Looking back over half a century of bargaining by university faculty and librarians, it is clear that not all academics have seen the same benefits. Is the Ontario Labour Relations Act to blame and how can the scales be rebalanced?
Once again, Ontario faculty find themselves confronted by a government determined to undermine the laws and regulations that provide the foundation and framework for the province’s collective bargaining regime. In response to the Ford government’s legislation capping the compensation increases public sector unions can negotiate, OCUFA has joined with other unions to defend the constitutional right to “free and fair” collective bargaining by challenging this legislation in court.
We have been here before. Between 1993 and today, governments led by each major provincial political party introduced legislation to undermine public sector collective bargaining, cap compensation, or end public sector strikes.
This is an opportune time to reflect on what a free and fair collective bargaining regime means for faculty, academic librarians, and other academic professionals. What gains have been made to terms and conditions of employment in half a century of faculty and academic librarians collectively bargaining under the Ontario Labour Relations Act (OLRA)? Who has benefited from these gains? What elements of the current regime are essential to the labour movement’s conception of free and fair bargaining? What structural or procedural obstacles might account for workplace problems that remain unsolved at Ontario’s universities?
Faculty bargaining outcomes under the OLRA
Ontario faculty associations began to unionize in the 1960s and today they have one of the highest rates of union density of any occupation covered by the OLRA. As the reliance on contract faculty increased in the 1980s, faculty associations and the Canadian Union of Public Employees (CUPE) began to certify contract faculty separately or in combined units with tenured faculty. Looking back, we now have half a century of bargaining outcomes for tenured faculty and academic librarians, and somewhat less for contract faculty, to measure against their goals and priorities.
This article’s high-level summary of bargaining outcomes reveals that the existing OLRA bargaining regime results in very disparate outcomes for faculty. Faculty members’ type of appointment, whether they have secured tenure or work on contracts, seems to be the main determinant of whether they can solve their workplace problems through negotiations. The power gap between permanent and contract faculty is evident in compensation negotiation outcomes, as well as bargaining outcomes on rules, processes, and governance provisions.
The existing OLRA bargaining regime results in very disparate outcomes for faculty.
Salaries, benefits, and pensions
The salary model for tenured faculty and, to a lesser degree, academic librarians pre-dates unionization. With only a few exceptions, this model was incorporated into collective agreements when union certification took place. In the absence of legislative caps, improvements to tenured faculty salaries have closely tracked inflation. However, as Felice Martinello reveals in “University Revenues and Faculty Salaries in Ontario: 1970/71–2003/04,” salary increases for faculty strongly correlate with increases to provincial operating grants, a variable outside the scope of faculty bargaining in the existing regime.
Another challenge are the wage gaps that exist within the sector. Among tenured faculty, there is a gender pay gap of approximately 11 per cent. Anomaly funds negotiated by faculty associations have ameliorated the gap, but weaknesses in the underlying salary structure, such as the negotiation of starting salary, time to promotion, and merit evaluation procedure, perpetuate the gender pay gap. The pay gaps between tenured faculty and other categories of faculty (academic librarians, teaching stream, and contract faculty) also remain largely unaddressed.
While contract faculty wage increases have also tended to at least match inflation, the stipend structure used to compensate contract faculty is so inadequate that the use of this metric for measuring gains is questionable at best. OCUFA’s research has demonstrated an approximate 40 per cent pay gap between contract faculty and tenured faculty in per-course compensation. For contract faculty, the existing collective bargaining regime has not resulted in compensation that corresponds to the social value of their work or the human capital of the worker.
Faculty associations have slowly and steadily made gains in pensions and benefits for tenured faculty and academic librarians over the last half a century. When benchmarked against the broader public sector, the average non-salary compensation for full-time faculty is generally similar to other workers at this salary level. Conversely, pension and benefit coverage for contract faculty is uneven across the sector and inadequate when benchmarked against any comparable group of permanent employees with similar work responsibilities and job qualifications.
