SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Public Service Labour Relations Act.

INTERPRETATION

Marginal note:Definitions

• 2. (1) The following definitions apply in this Act.

  “adjudicator”

  « arbitre de grief »

  “adjudicator” means a member assigned to hear and determine a grievance referred to adjudication under subsection 209(1) or section 216 or 221 and includes, if the context permits, a board of adjudication established under paragraph 223(2)(c), a person named as an adjudicator in a collective agreement and a person otherwise selected as an adjudicator by the parties to the grievance.

  “arbitral award”

  « décision arbitrale »

  “arbitral award” means an award made by an arbitration board in respect of a dispute.

  “arbitration board”

  « conseil d’arbitrage »

  “arbitration board” means a board established under Division 9 of Part 1.

  “bargaining agent”

  « agent négociateur »

  “bargaining agent” means an employee organization that is certified by the Board as the bargaining agent for the employees in a bargaining unit.

  “bargaining unit”

  « unité de négociation »

  “bargaining unit” means a group of two or more employees that is determined by the Board to constitute a unit of employees appropriate for collective bargaining.

  “Board”

  « Commission »

  “Board” means the Public Service Labour Relations Board established by section 12.

  “Chairperson”

  « président »

  “Chairperson” means the Chairperson of the Board.

  “collective agreement”

  « convention collective »

  “collective agreement” means an agreement in writing, entered into under Part 1 between the employer and a bargaining agent, containing provisions respecting terms and conditions of employment and related matters.

  “core public administration”

  « administration publique centrale »

  “core public administration” has the same meaning as in subsection 11(1) of the Financial Administration Act.

  “council of employee organizations”

  « regroupement d’organisations syndicales »

  “council of employee organizations” means a council formed by two or more employee organizations.

  “deputy head”

  « administrateur général »

  “deputy head” means a deputy head referred to in any of paragraphs (a) to (c) of the definition “deputy head” in subsection 11(1) of the Financial Administration Act.

  “dispute”

  « différend »

  “dispute” means a dispute or difference that arises in connection with the entering into, renewal or revision of a collective agreement and in respect of which arbitration may be requested under subsection 136(1) or conciliation may be requested under subsection 161(1).

  “employee”

  « fonctionnaire »

  “employee”, except in Part 2, means a person employed in the public service, other than

  • (a) a person appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act;

  • (b) a person locally engaged outside Canada;

  • (c) a person not ordinarily required to work more than one third of the normal period for persons doing similar work;

  • (d) a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that force under terms and conditions substantially the same as those of one of its members;

  • (e) a person employed in the Canadian Security Intelligence Service who does not perform duties of a clerical or secretarial nature;

  • (f) a person employed on a casual basis;

  • (g) a person employed on a term basis, unless the term of employment is for a period of three months or more or the person has been so employed for a period of three months or more;

  • (h) a person employed by the Board;

  • (i) a person who occupies a managerial or confidential position; or

  • (j) a person who is employed under a program designated by the employer as a student employment program.

  “employee organization”

  « organisation syndicale »

  “employee organization” means an organization of employees the purposes of which include the regulation of relations between the employer and its employees for the purposes of Parts 1 and 2, and includes, unless the context otherwise requires, a council of employee organizations.

  “employer”

  « employeur »

  “employer” means Her Majesty in right of Canada as represented by

  • (a) the Treasury Board, in the case of a department named in Schedule I to the Financial Administration Act or another portion of the federal public administration named in Schedule IV to that Act; and

  • (b) the separate agency, in the case of a portion of the federal public administration named in Schedule V to the Financial Administration Act.

  “managerial or confidential position”

  « poste de direction ou de confiance »

  “managerial or confidential position” means a position declared to be a managerial or confidential position by an order made by the Board under subsection 62(1), section 63, subsection 74(1) or section 75.

  “member”

  « commissaire »

  “member” means a member of the Board, whether full-time or part-time.

  “membership dues”

  « cotisations syndicales »

  “membership dues”, in respect of employees represented by a bargaining agent, means the amount that the employer is required to deduct from the pay of the employees and remit to the bargaining agent under any collective agreement that is entered into between the employer and the bargaining agent.

  “Minister”

  « ministre »

  “Minister” means the member of the Queen’s Privy Council for Canada, other than a member of the Treasury Board, designated by the Governor in Council as the Minister for the purposes of this Act.

  “public service”

  « fonction publique »

  “public service”, except in Part 3, means the several positions in or under

  • (a) the departments named in Schedule I to the Financial Administration Act;

  • (b) the other portions of the federal public administration named in Schedule IV to that Act; and

  • (c) the separate agencies named in Schedule V to that Act.

  “separate agency”

  « organisme distinct »

  “separate agency” has the same meaning as in subsection 11(1) of the Financial Administration Act.

  “strike”

  « grève »

  “strike” includes a cessation of work or a refusal to work or to continue to work by persons employed in the public service, in combination, in concert or in accordance with a common understanding, and a slow-down of work or any other concerted activity on the part of such persons that is designed to restrict or limit output.

  “Vice-Chairperson”

  « vice-président »

  “Vice-Chairperson” means a Vice-Chairperson of the Board.

• Marginal note:Employment status preserved

  (2) A person does not cease to be employed in the public service by reason only that the person ceases to work as a result of a strike or by reason only of the termination of the person’s employment contrary to this Act or any other Act of Parliament.

• Marginal note:Persons who are not employees

  (3) For greater certainty, a person is not an employee if

  • (a) the person is engaged under subsection 50(1); or

  • (b) the person’s compensation for the performance of the regular duties of the person’s position or office consists of fees of office or is related to the revenue of the office in which the person is employed.

• Marginal note:Casual employment

  (4) For the purposes of paragraph (f) of the definition “employee” in subsection (1), a person employed in the part of the public service to which the Public Service Commission has the exclusive right and authority to make appointments is employed on a casual basis if the person was appointed under section 21.2 of the Public Service Employment Act.

• Marginal note:References to occupants of positions

  (5) Every reference to a person who occupies a position, or to the occupant of a position, includes a person who is acting in that position or who has assumed wholly or substantially the duties and responsibilities of that position, and a reference to a person’s position includes the position of a person who is acting in that position or who has assumed wholly or substantially the duties and responsibilities of that position.

Marginal note:Descriptive cross- references

3. If, in any provision of this Act, a reference to another provision of this Act is followed by words in parentheses that are descriptive of the subject-matter of that other provision, the words in parentheses form no part of the provision in which they occur and are deemed to have been inserted for convenience of reference only.

PART 1LABOUR RELATIONS

Interpretation

Marginal note:Definitions

• 4. (1) The following definitions apply in this Part.

  “essential service”

  « services essentiels »

  “essential service” means a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public.

  “essential services agreement”

  « entente sur les services essentiels »

  “essential services agreement” means an agreement between the employer and the bargaining agent for a bargaining unit that identifies

  • (a) the types of positions in the bargaining unit that are necessary for the employer to provide essential services;

  • (b) the number of those positions that are necessary for that purpose; and

  • (c) the specific positions that are necessary for that purpose.

  “mediator”

  « médiateur »

  “mediator” means a person appointed as a mediator under subsection 108(1).

  “National Joint Council”

  « Conseil national mixte »

  “National Joint Council” means the National Joint Council whose establishment was authorized by Order in Council P.C. 3676, dated May 16, 1944.

  “parties”

  « parties »

  “parties”, in relation to collective bargaining, arbitration, conciliation or a dispute, means the employer and the bargaining agent.

  “public interest commission”

  « commission de l’intérêt public »

  “public interest commission” means a commission established under Division 10.

• Marginal note:When position is necessary

  (2) A position that is necessary for the employer to provide essential services for the purposes of paragraph (a) of the definition “essential services agreement” in subsection (1) includes a position the occupant of which is required, at any time,

  • (a) to perform the duties of the position that relate to the provision of essential services; or

  • (b) to be available during his or her off-duty hours to report to work without delay to perform those duties if required to do so by the employer.

Division 1Employee Freedoms

Marginal note:Employee freedoms

5. Every employee is free to join the employee organization of his or her choice and to participate in its lawful activities.

Division 2Management Rights

Marginal note:Right of Treasury Board preserved

6. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board under paragraph 7(1)(b) of the Financial Administration Act.

Marginal note:Right of employer preserved

7. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board or a separate agency to determine the organization of those portions of the federal public administration for which it represents Her Majesty in right of Canada as employer or to assign duties to and to classify positions and persons employed in those portions of the federal public administration.

Division 3Consultation Committees And Co-Development

Marginal note:Consultation committee

8. Each deputy head must, in consultation with the bargaining agents representing employees in the portion of the federal public administration for which he or she is deputy head, establish a consultation committee consisting of representatives of the deputy head and the bargaining agents for the purpose of exchanging information and obtaining views and advice on issues relating to the workplace that affect those employees, which issues may include, among other things,

• (a) harassment in the workplace; and

• (b) the disclosure of information concerning wrongdoing in the public service and the protection from reprisal of employees who disclose such information.

Meaning of “co-development of workplace improvements”

9. For the purpose of this Division, “co-development of workplace improvements” means the consultation between the parties on workplace issues and their participation in the identification of workplace problems and the development and analysis of solutions to those problems with a view to adopting mutually agreed to solutions.

Marginal note:Co-development of workplace improvements

10. The employer and a bargaining agent, or a deputy head and a bargaining agent, may engage in co-development of workplace improvements.

Marginal note:National Joint Council

11. Co-development of workplace improvements by the employer and a bargaining agent may take place under the auspices of the National Joint Council or any other body they may agree on.

Division 4Public Service Labour Relations Board

Establishment and Composition

Marginal note:Board established

12. A Board is established, to be called the Public Service Labour Relations Board, consisting of a Chairperson, up to three Vice-Chairpersons and any other members that the Governor in Council may appoint.

Mandate

Marginal note:Mandate

13. The Board’s mandate is to provide adjudication services, mediation services and compensation analysis and research services in accordance with this Act.

Marginal note:Adjudication services

14. The adjudication services to be provided by the Board consist of the hearing of applications and complaints made under this Part, the referral of grievances to adjudication in accordance with Part 2 and the hearing of matters brought before the Board under Part 3.

Marginal note:Mediation services

15. The mediation services to be provided by the Board consist of

• (a) assisting parties in the negotiation of collective agreements and their renewal;

• (b) assisting parties in the management of the relations resulting from the implementation of collective agreements;

• (c) mediating in relation to grievances; and

• (d) assisting the Chairperson in discharging his or her responsibilities under this Act.

Marginal note:Compensation analysis and research services

• 16. (1) The compensation analysis and research services to be provided by the Board include conducting compensation surveys, compiling information relating to compensation, analyzing that information and making it, and the analysis, available to the parties and to the public, and conducting any research relating to compensation that the Chairperson may direct.

• Marginal note:Restriction on disclosure

  (2) In making information or analysis available under subsection (1), no member and no person employed by or acting under the direction of the Board shall disclose or knowingly cause to be disclosed, by any means, any information that makes it possible to relate the information or analysis to any identifiable individual person, business or organization.

• Marginal note:Exception

  (3) Subsection (2) does not apply if the person, business or organization concerned has consented in writing to the information being disclosed.

Marginal note:National Joint Council

17. The Board’s mandate includes the provision of facilities and administrative support to the National Joint Council.

Appointment of Members

Marginal note:Qualifications

• 18. (1) To be eligible to hold office as a member, a person must

  • (a) be a Canadian citizen within the meaning of the Citizenship Act or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;

  • (b) not hold any other office or employment under the employer;

  • (c) not be a member of or hold an office or employment under an employee organization certified as a bargaining agent;

  • (d) not carry on any activity inconsistent with the person’s functions; and

  • (e) have knowledge of or experience in labour relations.

• Marginal note:Exception

  (2) Despite paragraph (1)(b), a person is not ineligible to hold office as a member by reason only of holding office as a member of any board that may be constituted by the Commissioner in Council of the Yukon Territory or the Northwest Territories or the Legislature for Nunavut with powers and functions similar to those of the Board.

Marginal note:Appointments of other members from list

• 19. (1) Every member, other than the Chairperson or a Vice-Chairperson, must be appointed from among eligible persons whose names are included on a list prepared by the Chairperson after consultation with the employer and the bargaining agents.

• Marginal note:Contents

  (2) The Chairperson must set out on the list

  • (a) the names of all eligible persons recommended by the employer;

  • (b) the names of all eligible persons recommended by the bargaining agents; and

  • (c) the names of any other eligible persons whom the Chairperson considers suitable for appointment.

• Marginal note:Equal numbers

  (3) The appointment of members, other than the Chairperson and the Vice-Chairpersons, is to be made so as to ensure that, to the extent possible, an equal number are appointed from among persons recommended by the employer and from among persons recommended by the bargaining agents.

• Marginal note:Non-representative Board

  (4) Despite being recommended by the employer or the bargaining agents, a member does not represent either the employer or the employees and must act impartially in respect of all powers and functions under this Act.

Marginal note:Full or part-time members

20. The Chairperson and the Vice-Chairpersons are each full-time members and the other members may be appointed as full-time or part-time members.

Marginal note:Residence of full-time members

21. The full-time members must reside in the National Capital Region described in the schedule to the National Capital Act or within any distance of it that the Governor in Council may determine.

Marginal note:Tenure

• 22. (1) Each member is to be appointed to hold office during good behaviour and may be removed by the Governor in Council for cause.

• Marginal note:Term of office

  (2) A member may be appointed for a term of office that is not more than five years.

• Marginal note:Reappointment

  (3) A member is eligible for reappointment on the expiry of any term of office.

• Marginal note:Completion of duties

  (4) A person who ceases to be a member for any reason other than removal may, at the request of the Chairperson, within eight weeks after ceasing to be a member, carry out and complete any functions or responsibilities that the person would otherwise have had in connection with any matter that came before the Board while the person was still a member and in respect of which there was any proceeding in which the person participated as a member. For that purpose, the person is deemed to be a part-time member.

Remuneration

Marginal note:Remuneration

23. Every member and former member referred to in subsection 22(4)

• (a) is to be paid the remuneration that may be determined by the Governor in Council; and

• (b) is entitled to be paid reasonable travel and other expenses incurred by them in the course of their duties under this Act while absent from, in the case of full-time members, their ordinary place of work and, in the case of part-time members, their ordinary place of residence.

Application of Acts

Marginal note:Application of Public Service Superannuation Act

24. A full-time member is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

Marginal note:Application of other Acts

25. Members are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.

Head Office and Meetings

Marginal note:Head office

26. The head office of the Board is to be in the National Capital Region described in the schedule to the National Capital Act.

Marginal note:Time and place of meetings

• 27. (1) Meetings of the Board may be held at any date, time and place that the Chairperson considers appropriate for the proper conduct of the Board’s business.

• Marginal note:Off-site participation

  (2) A meeting of the Board may be held by any means of telecommunication that permits all persons participating in the meeting to communicate adequately with each other during the meeting. A person participating by such means is deemed to be present at the meeting.

Marginal note:Quorum

28. The Chairperson, one Vice-Chairperson and a majority of the other full-time members of the Board constitute a quorum at a meeting of the Board.

Marginal note:Attendance of part-time members at meetings

29. A part-time member is not entitled to attend a meeting of the Board, but may attend at the invitation of the Chairperson.

Marginal note:Decision of majority

30. A decision of a majority of the Board’s members who are present at a Board meeting is a decision of the Board.

Panels

Marginal note:Composition

31. Proceedings brought before the Board under this Part are to be heard and determined by a panel of not less than three members, at least one of whom is the Chairperson or a Vice-Chairperson, or, if the Chairperson considers it appropriate in the circumstances, by a panel consisting of a single member.

Marginal note:Powers, rights and privileges

32. A panel has all the powers, rights and privileges of the Board with respect to any matter assigned to the panel under this Part.

Marginal note:Chairperson of the panel

33. The chairperson of a panel that consists of three or more members is the Chairperson or, if the Chairperson is not a member of the panel, a Vice-Chairperson designated by the Chairperson.

Marginal note:Death or incapacity of member

• 34. (1) In the event of the death or incapacity of a member of a panel consisting of three or more members, other than the death or incapacity of the chairperson, the chairperson may determine any matter that was before the panel and the chairperson’s decision is deemed to be the decision of the panel.

• Marginal note:Death or incapacity of chairperson

  (2) In the event of the death or incapacity of the chairperson of a panel, or of the member when the panel consists of a single member, the Chairperson must establish a new panel to hear and determine the matter on any terms and conditions that the Chairperson may specify for the protection and preservation of the rights and interests of the parties.

Marginal note:Decision of panel

• 35. (1) A decision made by a majority of the members of a panel is the decision of the panel or, if no decision is supported by the majority of the members of the panel, the decision of the chairperson of the panel is the decision of the panel.

• Marginal note:Decision of Board

  (2) A decision of a panel is a decision of the Board.

Powers and Functions of the Board

Marginal note:Powers and functions of the Board

36. The Board administers this Act and it may exercise the powers and perform the functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act, regulations made under it or decisions made in respect of a matter coming before the Board.

Marginal note:Provision of assistance to parties

37. The Board, or any member or employee of the Board designated by the Board, may, if the parties agree, assist the parties in resolving any issue in dispute at any stage of a proceeding by any means that the Board considers appropriate, without prejudice to its power to determine issues that have not been settled.

Marginal note:Delegation by Board

38. The Board may authorize the Chairperson to exercise any of its powers or perform any of its functions, other than the power to make regulations.

Marginal note:Authority to make regulations

39. The Board may make regulations concerning

• (a) the certification of bargaining agents for bargaining units;

• (b) the determination of units appropriate for collective bargaining;

• (c) the time and manner of making applications under section 59, the provision of copies of those applications and the filing of objections in respect of any positions referred to in those applications;

• (d) the authority vested in a council of employee organizations that is to be considered the appropriate authority within the meaning of paragraph 64(1)(c);

• (e) the manner of making applications under sections 71 and 77, the time and manner of providing copies of those applications and the time and manner of the filing of objections in respect of any positions referred to in applications under section 71;

• (f) the rights, privileges and duties that are acquired or retained by an employee organization in respect of a bargaining unit or any employee included in a bargaining unit when there is a merger, an amalgamation or a transfer of jurisdiction between two or more employee organizations;

• (g) the revocation of certification of a bargaining agent, including the rights and privileges that have accrued to and are retained by any employee despite the revocation;

• (h) the manner of giving notices referred to in subsection 103(1), and the form of those notices, and the manner of making applications referred to in subsection 104(1), and the form of those applications;

• (i) the procedure for hearings;

• (j) the specification of the times within which notices, other than those referred to in subsections 130(1) and (2), and other documents are to be sent or given under this Part, the persons to whom they are to be sent or given and when they are deemed to have been sent, given or received;

• (k) the determination of the form in which, and the time as of which, the following evidence is to be presented to the Board on an application for certification or revocation of certification of a bargaining agent:

  • (i) evidence as to membership of employees in an employee organization,

  • (ii) evidence of objection by employees to certification of an employee organization, and

  • (iii) evidence of signification by employees that they no longer wish to be represented by an employee organization;

• (l) the circumstances in which evidence referred to in paragraph (k) may be received by it as evidence that any employees wish or do not wish to have a particular employee organization represent them as their bargaining agent, and the circumstances in which it must not make public any evidence so received; and

• (m) any other matter that is incidental or conducive to the exercise of its powers, the performance of its functions or the attainment of the objects of this Part.

Marginal note:Powers of Board

• 40. (1) The Board has, in relation to any matter before it, the power to

  • (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;

  • (b) order pre-hearing procedures, including pre-hearing conferences that are held in private, and direct the date, time and place of the hearings for those procedures;

  • (c) order that a hearing or a pre-hearing conference be conducted using any means of telecommunication that permits all persons participating in the conference to communicate adequately with each other;

  • (d) administer oaths and solemn affirmations;

  • (e) accept any evidence, whether admissible in a court of law or not;

  • (f) examine any evidence that is submitted to it respecting membership of employees in an employee organization seeking certification and, in the case of a council of employee organizations seeking certification, in any employee organization forming part of the council;

  • (g) examine documents forming or relating to the constitution or articles of association of any employee organization seeking certification and, in the case of a council of employee organizations seeking certification, those of any employee organization forming part of the council;

  • (h) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant;

  • (i) require the employer to post and keep posted in appropriate places any notice that the Board considers necessary to bring matters or proceedings before the Board to the attention of employees;

  • (j) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of the employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliance or article in the premises and require any person in the premises to answer all questions relating to the matter before it;

  • (k) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of the employer for the purpose of conducting representation votes during working hours; and

  • (l) authorize any person to do anything that the Board may do under paragraphs (d) to (k) and require the person to report to it on what the person has done.

• Marginal note:Frivolous applications

  (2) The Board may dismiss summarily any application or complaint that in its opinion is frivolous or vexatious.

Marginal note:Determination without oral hearing

41. The Board may decide any matter before it without holding an oral hearing.

Marginal note:Scope of orders

42. In making an order or a decision, or doing any other thing in relation to any person under this Act, the Board may do so either generally or in any particular case or class of cases.

Marginal note:Review of orders and decisions

• 43. (1) Subject to subsection (2), the Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.

• Marginal note:Exception

  (2) A right that is acquired by virtue of an order or a decision that is reviewed, rescinded or amended by the Board may not be altered or extinguished with effect from a day that is earlier than the day on which the review, rescission or amendment is made.

Chairperson

Marginal note:Chief executive officer

44. The Chairperson is the chief executive officer of the Board and has supervision over and direction of the work of the Board, including

• (a) the assignment and reassignment of matters that the Board is seized of to panels;

• (b) the composition of panels and the assignment of Vice-Chairpersons to preside over panels; and

• (c) the determination of the date, time and place of hearings.

Marginal note:Delegation by Chairperson

45. The Chairperson may authorize a Vice-Chairperson to exercise any of the Chairperson’s powers or perform any of the Chairperson’s functions, including powers or functions delegated to the Chairperson by the Board.

Marginal note:Absence of Chairperson

• 46. (1) If the Chairperson is absent or unable to act, or the office of Chairperson is vacant, a Vice-Chairperson designated by the Minister is to act as Chairperson.

• Marginal note:Absence of Chairperson and the Vice-Chairperson

  (2) In the event of the absence or incapacity of both the Chairperson and the Vice-Chairperson designated by the Minister, or if both of those offices are vacant, the Minister may designate a member or any qualified person to act as Chairperson but no person so designated by the Minister has authority to act as Chairperson for more than 60 days without the approval of the Governor in Council.

Human Resources

Marginal note:Responsibility for human resources management

47. The Chairperson is authorized, in respect of persons employed by the Board, to exercise the powers and perform the functions of the Treasury Board under the Financial Administration Act that relate to human resources management within the meaning of paragraph 7(1)(e) and section 11.1 of that Act, and those of deputy heads under subsection 12(2) of that Act, including the determination of terms and conditions of employment of persons employed by the Board.

