Before I obtained a so-called permanent teaching position (I will explain in a much later post why I use the word “so-called”), I worked for a number of years as a substitute teacher (with short periods of term teaching positions). I became an executive member of the Winnipeg Teachers’ Association (WTA) (in the province of Manitoba, Canada), representing substitute teachers.
I used this situation as an opportunity to criticize the limitations of the educational experience.
Of course, representatives should not limit themselves to such criticism but rather perform their representative function in order to enhance the democratic nature of the union or association to which they belong. To that end, I referred to issues and clauses in the collective agreement that were relevant to substitute teachers as well as to the Substitute Teachers’ Committee.
Limitations of Collective Bargaining
A Philosophical (Critical) Commentary on the Labour Law Review, November 14-15, 2007
On November 14 and 15 I attended the 13th Annual Review of Labour Law. The structure of the presentation made the Review more lively than otherwise: a rotating set of two different lawyers presented each section, one representing the employees’ side and the other representing the employers’ side. The Review specifically related to law connected to workplaces governed by collective agreements as opposed to general employment law.
The Review was divided into six sections: accommodation of employees, especially with regard to disabilities according to human rights legislation; discipline in relation to the disabled employee; arbitrators’ responses to harassment at the workplace; updates to Manitoba Labour Board decisions; updates to arbitration board decisions; and trends in Manitoba labour relations.
The bottom line of issues centering on accommodations of those with disabilities is that the employer must reasonably accommodate employees with disabilities on a continuous basis up to the point of undue hardship for the employer.
Discipline of employees with disabilities covered mainly those with addictions of one form or another. The issue here is to what extent the conduct leading to discipline is attributable to the addiction and to what extent it is attributable to the employee’s own control.
The third section on harassment in the workplace described the broadening of the definition of harassment from harassment based on stereotypical categories specified in the legislation to harassment based on persona characteristics, or in more colloquial terms, harassment characteristic of bullying.
The fourth section provided an overview of relatively recent Manitoba Labour Board decisions. An interesting case was between United Steelworkers of America and Buhler Manufacturing. The Labour Board found that the employer was obliged to provide to the union contact information (telephone numbers and home addresses) of all members in the bargaining unit, and the list was to be updated every six months.
An interesting case in the fifth section was between the Province and the Manitoba Government Employees’ Union. The Province put certain employees on an attendance management program. The arbitrator found that the medical information requested by the employer was far in excess of what was reasonable under the circumstances. Another interesting element of this case was the inclusion in the collective agreement of the clause that the employee may or shall be requested to provide a medical certificate or statutory declaration of having been sick.
The final section considered some possible trends in labour relations, such as the duty to accommodate disabled employees, increasing privacy rights of the individual versus the right of the employer for relevant information to run the business (drug testing and surveillance of employees).
One comment made by a union lawyer while discussing the issue of accommodation of disabled employees in the first section should leave teachers with food for thought. He indicated that it is a little known fact that the employer has the right to grieve. In all arbitration cases presented during the two days, however, there was no case in which the employer grieved. The main reason why employers rarely grieve was not addressed. The main reason why employers rarely grieve is that they do not need to do so; they possess the economic power to implement their goals independently of the grievance process. What the collective agreement does, via labour law, is to limit the economic power of employers to do what they want with the employees. The collective agreement is a defensive mechanism, not an offensive mechanism.
Some may make the counterargument that collective bargaining has permitted the extension of certain rights, such as maternity leave. On this view, collective bargaining, consequently, can become an offensive weapon by gradually extending employees’ rights in various directions. Such a conclusion would be valid if employers were passive and the world were static. However, as teachers in this Division have experienced, employers make many unilateral decisions, such as CAP, the online report card system and the requirement that substitute teachers provide reasons for refusing jobs. Employers use their economic power to achieve their goals, and they rarely need to grieve to achieve them.
If this is the case, and the employer-employees relation, as I argued in the last article, involves subordination to the will of the employer, then the economic power not only of the Division as employer but all employers needs to be discussed thoroughly and on an ongoing basis.
For instance, does the economic power of employers result in employees fearing to express their opinions because they fear retaliation by the employer? If so, what does that tell us about the kind of society in which we live? Do we want our children to grow up in the same fearful relations, if they exist? What are the implications of living in fear for the formation of character? Since education, ultimately, is the formation of human character, how does the employer-employees relation work itself out in the formation of human character? In other words, does the employer-employee relation work for or against the educational process?