Workplace rules, governance, and fair processes
It is no secret that governments tend to obsess about the 20 per cent of a collective agreement that affects compensation. However, it is in the 80 per cent of the agreement that governs workplace rules and processes where faculty have made the greatest gains through collective bargaining. Collective agreement clauses curtailing harassment and discrimination, limiting the arbitrary application of managerial power, protecting intellectual property and academic freedom, ensuring health and safety, and creating fair discipline and grievance processes represent real and significant improvements to working conditions relative to the standards in place prior to unionization. Further, access to binding arbitration, guaranteed under the OLRA, ensures that these standards can be enforced once negotiated.
In many of these areas, contract faculty have similar or identical rights to tenured faculty and academic librarians, with one glaring exception. Tenured faculty and academic librarians have carefully detailed appointment and evaluation procedures, culminating in the granting of tenure and a permanent appointment, and which is protected by strong collective agreement language governing financial exigency, redundancy, and layoffs. In contrast, contract faculty have struggled, fought, and struck to achieve only modest degrees of job security. And, even then, this security generally only applies to specific previously taught courses, is subject to positive evaluations by students and peers, and is unprotected in the case of financial exigency or redundancy.
Faculty associations have been quite successful at bargaining rules to protect collegial self-governance and shared departmental level governance. However, the influence of that representation relative to the centralized power structures of university boards of governors and trustees remains an issue of contention. Meanwhile, collective agreements only provide contract faculty with limited access to representation in these governance structures.
As to the university’s central decision-making bodies, faculty associations have yet to succeed in negotiating meaningful improvements to their composition, practices, or authority, including input in the development of university budgets or the hiring and search procedures for presidents, provosts, and other senior administrator positions.
Unresolved university sector issues
There are a number of areas where collective bargaining has proven inadequate for solving the problems facing faculty as a collective or the university sector as a whole. Two of these areas routinely top faculty association bargaining surveys as priorities: faculty complement size and workload, and precarious working conditions for contract faculty.
There are a number of areas where collective bargaining has proven inadequate for solving the problems facing faculty as a collective or the university sector as a whole.
A number of faculty associations managed to negotiate complement guarantees in the past and, as a result, there are several legacy clauses in collective agreements to this effect. However, university administrations re-defined faculty complement size as a management rights issue a number of years ago and administrations now routinely refuse to engage with union proposals in this area. As a result, the system-wide ratio of students to full-time faculty continues to worsen.
Similarly, caps on the use of contract faculty are present in a few legacy agreements, but university administration regularly use bargaining to pressure faculty associations to amend or remove these clauses, and administrations will not entertain new clauses in this area. Further, as noted above, attempts to negotiate job security gains for contract faculty are strongly resisted by administrations. The result of this bargaining impasse is the growing reliance on and abuse of contract faculty.
The OLRA’s limits and restrictions
There is no question that the Ontario Labour Relations Act puts precariously employed workers in all sectors at a disadvantage. While the current collective bargaining regime has many strengths that have served workers well, it also limits the exercise of collective power in ways that calls for further examination.
A truly free regime of collective bargaining would not unduly hinder or impede the use of collective power to achieve worker objectives. Additionally, a fair bargaining regime would acknowledge that the parties begin with vastly unequal power and that public policy plays an important role mitigating this inequality or, at the very least, not exacerbating it.
Clearly, legislation that mandates a particular compensation outcome or truncates a strike prematurely violates the fundamentals of a free and fair bargaining regime. However, many other constraints imposed by the OLRA undermine the power of faculty associations and constrain their capacity to solve serious problems—both on campus and within the broader society they serve.
Workplace and bargaining unit based limitations
The OLRA restricts bargaining to an individual’s workplace and employer. As a result, collective bargaining can only solve problems that are local in nature and allocate resources within the university’s control. This means that, despite the substantial workplace problems academics face as a result of the government’s chronic underfunding of postsecondary education, overall university funding levels cannot be bargained.
