Under Section 187 of the Federal Public Sector Labour Relations Act (FPSLRA), PAFSO has a general duty of fair representation to all members of its bargaining unit. It must represent individual members in a manner that is not arbitrary, discriminatory or in bad faith as defined in the legislation and the case law, while also taking into account the collective interest of all the members within the bargaining unit for which a collective agreement is in force.
Representation Protocol 1 describes PAFSO’s role in representation services, and Representation Protocol 2 provides a process for the review of representation. The purpose of this Protocol is to describe the circumstances in which PAFSO and its Labour Relations Advisors communicate with parties other than the member – namely, individuals designated to act as a member’s representative, representatives of other bargaining agents, and external legal counsel retained by PAFSO. This Protocol supplements, and is to be read together with, Representation Protocols 1 and 2, and does not alter the duty of fair representation described above.
PAFSO’s duty of fair representation is owed to the members of its bargaining unit, and members’ labour relations and employment information is confidential and often subject to legal privileges. As a general rule, PAFSO and its Labour Relations Advisors communicate directly with members concerning their matters as individuals. When managing group grievances, PAFSO will lead communications with all group members to ensure consistent and appropriate representation.
PAFSO will generally not disclose that information to, or discuss a member’s matter with, a third party unless a) the other party is lawfully authorized and entitled to act in the member’s place, and, where applicable, the third party’s authority to act has been verified, and PAFSO agrees to communicate with them; b) where PAFSO’s communication with the third party is necessary or appropriate for advancing the member’s matter, such as communications with a member’s medical providers, the Employer, Boards or Tribunals, and where the member’s consent is provided, either explicitly or implicitly; c) where disclosure is required by law.
Communication with a party other than the member is undertaken where it serves the interests of the member, of PAFSO, or of the membership as a whole, and is carried out in a manner consistent with PAFSO’s jurisdiction, the confidentiality owed to the member, and the guiding principles of Representation Protocol 1.
This Protocol is intended to work in conjunction with and support PAFSO’s commitments to member privacy, as outlined in the Privacy Policy.
Where a member wishes to be represented by another party rather than PAFSO, including by their own legal counsel, PAFSO will accept the member’s choice and will dissociate itself from the matter of representation, as provided in Representation Protocol 1.
In situations where a member remains represented by PAFSO but asks that another individual act as a point of contact or spokesperson on the member’s behalf, PAFSO will normally continue to deal with the member and will not normally communicate with the designated point of contact or spokesperson unless the member is medically incapacitated or is deceased. Exceptional circumstances may be reviewed and considered by the Labour Relations Team Leader. Such exceptional circumstances may include situations where the duty to accommodate is engaged pursuant to applicable human rights legislation.
Members who are unable to provide authorization
A member may be unable to give instructions or authorization directly – for example, where the member is medically incapacitated or has died. In these circumstances, PAFSO may communicate with the person who is lawfully entitled to act in the member’s place, after that person’s authority to act has been verified and to the extent the matter is one in which PAFSO would properly provide assistance.
Incapacitated member. Where a member is unable to manage the matter due to incapacity, PAFSO may communicate with the individual who holds legal authority to act for the member, such as an attorney under a power of attorney or a court-appointed guardian, committee or equivalent representative. PAFSO will confirm the existence and scope of that authority before disclosing the member’s information. A member who is incapacitated ordinarily remains part of the bargaining unit, and PAFSO’s representation role continues, subject to the arrangements for communication set out in this Protocol.
Deceased member. Where a matter arose while the individual was a member of PAFSO’s bargaining unit and remains outstanding following the member’s death, PAFSO may, consistent with Representation Protocol 1’s provision for assistance to a person who is no longer part of the bargaining unit, communicate with the executor or administrator of the member’s estate, or another person lawfully entitled to act for the estate, after that authority has been verified. This is consistent with the treatment of amounts owing to a deceased employee, which are payable to the estate or to a person entitled by law under the Payments to Estates Regulations, 1996.
Individuals without authority to act
PAFSO is not obliged to respond to or deal with a person who purports to act for a member but who is neither authorized by the member nor lawfully entitled to act in the member’s place. PAFSO may choose to communicate with such an individual to seek clarity on their engagement, and will not disclose the member’s confidential information absent a member’s clear authorization to do so.
