Interpreting Collective Agreements
A Modern Approach
to an Old Problem
David C. Elliott
Presented to the University of Calgary
Labour Arbitration Conference
June 2005
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Contents
Page #
What this paper is about ......
Why the modern method of interpretation is important ......
The problem with interpretation ......
What’s wrong with the current approach to interpretation? ......
So what is the modern method of interpretation? ......
The components of the modern method ......
What is the “entire context of a collective agreement”?
Internal context
External context
Reading the words
Interpretation conventions ......
A visual picture of the modern method ......
Diagnosing doubt ......
Conclusion ......
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Interpreting Collective Agreements
A modern approach to an old problem
In the interpretation of collective agreements, their words must be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object, and the intention of the parties.
What this paper is about
How to interpret written texts is a question that has been around for as long as the texts themselves. This paper is about how to interpret collective agreements. It takes the modern method of interpreting legislation used by the Supreme Court of Canada and applies it to the interpretation of collective agreements.
Why the modern method of interpretation is important
The modern method of interpretation is important because
for adjudicators, it provides a method for organising, analysing, balancing and deciding cases
for counsel, it provides a method for analysing, organizing and presenting interpretation arguments, and of considering what the other side may say
it helps everyone reading collective agreements to understand how they should be interpreted
it makes transparent the process used by interpreters in making interpretation decisions.
The modern method of interpretation is important for another reason. Collective agreements are, of course, based on legislation. And collective agreements also incorporate into their terms certain other basic employment rights and obligations prescribed by legislation.[1] The legislation on which collective agreements are based, and other legislation incorporated into the terms of a collective agreement, both require interpretation. Consequently, it is advantageous to have a consistent approach to interpreting both collective agreements and legislation. The fundamental approach and process of interpretation, whatever the written text, need not, should not, vary.[2] What will vary, depending on the text, is
the underlying assumptions and presumptions that an interpreter may make about the text
the application of conventions for interpreting the text (for example, headings may be used as an aid to interpreting collective agreements (unless the agreement says otherwise) but not in interpreting legislation because the Interpretation Act says headings do not form part of an Act and are inserted for convenience of reference only).
I use the word “conventions” for interpreting text to cover what are variously described as rules, principles, maxims and canons of interpretation. Most often, but not always, interpretation conventions have no legislative base – they have been developed by courts over the centuries in the context of specific cases and then applied more generally.
The problem with interpretation
We engage in a process of interpretation every time we read something. If the text is muddled, badly organised, poorly written, or ambiguous, the reader has a more difficult time interpreting the text to figure out what they think it means. Whether two or more readers get the same meaning out of a text depends on many factors – what they know about the subject, how much attention they pay to the detail, how easy or difficult the text is to read, the effort made to unravel the text if it is complicated, and so on. Our life experience – work experience, education, cultural background, the values we hold as a society and the values and attitudes we have as individuals – also affects how we come to make meaning of a text.
With all these things, and more, potentially affecting how we understand what we read, it is not surprising that different people may come to different conclusions about what a text means.
It’s difficult enough for one person to write something that others will understand in the same way. The difficulty of finding a common understanding in a text is compounded when the text is the result of a negotiation; and compounded again when the parties to a text use and interpret the text to advance their own interests, even after a genuinely collaborative negotiating process.
And so, with any kind of written agreement, it is not surprising that if the parties who made the agreement cannot agree on what it means given their intimate knowledge of the text and its context, it is not surprising that a third party asked to make an impartial decision about conflicting interpretations will struggle to make meaning of the text.
One reason for the struggle to interpret texts is the lack of a definitive method, process, or methodical approach to interpreting written texts.
What’s wrong with the current approach to interpretation?
There really isn’t a consistent and coherent approach to interpreting collective agreements at all. What there is consists of
a statement drawn out of Halsbury’s Laws of England, quoted in a 1955 award and adopted by Brown and Beatty,[3] which relies on the “intention of the parties,” as the fundamental object of interpretation but with no consistent method to discern intention (assuming there is an intention)
a hodgepodge of often conflicting conventions for interpretation that are used in argument and decision-making as the need requires.
Seeking to discover the intention of the parties and the application of particular conventions of interpretation have a long history and they are not, in themselves, wrong – but they lack a method to their application and tend to blur rather than clarify the matters adjudicators consider and balance in coming to an interpretation decision. “Intention” is a multi-facetted tool. Intention can be implied, assumed, expressed or inferred. Implying or assuming intention is the most usual camouflage for, in effect, amending an agreement so that it “makes sense”. Or intention can be a complete fiction.
