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The Art of Negotiation

Drafting Clear Contract Language: An in-depth skills training session


A clearly written collective agreement makes it easier for management, union representatives, and workers to understand their rights and obligations. Poorly written clauses can become the subject of disputes and costly arbitration. This hands-on training session is designed to provide bargaining committee members, labour lawyers, human resources professionals, and other labour relations professionals with the skills and knowledge necessary to:

  • Interpret collective agreement language using rules of construction accepted by arbitrators.
  • Recognize ambiguous provisions.
  • Understand the concept of "estoppel".
  • Develop a process for negotiating clear contract language.
  • Make existing contract language clear to managers, supervisors, union stewards, and employees "on the shop floor."
  • Identify common words, phrases, and stylistic problems that make contracts unclear.
  • Modernize the structure and format of contracts.


 
 
 
 

Interested?

E-mail Roshien Asanta or call (416) 977-6618 for more information. We can help to tailor a Customized Training package for you.



Sample Schedule



9:00 a.m. – 9:15 a.m.

 INTRODUCTION AND OVERVIEW 


  • Welcome to participants, brief introductions, and review of the day's agenda.

9:15 a.m. – 10:30 a.m.

 PART 1  Reading Collective Agreement Language


Session leaders will explain the key legal rules you need to know when reading collective agreement language. Specific topics to be addressed include:

  • What is the "plain meaning rule?" How should it guide your interpretation of collective agreement provisions?
  • What is the difference, if any, between the way collective agreements are interpreted and the way courts interpret standard commercial contracts?
  • What does it mean to "read the collective agreement as a whole?"
  • What effect do marginal notes and headings in a collective agreement have in aiding interpretation?
  • Does a preamble play any role in contract construction?
  • What is meant by the following: expressio unius est exclusio alterius, ejusdem generis, contra proferentem, rule against absurdities, de minimis, specific vs. general? How are these "canons of construction" used by arbitrators to ascertain the meaning of collective agreement language?
  • What are "implied terms" of a collective agreement? How do they affect interpretation of the express language of the agreement?
  • What are the "four categories" of insured benefits provisions? Why are they so important?
  • How do you interpret a provision that seems unclear? When will collective agreement language be considered ambiguous such that evidence of past practice and negotiating history will be consulted by arbitrators to ascertain the parties' intentions?
  • How is the interpretation of and administration of collective agreements affected by estoppel, the legal doctrine that is invoked to hold a party to its past practice or promises despite its rights under the collective agreement?

10:30 a.m. – 10:45 a.m.

MORNING BREAK


10:45 a.m. – 11:30 a.m.

 EXERCISE 1 


  • Working in groups, attendees will apply principles of interpretation to contract language that has been the subject of real-life disputes.
  • Workshop leaders will provide guidance and feedback.


11:30 a.m. – 12:00 p.m.

 PART 2  Negotiating Clear Language


Session leaders will provide guidance on negotiating clear language. Topics to be addressed include:

  • What is "clear language?" Is it the same as "plain language?"
  • In what circumstances is it realistic to negotiate a clear-language contract? Is it something that can only be done if the parties don’t already have a collective agreement?
  • When should you draft contract language: at the proposal stage or only after parties have reached agreement on the content of a clause?
  • In what circumstances, if any, should parties with an existing agreement agree to re-write the agreement, or parts of it, to make it clear?
  • If the employer and union cannot agree on clear language, what steps can each side take to ensure that managers, supervisors and bargaining unit members understand the contract? Are implementation or interpretation guidelines useful? What about "plain language" guides or fact sheets?
  • Is there merit to the concern that "legal language" will have more weight than "clear language?"

12:00 p.m. – 12:45 p.m.

LUNCH


12:45 p.m. – 1:15 p.m.

 EXERCISE 2 


  • Attendees will work in groups to distinguish examples of clear clauses from unclear clauses.

1:15 p.m. – 2:30 p.m.

 PART 3  Writing Clear Language


Professional writers will provide practical tips on writing clear collective agreement language. Specific topics to be addressed include:

  • What are the key principles of writing clearly?
  • What are the most common style problems in collective agreement language that make it difficult to understand?
  • When is it absolutely necessary to use technical terms? When is it necessary to use technical terms? How can you make their meaning clear to readers?
  • How can you make contract language clearer while also eliminating gendered and ableist language?

2:30 p.m. – 2:45 p.m.

AFTERNOON BREAK


2:45 p.m. – 3:45 p.m.

 EXERCISE 3 


  • Attendees will practice re-writing contract language to make it clear.
  • Session leaders will provide guidance and feedback.


3:45 p.m. – 4:00 p.m.

 CONCLUSION  Q & A


Session leaders will provide a concise review of important concepts and skills covered during the training session and will take questions from participants.



Additional Information


MATERIALS
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.