Bill 124

The Queen’s University Faculty Association and CUPE 3902 sessional instructors at the University of Toronto have both recently settled deals without a Bill 124 moderation period, indicating that other academic employers in this province have taken the court decision seriously and decided not to arbitrarily continue to enforce salary-capping legislation when it is no longer mandated by law.

OCUFA president Sue Wurtele reminds us that “For three years, contracts were settled while the rules were rigged. Now that this legislation has been overturned, university administrations need to respond to academic workers to reopen those agreements and put fairness on the table.”

Recent arbitration cases show arbitrators making decisions that acknowledge that Bill 124 is no longer in effect. Western is choosing to maintain low compensation when they are no longer required to, and UWOFA is very disappointed by the lack of regard for faculty labour that this decision demonstrates.The timing of our settlement date was unfortunately favourable to our Employer, given that if our 2022 negotiations had concluded a mere fifteen days later, we would have been able to bargain compensation for our Members freely and fairly. That we should continue to be disadvantaged by this timing, however, is arbitrary and unfair given the Employer response at other academic institutions like Queen’s.

We continue to urge our Employer to abandon its capricious change of heart and instead honour its earlier commitment and return to negotiations with a mandate to increase faculty pay now that Bill 124 is no longer in effect. Please reply to uwofaco@uwo.ca if you are interested in helping us achieve this end.

UWOFA faculty negotiators met with their Employer counterparts on Friday, January 27th. Our expectation was that we would be renegotiating faculty pay increases following the November 29th court decision striking down Bill 124, but unfortunately the Employer had other ideas.

Background

While the Ontario government filed documents on December 29th to appeal the court decision, it has not yet applied for a stay on the application of the court ruling. The court decision rendered Bill 124 to be of no force or effect and this still continues today.

The re-opener clause in the faculty negotiations Memorandum of Settlement signed on November 14th, 2022 (when we could not have known that a court ruling was imminent) only requires the Employer to renegotiate compensation increases after the provincial government has exhausted all avenues of appeal. However, the Employer had in fact agreed to renegotiate those parts of the agreement with UWOFA, notwithstanding those terms in the re-opener clause, in recognition that any part of a collective agreement can be renegotiated by mutual consent of the parties.

Update

The message conveyed by the Employer was that they are not proceeding with the re-opener at this time. We had been told earlier in the month that the Administration expected to receive a mandate to renegotiate from the Board of Governors on January 24th, but this did not occur. Faculty have worked hard through an unprecedented pandemic to maintain the teaching, research and service missions of our university, and this unfavorable outcome is very disappointing, especially given the current economic environment.

Administration negotiators reported that they presented UWOFA’s proposal to the senior administration, along with the arguments we articulated in support of it. They were unable to come to the table with revised compensation numbers, however, having been advised that voluntarily giving faculty a pay increase might cause Western to miss out on court-ordered government payments later, in the event that monetary remedies were awarded for loss of income due to Bill 124. UWOFA has received an opinion (via OCUFA) from Goldblatt Partners, the law firm that led the court challenge on behalf of public-sector unions, which indicates that a court-mandated remedy of that nature is highly unlikely.

Additionally, we were told that our Employer believes that committing voluntarily to pay increases for faculty beyond what was agreed to in November could compromise the case Western and other universities are making as they appeal to Queen’s Park to unfreeze tuition fees. In effect, Western’s Administration is telling us that they need to keep faculty pay increases low, in compliance with the terms of a law that even Ontario’s Premier admits no longer exists, just so they will not lose out on an opportunity to make students pay more to be in our classrooms.

To say that the UWOFA negotiating team is disappointed to receive this message from our Employer would be a gross understatement, and we are certain that our members share our unhappiness.

Our Employer is clearly reluctant to be the first Ontario university to voluntarily enter into post-Bill 124 wage renegotiations. Western’s current position is inconsistent with the position taken previously by the Employer during negotiations, which appeared to reflect a sympathetic desire to compensate faculty fairly, if only Bill 124 had not been an obstacle preventing them from doing so. Western now has both an opportunity and an obligation to do the right thing.

Next Steps

UWOFA has registered its disappointment with the Employer. We are studying our options and continue to consult with OCUFA which is closely monitoring developments across the province on this dossier. Please stay tuned for further information on next steps for members.

We want to hear from you

Are you concerned about the Western administration’s response? Please contact UWOFA at uwofaco@uwo.ca to let us know your sentiments on the recent post-Bill 124 compensation negotiations.

UWOFA and the Employer met to discuss increases in faculty compensation without Bill 124 limitations. Thank you to those who made their voices heard by sending a letter to the Employer using the Take Action page on our website and shared their concerns online.

Representatives from your negotiating team presented a reasonable and focussed proposal to obtain fair and appropriate increases to full-time and part-time faculty pay, without the restrictions of Bill 124 that was recently struck down by a court ruling. The Employer is considering our proposal and we hope to receive their response soon.

In the meantime, we urge members to continue to call on the Employer for fair compensation while Bill 124 is not in effect. Visit the Take Action page on our website to send a letter to the administration.

Get loud on Twitter and social media!

@WesternU has #NoExcuse to reject an increase to faculty pay with #Bill124 no longer in effect. It’s time to invest in faculty.

