Resolution of rights disputes

• Author: Christopher Rootham
• Pages: 269-311

 

RESOLUTION OF

RIGHTS DISPUTES

A. INTRODUCTION

One of the eccentricities of federal public service labour law is the method of

resolution of rights disputes. Under most labour relations statutes, almost every

possible subject of dispute may be grieved, and then referred to binding third-

party arbitration. e Canada Labour Code, for one, requires the parties to a

collective agreement to refer “all dierences between the parties ... concerning

[the collecti ve agreement’s] interpretation, applic ation, administ ration or alleged

contravention.” is provision — coupled with a long line of jurisprudence i ndi-

cating that almost all workplace disputes arise under the collective agreement

— means that arbitrators have jurisdiction over just about every dispute that

arises in t he workplace.

In the federal public s ervice, however, this is not the case . e Public Service

Labour Relations Act limits the matters that are capable of being grieved, and

then places further limits on what grievances can be referred to adjudication.

is chapter largely concerns those l imits.

B. INFORMAL CONFLICT MANAGEMENT SYSTEM

Section  of the PSLRA requires any deput y head in the core public ad ministra-

tion, subject to any policies or directives issued by the employer, to establish an

informal conict management system. Deputy heads must establi sh this system

in consultation with bargai ning agents representing employees in the portion of

Canada Labour Code,R.S.C. , c. L-, s. ().

 See,forexample,See, for example, Weber v. Ontar io Hydro, []  S.C.R. .

Public Serv ice Labour Relations Act , S.C. , c. , s.  [PSLRA].

269

270         

the public servic e for which they are the deputy head. Sepa rate employers are not

required to establi sh informal conict management systems.

e PSLRA does not de ne what an “infor mal conict ma nagement system”

is supposed to be. However, the Treasury Board Directive on Informal Conict

Management Systems denes an informal con ict management system as follows:

“An informal conict management system (ICMS) is a system for dealing with

conict, w hich incorporates a lternative dispute resolut ion methods into exi sting

rights-based structures to form a multi-option conict management system.”



An ICMS is supposed to be more than just an alternative dispute resolution

mechanism, however. As one commentator has put it:

At rst blush, most readers will assume that [section ] simply means that

departments must introduce “Alternative Dispute Resolution” (“ADR”) at the

front door of grieva nce and workplace complaint processe s, and will conclude

that their depa rtments already mee t the requirements.

In f ac t, s.   g oe s we ll b ey ond ADR .  e te rm ino log y “ con i ct m an age men t

system” was chosen adv isedly, because only a conict ma nagement system ap-

proach will re sult in the desired new cu lture. Systems involve the developme nt,

support and use of behaviours that prevent unnecessarily destructive conict

(“conict competence”) a nd the proactive management of the causes of con ict.

By specify ing a systems approach in s.  — and t he involvement of employee

representatives i n its development — Canada has ta ken world leadership in the

evolution of organiz ational conict man agement.

e Treasury Board direc tive also lists ten requirements of an ICMS, as fol-

lows:

.Consultation with all stakeholders: Involving st akeholders, at an early

stage, is fu ndamental to a successfu l implementation. Key stakeholders

include, but are not limited to, bargai ning agents, managers, human re-

sources advisors, a nd legal services.

.Use of system is voluntary: Use of the system, at any sta ge of conict, is

strictly voluntary.

.Flexible: e system should al low for the prevention and/or resolution

of conict at all stages, and must take into account the needs of our

diverse workforce. Use of the ICMS never precludes participants from

 PublicServicesHumanResourcesManagementAgencyofCanada,Public Serv ices Human Resources Ma nagement Agency of Canada, Informal Conic t

Management Resource Guide, in Directive on Inform al Conict Management System s

( December ), online: Publ ic Services Human R esources Management Agency of

Canada: w ww.hrma-agrh.gc.ca /hrmm-mgrh/icms/icms _e.asp at .

 JenniferLynch,“eFederalJennifer Lynch, “ e Federal Public Service Modernization Act — State of th e Art In-

novations in Con ict Management” Canadian Government Executive (Februar y, )

at .

271Chapter Nine: Resolution of Rights Disputes

utilizing forma l processes. A participant may switch bet ween the ICMS

and formal process(es) at any time. Subject to any leg islated provisions,

period(s) of time using the ICMS should not count against t he time lim-

its of formal pro cesses.

.Accessible: In addition to the formal processes, employees must be

aware of the ICMS in place with in their respective organizat ion. Poten-

tial users of the s ystem should know of its available options for resolvi ng

a dispute, and have easy access to t he system at all times.

.Accompaniment/Representation: Parties participate in ADR pro-

cesses, such as mediat ion, on a voluntary basis and may withdraw at any

point in time. e par ties may be accompanied/represented by a person

(or persons) of their choosing such as their bargain ing agent representa-

tive. However, if the issues in dispute revolve around the i nterpretation

or application of a collective agreement, the ba rgaining agent represen-

tative must be involved. A person (or persons) who accompanies or rep-

resents a party i n an ADR process has the right to speak. Management

representatives should encourage employees to involve their bargaini ng

agent representative in the conict management process at the earliest

possible stage. ICMS processes are designed to assist parties to resolve

the issues themselves, at times with the assistance of third-party neu-

trals. e underlying principle of the engagement of parties in ADR

processes is their comm itment to try to resolve a conict in a coopera-

tive and open manner.

.Condentiality: Condentiality is an important factor that inuences

the participants’ trust and condence in the integrity of the system.

While absolute condentialit y is the goal, it cannot be guaranteed, due

to the provi sions of thePrivacy Act, the Access to Information Act, and

other legislation. Participants must agree not to use any information

gained when using the ICMS outside of the ICMS.

.Impartial and neutral: Any person that is actually providing conict

management services, such as med iation, (whether internal or external)

must do so on an “arm’s length” basis. e individual must not be put

in a position i n which he would be requi red to represent or advocate for

any of the potential parties in a conict and must not have any prefer-

ence for a possible outcome of the process. e part ies in a conict must

agree on any person who will be providing conict management ser-

vices.

Privacy Act, R .S. , c. P-.

Access to Informat ion Act, R.S., , c. A-.