Canadian Military Colleges Faculty Association

The Canadian Military Colleges Faculty Association represents academic faculty at the Royal Military College of Canada, Royal Military College St. Jean, and the Canadian Forces College.

CMCFA • News

Federal Public Sector Labour and Employment Board Decision: Lukits v. Treasury Board

On March 13, 2019 the Federal Public Sector Labour and Employment Board (the “Board”) released its long-awaited decision in this matter. The decision deals with a grievance filed by CMCFA member, Dr. Steven Lukits, a UT in the English department at the Royal Military College of Canada (“RMC”). Dr. Lukits filed the grievance after he was ordered by the RMC Principal, Dr. Harry Kowal, to hand over his course notes in compliance with an ATI (Access to Information) request.

Background

Dr. Lukits joined RMC as a full-time UT in July 2002. On March 22, 2013 the ATI Coordinator forwarded a request to the Canadian Defence Academy (CDA) for “course materials, lecture slides, hand-outs, course packages and hand-written notes prepared for and/or by Dr. Steven J. Lukits …” for English ENE 453 (War Literature II).

Under subsections 2(1) and 4(1) of the Access to Information Act, (AIA), access is provided to “records under the control of a government institution”. There was no dispute that the RMC was a “government institution” for purposes of the AIA. The principal issue was whether Dr. Lukits’ course notes were within the control of the RMC.

Dr. Lukits and then-Principal Dr. Sokolsky met and, although other materials in the request were voluntarily provided, they agreed that the course notes were not under the control of the institution. However, a JAG opinion contradicted that view, and Dr. Lukits contacted his union, the Canadian Military Colleges Faculty Association (CMCFA) for advice and assistance. On April 5, 2013 the CMCFA, now representing Dr. Lukits, wrote to Principal Sokolsky asking the College to “cease efforts to compel the production of Professor Lukits’ course material.” Principal Sokolsky wrote to BGen Tremblay, then-Commandant of RMC, concurring with the position not to hand over the notes. In 2013 Dr. Kowal replaced Dr. Sokolsky as Principal. The grievor received a letter on November 5, 2013, dated October 29, 2013, ordering him to turn over his course notes. Principal Kowal’s response was that the grievor had to obey this order, under threat of discipline. Dr. Lukits provided his notes, and the union proceeded with a grievance. (Note that after considerable discussion and communication on February 15, 2017 Dr. Lukits received written confirmation that his notes would not be released until the outcome of the adjudication.)

The Case

Two hearings were conducted on this case, in 2015 and in 2017. The first hearing concerned the employer’s objection to the jurisdiction of the Board to hear the case, and this objection was dismissed in 2017 PSLREB 6.

In the second hearing, counsel for the CMCFA argued, on the basis of documentary and oral evidence, that the course notes belonged to the professor alone, and thus could not be subject to an access to information request. Four professors testified who were teaching or had taught at the College. They gave the same evidence, which the adjudicator summarized as follows:

  • they all believed that notes they had made with respect to their lectures were their personal property;
  • the College did not require them to prepare course notes for their courses or lectures;
  • the notes were in some point-form format to be used as a type of aide-memoire;
  • the College did not require them to produce their course notes to anyone;
  • the College did not impose any standards on them with respect to making or storing course notes;
  • they were not aware that the College used their course notes in any way or that the notes were in any way integrated into its record;
  • they were not aware that the College placed any reliance on their course notes for any purpose;
  • they stored their course notes on College premises; and
  • some kept course notes at the end of an academic year, and some destroyed them (Lukits v. Treasury Board, 2019 FPSLREB 32, pp. 36-37).

Effectively, the notes were not under the control of the College and thus could thus not be subject to an access to information request.

The union argued further that an order to produce the notes violated Articles 5 and 8 of the collective agreement (Academic Freedom and Past Practice).

The employer argued that, because Dr. Lukits was a government employee and that his course notes were linked to “preparing material for the courses the grievor teaches” in the course of doing his job, they were subject to the Access to Information Act.

The Board’s Decision

The outcome effectively depended on the Board’s answer to this question: “Are the course notes subject to the AIA?” (Lukits v Treasury Board, 2019 FPSLREB 32, p. 31).

The adjudicator relied upon both the documentary and oral testimony, and the fact that “no evidence submitted suggested the opposite of the evidence put forward by the grievor and Drs. Delaney, Boulden, and Errington with respect to course notes” (Lukits v Treasury Board, 2019 FPSLREB 32, p. 37). The adjudicator stated: “…it is clear to me that the professors, and not the College (government institution), maintained control over course notes” (Lukits v Treasury Board, 2019 FPSLREB 32, p. 37).

