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By Jorge Talbott, LL.B.
Potential shop
stewards in one union classroom were told, “If you’re not filing a
grievance a day, you’re not doing your job.” So, it is no surprise that the
formal grievance is likely to be the most ubiquitous form of union
correspondence encountered by employers. However, the union form may
identify the grievance as either an individual, group, or policy
grievance—terms of art for employers to learn.
Individual versus Policy Grievances
In the good old
days of labour arbitration—when awards from arbitrators were handed down in
a month instead of a year, and occupied only three or four pages of text
instead of the 150 pages seen
today—there was a valid legal distinction between individual and policy
grievances.
An individual
grievance was launched on behalf of an employee whose rights under the
collective agreement were allegedly violated. For example, there was an
error on the calculation of the employee’s pay. This error does not affect the
workplace as a whole, just the grievor’s pay cheque. As a consequence, his
shop steward filed an individual grievance requesting that the grievor be
paid in accordance with the collective agreement.
A policy
grievance was launched if it was easy to show the employer had conducted
itself in a manner contrary to the collective agreement, and in a way that
affected the entire workforce. For example, instituting a sick leave policy
that required employees to divulge every medication they were taking. In this
case, if an individual employee had launched a grievance, it would have—in
those good old days—been difficult to fashion a remedy that would protect
every employee at the workplace. Thus, a policy grievance was necessary.
But, the
distinction between individual and policy grievances exists only today
because those who write collective agreements refuse to let go of the past.
Back then, depending on which type of grievance was filed, an arbitrator
had only limited remedies he or she could impose. In the last 40 years, the
jurisdiction of arbitrators has grown quite considerably. The Supreme Court
of Canada has set the trend by according deference to arbitrators in their
fact finding and decision making powers, and the provincial legislatures
have followed suit by altering their labour relations acts to grant more
power to arbitrators, including the ability to judge human rights
violations.
The sum total of
all this jurisprudential growth is that arbitrators are no longer as restricted
in the remedies they may provide to grieving parties. This means the
distinction between a policy grievance and an individual grievance really
has no substance, except where parties to a collective bargain choose to
give it a meaning.
For example,
union and management may decide to accord greater weight to a policy
grievance by indicating, in the collective agreement, that policy
grievances will be submitted at the second step of a grievance procedure,
whereas individual grievances will be submitted at the first step. The
second step may, for example, involve a meeting with upper management,
whereas step one may be handled by a front line supervisor.
The Other Grievance: Group Grievances
A group grievance
is another term of art employers are bound to encounter. These occur when a
group of employees have a similar complaint against management. For
example, all the part-time employees launch a holiday pay grievance. This
does not affect the entire workforce, and therefore will not be a policy grievance.
But, to file individual grievances for, say, 30 part-time employees means
the correspondence between the union and management will become burdensome
and unwieldy. Therefore, the parties can agree to treat all the grievances
together, either informally, or formally by defining a group grievance
under the collective agreement.
ABOUT
THE AUTHOR
Jorge
Talbott, LL.B., is a labour lawyer, consultant, and founder of the Ottawa
firm, Labour Relations Consultants.
He was formerly Director of Human Resources for a
unionized, national non-profit organization. His contact information is given below.
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