SFUFA Commentaries on Key Issues

Members may find useful some basic elaboration on certain employment-related matters both inside an outside of the Agreement or formal policies. These pages provide commentary that may assist in making sense of one’s rights and responsibilities. These are not agreements, and do not constitute binding terms, but provide further information on the given topic and/ or illustrate the guiding principles SFUFA relies upon in handling these matters.

Intellectual property is an increasingly contentious issue at Canadian universities, the patent/ copyright/ fair use landscape appearing to be in a state of flux legally. SFUFA is in principle committed to the sharing of knowledge freely, and expanding the reach of open access and fair use provisions, but recognizes, too, that in a time of increased commodification of knowledge academic staff must defend their rights over their own intellectual work. Members are strongly encouraged to review any contracts with the University or third parties carefully to ensure their rights as creators and scholars is protected.

The following provides only a brief summary of some of the core principles members ought to consider.

In most workplaces, as a matter of general law, intellectual property produced in the course of employment belongs to the employer. In universities, however, it is generally accepted that an ‘academic exception’ reverses the presumption of ownership – that is, while in other places the presumption is that the employer owns the product of work unless there is an agreement to the contrary, in the university sector the courts will generally presume the creator to be the owner unless there has been an explicit assignment of rights to the university. This is most certainly the case for what might be termed ‘literary works’ – articles, books, conference proceedings, lecture notes and course plans. In those areas where scholarship often takes the form of an invention rather than a literary work, the situation becomes much more complicated, as the law recognizes inventions as potentially commercialized products in which the university, like other employers, has made a specific investment and is entitled to some portion of any profits earned.

As a generality, members can use the following rule of thumb to determine whether intellectual property is fully their own, or might be legitimately open to the university’s interest:

a) books, journal articles, presentations, classroom materials and the like are wholly owned by the member(s) who create them and the university has no claim on these materials and cannot compel them to be used or shared in any particular way;

b) inventions – i.e. anything produced that is under patent rather than copyright – are a distinct category of scholarly production; the fact of their potential commercialization opens patented materials to university interest, and members are required to comply with university policy as regards the patent process, commercialization, and sharing of revenues that may be earned.

Article 18 of the Collective Agreement  and SFU’s Intellectual Property Policy (R,30.03) set out the terms and conditions in force at SFU; members with further questions are strongly encouraged to review the Agreement and the policy in full and contact SFUFA with any questions or concerns.

The idea of academic freedom lies at the heart of the modern university, and underpins everything SFUFA does. There is no universally-accepted understanding of the scope of the term. SFU’s statement, however, is one of the most robust in the country, many university administrations relying on more narrow interpretations.

We provide here two statements that help to frame the definition and reach of the term – one from our negotiated agreement with SFU, and the second from the Canadian Association of University Teachers.

From the SFUFA-SFU Collective Agreement, Article 12:

12.1 Academic freedom is the freedom to examine, question, teach and learn, and it involves the right to investigate, speculate and comment without reference to prescribed doctrine, as well as the right to criticize the University, Association and society at large.

12.2 Specifically, academic freedom ensures:

12.2.1 freedom in the conduct of teaching;

12.2.2 freedom in undertaking research and publishing or making public the results thereof;

12.2.3 freedom from institutional censorship.

12.3 Academic staff will not be hindered or impeded in any way by the University or the Association from exercising their legal rights as citizens, nor will they suffer any penalties because of the exercise of such rights. The parties agree that they will not infringe or abridge the academic freedom of any member of the academic community.

12.4 Academic freedom carries with it the duty to use that freedom in a manner consistent with the scholarly obligation to base research and teaching on an honest search for knowledge.

12.5 As part of their teaching activities, teachers are entitled to conduct frank discussion of potentially controversial matters which are related to their subjects. This freedom of expression will be based on mutual respect for the opinions of other members of the academic community.

12.6 Librarian and Archivist Faculty have a duty to promote and maintain intellectual freedom. They have a responsibility to protect academic freedom and are entitled to full protection of their own academic freedom and practices. For Librarians, this includes the right to express their academic judgment in the development of the Library collection and to make the collection accessible to all users in accordance with the University Library policies, even if the materials concerned are considered controversial. For Archivists, this includes the right to express their academic judgment in the acquisition and development of the Archives’ holdings.

And from the CAUT, it’s policy statement on academic freedom:

1. Post-secondary educational institutions serve the common good of society through searching for, and disseminating, knowledge and understanding and through fostering independent thinking and expression in academic staff and students.  Robust democracies require no less. These ends cannot be achieved without academic freedom.

