Overview of Module
Learning Objectives
By the end of this module, participants will:
§ understand what duty of fair representation means to them and to the union.
§ have a better understanding of the important aspects of DFR legislation.
§ be able to clearly define the meaning of arbitrary, discriminatory and bad faith.
Handouts & Materials Needed
§ Flipchart Paper
§ Crayons, colour markers, coloured paper etc. for drawing exercise
§ Handout: Definition of Duty to Fair Representation
§ Handout: Duty of Fair Representation Legislation
§ Handout: Scenarios …
§ Handout: Scenarios … Decisions
§ Wallet Card/Pamphlet Handout: Wise Actions … Tips
In Advance
§ post questions on flipchart paper
Facilitation Agenda
Introductory Points: 5 minutes
Duty to fair representation goes beyond the Steward’s obligation to represent all bargaining union members. As Union Representatives we all have a responsibility to represent and assist our members to the best of our ability. As Stewards you need to know what duty to fair representation means so it becomes a tool to help you in your representation duties. A clear understanding of DFR will go a long way to ensure that you or the union does not receive a complaint from the represented member and, if one is filed, that it would be unfounded.
Opening exercise - 45 minutes
Exercise to gauge the participants’ experiences around representation:
1) Ask participants to line up shoulder to shoulder facing one way, in order of by how long they have been a steward; with those who have been stewards longest at one end of the line to the most recent stewards at the other. Ask them the following (look for 3-4 responses for each question):
· How many times do you think you have given advice to a member?
· How many times have you been represented by someone in the union?
· How many times have you had the chance to represent a member on a formal complaint?
· How many opportunities, if any, have you had to work with an issue around Duty to Fair Representation?
2) While the members are still in the line ask them to pair up, one member from one end of the line with one from the other end of the line. (experienced stewards with one that is just starting out) Ask them to take 10 -15 minutes in their pairs to discuss the following questions (post questions on flipchart):
· What do you enjoy most about being a steward?
· Have you ever given advice to a member? What was that like?
· Have you ever given advice to a member around an equity concern?
· Have you or someone you know ever filed a grievance? Was the outcome satisfactory?
3) Now ask 2 pairs to find each other to make small groups of 4. Invite them to sit down if they wish. Ask each four member team to take 10 – 15 minutes to discuss and prepare to briefly report back on the following questions (post questions on flipchart):
· What contributed to the success of the formal complaint that you were involved in?
· What got in the way of resolving that complaint?
What is the Duty of Fair Representation? 45 minutes
1) Split the participants into different groups of four (4) and give each group flipchart paper and markers/crayons. Give them 15 minutes to draw a picture that represents what they think the Duty of Fair Representation is. Ask them to select one or two people to report back to the plenary.
2) At the end of the 15 minutes, have one group hold up their picture so that the rest of the participants can see it. Invite the other participants to say what they see in the picture. Take a couple of responses then ask – what does this picture tell us about the duty of fair representation?
3) Take two or three responses. Flipchart the responses – you should end up with a list of the key ideas in the definition of Duty of Fair Representation.
4) Ask the reporters from the group:
· Does this reflect what your group discussed in their drawing?
· Was there anything you discussed in your group that wasn’t mentioned yet?
5) Continue the same process with each group until all of the groups have reported back.
{Option 2 (possible time saver) is to do the report back as a Gallery – post all the pictures on the wall grouping like pictures together. The reporting back would be the same except rather than groups it would be by picture type.}
6) Hopefully in your flipcharting of responses you will have written down the three key principles outlined in the Duty of Fair Representation legislation: 1) not discriminatory, 2) not arbitrary and 3) in good faith. If not, then use the words on the flipchart to segue (pronunciation: seg-way) into the next section.
Where does the Duty of Fair Representation Come From? 20 minutes
1) Read out the following question and three possible answers.
· Where does the obligation to represent members fairly come from?
q collective agreement?
q legislation (Public Service Labour Relations Act, Canada Labour Code, Provincial Labour Relations Acts/Codes)?
q PSAC constitution?
2) Ask for a show of hands as to which response they think is correct.
3) Depending on the distribution of responses (ie lots of incorrect answers), you may wish to debrief the exercise with the question, why did you choose that response? or where in the collective agreement or constitution do you think you would find this? Avoid singling out any individual person if they happen to be incorrect.
4) In fact, it comes from the legislation. Every province, the federal public service and the federally regulated sector has this obligation embedded in their labour legislation. Interestingly, none of the Territories (Yukon, Northwest nor Nunavut) currently have this legal obligation in their labour legislation.
5) Distribute the “Duty of Fair Representation: Legislation” handout (note: national handout contains the PSLRA and CLC references and each region will need to add their own specific legislation that applies).
6) Why do you think this legislation exists? Expected answer – members have a legislated obligation to pay dues to the union (or for religious reasons, a charitable equivalent), therefore there is a corresponding obligation to represent members with the employer.
7) Discuss any significant differences between the applicable pieces of legislation for your region. For example, in the Territories, you might want to discuss whether the lack of a formal legislated obligation or complaint process frees the steward or union from this obligation.
