Duty of Fair Representation
Duty of Fair Representation - MB Labour Relations Act s. 20
Every bargaining agent which is a party to a collective agreement, and
every person acting on behalf of the bargaining agent, which or who, in
representing the rights of any employee under the collective agreement,
(a) in the case of the dismissal of the employee,
(i) acts in a manner which is arbitrary, discriminatory or in bad faith, or
(ii) fails to take reasonable care to represent the interests of the employee;
or
(b) in any other case, acts in a manner which is arbitrary, discriminatory or
in bad faith;
commits an unfair labour practice.
The duty of fair representation does not impose
an absolute duty on a union to carry every
grievance filed by an employee to arbitration.
Where a grievance lacks merit, or where the
interests of the individual must yield to the
greater interests of the group, a union must be
free to settle or drop a grievance.
The standards of a professional advocate are not
to be imposed on union officials.
A union must put its mind to the merits of a
grievance and attempt to engage in a process of
rational decision-making.
A union must take a reasonable view of the
problem before it, and arrive at a thoughtful
judgment about what to do, after considering the
various relevant and conflicting considerations.
A union’s lack of investigation of, or superficial
handling of, an employee’s complaint will
violate the duty of fair representation.
A union must not discriminate or distinguish in
treatment between any members of a
bargaining unit, unless for legitimate reasons.
A union acts in bad faith when its conduct is
motivated by ill-will, hostility, dishonesty or
sinister purpose.
A union may violate the duty of fair
representation through acts of serious
negligence, but the standard of care required
will be varied according to the seriousness of
the consequences and the nature of the job
interest at stake.
On matters of critical job interests (dismissal), a
high degree of recognition of individual rights
will prevail in duty of fair representation
complaints.
Manitoba’s duty applies only to contract
administration, not contract negotiation.
The complaint must be filed, in writing, with the
Labour Board. There are no specific time limits
but the Labour Board can dismiss a complaint
for “undue delay”. (LRA s.30)
The employer will be named as a party in duty of
fair representation complaints, and a Board may
direct the employer in any remedy ordered.
Where compensation is a remedy for a breach of
the duty of fair representation, and the union has
caused the employer’s damages to be greater by
reason of its breach of the duty, the union will be
liable for that portion of the damages.
The Employer will normally remain liable for the
portion of the damages, which it would have had
to pay had there been no breach of the duty.
The supreme Court of Canada has ruled that
unions cannot be sued in the courts for breach
of DFR where there is legislation allowing
employees to complain to a labour tribunal.
Rights of a Union Representative
The rights of a union representative arise mainly
through the specific wording of each individual
collective agreement.
In dealing with management, a union
representative is appearing in a representative
capacity on behalf of the Union, and not in his/her
personal capacity as an employee.
In conducting union business, a representative is
therefore, entitled to be treated as an equal, and not
as a subordinate.
A union representative should not be subject to
discipline for legitimate and proper union activity,
which cannot be reasonably dealt with outside of
working hours.
The protection or immunity afforded to the union
representative is only applicable when...
• They are engaged in lawful union activity;
• Any statements made are not made maliciously,
recklessly, or when such statements are known
to be false;
• Any statements or actions do not amount to a
deliberate campaign to harass any individual or
employer;
• Any statements or actions do not publicly denounce
a member of management for matters unrelated to
the particular issue at hand, or without all internal
avenues for dispute resolution having been
exhausted;
• Any statements or actions fall inside the scope or
range of normal union activities;
• The statement or action does not amount to a
personal threat or assault upon a management
official;
The ultimate objective
of the activity of a union
representative is to
convince management
that their position is
wrong and contrary to
the terms of the
Collective Agreement.