2. Academic freedom includes the right, without restriction by prescribed doctrine, to freedom to teach and discuss; freedom to carry out research and disseminate and publish the results thereof; freedom to produce and perform creative works; freedom to engage in service to the institution and the community; freedom to express one’s opinion about the institution, its administration, and the system in which one works; freedom to acquire, preserve, and provide access to documentary material in all formats; and freedom to participate in professional and representative academic bodies.  Academic freedom always entails freedom from institutional censorship.

3. Academic freedom does not require neutrality on the part of the individual. Academic freedom makes intellectual discourse, critique, and commitment possible. All academic staff must have the right to fulfil their functions without reprisal or repression by the institution, the state, or any other source. Contracts which are silent on the matter of academic freedom do not entitle the employer to breach or threaten in any way the academic freedom of academic staff employed under such collective agreements or other employment contracts.

4. All academic staff have the right to freedom of thought, conscience, religion, expression, assembly, and association and the right to liberty and security of the person and freedom of movement. Academic staff must not be hindered or impeded in exercising their civil rights as individuals including the right to contribute to social change through free expression of opinion on matters of public interest. Academic staff must not suffer any institutional penalties because of the exercise of such rights.

5. Academic freedom requires that academic staff play a major role in the governance of the institution. Academic staff members shall constitute at least a majority on committees or collegial governing bodies responsible for academic matters including but not limited to curriculum, assessment procedures and standards, appointment, tenure and promotion.

6. Academic freedom must not be confused with institutional autonomy.  Post-secondary institutions are autonomous to the extent that they can set policies independent of outside influence. That very autonomy can protect academic freedom from a hostile external environment, but it can also facilitate an internal assault on academic freedom.  Academic freedom is a right of members of the academic staff, not of the institution. The employer shall not abridge academic freedom on any grounds, including claims of institutional autonomy.

In the event of job action at SFU,  the Collective Agreement, Article 10, and two policies govern how faculty might be impacted: GP 05 (which deals with strike policy in general) and A 30.05, which speaks to SFUFA members as well as some other instructional staff. The following is intended to provide guidance as to how the strike policy is typically implemented for various categories of SFUFA member, and may help clarify some matters and assist you in strike-related decision-making. This is only a general guide; members should familiarize themselves with the official policies, whose authority supersedes this interpretive memo.

To Cross or Not to Cross:

All members have the right to honour a picket line. Lab Instructors, Lecturers, Librarians, research faculty, and Department Chairs or Directors all share the same rights in this regard. No one should be intimidated or coerced into crossing or not crossing a picket line – the decision is recognized in law as one of personal conscience, and must be respected as such. Neither may any member face any disciplinary sanction for the decision to honour a picket line. Salary may be reduced commensurate with work not performed, but no further penalty should be suffered or threatened. In the case of Department Chairs and Directors, an additional administrative role exists above and beyond the standard faculty role. Chairs/ Directors cannot be compelled to cross a picket line, but should they choose to do so such that the University deems they are unable to perform their administrative duties, an interim Chair/ Director may be appointed for the duration of the job action. For the purposes of the strike policy, Division Heads in the Library (Librarian IVs) are treated as Chairs, though strike-related salary deductions for this group are calculated as they are for all Librarians (see below).

Salary Deductions:

The general rule for salary deductions that result from a members’ decision to respect a picket line is this: 1/10th of biweekly salary will be deducted for each day of work missed. GP 05 is clear that deduction is not based on the hours one might be in the classroom, but to the day as a whole.

The policies do not define ‘duration of a strike’, and so there is some flexibility as to whether salary deductions are based on the full length of job action, individual affected days or – in rare cases – hours.    Typically, if strike action is intermittent and or sporadic at a particular location, the University will consider the particular days affected individually; for example, though you may indicate your intention to respect a picket line, if pickets are intermittent you will only be docked pay for those days that your classes and/ or campus duties are affected. In the event of a full-scale strike, however, the University will likely not calculate the individual days you would have been required to be on campus, but will  base its payroll deductions on the period as a whole. Though not as definitive as some might hope, this nuanced application of the policy does in fact serve the interests of members by limiting the extent of salary loss in times of sporadic picketing.

In the case of Librarians and others who may have more regularly-defined hours of work, there may be occasions on which pay is docked on an hourly basis. For example, where a site is picketed for a period of hours, and members choose not to work during those hours, the University will base the salary deduction on the actual hours missed. Normally this is relatively straightforward, a week being considered 35 working hours and the hours missed deducted from that. In rare instances where a job action impacts a non-working period such a lunch hour, however, still more adjustments may be necessary. In these cases, the University has agreed to consult with SFUFA regarding what is appropriate.

The above is only a general outline of how SFU policies regarding job action are most likely to affect SFUFA members. We understand that individual work arrangements may not fit neatly into those contemplated by the policies, but hope that this will help to clarify matters for most people. Should your situation not be addressed by the terms in the policies, please don’t hesitate to contact the SFUFA office.