Grievances

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Every collective agreement includes articles and sub-sections that describe your workplace’s grievance procedure. They cover how the procedure is applied, how grievances are interpreted, and how decisions are made about the fairness of workplace discipline or termination.

To CUPE, a grievance is defined as “any difference arising out of the interpretation, application, administration, or alleged violation of the collective agreement or a case where the Employer has acted unjustly, improperly, or unreasonably.”

The outcome of collective bargaining is a written agreement between the union and the employer that is referred to as the “collective agreement”. The collective agreement remains in effect for a specific period or “term”. The term of the agreement must by law be at least one year. Many contracts have terms of two or even three years. During the term of the collective agreement the union cannot engage in a strike and the employer cannot lock out the workers. This means that the union is prohibited from staging a walk out during the term of the collective agreement to force the employer to live up to its obligations under the agreement. Since the law denies the right to strike it is necessary for the law to provide some alternative way of enforcing the collective agreement – that alternative method of enforcement is known as the grievance/arbitration system.

If the union believes that the employer has violated the collective agreement, the union can file a grievance with the employer. (Employers may file grievances as well, but this is rare.)

The grievance is a written document normally not more than one page, that sets out the basic details of the violation the union is complaining about. The grievance may be about a matter that concerns one worker or that involves the entire bargaining unit. Whatever the nature of the grievance, it must be related in some way to the provisions contained in the collective agreement.

After a grievance has been filed, the union and the employer will meet to discuss the grievance to settle the dispute. This is referred to as the “grievance procedure” and is different from the “arbitration procedure” which will be explained below. The grievance procedure varies from workplace to workplace, but generally the union and the employer will hold a series of grievance meetings, starting at the lower levels of management and working up to the highest. At each step the parties will try to achieve a settlement of the grievance. If they fail to do so through discussion, the grievance can be taken to the next step – arbitration.

If the union decides to proceed to arbitration with the grievance, it informs the employer of this decision. Then a board of arbitration is set up to hear the grievance. Usually, the board is composed of three persons, one representing the union, another representing the employer and the third being a “neutral” chairperson.

The board of arbitration holds a hearing. At the hearing both the union and the employer present evidence to the Board backing up their respective positions on the grievance. The board must hear the evidence and then decide how the grievance will be settled. If the members of the board cannot agree on the outcome of a case it is the decision of the chairperson that is final. The decision is put in writing and copies are sent to the union and the employer. The written decision, called the “arbitration award”, is legally binding on both the union and the employer. If the employer were to refuse to obey the decision of the board of arbitration, the union would have the right to have the decision enforced as if it were a decision of the courts. This means that the employer could be found in contempt of court and could be subject to fines or even imprisonment. Given the severity of the consequences, employers do not often attempt to ignore arbitration awards. The arbitration award may be reviewed and overturned in the courts but only on very narrow legal grounds.

The grievance/arbitration system can be used effectively to enforce the rights contained in the collective agreement. It cannot, however, create new rights or help to fill gaps in the collective agreement. Successful grievances start with clear contract language. Care must be taken during bargaining to ensure that the language negotiated at the table accurately expresses the agreement reached with the employer.