No. 11–Duty of Fair Representation
Information CircularPrintable version
The following is an information circular prepared by the administrative staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.
DUTY OF FAIR REPRESENTATION
The Canada Industrial Relations Board certifies trade unions as bargaining agents to represent employees in a defined bargaining unit. The bargaining agent is given exclusive authority to represent all employees in the unit in dealing with their employer. In return, the Code places a statutory duty, the duty of fair representation, on the trade union when acting on behalf of the employees it represents.
What is the duty of fair representation?
Section 37 of the Code provides that a trade union, or any one of its representatives, that is the bargaining agent for a unit of employees, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the bargaining unit with respect to their rights under the collective agreement that is applicable to them. This is called the duty of fair representation.
What do "arbitrary," "discriminatory" and "bad faith" mean?
A union must not act arbitrarily. Arbitrary conduct by the union generally means that a union has failed to adequately investigate an employee's grievance or issue and has handled the employee's case in a superficial manner. It can also mean that a union has not given sufficient consideration to the employee's interests when acting on his/her behalf or has been seriously negligent in representing an employee. However, this does not mean that unions cannot make mistakes or that they must always be correct in every assessment they make as to the merits of an employee's grievance.
A union must not act in a discriminatory manner. This means that a trade union must not discriminate against an employee on any illegal or prohibited ground, such as age, race, religion, sex or medical condition. It also means that a union should not treat individuals or groups of employees differently based on unreasonable or irrational grounds. However, this does not mean that every instance of differential treatment is discriminatory.
A union must not act in bad faith; that is, with an improper purpose. Bad faith has been found to include conduct or decisions of the trade union that were motivated by personal feelings of hostility or ill-will toward an employee. It may also include deceitful or dishonest conduct.
In deciding whether or not a union has acted in a manner that is arbitrary, discriminatory or in bad faith, the Board will assess the union's conduct as to how it handled an employee's case. It will look at how the union acted and the process it used to make its decisions concerning the employee's case. The Board will consider whether the union put its mind to the merits of the employee's case, considered relevant factors and made an objective and rational judgment about how to resolve the matter. The Board does not assess the merits of the employee's grievance or second-guess the actual decision made by the union as to whether or not it will take a grievance forward.
Employees do not have the absolute right to have their grievances referred to arbitration. A union may decide not to pursue a grievance or may settle a grievance without the employee's agreement, as long as the union's decision is not arbitrary, discriminatory or made in bad faith.
How to file a complaint?
The Board provides a process for an employee to file a complaint against his/her bargaining agent. In McRaeJackson, 2004 CIRB 290, the Board explained its reasoning and the main principles it applies to decide duty of fair representation complaints. This decision is available at any one of the Board's regional offices or from the Board's Web site. However, as the Board's jurisprudence continually evolves, it is always useful to consult other decisions on the Board's Web site.
As explained in CIRB decision no. 290, an employee must cooperate with the union in its attempt to resolve the issue before filing a complaint with the Board.
If, after reading CIRB decision no. 290, an employee feels that he/she can prove that the union violated the duty of fair representation, a complaint form is available from any one of the Board's regional offices or from the Board's Web site in PDF format.
It is strongly recommended that an employee use this form. It asks for all the information that the Board needs in order to consider a complaint, and that is required by section 10 of the Board's Regulations. Not completing this form may cause delays in the complaint process.
Questions may be addressed to one of the Board's regional industrial relations officers.
A complaint may be filed at any of the Board's regional offices. It may be delivered in person or sent by courier, mail or fax. It is considered to be filed at the time it is received. If it is sent by registered mail, the date it was registered and mailed is the date of the complaint.
When to file the complaint?
Employees must file a complaint within 90 days of the date they knew or should have known of the circumstances giving rise to their complaint (as required by section 97(2) of the Code), regardless of whether any other complaint process has been used.
What happens when the Board receives a complaint?
- An industrial relations officer reviews the complaint. If additional information is requested, the employee has seven (7) calendar days to provide it. If the information is not received within that time, the file will be closed without any further steps being taken.
- Once complete, a copy of the complaint is sent to the union and to the employer for information purposes. The union and the employer will not be asked to respond at this time.
- The complaint is then referred to a panel of the Board to assess whether there are sufficient grounds for the complaint to proceed (section 16(o.1) of the Code).
- If there is no basis for a complaint, a summary decision will be issued and the file will be closed.
- If the complaint warrants further consideration, then the union and employer will be asked to file a response. The time limit for them to respond is fifteen (15) calendar days, as set out in section 12 of the Regulations.
- Responses not received within the time limit may not be considered by the Board.
- If the employee wishes to reply to the responses from the union and the employer, this reply must be received by the Board and the other parties within ten (10) calendar days. Replies not received within the time limit may not be considered by the Board.
- A resolution conference will be scheduled.
- If the complaint is not settled, the matter is sent back to a panel of the Board for a decision. The panel may decide the matter without holding an oral hearing (section 16.1 of the Code).
What is a resolution conference?
A resolution conference is an informal and confidential meeting held by a Board officer that allows both sides to explore settlement options.
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