Arbitration is a term you’ll often see in the news or media releases regarding activities between unions and employers.
Arbitration is a legal process where parties to a dispute submit their arguments to an Arbitrator – an impartial person, similar to a judge – appointed by mutual consent or statutory provision. The Arbitrator considers all sides of the dispute and delivers a legally binding decision and sometimes a remedy.
The most common use of arbitration that you hear about is for contract negotiations. Arbitration is sometimes used when collective bargaining results in a stalemate between the union and the employer.
But today I am going to talk about another type of arbitration, which is used as part of the grievance process. Grievances are multi-step processes for resolving workplace issues. A grievance can be sent to arbitration if the parties cannot find agreement on how to resolve the issue.
Before a grievance is filed, issues should be brought forward to a supervisor or union rep. The union rep will try to work with the member and their employer to help resolve the issue. If this is unsuccessful, the next step is to file a grievance.
Filing a grievance does not need to be a confrontational process. In fact, it is an important tool for solving problems where a worker and their employer have differing perspectives.
There are three kinds of grievance a union can file with an employer: an individual grievance, a group grievance, and a policy grievance.
Individual grievances are filed on behalf of a member whose rights under a collective agreement have been violated (such as harassment, discipline, denial of leave, etc).
A group grievance is a single grievance filed on behalf of multiple members who are affected by the same issue (for example denial of a lieu bank for finance employees).
A policy grievance is filed when there is disagreement between the union and the employer over how sections of a collective agreement are being interpreted or implemented.
The grievance process is important because it is the strongest tool that union members have to enforce their rights. It can also be helpful in educating managers about their workers' rights and benefits.
All union members have the right to file a grievance, and any retaliation against a worker for filing one is strictly prohibited.
Sometimes, an issue can be resolved through one of the steps in the grievance process. However, because that outcome does not always require the employer to change a policy or practice; it can be worth pursuing through arbitration as it may have an impact for the larger membership and become case law.
Getting to arbitration takes a lot of preparation and research to build a case, as well as gathering relevant and specific evidence. The results are legally binding and set a legal precedent for future interpretations of a collective agreement – in other words, the stakes are higher.
The Arbitrator looks at arguments and evidence from the union and the employer, as well as recent and historical outcomes of similar cases from across Canada.
The final decision is made public, usually including the names of all the parties involved. This is why some members or employers prefer to settle grievances before arbitration, where they can remain confidential.
However, sometimes it is important for union members that outcomes to be made public, especially when they are in a worker’s favour. These decisions will shape the way employers apply their collective agreement – not just in one workplace, but also in other workplaces with similar collective agreement language.
A decision at arbitration is also legally enforceable and applies to everyone who falls under that collective agreement. This is sometimes why a union pushes a grievance toward arbitration, especially when the outcome could have a significant impact on an employer policy or how a collective agreement is interpreted moving forward.
Like all legal processes, preparing for and participating in grievance arbitrations can take a long time. But the energy and effort are worth it if a decision improves lives and work environments. Fortunately for unionized workers, their collective power means their dues fund legal support and advice, and they can fight for their rights together.
Gayla Thunstrom, UNW President