Gagnon, Gagné, Cournoyer

Appeal from a judgment of the Superior Court granting an application for judicial review of a grievance arbitration award. Allowed.

The issue before the arbitrator was whether break and recess periods were included in the five hours allocated to teachers for personal work, in a context where the local agreement answered this question in the negative and the national agreement, breaking a 30-year practice, now accepted the opposite solution. Accepting the union’s position, the arbitrator decided that the local provision was a matter of the “distribution of working hours”, which fell within the jurisdiction of the local authorities under the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors (CQLR, c. R-8.2). He also considered that the local provision was not a “local arrangement” within the meaning of the Act, that is, an agreement on a matter reserved for the national authorities but negotiated at the local level. The trial judge found that the arbitration award was unreasonable in these two respects.

At the intersection of statutory interpretation and the interpretation of the collective agreement, the interpretative exercise performed by the arbitrator lies at the heart of his expertise. His reasons show in a sufficiently transparent and comprehensible manner that the local provision is a matter of the “distribution of working hours” and that this is a possible and acceptable solution. It must be inferred from this conclusion that the local authorities have jurisdiction to negotiate and agree on the impugned local provision. These conclusions on their own properly decide the grievance. In addition, the deficiencies raised by the judge are not really deficiencies, and, in any event, they were not important in the analysis underlying the arbitrator’s main conclusion. Furthermore, the arbitrator’s recognition of local jurisdiction necessarily excludes the idea of the existence of a “local arrangement”. Last, because the arbitrator was asked by the parties to rule on the issue of the inconsistency or the harmonization of the national and local provisions, his response on this aspect of the debate could only be subsidiary and obiter dictum, leaving the heart of his award intact.

Text of the decision: http://citoyens.soquij.qc.ca