May 3, 2010

President’s Report

MRFA AGM 2010

Dr David Hyttenrauch

1.      ACIFA, SAFA, the MRFA and the Charter Challenge

a.       A detailed outline of the relevant issues is included in an appendix to this report.

b.      Four aspects of the Post-Secondary Learning Act (PSLA) as it applies to Faculty Associations may violate the Charter of Rights and Freedoms.  Three of them have real and negative effects on the rights of Faculty Association members.

c.       The SAIT Academic Faculty Association (SAFA) is pursuing a legal challenge to the PSLA on two of these issues: designation of faculty and bargaining provisions.  Both have direct impact on the MRFA.

d.      The MRFA has also had an active interest in a third Charter issue, the right to strike, which was removed from us in 2003.  The MRFA wondered whether the two challenges might go forward together facilitated by ACIFA.

e.       Based on legal advice, the two associations’ cases would have different causes of action, precedents, costs, and likelihood of success, and would need to proceed separately:

                                                              i.      The designation and good-faith bargaining case has clearer precedents, fewer potential intervenors, more palatable remedies for government, and the costs are likely more manageable:

                                                            ii.      The right-to-strike case offers not clear precedent, many potential intervenors, remedies government would likely fight through the levels of appeal, and for all these reasons would be more costly.

f.       Process

                                                              i.      SAFA has expressed its intention to proceed to a legal challenge.

                                                            ii.      A suit on right to strike would have to be initiated separately by the MRFA against the Board of Governors and Government of Alberta.

                                                          iii.      ACIFA Presidents’ Council has directed the ACIFA Executive to establish a legal support fund for a Charter challenge to the PSLA.  The MRFA has committed, in principle, $10 000 to this fund.

g.      Recommendations

                                                              i.      I recommend that we formally commit the initial $10,000 amount when SAFA takes its case forward, in support of our mutual interest.

                                                            ii.      I recommend that we consider committing another $10,000 from our professional fees fund if it is helpful or necessary to advance SAFA’s suit.

                                                          iii.      I recommend that we not pursue an independent Charter challenge on right-to-strike while we await new legal precedents, a change of government, or a material change in our bargaining environment.

2.      Committee Activities

a.       Executive Board

                                                              i.      Exec meets frequently to carry out the routine and strategic business of the Association, including case management, committee designations, advice to committees and institutional processes.

                                                            ii.      The Faculty Centre Management Committee, a sub-committee of Executive adding MRFA staff, meets monthly to deal with operations issues and concerns with the Faculty Centre, activities and functions.

b.      Part-Time Faculty Task Force

                                                              i.      This Task Force, co-chaired by me and Robin Fisher, Provost and VP Academic, met over the second half of the year to identify part-time faculty concerns, generate a list of principles, and develop preliminary recommendations.  Its draft report recommendations will be conveyed to the two negotiating committees and to the Deans and Chair groups.

c.       Budget Advisory Committee

                                                              i.      This committee is advisory to the President of the University and includes representatives from various internal stakeholder groups.  It met periodically to give advice to senior administration and the Board on the budget and its challenges.

d.      Faculty Awards Working Group       

                                                              i.      This ad hoc committee was formed to review the principles and policy related to the distinguished faculty award.  Its recommendations will go forward to senior administration and then to the Board of Governors for review and approval.

e.       Honorary Appointments Committee

                                                              i.      This group met periodically to make recommendations on appropriate recipients for honorary degrees and for emeritus professor designations.

f.       General Faculties Council

                                                              i.      Major concerns regarding the relationship between curriculum approval and workload allocation were resolved effectively through the Academic Program and Policy Committee.

3.      Tenure Workshops

a.       Over the academic year, I delivered 25 workshops to train tenured faculty in the new Collective Agreement tenure processes.  These were developed and delivered jointly by the MRFA, Human Resources, and the Provost and VP Academic.

b.      The direction of these workshops and elements of the Collective Agreement was influenced by the MRFA White Paper on Tenure, circulated last year.

c.       These workshops mark an important step in addressing due process and procedural fairness rights in the tenure system.

4.      MRFA Forums

a.       In February and March I led a series of workshops on key strategic issues:

                                                              i.      The MRFA’s role in academic governance

                                                            ii.      The MRFA’s external relationships

                                                          iii.      The MRFA’s role in academic leadership succession at Mount Royal

                                                          iv.      The MRFA’s proposed changes to the Ethics bylaws

b.      The forums were lightly attended but featured very good conversations about the issues.  Summary documents of those discussions have provided useful feedback to the Executive in its long-range planning.

