The college had stated that it could legally negotiate the term with the teacher because the collective agreement was silent on the teachers` request to do academic work. In support, she pointed out that in the major Supreme Court of Canada cases concerning the exclusive right of unions to negotiate terms of employment, there was no explicit prohibition on individual negotiations on terms of employment not covered by the collective agreement. Under the reforms of Bill 148, an employer is prohibited from paying part-time, casual and other workers who do not have normal full-time status, at a lower rate than it pays to regular full-time workers if: (a) they perform essentially the same type of work in the same company; b) their performance essentially requires the same capacity, effort and responsibility; and their work is carried out under similar working conditions. In addition, the employer is not allowed to reduce a worker`s rate of pay to comply with the new legal obligation. Bill 148 provides for a derogation from this „equality requirement” if the difference in wage rates is based on: a seniority plan; A performance system A system that measures yields based on the quantity or quality of production; a factor other than gender or employment status. „Given the detailed and sophisticated downsizing procedures negotiated by the parties, can it be concluded that the collective agreement assumes that the employer can circumvent these procedures and the significant balance of interests they contain by unilaterally introducing a VSP? The comprehensive way in which the parties have dealt with the issue of downsizing leads the Commission to reach another conclusion. Aliant`s CIRB had found that since the PRS had not put the PRS on the negotiating table, it could not be a clause or a condition of a job normally subject to collective bargaining and that, therefore, the employer had the right to offer the PRS directly to employees. The board found that the Aliant analysis had been influenced by the legal freeze and refused to follow what it described as a „subjective approach”, which is a term or condition of employment. The board stated that it was based on a broader view of working conditions – an approach based on the impact of the VSP on the legal framework of the relationship between workers and the employer. The College also argued that the arbitration body erred in finding that the condition imposed on the teacher was in conflict with the collective agreement.
Since the collective agreement does not expressly oppose the requirement to pursue academic work or to pursue professional development, such a requirement cannot be contrary to agreement. If an informal process is not appropriate or yields less satisfactory results, union members have the opportunity to file a formal complaint.