Article - Grievance arbitration
12.01
If the grievance procedure does not result in a satisfactory solution, either party may request that the grievance or disagreement over employees’ working conditions be heard in arbitration, by sending the other party a written request to this effect.
If the Union fails to send the Employer the above-mentioned request within six (6) months of when the grievance is filed, the grievance is deemed to have been withdrawn.
A. REGULAR PROCEDURE
12.02
On matters other than those listed in clause 12.21, the parties proceed using the regular procedure.
They may also agree to proceed using the summary procedure.
12.03 Designation of the arbitrator
For the duration of this collective agreement, the parties agree that grievances will be heard by an arbitrator chosen by the parties within fifteen (15) days of a request under clause 12.01. Failing agreement within the above-mentioned period of time, the arbitrator is appointed by the Minister Responsible for Labour.
The audition is held before a sole arbitrator unless the parties agree to proceed before an arbitrator accompanied by each party’s designated assessor.
12.04 Assessors’ presence
If a party fails to designate its assessor or if its assessor or alternate does not attend an arbitration session, the arbitrator has the right to hold the hearing and exercise all powers as arbitrator, as if the assessors were present.
12.05 Conditions for sitting in an assessor’s absence
In order for the arbitrator to be able to sit in the absence of one of the assessors, each assessor must have received written notice at least five (5) days in advance. If an assessor has not been designated or replaced, the party that did not designate its assessor or alternate must have received such notice.
12.06
If the parties have not agreed on a date for proceeding within thirty (30) days of the choice or appointment of the arbitrator, the latter must convoke them peremptorily.
12.07 Arbitrator’s jurisdiction
The arbitrator has jurisdiction for grievances or disagreements over employees’ working conditions, disciplinary measures and administrative measures. The arbitrator must judge all cases in accordance with this agreement.
12.08 Jurisdiction for disciplinary measures
In disciplinary matters, the arbitrator may uphold, modify or overturn the Employer’s decision or replace it, if need be, with a decision that the arbitrator deems fair and reasonable, given all the circumstances of the case.
In the case of an employee who is suspended or dismissed, the arbitrator may:
1) reinstate the employee with all the compensation, rights and privileges provided by the collective agreement;
2) uphold the dismissal or suspension;
3) render any other decision deemed fair under the circumstances, including deciding, if applicable, the amount of compensation or damages to which an employee who has been unfairly treated could be entitled.
Only the grounds set out in the notice sent under clause 5.04 may be cited in arbitration.
12.09 Jurisdiction for administrative measures
In all cases of administrative measures set out in clause 5.08, the arbitrator rules as in the case of disciplinary measures.
12.10 Employee’s resignation
An arbitrator may weigh the circumstances surrounding an employee’s resignation and the validity of the employee’s consent.
12.11 Admission
No admission signed by an employee can be used against the employee before an arbitrator unless:
1) the admission was signed in the presence of a duly authorized union representative; or
2) the admission was signed in the absence of a duly authorized union representative and not disavowed in writing by the employee within seven (7) days of when it was signed.
12.12 Arbitrator’s limited jurisdiction
An arbitrator does not have the authority under any circumstances to modify, amend or alter the wording of this agreement.
12.13 Burden of proof
In all grievances on disciplinary measures, the burden of proof lies with the Employer.
In grievances on the criteria for filling a position, the burden of proof lies with the Employer.
12.14 Communication of the decision
The decision is communicated to the parties by sending them a signed copy.
12.15 Determination of the quantum for an amount of money to be paid
If, following an arbitration award involving payment of an amount of money that is not defined in the award, the amount is contested, the quantum is set by the arbitrator who heard the grievance or, if that arbitrator has died, resigned or is unable or unwilling to act, by another arbitrator chosen in accordance with the collective agreement.
The decision is enforceable and binding on the parties.
12.16
An arbitrator may never, however, award amounts that are retroactive to more than six (6) months before the date on which the grievance was filed.
12.17 Public and in camera hearings
Arbitration hearings are public. Arbitrators may, however, on their own initiative or at the request of either party, order that a hearing be held in camera.
12.18 Arbitrator’s and assessors’ powers
The arbitrator and, where applicable, assessors have the powers and authority conferred on them by the Labour Code (CQLR, c. C-27).
12.19 Time limit for rendering a decision
An arbitrator has ninety (90) days from the end of the hearing to render a decision, unless the parties agree in writing before the end of this period to grant an extension of a specified number of days.
12.20 Reasons for the decision
The arbitration award must give reasons and be signed by the arbitrator.
The arbitration award is final and binding on the parties.
B. SUMMARY PROCEDURE
12.21
The parties proceed using the summary procedure for the following matters:
- choice of annual vacation leave;
- granting of leave without pay;
- granting of leave with deferred pay.
The parties may, however, agree to proceed using the regular procedure.
12.22
The hearing is held before an arbitrator chosen by the parties at the local level.
12.23
Hearings on grievances under this procedure should be limited to one (1) day per grievance.
12.24
The arbitrator must hear the dispute on the merits before rendering a decision on any preliminary objection, unless they can rule on the objection immediately; at the request of either party, the arbitrator must subsequently give the reasons for the decision in writing.
12.25
No document may be submitted by either party more than five (5) days after the hearing.
12.26
The arbitrator has fifteen (15) days from the date on which they agreed to hear the case to hold the hearing, and fifteen (15) days from the end of the hearing to render a decision in writing.
12.27
The arbitrator’s decision constitutes a specific case.
12.28
An arbitrator chosen under the summary procedure has all the powers and authority of an arbitrator appointed under the regular procedure.
C. ARBITRATION COSTS
12.29
Each party pays its assessor’s professional fees and expenses, as the case may be.
12.30
The grievance arbitrator’s professional fees and expenses are paid by the party filing the grievance if the grievance is dismissed, or by the party to whom the grievance was submitted if the grievance is upheld. If a grievance is partially upheld, the arbitrator decides the proportion of fees and expenses to be paid by each party.
However, in the case of arbitration under the procedure for settling a dispute pertaining to a disability under clause 30.29 of the collective agreement, and in the case of arbitration on a dismissal, the arbitrator’s professional fees and expenses, with the exception of those covered by clause 12.31, are not charged to the union party or employee.
12.31
In all cases, the arbitrator’s professional fees and expenses for a hearing that is postponed or a grievance that is withdrawn are borne by the party that requests the postponement or withdraws the grievance.
12.32
Notwithstanding any other provisions of the collective agreement, in the event of a disagreement other than a grievance that is submitted to a third party, the latter’s professional fees and expenses are borne equally by the Employer and the Union.
D. MEDIATION PROCEDURE
12.33
A party may signify its intention of using the mediation procedure to settle one or more grievances. The other party has fifteen (15) days to indicate that it agrees or disagrees. If the parties agree, they then proceed as follows:
- The parties agree on the choice of a mediator. Failing agreement, the regular or summary arbitration procedure, as the case may be, applies.
- The local parties may agree on any operating rules for the mediation procedure.
- If the parties do not succeed in resolving the dispute through a mediation procedure, they may then agree to use the summary or regular arbitration procedure.
- The local parties may also agree on any other form of mediation-arbitration.
12.34
In all cases, the professional fees and expenses incurred when a mediator is appointed and in the course of the latter’s duties are borne equally by the Employer and the Union.