Adjudication in the Canadian Public Service
Edward B. Jolliffe *
The rule of law is always difficult to establish and as difficult
to maintain. Nowhere is this more apparent (except in the anarchy
of international affairs) than in the arena of labour-management
relations, where disputes are often decided by a trial of strength
or endurance, and both parties are traditionally reluctant to bow
to the judgment of a third party.
The most publicized contests in North America –
a “Big Steel”
strike or a Canadian rail strike, for example –
almost invariably
arise out of “interest disputes”. In others words, after months
of bargaining and mediation or conciliation, the parties fail to
conclude a new collective agreement. Each has sought by all avail-
able means to advance or protect its own economic interests, and
neither is willing to risk its future on the unpredictable conclu-
sions of a stranger. Both have persistently demonstrated their
alienation from the judicial process, which on its part has been
slow to adapt itself to modern industrial relations. For a com-
pany and a union to submit in advance to arbitration of an interest
dispute is so rare as to be even more sensational than a hard-
fought strike. In general, a wholly disinterested and unbiased
arbitrator or judge, even if such a paragon exists, is somewhat
naively assumed by both parties to be ipso facto ignorant of their
work and incapable of appreciating
their problems. This pre-
sumption is so strong that it is only when public demand becomes
irresistible that legislators dare to impose binding arbitration on
the embattled protagonists.
There is, however, another and less-publicized kind of dispute
in which slow but steady advances are being made toward estab-
lishing the rule of law in labour-management relations. This is
the “rights dispute”, where the parties disagree about the inter-
pretation or application of language in a collective agreement
defining their respective rights and obligations. Coupled therewith
is the notion, now generally accepted, that the employer’s regime
disciplinaire must be administered fairly, and that no employee
should suffer discharge or other punishment without just cause.
* MA.
(Oxon), Q.C. Chief Adjudicator under
the Public Service Staff
Relations Act.
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The past half-century has seen an increasing recognition through-
out the United States and Canada of the principle that “rights
disputes” are properly subject to final and binding determination
by a neutral. A natural concomitant of this is the growth of an
indigenous jurisprudence, echoes of which have been heard in
courts of law, notably when the power of arbitrators to award
damages was upheld by the Supreme Court of Canada in Re Poly-
mer Corp. and Oil, Chemical & Atomic Workers’ Union, Local 16-14 1
and a recent unanimous judgment of a Divisional Court (Ontario
High Court of Justice) in Re Samuel Cooper & Co. Ltd. and Inter-
national Ladies Garment Workers’ Union et al.2 Significant deci-
sions in the private sector have been reported for more than 25
years in Labour Arbitration Cases, which now takes notice of
awards in most provinces and is expanding in size and scope.
Labour arbitration was born within the collective agreement
itself, at a time when its legal status was doubtful or non-existent.
Long before the enactment of the Wagner Act 3 by the United
States Congress and subsequent Canadian labour relations legis-
lation, there were agreements made which included an “arbitration
clause”, sometimes modelled after similar clauses in commercial
contracts.
In Canada, federal and provincial labour legislation carried the
development two steps further in the post-war years by requiring
the parties to a collective agreement to include a satisfactory
arbitration clause, and also that, if it were omitted, one would
be provided on application of either party,4 or a model clause set
out in the statute itself would be deemed to appear in the agree-
ment.’ A similar result is produced indirectly by the effect of
articles 88, 89 and 81 in Quebec’s Code du travail.” Through these
distinctively Canadian requirements, arbitration in the private sec-
tor continues to be theoretically consensual, although in reality
it is imposed on the parties by law. The absence of such compul-
sion in the United States and the United Kingdom is said by some
observers to be responsible for an inordinate number of work
stoppages conducted in those countries with a view to “settling”
grievances while collective agreements are in effect.
1 (1961), 26 D.L.R. (2d) 609 (Ont. H.C.); aff’d 28 D.L.R. (2d) 81 (Ont. C.A.);
aff’d sub. nom. Imbleau v. Laskin, [19623 S.C.R. 338; 33 D.L.R. (2d) 124.
2 [1973] 2 O.R. 841 (Ont. D.C.).
