It has been an eventful and exciting week in bargaining so far, and we wanted to share the following update with you regarding faculty workload proposals and Bill 124. Please pass it along to your faculty colleagues, but we ask that you not post the brief in its entirety on social media or other public forums, as it is protected by solicitor-client privilege.
Legal Brief Supports Faculty Proposals
Throughout this round of bargaining, the College Employer Council (CEC) has repeatedly refused to negotiate significant issues regarding workload, staffing, or fairness for partial-load faculty. They have justified their obstinacy by claiming that changes to these areas would violate Bill 124, which limits compensation increases to individual employees in the public sector.
At no time has the CEC ever offered a substantial legal analysis to support their position, which they have often repeated.
OPSEU requested a legal brief on Bill 124 as it impacts our bargaining, from Christine Davies of the law firm Goldblatt Partners LLP. The conclusions of this brief, which is attached to this e-mail, are clear:
“In our view, the union’s proposals regarding workload do not offend Bill 124”, since the tabled faculty proposals “...do not result in an increase to salary or compensation, as defined by Bill 124.”
Davies confirms that impacts to Employer costs through changes to workload or staffing are distinct from the changes to employee compensation that are the subject of Bill 124. She writes, ”Nothing in Bill 124 requires employers to limit themselves to 1% increases in the cost of delivering their services[, including] from hiring additional staff or changing staffing models. . . . Rather, Bill 124’s focus is more narrowly on restricting the increases in salary/compensation that flow to employees.”
Davies further explains that disagreements in Bill 124 actually justify referring unresolved issues to arbitration, as the faculty bargaining team has proposed since November. She concludes, “a solution to the parties’ disagreement regarding whether the Union’s proposals are consistent with Bill 124 would be to resolve the outstanding bargaining through binding interest arbitration”.
The CEC has frequently relied upon a report written by Mediator Brian Keller–written following the failed mediation between OPSEU and the CEC–to support their claims about Bill 124. Davies, however, notes that Keller’s report is not a legal analysis, but rather was written, “in a mediation context,”where Keller“did not have the benefit of legal submissions regarding the application of Bill 124 to specific proposals.”
For months, the faculty team has argued that the CEC should either bargain, at the table, the issues that are important to faculty or refer outstanding issues to binding interest arbitration. In her legal analysis, Christine Davies concludes that both of those options are permissible and appropriate in light of Bill 124.
Your bargaining team,
JP, Jonathan, Katie, Michelle, Ravi, Rebecca, and Shawn