One of the fundamental objectives of the Public Service Alliance of Canada as outlined in Section 3, Sub-section (2) of the Constitution is:
"To obtain for all public service employees the best standards of compensation and other conditions of employment and to protect the rights and interests of all public service employees."
In order to fulfil the latter part of this objective, it became necessary to have in place a system, which would effectively provide this protection for employees.
Although an Appeal System existed for a number of years, it was quite restrictive and the Alliance, as well as its predecessors, fought for many years for a systematic method of dealing with any complaint that an individual or group of individuals may have in relation to their terms and conditions of employment. With the advent of collective bargaining in the federal public service, the Alliance was successful in having legislation enacted, which provided for, amongst other things, a formal system for the resolution of employee complaints. This system is commonly referred to as the Grievance Procedure.
Until April 1, 2005, it was Section 91 of the PSSRA. As of April 1, 2005, it is now Section 208 of the Federal Public Sector Labour Relations Act (FPSLRA) and Article 18 of the Program Delivery and Administration Services Agreement. Section 208 of the FPSLRA, is one of the authorities under which we have the right to grieve.
Section 208 of the Act reads as follows:
PART 2
GRIEVANCES
Interpretation
Individual Grievances
Presentation
Right of employee
208. (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
Limitation
(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.
Limitation
(3) Despite subsection (2), an employee may not present an individual grievance in respect of the right to equal pay for work of equal value.
Limitation
(4) An employee may not present an individual grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies.
Limitation
(5) An employee who, in respect of any matter, avails himself or herself of a complaint procedure established by a policy of the employer may not present an individual grievance in respect of that matter if the policy expressly provides that an employee who avails himself or herself of the complaint procedure is precluded from presenting an individual grievance under this Act.
Limitation
(6) An employee may not present an individual grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
Order to be conclusive proof
(7) For the purposes of subsection (6), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.
This legislation provides for basically one substantial right for employees, the right to grieve. There are a number of limitations as well, however, under this section of the act:
(1) There must be no other administrative procedure for redress provided in or under an Act of Parliament, other than the Canadian Human Rights Act.
(2) The grievor must have the approval of and be represented by the bargaining agent if the grievance relates to the interpretation or application of a provision of a collective agreement or an arbitral award.
(3) A grievance cannot deal with the right to equal pay for work of equal value.
(4) A grievance cannot be filed if an employee elects to use an established complaint procedure if that procedure expressly stipulates that upon such an election, a grievance cannot be filed.
(5) A grievance cannot be filed against any instruction, direction or regulation made by or on behalf of the Government of Canada in the interest of the safety or security of the country.
As we can see from our examination of Section 208 of the Act, this legislation provides only for one basic right and some specific limitations. We know, however, that there are many more rules and regulations governing the grievance process. Part 2 of the FPSLRA (sections 206 to 238) outlines the legislative provision governing the grievance process. Sections 237 and 238 also authorize the Federal Public Sector Labour Relations and Employment Board to make regulations in relation to the grievance procedure. Section 237 and 238 of the Act reads as follows:
Regulations
Regulations
237. (1) The Board may make regulations respecting the processes for dealing with grievances, including regulations concerning
(a) the manner and form of presenting a grievance and, in the case of group grievances, the form of the consent of the employees concerned;
(b) the maximum number of levels in each grievance process;
(c) the manner in which employees are to be advised of the names of the persons whose decision on a grievance constitutes a level in the grievance process, including the final level;
(d) the time within which a grievance may be presented at any level in a grievance process;
(e) the circumstances in which any level below the final level in a grievance process may be eliminated;
(f) the manner in which and the time within which a grievance may be referred to adjudication after it has been presented up to and including the final level in the grievance process;
(g) the establishment of rules of procedure for the hearing of a grievance;
(h) the specification of the time within which and the persons to whom notices and other documents must be sent or given under this Part or Division 2 of Part 2.1, and when the notices are deemed to have been sent, given or received; and
(i) the manner of giving notice of an issue to the Canadian Human Rights Commission under this Part.
Application of regulations
(2) Regulations made under subsection (1) respecting individual, group or policy grievances do not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board to the extent that the regulations are inconsistent with any provisions contained in a collective agreement entered into by the bargaining agent and the employer applicable to those employees.
Regulations
238. The Board may make regulations respecting
(a) the manner of giving notice under subsection 223(1) and the time for making objections under paragraph 223(2)(c); and
(b) the manner in which and the time within which boards of adjudication are to be established.
Pursuant to this authorization under Section 237 and 238, the Federal Public Sector Labour Relations and Employment Board has in fact made regulations and these regulations are outlined in part under Part 2, Section 61 to 106 of the Federal Public Sector Labour Relations Regulations.
You also determined earlier that Article 18 of the Collective Agreement also afforded employees the right to grieve. This article also establishes procedures governing the grievance process.
As the Regulations may be modified from time to time by the Federal Public Sector Labour Relations and Employment Board (FPSLREB) and as the provisions of the Collective Agreement may be altered through the collective bargaining process, it is possible that provisions contained in Article 18 may conflict with similar or identical provisions contained in the Regulations. As a result, Section 237(2) of the Act has this to say.
237 (2) Regulations made under subsection (1) respecting individual, group or policy grievances do not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board to the extent that the regulations are inconsistent with any provisions contained in a collective agreement entered into by the bargaining agent and the employer applicable to those employees.
In other words, where there is a conflict between the provisions contained in the Regulations and the Collective Agreement, the Collective Agreement shall prevail.
Article 18 of the Program Delivery and Administration Services Agreement and Part 2 of the FPSLR Regulations outline specific rights and obligations for employees, the Union and the employer. As a steward, it will be very important for you to know and understand these rights and obligations. In order to assist you in this task, we will now examine how these rights and obligations apply to each party.
From our analysis of article 18 and the FPSLR Regulations, we determined that there are many rights and obligations governing the grievance procedure.
From this, one can see that ideally, the grievance procedure has been established to protect the interests of employees. You will soon see, however, as you gain experience, that it doesn't always appear to be true. Consequently, it becomes incumbent upon you as a steward to make sure that the members' rights and interests are protected by knowing the law thoroughly as it relates to grievances and the grievance procedure.
Duty of fair representation in grievance handling
As a union representative, you will have to decide on the representation of a member, the filing of grievance, etc. This decision should be made in good faith, dealing with different situations. You will have to determine the viability to proceed or not with a grievance. This decision cannot be arbitrary, in bad faith and discriminatory. In fact, the FPSLRA, paragraph 187 states:
“Unfair representation by bargaining agent
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.”
To act in good faith implies sincerity, honesty and loyalty in the execution of your obligations as a local / regional representative.
Consideration of due diligence implies acting without delay (efficiency) and effectively in the execution of your obligations.
The duty of fair representation was initially argued by the Supreme Court of Canada in the decision of Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509.
Writing on behalf of the Court, the Honourable Mr. Justice Chouinard wrote, “The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit. The representation must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee...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 however 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 the legitimate interests of the union on the other. In short, the union’s decision must not be arbitrary, capricious, discriminatory or wrongful.” (emphasis added by the author)
As per the FPSLRA, paragraph 190 (2), a member has 90 calendar days to file a complaint to the FPSLREB. The burden of proof lies on the member and based on the standard of the balance of probabilities.
To help you in your representation, please refer to HANDOUT 1.6 – EXCERPTS FROM THE FPSLRA.
In the next module, we will look more closely at the grievance procedure by studying the different types of grievances and how the procedures sometimes vary depending on the type of grievance.