These questions, even indirectly, were not addressed at the Labour Law Review. Both union lawyers and employer lawyers, from opposite sides to be sure, shared the same premise: the employer-employees relation is legitimate. The differences between the two sides had to do with whether the collective agreement had been breached by the employer. The shared premise of the legitimacy of the employer-employees relation prevented them from questioning their own logic. Should we not be discussing this premise as teachers and as employees?
Fred Harris, executive member
Engaging in Concrete Administrative Issues in a Union
In the WTA newsletter, I also provided concrete information relevant to substitute teachers for members of the Substitute Teachers Committee (and, perhaps, for the WTA newsletter–I do not remember whether I submitted the information to the WTA):
Good afternoon, everyone.
At the executive meeting, I asked for clarification concerning whether substitute teachers, if injured, had any insurance. The answer is: no. Teachers, according to law, are excluded from receiving Workers’ Compensation, and this is a non-negotiable item (only employers pay into Workers’ Compensation). However, private insurance of some type would be possible, but none now exists. So, if you get injured on the job as a substitute teacher—you can always sue the Division. Other than that, you are responsible for your own disability or injury.
Fred Harris, chair, Substitute Teachers’ Committee
Furthermore, I provided information in the WTA newsletter about the new substitute-calling system (SmartFinder):
Substitute Teacher Access to Listed Jobs
SmartFinder Express has now been programmed to permit substitute teachers to access jobs available, either online or by telephone. In either case, key in your employee number and pin number. Next, for the computer system, click on Available Jobs, and then specify the range of dates and click on Submit. For the telephone system, press number 2.
Fred Harris, chair, Substitute Teachers’ Committee
I also wrote about some relevant information (and problems) for substitute teachers with the SmartFinder system:
Elements of the Current SmartFinder Express System for Substitute Teachers
The current SmartFinder Express system has several features (or lack of features) about which substitute teachers should be aware:
- Should a substitute teacher refuse four consecutive phone calls, she or he will not be called again for that day.
- Should a substitute teacher not answer four consecutive phone calls, she or he will not be called again for that day.
- Should a substitute teacher hang up three consecutive times, she or he will not be called again for that day.
- In some instances, the SmartFinder system has called substitute teachers for the same day when they have already been booked for that day. Since the system still requires substitute teachers to provide reasons, they may be penalized for refusing jobs that they should not have received in the first place.
- When a substitute teacher tries to find available jobs to accept, there are rarely any such jobs. However, in some other divisions (such as St. James-Assiniboia), substitute teachers can go online and accept posted jobs for substitute teachers.
Informing Substitute Teachers of Clauses in the Collective Agreement Especially Relevant for Them
Furthermore, I wrote the following to the members of the Substitute Committee (and perhaps drafted one for the WTA newsletter–I do not remember):
Good afternoon, everyone.
As indicated in the minutes, I am sending everyone a copy of the clause about professional development in the collective agreement:
16.03 (f) Professional Development
A substitute teacher who has worked for the Division for at least fifty (50) teaching days in the previous school year shall be entitled to request in writing to the Director of Human Resources, or designate, to attend one professional development day in the next school year. Attendance, if approved, shall be considered as time worked under Article 16.03, Substitute Teachers.
A substitute teacher not meeting the above eligibility requirements may request to attend scheduled professional development days. Such attendance, if approved, shall be on a without pay basis.
Approval in either instance shall be at the sole discretion of the Division.
Advocating as Representative of a Subsection of the Union Membership to the Negotiating Committee
In addition to these initiatives, I wanted to present recommending to the negotiating committee possible clauses of relevance to the substitute teachers in relation to a salary cap for substitute teachers (which did not apply to permanent teachers) :
Justification for Recommending that the Negotiating Committee Consider the Proposal for Removing the Clause in the Collective Agreement
Firstly, to justify the maintenance of the clause in the collective agreement, 16.03 (c) (iii) “No substitute shall receive a salary rate higher than the maximum salary rate provided under the Basic Salary Schedule for a Class IV teacher,” it has been pointed out that the substitute teachers in Winnipeg School Division No. 1 are the highest paid substitute teachers in Winnipeg. However, if the teachers in the WTA were also the highest paid teachers in Winnipeg, would it be justifiable to limit their salaries to the maximum level of class IV until they have worked 20 days or more? Of course, if there were such a cap, it would not matter to permanent contract teachers since they would automatically reach the 20 days. That is not the case for substitute teachers. On principle, though, is the fact that substitute teachers are the highest paid sufficient grounds for justifying the maintenance of such a clause?