Marginal note:Executive Director of Board

• 48. (1) An Executive Director of the Board is to be appointed under the Public Service Employment Act.

• Marginal note:Supervision of work

  (2) The Executive Director of the Board assists the Chairperson in the exercise of the Chairperson’s functions and, subject to the Chairperson’s direction, directs and supervises the day-to-day conduct of the work of the Board, the management of the Board’s internal affairs and the work of persons employed by the Board.

Marginal note:Other persons

49. All other persons that the Board considers necessary for it to employ are to be appointed under the Public Service Employment Act.

Marginal note:Experts and advisers

• 50. (1) The Chairperson may engage on a temporary basis the services of mediators and other experts or persons having technical or special knowledge to assist the Board in an advisory capacity and, subject to the approval of the Governor in Council, fix their remuneration.

• Marginal note:Non-application of Public Service Superannuation Act

  (2) A person engaged under subsection (1) is not to be considered as being employed in the public service for the purposes of the Public Service Superannuation Act by reason only of being so engaged.

Judicial Review and Enforcement of Orders

Marginal note:Orders not to be reviewed by court

• 51. (1) Subject to this Part, every order or decision of the Board is final and may not be questioned or reviewed in any court, except in accordance with the Federal Court Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

• Marginal note:Standing of Board

  (2) The Board has standing to appear in proceedings referred to in subsection (1) for the purpose of making submissions regarding the standard of review to be used with respect to decisions of the Board and the Board’s jurisdiction, policies and procedures.

• Marginal note:No review by certiorari, etc.

  (3) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part may, on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction,

  • (a) be questioned, reviewed, prohibited or restrained; or

  • (b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise.

Marginal note:Filing of Board’s orders in Federal Court

• 52. (1) The Board must, on the request in writing of any person or organization affected by any order of the Board, file a certified copy of the order, exclusive of the reasons for the order, in the Federal Court, unless, in its opinion,

  • (a) there is no indication of failure or likelihood of failure to comply with the order; or

  • (b) there is other good reason why the filing of the order in the Federal Court would serve no useful purpose.

• Marginal note:Effect of filing

  (2) An order of the Board becomes an order of the Federal Court when a certified copy of the order is filed in that court, and it may subsequently be enforced as such.

Advisory Board

Marginal note:Minister to establish

• 53. (1) The Minister shall establish an advisory board to provide advice to the Chairperson on the compensation analysis and research services provided by the Board.

• Marginal note:Composition

  (2) The advisory board is to consist of a chairperson and no more than 11 other members appointed by the Minister.

• Marginal note:Qualifications

  (3) All of the members must have knowledge or experience that will assist the advisory board to accomplish its mandate, including knowledge of or experience in compensation issues or statistics.

• Marginal note:Representativeness

  (4) Appointments to the advisory board are to be made such that there is an equal number of members representative of the employer and of employees.

Division 5Bargaining Rights

Certification of Bargaining Agents

Application for Certification

Marginal note:Right to apply

54. Subject to section 55, an employee organization that seeks to be certified as bargaining agent for a group of employees that it considers constitutes a unit appropriate for collective bargaining may apply to the Board, in accordance with the regulations, for certification as bargaining agent for the proposed bargaining unit. The Board must notify the employer of the application without delay.

Marginal note:Agreements for term of two years or less

• 55. (1) If a collective agreement, or an arbitral award, with a term of two years or less applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent, the application for certification may be made only after the commencement of the last two months of its term.

• Marginal note:Agreements for term of more than two years

  (2) If a collective agreement, or an arbitral award, with a term of more than two years applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent, the application for certification may be made only

  • (a) after the commencement of the twenty-third month of its term and before the commencement of the twenty-fifth month of its term;

  • (b) during the two-month period immediately before the end of each year that the agreement or award continues to be in force after the second year of its term; or

  • (c) after the commencement of the last two months of its term.

• Marginal note:Agreements for an indefinite term

  (3) If a collective agreement that applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent provides that it will continue to operate after the term specified in it for a further term or successive terms if either party fails to give to the other a notice of termination or a notice of its desire to bargain with a view to the renewal of the collective agreement, with or without modifications, the application for certification may be made

  • (a) at any time permitted by subsection (1) or (2), as the case may be; or

  • (b) during the two-month period immediately before the end of each year that the collective agreement continues to operate after the term specified in the collective agreement.

Marginal note:Continuation of terms and conditions

56. After being notified of an application for certification made in accordance with this Part, the employer may not, except under a collective agreement or with the consent of the Board, alter the terms and conditions of employment that are applicable to the employees in the proposed bargaining unit and that may be included in a collective agreement until

• (a) the application has been withdrawn by the employee organization or dismissed by the Board; or

• (b) 30 days have elapsed after the day on which the Board certifies the employee organization as the bargaining agent for the unit.

Determination of Appropriate Bargaining Units

Marginal note:Determination of unit

• 57. (1) When an application for certification is made under section 54, the Board must determine the group of employees that constitutes a unit appropriate for collective bargaining.

• Marginal note:Consideration of employer’s classification

  (2) In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board must have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

• Marginal note:Unit co-extensive with occupational groups

  (3) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.

• Marginal note:Composition of bargaining unit

  (4) For the purposes of this Part, a unit of employees may be determined by the Board to constitute a unit appropriate for collective bargaining whether or not its composition is identical with the group of employees in respect of which the application for certification was made.

Marginal note:Determination of questions of membership in bargaining units

58. On application by the employer or the employee organization affected, the Board must determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board to constitute a unit appropriate for collective bargaining, or is included in any other unit.

Managerial or Confidential Positions

Marginal note:Application

• 59. (1) After being notified of an application for certification made in accordance with this Part, the employer may apply to the Board for an order declaring that any position of an employee in the proposed bargaining unit is a managerial or confidential position on the grounds that

  • (a) the position is confidential to the Governor General, a Minister of the Crown, a judge of the Supreme Court of Canada, the Federal Court or the Tax Court of Canada, or a deputy head;

  • (b) the position is classified by the employer as being in the executive group, by whatever name called;

  • (c) the occupant of the position provides advice on labour relations, staffing or classification;

  • (d) the occupant of the position has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada;

  • (e) the occupant of the position has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with grievances presented in accordance with the grievance process provided for under Part 2;

  • (f) the occupant of the position is directly involved in the process of collective bargaining on behalf of the employer;

  • (g) the occupant of the position has duties and responsibilities not otherwise described in this subsection and should not be included in a bargaining unit for reasons of conflict of interest or by reason of the person’s duties and responsibilities to the employer; or

  • (h) the occupant of the position has, in relation to labour relations matters, duties and responsibilities confidential to the occupant of a position described in paragraph (b), (c), (d) or (f).

• Marginal note:Content of application

  (2) The application must set out every position that the employer considers to be a position referred to in any of paragraphs (1)(a) to (h).

Marginal note:Copy to employee organization

60. The employer must provide the employee organization seeking to be certified with a copy of the application.

Marginal note:Objection

61. If the employee organization considers that a particular position in the employer’s application is not a position referred to in any of paragraphs 59(1)(a) to (h), it may file an objection in respect of that position with the Board.

Marginal note:Decision on objection

• 62. (1) If an objection is filed in respect of a particular position included in the application, the Board must, after giving the employer and the employee organization an opportunity to make representations, determine whether the position is a position referred to in any of paragraphs 59(1)(a) to (h) and, if it determines that it is, make an order declaring the position to be a managerial or confidential position.

• Marginal note:Burden of proof on employee organization

  (2) The burden of proving that a particular position is not a position referred to in any of paragraphs 59(1)(a) to (c) is on the employee organization.

• Marginal note:Burden of proof on employer

  (3) The burden of proving that a particular position is a position referred to in any of paragraphs 59(1)(d) to (h) is on the employer.

Marginal note:When no objection filed

63. If no objection is filed in respect of a particular position included in the application, the Board must make an order declaring the position to be a managerial or confidential position.

Certification

Marginal note:Conditions for certification

• 64. (1) After having determined the unit appropriate for collective bargaining, the Board must certify the applicant employee organization as the bargaining agent for the bargaining unit if it is satisfied

  • (a) that a majority of employees in that bargaining unit wish the applicant employee organization to represent them as their bargaining agent;

  • (b) that the persons representing the employee organization in the making of the application have been duly authorized to make the application; and

  • (c) if the applicant is a council of employee organizations, that each of the employee organizations forming the council has vested appropriate authority in the council to enable it to discharge the duties and responsibilities of a bargaining agent.

• Marginal note:Where previous application denied within six months

  (2) If an application for certification of an employee organization as the bargaining agent for a proposed bargaining unit has been denied by the Board, the Board may not consider a new application for certification from that employee organization in respect of the same or substantially the same proposed bargaining unit until at least six months have elapsed from the day on which the employee organization was last denied certification, unless the Board is satisfied that the previous application was denied by reason only of a technical error or omission made in connection with the application.

• Marginal note:Membership in council of employee organizations

  (3) For the purpose of paragraph (1)(a), membership in any employee organization that forms part of a council of employee organizations is deemed to be membership in the council.

Marginal note:Representation vote

• 65. (1) The Board may order that a representation vote be taken among the employees in the bargaining unit for the purpose of satisfying itself that a majority of them wish the applicant employee organization to represent them as their bargaining agent.

• Marginal note:Arrangements for vote

  (2) When the Board orders that a representation vote be taken, it must

  • (a) determine the employees who are eligible to vote; and

  • (b) make any arrangements and give any directions that it considers necessary for the proper conduct of the vote, including the preparation of ballots, the method of casting and counting ballots and the custody and sealing of ballot boxes.

Where Certification Prohibited

Marginal note:Employer participation

• 66. (1) The Board may not certify an employee organization as a bargaining agent if it is of the opinion that the employer, or a person acting on behalf of the employer, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit for which it is proposed to be certified.

• Marginal note:Discrimination

  (2) The Board may not certify an employee organization as a bargaining agent if it discriminates against any employee on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.

Effect of Certification

Marginal note:Effect of certification

67. Certification of an employee organization as the bargaining agent for a bargaining unit has the following effects:

• (a) the employee organization has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit;

• (b) the certification of any employee organization that was previously certified as the bargaining agent for any employees in the bargaining unit is deemed to be revoked to the extent that the certification relates to those employees;

• (c) the employee organization is substituted as a party to any collective agreement or arbitral award that affects any employees in the bargaining unit, to the extent that the agreement or award relates to those employees, in the place of the bargaining agent named in the collective agreement or its successor;

• (d) the employee organization is deemed to be the bargaining agent for the purposes of section 107; and

• (e) the employee organization is substituted as a party to any essential services agreement that is in force, in the place of the bargaining agent named in the agreement or its successor.

Marginal note:Termination of existing collective agreement or arbitral award

68. An employee organization that is certified as the bargaining agent for a bargaining unit may, despite anything contained in any collective agreement or arbitral award that is binding on any employees in the bargaining unit on the day of certification, terminate the agreement or award, in so far as it applies to the employees in the bargaining unit, on two months’ notice to the employer given within one month from the day of certification.

Marginal note:Rights of previous or new bargaining agent

69. Any question as to any right or duty of the previous bargaining agent or the new bargaining agent arising by reason of the application of paragraph 67(b) or (c) or section 68 must, on application by the employer or the previous or new bargaining agent, be determined by the Board.

Changes to Certification

Review of Bargaining Units

Marginal note:Review of structure of bargaining units

• 70. (1) If the Board reviews the structure of one or more bargaining units, it must, in determining whether a group of employees constitutes a unit appropriate for collective bargaining, have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

• Marginal note:Unit co-extensive with occupational groups

  (2) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.

Managerial or Confidential Positions

Marginal note:Application

• 71. (1) The employer may apply to the Board for an order declaring that any position of an employee in a bargaining unit for which a bargaining agent has been certified by the Board is a managerial or confidential position on the grounds that the position is a position referred to in any of paragraphs 59(1)(a) to (h).

• Marginal note:Content of application

  (2) The application must set out every position the employer considers to be a position referred to in any of paragraphs 59(1)(a) to (h).

Marginal note:Copy to bargaining agent

72. The employer must provide the bargaining agent with a copy of the application.

Marginal note:Objection

73. If the bargaining agent considers that a particular position in the employer’s application is not a position referred to in any of paragraphs 59(1)(a) to (h), it may file an objection in respect of that position with the Board.

Marginal note:Decision on objection

• 74. (1) If an objection is filed in respect of a particular position included in the application, the Board must, after giving the employer and the bargaining agent an opportunity to make representations, determine whether the position is a position referred to in any paragraphs 59(1)(a) to (h) and, if it determines that it is, make an order declaring the position to be a managerial or confidential position.

• Marginal note:Burden of proof on bargaining agent

  (2) The burden of proving that a particular position is not a position referred to in any of paragraphs 59(1)(a) to (c) is on the bargaining agent.

• Marginal note:Burden of proof on employer

  (3) The burden of proving that a particular position is a position referred to in any of paragraphs 59(1)(d) to (h) is on the employer.

Marginal note:When no objection filed

75. If no objection is filed in respect of a particular position included in the application, the Board must make an order declaring the position to be a managerial or confidential position.

Marginal note:Membership dues

• 76. (1) If an objection is filed under section 73, the employer must hold the amount that would otherwise be the membership dues in respect of the occupant of the position to which the objection relates until the Board makes an order declaring the position to be a managerial or confidential position, until it dismisses the application in respect of the position or until the objection is withdrawn, as the case may be.

• Marginal note:Remission of dues to occupant of position

  (2) If the Board makes an order declaring the position to be a managerial or confidential position or the objection is withdrawn, the amount held by the employer under subsection (1) must be remitted to the person to whom it relates.

• Marginal note:Remission of dues to bargaining agent

  (3) If the Board makes an order dismissing the application in respect of the position, the amount held by the employer under subsection (1) must be remitted to the bargaining agent.

Marginal note:Application for revocation of order

• 77. (1) If the bargaining agent considers that a position is no longer a managerial or confidential position, the bargaining agent may apply to the Board for an order revoking the order that declared that position to be a managerial or confidential position.

• Marginal note:Copy to employer

  (2) The bargaining agent must provide the employer with a copy of the application.

Marginal note:Decision

• 78. (1) If an application is made under section 77, the Board must, after giving the employer and the bargaining agent an opportunity to make representations, determine whether the position is still a managerial or confidential position and, if it determines that it is not, make an order revoking the order that declared the position to be a managerial or confidential position.

• Marginal note:Burden of proof on bargaining agent

  (2) The burden of proving that a particular position is no longer a managerial or confidential position is on the bargaining agent.

Successor Rights and Obligations

Marginal note:Mergers, amalgamations and transfers of jurisdiction

• 79. (1) If, by reason of a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations, other than as a result of a revocation of certification, an employee organization succeeds another one that, at the time of the merger, amalgamation or transfer of jurisdiction, is a bargaining agent, the successor is deemed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement, an arbitral award, an essential services agreement or otherwise.

• Marginal note:Board to determine questions

  (2) If any question arises in respect of a merger, amalgamation or transfer of jurisdiction referred to in subsection (1) concerning the rights, privileges and duties of an employee organization under this Part or under a collective agreement, an arbitral award or an essential services agreement in respect of a bargaining unit or an employee in a bargaining unit, the Board, on application by the employer or any person or employee organization concerned, must determine what rights, privileges and duties have been acquired or are retained.

• Marginal note:Inquiry and votes

  (3) Before making a determination on the application, the Board may make any inquiry or direct that a representation vote be taken among the employees to be affected by the determination. The provisions of subsection 65(2) apply in relation to the taking of the vote.

Marginal note:Definitions

80. The following definitions apply in this section and sections 81 to 93.

“conversion”

« conversion »

“conversion” means the establishment as a separate agency, or the integration into a separate agency, of any portion, or part of a portion, of the core public administration.

“new separate agency”

« nouvel organisme distinct »

“new separate agency” means a separate agency established as a result of a conversion or into which is integrated any portion, or part of a portion, of the core public administration as the result of a conversion.

Marginal note:Continuation of collective agreement or arbitral award

81. Subject to sections 83 to 93, a collective agreement or arbitral award that applies to employees in any portion, or part of a portion, of the core public administration before its conversion continues in force after the conversion, and binds the new separate agency, until its term expires.

Marginal note:Parties may amend

82. Nothing in section 81 prohibits the new separate agency and the bargaining agent from amending any provision of a collective agreement, other than a provision relating to its term.

Marginal note:Application for certification

83. An employee organization may apply to the Board for certification as the bargaining agent for the employees bound by a collective agreement or arbitral award that is continued in force by section 81, but it may do so only during the period in which an application for certification is authorized to be made under section 55 in respect of those employees.

Marginal note:Power of Board

• 84. (1) Whenever a collective agreement or arbitral award is continued in force by section 81, the Board must, by order, on application by the new separate agency or any bargaining agent affected by the conversion,

  • (a) determine whether the employees of the new separate agency who are bound by any collective agreement or arbitral award constitute one or more units appropriate for collective bargaining;

  • (b) determine which employee organization is to be the bargaining agent for the employees in each such unit; and

  • (c) in respect of each collective agreement or arbitral award that binds employees of the new separate agency, determine whether the collective agreement or arbitral award is to remain in force and, if it is to remain in force, determine whether it is to remain in force until the expiration of its term or until any earlier date that the Board may fix.

• Marginal note:When application may be made

  (2) The application may be made only during the period beginning 120 days and ending 150 days after the conversion date.

Marginal note:Application for leave to give notice to bargain collectively

• 85. (1) Either party to a collective agreement or arbitral award that remains in force by reason of an order made under paragraph 84(1)(c) may apply to the Board for an order granting leave to give to the other party, under section 105, a notice to bargain collectively.

• Marginal note:When application may be made

  (2) The application must be made within 90 days after the day on which the order is made.

Marginal note:Application for leave to give notice to bargain collectively

• 86. (1) If no application for an order under subsection 84(1) is made within the period specified in subsection 84(2), the new separate agency or any bargaining agent bound by a collective agreement or arbitral award that is continued in force by section 81 may apply to the Board for an order granting leave to give to the other party, under section 105, a notice to bargain collectively.

• Marginal note:When application may be made

  (2) The application may be made only during the period beginning 151 days and ending 240 days after the date of the conversion.

Marginal note:Notice to bargain given before conversion

87. A notice to bargain collectively that was given before a conversion does not bind the new separate agency and a new notice to bargain collectively may be given only in the circumstances described in paragraph 89(b).

Marginal note:Duty to observe terms and conditions

88. If a notice to bargain collectively was given before a conversion, then, unless the new separate agency and the bargaining agent agree otherwise, the terms and conditions of employment continued in force by section 107 are binding on the new separate agency, the bargaining agent for the bargaining unit and the employees in the bargaining unit from the date of the conversion until

• (a) the expiry of 150 days following the date of the conversion, if no application is made under paragraph 89(a); or

• (b) if such an application is made, the day the notice referred to in paragraph 89(b) is given.

Marginal note:Application and notice to bargain

89. If a notice to bargain collectively was given before a conversion,

• (a) on application by the new separate agency or bargaining agent, made during the period beginning 120 days, and ending 150 days, after the date of the conversion, the Board must make an order determining

  • (i) whether the employees of the new separate agency who are represented by the bargaining agent constitute one or more units appropriate for collective bargaining, and

  • (ii) which employee organization is to be the bargaining agent for the employees in each such unit; and

• (b) if the Board makes the determinations under paragraph (a), the new separate agency or the bargaining agent may, by notice given under section 105, require the other to commence collective bargaining for the purpose of entering into a collective agreement.

Marginal note:Inquiry and votes

90. Before making an order under subsection 84(1) or paragraph 89(a), the Board may make any inquiry or direct that a representation vote be taken among the employees to be affected by the order. The provisions of subsection 65(2) apply in relation to the taking of a vote.

Marginal note:Consideration of employer’s classification

• 91. (1) For the purposes of paragraphs 84(1)(a) and 89(a), in determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board must have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

• Marginal note:Unit co-extensive with occupational groups

  (2) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.

Marginal note:Determination of questions of membership in bargaining units

92. On application by the new separate agency or the employee organization affected, the Board must determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board under paragraph 84(1)(a) or 89(a) to constitute a unit appropriate for collective bargaining, or is included in any other unit.

Marginal note:Employer participation

• 93. (1) The Board may not declare an employee organization to be a bargaining agent under paragraph 84(1)(b) or 89(a) if it is of the opinion that the new separate agency, or a person acting on behalf of the new separate agency, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit.

• Marginal note:Discrimination

  (2) The Board may not declare an employee organization to be a bargaining agent under paragraph 84(1)(b) or 89(a) if it discriminates against any employee on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.

Revocation of Certification

Marginal note:When employee organization no longer represents employees

• 94. (1) Any person claiming to represent a majority of the employees in a bargaining unit bound by a collective agreement or an arbitral award may apply to the Board for a declaration that the employee organization that is certified as the bargaining agent for the bargaining unit no longer represents a majority of the employees in the bargaining unit.

• Marginal note:When application may be made

  (2) The application may be made only during the period in which an application for certification of an employee organization may be made under section 55 in respect of employees in the bargaining unit.

Marginal note:Taking of representation vote

95. After the application is made, the Board may order that a representation vote be taken in order to determine whether a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization that is the bargaining agent for that bargaining unit. The provisions of subsection 65(2) apply in relation to the taking of the vote.

Marginal note:Revocation of certification

96. If, after hearing the application, the Board is satisfied that a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization, it must revoke the certification of the employee organization as the bargaining agent.

Marginal note:Certification obtained by fraud

97. The Board must revoke the certification of an employee organization if the Board is satisfied that it was obtained by fraud.

Marginal note:Employer participation or discrimination

98. The Board must revoke the certification of an employee organization as the bargaining agent for a bargaining unit if the Board, on application by the employer or any employee, determines that

• (a) the employer, or a person acting on behalf of the employer, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit; or

• (b) the employee organization discriminates against any employee on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.

Marginal note:Abandonment of certification

99. The Board must revoke the certification of an employee organization if the employee organization advises the Board that it wishes to give up or abandon its certification or if the Board, on application by the employer or any employee, determines that the employee organization has ceased to act as bargaining agent.

Marginal note:Council of employee organizations

• 100. (1) The Board must revoke the certification of a council of employee organizations that has been certified as a bargaining agent if the Board is satisfied, on application by the employer or an employee organization that forms or has formed part of the council, that the council no longer meets the condition for certification set out in paragraph 64(1)(c) for a council of employee organizations.

• Marginal note:Subsection (1) in addition to other circumstances

  (2) The circumstances set out in subsection (1) apply in addition to the circumstances in which a certification may be revoked under sections 94 to 99.

Marginal note:Effect of revocation

• 101. (1) Revocation of the certification of an employee organization certified as the bargaining agent for a bargaining unit has the following effects:

  • (a) subject to paragraph 67(c), any collective agreement or arbitral award that is binding on the employees in the bargaining unit ceases to be in force;

  • (b) subject to subsection (2), any rights or privileges flowing from the certification are terminated; and

  • (c) subject to paragraph 67(e), any essential services agreement that is in force in respect of positions in the bargaining unit ceases to be in force.

