Reconciling the collective agreement with human rights obligations: An analysis of arbitral decisions on seniority rights and the duty to accommodate disabled employees.

摘要

Recent statutory and judicial developments have given labour arbitrators increased jurisdiction to interpret and apply human rights law in the unionized workplace. How are labour arbitrators exercising this jurisdiction given the potentially fundamental difference in the values underlying the labour relations and human rights regimes? In this paper I describe how the two regimes conflict in the context where a disabled employee needs an accommodation which results in a violation of a seniority provision under a collective agreement. I review the recent arbitral jurisprudence in this area and I examine how arbitrators have resolved the conflict between seniority rights and the duty to accommodate. I conclude that the majority of arbitrators are taking a principled approach in resolving this conflict and, for the most part, they are overriding seniority provisions to permit accommodations where it is equitable to do so.