5.      Grievance Report for 2009-2010

a.       A policy grievance related to the scope and application of the Personal Harassment Policy has moved to Step 5, Arbitration.  The case will be heard by an arbitration panel in the 2010-2011 academic year.

b.      A grievance related to part-time selection criteria and processes was resolved at Step 2 with a finding that no violation of the Collective Agreement had occurred.  The case did highlight significant concerns about ambiguity in the part-time selection articles, especially related to accumulated experience.

c.       A grievance related to part-time selection criteria and performance evaluation was resolved at Step 2, with a finding that performance concerns which formed the basis for an initial decision not to reappoint were not clearly communicated to the member.  The case also highlighted concerns about inappropriate linkages between part-time appointments when the member works in two different departments.

d.      The MRFA provided advice and support during a disciplinary investigation.

e.       A grievance related to part-time selection criteria and practices was resolved at Step 1.  The case again highlighted significant concerns about ambiguity in the part-time selection articles related to accumulated experience.

f.       A grievance related to full-time faculty workload allocation and performance evaluation has advanced to Step 2.  The report found that the Collective Agreement was violated in that a workload decision was made without appropriate consultation; in that certain records related to performance were improperly retained; and in that a particular evaluation was not carried out in accordance with the relevant policy.

6.      External Activities

a.       I participated in regular ACIFA Presidents’ Council meetings and attended the CAUT annual Presidents’ Forum.

Respectfully Submitted,

David Hyttenrauch, MRFA President
Appendix: ACIFA, SAFA and the Charter Challenge

1.      ACIFA, SAFA and the Charter Challenge

a.       Faculty Designation: The Background

                                                              i.      Under the Postsecondary Learning Act (PSLA), Boards of Governors have the sole right to designate or de-designate faculty.  They are required only to consult with the relevant academic staff association.

                                                            ii.      From 2007 to 2009, ACIFA worked with the Alberta Association of Colleges and Technical Institutes (AACTI, the institutions’ provincial federation) to try to agree on a best practices document for designation issues, partly to make consultations more meaningful.  AACTI did not adopt the final document, reportedly because SAIT’s administration and Board would not accept reduced authority to designate.

                                                          iii.      ACIFA had received assurances that it would be invited to recommend any appropriate changes to the PSLA while it was being reopened recently to change the Roles and Mandates framework, the enabling piece of the legislation that allowed Mount Royal and Grant MacEwan to become undergraduate universities.  In the end, ACIFA was not invited to participate.

                                                          iv.      After a submission by ACIFA to government regarding the designation issue, government refused to make any legislative changes or to enforce the draft agreement between AACTI and ACIFA.

                                                            v.      At SAIT, there is systematic use of the designation power to remove faculty from the bargaining unit, to allow non-faculty to teach in credit programs, and to move programs from a credit to a non-credit extensionor cost recovery basis.  On a similar program and student base, the SAIT Academic Faculty Association (SAFA) has about half the membership of the NAIT Academic Staff Association.

b.      The Prohibition on Strikes: Background

                                                              i.      In 2005, the MRFA took a case to arbitration arguing that then-recent and ambiguous changes to the PSLA imposing binding arbitration as the final resolution mechanism in labour disputes should not preclude the right to strike prior to arbitration.

                                                            ii.      Of all the Faculty Associations in the province, only the MRFA had not bargained away the right to strike in exchange for other considerations.  The changes to the PSLA were reportedly a direct result of Mount Royal’s Board of Governors lobbying after previous proposed strike action by the MRFA.

                                                          iii.      The Arbitrator found against the MRFA, essentially ending the right to strike.  Job action short of an actual walkout (including work-to-rule) is construed as strike action, so it is prohibited as well.  Since the Act also excludes the MRFA from access to labour standards codes and resolution mechanisms through the labour board, and since it does not bind employers to bargain in good faith, this perpetuates a very problematic labour environment where the MRFA has few tools in the face of intractable disputes.

                                                          iv.      The change to an interest-focused bargaining process for the MRFA and Board of Governors coincided with the loss of right-to-strike.  In the last five years and two bargaining rounds, we have operated amid a constructive relationship between the MRFA and Board, emphasizing trust and achieving mutual interests.  While we benefit greatly from maintaining that relationship, the bargaining environment may change over time.

c.       Proposed Charter Challenge

                                                              i.      At ACIFA President’s Council, SAFA has expressed an intention to bring a Charter of Rights and Freedoms challenge to the PSLA.  This is based on a firm legal opinion, including recent Supreme Court of Canada precedents, that the PSLA likely violates Charter rights to freedom of association in respect of the ability of employees to form an independent labour organization and to engage in free collective bargaining.

