FTR Now
Supervisors of Part-Time College Employees Now Excluded from Union Membership
Date: April 4, 2014
In a decision with important implications for colleges across the province, Arbitrator Brian Keller has found that college employees who supervise part-time bargaining unit members are excluded from bargaining unit membership by operation of the Colleges Collective Bargaining Act (the “CCBA” or “Act“).
In this FTR Now, we discuss this decision and its significance for Ontario’s college sector.
Background
In 2012, one of Seneca College’s Program Coordinators retired and, rather than fill this position, the College created a new Program Administrator role. This new role involved enhanced managerial responsibilities, including the supervision of part-time employees, and the College treated it as excluded from the full-time support staff bargaining unit. In response, the Ontario Public Service Employees Union, Local 561 (the “Union”) grieved that the position should rightfully be included in the bargaining unit.
As a preliminary matter at arbitration, Seneca took the position that prior to legislative changes to the CCBA in 2008, only full-time employees were eligible for membership in the Act‘s two bargaining units. Since the Act defined “employee” as a bargaining unit member, part-time staff were not employees under the Act. By operation of the Act‘s managerial exclusion clause, bargaining unit membership was also unavailable to “persons employed in a managerial or confidential capacity,” including any employee who spent “a significant portion of his or her time in the supervision of employees.” As part-timers were not employees under the Act, supervision of these individuals did not trigger the managerial exclusion clause. This was borne out by a number of pre-2008 arbitral awards.
However, the College argued that the 2008 changes to the CCBA fundamentally altered the status quo by creating two part-time bargaining units, making part-time staff bargaining unit members and, as a result, creating a new group of “employees” for the purpose of the Act. It submitted that following this change, the supervision of part-time bargaining unit members was sufficient to trigger the managerial exclusion clause that had previously only applied to supervisors of full-time employees.
At the parties’ request, Arbitrator Keller agreed to consider written submissions on the preliminary issue of what impact, if any, the amendments to the CCBA had on the status of part-time employees and their supervisors.
The Decision
Agreeing with the College, Arbitrator Keller stated that “the changes to the Act are determinative.” He found that part-time staff are now bargaining unit members and employees under the Act, and that the Act specifically excludes from bargaining unit membership those who supervise employees. The Arbitrator held that the only determination left to be made is whether the Program Administrator exercises supervisory authority.
While the Union argued that the supervisory exemption should not apply where part-time bargaining units are not represented by bargaining agents, Arbitrator Keller rejected this approach. Rather, he found “the fact that no bargaining agent yet represents part-time persons employed by the College does not alter their status specifically spelled out in the Act.”
Implications For Ontario Colleges
This decision has significant financial and operational implications for Ontario colleges. Individuals who supervise part-time employees are now properly excluded from union membership by operation of the CCBA’s managerial exclusion clause. The only determination to be made is whether such persons do, in fact, spend a significant portion of their time supervising employees.
If you have any questions about this decision or its implications, please contact your regular Hicks Morley lawyer.
The articles in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
