October 3, 2017

When disputes arise at a unionized workplace, the first place to look for guidance is the collective agreement – the contract that governs the rights and responsibilities of employers and employees. But what if the meaning is not clear? Or there is a practice that ignores the language of the agreement? In this session, experts will explain the rules of collective agreement interpretation and 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 rule?”
  • Purposive Interpretation: What is the difference between the way arbitrators interpret collective agreements and the way courts interpret standard commercial contracts? What is the reason for this difference? When interpreting the collective agreement, do/should arbitrators apply a strict construction approach or a liberal analysis similar to the “purposive analysis” that is applied to statutory interpretation?
  • Reading the Collective Agreement as a Whole: 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?
  • Implied Terms: When will arbitrators imply terms into a collective agreement? Should arbitrators imply terms of reasonableness, fairness, and good faith into collective agreements? What legislation is deemed to be implicitly part of the collective agreement? Are there limits to the principle enunciated in the Supreme Court’s decision in Parry Sound that arbitrators have the authority to interpret and apply all employment-related statutes as implied terms of the collective agreement?
  • Insured Benefits Doctrine: What is the “four categories” test in Brown and Beatty? When do you have to go to court for disputes related to insurance benefit claims? When can you grieve?
  • 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: When will the past conduct or representations of one party prevent it from enforcing its strict rights under the collective agreement?
  • Rules of 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?
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