3 National Labor Relations Act, 1935, 49 Stat. 449, 29 U.S.C.
4 Canada Labour Code, R.S.C. 1970 c.L-1, s.125; S.C. 1972, c.18, s.155.
5 Labour Relations Act, R.S.O. 1970, c.232, s.37.
6 S.Q. 1969, c.47 and c.48.
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ADJUDICATION IN THE CANADIAN PUBLIC SERVICE
353
When finding an arbitrator, the parties were at first left to
their own devices. In Canada, they would usually resort to the
appropriate Minister of Labour or his deputy to appoint an arbi-
trator (or chairman of a “board of arbitration”) if they could
not agree on one themselves. More recently, the governments of
Ontario and Quebec have established a commission or conseil
consultatif to maintain lists of acceptable arbitrators and assist
the parties in making their choice. This development was un-
doubtedly accelerated by amendments to the Judges Act in 1967 7
which effectively prevented judges from continuing to function
as labour arbitrators in the private sector. It remains true, how-
ever, that the parties to collective agreements are compelled by
law to finance their own “judicial” system at substantial cost to
themselves and not to the public treasury. Unlike litigants in civil
actions, they bear the entire expense of the tribunals to which
they constantly turn for justice in rights disputes. That the parties
cheerfully accept this rather peculiar or anomalous arrangement
illustrates their continuing lack of confidence in the courts as well
as government
itself, and their cherished belief that disputes
within the labour-management family are nobody else’s business.
The latter illusion persists notwithstanding their zeal in cultivating
the arts of publicity and public relations with a view to improving
their respective images in the next round of collective bargaimning,
a phenomenon most noticeable in large industrial or mining un-
dertakings and also in public utilities where governmental inter-
vention is always a possibility.
The Government of Canada is of course the nation’s largest
employer. It was inevitable that sooner or later the advantages
won by employees
in the private sector would be claimed by
their counterparts in the public sector, including both the pro-
tection of collective agreements and access to the arbitration or
adjudication of rights disputes. The Public Service Staff Relations
Act,” enacted by Parliament in 1967, provided the legislative foun.
dation for collective bargaining in the Public Service of Canada,
or, to be more exact, in all departments or ministries and a
number of specified boards, commissions, corporations and other
agencies falling within the federal jurisdiction, the latter being
known as “separate employers”. Part IV of the Act, being sec-
tions 90 to 99 inclusive, recognized the right of an employee to
present a grievance concerning any occurrence or matter affecting
7 R.S.C. 1970, c.J-l, s.37(1).
8R.S.C. 1970, c.P-35.
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his terms and conditions of employment, other than any occur-
rence or matter in respect of which an administrative procedure
for redress is provided in another Act of Parliament. Part IV also
recognized the right to refer certain grievances, but not all griev-
ances, to “adjudication” (or, as it is known in the private sector,
“arbitration”) after exhausting all remedies within the grievance
process of the department or agency concerned. The determina-
tion of such grievances by adjudicators was expressly made binding
upon all parties by section 96.
Broadly speaking, the system resembles the processing and
arbitration of grievances which have grown up in the private
sector in the United States and Canada. There are, however, signifi-
cant differences. It remains true, at least in theory, that the legal
basis for the right to grieve and the right to go to arbitration
in the. private sector is to be found in the collective agreement
between the contracting parties rather than in public law; the
courts have so held on many occasions. Indeed there is a consider-
able variation in grievance and arbitration procedures to be found
in the private sector, although a general pattern may be discerned
throughout North America. On the other hand, the nature of the
employment relationship in the Public Service and its status in
law cannot be the same as in the private sector, if only because
the law-making authority which enacts legislation with respect to
collective bargaining is itself directly or indirectly also the em-
ployer of employees in the Public Service. This is a fundamental
distinction giving rise to certain new departures which charac-
terize the legislation, administration, law and practice in the Ca-
nadian Public Service as compared with what is found in the
private sector.
In some respects the 1967 legislation was highly innovative,
which is apparent from the distinctive features of its adjudica-
tion system as they have emerged during seven years of experi-
ence. By identifying differences between arbitration in the private
sector and adjudication in the public sector, it may become pos-
sible to better appreciate the merits and limitations of each system.
First and foremost, there is an important difference in that
an employee in the Public Service of Canada has a legal right to
present a grievance, whether or not there is in existence a col-
lective agreement applicable to him. That right is rooted in section
90 of the statute. It is subject to the following three qualifications:
(1) The term employee is defined in section 2(m) of the Act,
and there are eight classes of persons excluded by that defini-
tion, the most numerous being members of the Armed Forces,
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ADJUDICATION IN THE CANADIAN PUBLIC SERVICE
the Royal Canadian Mounted Police, persons casually em-
ployed for less than six months and persons employed in
managerial or confidential capacities.
