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 dierences 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 conict 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 conict management systems.
e PSLRA does not de ne what an “infor mal conict ma nagement system”
is supposed to be. However, the Treasury Board Directive on Informal Conict
Management Systems denes an informal con ict management system as follows:
“An informal conict management system (ICMS) is a system for dealing with
conict, w hich incorporates a lternative dispute resolut ion methods into exi sting
rights-based structures to form a multi-option conict 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 conict 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 conict
(“conict 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 conict 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 conict, is
strictly voluntary.
.Flexible: e system should al low for the prevention and/or resolution
of conict 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 Conic t
Management Resource Guide, in Directive on Inform al Conict 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 conict 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 conict in a coopera-
tive and open manner.
.Condentiality: Condentiality is an important factor that inuences
the participants’ trust and condence in the integrity of the system.
While absolute condentialit 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 conict
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 conict and must not have any prefer-
ence for a possible outcome of the process. e part ies in a conict must
agree on any person who will be providing conict management ser-
vices.
Privacy Act, R .S. , c. P-.
Access to Informat ion Act, R.S., , c. A-.
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