The Arbitration Process

Arbitration is the primary procedure established in the Code for resolving disputes between employees and employers relating to the interpretation and application of collective agreements. It is a process that is, at once, both less formal and as formal as the courts. Arbitration is less formal than the courts because it normally takes place in a less formal setting (such as hotel meeting rooms) and the procedure is more relaxed than would be found in most courtrooms. However, that should not disguise the seriousness of the proceedings. Decisions are made by arbitrators after hearings that are often very much like court proceedings - witnesses give evidence under oath - they are examined and cross-examined. Legal arguments are put forward by each side. Each side generally reviews past arbitration decisions that are similar to help guide the arbitrator. Closing arguments are made and a written decision is usually prepared by the arbitrator.

Arbitration awards are binding on the parties and may, in some cases, be registered in court and become, in effect, orders of the BC Supreme Court.

A constant legal problem relating to arbitrations is the appropriate role of the arbitrator. For example, if a dispute arises over the interpretation of a seniority clause of a collective agreement, there is no doubt that an arbitration will be the appropriate forum for determining the issue. However, other circumstances are less clear. If an employer slanders an employee (or vice versa), should the matter be heard by an arbitrator or by the courts? The trend over the past decade has been to empower arbitrators to decide more issues and to interpret and apply more statutes and legal principles than was previously the case.

One aspect of labour law that surprises many people is that arbitrators have exclusive jurisdiction to decide disputes that are primarily related to a collective agreement. That means, for example, that a unionized worker who is dismissed can only file a grievance that may make its way to arbitration. That worker cannot sue the employer in court, because the court would have no jurisdiction.