Transforming Collective Agreement Administration in Canada
Research presented by Professors Kevin Banks, Richard Chaykowski, and George Slotsve at Queen's University addresses the challenges and changes in grievance arbitration in Canada, focusing on the impact of the Weber v. Ontario Hydro case. The discussion delves into the evolving legal environment, the time taken for arbitration awards, and the potential risks of the current grievance system becoming dysfunctional.
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Presentation Transcript
Weber Delay? October 30, 2015 "One Law for All": Has Weber v. Ontario Hydro Transformed Collective Agreement Administration and Arbitration in Canada? Professors Kevin Banks, Richard Chaykowski and George Slotsve Centre for Law in the Contemporary Workplace Queen s University
The Problem Research demonstrates a steady increase between the 1970s and early 2000s in the average time from initiating a grievance to the rendering of an arbitration award in all Canadian jurisdictions studied.
A Challenge to the System Ontario s recently retired Chief Justice, has argued that the present system of grievance arbitration can be slow, expensive and detached from the realities of the workplace , has lost its course, has lost its trajectory, has lost its vision , and is at risk of becoming dysfunctional and irrelevant .
Weber and the changed legal environment Increased complexity of legal issues facing arbitration due to the expansion of arbitral jurisdiction: Weber jurisdiction: torts, pension and benefit plans, Charter of Rights Human rights (anti-discrimination) and other statutory matters Ambiguity in the scope of arbitral jurisdiction.
A Framework of Hypotheses A. Exogenous constraints (Weber and a radically changed environment): 1. proportion of cases raising numerous or complex legal or factual issues 2. proportion of cases raising jurisdiction issues B. Behaviour of Arbitrators 1. Procrastination 2. Lengthy and legalistic decision-making 3. (Defaulting to non-management of proceedings)
A Framework of Hypotheses C. Institutional Characteristics of the Parties 1. public vs private 2. government vs health care vs education D. Legitimate Preferences of the Parties 1. Risk-averse approach to ensuring high standards of fairness, high quality of decision, and acceptability of decision 2. Allowing time for healing
A Framework of Hypotheses E. Incentive or coordination problems among the parties 1. Pursuit of tactical or political advantage 2. Lack of information on more efficient processes 3. Costs associated with moving to more efficient processes a. up-front costs of negotiation and establishment b. up-front costs of clearing backlogs c. potential for wasted investment in early fact-finding and disclosure 4. Lack of trust may heighten risks or perceived risk of net loss
Methods Detailed legal subject matter coding of all grievance arbitration awards in Ontario Labour Arbitration Awards, 2010 Record time from grievance or event to first hearing, first hearing to last hearing, last hearing to award, and number of hearing days Process variables coded include details on arbitrator/board, party representatives, whether expedited procedures or agreed statements of fact were used, and length of award Coding government, health care, education and other employers Proxy for busiest arbitrators Consent awards and interim awards excluded
What this enables us to measure At what stage delay tends to arise, and What institutional, legal or procedural factors tend to cause it.
What this enables us to infer directly The probable extent of any effects of changed legal environment (A1 and A2) The probable extent of any effects of arbitrator behavior (B1 and B2) The relative importance of party institutional characteristics (C1 and C2) The relative importance of risk-averse procedural choices (D1)
What this enables us to infer indirectly The likely relative importance of the combined effect of party priorities, resource constraints, and incentive or coordination problems.
Industry Profile of Cases, BCS (2015) and Picher and Mole (1991) 100 90 80 70 60 50 % 40 30 20 10 0 Sector: Private Sole Tripartite Sector: Government, Health & Education Sole Tripartite BCS Entire Sample M&P Entire Sample
BCS Approximate Distribution of Cases by Subject 18.00 16.00 14.00 12.00 10.00 8.00 6.00 4.00 2.00 0.00
BCS Time Lapse, Discipline and Non-Discipline 400 350 307.02 300 250 200 136.2 150 86.34 100 49.36 50 0 Hearing Time Award Time Total Time Event to First Hearing Time Average, Entire Sample Disciplinary Awards Non-Disciplinary Awards
Time to Complete Hearings 90 80 70 60 50 % with hearing time of 30 days or less % with hearing time of 60 days or less 40 % with hearing time of 90 days or less % with hearing time of 120 days or less 30 20 10 0 Human Rights or Other Discrimination Pension Plan Benefit or Welfare Plan Interpretation of Collective Agreement Discharge for Discipline
Post-hearing time to Render Award 90 80 70 60 50 % with hearing time of 30 days or less % with hearing time of 60 days or less 40 % with hearing time of 90 days or less 30 20 10 0 Human Rights or Other Discrimination Pension Plan Benefit or Welfare Plan Interpretation of Collective Agreement Discharge for Discipline
Start to First Hearing _t Coef. Robust Std. Err. Z P>|z| [95% Conf. Interval] T-stat Jurisother .8942973 .3885852 2.30 0.021 .1326842 1.65591 discd -.6028431 .2625858 -2.30 0.022 -1.117502 -.0881843 gov .451927 .1372988 3.29 0.001 .1828263 .7210277 expedited -.7939438 .1461618 -5.43 0.000 -1.080416 -.507472 tripart .6172616 .2364494 2.61 0.009 .1538292 1.080694
