Resolution of rights disputes

AuthorChristopher Rootham
 
One of the eccentricities of federa l public service labour law is the met hod of
resolution of rights disputes. Under most labour relations statutes, almost every
possible subject of dispute may be grieved, a nd then referred to binding thi rd-
party arbit ration. e Canada Labour Code, for one, requires the pa rties to a
collective agreement to refer “al l dierences between the pa rties ... concerning
[the collecti ve agreement’s] interpretation, applic ation, administ ration or alleged
contravent ion.” is provision — coupled with a long line of jurisprudence i ndi-
cating that al most all workplace disputes ar ise under the collective ag reement
— means that arbitrators have jurisd iction 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 t he matters that are capable of being gr ieved, and
then places further limits on what grievances can be referred to adjudication.
is chapter largely concerns those l imits.
Section  of the PSLR A requires any deput y head in the core public ad ministra-
tion, subject to any policies or di rectives issued by the employer, to establish a n
informal conic t 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, for exa mple,See, for example, Weber v. Ontar io Hydro, []  S.C.R. .
Public Serv ice Labour Relations Act , S.C. , c. , s.  [PSLRA].
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 Inform al 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 deal ing 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
department s must introduce “Alternative Dispute Resolut ion” (“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 unnecessa rily destruc tive 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-
. 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 st ages, and must take into account the need s of our
diverse work force. Use of the ICMS neve r precludes part icipants 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 /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 for mal processe s, 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.
. Accompan iment/Repres entation: Partie s 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ic t management process at the earliest
possible stage. ICMS processes a re designed to assist part ies to resolve
the issues themselves, at times with the assistance of third-party neu-
trals. e underly ing principle of the engagement of partie s in ADR
processes is their comm itment to try to res olve a conict in a coopera-
tive and open manner.
. Condentiality: Condentiality is an import ant factor that inuences
the participant s’ trust and condence in the integ rity 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 legis lation. Partic ipants must agree not to use any informat ion
gained when using the ICMS outside of the ICMS.
. Impartial and neutra l: 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 par ties 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 wi ll be providing conict ma nagement ser-
Privacy Act, R .S. , c. P-.
Access to Informat ion Act, R.S., , c. A-.

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