The Bargaining Team’s Response to the Employer’s Interpretation of Bill 124

At the bargaining meeting on December 17, 2020, the Employer put forward an interpretation of Bill 124 (the bill enacting the Protecting a Sustainable Public Sector for Future Generations Act) that the CUPE 3903 Bargaining Team felt was concerning. Namely, the Employer argued that “compensation”, as it was defined in the Bill, included the cost of penalties within the Collective Agreement, and that any workload reduction (including caps on class sizes) were in-effect a compensation increase. The CUPE 3903 Bargaining Team at the time rejected this understanding. At the December 22 bargaining meeting, we reiterated our position and asked for a written statement from the Employer, outlining their understanding of Bill 124. CUPE 3903 received this statement on January 19, 2021.

The CUPE 3903 Bargaining Team was disappointed with the Employer’s statement. The statement reiterates the Employer’s earlier assertions about how “compensation” should be understood in the context of Bill 124. Most surprisingly, the letter references a recent arbitration decision – Hospital for Sick Children and CUPE, October 19, 2020, mediated by Arbitrator William Kaplan – as support for the Employer’s interpretation of compensation. Having reviewed Kaplan’s decision, the Bargaining Team does not think the decision cited by the Employer supports their broad interpretation of “compensation”. The Kaplan decision simply affirms that arbitrators must take into account Bill 124’s provisions in their decision-making, and that a traditional compensation calculation is appropriate when costing Collective Agreements. In fact, the decision cited above asserts that “benefits”, under the umbrella of the 1% compensation limit, should be understood as narrowly as possible.

Before addressing the Employer’s arguments directly, the CUPE 3903 Bargaining Team condems Bill 124 in the strongest possible words. The bill forces all public sector workers to effectively accept concessions under its provisions which limit cost increases of collective agreements to 1%. It makes a mockery of free collective bargaining and illustrates  the Conservative government’s anti-worker stance. As a result of Bill 124, the CUPE 3903 Bargaining Team is forced to accept proposals, particularly on wage increases, that further impoverish our members and that we would never entertain in other rounds of bargaining. We look forward to the Bill ultimately being struck-down for infringing on our Charter right to engage in free collective bargaining as workers.

This being said, in this round of bargaining we are unfortunately bound to the provisions of Bill 124. Within Bill 124, compensation is defined as “anything  paid  or  provided,  directly  or  indirectly,  to  or  for  the  benefit  of  an  employee,  and  includes  salary, benefits, perquisites and all forms of non-discretionary and discretionary payments”.

In this round of bargaining, CUPE 3903 has put forward a number of proposals that ask for penalties to be paid by the Employer to the Union’s Ways and Means fund, as a deterrent to the Employer for not upholding the collective agreements.  With respect to penalty language, the CUPE 3903 Bargaining Team asserts that these monetary penalties are not “paid or provided… to or for the benefit of an employee” but rather represent a cost to the employer for not enforcing  the collective agreement. Indeed, any sort of remedy for a grievance awarded by an arbitrator  would also not count as “compensation” under Bill 124. Penalty language we introduce in these proposals is  intended as a stand-in for lengthy arbitration processes. Thus they do not fall under Bill 124’s definition of “compensation”.

The Employer also stated that they believe our proposals regarding caps on class sizes would fall under compensation under Bill 124. The CUPE 3903 Bargaining Team asserts again that a cap on class size is not an increase in compensation. First, members of CUPE 3903 are salaried workers that are not paid per student, but rather by position or course; an increase or decrease in the number of students in no way changes that compensation. Second, while a decrease in class size may increase the total cost of the collective agreement to the Employer, so too would hiring more positions if enrollment increased, or if a new faculty or campus opened up where CUPE 3903 members would be working, such as the Markham Campus that is currently being built. This increase in cost does not count as increased “compensation” to individual members. Along this line of argument, we would not expect a decrease in staffing levels (either due to an increase in class size, declining enrolment, or other reasons) to “free up” additional funds to be redeployed elsewhere within the existing collective agreements. Bill 124 does not apply to changes in the cost of a collective agreement due to changes in staffing levels. Therefore our proposals involving class sizes do not fall under Bill 124’s definition of “compensation”.

CUPE 3903 joins the Ontario-wide dissent and resistance to Bill 124, which violates our constitutional right to collective bargaining and makes devastating cuts to public institutions like York University. Nevertheless, we have taken the time and sought out the legal advice needed to draft a package of proposals that is compliant with the legislation.