PAFSO’s duty of fair representation is owed to its own members. Communication with a representative of another bargaining agent is not owed to that bargaining agent, but is appropriate where it serves the interest of a PAFSO member or of PAFSO, provided that questions of jurisdiction (whose member, and whose matter, is engaged) and of confidentiality and consent are respected. A distinction is drawn between communication concerning an individual member’s matter, which engages the confidentiality and consent requirements of this Protocol, and communication between organizations on matters of common interest, which ordinarily does not involve a member’s confidential information.
Matters that engage more than one bargaining unit
A matter may relate to a period during which an individual was represented by one bargaining agent while the individual becomes aware of the matter, or raises it, during a period in which the individual is represented by another. Where such a matter arises, the Labour Relations Advisor may communicate with the representative of the other bargaining agent in order to determine which bargaining agent properly has carriage, to arrange an orderly transfer of the matter, and to avoid prejudice to the individual – in particular, to ensure that applicable grievance or recourse time limits are not missed while carriage is being determined. Where PAFSO would communicate with, or provide assistance to, an individual who is represented by another bargaining agent, PAFSO will first obtain proper authorization and consent from that individual’s bargaining agent, as contemplated by Representation Protocol 1, and the individual’s consent to the sharing of their information.
Sharing of expertise between bargaining agents
A Labour Relations Advisor may communicate with a representative of another bargaining agent to share or draw upon subject-matter expertise on issues of common interest, where doing so serves the interests of the membership. Such communication requires a member’s consent only when it requires sharing a member’s confidential or identifying information.
National Joint Council committees
Certain matters affecting members are considered through the National Joint Council (NJC), on which bargaining agents participate through the Bargaining Agent Side and its working committees. Where an issue affecting members is being considered by an NJC committee on which PAFSO does not sit, a Labour Relations Advisor may communicate with a bargaining agent that participates on that committee to obtain information, to coordinate positions, or to have a matter of shared interest advanced, while being mindful that the other bargaining agent may be subject to confidentiality requirements and to the NJC By-Laws.
Similarly, a Labour Relations Advisor who sits on an NJC committee may communicate with representatives of other bargaining agents about the activities of that committee, subject to any applicable confidentiality requirements and to the NJC By-Laws.
This section concerns external legal counsel retained by PAFSO, at PAFSO’s expense, to represent a member. It is distinct from the situation addressed in Representation Protocol 1, in which a member chooses to retain outside counsel on the member’s own behalf and at the member’s own expense; in that situation PAFSO dissociates itself from the matter of representation. It is also distinct from situations where PAFSO retains external counsel to provide PAFSO with a confidential and privileged legal opinion on a member’s matter.
When external counsel may be retained
PAFSO may retain external counsel, at its own expense, to represent a member where the Labour Relations Advisor considers it appropriate and the retention is approved in accordance with this Protocol. Circumstances in which external counsel may be retained include:
- specialized or complex matters;
- matters that have been referred to adjudication under the Federal Public Sector Labour Relations Act, or that proceed before a court or other tribunal, including judicial review; and
- matters that are precedent-setting or that otherwise carry significant implications for the membership as a whole.
Decision-making authority
The decision to retain external counsel is made on the recommendation of the Labour Relations Advisor, through the Labour Relations Team Leader, and requires the approval of the Executive Director. In deciding whether to recommend or approve the retention of external counsel, PAFSO will consider the interests of the member, the collective interests of the membership, and any financial constraints. The decision whether to retain external counsel rests with PAFSO.
Information that may be shared
Where PAFSO retains external counsel to represent a member, counsel acts as a part of the member’s representation team in the matter. PAFSO will share with counsel the information necessary for the representation, including the relevant contents of the member’s file. By accepting representation by PAFSO-retained counsel, the member is taken to consent to the sharing of the information necessary for that representation, and the member should work with retained counsel to provide the relevant information and documentation in a timely manner. Communication between counsel and the member is limited in scope to the matter that gave rise to counsel having been retained.
The Labour Relations Team Leader may choose to make exceptions to this Protocol, so long as those exceptions are in the best interests of PAFSO and the membership as a whole, and with the approval of the Executive Director when appropriate.