• Marginal note:Determination of rights of bargaining agent

  (2) If the certification of an employee organization is revoked by the Board under section 96 or any of sections 98 to 100, the Board must, on application by the employee organization or any employee organization that is substituted in the place of a bargaining agent under paragraph 67(c), determine any question as to any right or duty of the employee organization or of the substituted employee organization.

Marginal note:Direction

102. If a collective agreement or arbitral award ceases to be in force as a result of the revocation of an employee organization’s certification as the bargaining agent for a bargaining unit, the Board must, on application by or on behalf of any employee in the bargaining unit, by order, direct the manner in which any right of the employee is to be recognized and given effect.

Division 6Choice of Process for Dispute Resolution

Marginal note:Choice of process

• 103. (1) A bargaining agent for a bargaining unit must notify the Board, in accordance with the regulations, of the process it has chosen — either arbitration or conciliation — to be the process for the resolution of disputes to which it may be a party.

• Marginal note:Recording of process

  (2) The Board must record the process chosen by the bargaining agent for the resolution of disputes.

• Marginal note:Period during which process to apply

  (3) The process recorded by the Board applies to the bargaining unit for the resolution of all disputes from the day on which a notice to bargain collectively in respect of the bargaining unit is given after the process is chosen, and it applies until the process is changed in accordance with section 104.

Marginal note:Change of process

• 104. (1) A bargaining agent for a bargaining unit that wishes to change the process for the resolution of a dispute that is applicable to the bargaining unit may apply to the Board, in accordance with the regulations, to record the change.

• Marginal note:Recording of change

  (2) On receiving the application, the Board must record the change of process.

• Marginal note:Effective date and duration

  (3) A change in the process for the resolution of a dispute becomes effective on the day that a notice to bargain collectively is given after the change is recorded and remains in force until the process is changed in accordance with this section.

Division 7Collective Bargaining and Collective Agreements

Negotiation of Collective Agreements

Notice to Bargain Collectively

Marginal note:Notice to bargain collectively

• 105. (1) After the Board has certified an employee organization as the bargaining agent for a bargaining unit and the process for the resolution of a dispute applicable to that bargaining unit has been recorded by the Board, the bargaining agent or the employer may, by notice in writing, require the other to commence bargaining collectively with a view to entering into, renewing or revising a collective agreement.

• Marginal note:When notice may be given

  (2) The notice to bargain collectively may be given

  • (a) at any time, if no collective agreement or arbitral award is in force and no request for arbitration has been made by either of the parties in accordance with this Part; or

  • (b) if a collective agreement or arbitral award is in force, within the four months before it ceases to be in force.

• Marginal note:Copy of notice to Board

  (3) A party that has given a notice to bargain collectively to another party must send a copy of the notice to the Board.

Effect of Notice

Marginal note:Duty to bargain in good faith

106. After the notice to bargain collectively is given, the bargaining agent and the employer must, without delay, and in any case within 20 days after the notice is given unless the parties otherwise agree,

• (a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

• (b) make every reasonable effort to enter into a collective agreement.

Marginal note:Duty to observe terms and conditions

107. Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

• (a) if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or

• (b) if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

Mediation

Marginal note:Appointment of mediator

• 108. (1) The Chairperson may at any time, if requested to do so or on his or her own initiative, appoint a mediator to confer with the parties to a dispute and to endeavour to assist them in settling the dispute by any means that the mediator considers appropriate, including mediation, facilitation and fact-finding, subject to any direction that the Chairperson may give.

• Marginal note:Recommendations

  (2) At the request of the parties or the Chairperson, the mediator may make recommendations for settlement of the dispute.

Collective Bargaining for Two or More Units

Marginal note:Negotiation of single collective agreement

• 109. (1) Despite any other provision of this Part, the employer and one or more bargaining agents may jointly elect to engage in collective bargaining with a view to entering into a single collective agreement binding on two or more bargaining units.

• Marginal note:Election not changeable

  (2) If made, the election may not be changed until the single collective agreement is entered into.

Two-tier Bargaining

Marginal note:Two-tier bargaining

• 110. (1) Subject to the other provisions of this Part, the employer, the bargaining agent for a bargaining unit and the deputy head for a particular department named in Schedule I to the Financial Administration Act or for another portion of the federal public administration named in Schedule IV to that Act may jointly elect to engage in collective bargaining respecting any terms and conditions of employment in respect of any employees in the bargaining unit who are employed in that department or other portion of the federal public administration.

• Marginal note:More than one department or portion

  (2) Collective bargaining under subsection (1) may relate to more than one department or other portion of the federal public administration if each of the deputy heads concerned elects to engage in the collective bargaining.

• Marginal note:Duty to bargain in good faith

  (3) The parties who elect to bargain collectively under subsection (1) must, without delay after the election,

  • (a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

  • (b) make every reasonable effort to reach agreement on the terms and conditions of employment in question.

Collective Agreements

Authority to Enter into Agreement

Marginal note:Authority of Treasury Board

111. The Treasury Board may, in the manner that may be provided for by any rules or procedures determined by it under section 5 of the Financial Administration Act, enter into a collective agreement with the bargaining agent for a bargaining unit, other than a bargaining unit composed of employees of a separate agency.

Marginal note:Authority of separate agency

112. A separate agency may, with the approval of the Governor in Council, enter into a collective agreement with the bargaining agent for a bargaining unit composed of employees of the separate agency.

Restriction on Content of Collective Agreement

Marginal note:Collective agreement not to require legislative implementation

113. A collective agreement may not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if

• (a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition; or

• (b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act.

Duration and Effect

Marginal note:Agreement is binding

114. Subject to, and for the purposes of, this Part, a collective agreement is binding on the employer, the bargaining agent and every employee in the bargaining unit on and after the day on which it has effect. To the extent that the collective agreement deals with matters referred to in section 12 of the Financial Administration Act, the collective agreement is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.

Marginal note:When agreement has effect

115. A collective agreement has effect in respect of a bargaining unit as of

• (a) the effective date specified in it; or

• (b) if no effective date is specified, the first day of the month after the month in which the agreement is signed.

Marginal note:Minimum duration

116. A collective agreement is deemed to have effect for one year, unless a longer period is specified in the collective agreement.

Marginal note:Duty to implement provisions of the collective agreement

117. Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement

• (a) within the period specified in the collective agreement for that purpose; or

• (b) if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set.

Amendments

Marginal note:Parties may amend

118. Nothing in this Part prohibits parties from amending any provision of a collective agreement, other than a provision relating to its term.

Division 8Essential Services

Marginal note:Application of Division

119. This Division applies to the employer and the bargaining agent for a bargaining unit when the process for the resolution of a dispute applicable to the bargaining unit is conciliation.

Marginal note:Employer determines levels of service

120. The employer has the exclusive right to determine the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided. Nothing in this Division is to be construed as limiting that right.

Marginal note:Proportion of duties may vary during strike

• 121. (1) For the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, the employer and the bargaining agent may agree that some employees in the bargaining unit will be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

• Marginal note:Determination of number of necessary employees

  (2) For the purposes of subsection (1), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

  • (a) without regard to the availability of other persons to provide the essential service during a strike; and

  • (b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

Marginal note:Obligation to negotiate

• 122. (1) If the employer has given to the bargaining agent a notice in writing that the employer considers that employees in the bargaining unit occupy positions that are necessary for the employer to provide essential services, the employer and the bargaining agent must make every reasonable effort to enter into an essential services agreement as soon as possible.

• Marginal note:Timing

  (2) The notice may be given at any time but not later than 20 days after the day a notice to bargain collectively is given.

Marginal note:Application to the Board

• 123. (1) If the employer and the bargaining agent are unable to enter into an essential services agreement, either of them may apply to the Board to determine any unresolved matter that may be included in an essential services agreement. The application may be made at any time but not later than

  • (a) 15 days after the day a request for conciliation is made by either party; or

  • (b) 15 days after the day the parties are notified by the Chairperson under subsection 163(2) of his or her intention to recommend the establishment of a public interest commission.

• Marginal note:Delay

  (2) The Board may delay dealing with the application until it is satisfied that the employer and the bargaining agent have made every reasonable effort to enter into an essential services agreement.

• Marginal note:Powers of Board

  (3) After considering the application, the Board may determine any matter that the employer and the bargaining agent have not agreed on that may be included in an essential services agreement and make an order

  • (a) deeming the matter determined by it to be part of an essential services agreement between the employer and the bargaining agent; and

  • (b) deeming that the employer and the bargaining agent have entered into an essential services agreement.

• Marginal note:Restriction

  (4) The order may not require the employer to change the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided.

• Marginal note:Proportion of duties may vary during strike

  (5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform those of their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

• Marginal note:Determination of number of necessary employees

  (6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

  • (a) without regard to the availability of other persons to provide the essential service during a strike; and

  • (b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

• Marginal note:Application relating to specific position

  (7) If the application relates to a specific position to be identified in the essential services agreement, the employer’s proposal in respect of the position is to prevail, unless the position is determined by the Board not to be of the type necessary for the employer to provide essential services.

Marginal note:Coming into force of agreement

124. The essential services agreement comes into force on the day it is signed by the parties or, in the case of an essential services agreement that the employer and the bargaining agent are deemed to have entered into by an order made under paragraph 123(3)(b), the day the order was made.

Marginal note:Duration

125. An essential services agreement continues in force until the parties jointly determine that there are no employees in the bargaining unit who occupy positions that are necessary for the employer to provide essential services.

Marginal note:Notice to negotiate amendment

• 126. (1) If a party to an essential services agreement gives a notice in writing to the other party that the party giving the notice seeks to amend the essential services agreement, the parties must make every reasonable effort to amend it as soon as possible.

• Marginal note:Timing

  (2) If a collective agreement or arbitral award is in force, the notice may be given at any time except that, if a notice to bargain collectively has been given with a view to renewing or revising the collective agreement, the notice may only be given during the 60 days following the day the notice to bargain collectively was given.

Marginal note:Application to Board

• 127. (1) If the employer and the bargaining agent are unable to amend the essential services agreement, either of them may apply to the Board to amend the essential services agreement. The application may be made at any time but not later than

  • (a) 15 days after the day a request for conciliation is made by either party; or

  • (b) 15 days after the day the parties are notified by the Chairperson under subsection 163(2) of his or her intention to recommend the establishment of a public interest commission.

• Marginal note:Delay

  (2) The Board may delay dealing with the application until it is satisfied that the employer and the bargaining agent have made every reasonable effort to amend the essential services agreement.

• Marginal note:Amendment by Board

  (3) The Board may, by order, amend the essential services agreement if it considers that the amendment is necessary for the employer to provide essential services.

• Marginal note:Restriction

  (4) The order may not require the employer to change the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided.

• Marginal note:Proportion of duties may vary during strike

  (5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

• Marginal note:Determination of number of necessary employees

  (6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

  • (a) without regard to the availability of other persons to provide the essential service during a strike; and

  • (b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

• Marginal note:Application relating to specific position

  (7) If the application relates to a specific position to be identified in the essential services agreement, the employer’s proposal in respect of the position is to prevail, unless the position is determined by the Board not to be of the type necessary for the employer to provide essential services.

Marginal note:Coming into force of amendment

128. An amendment to an essential services agreement comes into force on the day the agreement containing the amendment is signed by the parties or, in the case of an amendment made by order of the Board under subsection 127(3), the day the order was made.

Marginal note:Replacement positions

• 129. (1) If, at any time while an essential services agreement is in force, a position identified in it becomes vacant, the employer may identify a position of the same type as a replacement position. If the employer does so, the employer must file a notice of replacement with the Board and provide a copy to the bargaining agent.

• Marginal note:Effect of notice

  (2) On the filing of the notice, the replacement position is deemed to be a position identified in the essential services agreement and the position it replaced is deemed to be no longer identified.

Marginal note:Notification of employees

• 130. (1) The employer must provide every employee who occupies a position that has been identified in an essential services agreement as being a position that is necessary for the employer to provide essential services with a notice informing the employee that the employee occupies such a position.

• Marginal note:Notification of change

  (2) A notice given under this section remains valid so long as the employee continues to occupy the position unless the employer notifies the employee that the position occupied by the employee is no longer necessary for the employer to provide essential services.

Marginal note:Emergency application

131. Despite any provision in this Division, if either the employer or the bargaining agent is of the opinion that a temporary amendment to an essential services agreement, or its suspension, is necessary because of an emergency but the parties are unable to agree to do so, either of them may, at any time, apply to the Board for an order temporarily amending, or suspending, the agreement.

Marginal note:Duty to observe terms and conditions

132. Unless the parties otherwise agree, every term and condition of employment applicable to employees in a bargaining unit in respect of which a notice to bargain collectively is given that may be included in a collective agreement and that is in force on the day the notice is given remains in force in respect of any employee who occupies a position that is identified in an essential services agreement and must be observed by the employer, the bargaining agent for the bargaining unit and the employee until a collective agreement is entered into.

Marginal note:Extension of time

133. The Board may, on the application of either party, extend any period referred to in this Division.

Marginal note:Filing of essential services agreement

134. Either party to an essential services agreement may file a copy of it with the Board. When filed, it has the same effect as an order of the Board.

Division 9Arbitration

Application of Division

Marginal note:Application

135. This Division applies to the employer and the bargaining agent for a bargaining unit whenever

• (a) the process for the resolution of a dispute applicable to the bargaining unit is arbitration; and

• (b) the parties have bargained in good faith with a view to entering into a collective agreement but are unable to reach agreement on a term or condition of employment that may be included in an arbitral award.

Request for Arbitration

Marginal note:Request for arbitration

• 136. (1) Either party may, by notice in writing to the Chairperson, request arbitration in respect of any term or condition of employment that may be included in an arbitral award.

• Marginal note:When request may be made

  (2) The request may be made

  • (a) at any time, if the parties have not entered into a collective agreement and no request for arbitration has been made by either party since the commencement of the bargaining; or

  • (b) not later than seven days after a collective agreement is entered into by the parties, in any other case.

• Marginal note:Contents of notice

  (3) The party requesting arbitration must

  • (a) specify in the notice every term or condition of employment in respect of which it requests arbitration and its proposals concerning the award to be made in respect of that term or condition; and

  • (b) annex to the notice a copy of the most recent collective agreement entered into by the parties.

• Marginal note:Notice to other party

  (4) On receiving the notice, the Chairperson must send a copy to the other party.

• Marginal note:Request for arbitration of additional matters

  (5) The other party may, within seven days after receiving the copy, by notice in writing to the Chairperson, request arbitration in respect of any other term or condition of employment that may be included in an arbitral award and that remained in dispute when the first request for arbitration was made.

• Marginal note:Notice to include proposal

  (6) The party making the request under subsection (5) must specify in the notice its proposal concerning the award to be made in respect of every term or condition of employment in respect of which it requests arbitration.

Establishment of Arbitration Board

Marginal note:Establishment

• 137. (1) On receiving a request for arbitration, the Chairperson must establish an arbitration board for arbitration of the matters in dispute.

• Marginal note:Delay

  (2) The Chairperson may delay establishing an arbitration board until he or she is satisfied that the party making the request has bargained sufficiently and seriously with respect to the matters in dispute.

Marginal note:Constitution

138. The arbitration board consists of either a single member or three members, appointed in accordance with section 139 or 140, as the case may be.

Marginal note:Board with single member

139. If the parties jointly recommend the appointment of a person to be an arbitration board consisting of a single member, the Chairperson must appoint the person to be the arbitration board.

Marginal note:Board with three members

• 140. (1) If either party requests that an arbitration board consisting of three members be established, the Chairperson must, by notice, require each of the parties, within seven days after receipt of the notice, to nominate a person to be a member of the arbitration board, and on receipt of the nominations, the Chairperson must appoint the nominated persons as members of the arbitration board.

• Marginal note:Failure to nominate

  (2) If a party fails to nominate a person within the time provided for in subsection (1) or nominates a person who is not eligible for appointment, the Chairperson must appoint as a member of the arbitration board a person whom he or she considers suitable, and that person is deemed to have been appointed on the nomination of that party.

• Marginal note:Appointment of chairperson nominated by parties

  (3) Within five days after the day on which the second member is appointed, the two members must nominate a third person who is eligible for appointment and ready and willing to act, to be chairperson and third member of the arbitration board, and the Chairperson must appoint that person as the chairperson and third member of the arbitration board.

• Marginal note:Failure to nominate

  (4) If the two members fail to make a nomination under subsection (3) or they nominate a person who is not eligible for appointment, the Chairperson must, without delay, appoint as the chairperson and third member of the arbitration board a person whom he or she considers suitable.

Marginal note:Eligibility

141. No person may act as a member of an arbitration board in respect of a matter referred to arbitration if the person has, at any time during the six months before the person’s date of appointment, acted in respect of any matter concerning employer-employee relations as counsel or agent of the employer or of any employee organization that has an interest in the matter referred to arbitration.

Marginal note:Notification of establishment

• 142. (1) The Chairperson must, without delay, notify the parties of the establishment of the arbitration board and of the name or names of its member or members, as the case may be.

• Marginal note:Effect of notification

  (2) The notification constitutes conclusive proof that the arbitration board has been established in accordance with this Part and, after it is given, no order may be made or process entered into, and no proceedings may be taken in any court, to question the establishment of the board or to review, prohibit or restrain any of its proceedings.

Marginal note:Death, incapacity or resignation of single member

• 143. (1) In the event of the death, incapacity or resignation of the member of an arbitration board that consists of a single member before the arbitration board makes an arbitral award, the Chairperson must appoint another person in accordance with section 139. That person must recommence the arbitration proceedings from the beginning.

• Marginal note:Vacancy — board with three members

  (2) If a vacancy occurs in the membership of an arbitration board that consists of three members before the arbitration board makes an arbitral award, the vacancy must be filled by the Chairperson by appointment in the manner provided in section 140 for the selection of the person in respect of whom the vacancy arose.

Referral to Arbitration

Marginal note:Referral to arbitration

• 144. (1) Subject to section 150, after establishing the arbitration board, the Chairperson must without delay refer the matters in dispute to the board.

• Marginal note:Subsequent agreement

  (2) If, before an arbitral award is made, the parties reach agreement on any matter in dispute that is referred to arbitration and enter into a collective agreement in respect of that matter, that matter is deemed not to have been referred to the arbitration board and no arbitral award may be made in respect of it.

Duty and Powers

Marginal note:Assistance to parties

145. As soon as possible after being established, the arbitration board must endeavour to assist the parties to the dispute in entering into or revising a collective agreement.

Marginal note:Procedure

• 146. (1) Except as otherwise provided in this Part, the arbitration board may determine its own procedure, including the date, time and place of its proceedings, but both parties must be given a full opportunity to present evidence and make representations.

• Marginal note:Quorum and absence of members

  (2) The chairperson of the arbitration board and one other member constitute a quorum in the case of an arbitration board consisting of three members but, in the absence of a member at any proceedings of the board, the other members may not proceed unless the absent member has been given reasonable notice of the proceedings.

Marginal note:Powers

• 147. (1) The arbitration board has all the powers of the Board set out in paragraphs 40(1)(a), (d), (e) and (h) to (j).

• Marginal note:Delegation

  (2) The arbitration board may authorize any person to exercise any of its powers set out in paragraphs 40(1)(d), (e), (i) and (j) and require that person to report to it on the exercise of those powers.

Marginal note:Factors to be considered

148. In the conduct of its proceedings and in making an arbitral award, the arbitration board must take into account the following factors, in addition to any other factors that it considers relevant:

• (a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

• (b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the arbitration board considers relevant;

• (c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

• (d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

• (e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.

Making of Arbitral Award

Marginal note:Making of arbitral award

• 149. (1) The arbitration board must make an arbitral award as soon as possible in respect of all the matters in dispute that are referred to it.

• Marginal note:Award to be signed

  (2) The arbitral award must be signed by the chairperson of the arbitration board, or by the single member, as the case may be, and a copy must be sent to the Chairperson.

Marginal note:Award not to require legislative implementation

• 150. (1) The arbitral award may not, directly or indirectly, alter or eliminate any existing term or condition of employment, or establish any new term or condition of employment, if

  • (a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition;

  • (b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act;

  • (c) the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees;

  • (d) in the case of a separate agency, the term or condition relates to termination of employment, other than termination of employment for a breach of discipline or misconduct; or

  • (e) doing so would affect the organization of the public service or the assignment of duties to, and the classification of, positions and persons employed in the public service.

• Marginal note:Matters not negotiated

  (2) The arbitral award may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before arbitration was requested.

Marginal note:Decision of majority

• 151. (1) If the arbitration board consists of three members, a decision of a majority of the members in respect of the matters in dispute is a decision of the board on those matters and is the arbitral award in respect of those matters.

• Marginal note:Decision where majority cannot agree

  (2) If a majority of members of the arbitration board cannot agree in respect of the matters in dispute, the decision of the chairperson of the board is the arbitral award in respect of those matters.

Marginal note:Form of award

152. The form of the arbitral award must, wherever possible, permit the award to be

• (a) read and interpreted with, or annexed to and published with, a collective agreement dealing with other terms and conditions of employment of the employees in the bargaining unit in respect of which the arbitral award applies; and

• (b) incorporated into and implemented by any instrument that may be required to be made by the employer or the relevant bargaining agent in respect of the arbitral award.

Marginal note:Copy sent to parties

153. On receipt of a copy of the arbitral award, the Chairperson must, without delay, send a copy to the parties and may cause the award to be published in any manner that the Chairperson considers appropriate.

Duration and Operation of Arbitral Award

Marginal note:Binding effect

154. Subject to and for the purposes of this Part, as of the day on which it is made, the arbitral award binds the employer and the bargaining agent that are parties to it and the employees in the bargaining unit in respect of which the bargaining agent has been certified. To the extent that it deals with matters referred to in section 12 of the Financial Administration Act, the arbitral award is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.

Marginal note:When arbitral award has effect

• 155. (1) The arbitral award has effect as of the day on which it is made or, subject to subsection (2), any earlier or later day that the arbitration board may determine.

• Marginal note:Limitation on retroactive effect

  (2) The arbitral award or any of its parts may be given retroactive effect, but not earlier than the day notice to bargain collectively was given.

• Marginal note:Effect on previous collective agreement or award

  (3) If a provision of an arbitral award is to have retroactive effect, the provision displaces, for the retroactive period specified in the arbitral award, any term or condition of any previous collective agreement or arbitral award with which it is in conflict.

Marginal note:Term of arbitral award

• 156. (1) The arbitration board must determine the term of the arbitral award and set it out in the arbitral award.

