McGill’s mission is “the advancement of learning and the creation and dissemination of knowledge.” In meeting this mission, McGill prides itself on abiding by the principles “of academic freedom, integrity, responsibility, equity, and inclusiveness.” These principles are incompatible with forcing AMPL into arbitration on issues that touch on the foundation of the university’s mission and the role of faculty in achieving that mission.
The issues dividing McGill and AMPL revolve around how to meet those principles: whether faculty have the academic freedom to design and implement programs to assess student performance, ensure the integrity of the McGill Law degree, take responsibility toward one another through open dialogue and understanding, assure equity among faculty members, and be inclusive of the broad range of diverse backgrounds that make up our faculty and students.
Quebec’s Code du travail contemplates that, in the case of a first collective agreement between a new union and an employer, either party may request the Minister of Labour to order arbitration when the parties are unable to negotiate a collective agreement. This provision is designed to protect new unions without strike funds and limited bargaining power from being overrun by employers. It also protects employers from unions that refuse to bargain at all. Having said that, only unions have a constitutionally protected right to strike, meaning that neither the Minister nor an arbitrator can lightly force a union into mandatory arbitration.
Arbitration is a form of third-party decision-making, much like litigation. Lawyers, rather than the parties, make arguments to a party that has no direct stake in the outcome. Decisions are win-lose rather than win-win, as would occur when parties engage, debate, and compromise. Arbitration is costly in that instead of in-house time, one pays for (often expensive) external counsel.
Arbitration can be a good means to settle disputes where certain factors exist: a limited number of issues outstanding, clearly articulable issues, issues in respect of which the arbitrator can rely on clear and objective standards, and where a party wishes to save face by not conceding an issue. Thus, where the sole issues in dispute relate to compensation (e.g., damages for a loss), cost-of-living adjustments, and term of the agreement, arbitration may provide a good solution.
Arbitration works less well where there are a large number of issues, where the issues are new or context-specific, or where the issue is difficult and requires compromise. Questions of governance (who makes what decision through which process over what timeline), equity (how to adjust for rules that systemically impose burdens on some but not others), and responsibilities (who is responsible for which sorts of issues) are ill-suited to arbitration because arbitrators do not have first-hand experience with the practices, traditions and values that need to be considered to resolve these questions. Further, where there are many issues in play, the time to arbitrate each particular decision in isolation – rather than holistically in bargaining – is time-consuming and very expensive.
The issues separating McGill from AMPL fall primarily into the latter type: difficult to resolve, context-specific, and without clear standards. Decision-making at the Faculty is highly idiosyncratic and has an historical element that removes any clear standard for an arbitrator. For example, the decision of which process to adopt so that faculty members have a meaningful say in the selection of the Dean varies significantly across universities based on each of their unique contexts. Many of the monetary issues separating McGill from AMPL have an equity component – e.g., how to provide compensation that both attracts and retains scholars from diverse backgrounds – that are not amenable to arbitration. The overall tenor of the outstanding issues require discussion and compromise, not litigation and the imposition of a win-lose result by a third-party.
Finally, one cannot ignore the context in which McGill is invoking arbitration. It is doing so in order to delay an eventual collective agreement so that it can argue that it is impossible to negotiate with a faculty union. This is not speculative: Vice-President Fabrice Labeau made this exact argument before the Tribunal administratif du travail in order to oppose the certification of a union of the professors in the Faculty of Education. By saying that it is impossible to negotiate an agreement because McGill simply does not want a union, McGill hopes to decertify AMPL in hearings in December. Giving into McGill’s unreasonable demands requires capitulation to arbitrariness, the opposite of McGill’s principles.
In light of the above, arbitration in the context of the AMPL-McGill negotiations threatens rather than promotes the type of dialogue necessary to build a flourishing university. McGill’s decision to pursue arbitration undermines the principles of academic freedom by attempting to silence voices advocating for improvements in the academic environment. Arbitration consumes financial resources that could otherwise be allocated to enhancing educational programs, student support services and faculty development. Respectful dialogue, stability and a positive working environment are essential to maintaining high standards of teaching and learning. Litigation through arbitration is antithetical to these crucial elements, and to the kind of institution McGill purports to be.
All of this said, McGill’s law professors are desperate to avoid a strike that will have an inevitable impact on students. On Friday, August 23, we are presenting McGill one last offer: drop your decertification case against, put the matters we have agreed to and our governance proposals into a collective agreement, and we will agree to arbitration over the outstanding monetary matters.
