The Radical Left Needs to Call into Question Existing Social Institutions at Every Opportunity, Part Six

The following issue deserves a separate post. As I have tried to stress throughout these posts, unions in Canada (and undoubtedly elsewhere) are inadequate organizations for representing the interests of the working class The issue illustrates how union reps limit the development of a critical approach to a society dominated by a class of employers.

I do not remember the exist order of the issue, nor do I remember exactly to whom I addressed my concerns–the executive, the members of the Substitute Teachers’ Committee or to those substitute teachers who had provided the Substitute Teachers’ Committee with their email address during the general meeting of substitute teachers.

There is a possibility that I would be willing to organize a workshop on employment and labour law, but I would like to see if there is much interest in the area. It would not enhance anyone’s particular skills to obtain employment, but it is my view that we need to educate each other about the limitations of what the WTA can do—both for substitute teachers and for teachers in general.

If you would be interested in attending a workshop on employment and labour law, please inform me of this so I can guage whether I should spend the time in selecting material and organizing the workshop.

Fred Harris, chair, Substitute Teachers’ Committee of the Winnipeg Teachers’ Association

In preparation for providing a workshop on labour/employment law, I drafted the following (the parentheses were for me in anticipation of organizing the workshop according to themes or categories):

Employment Law and Labour Law Together

What do you think are the major differences between an employee and a contractor (a person with her or his own business)? General idea of an employee

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What is the difference between employment and labour law? Differentiation of employee in general and employee under labour law and collective bargaining.

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What do you think are some of the differences between a collective agreement and employment agreement? Differentiation of employee in general and employee under labour law and collective bargaining.

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Employment Law

What are some of the advantages of being governed by employment law? Disadvantages? Employee: non-unionized

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Transition: Employee and Society

Why are more and more workers becoming employees? General concept of employee

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Labour Law

Between whom is the collective agreement an agreement? Labour law

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What is a grievance? Labour law

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Who “owns” a grievance? Labour law

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Who generally grieves? Why? Labour law

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What is interest arbitration? Labour law

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What is grievance arbitration? Labour law

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What is a labour board? Labour law

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What is the difference between a board of arbitration and a labour board? Labour law

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Does a union or association have a duty towards its members? If so, what is it? Labour law

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What are some of the advantages of being governed by labour law? Disadvantages?Labour law: Employee

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What are some of the powers of the labour board? Labour law

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What was the situation of collective bargaining before the Second World War? Labour law and collective bargaining

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What did employees do during the Second World War that initiated the legal acceptance of collective bargaining? History of collective bargaining, labour law:

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Where employees governed by collective bargaining have the right to strike, can they do so during the period in which a collective agreement exists? Limitations on collective bargaining regime here: labour law

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After the Second World War, what did many employers do in relation to collective bargaining? What was the response of many employees? History of collective bargaining: Labour law

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What is the certification process? Labour law

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What is a bargaining unit? Labour law

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Can employers refuse to bargain with a certified union or association? Labour law

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What can a group of employees do if the employer consciously interferes in the process of communication between a union and workers when certification has not yet been voted on? Labour law

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When bargaining, does the duty to bargain in good faith mean that both the employer and the Association have to come to an agreement? If not, what does the duty to bargain in good faith mean? Labour law

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What are some of the remedies that the Labour Board provides for in case it finds the employer has breached the Labour Code? Labour law

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Transition: Labour Law and Society

What does the answer to question 7 tell you about the nature of the society in which we live? Relation of labour law to society

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

To what extent do you consider the following description of the nature of private enterprise to be an accurate description? What do you agree and disagree about the description? Employment law and labour law in relation to society

Stage 1: Purchase: M1-C1 (=W+MP). where M1= the money invested; – = an exchange; C1 = the commodities purchased for investment purposes (which consist of MP—means of production—and W—workers);

Stage 2: Production…P… where the three dots represent an interruption in the circulation or exchange process;

Stage 3: Sale: C2-M2, where C2 = the commodity output, with C2 greater in value than C1; and M2 = the return of the money invested, with M2=C2, but greater in quantity than M1.

