In a decision that will have serious implications for academic staff across Canada, the British Colum­bia Court of Appeal has upheld an arbitrator’s decision that he had no jurisdiction to consider whether a policy on student evaluation of teaching adopted by the University of British Columbia senate was in violation of the collective agreement covering aca­demic staff at UBC.

In rejecting the UBC faculty association’s appeal, the court held that, under the provincial University Act, the board of governors and the senate have distinct statutory powers such that in negotiating a collective agreement, the board had no authority to interfere with the exercise of the senate’s powers over academic governance.

“The court’s decision could undermine 40 years of collective bargaining in the university sector,” said James Turk, executive director of CAUT. “If the Court of Appeal’s decision stands so that academic staff associations cannot enter into collective agreements on working conditions that pertain to academic governance or policy simply because there is, or may be in future, an allegedly conflicting senate policy regarding the same, the days of real collective bargaining for academic staff on university campuses across this country will be numbered as there are few working conditions of academic staff that do not involve matters of academic policy.”

He pointed to examples of contract language such as academic freedom, promotion and tenure, intellectual property, selection of senior administrators, administration of academic sub-units, financial exigency, program redundancy, employment equity, distance education, career development, merit awards, sabbaticals, and work of the bargaining unit (outsourcing).

“The rather rigid distinction drawn by the court between matters of working conditions and academic governance and the suggestion that the former is an issue exclusively for the board and the latter exclusively for the senate cannot withstand scru­tiny at any pragmatic or functional level,” Turk said. “Collective bargain­ing and bicameral governance have coexisted compatibly for decades.”

UBC’s faculty association, assisted by CAUT, will be seeking leave to appeal to the Supreme Court of Canada. Part of its argument will be that the decision of the Court of Appeal is inconsistent with the 2007 Supreme Court of Canada’s precedent setting decision that held that collective bargaining is protected under the Canadian Charter of Rights and Freedoms.

“Collective bargaining for academic staff is no less important and no less protected than it is to employees of any other sector of society,” said faculty association president Eliza­beth Hodgson. “The university as employer is bound by the terms of our collective agreement, includ­ing those that relate to academic issues considered by senate.”