The Board was also satisfied that the CMCFA demonstrated the violation of article 8 (past practice) with respect to course notes.

The Board also agreed with the CMCFA that the employer violated article 5 (academic freedom), “…as it would be an attempt by the employer to force the production of material created for and in the course of teaching and research that is otherwise protected by the principle of academic freedom” (Lukits v Treasury Board, 2019 FPSLREB 32, p. 41).

The Board’s Order is straightforward and can be found at paragraphs 153-156 of the decision:

[153] The grievance is allowed
[154] The employer breached the collective agreement.
[155] The employer is ordered to return to the grievor all copies of the course notes
[156] The course notes as entered into evidence are ordered sealed.

Take Away for CMCFA Members

The Board has now confirmed that CMCFA members own their notes and cannot be compelled to produce them to satisfy an ATI request, because they are not considered documents or records under the control of the Government of Canada. Any such request would violate not only our past practice but also our academic freedom.

The full text of the decision is available.

Bargaining Bulletin: Issue 2018-1

Please see the CMCFA Bargaining Bulletin: Issue 2018-1.

CMCFA Tuition Scholarship Award

We are pleased to announce that the recipient of the 2018–2019 CMCFA Tuition Scholarship Award is Amir Jnifene.

Tentative Settlement Reached between CMCFA and TBS

The CMCFA and the Treasury Board of Canada Secretariat have reached a tentative agreement regarding the UT group according to the Minutes of Settlement, following a collective bargaining session which took place from June 26 to June 28, 2018.

The key features of the Tentative Agreement are:

  • Adjustments to rates of pay:
    • Effective July 1, 2014 – increase to rates of pay: 1.25%
    • Effective July 1, 2015 – increase to rates of pay: 1.25%
    • Effective July 1, 2016 – increase to rates of pay: 1.25%
    • Effective July 1, 2017 – increase to rates of pay: 1.25%
  • Adjustments to Wages:
    • UT-01 level:
      • Effective July 1, 2016 – 2.5% wage adjustment to rates of pay
    • UT-02 level:
      • Effective July 1, 2016 – 2.0% wage adjustment to rates of pay
    • UT-03 level:
      • Effective July 1, 2016 – 3.0% wage adjustment to rates of pay
    • UT-04 level:
      • Effective July 1, 2016 – 3.0% wage adjustment to rates of pay
  • Expiry on June 30, 2018 and a 270-day implementation period.
  • CMCFA participation in the Employee Wellness Support Program which will negotiate new employee wellness provisions to the collective agreement.
  • Minor housekeeping changes that were previously agreed to and signed during the course of negotiations.

The CMCFA must hold a ratification vote on this tentative settlement, and the CMCFA Bargaining Committee is making arrangements for briefings on the tentative agreement and a ratification vote during the week of July 16, 2018. The briefings and votes will be held at RMC, RMCSJ and CFC, and arrangements will be made for absentee voting.

CMCFA members will undoubtedly have many questions, and they are invited to attend the ratification voting sessions for more information. Members can also reach out to the members of the Bargaining Committee that were present during the latest negotiation session, namely Dr. Jean-Marc Noël [CMCFA President], Dr. Kevin Jaansalu [CMCFA Secretary], Dr. Charles-Philippe Courtois [CMCFA Member-at-Large] and Dr. Sylvain Leblanc [CMCFA Grievance Officer].

Collective bargaining to resume in June 2018

We have received assurances from the employer that the memoranda of understanding (MOUs) that are at the heart of our Unfair Labour Practice (ULP) complaint are indeed in force for the current round of bargaining (for the 2014-2018 Collective Agreement), that these MOUs will not be discussed in this round of bargaining, and that these MOUs will be subject to freeze protection under the Federal Public Sector Labour Relations Act for the next round of collective bargaining (for the 2018-2022 Collective Agreement) as well, as can be seen in this letter from the Principal. In short, all the MOUs are effectively renewed for this round, and the CMCFA’s position is that they remain in force until proper notice is given to renegotiate them in future rounds of bargaining. The CMCFA Bargaining Committee has agreed to resume bargaining on a without prejudice basis to the outstanding ULP complaint, and we expect to return to the bargaining table on 26 June 2018.

Federal Public Sector Labour and Employment Board Decision: Hurley v. Treasury Board

On April 26, 2018 the Federal Public Sector Labour and Employment Board (the “Board”) released its long-awaited decision in this matter. The decision deals with a grievance filed by CMCFA member, Dr. Michael Hurley, a former UT in the English department at the Royal Military College of Canada (“RMC”). Dr. Hurley filed the grievance after RMC Principal, Dr. Harry Kowal, refused to approve his three-part retirement plan.