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

General: Employee: Meaning

19. What does being an employee mean to you? General: Employee

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What does an employment contract mean to you? General: Employee

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What do you consider the employment contract to involve in relation to your concept of freedom? General: Employee, but Relation to Society

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What do you think of the view, held by many judges under common law (the legal ground for employment), that the employment contract is an act between equal parties? General: Employee, but Relation to Legal Profession

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What do you think of Paul Weiler’s argument, in his book Reconcilable Differences, that collective bargaining evens the playing field, making the contracting parties relatively equal in power?Labour law and Society

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What do you think happened to relations between employees as a result of the change from reliance on each other to force an employer to recognize them to reliance on the Labour Board? Social effects of labour law and collective bargaining

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Introduction

How do employment law and labour law fit into the general legal framework in Canada? General relation between employment law, labour law and legal framework: Introduction???

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

Think-Pair-Share

What does “company time” mean to you? Employee in general

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

When a boss (say, a principal) passes by you, do you find yourself acting differently than with fellow substitute teachers? If so, why do you think that that is the case? Employee in general

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

The last reference to “Think-Pair-Share” is a pedagogical technique, where the individual is given perhaps a minute to think about the issue alone, then shares her/his thoughts with someone else and, finally, answers are shared among the group.

Think-Pair-Share or Some Other Format

What does being an employee mean to you?

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What does an employment contract mean to you?

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What do you consider the employment contract to involve in relation to your concept of freedom?

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What do you think of the view, held by many judges under common law (the legal ground for employment), that the employment contract is an act between equal parties?

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

What does “company time” mean to you?

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

When a boss (say, a principal) passes by you, do you find yourself acting differently than with fellow substitute teachers? If so, why do you think that that is the case?

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

To what extent do you consider the following description of the nature of private enterprise to be an accurate description? What do you agree and disagree about the description? Employment law and labour law in relation to society

Stage 1: Purchase: M1-C1 (=W+MP). where M1= the money invested; – = an exchange; C1 = the commodities purchased for investment purposes (which consist of MP—means of production—and W—workers);

Stage 2: Production…P… where the three dots represent an interruption in the circulation or exchange process;

Stage 3: Sale: C2-M2, where C2 = the commodity output, with C2 greater in value than C1; and M2 = the return of the money invested, with M2=C2, but greater in quantity than M1.

___________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

I also created slides for the anticipated presentation–but there is no point if repeating what I wrote above in a different format (if indeed slides can be reproduced in this medium).

The following reply illustrates the typical limitations of union reps. I wrote it to substitute teachers (at least to those whose email I possessed) as well as to the members of the Substitute Committee of the Winnipeg Teachers’ Association (WTA):

Coming now to the point on providing a workshop on employment law and labour law, I was going to give the workshop myself, but I will not be doing so. I do feel that I need to explain why I will not.

I have been told, firstly, that I do not have the necessary skills required to provide a workshop on those topics. What do I know, for example, about labour law? I did, however, write two articles in the WTA newsletter via philosophical analysis. I am a philosopher. That is my expertise—a pragmatic philosopher, specifically. I do not need to know how to negotiate a collective agreement—and I do not know how to do so any more than I know how to operate on someone. I do need to know something about labour law and collective bargaining if I am to determine its meaning, but I need not be an expert on it—anymore than I need to be an expert on in order to determine the meaning of life–in order to determine the meaning of collective bargaining—and by extension labour law. If someone disagrees with my analysis of the meaning of labour law or anything else, the democratic thing to do would be to write a refutation of it in the newsletter. To tell me that I have insufficient background in labour law is like saying that I have insufficient background in determining the nature of life bI have taken a course on labour law, as well as attending a couple of conferences funded by the executive. Would these educational opportunities suffice to provide a workshop? Probably not. However, I have been pursuing a doctorate in the philosophy of education for a number of years—in particular pragmatic philosophy. That philosophy inquires into the meaning of relations. The workshop that I had made preliminary plans would include querying the nature of employment law and labour law via an inquiry into what being an employee means to those at the workshop.