• Marginal note:Factors

  (2) In determining the term of an arbitral award, the arbitration board must take the following into account:

  • (a) if a collective agreement applicable to the bargaining unit is in force or has been entered into but is not yet in force, the term of that collective agreement; or

  • (b) if no collective agreement applying to the bargaining unit has been entered into,

    • (i) the term of any previous collective agreement that applied to the bargaining unit, or

    • (ii) the term of any other collective agreement that it considers relevant.

• Marginal note:Limitation on term

  (3) An arbitral award may not be for a term of less than one year or more than two years from the day on which it becomes binding on the parties, unless the arbitration board determines otherwise in any case where paragraph (2)(a) or (b) applies.

Implementation

Marginal note:Duty to implement provisions of the arbitral award

157. Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.

Matters Not Dealt With

Marginal note:Reference of matters not dealt with

158. Any party that considers that the arbitration board has failed to deal with a matter in dispute that was referred to arbitration may, within seven days after the day on which the arbitral award is made, refer the matter back to the arbitration board which must then deal with it.

Amendment

Marginal note:Amendment

159. The Board may, on the joint application of both parties to whom an arbitral award applies, amend any provision of the arbitral award if it considers that the amendment is warranted having regard to circumstances that have arisen since the making of the arbitral award, or of which the arbitration board did not have notice when the award was made, or to any other circumstances that the Board considers relevant.

Division 10Conciliation

Application of Division

Marginal note:Application

160. This Division applies to the employer and the bargaining agent for a bargaining unit whenever

• (a) the process for the resolution of a dispute applicable to the bargaining unit is conciliation; and

• (b) the parties have bargained in good faith with a view to entering into a collective agreement, but are unable to reach agreement on a term or condition of employment that may be included in a collective agreement.

Request for Conciliation

Marginal note:Request for conciliation

• 161. (1) Either party may, by notice in writing to the Chairperson, request conciliation in respect of any term or condition of employment that may be included in a collective agreement.

• Marginal note:Contents of notice

  (2) The party requesting conciliation must

  • (a) specify in the notice the terms or conditions of employment in respect of which it requests conciliation, and its proposals concerning the report to be made in respect of that term or condition; and

  • (b) annex to the notice a copy of the most recent collective agreement entered into by the parties.

• Marginal note:Notice to other party

  (3) On receiving the notice, the Chairperson must send a copy to the other party.

• Marginal note:Request for conciliation of additional matters

  (4) The other party may, within seven days after receiving the copy, by notice in writing to the Chairperson, request conciliation in respect of any other term or condition of employment that may be included in a collective agreement and that remained in dispute when the first request for conciliation was made.

• Marginal note:Notice to include proposal

  (5) The party making the request under subsection (4) must specify in the notice its proposal concerning the report to be made in respect of the term or condition of employment in respect of which it requests conciliation.

Establishment of Public Interest Commission

Marginal note:Recommendation to establish

• 162. (1) Subject to subsection (3), on receiving a request for conciliation, the Chairperson must recommend to the Minister that a public interest commission be established for conciliation of the matters in dispute.

• Marginal note:Delay

  (2) The Chairperson may delay recommending the establishment of a public interest commission until satisfied that the party making the request has bargained sufficiently and seriously with respect to the matters in dispute.

• Marginal note:Refusal

  (3) If the Chairperson considers, after consultation with each of the parties, that the establishment of a public interest commission is unlikely to assist them in reaching agreement, the Chairperson must, without delay, notify the parties in writing that he or she will not recommend the establishment of such a commission.

Marginal note:Chairperson’s initiative

• 163. (1) The Chairperson may, on his or her own initiative, recommend to the Minister that a public interest commission be established for the conciliation of a dispute if he or she considers that establishing one might assist the parties in reaching agreement and that the parties are unlikely to reach agreement otherwise.

• Marginal note:Notice

  (2) Before acting under subsection (1), the Chairperson must notify the parties of his or her intention to do so.

Marginal note:Constitution

• 164. (1) The public interest commission consists of either a single member appointed in accordance with section 166 or, subject to subsection (2), three members, appointed in accordance with section 167.

• Marginal note:Request for commission of three members

  (2) The public interest commission is to consist of three members only if one of the parties requests it.

Marginal note:List

• 165. (1) For the purposes of sections 166 and 167, the Chairperson must, after consultation with the parties, prepare a list of names of persons who could be selected to act as a public interest commission that consists of a single member, or as the chairperson of a public interest commission that consists of three members.

• Marginal note:Contents

  (2) The list must set out

  • (a) the names of all eligible persons jointly recommended by the parties; and

  • (b) if the Chairperson is of the opinion that the parties have not jointly recommended a sufficient number of persons, the names of any other eligible persons whom the Chairperson considers suitable.

Marginal note:Commission with single member

• 166. (1) If the public interest commission is to consist of a single member, the Chairperson must submit to the Minister the list prepared under subsection 165(1). The Chairperson may, at his or her discretion, also recommend the appointment of a particular person named in the list.

• Marginal note:Appointment

  (2) After receiving the list, the Minister must, without delay, appoint a person named in the list.

Marginal note:Commission with three members

• 167. (1) If either party requests that the public interest commission consist of three members, the Chairperson must, by notice, require each of the parties, within seven days of its receipt, to nominate a person to be a member of the commission, and on receipt of the nominations, the Chairperson must recommend to the Minister the appointment of the nominated persons as members of the commission. The Minister must appoint those persons without delay.

• Marginal note:Failure to nominate

  (2) If a party fails to nominate a person within the time provided for in subsection (1) or nominates a person who is not eligible for appointment, the Chairperson must recommend to the Minister the appointment as a member of the public interest commission of a person whom he or she considers suitable. The Minister must appoint the person without delay and that person is deemed to have been appointed on the nomination of that party.

• Marginal note:Appointment of chairperson nominated by parties

  (3) Within five days after the day on which the second member is appointed, the two members must nominate to be chairperson and third member of the public interest commission a person from the list prepared under subsection 165(1), and the Chairperson must recommend to the Minister the appointment of that person. The Minister must appoint the person without delay as chairperson and third member of the commission.

• Marginal note:Failure to nominate

  (4) If the two members fail to make a nomination under subsection (3), the Chairperson must, without delay, submit to the Minister the list prepared under subsection 165(1). The Chairperson may, at his or her discretion, also recommend to the Minister the appointment of a particular person named in the list as the chairperson and third member of the public interest commission.

• Marginal note:Appointment

  (5) After receiving the list, the Minister must, without delay, appoint a person named in the list as the chairperson and third member of the public interest commission.

Marginal note:Eligibility

168. No person may act as a member of the public interest commission in respect of a matter referred to conciliation if the person has, at any time during the six months before their date of appointment, acted in respect of any matter concerning employer-employee relations as counsel or agent of the employer or of any employee organization that has an interest in the matter referred to conciliation.

Marginal note:Notification of establishment

• 169. (1) The Chairperson must, without delay, notify the parties of the establishment of the public interest commission and of the name or names of its member or members, as the case may be.

• Marginal note:Effect of notification

  (2) The notification constitutes conclusive proof that the public interest commission has been established in accordance with this Part and, after it is given, no order may be made or process entered into, and no proceedings may be taken in any court, to question the establishment of the commission or to review, prohibit or restrain any of its proceedings.

Marginal note:Death, incapacity or resignation of single member

• 170. (1) In the event of the death, incapacity or resignation of the member of a public interest commission that consists of a single member before the commission makes a report to the Chairperson, the Chairperson must recommend to the Minister the appointment of another person from the list submitted under section 166 and the Minister must, without delay, appoint that person or another person on the list. That person must recommence the conciliation proceedings from the beginning.

• Marginal note:Vacancy — commission with three members

  (2) If a vacancy occurs in the membership of a public interest commission that consists of three members before the commission makes a report to the Chairperson, the vacancy must be filled by the Minister, on the recommendation of the Chairperson, by appointment in the manner provided for in section 167 for the selection of the person in respect of whom the vacancy arose.

Marginal note:Delivery of notice

171. After a public interest commission is established, the Chairperson must, without delay, deliver to it a copy of the notice given under subsection 161(1), if one was given.

Powers and Functions

Marginal note:Assistance to parties

172. As soon as possible after being established, the public interest commission must endeavour to assist the parties to the dispute in entering into or revising a collective agreement.

Marginal note:Procedure

• 173. (1) Except as otherwise provided in this Part, the public interest commission may determine its own procedure, including the date, time and place of its proceedings, but both parties must be given a full opportunity to present evidence and make representations.

• Marginal note:Quorum and absence of members

  (2) The chairperson of the public interest commission and one other member constitute a quorum in the case of a commission consisting of three members but, in the absence of a member at any proceedings of the commission, the other members may not proceed unless the absent member has been given reasonable notice of the proceedings.

Marginal note:Powers

• 174. (1) The public interest commission has all the powers of the Board set out in paragraphs 40(1)(a), (d), (e) and (h) to (j).

• Marginal note:Delegation

  (2) The public interest commission may authorize any person to exercise any of its powers set out in paragraphs 40(1)(d), (e), (i) and (j) and require that person to report to it on the exercise of those powers.

Marginal note:Factors to be considered

175. In the conduct of its proceedings and in making a report to the Chairperson, the public interest commission must take into account the following factors, in addition to any other factors that it considers relevant:

• (a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

• (b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the public interest commission considers relevant;

• (c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

• (d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

• (e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.

Report

Marginal note:Report to Chairperson

• 176. (1) The public interest commission must submit a report to the Chairperson as to its success or failure in assisting the parties to the dispute and as to its findings and recommendations within 30 days after it is established, or within any longer period that may be agreed on by the parties or determined by the Chairperson.

• Marginal note:Report to be signed

  (2) The report must be signed by the chairperson of the public interest commission, or by the single member, as the case may be.

Marginal note:Report not to require legislative implementation

• 177. (1) The report may not, directly or indirectly, recommend the alteration or elimination of any existing term or condition of employment, or the establishment of any new term or condition of employment, if

  • (a) the alteration, elimination or establishment would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for implementation;

  • (b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act;

  • (c) the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees; or

  • (d) in the case of a separate agency, the term or condition relates to termination of employment, other than termination of employment for a breach of discipline or misconduct.

• Marginal note:Matters not negotiated

  (2) The report of the public interest commission may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before conciliation was requested.

Marginal note:Findings and recommendations of majority

• 178. (1) If the public interest commission consists of three members, the findings and recommendations of a majority of the members in respect of the matters in dispute are deemed to be those of the commission.

• Marginal note:Findings and recommendations when majority cannot agree

  (2) If a majority of members of the public interest commission cannot agree in respect of the commission’s findings and recommendations, the findings and recommendations of the chairperson of the commission in respect of the matters in dispute are deemed to be those of the commission.

Marginal note:Reconsideration of matters contained in report

179. The Chairperson may direct the public interest commission to reconsider and clarify or amplify its report or any part of the report.

Marginal note:Copy of report to be sent to parties

180. The Chairperson must, as soon as possible after receiving the report or, if the Chairperson makes a direction under section 179, as soon as possible after receiving the reconsidered report, send a copy to the parties and cause the report, or the reconsidered report, as the case may be, to be published in any manner that he or she considers appropriate.

Marginal note:Agreement to be bound

181. If, before the public interest commission submits its report to the Chairperson, the parties agree in writing that one or more recommendations to be made by the public interest commission in the report are to be binding on them, each such recommendation, once made, is binding on them and must be given effect.

Alternate Dispute Resolution Process

Marginal note:Alternate dispute resolution process

• 182. (1) Despite any other provision of this Part, the employer and a bargaining agent for a bargaining unit may, at any time in the negotiation of a collective agreement, agree to refer any term or condition of employment of employees in the bargaining unit that may be included in a collective agreement to any eligible person for final and binding determination by whatever process the employer and the bargaining agent agree to.

• Marginal note:Alternate process applicable only to terms referred to it

  (2) If a term or condition is referred to a person for final and binding determination, the process for resolution of a dispute concerning any other term or condition continues to be conciliation.

• Marginal note:Agreement not unilaterally changeable

  (3) Unless both parties agree, the referral of a term or condition to a person for final and binding determination remains in force until the determination is made.

• Marginal note:Form of determination

  (4) The form of the final and binding determination must, wherever possible, permit the determination to be

  • (a) read and interpreted with, or annexed to and published with, a collective agreement dealing with other terms and conditions of employment of the employees in the bargaining unit in respect of which the determination applies; and

  • (b) incorporated into and implemented by any instrument that may be required to be made by the employer or the relevant bargaining agent in respect of the determination.

• Marginal note:Binding effect

  (5) The determination is binding on the employer, the bargaining agent and the employees in the bargaining unit and is deemed to be incorporated into any collective agreement binding on the employees in the bargaining unit in respect of which the determination applies or, if there is no such agreement, is deemed to be such an agreement.

• Marginal note:Eligibility

  (6) A person is not eligible to be appointed as a person who makes a final and binding determination under this section if the person has, at any time during the six months before their date of appointment, acted in respect of any matter concerning employer-employee relations as solicitor, counsel or agent of the employer or of any employee organization that has an interest in the term or condition referred for final and binding determination.

Vote on Employer’s Offer

Marginal note:Minister may order vote to be held

• 183. (1) If the Minister is of the opinion that it is in the public interest that the employees in a bargaining unit be given the opportunity to accept or reject the offer of the employer last received by the bargaining agent in respect of all matters remaining in dispute between the parties, the Minister may

  • (a) on any terms and conditions that the Minister considers appropriate, direct that a vote to accept or reject the offer be held by secret ballot as soon as possible among all of the employees in the bargaining unit; and

  • (b) designate the Board, or any other person or body, to be in charge of conducting that vote.

• Marginal note:Vote does not delay right

  (2) The direction that a vote be held, or the holding of that vote, does not prevent the declaration or authorization of a strike if the employee organization that is certified as the bargaining agent is not otherwise prohibited from making the declaration or authorization, nor does it prevent the participation in a strike by an employee if the employee is not otherwise prohibited from participating in the strike.

• Marginal note:Consequences of favourable vote

  (3) If a majority of the employees participating in the vote accept the employer’s last offer,

  • (a) the parties are bound by that offer and must, without delay, enter into a collective agreement that incorporates the terms of that offer; and

  • (b) any strike that is in progress when the Board or other person or body in charge of conducting the vote notifies the parties in writing of the employees’ acceptance must cease immediately, and the employees must return to work as soon as the employer determines that it is practicable for them to do so.

• Marginal note:Powers respecting vote

  (4) The Board or other person or body in charge of conducting the vote must determine any question that arises under this section, including any question relating to the conduct of the vote or the determination of its result.

Division 11Strike Votes

Marginal note:Secret ballot vote

• 184. (1) In order to obtain approval to declare or authorize a strike, an employee organization must hold a vote by secret ballot among all of the employees in the bargaining unit conducted in a manner that ensures that the employees are given a reasonable opportunity to participate in the vote and be informed of the results.

• Marginal note:Application to have vote declared invalid

  (2) An employee who is a member of a bargaining unit for which a vote referred to in subsection (1) was held and who alleges that there were irregularities in the conduct of the vote may, no later than 10 days after the day the results of the vote are announced, make an application to the Board to have the vote declared invalid.

• Marginal note:Dismissal of application

  (3) The Board may summarily dismiss the application if it is satisfied that, even if the alleged irregularities did occur, the outcome of the vote would not have been different.

• Marginal note:New vote

  (4) If the Board declares the vote invalid, it may order that a new vote be held in accordance with the conditions it specifies in the order.

Division 12Unfair Labour Practices

Meaning of “unfair labour practice”

185. In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

Marginal note:Unfair labour practices — employer

• 186. (1) Neither the employer nor a person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall

  • (a) participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization; or

  • (b) discriminate against an employee organization.

• Marginal note:Unfair labour practices — employer

  (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

  • (a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

    • (i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization,

    • (ii) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2,

    • (iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or

    • (iv) has exercised any right under this Part or Part 2;

  • (b) impose, or propose the imposition of, any condition on an appointment, or in an employee’s terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Part or Part 2; or

  • (c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from

    • (i) testifying or otherwise participating in a proceeding under this Part or Part 2,

    • (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or

    • (iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.

• Marginal note:Exception

  (3) The employer or a person does not commit an unfair labour practice under paragraph (1)(a) by reason only of

  • (a) permitting an employee or a representative of an employee organization that is a bargaining agent to confer with the employer or person, as the case may be, during hours of work or to attend to the business of the employee organization during hours of work without any deduction from wages or any deduction of time worked for the employer; or

  • (b) permitting an employee organization that is a bargaining agent to use the employer’s premises for the purposes of the employee organization.

• Marginal note:Exception

  (4) The employer or a person does not commit an unfair labour practice under paragraph (1)(b)

  • (a) if the employer or person is acting in accordance with this Part or a regulation, a collective agreement or an arbitral award; or

  • (b) by reason only of receiving representations from, or holding discussions with, representatives of an employee organization.

• Marginal note:Exception

  (5) The employer or a person does not commit an unfair labour practice under paragraph (1)(a) or (b) by reason only that the employer or person expresses their point of view, so long as they do not use coercion, intimidation, threats, promises or undue influence.

• Marginal note:Exception

  (6) The employer or a person does not commit an unfair labour practice under any of paragraphs (1)(a) or (b) or (2)(a) to (c) by reason only of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.

Marginal note: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.

Marginal note:Unfair labour practices — employee organizations

188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

• (a) except with the consent of the employer, attempt, at an employee’s place of employment during the employee’s working hours, to persuade the employee to become, to refrain from becoming, to continue to be or to cease to be a member of an employee organization;

• (b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

• (c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;

• (d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or having refused to perform an act that is contrary to this Part; or

• (e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

  • (i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

  • (ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

  • (iii) exercised any right under this Part or Part 2.

Marginal note:Unfair labour practices — persons

• 189. (1) Subject to subsection (2), no person shall seek by intimidation or coercion to compel an employee

  • (a) to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be, a member of an employee organization; or

  • (b) to refrain from exercising any other right under this Part or Part 2.

• Marginal note:Exception

  (2) A person does not commit an unfair labour practice referred to in subsection (1) by reason of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.

Division 13Complaints

Marginal note:Complaints

• 190. (1) The Board must examine and inquire into any complaint made to it that

  • (a) the employer has failed to comply with section 56 (duty to observe terms and conditions);

  • (b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith);

  • (c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions);

  • (d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

  • (e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

  • (f) the employer, a bargaining agent or an employee has failed to comply with section 132 (duty to observe terms and conditions); or

  • (g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

• Marginal note:Time for making complaint

  (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

• Marginal note:Limitation on complaints against employee organizations

  (3) Subject to subsection (4), no complaint may be made to the Board under subsection (1) on the ground that an employee organization or any person acting on behalf of one has failed to comply with paragraph 188(b) or (c) unless

  • (a) the complainant has presented a grievance or appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given ready access;

  • (b) the employee organization

    • (i) has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to the complainant, or

    • (ii) has not, within six months after the date on which the complainant first presented their grievance or appeal under paragraph (a), dealt with the grievance or appeal; and

  • (c) the complaint is made to the Board not later than 90 days after the first day on which the complainant could, in accordance with paragraphs (a) and (b), make the complaint.

• Marginal note:Exception

  (4) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by an employee organization to comply with paragraph 188(b) or (c) that has not been presented as a grievance or appeal to the employee organization, if the Board is satisfied that

  • (a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; or

  • (b) the employee organization has not given the complainant ready access to a grievance or appeal procedure.

Marginal note:Duty and power of the Board

• 191. (1) Subject to subsection (3), on receipt of a complaint made under subsection 190(1), the Board may assist the parties to the complaint to settle the complaint. If it decides not to do so or if the complaint is not settled within a period that the Board considers to be reasonable in the circumstances, it must determine the complaint.

• Marginal note:Refusal to determine complaint involving collective agreement

  (2) The Board may refuse to determine a complaint made under subsection 190(1) in respect of a matter that, in the Board’s opinion, could be referred to adjudication under Part 2 by the complainant.

• Marginal note:Burden of proof

  (3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

Marginal note:Orders

• 192. (1) If the Board determines that a complaint referred to in subsection 190(1) is well founded, the Board may make any order that it considers necessary in the circumstances against the party complained of, including any of the following orders:

  • (a) if the employer has failed to comply with section 107 or 132, an order requiring the employer to pay to any employee compensation not more than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee;

  • (b) if the employer has failed to comply with paragraph 186(2)(a), an order requiring the employer to

    • (i) employ, continue to employ or permit to return to the duties of their employment any person whom the employer or any person acting on behalf of the employer has refused to employ or continue to employ, has suspended, transferred, laid off or otherwise discriminated against, or discharged contrary to that paragraph,

    • (ii) pay to any person affected by that failure compensation in an amount that is not more than, in the Board’s opinion, the remuneration that would, but for that failure, have been paid by the employer to that person, and

    • (iii) rescind any disciplinary action taken in respect of any person affected by that failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the person by the employer;

  • (c) if the employer has failed to comply with paragraph 186(2)(c), an order requiring the employer to rescind any action taken in respect of any employee affected by the failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the employee by the employer;

  • (d) if an employee organization has failed to comply with section 187, an order requiring the employee organization to take and carry on on behalf of any employee affected by the failure or to assist any such employee to take and carry on any proceeding that the Board considers that the employee organization ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on;

  • (e) if an employee organization has failed to comply with paragraph 188(b) or (d), an order requiring the employee organization to reinstate or admit an employee as one of its members; and

  • (f) if an employee organization has failed to comply with paragraph 188(c), (d) or (e), an order requiring the employee organization to rescind any disciplinary action taken in respect of any employee affected by the failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the employee by the employee organization.

• Marginal note:Person acting on behalf of employer

  (2) If the order is directed to a person who has acted or purported to act on behalf of the employer, the order must also be directed to the Secretary of the Treasury Board in the case of the core public administration and, in the case of a separate agency, to its deputy head.

• Marginal note:Person acting on behalf of employee organization

  (3) If the order is directed to a person who has acted or purported to act on behalf of an employee organization, the order must also be directed to the chief officer of that employee organization.

Division 14Prohibitions and Enforcement

Acts of Officers and Representatives of Employee Organizations

Marginal note:Acts deemed to be those of employee organization

193. For the purposes of this Part, an act or thing done or omitted by an officer or representative of an employee organization within the scope of that person’s authority to act on the employee organization’s behalf is deemed to be an act or thing done or omitted by the employee organization.

