1. Purpose: Applications regarding Duty of Fair Representation and/or Violation Related to Internal Union Affairs
This Practice Note sets the process to apply to the Board for relief pursuant to section 6-59 or 6-58 of The Saskatchewan Employment Act (the “Act”).
The Board’s process for reviewing section 6-58 and 6-59 applications consists of the following steps:
- Initial Review
- Review of Reply
- Mediation
- Merits Determination
This practice note also sets out a general description of the duties imposed by section 6-58 and 6-59 of the Act.
The four steps outlined above is the Board’s default process on applications made pursuant to section 6-58 and 6-59. The Board retains discretion to direct an alternate process after the Board reviews the matter pursuant to section 19.1 of The Labour Relations Board Regulations.
2. Section 6-59 – Evidence in Support of Application
Applications that allege a breach of the duty of fair representation must include evidence to demonstrate that a union has acted in a manner that is arbitrary, discriminatory, or in bad faith. Information alleging union errors in file assessment or a difference of opinion or interpretation is insufficient to allege a breach of the duty of fair representation.
3. Section 6-58 – Internal Union Affairs
Pursuant to section 6-58 of the Act, the Board has the jurisdiction to review limited internal affairs of a union. The Board’s authority is limited to disputes related to:
- Matters in the constitution of the union;
- An employee’s membership in the union; or
- The employee’s discipline by the union.
To establish a breach of subsection 6-58(1), an applicant must allege the union has breached the rules of natural justice, also known as procedural fairness. The Board does not consider the merits of a union decision when reviewing a section 6-58 application.
An applicant may also seek relief from the Board pursuant to subsection 6-58(2) of the Act. This application can be made if the union expels, suspends or imposes a penalty. The Board’s jurisdiction under subsection 6-58(2) relates only to ensuring that union decisions to expel, suspend or impose a penalty on a member or refuse membership in the union to a person are not discriminatory or based on the grounds that the member or person has refused or failed to participate in activity prohibited by the Act.
4. First Stage Review
Upon the receipt of an application under section 6-58 or 6-59, the Board will conduct an initial review to determine whether the application on its face discloses a reasonable cause of action. If the Board determines that the application may not disclose a reasonable cause of action, it will ask the parties for written submissions on whether the application should be summarily dismissed. The Board will consider these submissions and may either summarily dismiss or move to the application to the next stage of review.
5. Review of Reply
The next stage is inviting sworn reply from the respondent union and any other potential responding parties.
The Board will review all materials filed to determine whether the application may proceed or if it will be dismissed.
Upon review of the application and reply, the Board may:
- Invite further submissions from the parties;
- Dismiss the application without receiving further submissions; or
- Refer the matter to pre-hearing conference or hearing.
6. Mediation
If the Board does not determine the matter based on the application and the reply, the Board may refer the matter to a pre-hearing conference with the Board or the Board’s agent for the purpose of mediation.
Mediation is conducted on a without prejudice basis and anything discussed cannot be used in any other litigation, including further proceedings before the Board. The goal of mediation is to have settlement discussions to determine whether a matter can be settled or resolved without a formal adjudication.
7. Merits Determination
If the matter is not dismissed or resolved through mediation, the Board will proceed to a merits determination on either a preliminary matter or the full merits of the application. Unless otherwise directed, the Board will conduct any merits determination on the basis of written submissions. In exceptional cases, the Board will order the matter to be determined by oral hearing.
The form of written submission will depend on the issue before the Board. The Board will direct whether the parties are to file only written argument or if affidavits are required.
This practice note is intended to provide general guidance concerning the current policy of the Board with respect to Employee-Union Disputes Applications. It is not a legal document, and should not be viewed as a ruling by the Board or an official interpretation of The Saskatchewan Employment Act.