---

Law 51.345* Labour Law

Class Notes - November 16, 1998

---

 

Collective Agreements and Arbitration

• Collective Agreement and Arbitration
• What is a collective agreement
• Arbitration as a process
• The role of the arbitrator
• Functions of the Collective Agreement
• Discharge and discipline
  
  
• What is a collective agreement
• Written agreement between employer and union
• Establishes terms and conditions of employment
• Covers diverse subject matter
• General terms
• Security clauses
• Settlement of disputes
• Wages and hours
• Conditions of work
• Fringe benefits
  
  
• Collective Agreements: History
• CA not an enforceable contract
• Young v. CNR
• No intention to create legal relations with individual employees
• Agreements between 'ers 'ass'n and union
• Only remedy for breach is strike
• 'open shop' and fair representation issues lurk
• Trade unions no status to make binding contracts
• Privity of contract problems - 'normative effects' of CA ignored
  
  
• Grievance Arbitration
• All CA must have a dispute settlement process
• Grievance arbitration almost univeral
• Arbitration v. adjudication in courts?
• Legal process or labour relations process?
• Formaility
• Preliminary grievance process
• Applicability of traditional legal rules
• Variability in structure
• Control of process
  
  
• Role of the Arbitrator
• Purposes of Arbitration
• Promotes voluntarism
• Ensures industrial peace
• Imposes public values on the workplace
• Three models of arbitration
• Mediator
• Industrial Relations policy maker
• Adjudicator
  
  
• Arbitrator as Mediator
• Arbitration as essential component of self-gov't
• Collective bargaining as relational - not final
• Unable to anticipate all contingencies
• Value in ambiguity to facilitate settlement
• Criterion for decision: 'mutual acceptability'
• Lack of imposed decision facilitates consensus
• Mediator takes responsibilty for resolving internal conflicts
  
  
• Limits of Mediation Model
• Arbitration required, not voluntary
• Arbitrator's decision insulated from review
• Remedial authority backed by state coercion
• Detailed CA encourages rights based approaches
• Arbitration similar to administrative agencies
• Disputes take on a public dimension
• Arb. takes on a public role
  
  
• Arbitrator as policy maker
• CA cannot be authoritative guide to decision
• Ambiguous
• Open
• Arb is political actor in industrial relations community
• Major concerns might include
• Maintaining productivity
• Ensuring viability of collective bargaining
• Guaranteeing values of due process
• Major concerns with judicial policy-making
  
  
• Arbitrator as adjudicator
• Arbitration seen as similar to judicial processes
• Advantages of adjudicative arbitration
• Inexpensiveness
• Speed
• Informality
• Arbitral expertise
• Elaborates on and applies legal regime of CA
• Settles disputes
• Adversary process
• Established system of standards
  
  
• CA silent - What then?
• Mediation - settlement acceptable to parties
• Policy maker - What is good for parties and system
• Adjudicator - make no decision
• Under present regime - managerial prerogative wins
• Fairness demands chance to bargain
• Problems with ban on mid-contract strikes
  
  
• The CA and the Liberal Dilemma
• Liberal Premises
• Private decision-making
• Voluntarism
• No outside judge of good or bad agreements
• Property owners v. property-less workers
• The problem of inequality
• Property and power over the individual
  
  
• Discipline and Discharge
• Searching for arbitral models
• Giving meaning to the concept of 'just cause'
• Alternative visions
• Criminal law - due process
• Contractual - benefits of the hiring bargain
• Something distinctive
  
  
• Discipline: Theories
• Workplace as a special community
• Profit and efficiency as motivating concerns
• Low toleration for non-conforming conduct
• Discipline punitive, but based in contract
• Need to harmonize criminal and contractual elements
• Transition from common law principles to collective bargaining regimes
  
  
• Purposes of Discipline
• Arbitral discretion to vary the penalty imposed
• Re Cook and Ontario (Ministry of Labour)
• Discpline designed to correct behaviour
• Measuring the likelihood of rehabilitation
• Employer role in assisting with rehabilitation
• Re Stelco
• 'just cause' imposes positive obligations on 'er
• Discipline must be for job-related misconduct
• 'er' required to participate in 'Temporary Absence Program
• 'Ee reinstated with back pay