Secondly, it has been said that there are few substitute teachers who would experience the effects of such a clause. There is no data to substantiate such a conclusion. The survey did not contain a question pertaining to level of qualifications (it should have done so). Without such data, the number and percentage of substitute teachers who would fall under such a clause is indeterminate. However, about one third of substitute teachers have substituted for at least 10 years. I know of at least three others who have substituted as long as I have who have their Masters’ degree.
Thirdly, even on the assumption that there are few substitute teachers who fall under the clause, should the same principle then apply to salary scale according to qualification and experience in any given year? For example, if there were no teachers with nine years experience and class 7 qualifications in a particular year, should we then agree to capping those with so many years experience and so much education since there are few or no members in the set in any particular year? We should also remember that even if in any given year there might be few members in such a set, situations evolve, and there might be more members in the set in some years than in others.
Fourthly, the issue is not just one of a few substitute teachers. The collective agreement embodies the recognition of the principle that differentiation of the qualities of teachers results in differential treatment. For example, differential experience and differential educational qualifications results in differential pay scales despite all teachers being members of the WTA. Since those substitute teachers who have worked for a number of years probably, though not necessarily, worked for the Division for a number of years, this clause contradicts the Associations’ principle of differential pay according to years of experience and level of qualifications. To be consistent with the Associations’ principles, should not the Negotiating Committee try to remove the clause from the collective agreement?
I provided a table of possible differences if the cap on the salary of substitute teachers was eliminated:
The maximum salary rate for class IV is $67, 522 according to the salary grid. The calculations are based on the yearly rate divided by 200 working days to give the rate per day. The ground base for any change in pay is $67, 522/200, or 337.61 a day. The two variables are the length of service (level of experience) and the level of qualifications:
Class 5, level 8, Yearly rate=69,948; daily rate=$338.30
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1691.50 2.45 6 2025.66 2029.80 4.24 7 2363.27 2368.10 4.83 8 2700.88 2706.40 5.52 9 3038.49 3044.70 6.21 10 3376.10 3383.00 6.90 11 3713.71 3721.30 7.59 12 4051.32 4059.60 8.28 13 4388.93 4379.90 9.03 14 4726.54 4736.20 9.66 15 5064.15 5074.50 10.35 16 5401.76 5412.80 11.04 17 5739.37 5751.10 11.73 18 6076.98 6089.40 12.42 19 6414.59 6427.70 13.11
Class 5, level 9, Yearly rate=$71,358, daily rate=$356.79
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1783.95 95.90 6 2025.66 2140.74 115.08 7 2363.27 2497.53 134.26 8 2700.88 2854.32 153.44 9 3038.49 3211.11 172.62 10 3376.10 3567.90 191.80 11 3713.71 3924.69 210.98 12 4051.32 4281.48 230.16 13 4388.93 4638.27 249.34 14 4726.54 4995.06 268.52 15 5064.15 5351.85 287.70 16 5401.76 5708.64 306.88 17 5739.37 6065.43 326.06 18 6076.98 6422.22 345.24 19 6414.59 6779.01 364.42
Class 6, level 7, Yearly rate=$69,713, daily rate=$345.87
