Canadian Military Colleges Faculty Association
CMCFA • News
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.
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:
- A revised performance evaluation scheme tied to pay resulting in double increments for the last three (3) years of employment;
- A sabbatical leave; and
- 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:
- they are not inconsistent with the Agreement;
- they are reasonable, certain and known;
- they may be included in this Agreement in accordance with the Public Service Labour Relations Act; and
- 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:
- the number of hours devoted to administrative duties; and
- 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
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.
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
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.