Effect given to the recommendations of the committee and the Governing Body - Report No 362, November 2011

Case No 2430 (Canada) - Complaint date: 07-JUN-05 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 39. The Committee last examined this case, which concerns provisions of a statute (Colleges Collective Bargaining Act (CCBA), RSO 1990, c. 15) that denied all public colleges’ parttime employees the right to join a union and engage in collective bargaining, at its November 2010 meeting [358th Report, approved by the Governing Body at its 309th Session, paras 37–42]. On that occasion, the Committee noted that representation votes had been held, as provided under the CCBA (as amended in 2008), to allow the Ontario Public Service Employees’ Union (OPSEU) to represent part-time academic staff and part-time support staff units and that ballot boxes had been sealed pending a decision by the Ontario Labour Relations Board (OLRB). The Committee regretted, however, that the Government provided no observations on the complainant’s allegations regarding the abusive use of procedural mechanisms under the amended Act by employers to delay the certification process and substantially impede or altogether prevent workers to unionize and engage in collective bargaining. The Committee noted that the Government had considered it inappropriate to comment on the case while the matter was pending before the OLRB and requested the Government to initiate consultations with the union concerned with a view to address the concerns raised by the complainant organization. The Committee also requested the Government to keep it informed of the outcome of such discussions as well as any decision taken by the OLRB on the matters currently pending before it.
2. 40. In a communication dated 13 April 2011 submitted by the Government of Canada, the Government of Ontario states that disputes under the CCBA are heard by the OLRB, which is an independent, quasi-judicial tribunal with expertise in labour relations. The Government wishes to emphasize that it would be inappropriate for it to interfere or influence those proceedings or to be perceived to be interfering or influencing those proceedings. The Government recalls that the key issue in the present case is the disagreement of the College Employer Council (CEC) with the union’s estimate, in its certification applications, of the number of individuals in the two bargaining units. According to the Government, under the CCBA, the OLRB need only determine that 35 per cent or more of the individuals in the bargaining unit appear to be members of the union at the time the certification application was filed.
3. 41. The Government further informs the Committee that the OLRB has recently issued two interim decisions regarding the issues under current examination. On 27 September 2010, regarding part-time support staff, the OLRB ruled that: “Persons not at work on the date of application (23 July 2009) but who had an employment contract and worked at some point in the preceding year are to be counted for the purposes of the 35 per cent threshold assessment. Persons without an employment contract as of the date of application ought not to be included in the count. Persons who worked full-time hours in the 13 weeks that preceded the date of application ought not be included in the count.” In its decision of 11 January 2011 regarding part-time academic staff and the clarification issued on 11 March 2011, the OLRB “noted that the parties have agreed – and the OLRB endorses this agreement – that an employee need not have been at work on the date the application was filed in order to be included in the count. The parties disagreed on the time period that the OLRB should consider. The union had argued that an employee needed to have been employed immediately before and after the application date. The OLRB ruled, however, that for the purposes of determining whether the 35 per cent threshold was met, it will include those who had an employment relationship with a college on the application date and who performed work at any point in the fall 2008 academic semester.”
4. 42. In a communication of 27 October 2011, the Government indicates that two further interim decisions have been issued by the OLRB on 25 May and 11 July 2011 regarding the determination of the status of certain categories of individuals concerning the membership in the bargaining unit. Consultations at the OLRB are expected to continue and the Government states that it will apprise the Committee of any further OLRB developments. In response to the latest communication of the complainants, the Government states that the authority granted to the Minister of Training, Colleges and Universities to issue binding policy directions or to intervene in the affairs of the colleges under sections 4 and 5 of the Ontario Colleges of Applied Arts and Technology Act (OCAATA) does not extend to intervention in the affairs of the CEC, which is a corporate entity with separate legal status from the colleges with exclusive responsibility for negotiating with employee organizations.
5. 43. In a communication dated 4 October 2011, the complainants indicate that the litigation process at the ORLB is still continuing and that since the Committee’s last report, the LR has issued seven separate decisions – five with respect to the application for academic staff and two with respect to the support staff application. The complainants consider that the process is hopelessly mired down in legal arguments with no prospect of an end in sight and observe that the ballots cast by the workers remain uncounted. The complainants state that they agree with the Government’s response that it would be inappropriate for it to intervene and direct the OLRB to issue any particular decision. They point out, however, that the Government has the express statutory power to direct the employer, the Colleges Compensation and Appointments Council – a Government agency – as to how it should act and as to the positions it should take before the LR under sections 4 and 5 of the OCAATA. According to the complainants, the above mentioned provisions enable the Government to direct the employer to withdraw the objections filed before the OLRB, thus effectively ending the litigation before the OLRB, permitting the ballots cast both applications to be counted and allowing the workers to decide for themselves whether or not they wish to be unionized.
6. 44. The Committee recalls that, in its previous examination of the case, it had noted that the amended CCBA requires that 35 per cent of affected workers must sign union cards in order for the OLRB to order a vote but also allows colleges to challenge the number of cards union members have signed, a privilege that, according to the complainants, employers have abused in order to fight the certification vote. The complainants had alleged that, after “flooding” their own lists of affected workers with employees who clearly would not be part of the union bargaining unit and manipulating the timing of workers’ contracts so as to limit the number of signed union cards, the employers had undertaken long, costly and protracted mediation and litigation proceedings at the OLRB to challenge the certification process which would likely take months or even years before a final decision. The Committee expects that the ongoing dispute will be resolved by the OLRB without delay, in consultation with the parties, in order to effectively guarantee that part-time academic and support staff employed in Ontario’s public colleges fully enjoys the right to organize. The Committee requests the Government to keep it informed of any further developments in relation to this matter.