Prohibitions Relating to Strikes

Marginal note:Declaration or authorization of strike prohibited

• 194. (1) No employee organization shall declare or authorize a strike in respect of a bargaining unit, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike in respect of a bargaining unit or the participation of employees in such a strike, if

  • (a) the employee organization has not been certified by the Board as the bargaining agent for the bargaining unit;

  • (b) a collective agreement applying to the bargaining unit is in force;

  • (c) no collective agreement is in force, and no notice to bargain collectively has been given, in respect of the bargaining unit;

  • (d) no collective agreement is in force, and a notice to bargain collectively has been given, in respect of the bargaining unit, and no request for conciliation has been made under section 161;

  • (e) the process for resolution of a dispute applicable to the bargaining unit is arbitration;

  • (f) the process for resolution of a dispute applicable to the bargaining unit is conciliation and a notice to enter into an essential services agreement has been given under section 122 by the employer or the employee organization, as bargaining agent for the bargaining unit and no essential services agreement is in force in respect of the bargaining unit;

  • (g) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a notice to amend an essential services agreement has been given under section 126 by the employer or the employee organization, as bargaining agent for the bargaining unit, and

    • (i) the essential services agreement has not been amended as a result of that notice, or

    • (ii) if an application referred to in subsection 127(1) was made by the employer or the employee organization, the application has not been finally disposed of by the Board;

  • (h) the process for resolution of a dispute in respect of the bargaining unit is conciliation and less than 30 clear days have elapsed since

    • (i) the date an essential services agreement came into force in respect of the bargaining unit, or

    • (ii) the date an application referred to in subsection 123(1) made by the employer or the employee organization as bargaining agent for the bargaining unit was finally disposed of by the Board, if such an application was made;

  • (i) the process for resolution of a dispute in respect of the bargaining unit is conciliation and the employer or the employee organization, as bargaining agent for the bargaining unit, has given a notice to amend an essential services agreement and less than 30 clear days have elapsed since

    • (i) the date of the coming into force of the amendment to the essential services agreement as a result of that notice, or

    • (ii) the date the application referred to in subsection 127(1) made by the employer or the employee organization was finally disposed of by the Board, if such an application was made;

  • (j) an essential services agreement binding on the employee organization and the employer has been suspended by order under section 131;

  • (k) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a public interest commission has not been established to assist the employer and the employee organization, as bargaining agent for the bargaining unit, to enter into or revise a collective agreement, unless the employee organization has been notified under subsection 162(3) that a public interest commission will not be established;

  • (l) the employee organization, as bargaining agent for the bargaining unit, has been notified under subsection 162(3) that a public interest commission will not be established to assist the employer and the employee organization to enter into or revise a collective agreement and less than seven clear days have elapsed since the date the notice was given under that subsection;

  • (m) a public interest commission has been established to assist the employer and the employee organization, as bargaining agent for the bargaining unit, to enter into or revise a collective agreement and the Chairperson has not yet sent the commission’s report or reconsidered report, as the case may be, to the parties, or, if it has been sent, less than seven clear days have elapsed since it was sent;

  • (n) the employee organization, as bargaining agent for the bargaining unit, has agreed with the employer to be bound as described in section 181 in respect of all terms and conditions in dispute;

  • (o) the employee organization, as bargaining agent for the bargaining unit, has agreed with the employer to refer, under subsection 182(1), all terms and conditions in dispute to final and binding determination;

  • (p) a vote has been held under subsection 183(1) and a majority of employees participating in the vote have accepted the employer’s last offer;

  • (q) the employee organization has failed to conduct a secret ballot vote in accordance with section 184; or

  • (r) the employee organization has conducted a secret ballot vote in accordance with section 184 and

    • (i) it has not received the approval of a majority of the employees who voted, or

    • (ii) if it has received the approval of a majority of the employees who voted, more than 60 clear days, or any longer period that may be agreed to in writing by the employee organization and the employer, have elapsed since the vote was held.

• Marginal note:Essential services

  (2) No employee organization shall declare or authorize a strike the effect of which is or would be to involve the participation of any employee who occupies a position that is necessary under an essential services agreement for the employer to provide essential services, and no officer or representative of an employee organization shall counsel or procure the participation of such employees in a strike.

Marginal note:Non-employees

195. No person employed in the public service shall participate in a strike if the person is not an employee.

Marginal note:Participation prohibited

196. No employee shall participate in a strike if the employee

• (a) is not included in a bargaining unit for which a bargaining agent has been certified by the Board;

• (b) is included in a bargaining unit in respect of which a collective agreement is in force;

• (c) is included in a bargaining unit in respect of which no collective agreement is in force and for which no notice to bargain collectively has been given;

• (d) is included in a bargaining unit in respect of which no collective agreement is in force and for which a notice to bargain collectively has been given and in respect of which no request for conciliation has been made under section 161;

• (e) is included in a bargaining unit for which the process for resolution of a dispute is arbitration;

• (f) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which a notice to enter into an essential services agreement has been given under section 122 by the employer or the bargaining agent for the bargaining unit, and no essential services agreement is in force in respect of the bargaining unit;

• (g) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which a notice to amend an essential services agreement has been given under section 126 by the employer or the bargaining agent for the bargaining unit, and

  • (i) the essential services agreement has not been amended as a result of that notice, or

  • (ii) if an application referred to in subsection 127(1) was made by the employer or the bargaining agent, the application has not been finally disposed of by the Board;

• (h) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and less than 30 clear days have elapsed since

  • (i) the date an essential services agreement came into force in respect of the bargaining unit, or

  • (ii) the date an application referred to in subsection 123(1) made by the employer or the bargaining agent for the bargaining unit was finally disposed of by the Board, if such an application was made;

• (i) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which the employer or the bargaining agent for the bargaining unit has given a notice to amend an essential services agreement and less than 30 clear days have elapsed since

  • (i) the date of the coming into force of the amendment to the essential services agreement as a result of that notice, or

  • (ii) the date the application referred to in subsection 127(1) made by the employer or the employee organization was finally disposed of by the Board, if such an application was made;

• (j) occupies a position that is necessary under an essential services agreement for the employer to provide essential services;

• (k) is included in a bargaining unit in respect of which an essential services agreement binding on the bargaining agent for the bargaining unit and the employer has been suspended by order under section 131;

• (l) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which a public interest commission has not been established to assist the employer and the bargaining agent for the bargaining unit to enter into or revise a collective agreement, unless the bargaining agent has been notified under subsection 162(3) that a public interest commission will not be established;

• (m) is included in a bargaining unit in respect of which the bargaining agent for the bargaining unit has been notified under subsection 162(3) that a public interest commission will not be established to assist the employer and the bargaining agent to enter into or revise a collective agreement and less than seven clear days have elapsed from the date the notice was given under that subsection;

• (n) is included in a bargaining unit in respect of which a public interest commission has been established to assist the employer and the bargaining agent for the bargaining unit to enter into or revise a collective agreement, and the Chairperson has not yet sent the commission’s report or reconsidered report, as the case may be, to the parties, or, if it has been sent, less than seven clear days have elapsed since it was sent;

• (o) is included in a bargaining unit whose bargaining agent has agreed with the employer to be bound as described in section 181 in respect of all terms and conditions in dispute;

• (p) is included in a bargaining unit whose bargaining agent has agreed with the employer to refer, under subsection 182(1), all terms and conditions in dispute to final and binding determination;

• (q) is included in a bargaining unit in respect of which a vote has been held under subsection 183(1) and a majority of employees participating in the vote have accepted the employer’s last offer;

• (r) is included in a bargaining unit whose bargaining agent has failed to conduct a secret ballot vote in accordance with section 184; or

• (s) is included in a bargaining unit whose bargaining agent has conducted a secret ballot vote in accordance with section 184 and

  • (i) the bargaining agent has not received the approval of a majority of the employees who voted, or

  • (ii) if the bargaining agent has received the approval of a majority of the employees who voted and the bargaining agent has declared or authorized the strike after 60 clear days have elapsed, or after any longer period that may be agreed to in writing by the bargaining agent and the employer has elapsed, since the day the vote was held.

Marginal note:Right to strike limited during period between Parliaments

• 197. (1) If a strike occurs or may occur during the period beginning on the date of a dissolution of Parliament and ending on the date fixed for the return of the writs at the next following general election and, in the opinion of the Governor in Council, the strike adversely affects or would adversely affect the national interest, the Governor in Council may during that period make an order deferring the strike during the period beginning on the day on which the order is made and ending on the twenty-first day following the date fixed for the return of the writs.

• Marginal note:Tabling in Parliament

  (2) The Minister must cause a report giving the reasons for the order to be tabled in each House of Parliament within the first 10 days on which that House is sitting after the order is made.

• Marginal note:Declaration or authorization of strike prohibited during deferred period

  (3) No employee organization shall declare or authorize, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of, a strike in respect of a bargaining unit in the period during which the strike is deferred by an order made under subsection (1).

• Marginal note:Participation prohibited during deferred period

  (4) No employee shall participate in a strike in the period during which the strike is deferred by an order made under subsection (1).

Declarations and Orders Relating to Strikes

Marginal note:Application for declaration that conduct is unlawful

• 198. (1) If the employer considers that an employee organization or any officer or representative of one has contravened subsection 194(1) or (2) or 197(3), or that a person has contravened section 195, or that an employee has contravened section 196 or subsection 197(4), the employer may apply to the Board for a declaration that the conduct giving rise to the contravention is unlawful.

• Marginal note:Declaration that strike unlawful and strike prohibited

  (2) After affording the employee organization, officer, representative, person or employee referred to in subsection (1) an opportunity to make representations on the application, the Board may declare that the conduct is unlawful and, if the employer so requests, may make an order

  • (a) requiring the employee organization to revoke the declaration or authorization of a strike and to give notice immediately of its revocation to the employees to whom it was directed;

  • (b) enjoining the officer or representative from counselling or procuring the declaration or authorization of a strike or the participation of employees in a strike;

  • (c) enjoining the employee from participating in the strike;

  • (d) requiring the employee to perform the duties of his or her employment; or

  • (e) requiring any employee organization, of which any employee with respect to whom an order is made under paragraph (c) or (d) is a member, and any officer or representative of that employee organization, to immediately give notice of any order made under one of those paragraphs to the employee.

• Marginal note:Terms and duration of order

  (3) An order made under subsection (2)

  • (a) must be in terms that the Board considers necessary and sufficient to meet the circumstances of the case; and

  • (b) subject to subsection (4), has effect for the time specified in the order.

• Marginal note:Continuation or revocation of order

  (4) On application by the employer or employee organization or any employee or other person affected by an order made under subsection (2), notice of which has been given to the parties named in the order, the Board may, by supplementary order,

  • (a) continue the order, with or without modification, for the period stated in the supplementary order; or

  • (b) revoke the order.

Prohibition Relating to Essential Services

Marginal note:Obstruction

199. No person shall impede or prevent or attempt to impede or prevent an employee from entering or leaving the employee’s place of work if the employee occupies a position that is necessary under an essential services agreement for the employer to provide essential services.

Offences and Punishment

Marginal note:Persons

200. Every person who contravenes subsection 186(1) or (2), section 188, subsection 189(1) or section 195 or 199 is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.

Marginal note:Employees

201. Every employee who contravenes section 196 or subsection 197(4) is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.

Marginal note:Employee organizations

• 202. (1) Every employee organization that contravenes, and every officer or representative of one who contravenes, section 187 or 188 is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.

• Marginal note:Employee organizations

  (2) Every employee organization that contravenes subsection 194(1) or (2) or 197(3) is guilty of an offence and liable on summary conviction to a fine not more than $1,000 for each day that any strike declared or authorized by it in contravention of that subsection is in effect.

• Marginal note:Prosecution of employee organization

  (3) A prosecution for an offence under subsection (1) or (2) may be brought against an employee organization and in the name of that organization and, for the purposes of the prosecution, the employee organization is deemed to be a person.

Marginal note:Officers and representatives of employee organizations

203. Every officer or representative of an employee organization who contravenes subsection 194(1) is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.

Marginal note:Employer

204. If the employer contravenes subsection 186(1) or (2), the employer is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.

Marginal note:Consent to prosecution

205. A prosecution for an offence under this Division may be instituted only with the consent of the Board.

PART 2GRIEVANCES

Interpretation

Marginal note:Definitions

• 206. (1) The following definitions apply in this Part.

  “employee”

  « fonctionnaire »

  “employee” has the meaning that would be assigned by the definition “employee”

  in subsection 2(1) if that definition were read without reference to paragraphs (e) and (i) and without reference to the words “except in Part 2”.

  “group grievance”

  « grief collectif »

  “group grievance” means a grievance presented in accordance with section 215.

  “individual grievance”

  « grief individuel »

  “individual grievance” means a grievance presented in accordance with section 208.

  “policy grievance”

  « grief de principe »

  “policy grievance” means a grievance presented in accordance with section 220.

• Marginal note:Former employees

  (2) Every reference in this Part to an “employee” includes a former employee for the purposes of any provisions of this Part respecting grievances with respect to

  • (a) any disciplinary action resulting in suspension, or any termination of employment, under paragraph 12(1)(c), (d) or (e) of the Financial Administration Act; or

  • (b) in the case of a separate agency, any disciplinary action resulting in suspension, or any termination of employment, under paragraph 12(2)(c) or (d) of the Financial Administration Act or under any provision of any Act of Parliament, or any regulation, order or other instrument made under the authority of an Act of Parliament, respecting the powers or functions of the separate agency.

Conflict Management

Marginal note:Informal conflict management system

207. Subject to any policies established by the employer or any directives issued by it, every deputy head in the core public administration must, in consultation with bargaining agents representing employees in the portion of the core public administration for which he or she is deputy head, establish an informal conflict management system and inform the employees in that portion of its availability.

Individual Grievances

Presentation

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Reference to Adjudication

Marginal note:Reference to adjudication

• 209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

  • (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

  • (b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

  • (c) in the case of an employee in the core public administration,

    • (i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

    • (ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required; or

  • (d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

• Marginal note:Application of paragraph (1)(a)

  (2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

• Marginal note:Designation

  (3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)(d).

Marginal note:Notice to Canadian Human Rights Commission

• 210. (1) When an individual grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

• Marginal note:Standing of Commission

  (2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Marginal note:Exception

211. Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

• (a) any termination of employment under the Public Service Employment Act; or

• (b) any deployment under the Public Service Employment Act, other than the deployment of the employee who presented the grievance.

Representation

Marginal note:Right to be represented by employee organization

212. An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of, and, if the employee chooses, may be represented by, any employee organization in the presentation or reference to adjudication of an individual grievance.

Marginal note:Right to be represented by employee organization

213. No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any other employee organization in the presentation or reference to adjudication of an individual grievance.

Binding Effect

Marginal note:Binding effect

214. If an individual grievance has been presented up to and including the final level in the grievance process and it is not one that under section 209 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken on it.

Group Grievances

Presentation

Marginal note:Right of bargaining agent

• 215. (1) The bargaining agent for a bargaining unit may present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.

• Marginal note:Consent required

  (2) In order to present the grievance, the bargaining agent must first obtain the consent of each of the employees concerned in the form provided for by the regulations. The consent of an employee is valid only in respect of the particular group grievance for which it is obtained.

• Marginal note:Single portion

  (3) The group grievance must relate to employees in a single portion of the federal public administration.

• Marginal note:Limitation

  (4) A bargaining agent may not present a group grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

• Marginal note:Limitation

  (5) Despite subsection (4), a bargaining agent may not present a group grievance in respect of the right to equal pay for work of equal value.

• Marginal note:Limitation

  (6) If an employee has, in respect of any matter, availed himself or herself of a complaint procedure established by a policy of the employer, the bargaining agent may not include that employee as one on whose behalf it presents a group 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 participating in a group grievance under this Act.

• Marginal note:Limitation

  (7) A bargaining agent may not present a group 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.

• Marginal note:Order to be conclusive proof

  (8) For the purposes of subsection (7), 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.

Reference to Adjudication

Marginal note:Reference to adjudication

216. The bargaining agent may refer to adjudication any group grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to its satisfaction.

Marginal note:Notice to Canadian Human Rights Commission

• 217. (1) When a group grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

• Marginal note:Standing of Commission

  (2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Withdrawal from Group Grievance

Marginal note:Right of employee to withdraw

218. An employee in respect of whom a group grievance has been presented may, at any time before a final decision is made in respect of the grievance, notify the bargaining agent that the employee no longer wishes to be involved in the group grievance.

Marginal note:Effect of notice

219. After receiving the notice, the bargaining agent may not pursue the grievance in respect of the employee.

Policy Grievances

Presentation

Marginal note:Right of employer and bargaining agent

• 220. (1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.

• Marginal note:Limitation

  (2) Neither the employer nor a bargaining agent may present a policy grievance in respect of which an administrative procedure for redress is provided under any other Act of Parliament, other than the Canadian Human Rights Act.

• Marginal note:Limitation

  (3) Despite subsection (2), neither the employer nor a bargaining agent may present a policy grievance in respect of the right to equal pay for work of equal value.

• Marginal note:Limitation

  (4) A bargaining agent may not present a policy 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.

• Marginal note:Order to be conclusive proof

  (5) For the purposes of subsection (4), 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.

Reference to Adjudication

Marginal note:Reference to adjudication

221. A party that presents a policy grievance may refer it to adjudication.

Marginal note:Notice to Canadian Human Rights Commission

• 222. (1) When a policy grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

• Marginal note:Standing of Commission

  (2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Adjudication

Referral by Chairperson

Marginal note:Notice

• 223. (1) A party who refers a grievance to adjudication must, in accordance with the regulations, give notice of the reference to the Board and specify in the notice whether an adjudicator is named in any applicable collective agreement or has otherwise been selected by the parties and, if no adjudicator is so named or has been selected, whether the party requests the establishment of a board of adjudication.

• Marginal note:Action to be taken by Chairperson

  (2) On receipt of the notice by the Board, the Chairperson must

  • (a) if the grievance is one arising out of a collective agreement and an adjudicator is named in the agreement, refer the matter to the adjudicator;

  • (b) if the parties have selected an adjudicator, refer the matter to the adjudicator;

  • (c) if a board of adjudication has been requested and the other party has not objected in the time provided for in the regulations, establish the board and refer the matter to it; and

  • (d) in any other case, refer the matter to an adjudicator designated by the Chairperson from amongst the members of the Board.

• Marginal note:Conference

  (3) The Chairperson may, at any time after receipt of the notice, direct the parties to attend a conference in order to attempt to settle or simplify the issues in dispute.

Board of Adjudication

Marginal note:Constitution

• 224. (1) A board of adjudication consists of one member of the Board designated by the Chairperson, who is the chairperson of the board of adjudication, and two other persons, each of whom is nominated by one of the parties.

• Marginal note:Ineligibility

  (2) A person is not eligible to be a member of a board of adjudication if the person has any direct interest in or connection with the grievance referred to the board of adjudication, its handling or its disposition.

Jurisdiction

Marginal note:Compliance with procedures

225. No grievance may be referred to adjudication, and no adjudicator may hear or render a decision on a grievance, until the grievance has been presented at all required levels in accordance with the applicable grievance process.

Powers

Marginal note:Powers

• 226. (1) An adjudicator may, in relation to any matter referred to adjudication,

  • (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;

  • (b) order that a hearing or a pre-hearing conference be conducted using a means of telecommunication that permits the parties and the adjudicator to communicate with each other simultaneously;

  • (c) administer oaths and solemn affirmations;

  • (d) accept any evidence, whether admissible in a court of law or not;

  • (e) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant;

  • (f) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of the employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliance or article in the premises and require any person in the premises to answer all questions relating to the matter being adjudicated;

  • (g) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any;

  • (h) give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act;

  • (i) award interest in the case of grievances involving termination, demotion, suspension or financial penalty at a rate and for a period that the adjudicator considers appropriate; and

  • (j) summarily dismiss grievances that in the opinion of the adjudicator are frivolous or vexatious.

• Marginal note:Power to mediate

  (2) At any stage of a proceeding before an adjudicator, the adjudicator may, if the parties agree, assist the parties in resolving the difference at issue without prejudice to the power of the adjudicator to continue the adjudication with respect to the issues that have not been resolved.

Marginal note:Determination without oral hearing

227. An adjudicator may decide any matter referred to adjudication without holding an oral hearing.

Decision of Adjudicator

Marginal note:Hearing of grievance

• 228. (1) If a grievance is referred to adjudication, the adjudicator must give both parties to the grievance an opportunity to be heard.

• Marginal note:Decision on grievance

  (2) After considering the grievance, the adjudicator must render a decision and make the order that he or she considers appropriate in the circumstances. The adjudicator must then

  • (a) send a copy of the order and, if there are written reasons for the decision, a copy of the reasons, to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the employee whose grievance it is belongs; and

  • (b) deposit a copy of the order and, if there are written reasons for the decision, a copy of the reasons, with the Executive Director of the Board.

• Marginal note:Decision of board of adjudication

  (3) In the case of a board of adjudication, a decision of a majority of the members on a grievance is deemed to be a decision of the board in respect of the grievance, and the decision must be signed by the chairperson of the board.

• Marginal note:Decision where majority cannot agree

  (4) If a majority of members of the board of adjudication cannot agree on the making of a decision, the decision of the chairperson of the board is deemed to be the decision of the board.

Marginal note:Decision requiring amendment

229. An adjudicator’s decision may not have the effect of requiring the amendment of a collective agreement or an arbitral award.

Marginal note:Determination of reasonableness of opinion

230. In the case of an employee in the core public administration or an employee of a separate agency designated under subsection 209(3), in making a decision in respect of an employee’s individual grievance relating to a termination of employment or demotion for unsatisfactory performance, an adjudicator must determine the termination or demotion to have been for cause if the opinion of the deputy head that the employee’s performance was unsatisfactory is determined by the adjudicator to have been reasonable.

Marginal note:Determination of consent requirement

231. An adjudicator seized of a grievance referred to in subparagraph 209(1)(c)(ii) may determine any question relating to whether

• (a) consent to being deployed was a condition of the employee’s employment; or

• (b) the employee harassed another person in the course of the employee’s employment.

Marginal note:Decision in respect of certain policy grievances

232. If a policy grievance relates to a matter that was or could have been the subject of an individual grievance or a group grievance, an adjudicator’s decision in respect of the policy grievance is limited to one or more of the following:

• (a) declaring the correct interpretation, application or administration of a collective agreement or an arbitral award;

• (b) declaring that the collective agreement or arbitral award has been contravened; and

• (c) requiring the employer or bargaining agent, as the case may be, to interpret, apply or administer the collective agreement or arbitral award in a specified manner.

Marginal note:Decisions not to be reviewed by court

• 233. (1) Every decision of an adjudicator is final and may not be questioned or reviewed in any court.

• Marginal note:No review by certiorari, etc.

  (2) No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any of the adjudicator’s proceedings under this Part.

Marginal note:Filing of order in Federal Court

234. For the purpose of enforcing an adjudicator’s order, any person who was a party to the proceedings that resulted in the order being made may, after the day provided in the order for compliance or, if no such day is provided for, after 30 days have elapsed since the day the order was made, file in the Federal Court a copy of the order that is certified to be a true copy, and an order so filed becomes an order of that Court and may be enforced as such.

Expenses of Adjudication

Marginal note:Aggrieved employee not represented by agent

• 235. (1) If an aggrieved employee is not represented in the adjudication by a bargaining agent, the costs of the adjudication are to be borne by the Board.

