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York faculty teaching in continuing ed included in YUFA bargaining unit, arbitrator finds

May 03, 2022

Emma Phillips and Gabe Hoogers explain a recent case involving the scope of a faculty association recognition clause and its implications for faculty associations

An arbitrator has determined that the York University Faculty Association (YUFA) has the right to represent York faculty members when they teach in continuing education (non-degree) courses.


With the rise of non-degree/non-credit or ‘continuing education’ course offerings and the trend of ‘micro-credentialing’ at universities, questions may arise involving the application of faculty collective agreements to these emergent areas of university programming. This was the question at issue in a recent decision involving YUFA and York University.

In the last decade, York has experienced an exponential rise in continuing education (non-degree) course offerings. While most of the individuals employed to teach continuing education courses are not university faculty members, a number of York faculty also teach non-degree courses in addition to their regular duties. The question arose as to whether the YUFA collective agreement applies to York faculty in respect of their work in continuing education, or whether they are excluded from the bargaining unit and collective agreement for the purposes of their teaching in continuing education.

The Arguments

At arbitration, the the University asserted that continuing education is in effect a carve-out from the collective agreement—in other words, as soon as a York faculty member steps into their role in continuing education, they step out of the collective agreement. It argued that YUFA members are effectively conducting “outside professional activities” (recognized in the collective agreement) when they teach in continuing education. In addition, the University emphasized that YUFA had not sought to assert its bargaining unit rights with respect to members teaching in continuing education since it was first certified in 1976. That, the University maintained, reflected a mutual understanding between the parties that continuing education work falls outside of the scope of the collective agreement.

YUFA did not argue that all non-degree continuing education teaching constitutes YUFA ‘work’, but rather took the position that YUFA members do not lose the protection of the collective agreement when they teach in York’s continuing education programs. It argued that the fundamental protections of the collective agreement do not end just because a faculty member is performing a different type of work. To the contrary, the plain language of the collective agreement supported the view that there is no basis to exclude YUFA members from the bargaining unit when they teach in continuing education. YUFA further asserted that it was unaware that the University was treating continuing education as outside of the collective agreement where YUFA members were engaged. For example, YUFA was unaware that union dues were not being deducted from members’ income from continuing education, or that this income was not being treated as pensionable earnings.

The Decision

Following a careful review of the contract language setting out the scope of bargaining unit, Arbitrator Louisa Davie upheld the grievance. In the YUFA collective agreement, bargaining unit membership includes, “All persons holding appointments as full-time faculty members or full-time librarians and archivists employed by York University,” followed by a list of specific inclusions and exclusions. Arbitrator Davie agreed with YUFA that York faculty working in continuing education are captured by the broad catch-all (“all persons holding appointments as full-time faculty members”), and that there is nothing in the scope clause that specifically excludes faculty members when they engage in teaching in York’s continuing education programs.

At the same time, Arbitrator Davie emphasized the important distinction between who falls within the scope of the bargaining unit (ie. who is “in” the bargaining unit) versus what terms of the collective agreement apply. Arbitrator Davie pointed out that not all aspects of a collective agreement necessarily apply equally to the different kinds of work that may be captured within a bargaining unit. She held that it was premature, on the basis of the facts before her, to determine which clauses of the collective agreement do or do not apply to YUFA members when they teach in continuing education.


When determining the complex question of whether different (and in some cases newly emergent) forms of course work is captured by a collective agreement, faculty associations will need to look at such factors as the specific wording of the collective agreement, including the scope or recognition clause, and the past practice at the university. While these factors are case-specific, this case provides a helpful precedent for the position that just because a university may historically have considered particular work to be outside a collective agreement’s scope does not mean that the work can be carved out from the protections of the collective agreement indefinitely.


Emma Phillips, Gabriel Hoogers

Practice Areas

Labour Law