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When a senate decision conflicts with a collective agreement

A landmark court ruling in B.C. touches on the bicameral model of academic governance.

By LÉO CHARBONNEAU | JUN 08 2010

Under British Columbia’s University Act, control over academic policy in a university resides with the university senate. What happens, then, if an academic decision of the senate appears to be in conflict with a provision in a collective agreement duly approved by the university’s board of governors?

That was the dilemma facing the Court of Appeal for British Columbia this past April. The court essentially sided with the senate, saying that it did not see the board having a right to bargain with respect to matters of academic policy.

The ruling is noteworthy because it touches on the bicameral nature of academic governance – an area where there has been little case law in Canada. Both sides to the dispute, the University of British Columbia and the Faculty Association of the University of British Columbia, declined to discuss the case following the decision.

At the heart of the case is the collective agreement signed between UBC and the faculty association. One of the provisions in the agreement states that methods of teaching evaluation “may include student opinion” sought through “formal procedures.”

However, in May 2007, the university senate passed a new policy on student evaluations of teaching which replaced any previous policies in this area. The new policy provides that student evaluations are to be “part of an overall teaching evaluation system,” and that the data gathered could be used to assess promotion and tenure, among other things.

The faculty association alleged the new policy was in violation of the collective agreement and filed a grievance, which was referred to an arbitrator. UBC countered that the arbitrator had no jurisdiction to review the senate policy.

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While many on campus may have missed it, a legal judgment commenting on the collective agreement between UBC and its faculty association could have repercussions beyond that province.

The arbitrator accepted UBC’s position and concluded in a March 2009 decision that, indeed, he had no authority under the collective agreement to pronounce upon the policy, even if it were in conflict with the collective agreement. The arbitrator noted that the “university” under B.C. law is not a single entity, but “a composite of separate parts including the board and senate.” There was no power in the board to override decisions of the senate within the senate’s jurisdiction; nor, for that matter, was there any power in the senate to override decisions of the board within the board’s jurisdiction.

The faculty association had sought a judicial review of the decision, saying that the result “denies university employees basic rights to effective collective bargaining.”

Because of the importance of the issues raised, a judge granted intervener status, on behalf of the faculty association, to the Canadian Association of University Teachers and the Canadian Union of Public Employees. Intervener status was also granted to the Association of Universities and Colleges of Canada on behalf of UBC.

The Court of Appeal heard arguments from the two sides on March 9 and 20 of this year. On April 20, the court pronounced its decision dismissing the appeal and upholding the arbitrator’s position.

“[O]ne would expect the board and senate to cooperate in all areas of mutual interest but, ultimately, the power over academic governance is in the senate and the board is not entitled to interfere with its policy-making role in that regard by the terms of a collective agreement, or otherwise,” the judge, Madam Justice Jo-Ann E. Prowse, concluded.

“If the [faculty] association were to succeed in its argument,” the judge continued, “it could take the position that in any circumstance where there was an academic policy which impacted on labour relations to some extent (as most academic policies likely would do), the board could agree to terms of a collective agreement which effectively negated portions of the policy despite the absence of any statutory mandate of the board with respect to academic governance. The board would effectively have the power to dictate aspects of academic policy through its power to enter into collective agreements. In my view, the Act does not contemplate any such role for the board.”

The judge ordered the faculty association to pay UBC’s costs throughout the legal proceedings. The faculty association has not yet announced whether it will appeal the decision.

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