• Marginal note:Aggrieved employee represented by agent

  (2) If an aggrieved employee is represented in the adjudication by a bargaining agent, the bargaining agent is liable to pay and must remit to the Board any part of the costs of the adjudication that may be determined by the Executive Director of the Board with the approval of the Board.

• Marginal note:Recovery

  (3) Any amount that by subsection (2) is payable to the Board by a bargaining agent may be recovered as a debt due to Her Majesty in right of Canada. The bargaining agent is deemed to be a person for the purposes of this subsection.

No Right of Action

Marginal note:Disputes relating to employment

• 236. (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

• Marginal note:Application

  (2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

• Marginal note:Exception

  (3) Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.

Regulations

Marginal note: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, 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.

• Marginal note: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.

Marginal note: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.

PART 3OCCUPATIONAL HEALTH AND SAFETY

Interpretation

Marginal note:Meaning of public service

239. In this Part, “public service” has the same meaning as in subsection 11(1) of the Financial Administration Act.

Part II of Canada Labour Code

Marginal note:Application to public service

240. Part II of the Canada Labour Code applies to and in respect of the public service and persons employed in it as if the public service were a federal work, undertaking or business referred to in that Part except that, for the purpose of that application,

• (a) any reference in that Part to

  • (i) “arbitration” is to be read as a reference to adjudication under Part 2,

  • (ii) the “Board” is to be read as a reference to the Public Service Labour Relations Board,

  • (iii) a “collective agreement” is to be read as a reference to a collective agreement within the meaning of subsection 2(1),

  • (iv) “employee” is to be read as a reference to a person employed in the public service, and

  • (v) a “trade union” is to be read as a reference to an employee organization within the meaning of subsection 2(1);

• (b) section 156 of that Act does not apply in respect of the Public Service Labour Relations Board; and

• (c) the provisions of this Act apply, with any modifications that the circumstances require, in respect of matters brought before the Public Service Labour Relations Board.

PART 4GENERAL

Defects in Proceedings

Marginal note:Defect in form or irregularity

• 241. (1) No proceeding under this Act is invalid by reason only of a defect in form or a technical irregularity.

• Marginal note:Grievance process

  (2) The failure to present a grievance at all required levels in accordance with the applicable grievance process is not a defect in form or a technical irregularity for the purposes of subsection (1).

Restriction on Admissibility of Evidence

Marginal note:Admissibility

242. Except in the case of a prosecution for perjury,

• (a) testimony or proceedings before an arbitration board are not admissible in evidence in any court in Canada; and

• (b) reports of a public interest commission, and testimony or proceedings before a public interest commission, are not admissible in evidence in any court in Canada.

Protection

Marginal note:Evidence respecting information obtained

243. Members of the Board, members of arbitration boards, members of public interest commissions, mediators, adjudicators, persons seized of referrals under subsection 182(1), persons employed by the Board and persons engaged under subsection 50(1) are not required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of functions under this Act.

Marginal note:No disclosure of notes and drafts

244. The following may not be disclosed without the consent of the person who made them:

• (a) notes or draft orders or decisions of the Board or any of its members or of an adjudicator;

• (b) notes or draft reports of a mediator, a public interest commission or a person authorized or designated by the Board to assist in resolving a complaint or issue in dispute before the Board; and

• (c) notes or a draft arbitral award of an arbitration board.

Marginal note:Criminal or civil proceedings

245. No criminal or civil proceedings lie against a member of the Board, a member of an arbitration board, a member of a public interest commission, a mediator, an adjudicator, a person seized of a referral under subsection 182(1), a person employed by the Board or a person engaged under subsection 50(1) for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function under this Act.

Oaths and Solemn Affirmations

Marginal note:Oath or solemn affirmation

246. Before commencing his or her functions, a person appointed under this Act must take an oath or make a solemn affirmation in the following form before a commissioner of oaths or other person having authority to administer oaths or solemn affirmations:

I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgment, skill and ability, execute and perform the office of .....................

Remuneration and Expenses

Marginal note:Remuneration and expenses

• 247. (1) Members of arbitration boards, mediators, adjudicators, persons appointed under subsection 53(2) and persons seized of referrals under subsection 182(1) are entitled to be paid the remuneration and expenses that may be fixed by the Governor in Council.

• Marginal note:Remuneration and expenses

  (2) Members of public interest commissions are entitled to be paid the remuneration and expenses that may be fixed by the Minister.

• Marginal note:Party to pay

  (3) If a public interest commission consists of three members, the remuneration and expenses to be paid to the member of the commission nominated, or deemed to be nominated, by a party is to be paid by that party.

Witness Fees

Marginal note:Payment of witness fees

248. A person who is summoned by the Board, an arbitration board, a public interest commission or an adjudicator to attend as a witness at any proceeding under this Act is entitled to receive fees and allowances for so attending equal to those to which the person would be entitled if summoned to attend before the Federal Court.

Provision of Facilities and Human Resources

Marginal note:Facilities and human resources

249. The Board must provide members of arbitration boards, members of public interest commissions, mediators, adjudicators and persons seized of referrals under subsection 182(1) with the facilities and human resources that it considers necessary to enable them to carry out their functions under this Act.

Application of Safety or Security Provisions

Marginal note:Application of safety or security provisions

• 250. (1) Nothing in this Act or any other Act is to be construed as requiring the employer to do or refrain from doing anything that is contrary to 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 of any state allied or associated with Canada.

• Marginal note:Order is conclusive proof

  (2) For the purposes of subsection (1), an order made by the Governor in Council is conclusive proof of the matters stated in it in relation to the giving or making of any instruction, direction or 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.

Annual Report

Marginal note:Obligation to prepare

• 251. (1) As soon as possible after the end of each fiscal year, the Board must prepare and submit to the Minister a report on the administration of this Act during the year.

• Marginal note:Tabling in Parliament

  (2) The Minister must cause the report to be tabled in each House of Parliament within the first 15 days on which that House is sitting after he or she receives it.

Five-year Review

Marginal note:Review

252. Five years after the day on which this section comes into force, the minister designated by the Governor in Council for the purposes of this section must cause a review of this Act and its administration and operation to be conducted, and cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.

SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Public Service Employment Act.

INTERPRETATION

Marginal note:Definitions

• 2. (1) The following definitions apply in this Act.

  “Commission”

  « Commission »

  “Commission” means the Public Service Commission continued by subsection 4(1).

  “department”

  « ministère »

  “department” means

  • (a) an organization named in Schedule I to the Financial Administration Act;

  • (b) any other organization that is designated by the Governor in Council as a department for the purposes of this Act; or

  • (c) any part of any organization that is designated by the Governor in Council as a department for the purposes of this Act.

  “deployment”

  « mutation »

  “deployment” means the transfer of a person from one position to another in accordance with Part 3.

  “deputy head”

  « administrateur général »

  “deputy head”

  • (a) in relation to an organization named in Schedule I to the Financial Administration Act, its deputy minister;

  • (b) in relation to any organization or part of an organization that is designated as a department under this Act, the person that the Governor in Council designates as the deputy head for the purposes of this Act; and

  • (c) in relation to any organization named in Schedule IV or V to the Financial Administration Act to which the Commission has the exclusive authority to make appointments, its chief executive officer or, if there is no chief executive officer, the person designated by the Governor in Council as its deputy head for the purposes of this Act.

  “employee”

  « fonctionnaire »

  “employee” means a person employed in that part of the public service to which the Commission has exclusive authority to make appointments.

  “employer”

  « employeur »

  “employer” means

  • (a) the Treasury Board, in relation to an organization named in Schedule I or IV to the Financial Administration Act; or

  • (b) in relation to a separate agency to which the Commission has exclusive authority to make appointments, that separate agency.

  “external appointment process”

  « processus de nomination externe »

  “external appointment process” means a process for making one or more appointments in which persons may be considered whether or not they are employed in the public service.

  “internal appointment process”

  « processus de nomination interne »

  “internal appointment process” means a process for making one or more appointments in which only persons employed in the public service may be considered.

  “minister”

  « ministre »

  “minister”, except in section 131, means any minister referred to in section 4 of the Salaries Act and any minister of State referred to in the Ministries and Ministers of State Act.

  “organization”

  « administration »

  “organization” means any portion of the federal public administration named in Schedule I, IV or V to the Financial Administration Act.

  “public service”

  « fonction publique »

  “public service” means the several positions in or under

  • (a) the departments named in Schedule I to the Financial Administration Act;

  • (b) the organizations named in Schedule IV to that Act; and

  • (c) the separate agencies named in Schedule V to that Act.

  “separate agency”

  « organisme distinct »

  “separate agency” means an organization named in Schedule V to the Financial Administration Act.

  “Tribunal”

  « Tribunal »

  “Tribunal” means the Public Service Staffing Tribunal continued by subsection 88(1).

• Marginal note:References to deputy head

  (2) In this Act, unless the context otherwise requires,

  • (a) a reference to a deputy head in relation to an employee shall be construed as a reference to the deputy head of the department or other organization, as the case may be, in which the employee is employed; and

  • (b) a reference to a deputy head in relation to an appointment shall be construed as a reference to the deputy head of the department or other organization, as the case may be, in which the appointment is made.

• Marginal note:References to occupational groups

  (3) A reference in this Act to an occupational group shall be construed as a reference to a group or subgroup of employees defined by the employer, and a reference to the executive group shall be construed as a reference to an occupational group or subgroup designated by the employer and consisting of management personnel.

• Marginal note:References to abuse of authority

  (4) For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.

Marginal note:Descriptive cross-references

3. If, in any provision of this Act, a reference to another provision of this Act is followed by words in parentheses that are descriptive of the subject-matter of the provision referred to, the words in parentheses form no part of the provision in which they occur and are deemed to have been inserted for convenience of reference only.

PART 1PUBLIC SERVICE COMMISSION, DEPUTY HEADS AND EMPLOYER

Commission

Marginal note:Commission continued

• 4. (1) The Public Service Commission is continued, consisting of a President and two or more other Commissioners.

• Marginal note:Eligibility

  (2) In order to be eligible to hold office as a Commissioner, a person must be a Canadian citizen within the meaning of the Citizenship Act or a permanent resident within the meaning of the Immigration and Refugee Protection Act.

• Marginal note:Full-time or part-time

  (3) The President shall serve on a full-time basis and the other Commissioners on a part-time basis.

• Marginal note:Other employment or activities

  (4) Commissioners shall not accept or hold any office or employment, or carry on any activity, that is inconsistent with their functions, and the President shall devote the whole of his or her time to the performance of the President’s functions.

• Marginal note:Appointment of Commissioners

  (5) The President and other Commissioners shall be appointed by the Governor in Council. The appointment of the President shall be made by commission under the Great Seal, after approval by resolution of the Senate and House of Commons.

• Marginal note:Tenure and term of office

  (6) A Commissioner holds office during good behaviour for a term of seven years, but may be removed by the Governor in Council at any time on address of the Senate and House of Commons.

• Marginal note:Re-appointment

  (7) A Commissioner, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term not exceeding seven years.

• Marginal note:Oath or affirmation

  (8) Before commencing his or her functions, a Commissioner shall take an oath or make a solemn affirmation in the following form before the Clerk of the Privy Council or the person designated by the Clerk:

  I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgment, skill and ability, execute and perform the office of (Commissioner or President, as the case may be) of the Public Service Commission. (Add, in the case where an oath is taken, “So help me God” (or name of deity).)

Marginal note:Salaries

• 5. (1) The Commissioners shall be paid the remuneration determined by the Governor in Council.

• Marginal note:Expenses

  (2) The Commissioners are entitled to be paid reasonable travel and other expenses incurred by them in the course of their duties while absent from their ordinary place of residence or, in the case of the President, while absent from his or her ordinary place of work.

• Marginal note:Application of Public Service Superannuation Act

  (3) The President is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

• Marginal note:Application of other Acts

  (4) The Commissioners are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.

Marginal note:President

• 6. (1) The President is the chief executive officer of the Commission.

• Marginal note:Residence

  (2) The President shall reside in the National Capital Region as described in the schedule to the National Capital Act or within the distance of it specified by the Governor in Council.

• Marginal note:Acting President

  (3) If the President is absent or unable to act or if the office of President is vacant, the minister designated under section 23 may authorize a Commissioner or other qualified person to act as President for a period not exceeding sixty days, and the Governor in Council may authorize a Commissioner or other qualified person to act as President for any longer period.

Marginal note:Quorum

• 7. (1) A majority of the Commissioners constitutes a quorum of the Commission.

• Marginal note:Vacancy

  (2) A vacancy in the membership of the Commission does not impair the right of the remaining Commissioners to act.

Marginal note:Head office

8. The head office of the Commission shall be in the National Capital Region described in the schedule to the National Capital Act.

Marginal note:Human resources

9. The Commission may appoint the persons necessary for the proper conduct of its work in the manner authorized by this Act.

Marginal note:Experts and advisers

• 10. (1) The Commission may retain on a temporary basis the services of experts or other persons having technical or special knowledge to assist it in an advisory capacity and, subject to the approval of the Treasury Board, fix their remuneration.

• Marginal note:Application of Public Service Superannuation Act

  (2) Persons whose services are retained under subsection (1) are not employed in the public service for the purposes of the Public Service Superannuation Act.

Mandate and Functions of Commission

Marginal note:Mandate

11. The mandate of the Commission is

• (a) to appoint, or provide for the appointment of, persons to or from within the public service in accordance with this Act;

• (b) to conduct investigations and audits in accordance with this Act; and

• (c) to administer the provisions of this Act relating to political activities of employees and deputy heads.

Marginal note:Functions assigned by Governor in Council

12. The Commission shall perform any functions in relation to the public service that are assigned to it by the Governor in Council.

Marginal note:Delegation to Commissioners and employees

13. Any power or function of the Commission under this Act, other than under section 20 or 22, may be exercised or performed by any Commissioner or employee of the Commission authorized by the Commission to do so and, if so exercised or performed, is deemed to have been exercised or performed by the Commission.

Marginal note:Consultation by Commission

14. The Commission shall, on request or if it considers consultation necessary or desirable, consult with the employer or any employee organization certified as a bargaining agent under the Public Service Labour Relations Act with respect to policies respecting the manner of making and revoking appointments or with respect to the principles governing lay-offs or priorities for appointment.

Delegation by Commission to Deputy Heads

Marginal note:Exercise of powers and functions by deputy heads

• 15. (1) The Commission may authorize a deputy head to exercise or perform, in relation to his or her organization, in the manner and subject to any terms and conditions that the Commission directs, any of the powers and functions of the Commission under this Act, other than its powers under sections 17, 20 and 22, its power to investigate appointments under sections 66 to 69 and its powers under Part 7.

• Marginal note:Revision or rescission

  (2) Subject to subsection (3), the Commission may revise or rescind an authorization granted under this section.

• Marginal note:Revocation of appointments

  (3) Where the Commission authorizes a deputy head to make appointments pursuant to an internal appointment process, the authorization must include the power to revoke those appointments and to take corrective action whenever the deputy head, after investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment.

• Marginal note:Exception

  (4) In authorizing a deputy head under subsection (3), the Commission is not required to include the authority to revoke appointments or to take corrective action in circumstances referred to in sections 68 and 69.

• Marginal note:Commission jurisdiction

  (5) The Commission may not revoke an appointment referred to in subsection (3) or take corrective action in relation to such an appointment except in circumstances referred to in sections 68 and 69.

• Marginal note:Re-appointment on revocation

  (6) Where the appointment of a person is revoked by a deputy head acting pursuant to subsection (3), the Commission may appoint that person to another position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

Marginal note:Compliance with appointment policies

16. In exercising or performing any of the Commission’s powers and functions pursuant to section 15, a deputy head is subject to any policies established by the Commission under subsection 29(3).

Commission Audits

Marginal note:Audits by Commission

17. The Commission may conduct audits on any matter within its jurisdiction and on the exercise, by deputy heads, of their authority under subsection 30(2) and may make recommendations to deputy heads.

Marginal note:Powers of Commission

18. In conducting an audit, the Commission has all the powers of a commissioner under Part I of the Inquiries Act.

Marginal note:Persons acting for Commission

• 19. (1) The Commission may direct that any audit under section 17 be conducted, in whole or in part, by a Commissioner or any other person.

• Marginal note:Powers of Commissioner

  (2) In relation to a matter before a Commissioner under subsection (1), the Commissioner has the powers referred to in section 18.

• Marginal note:Powers of other persons

  (3) In relation to a matter before a person other than a Commissioner under subsection (1), the person has the powers referred to in section 18 subject to any limitations specified by the Commission.

Exclusions from this Act

Marginal note:Exclusion of positions and persons

• 20. (1) Where the Commission decides that it is neither practicable nor in the best interests of the public service to apply this Act or any of its provisions to any position or person or class of positions or persons, the Commission may, with the approval of the Governor in Council, exclude that position, person or class from the application of this Act or those provisions.

• Marginal note:Consultation with employer

  (2) The Commission shall consult the employer in respect of an exclusion from any provision of this Act whose application is not within the Commission’s jurisdiction.

• Marginal note:Re-application of provisions to persons or positions

  (3) The Commission may, with the approval of the Governor in Council, re-apply any of the provisions of this Act to any position or person, or class of positions or persons, excluded pursuant to subsection (1).

Marginal note:Regulations of Governor in Council

21. The Governor in Council may, on the recommendation of the Commission, make regulations prescribing how any position or person, or class of positions or persons, excluded under section 20 from the application of this Act or any of its provisions is to be dealt with.

Regulations of Commission

Marginal note:General regulatory power

• 22. (1) The Commission may make any regulations that it considers necessary to give effect to the provisions of this Act relating to matters under its jurisdiction.

• Marginal note:Regulations

  (2) Without limiting the generality of subsection (1), the Commission may make regulations

  • (a) establishing for any person or class of persons a right to be appointed — in priority to all persons other than those referred to in section 40 and subsections 41(1) to (4) — during the period specified by the Commission, to any position for which the Commission is satisfied that they meet the essential qualifications referred to in paragraph 30(2)(a);

  • (b) determining the order of priority of the rights to appointment established by any regulations made under paragraph (a);

  • (c) respecting appointments on an acting basis and the maximum period for which any such appointments or any class of such appointments may be made, and excluding any such appointments or class from the operation of any or all of the provisions of this Act;

  • (d) for the purpose of facilitating the implementation of employment equity programs developed by an employer or a deputy head, respecting the appointment to or from within the public service of persons belonging to a designated group within the meaning of section 3 of the Employment Equity Act, and excluding any such persons or any group of such persons from the operation of any or all of the provisions of this Act;

  • (e) respecting the appointment of persons within the executive group or to the executive group from within or outside the public service, and excluding any such persons or any class of such persons from the operation of any or all of the provisions of this Act;

  • (f) respecting the disclosure of information obtained in the course of an investigation under this Act;

  • (g) defining “incumbent-based process” for the purposes of subsection 34(1);

  • (h) prescribing the manner in which and the period within which allegations are to be made, and the manner in which investigations are to be conducted under Part 7; and

  • (i) respecting the manner of laying off employees and the manner of selecting employees to be laid off, for the purposes of section 64.

Reports — Commission

Marginal note:Preparation of report

• 23. (1) The Commission shall, as soon as possible after the end of each fiscal year, prepare and transmit to the minister designated by the Governor in Council for the purposes of this section a report for that fiscal year in respect of matters under its jurisdiction.

• Marginal note:Tabling in Parliament

  (2) The minister to whom the report is transmitted shall cause the report to be laid before each House of Parliament within the first fifteen days on which that House is sitting after the minister receives it.

• Marginal note:Special reports

  (3) The Commission may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers and functions of the Commission where, in the opinion of the Commission, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the next annual report of the Commission.

Deputy Heads

Marginal note:Delegation by deputy head

• 24. (1) Subject to subsection (2), a deputy head may authorize any person to exercise or perform any of the powers and functions conferred on the deputy head by this Act.

• Marginal note:Subdelegation by deputy head

  (2) Where the Commission has authorized a deputy head under subsection 15(1) to exercise or perform any of the Commission’s powers and functions, the deputy head may — subject to the Commission’s approval and any terms and conditions specified under that subsection — authorize another person to exercise or perform any of those powers or functions, other than the power to revoke appointments.

Marginal note:Acting deputy head

25. In the absence of the deputy head of a department or other organization, the powers and functions of the deputy head may be exercised by the person designated by the deputy head to act in his or her absence or, if no person has been so designated or there is no deputy head,

• (a) the person designated by the person who, under the Financial Administration Act, is the appropriate Minister with respect to that department or other organization; or

• (b) any other person designated by the Governor in Council.

Regulations and Policies of Employer

Marginal note:Regulations of Treasury Board

• 26. (1) The Treasury Board may, in respect of organizations named in Schedule I or IV to the Financial Administration Act, make regulations

  • (a) respecting deployments;

  • (b) defining the word “promotion” for the purposes of subsection 51(5);

  • (c) establishing periods of probation for the purposes of subsection 61(1) and notice periods for the purposes of subsection 62(1); and

  • (d) in respect of any occupational group or part of one, extending or changing to levels the provisions of this Act that apply to positions.

• Marginal note:Policies of separate agencies

  (2) A separate agency to which the Commission has exclusive authority to make appointments may make policies for the purposes referred to in subsection (1) in respect of the separate agency.

Marginal note:Consultation by employer

27. An employer shall, on request or if it considers consultation necessary or desirable,

• (a) consult with the Commission, or any employee organization certified as a bargaining agent under the Public Service Labour Relations Act, with respect to regulations made under paragraph 26(1)(b) or (d) or corresponding policies made under subsection 26(2), as the case may be; and

• (b) consult with any employee organization so certified with respect to regulations made under paragraph 26(1)(a) or (c) or corresponding policies made under subsection 26(2), as the case may be, or with respect to any standards established under subsection 31(1).

Annual Report — Treasury Board

Marginal note:President of Treasury Board

28. As soon as possible after the end of each fiscal year, the President of the Treasury Board shall prepare a report on the exercise of the Treasury Board’s responsibilities under this Act for that fiscal year, and shall cause the report to be laid before each House of Parliament.

PART 2APPOINTMENTS

Authority to Appoint

Marginal note:Commission’s exclusive authority

• 29. (1) Except as provided in this Act, the Commission has the exclusive authority to make appointments, to or from within the public service, of persons for whose appointment there is no authority in or under any other Act of Parliament.

• Marginal note:Request of deputy head

  (2) The Commission’s authority under subsection (1) may only be exercised at the request of the deputy head of the organization to which the appointment is to be made.

• Marginal note:Commission policies

  (3) The Commission may establish policies respecting the manner of making and revoking appointments and taking corrective action.

Basis of Appointment

Marginal note:Appointment on basis of merit

• 30. (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.

• Marginal note:Meaning of merit

  (2) An appointment is made on the basis of merit when

  • (a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and

  • (b) the Commission has regard to

    • (i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,

    • (ii) any current or future operational requirements of the organization that may be identified by the deputy head, and

    • (iii) any current or future needs of the organization that may be identified by the deputy head.