I do believe that I am well qualified to provide such a workshop. There is a difference between expounding on how labour law and employment law work and what they mean. The two, of course, are related since the meaning of something cannot be determined without knowing something about the topic. However, I do not have to know as much about anatomy and physiology as a doctor does in order to talk about the meaning of life—a topic in my dissertation.

Since I was denied the opportunity to present labour laws to substitute teachers, I provided notice of a person approved to provide such a presentation, Henry Shyka, staff member of the Manitoba Teachers’ Society and assigned to represent the WTA:

Workshop on Labour Law: Topics required

Good morning everyone,

To give a workshop on labour law, it is necessary to have some input on what topics you would like covered. There is no guarantee that specific topics would be covered, but topics of common concern to substitute teachers would be.

Henry Shyka, MTS [Manitoba Teachers’ Society] representative, would be giving the workshop.

Please send me topics that you might find of interest.

Fred Harris, Chair, Substitute Teachers’ Committee

The Radical Left Needs to Call into Question Existing Social Institutions at Every Opportunity, Part One

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.

The WTA had an education fund for the executive, where each member, if approved by the executive, could access up to $3,000 for educational purposes. A condition for obtaining such funds was a summary of the educational experience and its publication in the WTA newsletter.

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 and others on the Substitute Teachers’ Committee created a survey for substitute teachers and used the results of such a survey to criticize the policy of the WTA of permitting only permanent teachers the right to apply for permanent positions (substitute teachers paid association dues and consisted of usually 700-900 paying members of around 4000 members, but they did not have the right to apply for permanent positions).

Below is a copy of the draft (written in 2007) as well as the critical summary of my educational experience.

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To the Negotiations Committee
As members of the same organization, all should be treated in the same way unless there are sufficient differential grounds for distinguishing the members and for thus treating them on a differential basis. However, that does not mean that substitute teachers should necessarily all have the same rights as permanent contract teachers.
A basic principle of political philosophy is that all should be treated the same unless there are differential conditions for treating some differently from others. There are differential conditions, at least in the case of substitute teachers who are relatively new. Would it be fair, for instance, that permanent contract teachers, who by definition generally expect to work for the same employer for years, be reduced to the same rights as a beginning substitute teacher? Attachment to a particular employer for an increasing length of time forms the basis for privileging permanent teachers over substitute teachers, just as the principle of seniority does in unions.
However, as substitute teachers are engaged in employment with the same employer for an increasing length of time, the grounds for differential treatment become less and less valid.
Of course, the reported statistics from the survey of substitute teachers do indicate that there is a substantial percentage of substitute teachers who have been employed by the Division for a number of years. Their exclusion from any consideration of whether they can apply for positions is less valid than the exclusion of shorter term substitute teachers. Of course, the exact cut off line is not easy to define, but the issue is first of all whether all substitute teachers should be banned from applying for positions. Perhaps there are counterarguments which justify such exclusion, and I would like to hear such arguments. Lacking such counterarguments, substitute teachers with a certain period of employment with the Division should have the right to apply for positions as they arise, just like permanent contract teachers.
Addressing now the issue of those with a shorter period of employment with the Division, the Division may agree to allow them to apply for positions once the third round of blue sheets have been distributed.
In other words, there would be two sets of substitute teachers, those with sufficient length of service to be able to apply for positions immediately, and those with less service, who would be able to apply for positions on the third round of job postings.
Although this two-tier system of selection may be preferable, it may not be possible during the 2009 round of bargaining; a collective agreement involves two parties, and it may be impossible to negotiate the “best” scenario in any particular year of bargaining. Consequently, there are two alternative proposals: a “bottom-line one,” and a preferred (but perhaps unrealistic) one at this stage. The important point is to have substitute teachers’ concern about the right to apply for job postings addressed.
Proposed “bottom-line clause”: All substitute teachers shall have the right to apply for job postings during the third round of postings of the blue sheets.”
An alternative would be as follows: Substitute teachers who have substituted for the Division for at least ten (10) years shall have the right to apply for job postings. Substitute teachers with less than 10 years of substitute teaching shall have the right to apply for job postings during the third round of postings of the blue sheet.”
Of course, the exact wording is irrelevant at this stage. It is the concept that matters.
Fred, chair, Substitute Teachers’ Committee