(2) An employee, as so defined, is not entitled to grieve if there
is a statutory provision for redress other than those provided
by or under the Public Service Staff Relations Act.
(3) By the general provisions of section 112, nothing in the Act
or any other Act shall be construed to require the employer
to do or refrain from doing anything contrary to any instruc-
tion, direction or regulation given or made by or on behalf
of the Government of Canada in the interest of the safety
or security of Canada or any state allied or associated with
Canada.
Subject to the three qualifications mentioned above, an em-
ployee in the Canadian Public Service has a right to grieve, and
the right is rooted in the statute rather than in any agreement
between the employer and an organization representing employees.
While agreements may include clauses with respect to grievance
procedure, they are invalid if inconsistent with the minimum re-
quirements of the Act or the regulations made by the Board
established thereunder.
There is a second important difference between adjudication
in the Public Service and arbitration in the private sector. If the
employee has a grievance with respect to the interpretation or
application of a collective agreement or arbitral award with re-
spect to him, there is a collateral limitation on his right to grieve.
He is not entitled to present or process any such grievance unless
he has the approval of and is represented by the certified bar-
gaining agent for the bargaining unit to which the agreement or
the award applies. In such cases, of course, he may not be repre-
sented by any employee organization other than his own certified
bargaining agent. These limitations are not relevant in a case where
there is no bargaining agent for the unit in which the employee
is employed, because there can be no agreement or arbitral award
unless there was a bargaining agent under Part II of the Act at
some earlier date.
Each department and agency of the federal government was
required initially by regulations made under section 99 of the
Act to devise its own procedure with respect to the form of griev-
ances, the number of steps in the procedure and the time limits.
The procedures are not uniform, although they were made subject
to approval by the Public Service Staff Relations Board, and there
are considerable variations. For example, in many departments
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there are four steps in the grievance procedure, which is the
maximum; in others there are three steps or levels and there may
be units, notably that of the Foreign Service Officers, where there
are only two levels.
There is a third feature of the statutory scheme which is not
merely distinctive but unique. Although persons employed in a
managerial or confidential capacity are excluded from the defini-
tion of an employee, nevertheless there are saving clauses which
give managerial and confidential personnel the right to grieve as
though they were employees. This includes the right to grieve after
a suspension or discharge, and such grievances may be referred
to adjudication. Moreover, it would appear, although the point
has never been tested, that such persons, if not members of any
bargaining unit, may be represented by any employee organization
if such representation is desired by the grievor and agreed to by
the organization of his choice. In practice, certain discharged em-
ployees of managerial or executive rank have taken their cases
to adjudication, where they were represented by counsel.
Yet another distinctive feature of the statutory scheme is that
the scope of adjudicability (that is, the classes of grievances which
may be referred to adjudication and the conditions precedent for
doing so)
is strictly defined within the Act itself and not by
agreement. An attempt has been made in at least one agreement
to broaden the scope of adjudicability, but its effect or validity
has not yet been determined.
Although the right to grieve is very widely defined in section
90, only three classes of cases may be referred to adjudication by
aggrieved employees or their bargaining agents under sections 91
and 98.
The first class includes any employee grievance with respect
to the interpretation or application in respect of that employee
of a provision of a collective agreement or an arbitral award. The
second class is that of grievances in which there has been “dis-
ciplinary action resulting in discharge, suspension or a financial
penalty”.
A condition precedent for both is that the grievance must have
been presented up to and including the final level of the depart-
mental grievance process without a result satisfactory to the em-
ployee. If the grievances are based on agreements, the reference
must also be approved by the bargaining agent concerned and the
bargaining agent must formally express its willingness to represent
the employee in the ensuing proceedings. Needless to say, this
condition does not apply to disciplinary grievances, where the
1974]
ADJUDICATION IN THE CANADIAN PUBLIC SERVICE
357
employee may be represented at adjudication by himself, by coun-
sel or by any other person. In practice, most employees in disci-
plinary cases are represented by the appropriate union or bargaining
agent.
A third class of cases may also be referred to adjudication.
Under section 98 of the Act either the employer or a bargaining
agent may refer a dispute in which it is alleged that an obliga-
tion exists under a collective agreement, that there has been a
failure to observe or carry out the obligation, and that its enforce-
ment is sought. Such references have included claims by unions
for injunctive relief or an order in the nature of mandamus, and
claims by the employer for damages against a bargaining agent.
An important qualification of this remedy is that no such case can
be referred under section 98 if the obligation alleged is one which
may be the subject of an individual employee grievance. Another
qualification is that references under section 98 must be heard
and determined by the Chief Adjudicator, and not by any other
adjudicator.
