Included in Discovery: Atlantic Education & the Law – Issue 07

Stephen Penney and Tyler Callahan

Universities continue to work creatively to meet market demands despite consistent declines in public funding. Consequently, untenured term appointments and sessional lecturers have come to play an integral role in academia. Accordingly, universities should anticipate more grievances related to temporary faculty. However, university administrators should remain vigilant. Faculty unions are being more creative in their attempts to use the grievance process to make gains that they failed to obtain at the bargaining table. A recent decision from an arbitration between Memorial University of Newfoundland (“Memorial”) and the Memorial University of Newfoundland Faculty Association (“Faculty Association”) illustrates how universities can use bargaining history and past practices to overcome this type of union advocacy.

The precariat

The academic “precariat” are faculty members who work on a temporary contractual basis. Precariat faculty hold titles which vary by institution. Common designations include “sessional”, “adjunct”, or “limited-term appointments.”¹ Recent studies indicate that over half of all university courses are now taught by these individuals.²

The precariat are the subject of increasing advocacy by unions and membership associations.³ Advocates describe the precariat as “highly qualified academics who are underpaid, overworked, and under-resourced, and who feel excluded [in] Canadian post-secondary institutions.”⁴ The Canadian Association of University Teachers (“CAUT”) argues that the increase of precariat workers is the result of shifting priorities of universities rather than fiscal restraints. For example, the CAUT points to greater administrative and development budgets which outstrip increases in academic salary spending.⁵

In response, universities emphasize the need to maintain flexibility. Market demands are not easily met by full-time faculty alone. It is often necessary to use short-term contracts to account for fluctuations in course offerings and enrolment. Moreover, full-time faculty regularly take temporary leaves of absence for a multitude of reasons (and which their unions have bargained for the tenured faculty) including parenting, sabbaticals, and administrative duties. Short-term contracts are an effective tool to cover those gaps.⁶ Term appointments allow universities to remain competitive while ensuring that full-time faculty are able to fulfil their non-teaching duties, and avail of generous leaves.

MUN v. MUNFA

The dispute in Memorial  University of Newfoundland  v. Memorial University of Newfoundland Faculty Association  (2020), 2020 CanLII 45582 (ON LA) centred on the length of term teaching contracts. Typically, individuals selected for term appointments are contracted in the spring to start September 1st until the end of the academic year on April 30th. Contracts are based on 15 weeks of work – 13 weeks for lectures and 2 weeks for grading final examinations per semester. The aggrieved members felt that 15 weeks did not reflect the amount of work required to fulfil the position. Specifically, they felt that the duration of the contract did not account for the time needed to prepare for the courses they were hired to teach prior to their starting dates.

The Faculty Association’s core argument was that Memorial violated the management rights clause of the collective agreement. A management rights clause is a standard provision which typically states that an employer maintains the right to unilaterally exercise powers not within the scope of the collective agreement. The management rights clause in this instance stated that any exercise of management rights power had to be performed in a manner that was fair, equitable, and reasonable. Therefore, the Faculty Association argued that Memorial’s practice of assigning 15-week contracts to term appointees failed to meet that standard.

The Faculty Association also argued that the work done by term appointees prior to the start of the semester unjustly enriched Memorial. Unjust enrichment is a legal concept which allows for compensation when one party receives some benefit at the expense of another party without legal justification.

Memorial responded with three arguments. First, Memorial contended that it had acted within its contractual rights because the collective agreement provided a complete framework regarding the duties and responsibilities of term appointees. “Teaching” was a broadly defined term. The university stressed that the collective agreement as a whole did not require unpaid work, and term appointees are contracted to teach particular courses, not on an hourly basis.