The critical summary of my educational experience (

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The Double-Bind of Teachers as Employees
On September 21 [2007], I attended a seminar on Employment Law Essentials. It covered various topics, including the difference between an employee and an independent contractor, pre-employment inquiries, employment standards and workplace harassment policies.
There were two areas of most relevance to teachers: a discussion of the nature of an employee and the issue of the age at which people can become employees.
Let us start with the last issue first. The age at which people can become employees is relevant for teachers since the age at which students can become employees then arises. Generally, it is very difficult for students under the age of 12 to become employees. On the other hand, it is less difficult for students between the ages of 12 and 16 to obtain a permit. Four people must be in agreement if those between 12 and 16 are to become employees: the student, the parent, the principal and the employer. Since being an employee may affect school work, teachers who are concerned about some of their students working as employees may consult with the principal since the latter needs to agree to such employment.
Addressing now the first issue—the nature of an employee—there are four criteria for determining whether a person is an employee or has her or his own business (is an independent contractor): lack of control over the work performed (how, when and where the work is to be performed), the ownership of tools, possibility of loss or gain and the extent to which the person is integrated into the employer’s operations. The criterion of loss or gain is inapplicable to the situation of teachers. The criterion of integration is only used in borderline cases. Hence, the question of the status of teachers is reduced to the two criteria of control and ownership of tools.
In the seminar, we briefly discussed whether teachers are employees. Although teachers may control the order in which the curriculum is presented, it is the Division, generally, which determines standards of performance for teachers. Another aspect of control is whether the employer determines where and when work is done. Teachers work for the Division and not for specific schools. The collective agreement may modify the power of the employer, but it does not fundamentally alter the situation—as teachers in low-enrollment schools may discover when they are transferred to other schools. In terms of control, teachers are employees.
The other criterion for determining who is an employee is the ownership of tools. In the case of teachers, although the latter may personally purchase items for use in the classroom, it is the Division which owns the buildings, the things in the building and so forth. The fact that the Division may represent the vague public because of the payment of taxes does not change the situation.
Since the situation of teachers satisfies the two major criteria for determining whether teachers are employees, it can indeed be concluded that they are employees.
The collective agreement does not change the status of teachers as employees; it modified the conditions of employment—certainly an important characteristic—but it does not fundamentally alter the employer-employee relationships as such. For example, employment standards are such that judges will take into account length of service to an employer when considering notice required, but the judge will not take it into consideration when the issue of dismissal arises. Arbitrators of collective agreements, on the other hand, do take into account length of service when considering the issue of dismissal.
The issue of control is full of interesting sub-issues. One of the issues that were brought up was whether employees who are under the control of employers are extensions of the will of the employer. They are. This situation, however, has major social implications. If employees are extensions of the will of the employer, then employees are means to the ends specified by the employer.
Immanuel Kant, a German philosopher, argued that it is a categorical ethical imperative to treat all human beings as ends in themselves. If we apply the philosophical principle of the unity of the ends in the means and the means in the ends, then to treat human beings as ends in themselves is to have them participate in the process of defining their own ends. They need to be able to contribute to the formation of the ends toward which their activity tends: living democracy rather than formal democracy.
Being an employee, however, which involves being an extension of the will of the employer, clashes with the principle of treating human beings as a unity of both means and ends in the same process. Human life is split, with teachers being extensions of the will of the Division. Their personhood is suspended to the extent that they cannot formulate the ends of their own activity in conjunction with the activity of other teachers.
This clash applies to other employees in other domains, such as waiters and waitresses, bus drivers, factory workers, office workers and so forth. In the specific case of teachers, though, there is an added contradiction. Teachers are supposed to treat students as ends in themselves: the formation of character. To do so, they need to have students learn to unify the ends in the means and the means in the ends. If, however, part of their function is to prepare students for their status as employees, then their educative function clashes with their function within the school system. This is the double bind of teachers: being an employee, on the one hand, and being an educator within an economy dominated by the employer-employee relation on the other.
Are teachers in a double bind? What do other teachers believe?
Fred Harris, executive member