June 24, 2010

When disputes arise at a unionized workplace, the first place to look for guidance is the collective agreement – the contract that is meant to govern the rights and responsibilities of employers and workers. But what if the agreement is not clear? Or there is a practice that ignores the language of the contract? How do arbitrators sort out the meaning of ambiguous collective agreement language? What rules of interpretation do they consult as aids in ascertaining the parties’ intentions? How do arbitrators differ, among themselves, and across the country? Lancaster’s panel of experts will equip you with knowledge of the rules of collective agreement interpretation and will demonstrate how they can be utilized to advance your position:

  • The Plain Meaning Rule: How do arbitrators analyze the precise language used in an agreement to interpret meaning? What is the “plain meaning principle”?
  • Contextual Interpretation: What does it mean to “read the collective agreement as a whole”? How do arbitrators analyze the relationship between words and clauses to discern the intention of the parties? What effect do marginal notes and headings in a collective agreement have in aiding interpretation? Does a preamble play any role in contract construction?
  • Purposive Interpretation: What is the difference between the way arbitrators interpret collective agreements and standard commercial contracts and what is the reason for this difference? When interpreting the collective agreement, do arbitrators apply a liberal analysis similar to the “purposive analysis” that is applied in the context of statutory interpretation?
  • Implied Terms: When will arbitrators imply terms into a collective agreement? Which terms are implied and which are not? Does it depend on whether the issue concerns managerial functions or employees’ working conditions? What legislation is implicitly part of the collective agreement? What is meant by “incorporation by reference”?
  • The Duty of Fairness: In the absence of express language in the collective agreement, is the employer required to exercise managerial authority in good faith? In a manner that is not arbitrary or discriminatory? Fairly and reasonably? What is the difference in the scope of these duties?
  • Ambiguity, Past Practice, and Negotiating History: 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? What is the difference between latent and patent ambiguity?
  • Estoppel: Under the doctrine of estoppel, the past conduct or representations of a party may prevent it from enforcing its strict rights under the collective agreement. What are the elements required to establish estoppel? Can the silence of one party during negotiations ground an argument in estoppel? Must the estoppel relate to a particular provision of the collective agreement or can estoppel be invoked in any situation in which one party’s conduct induces reliance by the other party upon that continued conduct to its detriment? What is meant by “detriment”? May an individual employee rely upon estoppel based on representations made by an employer directly to the employee if the same representation has not been made to the union?
  • Rules of Construction: What do the maxims expressio unius est exclusio alterius, ejusdem generis, and contra proferentem mean and how are they used by arbitrators to ascertain the meaning of collective agreement language? What is meant by the presumption against absurdity?
  • Climate of Collective Bargaining: To what extent are parties entitled to rely on the interpretation given to a particular type of clause in past arbitration decisions? In prior awards involving the parties themselves?
  • Residual Rights Theory: According to residual rights theory, all rights not specifically negotiated by the union remain within the domain of the employer. Is this theory applicable in arbitral case law today? Does it depend on whether there is a management rights clause in the collective agreement, and on the terms of that clause? Does it turn on whether managerial functions are at issue as opposed to employees’ working conditions?

This audio conference has been approved by the following:

  • The Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.
  • The Law Society of New Brunswick for 1.5 Continuing Professional Development hours.
  • The Law Society of Upper Canada for 1.5 hours (Labour Law) towards the professional development requirement for certification.
  • The Law Society of British Columbia for 1.5 Continuing Professional Development hours.