                                                            ii.      ACIFA and its members have identified various potential causes of action related to the PSLA and Charter rights:

1.      That the Boards’ right to designate faculty gives them unilateral authority to determine the members of a bargaining unit;

2.      That the Act’s creation of academic staff associations with a legal duty to represent all designated faculty members infringes on the right of employees to organize and choose democratically their bargaining agent [bearing in mind that the Associations feel well-served now by not needing to organize as a union];

3.      That the exclusion from access to various labour codes and standards including placing no obligation of good faith bargaining on the Boards of Governors is an unreasonable restriction on collective bargaining; and

4.      That the prohibition against strikes infringes on labour rights under free collective bargaining, especially since post-secondary education is not designated an essential service.

                                                          iii.      Bill Johnson, the lawyer for both SAFA and the MRFA, has expressed an opinion on the relative merits of the two Associations’ central concerns.  (The full opinion is available on request.  The following is a bare summary.)

1.      On designation, there is a clear precedent in a recent Health Services case from B.C. which was heard by the Supreme Court of Canada.  The court’s ruling clarified the scope of collective bargaining, limited governments’ abilities to constrain the process of collective bargaining through legislation, and obligated governments to ensure good-faith bargaining.  Further precedents based on that ruling have refined and delineated which (contested) rights must be part of collective bargaining: good faith bargaining, exclusive bargaining agency, statutory dispute resolution mechanisms, and the ability to form an association voluntarily and independent of management interference.  The designation and good-faith bargaining issues are narrowly defined and particular to the Alberta PSE context.

2.      On right to strike, there is no clearly established legal precedent in Canada that free collective bargaining includes a right to strike.  Right to strike is not a narrowly defined issue because it is not limited to one employment sector and has national implications.  The case would have to break new ground in demonstrating first that strikes are an intrinsic part of free collective bargaining, and second that restricting the right to strike is unreasonable under the Charter.

                                                          iv.      The two cases represent separate causes of action by separate litigants, each with a distinct history of conflict with the provisions of the PSLA.  The defendants would be, separately, the Boards of Governors of the two institutions, with the Province of Alberta as a second defendant in each instance.  In other words, the two suits would be separate actions of SAFA and the MRFA which happened to coincide around elements of the PSLA.  After they were initiated, a judge might agree to merge the two because there are some points of commonality.

                                                            v.      The other elements of the Charter challenge to the PSLA have implications for the MRFA and all the other faculty associations; right to strike has implications only for the MRFA and not (in their minds) for other associations.

                                                          vi.      The outcome of the designation and good-faith bargaining case is more predictable, and the costs likely more manageable:

1.      Well-established legal precedents support the Charter challenge.

2.      Essentially the only defendant and intervenor would be the Government of Alberta.

3.      The remedies of introducing good-faith bargaining and requiring mutual decisions on designation are likely more palatable and might even be settled before trial or before an appeal had gone very far.

                                                        vii.      The right-to-strike case outcome and costs would be much less predictable:

1.      There is no clear precedent.

2.      Many governments and labour organizations would be at least interested in the case and might seek intervenor status.

3.      Politically, a government is unlikely to permit a restriction on its ability to limit strikes under labour law short of a full appeals process including appeal to the Supreme Court.

d.      Process

                                                              i.      SAFA has expressed its intention to proceed to a legal challenge on Charter principles and would almost certainly limit this challenge to the issues of designation and good-faith bargaining.  They will likely launch the suit within this calendar year.

                                                            ii.      Any suit on right to strike would have to be initiated separately by the MRFA against the Board of Governors and Government of Alberta.

                                                          iii.      ACIFA Presidents’ Council has directed the ACIFA Executive to establish a legal support fund for a Charter challenge to the PSLA.  The details of the fund will be presented at the next Presidents’ Council meeting on 16 May 2010 and go forward to the ACIFA AGM on 18 May.  The MRFA has committed $10,000 in principle to this fund.

e.       Recommendations

                                                              i.      I recommend that we formally commit the initial $10,000 amount when SAFA takes its case forward, in support of our mutual interest in changes to other elements of the PSLA.

                                                            ii.      I recommend that we consider committing another $10,000 from our professional fees fund at some future date if it would be helpful or necessary to advance SAFA’s suit.

                                                          iii.      I recommend that we not pursue an independent Charter challenge on right-to-strike pending any new legal precedents, a change of government in Alberta, or a material change in our bargaining environment.