• Marginal note:Needs of public service

  (3) The current and future needs of the organization referred to in subparagraph (2)(b)(iii) may include current and future needs of the public service, as identified by the employer, that the deputy head determines to be relevant to the organization.

• Marginal note:Interpretation

  (4) The Commission is not required to consider more than one person in order for an appointment to be made on the basis of merit.

Marginal note:Qualification standards

• 31. (1) The employer may establish qualification standards, in relation to education, knowledge, experience, occupational certification, language or other qualifications, that the employer considers necessary or desirable having regard to the nature of the work to be performed and the present and future needs of the public service.

• Marginal note:Qualifications

  (2) The qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i) must meet or exceed any applicable qualification standards established by the employer under subsection (1).

Marginal note:Professional development programs

32. In respect of appointments made within the framework of any professional development or apprenticeship program that is offered across departments and other organizations, the qualifications, requirements and needs referred to in subsection 30(2) are established or identified by the Treasury Board with respect to organizations for which the Treasury Board is the employer.

Marginal note:Appointment processes

33. In making an appointment, the Commission may use an advertised or non-advertised appointment process.

Marginal note:Area of selection

• 34. (1) For purposes of eligibility in any appointment process, other than an incumbent-based process, the Commission may determine an area of selection by establishing geographic, organizational or occupational criteria or by establishing, as a criterion, belonging to any of the designated groups within the meaning of section 3 of the Employment Equity Act.

• Marginal note:Designated groups

  (2) The Commission may establish different geographic, organizational or occupational criteria for designated groups within the meaning of section 3 of the Employment Equity Act than for other persons.

Marginal note:Mobility — separate agencies

• 35. (1) Unless otherwise provided in any other Act, a person employed in a separate agency to which the Commission does not have the exclusive authority to make appointments

  • (a) may participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all employees to be considered, as long as the person meets the other criteria, if any, established under that section; and

  • (b) has the right to make a complaint under section 77.

• Marginal note:Mobility — designated organizations

  (2) A person not otherwise employed in the public service who is employed in any portion of the federal public administration designated under subsection (4)

  • (a) may participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all persons employed in the public service to be considered, as long as the person meets the other criteria, if any, established under that section; and

  • (b) has the right to make a complaint under section 77.

• Marginal note:Mobility — employees of Tribunal

  (3) A person employed by the Tribunal under subsection 95(1) may participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all employees to be considered, as long as the person meets the other criteria, if any, established under that section.

• Marginal note:Designation

  (4) The Governor in Council may, on the recommendation of the Commission, designate any portion of the federal public administration for the purposes of subsection (2).

• Marginal note:Revocation

  (5) The Governor in Council may, on the recommendation of the Commission, revoke any designation under subsection (4).

Marginal note:Assessment methods

36. In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).

Marginal note:Language of examination

• 37. (1) An examination or interview, when conducted for the purpose of assessing qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i), other than language proficiency, shall be conducted in English or French or both at the option of the candidate.

• Marginal note:Testing for language skills

  (2) An examination or interview, when conducted for the purpose of assessing the qualifications of the candidate in the knowledge and use of English or French or both, or of a third language, shall be conducted in that language or those languages.

Marginal note:Exceptions to merit

38. Paragraph 30(2)(b) does not apply in relation to any appointment made under subsection 15(6) (re-appointment on revocation by deputy head), section 40 (priorities — surplus employees), any of subsections 41(1) to (4) (other priorities) or section 73 (re-appointment on revocation by Commission) or 86 (re-appointment following Tribunal order), or under any regulations made pursuant to paragraph 22(2)(a).

Preferences, Priorities and Entitlements

Marginal note:Preference to veterans and Canadian citizens

• 39. (1) In an advertised external appointment process, subject to any priorities established under paragraph 22(2)(a) and by sections 40 and 41, any of the following who, in the Commission’s opinion, meet the essential qualifications referred to in paragraph 30(2)(a) shall be appointed ahead of other candidates, in the following order:

  • (a) a person who is in receipt of a pension by reason of war service, within the meaning of the schedule;

  • (b) a veteran or a survivor of a veteran, within the meaning of the schedule; and

  • (c) a Canadian citizen, within the meaning of the Citizenship Act, in any case where a person who is not a Canadian citizen is also a candidate.

• Marginal note:Application of merit

  (2) Where the Commission is satisfied that two or more candidates described in any of paragraphs (1)(a) to (c) meet the essential qualifications referred to in paragraph 30(2)(a), paragraph 30(2)(b) applies in the selection of a person from among the candidates described in that paragraph.

Marginal note:Priority — surplus employees

40. Notwithstanding section 41, after a deputy head informs an employee that the employee will be laid off pursuant to subsection 64(1) and before the lay-off becomes effective, the Commission may appoint the employee in priority to all other persons to another position under the deputy head’s jurisdiction if the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) and that it is in the best interests of the public service to make the appointment.

Marginal note:Priority — persons on leave

• 41. (1) When an employee on leave of absence is replaced, pursuant to the appointment or deployment of another person for an indeterminate period to the employee’s position, priority for appointment shall be given over all other persons to

  • (a) the employee on leave of absence, for the duration of the leave of absence and a further period of one year; or

  • (b) if the employee on leave of absence returns to his or her position, the person who replaced that employee, for a period of one year after that employee returns to the position.

• Marginal note:Priority — minister’s staff

  (2) Priority for appointment over all other persons shall be given to a person employed in the office of a minister, or in the office of a person holding the recognized position of Leader of the Opposition in the Senate or Leader of the Opposition in the House of Commons, for a period of one year after the person ceases to be so employed, if

  • (a) the person was an employee immediately before becoming employed in that office; or

  • (b) while employed in that office the person was found by the Commission, in an advertised external appointment process, to have met the essential qualifications for an appointment to the public service.

• Marginal note:Priority — minister’s senior staff

  (3) Priority for appointment, to a position at a level at least equivalent to that of executive assistant to a deputy head, shall be given over all other persons to a person who for at least three years has been employed as the executive assistant, special assistant or private secretary in an office referred to in subsection (2) or in any of those capacities successively, for a period of one year after they cease to be employed.

• Marginal note:Priority — persons laid off

  (4) Priority for appointment over all other persons shall be given, during the period determined by the Commission, to a person who is laid off pursuant to subsection 64(1).

• Marginal note:Essential qualifications

  (5) The priority of a person referred to in any of subsections (1) to (4) applies with respect to any position if the Commission is satisfied that that person meets the essential qualifications referred to in paragraph 30(2)(a).

• Marginal note:Order of priorities

  (6) The order of appointment among persons described in subsections (1) to (4) shall follow the order of those subsections, and persons described in each of those subsections shall be appointed in the order determined by the Commission.

Marginal note:Failure to appoint person on leave

42. A person who is entitled under subsection 41(1) to be appointed to a position and who is not so appointed in the applicable period provided for in that subsection ceases to be an employee at the end of that period.

Marginal note:Non-application of priority provisions

43. Notwithstanding sections 40 and 41 and any regulations made under paragraph 22(2)(a), if the Commission considers that the appointment of a person who has a right to be appointed in priority to other persons under any of those provisions will result in another person having a priority right, the Commission may decide not to apply that provision in that case.

Marginal note:Participation in advertised process — lay-offs

44. A person who is laid off under subsection 64(1) is entitled, during any period that the Commission determines for any case or class of cases, to participate in any advertised appointment process for which the person would have been eligible had the person not been laid off.

Marginal note:Non-application to term employees

45. Section 40, subsection 41(4) and section 44 do not apply to a person whose employment was for a specified term at the time they were informed that they would be laid off.

Marginal note:Deemed lay-off

46. For the purposes of subsection 41(4) and section 44, a person who, while employed in the public service, does not accept an offer of employment made in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act that is a reasonable job offer within the meaning of an agreement respecting work force adjustment or who accepts an offer of employment, made in such circumstances, that is not a reasonable job offer within the meaning of such an agreement, is deemed to be laid off.

Informal Discussion and Appointment

Marginal note:Informal discussion with employee

47. Where a person is informed by the Commission, at any stage of an internal appointment process, that the person has been eliminated from consideration for appointment, the Commission may, at that person’s request, informally discuss its decision with that person.

Marginal note:Persons being considered for appointment

• 48. (1) After the assessment of candidates is completed in an internal appointment process, the Commission shall, in any manner that it determines, inform the following persons of the name of the person being considered for each appointment:

  • (a) in the case of an advertised internal appointment process, the persons in the area of selection determined under section 34 who participated in that process; and

  • (b) in the case of a non-advertised internal appointment process, the persons in the area of selection determined under section 34.

• Marginal note:Waiting period

  (2) For the purposes of internal appointment processes, the Commission shall fix a period, beginning when the persons are informed under subsection (1), during which appointments or proposals for appointment may not be made.

• Marginal note:Appointment or proposed appointment

  (3) Following the period referred to in subsection (2), the Commission may appoint a person or propose a person for appointment, whether or not that person is the one previously considered, and the Commission shall so inform the persons who were advised under subsection (1).

Marginal note: Finality of appointments

49. The Commission’s decision to appoint a person or to propose a person for appointment is final and is not subject to appeal or review except in accordance with this Act.

Casual Employment

Marginal note:Appointment

• 50. (1) The Commission may appoint any person as a casual worker to that part of the public service to which the Commission has exclusive authority to make appointments.

• Marginal note:Maximum period

  (2) The period of employment of a casual worker may not exceed 90 working days in one calendar year in any particular department or other organization.

• Marginal note:Application of Act

  (3) The provisions of this Act, other than this section, do not apply to casual workers.

• Marginal note:Ineligibility

  (4) A casual worker is not eligible to be considered for appointment in any internal appointment process.

• Marginal note:Term appointments

  (5) This section does not affect the Commission’s authority to appoint a person to or from within the public service, other than on a casual basis, for a specified term of ninety working days or less.

PART 3DEPLOYMENTS

Marginal note:Authority of deputy heads to deploy

• 51. (1) Except as provided in this or any other Act, a deputy head may deploy employees to or within the deputy head’s organization.

• Marginal note:Deployment from separate agencies

  (2) Except as provided in this or any other Act, a deputy head may deploy to the deputy head’s organization persons who are employed in a separate agency to which the Commission does not have the exclusive authority to make appointments if the Commission has, after reviewing the staffing program of the separate agency at the agency’s request, approved deployments from it.

• Marginal note:Deployment within or between groups

  (3) A deployment may be made within an occupational group or, unless excluded by regulations under paragraph 26(1)(a), between occupational groups.

• Marginal note:Treasury Board directives and regulations

  (4) A deployment to or within an organization named in Schedule I or IV to the Financial Administration Act shall be made in the manner directed by the Treasury Board and in accordance with any regulations of the Treasury Board.

• Marginal note:Employment status preserved

  (5) The deployment of a person may not

  • (a) constitute a promotion, within the meaning of regulations of the Treasury Board, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or as determined by the separate agency, in the case of a separate agency to which the Commission has the exclusive authority to make appointments; or

  • (b) change a person’s period of employment from a specified term to indeterminate.

• Marginal note:Consent to deployment

  (6) No person may be deployed without his or her consent unless

  • (a) agreement to being deployed is a condition of employment of the person’s current position; or

  • (b) the deputy head of the organization in which the person is employed finds, after investigation, that the person has harassed another person in the course of his or her employment and the deployment is made within the same organization.

Marginal note:Previous position

52. On deployment, a person ceases to be the incumbent of the position to which he or she had previously been appointed or deployed.

Marginal note:Deployment not an appointment

• 53. (1) A deployment is not an appointment within the meaning of this Act.

• Marginal note:Exceptions to priority rights

  (2) A deputy head may deploy a person without regard to any other person’s right to be appointed under subsections 41(1) to (4) or any regulations made pursuant to paragraph 22(2)(a).

PART 4EMPLOYMENT

Marginal note:Oath or affirmation

54. A person appointed or deployed from outside that part of the public service to which the Commission has exclusive authority to make appointments shall take and subscribe an oath or solemn affirmation in the following form:

I, ...................., swear (or solemnly affirm) that I will faithfully and honestly fulfil the duties that devolve on me by reason of my employment in the public service of Canada and that I will not, without due authority, disclose or make known any matter that comes to my knowledge by reason of such employment. (Add, in the case where an oath is taken, “So help me God” (or name of deity).)

Marginal note:Effective date of appointment or deployment

55. The appointment or deployment of a person from outside that part of the public service to which the Commission has exclusive authority to make appointments takes effect on the later of the date that is agreed to in writing by the deputy head and that person and the date on which the person takes and subscribes the oath or solemn affirmation set out in section 54.

Marginal note:Effective date of appointment

• 56. (1) The appointment of a person from within that part of the public service to which the Commission has exclusive authority to make appointments takes effect on the date agreed to in writing by that person and the deputy head, regardless of the date of their agreement.

• Marginal note:Effective date of deployment

  (2) The deployment of a person from within that part of the public service to which the Commission has exclusive authority to make appointments takes effect

  • (a) on the date agreed to in writing by that person and the deputy head, regardless of the date of their agreement; or

  • (b) if the person’s consent to the deployment is not required, on the date fixed by the deputy head.

Marginal note:Indeterminate employment

57. Subject to this Act, any other Act and regulations made under this or any other Act, the period of an employee’s employment is indeterminate unless the deputy head has specified a term of employment.

Marginal note:Term appointment or deployment

• 58. (1) Subject to section 59, an employee whose appointment or deployment is for a specified term ceases to be an employee at the expiration of that term, or of any extension made under subsection (2).

• Marginal note:Extension by deputy head

  (2) A deputy head may extend a specified term referred to in subsection (1), and such an extension does not constitute an appointment or a deployment or entitle any person to make a complaint under section 77.

• Marginal note:Acting appointments

  (3) This section does not apply in respect of appointments made on an acting basis.

Marginal note:Conversion to indeterminate

• 59. (1) Unless the employee requests otherwise of the deputy head, the period of employment of an employee who is employed for a specified term as a result of an appointment or deployment is converted to indeterminate in the employee’s substantive position, at the end of the cumulative period of employment specified by the employer in circumstances prescribed by the employer.

• Marginal note:Not an appointment or deployment

  (2) A conversion under subsection (1) does not constitute an appointment or a deployment or entitle any person to make a complaint under section 77.

Marginal note:Rate of pay on appointment

60. The rate of pay on appointment to a position shall be determined by the employer within the scale of rates of pay for that position or for positions of the same occupational nature and level as that position.

Marginal note:Probationary period

• 61. (1) A person appointed from outside the public service is on probation for a period

  • (a) established by regulations of the Treasury Board in respect of the class of employees of which that person is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act; or

  • (b) determined by a separate agency in respect of the class of employees of which that person is a member, in the case of an organization that is a separate agency to which the Commission has exclusive authority to make appointments.

• Marginal note:Effect of appointment or deployment

  (2) A period established pursuant to subsection (1) is not terminated by any appointment or deployment made during that period.

Marginal note:Termination of employment

• 62. (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

  • (a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or

  • (b) the notice period determined by the separate agency in respect of the class of employees of which that employee is a member, in the case of a separate agency to which the Commission has exclusive authority to make appointments,

  and the employee ceases to be an employee at the end of that notice period.

• Marginal note:Compensation in lieu of notice

  (2) Instead of notifying an employee under subsection (1), the deputy head may notify the employee that his or her employment will be terminated on the date specified by the deputy head and that they will be paid an amount equal to the salary they would have been paid during the notice period under that subsection.

Marginal note:Resignation

63. An employee may resign from the public service by giving the deputy head notice in writing of his or her intention to resign, and the employee ceases to be an employee on the date specified by the deputy head in writing on accepting the resignation, regardless of the date of the acceptance.

Marginal note:Laying off of employees

• 64. (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.

• Marginal note:Selection of employees

  (2) Where the deputy head determines under subsection (1) that some but not all of the employees in any part of the deputy head’s organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.

• Marginal note:Exception

  (3) Subsection (1) does not apply where employment is terminated in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act.

• Marginal note:Effect of lay-off

  (4) An employee ceases to be an employee when the employee is laid off.

Marginal note:Complaint to Tribunal re lay-off

• 65. (1) Where some but not all of the employees in a part of an organization are informed by the deputy head that they will be laid off, any employee selected for lay-off may make a complaint to the Tribunal, in the manner and within the time fixed by the Tribunal’s regulations, that his or her selection constituted an abuse of authority.

• Marginal note:Limitation

  (2) No complaint may be made under subsection (1) against the decision to lay off employees, the determination of the part of the organization from which employees will be laid off or the number of employees to be laid off from that part.

• Marginal note:Right to be heard

  (3) A complainant, every other employee in the part of the organization referred to in subsection (1), the deputy head and the Commission — or their representatives — are entitled to be heard by the Tribunal.

• Marginal note:Lay-off set aside

  (4) Where the Tribunal finds a complaint under subsection (1) to be substantiated, it may set aside the decision of the deputy head to lay off the complainant and order the deputy head to take any corrective action that it considers appropriate, other than the lay-off of any employee.

• Marginal note:Notice to Canadian Human Rights Commission

  (5) Where a complaint raises an issue involving the interpretation or application of the Canadian Human Rights Act, the complainant shall, in accordance with the regulations of the Tribunal, notify the Canadian Human Rights Commission of the issue.

• Marginal note:Canadian Human Rights Commission

  (6) Where the Canadian Human Rights Commission is notified of an issue pursuant to subsection (5), it may make submissions to the Tribunal with respect to that issue.

• Marginal note:Application of Canadian Human Rights Act

  (7) In considering whether a complaint is substantiated, the Tribunal may interpret and apply the Canadian Human Rights Act, other than its provisions relating to the right to equal pay for work of equal value.

• Marginal note:Relief for discrimination

  (8) Corrective action may include an order for relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.

PART 5INVESTIGATIONS AND COMPLAINTS RELATING TO APPOINTMENTS

Investigation of Appointments by Commission

Marginal note:External appointments

66. The Commission may investigate any external appointment process and, if it is satisfied that the appointment was not made or proposed to be made on the basis of merit, or that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment, the Commission may

• (a) revoke the appointment or not make the appointment, as the case may be; and

• (b) take any corrective action that it considers appropriate.

Marginal note:Internal appointments — no delegation

• 67. (1) The Commission may investigate an internal appointment process, other than one conducted by a deputy head acting under subsection 15(1), and, if it is satisfied that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment, the Commission may

  • (a) revoke the appointment or not make the appointment, as the case may be; and

  • (b) take any corrective action that it considers appropriate.

• Marginal note:Internal appointments — delegation

  (2) The Commission may, at the request of the deputy head, investigate an internal appointment process that was conducted by a deputy head acting under subsection 15(1), and report its findings to the deputy head and the deputy head may, if satisfied that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment,

  • (a) revoke the appointment or not make the appointment, as the case may be; and

  • (b) take any corrective action that he or she considers appropriate.

Marginal note:Political influence

68. If it has reason to believe that an appointment or proposed appointment was not free from political influence, the Commission may investigate the appointment process and, if it is satisfied that the appointment or proposed appointment was not free from political influence, the Commission may

• (a) revoke the appointment or not make the appointment, as the case may be; and

• (b) take any corrective action that it considers appropriate.

Marginal note:Fraud

69. If it has reason to believe that fraud may have occurred in an appointment process, the Commission may investigate the appointment process and, if it is satisfied that fraud has occurred, the Commission may

• (a) revoke the appointment or not make the appointment, as the case may be; and

• (b) take any corrective action that it considers appropriate.

Marginal note:Powers of Commission

• 70. (1) In conducting any investigation under this Part, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.

• Marginal note:Informality

  (2) An investigation shall be conducted by the Commission as informally and expeditiously as possible.

Marginal note:Persons acting for Commission

• 71. (1) The Commission may direct that any investigation under this Part be conducted, in whole or in part, by one or more Commissioners or other persons.

• Marginal note:Powers of Commissioner

  (2) A Commissioner directed under subsection (1) has the powers referred to in section 70 in relation to the matter before the Commissioner.

• Marginal note:Powers of other person

  (3) Subject to any limitations specified by the Commission, a person directed under subsection (1), other than a Commissioner, has the powers referred to in section 70 in relation to the matter before the person.

Marginal note:Right to make submissions

72. Where an investigation is conducted under this Part in relation to a person’s appointment or proposed appointment, that person and the deputy head in relation to the appointment — or their representatives — are entitled to make submissions to the Commission, Commissioner or other person, whichever is conducting the investigation.

Marginal note:Re-appointment following revocation

73. Where the appointment of a person is revoked under any of sections 66 to 69, the Commission may appoint that person to another position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

Complaints to Tribunal — Revocation of Appointment

Marginal note:Complaint

74. A person whose appointment is revoked by the Commission under subsection 67(1) or by the deputy head under subsection 15(3) or 67(2) may, in the manner and within the period provided by the Tribunal’s regulations, make a complaint to the Tribunal that the revocation was unreasonable.

Marginal note:Right to be heard

75. Where a complaint is made under section 74, the complainant, the deputy head and the Commission — or their representatives — are entitled to be heard by the Tribunal.

Marginal note:Revocation set aside

76. Where the Tribunal finds a complaint under section 74 to be substantiated, it may order the Commission or the deputy head, as the case may be, to set aside the revocation.

Complaints to Tribunal — Internal Appointments

Marginal note:Grounds of complaint

• 77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of

  • (a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);

  • (b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process; or

  • (c) the failure of the Commission to assess the complainant in the official language of his or her choice as required by subsection 37(1).

• Marginal note:Area of recourse

  (2) For the purposes of subsection (1), a person is in the area of recourse if the person is

  • (a) an unsuccessful candidate in the area of selection determined under section 34, in the case of an advertised internal appointment process; and

  • (b) any person in the area of selection determined under section 34, in the case of a non-advertised internal appointment process.

• Marginal note:Excluded grounds

  (3) The Tribunal may not consider an allegation that fraud occurred in an appointment process or that an appointment or proposed appointment was not free from political influence.

Marginal note:Notice to Canadian Human Rights Commission

78. Where a complaint raises an issue involving the interpretation or application of the Canadian Human Rights Act, the complainant shall, in accordance with the regulations of the Tribunal, notify the Canadian Human Rights Commission of the issue.

Marginal note:Right to be heard

• 79. (1) A person making a complaint under section 77, the person appointed or proposed for appointment, the deputy head and the Commission — or their representatives — are entitled to be heard by the Tribunal.

• Marginal note:Canadian Human Rights Commission

  (2) Where the Canadian Human Rights Commission is notified of an issue pursuant to section 78, it may make submissions to the Tribunal with respect to that issue.

Marginal note:Application of Canadian Human Rights Act

80. In considering whether a complaint under section 77 is substantiated, the Tribunal may interpret and apply the Canadian Human Rights Act, other than its provisions relating to the right to equal pay for work of equal value.

Marginal note:Corrective action when complaint upheld

• 81. (1) If the Tribunal finds a complaint under section 77 to be substantiated, the Tribunal may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Tribunal considers appropriate.