The concept of seeking to discern the intention of the parties (or the intention of the legislature[4] for that matter) breaks down when it is patently obvious that the parties had no common intention or when it is obvious each party had a different intention but thought what they had agreed got them what they wanted. This situation arises because
the parties never considered the fact situation that has arisen to create a dispute
an issue has arisen that is simply not dealt with by the collective agreement but must be resolved by applying its terms
there was never a meeting of the minds on the issue. Language was agreed that each side could “live with” each believing they had room to argue the correctness of their own interpretation
language was deliberately chosen by the parties that was nicely ambiguous – often in the knowledge, if not with the intention, that an arbitrator would have to resolve the dispute if an issue arose under the agreed language.
In each of these situations a common “intention of the parties” never existed.
But adjudicators create legal fictions and purport to “find” an intention in order to resolve the dispute. “Intention of the parties” has been a useful fiction, but “intention”, when it exists, can now be incorporated within the broader conceptual framework of the modern method of interpretation so that, when intention is fathomable, whether implied, assumed, expressed or inferred, it plays an important role in the interpretation decision but if a common intention never existed there is no longer a need to “find” one or to make a decision based on a fiction.
The modern method of interpretation does not dispense with well-recognized conventions for interpreting text (some of which are described on pages 13 and 14), but it puts them within the framework of a method so that, when applicable, they can be properly used and applied. Most important, the modern method
brings to the forefront the importance of context – of reading things in context – when interpreting text, and
shows both the internal context and external context that an adjudicator has considered when interpreting a text.
So what is the modern method of interpretation?
I have adopted the modern method of interpreting collective agreements from the Supreme Court of Canada’s approach to statutory interpretation, oft stated in the past 20 years and recently reiterated by Mr Justice Iacobucci[5] in an Alberta labour law context as follows:
The prevailing approach to statutory interpretation is that proposed by E. A. Driedger, wherein “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Construction of Statutes (2nd ed. 1983), at p. 87). This approach has been widely endorsed by this Court . . . This principle is supported by the Alberta Interpretation Act, R.S.A. 2000, c. I-8, s. 10, which states that “[a]n enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and interpretation that best ensures the attainment of its objects”.
Adapting that statement to the interpretation of collective agreements, the modern method of interpreting collective agreements is:
In the interpretation of collective agreements, their words must be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object, and the intention of the parties
The components of the modern method
Let’s look at each component of the modern method and understand what each means.
The modern method of interpreting collective agreements directs interpreters:
to consider the entire context of the collective agreement;
to read the words of a collective agreement
- in their entire context
- in their grammatical and ordinary meaning;
to read the words of a collective agreement harmoniously
- with the scheme of the agreement
- with the object (now more commonly referred to as the “purpose”) of the agreement, and
- with the intention of the parties.
(i) What is the “entire context of a collective agreement”?
The Meriam-Webster Dictionary has a useful definition of context that I like:
the weaving together of words; the parts of a discourse that surround a word or passage and can throw light on its meaning; the interrelated conditions in which something exists or occurs.
And I would supplement that definition with the definition of context from the Concise Oxford Dictionary (10th)
the circumstances that form the setting . . . for [a] statement . . ., and in terms of which it can be fully understood.
Looking at the entire context of a disputed interpretation question involves looking at
the internal context of the collective agreement, and
if necessary, the external context.
Internal context
The internal context of a collective agreement involves, at a minimum, looking at
the particular words in dispute and the words, sentences, paragraphs and articles surrounding the disputed words
the relevant definitions in the collective agreement
any stated object or purpose of the collective agreement or any purpose statement in the collective agreement affecting the disputed provision
the collective agreement as a whole document. One provision of a collective agreement cannot be reliably understood before the whole document has been reviewed because what is said in one place will often be affected, qualified, modified, restricted or excepted in some fashion, directly or indirectly, in another.
Looking at the collective agreement as a whole document means reading one provision of the collective agreement keeping in mind what other provisions contain. This is emphasized in the modern method of interpretation by requiring a “harmonious” reading of the words. In the first instance readers are entitled to assume that negotiators knew not only the provisions specifically bargained but all the others contained in the collective agreement. For example, it can be assumed that if words are given defined meanings in a collective agreement, then those meanings were intended whenever the defined word is used in the collective agreement, unless a very clear contrary intention is evident in a particular article. If a purpose or object is not stated or is not helpful in interpreting the text, a purpose may be implied from the text.
