Chapter 8 - The Arbitration of Grievances PDF

lOMoARcPSD|2779689 Unions Mana 479 Chapter 8 - The Arbitration of Grievances Jurisdiction of the Arbitrator Art. 100 Any dispute arising from the application of the CBA must be submitted to arbitration. An arbitrator has exclusive jurisdiction for the interpretation and application of the CBA when...

lOMoARcPSD|2779689 Unions Mana 479 Chapter 8 - The Arbitration of Grievances Jurisdiction of the Arbitrator Art. 100 Any dispute arising from the application of the CBA must be submitted to arbitration. An arbitrator has exclusive jurisdiction for the interpretation and application of the CBA when a dispute arises explicitly or inferentially from the: § Interpretation § Application of the collective agreement § Administration § Violation *The CBA does not have to specifically provide for the dispute for a grievance arbitration. (can be an implicit or explicit dispute) § Implicit - Not directly stated, but is assumed. § Explicit - Directly stated in the content. Implicit Disputes Theoretical disputes asking for an interpretation of the meaning of the CBA. All rights and obligation: § Of the employer and the employees § Of former employees § Resulting from the Charter of Rights and the Public Order Laws (LSA) § Resulting from the Civil Code § Resulting from an expired CBA There is no concurrent jurisdiction of the Civil Courts. • An employee cannot file a civil claim • Any ruling from the arbitrator will be final and binding Arbitrator can Handle disputes between an employer (and its representatives), and the union (and its employees). Arbitrator cannot Impose ruling on third parties, or decide disputes between employees themselves. Rules of Natural Justice The arbitrator must respect the parties’ right to: § Impartiality § A fair hearing § Be heard and be represented by an attorney § Present relevant evidence Protection An arbitrator has immunity against personal liability for consequences of decisions made in good faith. 23 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Appointing an Arbitrator The CBA can specify who will be appointed to arbitrate grievances § Can be through a process of nomination § Can be appointed by the Minster of Labour upon request from either party If the collective agreement does not specify an arbitrator and the parties fail to agree on one, the Minister of Labour will appoint one. Arbitration Deadline Art. 71 Rights and recourses arising from the CBA are prescribed 6 months from the date of knowledge of the cause of action § Arbitrator loses jurisdiction after the deadline § The CBA can provide a shorter deadline but cannot be less than 15 days Steps to filing a grievance are usually specified in the collective agreement Powers of the Arbitrator Art. 100.12 a) interpret and apply any law or regulation b) fix the terms and conditions of reimbursement c) order the payment of damages and interest at the legal rate d) fix the amount due under an award he has made e) correct, at any time, a decision in which there is a calculation or clerical error f) confirm, amend, or set aside the decision of an employer and substitute the decision g) render any other decision to protect the rights of the parties Limitations Interpretation of the Constitution and the Charter of Rights Arbitrator's exclusive power is limited to conclusions relating to the appreciation of the evidence. § Even if the courts do not agree w/ the decision, if it’s still reasonable (not an error), the courts will defer to the arbitrator's expertise. § Errors regarding the legal interpretation of fundamental rights will be subjected to Judicial Review. Judicial Review A union’s obligation of representation includes requesting judicial review if necessary. § An employee cannot request this on his own § This is not an appeal Situations for Review Questions of Jurisdiction and the Law § Interpretation of any important principal laws. § Violation of the Rules of Natural Justice. § Decisions made on a grievance that was filed. outside the 6 months delay. § When an arbitrator refuses to hear a properly filed case. Questions of Fact, Evidence, Direction, or Policy § Interpretation of the CBA § Interpretation of laws within an arbitrator’s expertise. § Standards of reasonableness of the decision (decision must have been manifestly unreasonable) *In most cases, the arbitrator’s decision cannot be challenged. 24 Downloaded by Savannah Amber ([email protected])