How the OLRB Simplified the Status of Teachers throughout the Ontario College System
Ontario Colleges use a lot of terminologies to define its teachers. There are professors and instructors, and they can be further divided into part-time, partial-load, sessional, and full-time. While full-time professors are easy to identify, for the non-full-time group, it can be confusing to know who’s who or what’s what, but there is one simple rule that can be used to determine the status of someone who teaches in the Ontario College system. Thanks to a decision from the Ontario Labour Relations Board, that we will discuss here, the rule remains simple and easy to apply. In this article, we’ll focus on part-time, partial-load, and sessional definitions and we’ll discuss the differences between professor and instructor another time.
The defining characteristic of a professor or instructor’s status at a College of Applied Arts and Technology is the Teaching Contact Hour – or “TCH.” The TCH is what colleges, teachers and OPSEU use to determine whether a professor or instructor is part-time, partial-load, or sessional. Let’s define these groups first:
Part-Time Professors/Instructors – these individuals teach up to 6 hours per week. That means that they have up to 6 TCH weekly. They might teach 1.75 hours per week or 6 hours. Part-time professors/instructors are not part of the Academic bargaining unit represented by OPSEU.
Partial-Load Professors/Instructors – Partial-Load employees “teach over six and up to and including 12 hours per week on a regular basis.” That means that their TCH may be 7, 8, 9, 10, 11, or 12. Partial-Load teachers are part of the academic bargaining unit represented by OPSEU.
Sessional Professors/Instructors – Sessional teachers are employed on a full-time basis but for a limited term. That means that they have more than 12 TCH on a weekly basis. These individuals can work ‘full time’ for up to 12 months in a rolling 24-month period, but not longer. They are not part of the Academic bargaining unit represented by OPSEU, but if they work more than 12 months, their position “rolls-over” into the full-time bargaining unit.
The significance of an employee’s status is that it drives whether they are included in the bargaining unit represented by OPSEU. Part-time and Sessional teachers are not part of the bargaining unit and are not represented by OPSEU. Partial-Load teachers are represented by OPSEU.
OPSEU challenged the practice of assigning status to employees based solely on their TCH in front of the Ontario Labour Relations Board (OLRB) during their application for certification of the part-time and sessional teachers, counsellors, and librarians as a bargaining unit to be represented by them (Ontario Public Service Employees Union (“OPSEU”) v College Employer Council, 2019 CanLII 81429 (ON LRB)).
Colleges will sometimes hire professors and instructors to do work beyond teaching, such as coordinating academic programs, curriculum development, field placement supervision, and test invigilation (what are called “ancillary duties”). OPSEU’s argument was that employees who engage in “hours that are not teaching contact hours (referred to as ancillary duties) ought to be included in determining whether the teacher falls within the part-time academic bargaining unit or the full-time academic bargaining unit.”
The College Employer Council disagreed with this characterization, and argued that the practice of the parties for over 40 years was to only count TCH in determining the status and that the collective agreement supported this analysis, because it defines professors and instructors in terms of their TCH, using terminology such as “who teach 6 hours or less” and “who teach over 6 and up to 12 hours.”
The relevant arbitration awards that had looked at this question before did not entirely settle the matter. While most of the case law supported College Employer Council’s position, one decision had been swayed by OPSEU’s argument and had included the duties done by a program’s Coordinator in determining the status of an employee as sessional or partial-load.
In coming to its decision, the OLRB started with the principles of legislative interpretation and noted that the legislature, in this instance, had lifted collective agreement language and inserted it into legislation (the Colleges Collective Bargaining Act), rather than the more usual situation, where parties would insert language from legislation into their agreements. Therefore, the intention of the parties and their practice over the past 40+ years did matter in determining the intention of the legislature.
The adjudicator noted that the collective agreement treats teaching duties and ancillary duties differently for full-time employees, evidence that the parties intended to separate the two. Partial-load teachers, who are included in the bargaining unit, have a comprehensive compensation structure based on the TCH, which takes into account preparation and evaluation an “immeasurable concept.” More evidence that the parties intended TCH to determine status, and nothing else.
As the adjudicator observed “…there is a clear distinction between the assignment of teaching duties on the one hand and non-teaching duties (occasionally referred to as ancillary duties). The parties have not historically treated the non-teaching duties as part of the calculation to move a teacher from part-time to partial load to sessional status under the collective agreement with the effect that the teacher might move in or out of the full-time academic bargaining unit.”
Furthermore, the inclusion of ancillary duties would lead to an absurd result. Colleges hire both teachers and non-teachers to engage in non-teaching, ancillary, duties. OPSEU’s position was that when a teacher performed those additional duties, they should be included in determining the teacher’s status, but when a non-teacher performed them, they would not be included. The OLRB found that such an interpretation would not be “…consistent with a harmonious read of the CCBA.”
Finally, while not bound by stare decisis to the decisions of arbitrators, the OLRB reviewed their case law and found that the overwhelming, and persuasive decisions were in favour of the College Employer Council’s interpretation. One case, in particular, Algonquin College v Ontario Public Service Employees Union, Local 415, 2018 CanLII 68686 (ON LA) (Knopf), warranted considerable focus. In that case, Arbitrator Knopf noted that an employee hired to do no teaching, but 24 hours a week of program assistance could “roll-over” from sessional into full-time status under OPSEU’s interpretation. She queried:
Could the parties have intended that a Program Assistant could secure a full-time permanent position as a Professor, effectively passing over more qualified full-time or Partial-Load colleagues? It is difficult to imagine that the parties contemplated such a result. Full-time and permanent employment is a highly sought-after and important status; it is not easily achieved or conferred by this Collective Agreement.
The OLRB concluded that TCH – the number of hours one teaches – is the determining factor when it comes to a teacher’s bargaining unit status in the college sector and reaffirmed over 4 decades of practice. This result means that to determine someone’s status, whether in or out of the bargaining unit, does not rely on some complex review of all their duties, or whether those duties are sufficiently academic in nature. One looks at the number of hours a teacher teaches in a week, and that simple calculation leads to a clear-cut result.