First Hearing to Last Hearing _t Coef. Robust Std. Err. Z P>|z| [95% Conf. Interval] T-stat Charter 1.957558 1.08435 1.81 0.071 -.1677283 4.082845 cba 1.510866 .6769155 2.23 0.026 .1841363 2.837596 discd 1.237125 .6036845 2.05 0.040 .0539256 2.420325 other 1.892718 .7240709 2.61 0.009 .4735653 3.311871 gov 1.038742 .316652 3.28 0.001 .4181155 1.659369 urep .7115691 .3274369 2.17 0.030 .0698047 1.353334 furep -.4712984 .2642194 -1.78 0.074 -.989159 .0465621 afact -1.088791 .2812563 -3.87 0.000 -1.640043 -.5375387 busy arb -.0398964 .0234684 -1.70 0.089 -.0858937 .0061009 naward .0753464 .0195785 3.85 0.000 .0369732 .1137197
Last Hearing to Award Date _t Coef. Robust Std. Err. Z P>|z| [95% Conf. Interval] T-stat gov .2755533 .1610688 1.71 0.087 -.0401358 .5912424 expedited -.580545 .1945554 -2.98 0.003 -.9618665 -.1992235 furep -.4673641 .2172815 -2.15 0.031 -.893228 -.0415003 tripart .8374219 .3059009 2.74 0.006 .2378671 1.436977 wcount .0001892 .0000237 8.00 0.000 .0001428 .0002355 busy arb -.0201723 .011216 -1.80 0.072 -.0421552 .0018106 naward -.0169747 .0095035 -1.79 0.074 -.0356012 .0016518
Hearing Days _t Coef. Robust Std. Err. Z P>|z| [95% Conf. Interval] T-stat jurisother -.4575563 .1672811 -2.74 0.006 -.7854212 -.1296913 drug .3853115 .1389127 2.77 0.006 .1130475 .6575754 Charter .9450663 .3854717 2.45 0.014 .1895557 1.700577 cba .2228244 .1072907 2.08 0.038 .0125385 .4331104 discd .1920933 .1126538 1.71 0.088 -.0287041 .4128907 other .3101763 .1117161 2.78 0.005 .0912168 .5291359 gov .1996908 .0485235 4.12 0.000 .1045865 .2947952 educ .1081304 .0420283 2.57 0.010 .0257565 .1905043 afact -.1876773 .0371176 -5.06 0.000 -.2604264 -.1149281 tripart .1677282 .0692343 2.42 0.015 .0320314 .303425 wcount .0000573 .0000101 5.66 0.000 .0000374 .0000771 naward .006192 .0017254 3.59 0.000 .0028102 0095737
Weber Specification Results Weber = Pension Plan + Benefit or Welfare Plan + Canadian Charter + Tort Pension Plan 0 "No" 1 "Yes" Benefit or Welfare Plan (whether insured or not) 0 "No" 1 "Yes" Canadian Charter 0 "No" 1 "Yes" Tort 0 "No" 1 "Yes" Coef. Robust Std. Err. Z P>|z| [95% Conf. Interval] T-stat Weber -1746566 .4572543 -0.38 0.702 -1.070859 .7215455
Manual Review of Jurisdictional Issues - Results Weber issues accounted for 9 of of 49 jurisdictional issues decided. Predominance of traditional issues (timeliness, scope of agreement). In about half of Weber jurisdiction cases cases it took markedly longer than average to get to a first hearing. No tendency away from average in hearing time or length of time from hearing to award. Due to small population of Weber jurisdiction issues, it is difficult to draw statistical inferences from these observations.
Conclusions 1. The changed legal environment and culture of legalism hypotheses find little support in the data: Most delay is prior to the hearing. The number of legal subjects dealt with in an award has no statistically significant effect at any stage. The total number of cases raising issues within new jurisdiction is relatively small in relation to the total number of legal issues decided. Use of legal counsel by a party has no statistically significant effect except at the hearing stage. There it is only the use of counsel by unions that is significant.
Conclusions On the other hand, jurisdictional determinations are associated with delay prior to the first date of hearing. The reasons for this require further investigation. Determining Weber jurisdiction probably makes some contribution to the likelihood of this delay, but the number of Weber jurisdiction cases is small.
Conclusions 2. There is no evidence in our data suggesting that arbitral behavior is a significant contributor to systemic delay. Award time is a relatively small fraction of total delay. The length of awards has little effect on award time. 3. Government parties are more prone to delay at every stage of the process, suggesting that institutional decision-making processes and resource allocations probably matter.
Conclusions 4. Party caution or risk aversion in choices of representation, arbitrator or procedure appears to play relatively little role in delay at a systemic level: While tripartism causes delay, it is in sharp decline. Decisions to use the busiest arbitrators have little or no statistically significant effect on delay at any stage of the process. The raising of procedural issues appears to have no statistically significant effect on delay at any stage of the process. As noted above, use of legal counsel by a party has no statistically significant effect except at the hearing stage. There it is only use of counsel by unions that is significant.
Conclusions 5. The principal causes of delay are therefore likely to lie in the priorities of the parties, or in incentive or coordination problems between them. This is consistent with the concentration of delay in the pre-hearing stage. The data do not permit us to sort out whether or to what extent such delays result from party decisions to use time to heal, to use delay tactically, to bring or defend cases for political reasons, or simply from a lack of information, lack of trust, or from dealing with an accumulated backlog resulting from resource constraints.
Policy Implications Addressing the bulk of increasing delay probably does not require: Changes to arbitral jurisdiction Regulation of arbitral decision-making time lines. A larger supply of arbitrators. Moving away from legal representation.
Policy Implications Further research is required to determine what prevents parties from moving more quickly. Depending on the results of such research, policy makers might consider: Providing information on the mechanics of and business case for expedited procedures. Facilitating negotiation of expedited procedures. Enabling a party to elect from a wider range of mandatory expedited procedures. Requiring arbitrators to case-manage in the absence of agreement to the contrary.
