A Tale of Three Estoppels

Bargaining Updates 2016

As a matter of labour law if a party to a Collective Agreement has knowingly declined to enforce a provision of the Agreement, or where the parties have entered into a practice that is contrary to the plain language of the agreement, they may be estopped from enforcing the actual language of the collective agreement. 

The party so estopped can revert to the plain language of the agreement by providing the other party with a notice (usually called an estoppel letter) that, at the end of the current round of negotiations, they intend to revert to the language in the Agreement. The other party, of course, is then able to bring to the bargaining table a proposal to change the wording of the Agreement to bring it into line with past practice.

In the 2014-16 bargaining round, UBC issued an estoppel letter that indicated they would no longer allow members to extend the “terminal year” in cases where a denial of tenure grievance was still ongoing past the end of the terminal year. This is a rare circumstance, but the consequences for members in cases where someone is dismissed, leaves the university, and then subsequently, as a result of the grievance, is granted tenure, are enormous. The Association did bring a proposal to the table in that round and, although we did not get the language in the Agreement we sought, we did get agreement to allow the past practice to continue during the life of the Agreement. The matter is again at the bargaining table. Our proposal 19: “The Association proposes to amend Part 4, Article 2.03(g), so that when a member is denied tenure, and the grievance is not resolved within the terminal year, the member’s appointment is extended” is related to that estoppel letter.

On January 3, 2017, prior to the beginning of this round of bargaining, the University issued two estoppel letters. The first dealt with our annual increments (CPI). Part 2, Article 2.02(d) states: “CPI may be withheld if, in the period in question, the member is demonstrating unsatisfactory progress in his/her career, based on the relevant criteria as outlined in Article 4 of Part 4.” As far as we know this clause has never been used, and we see it as an anachronism. There is a reason why most Canadian universities have an increment system like our CPI system. Universities typically have very long gradual deferred salary systems with faculty starting at salaries well below the salaries they expect to have at retirement, and typically reaching top-of-scale at a very senior stage, or possibly not at all. Therefore, we do not think it is appropriate to withhold these increments.

Nonetheless the University has indicated that it intends to start withholding increments. The exact wording of the estoppel letter is “Faculty members will not be awarded CPI if their careers are not satisfactorily progressing or have plateaued.”  We have responded by proposing to delete Part 2, Article 2.02(d) (it’s part of our proposal #3).

The second estoppel letter pertains to the “annual reports” that departments have developed and that members fill out as part of the merit process. The Collective Agreement actually makes no mention of “annual reports” as such. Instead it says in Part 2, Article 2.04(e) “All members eligible for consideration for merit shall submit to the Head a summary of their relevant scholarly, teaching and service activities and may include an indication of the nature and significance of the activities.”

The university has now indicated that, rather than the annual reports, which often include much more than a summary of activities, they intend to revert to the actual language of the agreement. The Association has made no proposal at the table to reintroduce the annual reports. In our view the reporting forms developed by some departments have gotten out of hand to the point of being extremely onerous. A simple summary of activities is all that is called for by the Agreement, and we think it makes more sense than the current practice.

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