUFA work comprises an essential service. If so, AUFA and AU must negotiate an essential services agreement (ESA) to ensure that essential work continues during a work stoppage.

The Labour Code also allows either party to apply for an exemption on the basis that no AUFA work meets the threshold test of “essential”. Earlier this month, AUFA’s executive decided to file for an ESA exemption on the basis that no AUFA work comprises an essential service. This blog explains what this ESA exemption application means and outlines the next steps.

Essential Services Agreements

Section 95.1(a) of the Labour Relations Code defines an essential service as “those services, the interruption of which would endanger the life, personal safety or health of the public or necessary to the maintenance and administration of the rule of law or public security”.

The requirement for an ESA reflects legitimate concern that, sometimes, work stoppages could endanger the public. For example, the interruption of public utilities (e.g., power, water, emergency medical care) would endanger the life, health, or safety of the public.

If there is the expectation that an interruption would endanger the public, the employer and union must negotiate an ESA before they can move towards a strike or lockout. An ESA outlines how the harm posed by the interruption will be mitigated. For example, the union might agree to provide some level of staffing during a work stoppage.

If there is no expectation of endangerment, the employer or the union can apply for an exemption from the requirement to have an essential services agreement. Disputes about the need for or scope of ESAs are resolved by the Essential Services Commission (i.e., a vice-chair at the Labour Board) who may delegate the work to an Umpire (i.e., a private arbitrator).

ESAs at AU

During the 2018 round of bargaining, AUFA argued that Counselling Services (CS) and the Master of Counselling practicum in the Graduate Centre for Applied Psychology (GCAP) were essential services. AU opposed this position. Each side submitted briefs to an Umpire but bargaining settled before the ESA dispute was heard.

The Labour Relations Code definition of an essential service as “those services, the interruption of which would endanger the life, personal safety or health of the public…”. The test “would endanger” establishes a requirement for proof that the interruption will endanger health, safety, or life with some certainty. The mere possibility of endangerment will not meet this test.

In reviewing AUFA’s 2018 experience, AUFA ESA negotiating team (Bob Barnetson, Jason Foster, Dave Powell and Richard Roach) identified that AUFA had likely not met the burden of proof in 2018 required to have the CS and GCAP work deemed essential.

AUFA’s ESA team then spent several months consulting with affected AUFA members about whether or not it was possible to close this evidentiary gap. In the end, AUFA’s ESA team was not able to find enough evidence to meet the “would endanger” test.

After a review of the ESA team’s analysis by AUFA’s lawyer, the ESA team recommended the Executive file for an exemption. In short, AUFA has adopted AU’s position from 2018 that no ESA is required.

Next steps

AUFA filed an application for an ESA exemption on September 10, 2021. AU asked for an received an extension to file a response by October 7, 2021. AU may agree with AUFA exemption application (since it aligns with AU’s 2018 position) or it may oppose the application, perhaps proposing certain job tasks be subject to an ESA. AUFA will share more information as it becomes available.

Bob Barnetson, Chair

AUFA ESA negotiating committee

AUFA update: Designation, OHS and arbitration delay

This blog post provides a series of short updates on AUFA activities over the past two weeks.

OHS Inspections

The main campus joint occupational health and safety committee conducted a physical inspection of the campus on September 28. The primary focus of the inspection was COVID-19 protocols. The main control AU has implemented for COVID-19 is having staff work from home. There were fewer than 30 staff on campus during the visit.

Other controls included social distancing in common areas, the use of masks, and enhanced cleaning. Overall, there was high compliance with COVID protocols and facilities staff have done a very thorough job. A very small number of non-COVID issues were flagged for remediation.

Membership Meetings

The Membership Engagement Committee has begun holding department specific meetings to discuss issues with members and answer questions in a less formal environment that larger membership meetings. The first of these was held October 2 with IT staff (56 members in attendance) and touched on de-designation, KT optimization, and workload issues. Additional meetings will be held in the next few months targeting those departments or groups with members potentially at greatest risk of de-designation.

Visiting Student Boycott

Two more faculty associations have pledged to join AUFA’s visiting student boycott. The faculty associations at Brock and Manitoba Royal have joined faculty at Alberta, British Columbia, Lethbridge, Saskatchewan, Simon Fraser and Western. These associations have agreed to instruct their members not to send any visiting students to AU in the event that AU de-designates AUFA members. AUFA continues to pursue pledges from other faculty associations.

Arbitration delayed

An arbitration scheduled for this week was delayed due to witness illness. This arbitration concerns a member whose position was declared redundant. Article 12.2 stipulates that, when a position is declared redundant, members receive 12 months of working notice plus a variable amount of pay (up to a maximum of 6 months). Article 12.2 allows AU to provide the member with pay in lieu of the working notice period.

In this case, AU decided that it was only required to pay out the salary for the notice period. AUFA, on behalf of the member, asserts that AU is also required to pay out the value of the benefits the member would have earned during the notice period. This would include the employer’s pension contributions, health care premiums, PD allotment and discretionary benefits payment.

Dave Powell, President

What Bill 9 Means for AUFA Members

Last week, the government introduced the Public Sector Wage Arbitration Deferral Act (Bill 9) in the legislature. If passed, Bill 9 will not directly affect AUFA or its members. Bill 9 will, however, affect the collective agreement presently in effect between AUPE Local 69 and Athabasca University as well as other faculty associations. Bill 9 will also indirectly affect AUFA members.

The crux of Bill 9 is this:

• Many of Alberta’s public-sector unions negotiated multi-year collective agreements under the New Democrat government. These agreements typically saw two years of wage freezes.

• Part of the quid pro quo for these wage freezes was language allowing for additional negotiations about wages (i.e., a wage-re-opener) in the final years(s) of these agreements.

• If these negotiations did not result in agreements between the parties, the disputes could be referred to a neutral third party (an arbitrator) to determine what (if any) wage increase would take place. Most of these agreements have hard deadlines for the resolution any dispute.

• Bill 9 postpones any hearings on wage re-openers until the end of October (or later, in some cases). Presently, Bill 9 affects 24 collective agreements covering 180,000 workers, including the AUPE members employed by Athabasca University.

• Bill 9 does not directly affect AUFA members because (1) we have not concluded a collective agreement yet, (2) AU appears unwilling to conclude an agreement with a wage-re-opener in it, and (3) any wage-reopener we negotiate would fall outside of the timelines set out in Bill 9.

Bill 9 does indirectly affect AUFA members in three ways.

First, Bill 9 changes the terms of contracts after they have been negotiated by the government (either directly as the employer or indirectly through government-appointed agencies, boards, and commissions). Changing agreements after the fact is a significant act of bad faith, and suggests that unions cannot trust public-sector employers to do what they agree to do. While Bill 9 may be subject to a legal challenge, the speed of court proceedings will render any victory moot.

Second, the purpose of Bill 9 is to delay any wage increase until the government has had time to receive the advice of its panel on Alberta’s finances in August. This panel is widely expected to recommend that the government freeze or roll back public-sector wages. Preventing wage increases until after this point makes it somewhat easier for the government to force (perhaps through further legislation) such freezes or rollbacks on public-sector workers. Such legislation may affect AUFA members (it is not possible to know how at this point).

Third, the labour movement is outraged by this violation of collective agreements. While it isn’t clear if union leaders are prepared to stage illegal strikes (which would be the most effective response, but would entail significant financial penalties), many members and activists are openly discussing the possibility of doing so. This creates the possibility of significant social disruption.

Bob Barnetson, Chair

Work Stoppage Committee