Faculty are overworked and exhausted after 2.5 years of pandemic pivots! Time for @WesternU to truly show their appreciation. #NoExcuses with no #Bill124.

#Bill124 has been void for almost a month, when is @WesternU planning on fairly compensating faculty? #NoExcuses

#Bill124 is no longer in effect and @WesternU is now in a position to fairly compensate faculty. #NoExcuses

As a top employer @WesternU must make faculty compensation a priority. #NoExcuses With no #Bill124

#Bill124 is no longer in effect… But for how long?
@WesternU take this opportunity to fairly compensate your faculty! #NoExcuses

#Bill124 is now void! What are you waiting for? This is the time to act for fair compensation @WesternU. #NoExcuses

As you know Bill 124 was overturned by an Ontario court judge last week, and we are all eager to know how this will affect us.

There is no ‘re-opener’ clause in the UWOFA-LA collective agreement (i.e., the collective agreement for librarians and archivists) and the librarians and archivists have already served the 3-year moderation period with the collective agreement expiring on June 30, 2023.

There is a ‘re-opener’ clause in the UWOFA-F collective agreement (i.e., the collective agreement for faculty), which applies up to June 30th, 2025, but the agreed-upon language says it only applies once all appeals have been exhausted and a final decision rendered, and it only allows for renegotiating future compensation at the time those appeals have been exhausted.

UWOFA is analyzing the best strategic approach to take to fight for fair compensation for all faculty, librarians and archivists at Western. Here is what we know so far about the overturning of Bill 124 and the potential impact of this ruling on our two bargaining units:

• The trial judge has not yet issued a ‘remedy’. He ruled that the government was wrong, and the Bill violated the Charter, but has not ruled on what to do about it – i.e., what to pay out to workers. The parties will need to return to him for that ruling and make submissions to him about what is appropriate.
•  This will be complicated given how many different types of workers and their unions are involved across the entire public sector of Ontario. It will be difficult for the judge to come up with one common remedy that is satisfactory and commensurate with the wages foregone for each group. However, coming up with a court-ordered remedy for each sector or each employee group is similarly fraught.
• The parties could decide to settle on their own rather than go back to the court for an imposed remedy.
• Here, each union would try to renegotiate with their employer and see if they can work out a suitable localized remedy. This is in fact what the collective agreement ‘re-openers’ are all about. In doing so, unions may give up their ability to ask for any future court-imposed remedy unless they can negotiate their deal as ‘without prejudice’ to a future remedy.
• This Charter challenge is unlike any that we have seen before in terms of scope and timeline. One of the closest comparators may be the Bill 115 case where the McGuinty government imposed a collective agreement on teachers in 2012. After the judge struck down the Bill, the unions attempted to negotiate a remedy with government representatives. This was unsuccessful, and it needed to be resolved in the courts. In the end the remedy was only about $1600 for a full-time elementary teacher, and it took nearly 5 years to receive a decision.
• The government can choose to appeal this decision to the Ontario Court of Appeal.  They have not done so yet but have signalled that they will. There is a timeline for making an appeal (probably within 30 days, but this is not confirmed).
• Though it is likely an appeal will happen given the huge implications of this Bill, we should not take this for granted. We must put all the public pressure we can on the Ford government to do the right thing and not appeal.
• An appeal will take time (experts are surprised at how quickly the trial judge made this ruling). If the appeal court overturns elements of the ruling or all of the ruling, it will go to the Supreme Court of Canada. We could be looking at 3-4 more years before there is a resolution.
• There is no ‘automatic stay’ in this case. This means that if there is an appeal, it is not automatic that the trial judge’s ruling that the Bill is void will be ‘stayed’, i.e., put on hold, pending the appeal. But the government can make an application for a stay.  This means that there can be no remedy paid out (even if one is determined). You can be sure that the government will apply for a stay if they appeal.  Their argument will be that if money is paid out in remedy and then the government wins the appeal, how could the government get that money back?  Of course, the labour argument is the same – if you don’t give us the remedy now, how will we ever get a fair one later?

The Collective Bargaining Committee for the Librarians and Archivists is already hard at work drafting bargaining goals. As bargaining will likely commence before the Bill 124 appeal or remedy situation is resolved, we must bring a strong monetary package to the table.

For the Faculty bargaining unit, we must first wait to see if there is an appeal. If there is, we can still try to engage the Employer in discussions about possibilities beyond the terms of the re-opener negotiated in the current collective agreement.  Even without an appeal, we need a remedy. Our reopener allows renegotiation of the annual wage increase elements of the collective agreement (i.e., scale) for the remaining term of the agreement. We do not have the ability to strike over the outcome of that renegotiation.

The ruling of the trial judge is excellent news. It signals to the Ford government and subsequent legislators that labour rights must be upheld by the law. However, we must acknowledge that any court remedy is unlikely to make up for the wages lost in our sector.  Sadly, it is a truth in labour law that justice delayed is often justice denied. Commentators have suggested that Ford and local employers win either way since the lost compensation recouped by public-sector workers through this Charter challenge will never come close to the amount of money public sector employers have saved as a result of Bill 124 preventing them from paying workers fairly. We must stand together as a union and with our sibling faculty associations across Ontario. Together we must be prepared to act to take advantage of all strategic opportunities to fight for a fair deal. The UWOFA leadership continues to explore all avenues. We will continue to provide updates as the situation develops.