In University of Saskatchewan v Administrative and Supervisory Personnel Association, 2021, the Saskatchewan Labour Relations Board (the Board) re-visited the issue of supervisory employees being in the same bargaining unit as the employees they supervise.
The Board has recently clarified that supervisory employees may be excluded from existing bargaining units upon an application to the Board, which differs from a previous 2017 Board ruling.
Excluding Supervisory Employees from Bargaining Units
Excluding supervisory employees from the same bargaining unit as the employees they supervise helps prevent a conflict of interest arising. In short, it may be difficult for a supervisory employee to be involved in disciplining their fellow union member and also fully participate in union activities.
On April 29, 2014 new provisions concerning supervisory employees in The Saskatchewan Employment Act came into force. The provisions prohibit supervisory employees from being in the same bargaining unit as the employees they supervise unless the employer and union make an irrevocable election to allow supervisory employees in the bargaining unit. Supervisory employees are also permitted to be in a bargaining unit of only supervisory employees.
In the 2017 decision of Saskatoon Public Library Board v Canadian Union of Public Employees, Local No 2669, the Board held that supervisory employees would not be excluded from existing bargaining units and instead would only be excluded where there is a new certification application.
Interpreting Supervisory Provisions
In University of Saskatchewan, the Board considered relevant principles to determining an application to remove supervisory employees from an existing bargaining unit, including the proper approach to statutory interpretation and the relevance of debates of the Legislative Assembly to both the background and purpose of the legislation. The Board also outlined that it is not bound by its previous decisions and Saskatoon Public Library is considered an aberration.
In University of Saskatchewan the Board ruled that the proper interpretation of the supervisory provisions is that they apply to existing bargaining units and that the Board will apply those provisions if it receives an application to amend an existing certification order.
Key Takeaway for Employers
The takeaway from the decision is that the Board has opened the door for employers to seek to exclude supervisory employees from existing bargaining units. Employers should seek legal advice to review their particular circumstances to determine if the employees in question are supervisory employees within the meaning of the legislation and if an application to exclude them from an existing unit is appropriate.
Note: This article is of a general nature only. Laws and government programs may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.