Workplace Problems and Supports: The Role of SAFA
SAFA provides representation during the following processes:
- Grievances, i.e. contraventions or alleged contraventions of the Collective Agreement
- Investigations and disciplinary processes pursuant to the Collective Agreement, Section 16
- Accommodation processes, e.g. workplace accommodations on medical grounds
Representation during the grievance process is mandatory. Representation in other contexts is at the member’s request but is highly recommended.
Duty of Fair Representation
The Alberta Labour Relations Code requires unions to act in good faith and fairly represent all employees in a bargaining unit. This is called the duty of fair representation. The duty of fair representation involves rights and obligations for both trade unions and employees. These are explained below.
The Supreme Court of Canada has set the principal feature of the duty of fair representation in five points:
- The exclusive power conferred on a union to act as spokesperson for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent employees comprised in the unit.
- When the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
- This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and for the union on the other.
- The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
- The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.
In essence, this means unions have a large amount of discretion when they deal with grievances. For example, unions may settle or drop grievances even if the affected employee disagrees. To counterbalance this power, the Labour Relations Code requires unions to fairly treat all members of a bargaining unit. This duty of fair representation requires unions to exercise this power in good faith. This usually means unions must carefully examine grievances.
Employees’ Obligations
Employees must protect their own interests by filing grievances, cooperating with the union, and following the grievance procedure in the collective agreement.
In our collective agreement, members do not have the absolute right to have grievances taken to arbitration. A union normally has the right to settle or drop a grievance even if the individual grievor disagrees. This is true even in discipline and discharge cases. The union has the right to make these decisions but must do so according to the considerations set out above.
Union’s Duties
Unions must use diligence when handling grievances to avoid ill will, discriminatory practices, or capricious conduct. Decisions must not be arbitrary or based on personal relationships. The Union is entitled to make a wrong decision, as long as it fairly and reasonably investigates the grievance and comes to an informed decision.
Sometimes the rights of the grievor will conflict with the rights of other bargaining unit members. For instance, in cases involving seniority rights on layoff or cases involving a reinstatement that triggers the displacement of another employee. In deciding whether or not to arbitrate such grievances, the union must act fairly. If it has done so, the union need not represent each affected member.