Grievance past practice

This question has to do with past practice and current working conditions in labour law.  Is there any case law that can be refrenced regarding a labour groups right to grieve based on management going against past practice?  I realize that a labour group has the right to grieve if management goes against a past practice as long as it meets the criteria for past practice, I'm looking for something that lays this down.

Asked over 6 years ago in Ontario
Categories: Labour & Employment

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Omar Ha-Redeye

Answer by Omar Ha-Redeye

VerifiedOntario lawyer

The concept of precedent is understood a little differently in labour law, because there is flexibility built into the system to allow adaptation to circumstances.  Labour arbitrators due generally rely on statutes in a relatively consistent way, and when considering past practices will look at a number of factors including whether it is the same parties involved, the same language in the collective agreement, and whether the same issue is at stake.  Section 48(12) of the Labour Relations Act gives arbitrators the power to read, interpret and apply statutes in context of these factors.
Arbitrators will often look at past practice in abitrations as a form of extrinsic evidence, or information that is outside the interpretation of a collective agreement, where the language of the agreement is open to multiple interpretations (Re Noranda Metal Industries Ltd., Fergus Division and I.B.E.W., Local 2345 (1983), 44 O.R. (2d) 529 (Ont. C.A.); Re Int'l Ass'n of Machinists, Local 1740, and John Bertram & Sons Co. (1967), 18 L.A.C. 362).  See also the Supreme Court of Canada case, United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd.


Posted over 6 years ago

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