Background

Dr. Hurley joined RMC in 1988. In January, 2015 he met with Dr. Kowal to express his intention to retire effective January, 2018. In return for providing three (3) years advance notice of his retirement, Dr. Hurley requested that Dr. Kowal approve his retirement plan which consisted of the following items:

  1. A revised performance evaluation scheme tied to pay resulting in double increments for the last three (3) years of employment;
  2. A sabbatical leave; and
  3. Course relief following the sabbatical to allow for additional time to complete his scholarly activities prior to retirement.

Dr. Kowal agreed to provide Dr. Hurley with a sabbatical leave as he was entitled to that right under article 18 of the Collective Agreement. However, Dr. Kowal refused to approve the other two (2) components of Dr. Hurley’s retirement plan on the basis that such items are not provided for in the Collective Agreement.

Dr. Hurley and the CMCFA grieved Dr. Kowal’s decision and took the position that Article 8 of the Collective Agreement gave Dr. Hurley the right to both the revised performance evaluation scheme and course relief following sabbatical. Article 8 states that in appropriate circumstances, established past practices will be inferentially incorporated into the Collective Agreement. In particular, Article 8 provides as follows:

8.01 Where this Agreement is silent on working conditions, the conditions existing immediately before the date of this Agreement shall continue to apply provided that:

  1. they are not inconsistent with the Agreement;
  2. they are reasonable, certain and known;
  3. they may be included in this Agreement in accordance with the Public Service Labour Relations Act; and
  4. they are carried out in a fair and equitable manner.

8.02 The onus of establishing an existing practice within the meaning of 8.01 shall rest on the party who alleges the existence of same.

At the hearing, the CMCFA argued that a past practice exists whereby a UT who provides three (3) years of notice of retirement will not only receive a sabbatical if eligible, but will also be entitled to a revised performance evaluation scheme and course relief.

The Board’s Decision

Ultimately, the Board agreed with the CMCFA that a past practice exists with respect to a revised performance evaluation scheme. That past practice was reduced to writing in a July 1, 2007 Memorandum of Agreement (“MOA”) and the Board held that the MOA meets the requirements set out in Article 8 of the Collective Agreement. As such, a UT in Dr. Hurley’s position is entitled to receive the item by virtue of the Collective Agreement and that entitlement cannot be extinguished at the whim of the Principal.

In order to access the revised performance evaluation scheme set out in the MOA, the Board held that a UT must first submit the signed retirement form needed to establish a retirement date. On the facts of this case, Dr. Hurley did not submit the retirement form as he did not wish to commit to an irrevocable retirement date three (3) years ahead of time unless, in return, he was assured he would receive all three (3) components of his retirement plan. The Board heard evidence that the practice of the former principal, Dr. Sokolsky, was to provide this assurance in the form of a letter before receiving the UT’s signed retirement notice (paras. 309, 311). However, the Board’s decision that the MOA constitutes a past practice under Article 8 means that a UT does not need such a letter to access the revised performance evaluation scheme set out in the MOA. Rather, a UT need only submit the signed retirement form to access the benefits of the MOA.

With respect to the issue of course relief following a sabbatical, the Board held that it does not have jurisdiction to determine that issue. Nevertheless, the Board did go on to offer its non-binding opinion on the issue. According to the Board, it is unlikely that Article 8 will apply to course relief following a sabbatical since the issue of course relief is expressly addressed in Article 13.08 of the Collective Agreement. In order for Article 8 to apply, the Collective Agreement must be silent on the topic. Article 13.08 states:

13.08 the teaching workload of a UT may vary materially from the normal average teaching workload of UTs in his or her academic department or equivalent unit due to the following factors:

  1. the number of hours devoted to administrative duties; and
  2. the level of productive scholarly activity, it being understood that greater than normal involvement in scholarly activity may not result in a reduction in teaching workload, unless such reduction can be accommodated within the resources accorded to the department.

Article 13.08 would apply to Dr. Hurley’s situation but it does not give rise to an automatic right to course relief. Course relief will only be granted where it can be accommodated within the resources of the particular department, and the Board heard testimony from both Dr. Bates and Dr. Kowal that the authority to grant course relief lies with the department head, who is “the best person to decide if the department can get along without the UT” (para. 85; also para. 338).

