The Duty of Unions to Fairly Represent Their Members.

• Author: Bowal, Peter
• Position: Columns: Employment Law

Introduction: plight of the unionized worker

The average unionized worker is in a weak position at work. In many workplaces he will, as a condition of employment, be required to join the existing union. Or he may have been out-voted in the decision to unionize. Bringing serious concerns and directly accessing the employer is hampered by labour-management formalities. Technically, only union stewards can broker concerns and communications with bosses.

Workers are generally stuck with their union, much in the same way that they are stuck with their federal and provincial governments. They may find that their one voice and one vote carry no sway in influencing union leadership, governance, collective bargaining and other decisions. Workers are captive to their unions unilaterally deducting hundreds, or thousands, of dollars from their earnings each year. Workers and unions are analogous to citizens electing and submitting to government. Yet, one's relationships and conditions at work are much more intensely personal than citizenship in a territory.

If the employer violates the law or collective agreement, only the union can challenge that. Individual workers have no standing in court to complain of mistreatment or wrongful dismissal by the employer. They are totally dependent upon the union, the "exclusive agent"--its good faith and competence--to take up and effectively prosecute grievances against employers. How can workers ensure their unions fairly and effectively represent them?

The good news is that the union has some accountability. This is found in the doctrine of "duty of fair representation", which is the topic of this article.

Duty of Fair Representation

The Collective Agreement is the contract between the worker and employer. It can only be enforced by unions filing grievances on behalf of individual workers, alleging an employer breach of some kind or challenging the employer's discipline.

There are several stages through which the parties move in any grievance process, the goal of which is always to resolve the concern. Ultimately, the union may have to take a grievance to arbitration which can be costly in terms of time, effort and resources.

Unions typically have significant discretion in whether to file and how to progress the grievance, regardless of the affected worker's preferences. Given this power over the worker, the Labour Relations Code requires unions to treat all the workers it represents fairly.

The Supreme Court of...