This adjudication system is necessarily different in structure
from the ad hoc pattern of arbitration so prevalent in the private
sector. As provided by section 92 of the Act, adjudicators are
appointed for a fixed term of not more than five years by the
Governor in Council –
in fact, the Cabinet. No one may be ap-
pointed, however, except on the recommendation of the Public
Service Staff Relations Board, which consists of a permanent Chair-
man and Vice-Chairman together with eight members of the pub-
lic, theoretically “representative” in equal numbers of employer
interests and employee interests. No adjudicator may be removed
from office by the Governor in Council except on the unanimous
recommendation of the Board.
One of the adjudicators is chosen Chief Adjudicator, and must
hear all references under section 98. He may hear and determine
other references himself or assign them to other adjudicators ap-
pointed under the Act. He is made responsible for the administration
of the grievance adjudication system and is provided with necessary
facilities and a supporting staff, including a Registrar. The Chief
Adjudicator must dispose of preliminary or interlocutory matters,
after a hearing if necessary. These include certain applications
under rule 55 for the enlargement of prescribed times, and con-
tested applications for adjournment under rule 55A. He may
direct under rule 55C that two or more grievances be consolidated
and heard together. Further, under rule 55B any adjudicator may
direct that an interested person or organization be added or joined
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to the proceeding as a third party and given an opportunity to
participate.
In the private sector it is still the practice of many employers
and unions to resort to an arbitration “board” consisting of a
neutral chairman and a nominee of each party. Experience in the
public sector suggests that the tripartite board is not only cum-
bersome and costly but also superfluous. The Public Service Staff
Relations Act provided that the parties could agree on a Board
of three, but this has never been done. After more than seven
years of experience every decision has been rendered by one adju-
dicator.
There are now considerably more than 100 collective agreements
in the Public Service, affecting at least 200,000 public servants with
collective bargaining rights. Certain of these agreements are made
with respect to large bargaining units which include employees
in many different departments. Indeed the agreement for the secre-
tarial, stenographic and typing group covers personnel in all depart-
ments. Further, many agreements have clauses in common; the
language is either identical or similar. As a result, the adjudication
of a grievance originally arising with respect to one employee in
one department under an agreement dealing with only one bar-
gaining unit may have a service-wide impact. By the weight of
precedent, it may affect the rights and obligations of both the
employer and the employees in many different departments and
in many different bargaining units. Inevitably, careful attention
must be paid by all parties, and also by the adjudicators them-
selves, to the jurisprudence which has been under development
since the inception of the system in 1967. This is not to say that
adjudicators are bound by the doctrine of stare decisis or that
all decisions constitute binding authorities; but it does mean that
some measure of consistency must be maintained in the interpre-
tation and application of important provisions in collective agree-
ments, and in the application of certain principles of law and
practice. It is therefore important that departments and agencies
of the Government as well as all bargaining agents be supplied
with copies of every decision rendered by adjudicators. In addi-
tion, summaries of “Significant Principles Established in Decisions
of Adjudicators” appear in each annual report of the Public Service
Staff Relations Board. After being tabled in Parliament, these are
readily available from Information Canada.
It follows that cases taken to adjudication cannot be processed
on an ad hoc basis, as usually happens in the private sector. There
must be a clearly defined procedure in which the appropriate forms
1974]
ADJUDICATION IN THE CANADIAN PUBLIC SERVICE
359
are specified by the regulations, and all other procedural require-
ments must be met. There must be a file for each reference and
a permanent register in which all decisions are preserved in both
official languages. Thus it has become necessary to establish a
supporting apparatus somewhat analogous to that which is main-
tained by the courts in processing litigation. Experience has shown
that while some flexibility in procedure may be required, it is
equally necessary that all parties understand clearly what is re-
quired of them in referring a case to adjudication and in carrying
it through to a final decision.
The enforcement of adjudication decisions rests on three sec-
tions in the Act. Section 96 requires compliance by all parties
whenever the decision on a grievance referred to adjudication calls
for action to be taken by an employer or an employee or a bar-
gaining agent. Under section 20, failure to comply may give rise
to a complaint to the Public Service Staff Relations Board. If the
Board determines that any person has failed to give effect to an
adjudicator’s decision, the Board itself may direct compliance.