Second, Memorial pointed out that the remedy being sought would extend the term contract period and require amendments to the collective agreement. A remedy of this nature is typically outside the scope of “rights” arbitrations which are limited to providing interpretations of a contract’s provisions. The resolution of a bargaining dispute would require an “interest” arbitration, which is a separate and distinct process usually reserved for relatively rare situations where an arbitrator is asked to adjudicate the terms of a collective agreement between the parties. In other words, Memorial argued that the Union was attempting to get through arbitration what it could not achieve at the bargaining table.

Lastly, Memorial asserted that the Faculty Association was estopped from grieving the longstanding practices related to term appointed contracts. Estoppel is a legal principle which holds one party to a past promise after a second party has relied on that promise to their detriment. Evidence was led to demonstrate that hundreds of term appointments had been made in the decade prior, yet the Faculty Association had never before grieved the length of the contracts. Moreover, the Faculty Association had unsuccessfully tried to negotiate longer contracts for term-appointed faculty in two prior bargaining sessions.

The arbitrator’s decision

The arbitrator held that the Faculty Association could not demonstrate unjust enrichment because the collective agreement read as a whole demonstrated that the benefits Memorial received from pre-semester preparation were justified. Teaching duties as defined in the agreement indicated that it was reasonable for Memorial to expect adequate preparation, especially since term appointees were paid for 15 weeks to teach a semester that was only 13 weeks long. Evidently, preparation was contemplated by the compensation scheme.

Further, the decision stated that fairness in the labour context is informed by evidence of past negotiations. Several rounds of collective bargaining had passed in which the parties agreed to the 15 week contracts, indicating that both sides considered the terms to be fair. Although evidence was led by the Faculty Association to demonstrate that some term appointees start and end on different dates, the arbitrator held that those instances were generally distinguishable because they applied in unique and unusual circumstances and were often undertaken to accommodate the appointee. Therefore, it did not amount to a common practice of the university.

The arbitrator also determined that the grievance was mostly barred by estoppel. The evidence led by Memorial regarding past negotiations demonstrated a “longstanding and fairly consistent pattern of term appointments dating back as far as 2011” which spanned at least three collective agreements without being grieved. Further, the Faculty Association was estopped because their past bargaining conduct had led Memorial to believe that it was compliant with the terms of the collective agreement. There had been no mention of a compliance issue when the Faculty Association had previously bargained for longer term-appointed contracts. In short, the objective of the grievance was “precisely what [the Faculty Association] sought in collective bargaining.” Allowing the Faculty Association to succeed would imply that parties can forfeit goals at the bargaining table only to pursue them at a later date under the guise of a grievance.

Ultimately, the grievance was allowed in part. The arbitrator ordered that Memorial must ensure its term appointees have adequate access to university resources prior to their start date in order to prepare and that the marking of a deferred examination past the contract’s expiry date must be compensated (there had been some mixed evidence on these two points). However, the crux of the grievance – that term appointed contracts should be extended – was unsuccessful.

Conclusion

This case is an example of the sort of advocacy that institutions may see on behalf of the precariat. There will likely be more creative grievances filed seeking additional compensation, benefits, or job security for temporary contractual staff.

Moreover, this case demonstrates that you bargain what you bargain. When a party walks away from the table with a ratified agreement, it serves as an indication to the other party that they consider the terms to be fair and reasonable. Therefore, it is important to ensure your organization has diligent recordkeeping during the bargaining process. This information may prove invaluable should your institution face these sorts of grievances.

^¹ Karen Foster, Precarious U: Contract Faculty in Nova Scotia Universities (Halifax: Association of Nova Scotia University Teachers, 2016) at 3.
^{² Foster, above.
³ See, for example, Karen Foster & Louise Birdsell Bauer, Out of the Shadows: Experiences of Contract Academic Staff (Ottawa: Canadian Association of University Teachers, 2018).
4} Foster and Bauer, above at 4.
⁵ Foster and Bauer, above at 8.
^{6 Karen Foster & Louise Birdsell Bauer, Out of the Shadows: Experiences of Contract Academic Staff (Ottawa: Canadian Association of University Teachers, 2018) at 7.}