Interpreting Collective Agreements
A Modern Approach
to an Old Problem
David C. Elliott
Presented to the University of Calgary
Labour Arbitration Conference
June 2005
Contents
Page #
What this paper is about ................................................................................................. 1
Why the modern method of interpretation is important ................................................. 1
The problem with interpretation .................................................................................... 2
What’s wrong with the current approach to interpretation? .......................................... 4
So what is the modern method of interpretation? .......................................................... 6
The components of the modern method ......................................................................... 7
What is the “entire context of a collective agreement”? ................................ 7
Internal context ............................................................................................. 8
External context ............................................................................................ 9
Reading the words ............................................................................................ 11
Interpretation conventions ........................................................................................... 13
A visual picture of the modern method ........................................................................ 15
Diagnosing doubt ......................................................................................................... 16
Conclusion .................................................................................................................... 17
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,
1
Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees
Union, Local 324 [2003] S.C.J. No 32 (S.C.C.)
2
. . . the “modern contextual approach” for statutory interpretation, with appropriate adaptations, is
equally applicable to contractual interpretation. Madame Justice L’Heureux-Dubé in Manulife
Bank of Canada v. Conlin [1996] 3 S.C.R. para 41.
2
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.
3
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.
3
Canadian Labour Arbitration (3rd) Brown and Beatty, paragraph 4:2100 reads in part:
It has often been stated that the fundamental object in construing the terms of a collective
agreement is to discover the intention of the parties who agreed to it. As one arbitrator,
quoting from Halsbury’s Laws of England, stated in an early award:
The object of all interpretation of a written instrument is to discover the intention of the
author, the written declaration of whose mind it is always considered to be.
Consequently, the construction must be as near to the minds and apparent intention of the
parties as is possible, and as the law will permit.
And further:
But the intention must be gathered from the written instrument. The function of the
Court is to ascertain what the parties meant by the words they have used; to declare the
meaning of what is written in the instrument, not of what was intended to have been
written; to give effect to the intention as expressed, the expressed meaning being, for the
purpose of interpretation, equivalent to the intention.
4
The concept of seeking to discern the intention of the parties (or the intention of
the legislature4 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
4
The academic debate over whether the legislature can have an “intention” is, in my view, as futile
as creating a legal fiction over the intention of contracting parties. The issue is not one of
intention it is simply what words mean in the text in which they are used. As the Chief Justice of
New South Wales put it:
The task of the courts is to interpret the words used by Parliament. It is not to divine the
intent of the parliament. The Poet’s Rich Resource: Issues in Statutory Interpretation,
Sydney, 2001 p 2.
5
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 Iacobucci5 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.
5
Justice Iacobucci, in a unanimous judgment of a full court, in Alberta Union of Provincial
Employees v. Board of Governors of Lethbridge Community College, 2004 SCC 28 at para 25.
Justice Iacobucci gave the following illustrations of the Supreme Court’s adoption of the
“prevailing approach”:
Québec (Communauté urbaine) v. Corp. Notre-Dame de Bon-Secours, [1994] 3
S.C.R. 3, at p. 17; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para.
21; R. V. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33, per McLachlin
C.J.; Chieu v. Canada, supra, at para. 27; Bell ExpressVu Limited Partnership
v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26; Barrie Public utilities v.
Canadian Cable Television Assn., [2003] 1 S.C.R. 476, 2003 SCC 28, at para.
20; and Parry Sound, supra, at para. 41.
6
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.
7
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,
8
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
9
 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 texts6 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
6
Mr. Justice Bastarache has pointed to a significant shift in the Supreme Court of Canada
allowing academic writing and other materials as evidence of contextual issues. What
Translators Need to Know About The Rules of Statutory Interpretation: A paper presented by
Mr. Justice Michel Bastarache to the Canadian Institute for the Administration of Justice
Conference on Legislative Drafting in Perspective, Ottawa, September 2004.
10
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
11
 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.
12
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
 in negotiating the terms of a collective agreement the parties had in
mind all the other terms of the agreement
 each word used in a collective agreement is intended to have meaning
(otherwise the parties would not have used it)
 the parties did not intend to create unresolved conflict in the text –
which leads to seeking an interpretation that creates harmony not
conflict within the agreement
 the same word used in a collective agreement was intended to have the
same meaning throughout the agreement (otherwise the parties would
have chosen another word)
[Same word = same meaning]
 conversely, if a different word is used in the agreement a different
meaning was intended (otherwise the parties would have used the
same word)
[Different word = different meaning]
 the parties would not intentionally agree on something that would
lead to absurd consequences
 the words chosen by the parties are intended to have their ordinary,
everyday, meanings in the context in which they are used
 if there is conflict between specific provisions and general provisions,
the specific provisions will usually prevail (because the parties
addressed their mind to the specificity and the provision would be
13
thwarted if effect were not given to it). Consequently, general
provisions must be read recognizing specific provisions – leading to a
harmonious reading of the agreement
 the word “shall” is mandatory; “may” discretionary or empowering
[though these words are often used in different, and, especially with
“shall”, distorted ways].