8) Is there a “higher” standard when you know or suspect you are representing a member with a mental illness? Expected answer – yes
9) Why is there a “higher” standard? Expected answer – the Union has an obligation to ensure that the member understands and is capable of understanding the advice being given to them. Some forms of mental illness impede a person’s ability to understand or take appropriate action on the advice they are given or cause them to be difficult to deal with. The Union must give thought to or consider whether the way a member is acting or failing to act is as a result of a mental illness. If we believe this to be the case, then we have to make sure we take the necessary steps (give the person additional time … seek employer agreement to postpone or extend timelimits, etc.), provide the information in an alternate way, seek guidance from component or PSAC representatives on how to deal with the situation, etc.
Applying the Duty of Fair Representation? 35 minutes
1) Distribute the “Duty of Fair Representation: Terminology” handout. Explain that this provides a clear language definition of the terms – arbitrary, discriminatory and in bad faith. It is the “decoded legalese” explanation from Black’s Law Dictionary.
2) What union activities are covered by the legislation? Expected answer – only representation of the member with the employer.
3) Who is covered by the legislation? All members including scabs.
4) Distribute the “Scenarios …” handout.
5) Split participants into 4 groups and give two groups Edwin’s scenario and the other two groups Jean-Michel’s scenario. Explain that their task is to (post on flipchart):
(a) Determine if the union has violated its duty of fair representation and why or why not.
(b) What did the union do correctly? How should they have handled things differently/better?
Give them 15 minutes. Again they should choose a reporter.
6) Alternate the reporting back between the two groups with the same scenario. Flip the responses around what the union did correctly or what they should have done better/differently to create a list of best practices/tips.
7) Distribute the “Scenarios … Decisions” handout.
Summary - 15 minutes
Ask participants to stand in a circle in the middle of the room. Ask them to answer the following question;
§ What one thing will you take away from this workshop that will help you in your role as a Steward?
As each answer in turn, hand them the “Wise Actions Tips” handout.
Thank them for their participation in this workshop and wish them luck in their Steward activities.
Definition of
Duty of Fair Representation
The exclusive authority of a union to act as the spokesperson for employees in a bargaining unit includes a corresponding obligation on the union to fairly represent ALL employees in the unit when dealing with the employer. This obligation is commonly called the Duty of Fair Representation
How do you define it?
l Obligation to act in a non-discriminatory, non-arbitrary manner, without bad faith
l Representation must be just, done with integrity, without gross negligence or hostility
l Obligation to all workers within the bargaining unit
l Relates to representation with the employer
Definitions for…
Arbitrary … capriciously, without due consideration, tyrannical, without rationale, failure to exercise honest judgement
Discriminatory … unfair treatment or denial of normal privileges to persons because of one of the prohibited grounds under the Human Rights; a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured
Bad Faith … The opposite of “good faith”, generally implying or involving actual or constructive fraud, or an intent to mislead or deceive another, or an intent to neglect or refuse to fulfill some duty or contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.
There is No Obligation to…
l File a grievance without any grounds
l Take all grievances to arbitration/adjudication
l Do all that members ask us to do
l Provide no-fault representation
There is An Obligation to…
l Examine the relevant facts
l Do research
l Be conscious of the interests of the Union
l Be careful especially if the consequences may be serious
l Make an informed decision without discrimination, bad faith, arbitrary reasons
l Inform the member of the decision and reasons
l Inform the member of her/his recourse in the event s/he does not agree with decision
Some Recent Cases…
l Ménard v. PSAC http://pslrb-crtfp.gc.ca/decisions/fulltext/2010-95_e.asp
l Lise Suzanne Jutras Otto v. Raymond Brossard and Alex Kozubal http://pslrb-crtfp.gc.ca/decisions/fulltext/2011-107_e.asp
l Virginia McRaeJackson et al.. http://decisions.cirb-ccri.gc.ca/site/cirb-ccri/cirb-ccri/en/item/5478/index.do
Duty of Fair Representation
Legislation
Public Service Labour Relations Act
(applies to Treasury Board (TB), Canadian Revenue Agency (CRA), Canandian Food Inspection Agency (CFIA), Parks, and any employer under Part I, IV, V of the Financial Administration Act)
Section 187
No employee organization that is certified as the bargaining agent for a bargaining unit and none of its officers and representatives shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.
Canada Labour Code, Part 1
(applies to Canada Post, Purolator, airports, and any federally regulated employer)
Section 37
A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.
There are similar provisions in every provincial labour code/act. However, there is no provision in any territorial labour code/act.
Scenarios…
Edwin’s Case
Edwin is a general purpose crew member employed by Seabase Limited since 1998. He is also a member of the Seafarer’s International Union of Canada (SIU). On September 4, 2003, Edwin was laid off in accordance with the seniority provisions of the collective agreement and subsequently recalled for another assignment on September 9, 2003. He notified the SIU on the day of recall that he felt that the terms of a Memorandum of Settlement, dated December 19, 2002, had been breached by the employer and therefore asked the union to “immediately provide him with qualified legal advice.”
In response to this letter, the SIU filed a grievance on his behalf in order to protect the time limits for filing a grievance while it investigated the matter. The employer denied the grievance. The union then wrote to Edwin on September 19, 2003 asking him to provide evidence of the violation. On October 6, 2003, the union wrote to Edwin telling him that since he had not responded, the union was closing its file. Edwin did not respond until October 10, 2003, whereby he requested once more that the union provide him with qualified legal representation. The union wrote back that the employer was not in breach of the provisions of the collective agreement and that it was withdrawing the grievance.