Examining the internal context of a collective agreement also involves looking at the organization of the document, the style of writing, the numbering system, how articles relate one to another, how particular words are used and whether usage is consistent. All these things are clues for gaining a deeper understanding of the agreement as a whole and the disputed words in particular.
Sometimes, a close reading of the collective agreement will resolve the interpretation question and it is either unnecessary or unhelpful to look into matters external to the collective agreement. But often it helps to look at matters outside the collective agreement to discover the external context – and so gain insight into the entire context of the collective agreement.
External context
The external context of a collective agreement can include looking at the following kinds of material when the interpretation issue warrants:
dictionary definitions of words in dispute
evidence about the technical meaning given to words commonly used by the parties that may not have a dictionary or their “ordinary” meaning
looking at the history of amendments to the collective agreement leading to the article in dispute
background about matters in the workplace or matters that give a conceptual background for a disputed article
evidence about how the article has been interpreted by the parties over a period of time
legislation on which disputed words are based and that affects the issue in dispute in some way
reports or material which provide background information about what something means (for example, a government document explaining what the Consumer Price Index is based on and how it works)
academic texts[6] which can assist in explaining the social context, the legal history, the consequences of preferring one interpretation over another or the accepted object or purpose of typical articles in a collective agreement
court decisions and arbitration awards.
Needless to say, not all these external contextual matters will be available in every case, or if they are available, will be relevant or helpful to assist in answering the interpretation question. But, assuming one or more of the external contextual matters are relevant, the question then becomes what importance should be given to them, because, in an arbitration context, the purpose of considering all the internal and external contextual elements is to give the best possible information to the adjudicator on which an informed decision can be made about what disputed words mean and how they should be applied.
The search for meaning both begins and ends with the words in dispute. The review of internal and external contextual matters simply offers the interpreter a means of obtaining a deeper understanding of everything relevant that surrounds the disputed words; of providing the interpreter with more information about the words to be interpreted. With that deeper understanding should come a more informed reading of the words in dispute and with that information the best decision possible about what the disputed words mean or how they should be applied.
I re-emphasize that looking at materials outside the collective agreement in question does not mean that words used in the collective agreement are unimportant or take on less importance; they continue to be of paramount importance.
(ii) Reading the words
The balance of the modern method of interpretation describes how to read words in a collective agreement and in particular to read the words within the entire context of the collective agreement. And so, the modern method of interpretation calls for words
to be read in their grammatical and ordinary meaning. Typically this involves applying the commonly understood meaning or dictionary definition of a word or phrase in the context in which it is used, unless that meaning is modified by a definition, by common usage of the parties, or by the context in which the word is used
to be read harmoniously with
- the scheme of the agreement (which could include the arrangement of provisions and how they inter-relate)
- the object or purpose of the agreement, which may involve looking at the internal context (e.g. a Preamble or object section) to decide on the object or purpose, or looking at external contextual matters – for example, history of changes to the agreement, evidence about a problem the parties were trying to resolve to get a sense of the purpose of the agreement or provision in question
the intention of the parties, assuming an intention can be discerned. The intention is to be found in the words used, but evidence of intention from other sources may be appropriate in order to decide what the words used by the parties actually mean. And as noted earlier an intention can be implied, assumed, expressed or inferred from the words used and the entire context of the collective agreement.
The words “object” or “purpose”, “scheme”, and “intention” are often used interchangeably to describe a written text. Viewed from the writer’s perspective, each of those terms has a definite meaning:
the “scheme” of a text is the way in which the collective agreement has been drafted: its division into articles; how the articles relate to each other; how detailed or complex the text is, and so on
the “object” or “purpose” of a text is the social objective or purpose, or the workplace or economic issue the parties had in mind when writing the article in question
the “intention” of the text is the idea that lays beneath the words chosen to express the agreement.
As interpreters read a collective agreement, taking into consideration the entire context of the agreement, interpretation conventions are typically used to help or test interpretation possibilities. Interpretation conventions are usually assumptions that readers can reliably make about a text, in the absence of some clear indication to the contrary.
Interpretation conventions
Most interpretation conventions are based on common sense assumptions that any reader would make about what a writer intended. It is common sense to assume, as a starting point, that