Viewed within the entire context of a collective agreement, interpretation
conventions can be helpful starting points to assist in interpretation or to test an
interpretation.
14
A visual picture of the modern method
I picture the modern method of interpretation as an adjudicator sitting at a desk
in the middle of a circular library. The interpreter has formulated the question or
questions to be answered and now seeks to interpret the text of the collective
agreement.
On the desk is the collective agreement. That’s the starting point for reading, rereading, and reading again. The collective agreement gives the internal context
for interpretation.
If there is a need to go beyond the collective agreement, to the external context,
the interpreter reaches out for information external to the collective agreement
that is available, through research or presented in an arbitration hearing. An
interpretation case presented to an adjudicator by the parties at a hearing forms
the library from which the adjudicator can extract external contextual materials
to help in the interpretation process.
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Similarly, counsel or anyone trying to interpret a collective agreement should

first look to the collective agreement and thoroughly consider the
internal context of the collective agreement

then, look to what external factors either support or raise doubt about
any interpretation conclusions drawn from looking at the internal
context of the collective agreement. If external material can be useful,
this starts to form the library of contextual materials that can be used
in discussing the issue, evaluating the strengths and weaknesses of the
interpretation argument and, if necessary, forms part of the library of
materials that can be presented in an arbitration hearing.
Diagnosing doubt
If after applying the modern method of interpretation the meaning of a collective
agreement remains unclear, it is helpful to diagnose the doubt. For example, is
the cause of the interpretation doubt
 potential conflict with legislation?
 uncertainty about the meaning of a word or phrase?
 ambiguity?
 doubt over the application of general or flexible words used (words
like “fair”, “reasonable”) making it unclear how they should be
applied?
 the meaning to be given to a particular word or phrase?
 conflict between 2 or more articles?
 the potential retroactive application of an article?
Once the doubt has been diagnosed, the entire context of the collective
agreement must be re-examined to assist in resolving the doubt. The internal
context may provide a purpose which, when applied to the disputed text, helps
answer the question; or looking at the external context, the history of
16
amendments to the article in question, for example, may give clues to resolving
the doubt or perhaps legal values apply – the general rule against applying
provisions retroactively so as to remove or diminish vested rights for example.
Depending on the interpretation doubt, the interpreter can search the library of
external contextual materials in more depth in order to weigh and balance the
arguments and come to a conclusion considering the entire context of the
collective agreement.
Conclusion
Interpreting any text is rarely a simple reading from A to Z. As interpreters
become more familiar with the text, more about it is exposed: initial confusion or
doubt is resolved or compounded, and conflict and uncertainties appear or are
resolved – as the internal context and then the external context of the agreement
is considered. That greater understanding combines to create the entire context
for interpretation. The entire context sheds more light on the interpretation
options and helps decide on the best interpretation choice to make.
The modern method of interpretation7 makes reasoning explicit, acknowledges
and explicitly uses context to assist in interpretation, and provides a useful
framework for analysis by interpreters, including contract administrators,
counsel and adjudicators.
7
For examples of the use of the modern method of interpretation in several contexts see: Alberta
Union of Provincial Employees v. University of Calgary [2004], Elliott, unpublished; Bakery,
Confectionary, Tobacco Workers and Grain Millers International Union, Local 252 v. Western
Bakeries Ltd (Policy Grievance) [2004] A.G.A.A. No 20, Elliott; Communication, Energy and
Paperworkers Union, Local 777 v. Imperial Oil Strathcona Refinery (Policy Grievance) [2004]
A.G.A.A. No 44, Elliott.
17
Canada has moved on from the laws of England. The modern method of
interpretation offers a sound path to follow to interpret collective agreements. 8
8
For the best text on the modern method of interpretation see: Sullivan and Driedger on the
Construction of Statutes, 4th, Ruth Sullivan, Butterworths (2002), and Dr. E.A. Driedger’s
Construction of Statutes, 2nd, Butterworths (1983).
18