Take Away for CMCFA Members

The Board has now confirmed that CMCFA members who provide three (3) years notice of retirement are entitled to a revised performance evaluation scheme tied to pay resulting in double increments for the last three (3) years of employment. Such members are also entitled to a sabbatical leave in accordance with Article 18 of the Collective Agreement, and may also receive course relief following a sabbatical if the purpose is to focus on productive scholarly activity and the request can be accommodated within the resources of the department.

If you are considering retirement and wish to take advantage of any of the entitlements discussed above, you should contact the CMCFA for further information.

The full text of the decision is available at this link.

N.B. Because the length of the decision makes it easy to confuse the adjudicator’s summary of the evidence and the parties’ arguments with the adjudicator’s own analysis, we provide an outline of the decision and its major sections as well as a complete outline.

Bargaining Bulletin: Issue 6

Please see the CMCFA Bargaining Bulletin: Issue 6.

Letter to the Minister of National Defence

Please see the CMCFA letter to the Minister of National Defence dated 25 October 2017.

CMCFA Tuition Scholarship Award

We are pleased to announce that the recipients of the 2017-2018 CMCFA Tuition Scholarship Award are:

  • Matthias Leuprecht, and
  • Nuri Amari

CMCFA Tuition Scholarship Award

We are pleased to announce that the recipients of the 2016-2017 CMCFA Tuition Scholarship Award are:

  • Paola Finizio, and
  • Oussama Hefnawi.

Nipissing University Faculty Association – Strike Donation

Letter of thanks.

Bargaining Bulletin: Issue 5

Please see the CMCFA Bargaining Bulletin: Issue 5.

CMCFA Tuition Scholarship Award

We are pleased to announce that the recipients of the 2015-2016 CMCFA Tuition Scholarship Award are:

  • Lindsay Coombs and
  • Scott Varey.

Faculty Attitudes towards Faculty Unions

Please see a recent study out of Brock University on faculty attitudes towards faculty unions.

Workplace Accommodation

The Canadian Human Rights Commission has created a website entitled “Accommodation Works!” to help employees with issues involving workplace accommodation, return to work or disabling health. Please go to http://www.chrc-ccdp.gc.ca/fitness2work/index.html for more information.

Bargaining Bulletin: Issue 4

Please see the CMCFA Bargaining Bulletin: Issue 4.

National Joint Council Bargaining Agent News Statement

Please see the National Joint Council Bargaining Agent News Statement.

Bargaining Bulletin: Issue 3

Please see the CMCFA Bargaining Bulletin: Issue 3.

Bargaining Bulletin: Issue 2

Please see the CMCFA Bargaining Bulletin: Issue 2.

CMCFA Tuition Scholarship Award

We are pleased to announce that the recipients of the CMCFA Tuition Scholarship Award are:

  • Alannah Bloch, and
  • Shona Phillips.

Bargaining Bulletin: Issue 1

Please see the CMCFA Bargaining Bulletin: Issue 1.

Employer’s bargaining proposals on sick leave and short term disability

Please see the employer’s bargaining proposals on sick leave and short term disability document.

Senate debates regarding the Principal search process

Members are invited to read the senate debate.

CAUT and CMCFA express concerns regarding Principal search process

CAUT and CMCFA have written to the Minister expressing concerns regarding the process to select a new Principal.

Minister’s response to CAUT Commission

Defence Minister Peter MacKay has responded to the CAUT report.

Report of the CAUT Commission on Governance of the Royal Military College of Canada

Members are encouraged to read the Report of the Commission on Governance of the Royal Military College of Canada. This document is available in English only.

Revised CAUT Guidelines for the Use of Copyrighted Material

In April 2011, CAUT released a document entitled Guidelines for the Use of Copyrighted Material. Since that time the Parliament of Canada has amended the Copyright Act, adding important new rights for the education community. Additionally, in December 2012 the Supreme Court of Canada handed down a series of copyright decisions –decisions that again powerfully benefit our sector.

To reflect these developments, CAUT has substantially revised the original document. Please see these revised guidelines which explain the copying rights enjoyed by academic staff and provide direction on their lawful exercise.

CAUT Policy Statements

Please see the CAUT’s Policy Statement on Academic Freedom and Policy Statement on Criteria and Procedures in Renewal, Tenure and Promotion Decisions.

Distribution of double and triple increments

Please see this memorandum from the Principal.

Payment in lieu of severance pay

Please see this notice to civilian employees.

Salary administration plan posted

The new salary administration plan has been posted to the Compensation and benefits page.

New collective agreement

The UT Collective Agreement (2010-2014) and an updated Grievance Form have been posted on the Compensation and benefits page.