• Marginal note:Relief for discrimination

  (2) Corrective action taken under subsection (1) may include an order for relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.

Marginal note:Restrictions

82. The Tribunal may not order the Commission to make an appointment or to conduct a new appointment process.

Marginal note:Failure of corrective action

83. Where the Commission has made or proposed an appointment as a result of the implementation of corrective action ordered under section 81, a complaint may be made to the Tribunal, in the manner and within the period provided by its regulations, by

• (a) the person who made the complaint under section 77,

• (b) the person who was the subject of the appointment or proposed appointment referred to in subsection 77(1), or

• (c) any other person directly affected by the implementation of the corrective action,

on the grounds that the person was not appointed or proposed for appointment by reason of an abuse of authority by the Commission or deputy head in the implementation of the corrective action.

Marginal note:Powers of Tribunal

84. Where the Tribunal finds a complaint under section 83 to be substantiated, it may

• (a) order the Commission or the deputy head to revoke the appointment made as a result of the implementation of the corrective action, or not to make the appointment, as the case may be; and

• (b) give the Commission or the deputy head any directions that it considers appropriate with respect to the implementation of the corrective action.

Marginal note:Right to be heard

85. In the consideration of a complaint made under section 83, the persons entitled to be heard by the Tribunal are the persons entitled to make a complaint under that section in respect of the corrective action, the person appointed or proposed for appointment as a result of the corrective action, the deputy head and the Commission, or their representatives.

Marginal note:Appointment to other position

86. Where the appointment of a person is revoked pursuant to subsection 81(1), the Commission may appoint that person to another position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

Marginal note:Where no right to complain

87. No complaint may be made under section 77 in respect of an appointment under subsection 15(6) (re-appointment on revocation by deputy head), section 40 (priorities — surplus employees), any of subsections 41(1) to (4) (other priorities) or section 73 (re-appointment on revocation by Commission) or 86 (re-appointment following Tribunal order), or under any regulations made pursuant to paragraph 22(2)(a).

PART 6PUBLIC SERVICE STAFFING TRIBUNAL

Composition and Mandate

Marginal note:Tribunal continued

• 88. (1) The Public Service Staffing Tribunal is continued, consisting of between five and seven permanent members appointed by the Governor in Council and any temporary members that are appointed under section 90.

• Marginal note:Mandate

  (2) The mandate of the Tribunal is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83.

• Marginal note:Eligibility

  (3) In order to be eligible to hold office as a member, a person must

  • (a) be a Canadian citizen within the meaning of the Citizenship Act or a permanent resident within the meaning of the Immigration and Refugee Protection Act; and

  • (b) have knowledge of or experience in employment matters in the public sector.

• Marginal note:Full-time or part-time

  (4) Members shall be appointed on a full-time or part-time basis.

• Marginal note:Chairperson and Vice-Chairperson

  (5) The Governor in Council shall designate a full-time permanent member to be Chairperson of the Tribunal and a full-time or part-time permanent member to be its Vice-Chairperson.

• Marginal note:Residence of Chairperson

  (6) The Chairperson shall reside in the National Capital Region as described in the schedule to the National Capital Act or within the distance of it specified by the Governor in Council.

Marginal note:Tenure

• 89. (1) A permanent member of the Tribunal holds office during good behaviour for a term not exceeding five years, but may be removed for cause by the Governor in Council.

• Marginal note:Reappointment

  (2) A permanent member is eligible to be reappointed.

Marginal note:Temporary members

• 90. (1) The Governor in Council may appoint temporary members of the Tribunal whenever, in the Governor in Council’s opinion, the workload of the Tribunal so requires.

• Marginal note:Tenure

  (2) A temporary member of the Tribunal holds office during good behaviour for a term not exceeding two years, but may be removed for cause by the Governor in Council.

• Marginal note:Reappointment

  (3) A temporary member is eligible to be reappointed.

Marginal note:Carrying out functions

91. Members shall not accept or hold any office or employment or carry on any activity inconsistent with their functions, and full-time members shall devote the whole of their time to the performance of their functions.

Marginal note:Remuneration

• 92. (1) A member shall be paid the remuneration fixed by the Governor in Council.

• Marginal note:Expenses

  (2) Members are entitled to be paid reasonable travel and other expenses incurred by them in the course of their duties while absent from, in the case of full-time members, their ordinary place of work and, in the case of part-time members, their ordinary place of residence.

• Marginal note:Application of Public Service Superannuation Act

  (3) Full-time members are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

• Marginal note:Application of other Acts

  (4) All members are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.

Marginal note:Offices

• 93. (1) The head office of the Tribunal shall be in the National Capital Region described in the schedule to the National Capital Act and the Tribunal may, with the approval of the Governor in Council, establish any regional offices that it considers necessary to carry out its mandate.

• Marginal note:Services and facilities

  (2) In executing its mandate, the Tribunal may use any services and facilities of departments, boards and agencies of the Government of Canada that are appropriate for the operation of the Tribunal.

Marginal note:Chief executive officer

• 94. (1) The Chairperson of the Tribunal is its chief executive officer and has supervision over and direction of the work of the Tribunal, including the assignment of complaints to members and the determination of the date, time and place of hearings.

• Marginal note:Delegation by Chairperson

  (2) The Chairperson may authorize the Vice-Chairperson to exercise any of the Chairperson’s powers or perform any of the Chairperson’s functions.

• Marginal note:Absence of Chairperson

  (3) If the Chairperson is absent or unable to act or the office of Chairperson is vacant, the Vice-Chairperson shall act as the Chairperson and, while so acting, has all the powers and shall perform all the duties of the Chairperson.

• Marginal note:Acting Chairperson

  (4) If both the Chairperson and the Vice-Chairperson are absent or unable to act or if both of their offices are vacant, the minister designated under section 110 may authorize a permanent member or other qualified person to act as Chairperson for a period not exceeding 60 days and the Governor in Council may authorize a permanent member or other qualified person to act as Chairperson for any longer period.

Marginal note:Human resources

• 95. (1) The Chairperson may employ persons for the proper conduct of the Tribunal’s work, fix their period of employment, establish their probationary periods, reject them on probation and lay them off.

• Marginal note:Experts and advisers

  (2) The Chairperson may retain on a temporary basis the services of mediators and other experts or persons having technical or special knowledge to assist the Tribunal in an advisory capacity and, subject to the approval of the Treasury Board, fix their remuneration.

• Marginal note:Application of Public Service Superannuation Act

  (3) Persons retained under subsection (2) are not employed in the public service for the purposes of the Public Service Superannuation Act.

Marginal note:Political activities

96. Part 7 applies to persons employed by the Tribunal as if they were employees as defined in subsection 2(1).

Complaint Procedure

Marginal note:Mediation services

• 97. (1) The Tribunal may provide mediation services at any stage of a proceeding in order to resolve a complaint.

• Marginal note:Member as mediator

  (2) The provision of mediation services by a member at any stage of hearing a complaint does not prevent that member from continuing to hear the complaint with respect to any issues that have not been resolved, unless the Commission or any person entitled to be heard objects to that member continuing.

Marginal note:Hearing by single member

• 98. (1) A complaint shall be determined by a single member of the Tribunal, who shall proceed as informally and expeditiously as possible.

• Marginal note:Decision of member

  (2) A decision made by a member is a decision of the Tribunal.

Marginal note:Powers of Tribunal

• 99. (1) The Tribunal has, in relation to a complaint, the power to

  • (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner and to the same extent as a superior court of record;

  • (b) order that a hearing be conducted using any means of telecommunication that permits all persons participating to communicate adequately with each other;

  • (c) administer oaths and solemn affirmations;

  • (d) accept any evidence, whether admissible in a court of law or not;

  • (e) compel, at any stage of a proceeding, any person to produce any documents and things that may be relevant; and

  • (f) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of an employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliances or articles in the premises and require any person in the premises to answer all proper questions relating to the complaint.

• Marginal note:Dismissing complaint

  (2) The Tribunal may summarily dismiss any complaint that, in its opinion, is frivolous or vexatious.

• Marginal note:Decision without oral hearing

  (3) The Tribunal may decide a complaint without holding an oral hearing.

Marginal note:Former member continuing to act

100. At any time within eight weeks after a person resigns or otherwise ceases to hold office as a member of the Tribunal, the person may, at the request of the Chairperson, dispose of any matter previously heard by that person and, for that purpose, the person is deemed to be a part-time member.

Marginal note:Copy of decision provided

101. The Tribunal shall render a decision on a complaint made under subsection 65(1) or section 74, 77 or 83 and provide a copy of it — including any written reasons — and any accompanying order to the Commission and to each person who exercised the right to be heard on the complaint.

Marginal note:Decisions final

• 102. (1) Every decision of the Tribunal is final and may not be questioned or reviewed in any court.

• Marginal note:No review by certiorari, etc.

  (2) No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Tribunal in relation to a complaint.

Marginal note:Filing of order in Federal Court

• 103. (1) The Commission or any person to whom an order of the Tribunal applies may, after the day specified for compliance or, if no such day is specified in the order, not sooner than 30 days after the day the order was made, file in the Federal Court a certified true copy of the order.

• Marginal note:Effect of filing

  (2) On the filing of an order, it becomes an order of the Federal Court and may be enforced as such.

General

Marginal note:Members not compellable as witnesses

104. Members of the Tribunal, persons employed by the Tribunal and persons retained under subsection 95(2) are not competent or compellable to appear as a witness in any civil proceedings respecting information obtained in the discharge of their functions.

Marginal note:Notes and drafts not to be disclosed

105. None of the following may be disclosed without the consent of the person who made them:

• (a) notes or draft orders or decisions of the members of the Tribunal; and

• (b) notes of any person providing mediation services under this Part.

Marginal note:Immunity from proceedings

106. No criminal or civil proceedings lie against a member of the Tribunal, or any person acting on behalf of the Tribunal for anything done or omitted to be done by that member or that person in good faith under this Part.

Marginal note:Oath or affirmation

107. Before commencing his or her functions, a person appointed as a member of the Tribunal shall take an oath or make a solemn affirmation in the following form before a commissioner of oaths or other person having authority to administer oaths or solemn affirmations:

I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgement, skill and ability, execute and perform the office of member (or Chairperson or Vice-Chairperson) of the Public Service Staffing Tribunal. (Add, in the case where an oath is taken, “So help me God” (or name of deity).)

Marginal note:Payment of witness fees

108. A person who is summoned by a member of the Tribunal to attend as a witness at any proceeding of the Tribunal is entitled to receive fees and allowances for so attending equal to those to which the person would be entitled if summoned to attend before the Federal Court.

Regulations and Report

Marginal note:Regulations of Tribunal

109. The Tribunal may make regulations respecting

• (a) the manner in which and the time within which a complaint may be made under subsection 65(1) or section 74, 77 or 83;

• (b) the procedure for the hearing of complaints by the Tribunal;

• (c) the time within which, and the persons to whom, notices and other documents must be given in relation to complaints and when the notices are deemed to have been sent, given or received;

• (d) the manner of giving notice of an issue to the Canadian Human Rights Commission under subsection 65(5) or section 78; and

• (e) the disclosure of information obtained in the course of an appointment process or a complaint proceeding under this Act.

Marginal note:Annual report

• 110. (1) The Chairperson shall, as soon as possible after the end of each fiscal year, prepare and transmit to the minister designated by the Governor in Council for the purposes of this section a report for that fiscal year in respect of matters under the Tribunal’s jurisdiction.

• Marginal note:Tabling in Parliament

  (2) The minister to whom the report is transmitted shall cause the report to be laid before each House of Parliament within the first fifteen days on which that House is sitting after the minister receives it.

PART 7POLITICAL ACTIVITIES

Interpretation

Marginal note:Definitions

• 111. (1) The following definitions apply in this Part.

  “election”

  « élection »

  “election” means a federal, provincial, territorial or municipal election.

  “federal election”

  « élection fédérale »

  “federal election” means an election to the House of Commons.

  “municipal election”

  « élection municipale »

  “municipal election” means an election as the mayor or a member of the council of a municipality.

  “municipality”

  « municipalité »

  “municipality” means

  • (a) an incorporated or unincorporated regional municipality, city, town, village, rural municipality, township, county, district or other municipality, however designated; or

  • (b) any other local or regional authority that is determined by the Governor in Council to be a municipality for the purposes of this Part.

  “political activity”

  « activité politique »

  “political activity” means

  • (a) carrying on any activity in support of, within or in opposition to a political party;

  • (b) carrying on any activity in support of or in opposition to a candidate before or during an election period; or

  • (c) seeking nomination as or being a candidate in an election before or during the election period.

  “provincial election”

  « élection provinciale »

  “provincial election” means an election to the legislature of a province.

  “territorial election”

  « élection territoriale »

  “territorial election” means an election to the Council of the Yukon or the Northwest Territories or the Legislative Assembly of Nunavut.

• Meaning of “deputy head”

  (2) For the purposes of this Part, “deputy head” includes a Commissioner appointed under subsection 4(5) and the Chairperson of the Tribunal designated under subsection 88(5).

Purpose of Part

Marginal note:Purpose

112. The purpose of this Part is to recognize the right of employees to engage in political activities while maintaining the principle of political impartiality in the public service.

Employees

Marginal note:Permitted activities

• 113. (1) An employee may engage in any political activity so long as it does not impair, or is not perceived as impairing, the employee’s ability to perform his or her duties in a politically impartial manner.

• Marginal note:Regulations

  (2) The Governor in Council may, on the recommendation of the Commission, make regulations specifying political activities that are deemed to impair the ability of an employee, or any class of employees, to perform their duties in a politically impartial manner.

• Marginal note:Factors

  (3) In making regulations, the Governor in Council may take into consideration factors such as the nature of the political activity and the nature of the duties of an employee or class of employees and the level and visibility of their positions.

Marginal note:Seeking candidacy

• 114. (1) An employee may seek nomination as a candidate in a federal, provincial or territorial election before or during the election period only if the employee has requested and obtained permission from the Commission to do so.

• Marginal note:Being a candidate before election period

  (2) An employee may, before the election period, be a candidate in a federal, provincial or territorial election only if the employee has requested and obtained permission from the Commission to do so.

• Marginal note:Being a candidate during election period

  (3) An employee may, during the election period, be a candidate in a federal, provincial or territorial election only if the employee has requested and obtained a leave of absence without pay from the Commission.

• Marginal note:Granting of permission

  (4) The Commission may grant permission for the purpose of subsection (1) or (2) only if it is satisfied that the employee’s ability to perform his or her duties in a politically impartial manner will not be impaired or perceived to be impaired.

• Marginal note:Granting of leave

  (5) The Commission may grant leave for the purpose of subsection (3) only if it is satisfied that being a candidate during the election period will not impair or be perceived as impairing the employee’s ability to perform his or her duties in a politically impartial manner.

• Marginal note:Factors

  (6) In deciding whether seeking nomination as, or being, a candidate will impair or be perceived as impairing the employee’s ability to perform his or her duties in a politically impartial manner, the Commission may take into consideration factors such as the nature of the election, the nature of the employee’s duties and the level and visibility of the employee’s position.

• Marginal note:Conditions

  (7) The Commission may make permission under subsection (4) conditional on the employee taking a leave of absence without pay for the period or any part of the period in which he or she seeks nomination as a candidate, or for the period or any part of the period in which he or she is a candidate before the election period, as the case may be.

• Marginal note:Effect of election

  (8) An employee ceases to be an employee on the day he or she is declared elected in a federal, provincial or territorial election.

Marginal note:Candidacy in municipal elections

• 115. (1) An employee may seek nomination as, or be, a candidate in a municipal election before or during the election period, only if the employee has requested and obtained permission from the Commission to do so.

• Marginal note:Granting of permission

  (2) The Commission may grant permission only if it is satisfied that seeking nomination as, or being, a candidate in the election will not impair or be perceived as impairing the employee’s ability to perform his or her duties in a politically impartial manner.

• Marginal note:Factors

  (3) In deciding whether seeking nomination as, or being, a candidate will impair or be perceived as impairing the employee’s ability to perform his or her duties in a politically impartial manner, the Commission may take into consideration factors such as the nature of the election, the nature of the employee’s duties and the level and visibility of the employee’s position.

• Marginal note:Conditions

  (4) The Commission may make permission under this section conditional on

  • (a) the employee taking a leave of absence without pay

    • (i) for the period or any part of the period in which he or she seeks nomination as a candidate, or for the period or any part of the period in which he or she is a candidate before the election period, as the case may be, or

    • (ii) for the period in which he or she is a candidate during the election period; and

  • (b) the employee taking a leave of absence without pay or ceasing to be an employee if he or she is declared elected.

Marginal note:Notice

116. On granting an employee permission under subsection 114(4), leave under subsection 114(5) or permission under subsection 115(2), the Commission shall cause notice that it has done so, together with the name of that employee, to be published in the Canada Gazette.

Deputy Heads

Marginal note:Political activities

117. A deputy head shall not engage in any political activity other than voting in an election.

Allegations

Marginal note:Investigation and corrective action — employees

118. The Commission may investigate any allegation, in accordance with the regulations, that an employee has failed to comply with any of subsections 113(1), 114(1) to (3) and 115(1) and, if it concludes that the allegation is substantiated, may dismiss the employee or may take any corrective action that it considers appropriate.

Marginal note:Investigation and dismissal — deputy head

• 119. (1) The Commission may investigate any allegation, made to it by a person who is or has been a candidate in an election, that a deputy head has contravened section 117 and, if it concludes that the allegation is substantiated, the Commission shall report its conclusion to the Governor in Council and the Governor in Council may dismiss the deputy head.

• Marginal note:Exception

  (2) Subsection (1) does not apply in respect of any deputy head whose removal from office is expressly provided for by this or any other Act, otherwise than by termination of his or her appointment at pleasure.

Marginal note:Powers under Inquiries Act

120. In conducting any investigation under this Part, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.

Marginal note:Persons acting for Commission

• 121. (1) The Commission may direct that any investigation under this Part be conducted, in whole or in part, by one or more Commissioners or other persons.

• Marginal note:Powers of Commissioner

  (2) A Commissioner directed under subsection (1) has the powers referred to in section 120 in relation to the matter before the Commissioner.

• Marginal note:Powers of other person

  (3) Subject to any limitations specified by the Commission, a person directed under subsection (1), other than a Commissioner, has the powers referred to in section 120 in relation to the matter before the person.

Marginal note:Right to be heard

122. A person making an allegation under section 118 or 119 and the employee or deputy head against whom it is made — or their representatives — are entitled to be heard by the Commission, Commissioner or other person, whichever is conducting the investigation.

PART 8GENERAL

Application of Act

Marginal note:Regulations of Governor in Council

• 123. (1) The Governor in Council may, notwithstanding any other Act, make regulations applying to any organization or any part of any organization all or any of the provisions of this Act that do not otherwise apply to it.

• Marginal note:Application of other Acts

  (2) A regulation made under subsection (1) prevails over the provisions of any other Act or regulations made under any other Act respecting the same matter.

Marginal note:Application of regulations

124. A regulation made by the Commission, the Treasury Board or the Governor in Council under this Act may be of general application or may apply to a specified person, position, occupational group, organization or part of an organization, or any class of them, or in respect of a specified process or any class of process.

Head of Public Service

Marginal note:Appointment by Governor in Council

125. The Governor in Council may appoint and fix the remuneration of the Clerk of the Privy Council and Secretary to the Cabinet.

Marginal note:Clerk of Privy Council

126. The Clerk of the Privy Council and Secretary to the Cabinet is the head of the public service.

Marginal note:Report of head of the public service

127. The head of the public service shall submit a report on the state of the public service in each fiscal year to the Prime Minister, and the Prime Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Prime Minister receives it.

Ministerial Staff

Marginal note:Ministerial staff

• 128. (1) A minister, or a person holding the recognized position of Leader of the Opposition in the House of Commons or Leader of the Opposition in the Senate, may appoint an executive assistant and other persons required in his or her office.

• Marginal note:Termination of employment

  (2) A person who is employed in an office referred to in subsection (1) ceases to be so employed thirty days after the person holding a position referred to in subsection (1) ceases to hold that position.

Marginal note:Regulations

129. The Governor in Council may make regulations applying all or any of the provisions of this Act to any of the positions of persons appointed by ministers under subsection 128(1).

Public Officials

Marginal note:Appointments by Governor in Council

130. The Governor in Council may appoint and fix the remuneration of

• (a) the Secretary to the Cabinet for Federal-Provincial Relations;

• (b) the Clerk of the Senate;

• (c) the Clerk of the House of Commons; and

• (d) the Secretary to the Governor General.

Diplomatic Personnel

Marginal note:Diplomatic appointments

131. Nothing in this Act shall be construed as affecting the right or authority of Her Majesty to appoint ambassadors, ministers, high commissioners or consuls-general of Canada to another country or to appoint other persons to represent Canada in another country.

Block Transfers

Marginal note:Transfer of employees

• 132. (1) Nothing in an order made under the Public Service Rearrangement and Transfer of Duties Act shall be construed as affecting the status of an employee who, immediately before the coming into force of the order, occupied a position in a portion of the core public administration the control or supervision of which has been transferred from one department or other portion of the core public administration to another, or in a department that has been amalgamated and combined, except that the employee shall, on the coming into force of the order, occupy that position in the department or other portion of the core public administration to which the control or supervision has been transferred or in the department as amalgamated and combined.

• Marginal note:Transfer of other staff

  (2) Where an order is made under the Public Service Rearrangement and Transfer of Duties Act, the Governor in Council may, by order made on the recommendation of the Treasury Board and where the Governor in Council is of the opinion that an employee or class of employees is carrying out powers, duties or functions that are in whole or in part in support of or related to the powers, duties and functions of employees referred to in subsection (1) and that it is in the best interests of the core public administration to do so, declare that the employee or class of employees shall, on the coming into force of the order, occupy their positions in the department or other portion of the core public administration where the employees referred to in subsection (1) are currently occupying their positions.

• Marginal note:Core public administration

  (3) For the purposes of this section, the core public administration consists of the departments, as defined in subsection 2(1), and the portions of the federal public administration named in Schedule IV to the Financial Administration Act.

Offence

Marginal note:Fraud

133. Every person who commits fraud in any appointment process is guilty of an offence punishable on summary conviction.

Oaths and Affirmations

Marginal note:Authority to administer

134. The Commission or a deputy head may administer oaths and receive affidavits, declarations and solemn affirmations in relation to matters within their respective jurisdictions under this Act.

Access to Facilities and Information

Marginal note:Access by Commission

135. Deputy heads and employees shall provide the Commission with any facilities, assistance, information and access to their respective offices that the Commission may require for the performance of its duties.

Five-year Review

Marginal note:Review

136. The minister designated by the Governor in Council for the purposes of this section shall cause a review of this Act and its administration and operation to be conducted five years after this section comes into force, and that minister shall cause a report of the review to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the review is completed.