The OLRA also limits bargaining to a very specific group of people—those defined as “the bargaining unit.” As a result, problems that affect all workers in an institution or a group of workers across the university system, such as contract faculty, must be dealt with unit-by-unit and university-by-university. Workers can coordinate across bargaining units or through coalitions across universities and unions, but the legal framework for bargaining does not incorporate or facilitate these strategies. For a one-year window in 2018, the OLRA allowed unions to consolidate bargaining units to gain power, but the Ford government slammed that window closed upon election.
Further, it is not possible to bargain for members who are no longer in the bargaining unit (retirees, for example). Should changing circumstances affect the pension plan or post-retirement benefits, the union cannot directly represent former members (nor can retirees access the tools of the OLRA on their own). Contract faculty who do not have a contract to teach during the window in which bargaining is occurring have no legal labour rights under the OLRA, regardless of the frequency with which they may teach at the university.
Many of the challenges that impede the academic process of students, or prevent them from accessing a university education in the first place, lie in broader societal inequalities and injustices beyond collective agreements. Except in an indirect way, it is not possible to bargain for the interests of students or potential students, except insofar as their needs are directly impacted by the terms and conditions of faculty work. And, while students’ unions exist at many of Ontario’s universities and colleges, their status is not recognized in any legislation and they do not have the same legal rights as labour unions.
Restrictions on the right to strike
The right to strike is the single most important element of a free and fair collective bargaining regime. For a faculty association, or any workers’ union, to pressure the employer to concede to its demands, it must be able to withdraw its labour and impose disruption costs on the employer proportionate to the financial cost or re-balancing of power required by those demands.
Yet, the OLRA has constrained the rights of workers to withdraw their labour from inception. Legal strikes are limited to a very small window of time once the agreement has ended. Because of the local nature of bargaining, it is not legal to undertake a solidarity strike in support of others fighting for the same demands or bargain together to solve shared problems. It is also not legal to strike in support of students or for necessary changes to the broader postsecondary education system if they fall outside the purview of a collective agreement. Like all workers, faculty, academic librarians, and other academic professionals are legally constrained in who they strike or picket against, where they strike, when they strike, and which strike tactics they are legally allowed to engage in.
One of the great strengths of the OLRA is its protection of permanent employment should workers withdraw their labour through a legal strike. While this provision might protect tenured faculty from retaliatory acts by a university, it cannot ensure that contract faculty will be offered contracts in the future.
Would a new framework for bargaining in Ontario improve outcomes?
Many academics, unions, and practitioners question whether the current collective bargaining regime remains appropriate for an economy increasingly dependent on precarious labour and with an ever-growing imbalance in power between workers and employers.
The Labor and Worklife Program at Harvard University recently released the report “Clean Slate for Worker Power: Building a Just Economy and Democracy,” which includes input from experts around the globe. The report’s many public policy proposals are designed to create more democratic and just workplaces. Many proposals include encouraging broader based bargaining at the sector or industry level, while others call for lifting existing constraints on strikes so that workers can direct their collective action against the entity they believe is exercising real power over their lives.
These policy ideas are worthy of serious consideration. Under the existing OLRA regime, the current challenge is how workers can leverage their collective power to build a labour movement strong enough to solve persistent workplace problems and secure an improved collective bargaining regime that provides ways to address broader systemic inequalities and advance the public good.
The OLRA was a result of illegal strikes that impeded the functioning of Ontario society and forced government to concede to a previous generation’s demand for free and fair collective bargaining. In many right-to-work states in the US, where weak or employer privileging labour laws prevent fair bargaining outcomes, education workers are once again utilizing illegal strikes to change labour laws, improve the education system, and make gains for their members.
Worker solidarity and organizing across all employers, workplaces, and jurisdictions has been the only labour tactic that has consistently delivered fair rules, fair bargaining outcomes, and a fairer society. At some future date, the courts may ultimately strike down the Ford government’s compensation cap legislation. But, for now, we need to organize and bring all workers into the labour movement’s struggles. Only then will we get the rules, outcomes, governments, and, ultimately, court decisions that Ontario workers deserve.