Further, if there is failure to comply with the Board’s order or
direction, the Board under section 21 shall forward to the appro-
priate minister copies of its order, and relevant documents together
with a report of the circumstances, all of which must be laid by
the minister before Parliament within fifteen days. From 1967 to
1974 it has never been necessary to resort to this means of en-
forcement.
As noted above, only two classes of grievances are adjudicable
upon reference by an individual employee. Broadly speaking, they
are contract interpretation grievances and grievances relating to
major disciplinary penalties. It is important to recognize, however,
that the use of the term “disciplinary action” has the effect of
barring employees from taking cases to adjudication if the action
complained of is not in reality disciplinary. The Public Service
Employment Act,9 which in’ its present form was enacted at the
same time as the Public Service Staff Relations Act (replacing the
earlier Civil Service Act) expressly provides that employees may
be released or demoted on grounds of incompetence or incapacity,
although such releases and demotions may be appealed to the
Public Service Commission, a statutory body which is entirely
distinct from the Public Service Staff Relations Board. The Com-
mission is charged with maintaining the merit system and is re-
sponsible for the recruitment, appointment, training and promotion
9 R.S.C. 1970, c.P-32.
McGILL LAW JOURNAL
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of public servants, but it is not directly concerned with collective
bargaining, labour relations or grievance procedures under the
Public Service Staff Relations Act, nor is it directly concerned
with such management responsibilities or prerogatives as the main-
tenance of order and discipline, which are vested in the Treasury
Board by the Financial Administration Act,10 as amended in 1967.
Further, again under the Public Service Employment Act, an
employee may be laid off by reason of lack of work or the dis-
continuance of a function (section 29) or a probationary employee
may be rejected for “cause” (section 28) and neither a lay-off
nor a rejection may be appealed to the Commission. Moreover, a
release, a demotion, the denial of an increment, a lay-off or a
rejection (or a “declaration of abandonment” under section 27 of
the Public Service Employment Act) cannot be referred to adjudi-
cation under the Public Service Staff Relations Act unless the
employee first establishes, either at a preliminary hearing or at
the opening of the principal hearing, that the action taken was
in reality “disciplinary action” and was not what it purported to
be. The distinction between cases arising under the Public Service
Staff Relations Act and cases which properly fall within the ambit
of the Public Service Employment Act has given rise to a number
of important and difficult decisions. Indeed, in the first 852 em-
ployee grievances referred to adjudication, jurisdictional objections
were raised in 211, of which 89 were successful.
It has become clear from decisions of adjudicators and the
Board that a termination of employment by reason of incompe-
tence or incapacity and for no other reason is not adjudicable
because it contains no element of disciplinary action taken in
response to misconduct, breaches of discipline or some other form
of voluntary malfeasance. Strictly speaking, incompetence or in-
capacity, if wholly involuntary, being beyond the control of the
employee, should not attract disciplinary action even though it
may be necessary to terminate employment or demote the employee
by reason of his inability to perform the functions for which he
has been employed. On the other hand, adjudicators have con-
cluded that if in fact termination occurred because of some volun-
tary wrongdoing or malfeasance, or an act or omission alleged to
constitute voluntary malfeasance or wrongdoing, then the action
taken by the employer should be considered on the merits and the
adjudicator should determine whether it was justified as discipli-
nary action and, if so, whether the penalty was appropriate.
10 R.S.C. 1970, c.F-10, s.7(1) (f).
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ADJUDICATION IN THE CANADIAN PUBLIC SERVICE
361
Some reference may now be made to the results to date of
the system established by law in 1967. There are no reliable sta-
tistics with respect to the number of grievances presented and
processed through various levels of grievance procedures within
departments and agencies. It is beyond doubt, however, that there
have been many thousands. Most, having been settled or abandoned,
never reached adjudication.
From March 13, 1967, when the legislation came into force, to
March 31, 1974, there were 1,450 grievances referred to adjudica-
tion on the initiative of individual employees. Of these only 469
were disciplinary. Many of the others have been “group grievances”,
in the sense that the original complaint was signed by two or more
employees but processed as one grievance and subsequently as
one reference to adjudication. By July 1, 1974, the total number
of references exceeded 1,600. By that time, these included 58 “policy
grievances” under section 98 of the Act, all but two of which were
referred by bargaining agents.
The system is administered by the Chief Adjudicator, who is
also the only full-time adjudicator. There have been between five
and thirteen other adjudicators who hear and determine on a per
diem basis such cases as are assigned to them by the Chief Ad-
judicator. Most hearings are held in Ottawa, where the headquar-
ters of management and almost all bargaining agents are located.
