Should faculty operate under the Labour Relations Code?

A few weeks ago, Alberta introduced amendments to its labour laws that extend the right to strike to almost all public sectors workers. University professors continue to have no statutory right to strike because faculty labour relations are governed by the Post-Secondary Learning Act.

Last fall, the government consulted the post-secondary education (PSE) sector about altering this unusual arrangement. The Confederation of Alberta Faculty Associations (CAFA) took the position that faculty association collective bargaining should remain outside the ambit of mainstream labour law. Most, but not all, actors in the PSE sector agreed with this position.

Thorough reviews of Alberta’ Labour Relations Code (LRC) and the PSLA seem likely over the next year. Retaining a separate legal regime for faculty seems contrary to the government’s recent moves around both the right to strike and farm worker rights. While incorporating Alberta’s faculty into mainstream labour laws would raise a number of technical issues, the real question is whether this is a good idea.

The CAFA submission makes a number of arguments against inclusion under the broad heading of “academic labour relations is different”:

1. Faculty move in and out of “management” positions.
2. Faculty work unusual hours and globally.
3. Faculty members interests include matters such as academic freedom.
4. Faculty associations participate in and uphold collegial governance.

I could disassemble each argument in turn but, given that faculty in every other jurisdiction in Canada somehow manage under mainstream labour laws, the overall “uniqueness” argument is clearly without much merit.

CAFA then argues that the current system “has been successful in many ways” but cites only the resolution of contractual disputes (through mandatory arbitration) and associations defending the rights of their members (which is the basic purpose of any union). These outcomes happen everywhere and are not the product of the Alberta’s unique faculty labour relations system.

Indeed, CAFA then goes on to flag a number of changes it wants to the PSLA system: a duty to bargain in good faith, a duty of fair representation adjudicated by the Labour Board, access to member information, and collective agreement continuance during bargaining. All of these matters are dealt with by mainstream labour law…

Overall, the arguments CAFA advanced for retaining faculty association exceptionalism are surprisingly poor. But what of the arguments for inclusion? The key issues here centre on choice and accountability

Under the LRC, faculty members would (as a group) have a periodic opportunity to choose a different (or no) union to represent the to their employer. This basic choice is foreclosed under the PSLA.

The absence of choice means there is less pressure on unions to be responsive to members’ needs than under the LRC because there is no risk of losing the bargaining unit to another unit. So arguing against mainstream labour law is an argument in faculty associations’ own interests.

Similarly, while faculty members dissatisfied with how their union handles their grievance can sue their union under common law duty of fair representation (DFR) provisions, this process is out of reach of most faculty members. Under the LRC, DFR issues are resolved through a quick and low-cost process at the Labour Board.

Absent a compelling argument for faculty association exceptionalism, principles such as choice and accountability (which are codified in mainstream labour law) ought to drive the government’s policy making. While a transition to mainstream labour laws would entail a transition (which may require transitional provisions), it would provide faculty members with the same rights every other worker—including faculty members in other provinces—enjoy.

-- Bob Barnetson