The duty of unions to fairly represent their members.

• Author: Bowal, Peter

Introduction

About one-third of all Canadian workers, and most public sector employees, are members of unions, sometimes by choice and sometimes by legislation. Unions offer greater collective power than an individual generally can marshal for the negotiation and administration of collective agreements. Unionized employees surrender to the union the right to negotiate and contend on all work-related matters with the employer. Such a transfer of power from workers to unions reposes significant responsibility in the hands of the union. Therefore, it is essential that the union represent the best interests of its members. This legal obligation is referred to as the union's duty of fair representation of the members' interests.

Legislation on Duties of Unions

Provincial Labour Relations Acts or Codes and the Canada Labour Code (for federally-regulated employees) contain many rules for unions. For example, the Alberta Labour Relations Code prohibits unions from engaging in certain practices, such as using strong-arm tactics ("coercion, intimidation, threats, promises or undue influence of any kind") against employers, employers' organizations, other unions and employees (section 151).

The union's duty to fairly represent its members is also presented in the form of a prohibition in the legislation:

153(1) No trade union or person acting on behalf of a trade union shall deny an employee or former employee who is or was in the bargaining unit the right to be fairly represented by the trade union with respect to the employee's or former employee's rights under the collective agreement. The Canada Labour Code is explicit in both the requirement of a union acting in a manner reflecting a duty of fair representation of any members, or any applicable employees, and in what constitutes fair representation. Section 37 prohibits unions from acting in an arbitrary or discriminatory manner or in bad faith when representing employees under the applicable collective agreement.

The Common Law Meaning of Fair Representation

Like the corresponding duty upon employers to bargain with unions in good faith, the concept of fair representation is difficult to define and very broad. The terms "arbitrary," "discriminatory," and "bad faith" are core elements that arbitrators and courts consider in evaluating the duty of fair representation.

We turn now to the two main judicial decisions, both involving federally-regulated workers from Quebec, on the topic of fair...