However, cases may be and often are heard elsewhere, particularly
when there are many local witnesses. There have been hearings
in nine provinces and also in the Yukon and North West Terri-
tories.
All decisions of adjudicators must be in writing with reasons,
as required by section 52 of the P.S.S.R.B. Regulations and Rules
of Procedure, and they are issued to the parties in both official
languages. A few references are disposed of, by consent of the
parties, on the basis of written representations only, which may
be supported by a joint statement of facts and issues. In most
cases, however, there is a hearing, open to the public. Only one
case has been heard in camera, and then only because the grievor
was facing trial for an indictable offence and publicity could have
been highly prejudicial. Witnesses on both sides give their sworn
testimony, documentary exhibits are filed, and spokesmen for the
parties present their arguments. The adjudicator must make very
full notes because testimony is rarely transcribed by a court
reporter.
In general, both employers and bargaining agents in the Public
Service appear to understand and observe the requirements of
McGILL LAW JOURNAL
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natural justice and their respective r6les in the practice and pro-
cedure developed by adjudicators since 1967. The strict formality
associated with trials or appeals in courts of law is not observed,
but hearings are conducted in orderly fashion and references are
processed from filing to final disposition in accordance with the
P.S.S.R.B. Regulations and Rules of Procedure. Similarly, the ne-
cessity of relevance and the general principles of the law of evi-
dence are respected but not unreasonably applied. This is thought
to be consistent with the requirement in section 96 of the Act that
“the adjudicator shall give both parties to the grievance an oppor-
tunity of being heard”.
At adjudication hearings the employer (either the Treasury
Board or a “separate employer” such as the National Film Board)
is represented by counsel, usually one of the legal officers in the
Department of Justice (who are excluded from the definition of
an “employee” for the purposes of the Act). In most cases, how-
ever, employees are represented by union staff members, some of
whom have become experienced advocates. It is noteworthy, how-
ever, that laymen –
frequently
rely on or attempt to distinguish previous decisions by adjudica-
tors or by arbitrators in the private sector or by judges in courts
of law. This practice suggests that respect for precedent is a natu-
ral and spontaneous response to the need for clarity and certainty.
Indeed it can be said that the characteristics of a common law
system are growing and flourishing once again in a new and dif-
ferent environment.
no less than members of the Bar –
Notwithstanding the provisions of section 96 of the Public
Service Staff Relations Act and a so-called “privative clause” in
section 100, there are two avenues of “appeal” from the decision
of an adjudicator. The effect of section 23 is that any “question
of law or jurisdiction” arising before, during or after an adjudi-
cation proceeding may be referred to the Board by either of the
parties or by the adjudicator himself. There have been more than
50 such references by employers or bargaining agents. Secondly,
since June 1, 1971, either party has had the right, under section
28 of the Federal Court Act,” to ask the Federal Court of Appeal
to review and set aside the decision of an adjudicator. Four appli-
cations of that kind reached the Court between 1971 and 1973,
either directly or after a reference
to the Board. In two, the
adjudicators’ decisions were upheld, and in two they were reversed.
11S.C. 1970-71-72, c.l.
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ADJUDICATION IN THE CANADIAN PUBLIC SERVICE
363
It should be noted that in the Canadian Public Service the terms
“adjudicator” and “adjudication” are used advisedly –
at least in
the English text of the Statute. (The French text unfortunately
confuses the matter by describing “Reference to Adjudication” as
Renvoi & l’arbitrage and “Reference to Arbitration Tribunal” as
Renvoi au Tribunal d’arbitrage.) The Act provides in Part III for
a three-man “Arbitration Tribunal” to resolve certain interest dis-
putes. The function of the Tribunal is to make binding awards
with respect to arbitrable issues in cases where bargaining agents
have failed to conclude collective agreements with the employer,
and which have been referred to arbitration. Such cases of course
arise when bargaining agents have previously elected the arbitra-
tion option rather than resorting to conciliation, which may lead
to the strike option. The jurisdiction and the functions of the
Arbitration Tribunal are entirely distinct and separate from those
of adjudicators, and the two should not be confused, as they often
are. For clarity, one system is known in the English text as “arbi-
tration” and the other system as “adjudication”.
It will be apparent from what has been said in this paper that
much of the work of adjudicators corresponds to that of arbitrators
in the private sector, but that there are real differences in their
terms of reference and in the consequences. Of those differences,
perhaps the most important is that adjudicators have an unrivalled
opportunity of participating in the creation of a coherent body
of case law in a large area of labour-management relations.