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1729.35 41.30 6 2025.66 2075.22 49.56 7 2363.27 2421.09 57.82 8 2700.88 2766.96 66.08 9 3038.49 3112.83 74.34 10 3376.10 3458.70 82.60 11 3713.71 3804.57 90.86 12 4051.32 4150.44 99.12 13 4388.93 4496.31 107.38 14 4726.54 4842.18 115.64 15 5064.15 5188.05 123.90 16 5401.76 5533.92 132.16 17 5739.37 5879.79 140.42 18 6076.98 6225.66 148.68 19 6414.59 6571.53 156.94
Class 6, level 8, Yearly rate=$72,152, daily rate=$360.76
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1803.80 115.75 6 2025.66 2164.56 138.90 7 2363.27 2525.32 162.05 8 2700.88 2886.08 185.20 9 3038.49 3246.84 208.35 10 3376.10 3607.60 231.50 11 3713.71 3968.36 254.65 12 4051.32 4329.12 277.80 13 4388.93 4689.88 300.95 14 4726.54 5050.64 324.10 15 5064.15 5411.40 347.25 16 5401.76 5772.16 370.40 17 5739.37 6132.92 393.55 18 6076.98 6493.68 416.70 19 6414.59 6854.44 439.85
Class 6, level 9, Yearly rate=$75,691, daily rate=$378.46
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1892.30 204.25 6 2025.66 2270.76 245.10 7 2363.27 2649.22 285.95 8 2700.88 3027.68 326.80 9 3038.49 3406.14 367.65 10 3376.10 3784.60 408.50 11 3713.71 4163.06 449.35 12 4051.32 4541.52 490.20 13 4388.93 4919.98 531.05 14 4726.54 5298.44 571.90 15 5064.15 5676.90 612.75 16 5401.76 6055.36 653.60 17 5739.37 6433.82 694.52 18 6076.98 6812.28 735.30 19 6414.59 7199.74 785.15
Class 7, level 6, Yearly rate=$69,948; daily rate=$349.74
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1748.70 60.65 6 2025.66 2098.44 72.78 7 2363.27 2448.18 84.91 8 2700.88 2797.92 97.04 9 3038.49 3147.66 109.17 10 3376.10 3497.40 121.30 11 3713.71 3847.14 133.43 12 4051.32 4196.88 145.56 13 4388.93 4546.62 157.69 14 4726.54 4896.36 169.82 15 5064.15 5246.10 181.95 16 5401.76 5595.84 194.08 17 5739.37 5945.58 206.21 18 6076.98 6295.32 218.34 19 6414.59 6645.06 230.47
Class 7, level 7, Yearly rate=$73,072, daily rate=$365.36
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1826.80 138.75 6 2025.66 2192.16 166.50 7 2363.27 2557.52 194.25 8 2700.88 2922.88 222.00 9 3038.49 3288.24 249.75 10 3376.10 3653.60 277.50 11 3713.71 4018.96 305.25 12 4051.32 4384.32 333.00 13 4388.93 4749.68 360.75 14 4726.54 5115.04 388.50 15 5064.15 5480.40 416.25 16 5401.76 5845.76 444.00 17 5739.37 6211.12 471.75 18 6076.98 6576.48 499.50 19 6414.59 6941.84 527.50
Class 7, level 8, Yearly rate=$76,204, daily rate=$381.02
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1905.10 217.05 6 2025.66 2286.12 260.46 7 2363.27 2667.14 303.87 8 2700.88 3048.16 347.28 9 3038.49 3429.18 390.69 10 3376.10 3810.20 434.10 11 3713.71 4191.22 477.51 12 4051.32 4572.24 520.92 13 4388.93 4953.26 564.33 14 4726.54 5334.28 607.74 15 5064.15 5715.30 651.15 16 5401.76 6096.32 694.56 17 5739.37 6477.34 737.97 18 6076.98 6858.36 781.38 19 6414.59 7239.38 824.79
Class 7, level 9, Yearly rate=$79,760, daily rate=$398.80
Days worked Current Situation: Gross Removal of Cap on salary grid Difference 5 1688.05 1994.00 305.95 6 2025.66 2392.80 367.14 7 2363.27 2791.60 428.33 8 2700.88 3190.40 489.52 9 3038.49 3589.20 550.71 10 3376.10 3988.00 611.90 11 3713.71 4386.80 673.09 12 4051.32 4785.60 734.28 13 4388.93 5184.40 795.47 14 4726.54 5583.20 856.66 15 5064.15 5982.00 917.85 16 5401.76 6380.80 979.04 17 5739.37 6779.60 1040.23 18 6076.98 7178.40 1101.42 19 6414.59 7577.20 1162.61
Radicals need to be active on many fronts, including the nitty-gritty of providing concrete information to the members on relevant laws and clauses in the collective agreement and being an advocate for members in various ways.
Of course, it depends on their own specific situation as well. I, for example, no longer work for a specific employer. Consequently, my critical activism needs to take a different form.