Introduction to arbitrationArbitration is the most common method of resolving disputes in unionized workplaces, and is called for in collective agreements – the negotiated contract between employees (represented by their union) and employers.
Arbitration vs mediationPrior to an arbitration process, parties may attempt to resolve their issues via an informal workplace mediation process. Read about the differences between mediation and arbitration.
Arbitration clausesThese agreements almost always contain sections that call for a third party decision maker (arbitrator) to decide the outcome of unresolved disputes between the parties, so that every little disagreement does not end in a strike or a lock-out. Where such a provision is not in a collective agreement, the law in most, if not all, jurisdictions in Canada mandates that a section requiring arbitration be deemed to be included in the agreement. For example, in Ontario, if an agreement does not contain such a provision, the law requires that following clause be deemed to be a part of it:
“Where a difference arises between the parties relating to the interpretation, application or administration of this agreement, including any question as to whether a matter is arbitrable, or where an allegation is made that this agreement has been violated, either of the parties may after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration…”
(Labour Relations Act, 1995, SO 1995, c 1, Sch A, s.48(2))
Grievances leading to arbitration
Where an individual employee or the union as a whole believes that the employer has violated the collective agreement, a “grievance” may be filed by the union. The grievance will state what has been done wrong, and what the complainant believes the remedy should be if the grievance succeeds.
Arbitration processWhere the dispute is not resolved once the employer has considered the grievance, and depending on the specific process laid out in the collective agreement, the issue will go before an arbitrator to resolve. The arbitration process is similar to court, with one or more adjudicators hearing the case and determining the outcome. The union and employer may have lawyers representing them. The arbitrator(s) may be agreed upon by the parties, or may be appointed by the Minister for labour in that jurisdiction. Evidence will be provided to the arbitrator(s) to consider, and witnesses will often be called.
Arbitration proceedingsHowever, the proceedings are much more informal than in court. An arbitration will often be held in a boardroom or office, and normal court rules are generally more lax. An arbitrator will most often release his or her decision must faster than a court would. Furthermore, given that the parties will likely have had a long history of bargaining together or of prior arbitrations, they may agree to certain aspects of the case without conflict so as to speed up the process, and ask the arbitrator to merely focus on one or more of the most contentious issues.
Binding decisionThe decision of the arbitrator will be binding. While the losing party may appeal the decision in court (called “judicial review”), labour arbitrators are given much leeway for their specialized knowledge in the field, and often the outcome of the arbitration will only be overturned if it is outside the scope of what could be considered a reasonable decision.
Conclusion about labour arbitration
Arbitrations in labour law are extremely common, and this method of dispute resolution has taken immense pressure off of the court system. Most issues can be solved efficiently and cheaply in this way.
About the blogger: workplace arbitrationJohanna Willows, Labour Law Blogger
Johanna Willows is a lawyer in Winnipeg, representing unions and individual employees. Johanna received her law degree from the University of Ottawa in 2013. She received several awards upon graduation for her work and extracurriculars in labour, employment, and human rights law, and was recently awarded the Manitoba Bar Association Pro Bono award.