History of Labour and Employment Law in the Federal Public Service

• Author: Christopher Rootham
• Pages: 31-64

31

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History of Labour and Employment

Law in the FederalPublic Service

A. INTRODUCTION

Prior to examining the current state of federal public service labour

and employment law, it is helpful to quickly review the history and

evolution of labour and employment law that has governed federal

public servants.

B. SITUATION IN BRITAIN UP TO THE NINETEENTH CENTURY:

AN EVOLUTION TOWARD CROWN SERVANTS AND

APPOINTMENT ON THE BASIS OF MERIT

The modern idea of a public servant — a person who serves their coun-

try as opposed to a particular person — evolved in Great Britain during

the eighteenth and nineteenth centuries. Prior to that time, the workers

we would now consider “civil servants” did not owe their loyalty to

Great Britain but were instead considered to be the personal servants

of the reigning monarch. Ocials in the seventeenth century were “still

his [the monarch’s] servants, and not those of the Crown or the Pub-

lic.”1 Even though the monarch was directly responsible for appointing

their personal servants, these ocials were not completely powerless

in their dealings with the Crown. Ocials were appointed by a letter

patent. Therefore, the revocation of their appointments could be — and

1 G.E. Aylmer, The King’s Servants: The Civil Service of Charles I, 2d ed (London:

Routledge & Kegan Paul, 1971) at 464.

32 | LABOUR AND EMPLOYMENT LAW IN THE FEDERAL PUBLIC SERVICE

was — reviewed by the nascent court structure in place in England in the

seventeenth century. Consequently, they “could choose to bargain with

the Crown”2 when the Crown sought to dismiss them, knowing that

they could prevent — or at the very least delay — their dismissal through

court proceedings.

During the eighteenth century, the concept of the civil service evolved

so that public ocials became servants of their particular ministers. Min-

isters appointed, promoted, and paid their civil servants out of the revenue

generated within that particular ministry. Civil servants also collected

fees from citizens who used the particular services oered by a ministry,

and these fees were used to supplement their otherwise meagre salaries.

This obviously unsatisfactory situation began to modernize in the

nineteenth century. In 1816, the British Parliament passed the f‌irst statute

governing the civil service. That Act converted “those employed in the

various departments from being servants of the Ministers in whose oces

they served, to being servants of the Crown.”3 The 1816 Act was also the

f‌irst time that Parliament dictated the pay for civil servants. Civil servants

continued to collect fees and other sources of income by performing their

duties, but they also received an annual salary set by Parliament.

In 1855, the British government established the Civil Service Com-

mission by an order in council. The 1855 order in council gave the Civil

Service Commission the authority to conduct the entry examinations

for the British civil service:

In eect, the Order transferred to the Commissioners the duties of

conducting the examinations and inquiries which had been under-

taken previously by the departments, thereby providing an impartial

scrutiny of nominees.4

The reforms that occurred in the 1850s had several causes, two of

which were more important than others. First, the British government

had commissioned a report into its civil service. That report recom-

mended, among other things, more rigorous scrutiny of incoming civil

servants — not to completely eliminate patronage, but to ensure that

patronage was only used to appoint candidates who had some basic

qualif‌ications for their positions. Second, the British military debacle

2 Ibid.

3 Emmeline W. Cohen, The Growth of the British Civil Service 1780–1939, 2d ed

(London: Frank Cass & Co, 1965) at 20.

4 Ibid at 111.

History of Labour and Employment Law in the FederalPublic Service | 33

in the Crimean War triggered a political outcry demanding signif‌icant

improvement in British government administration. The maltreatment

of British casualties led Florence Nightingale to help create a modern

system of nursing and hospital care; the administrative malfeasance

that caused many of those casualties in the f‌irst place forced the British

government to re-evaluate who it was appointing as civil servants.

The Civil Service Commission was still no guarantee of appointment

by merit: appointment still remained a political gift. However, if a can-

didate failed the Civil Service Commission examination, they were not

appointed to a position. This was a guarantee that illiterate candidates

would not become civil service clerks and that candidates who could

not do basic sums would not be appointed as customs clerks or auditors.

In 1870, the British government went further and (again by order

in council) instituted recruitment into the civil service by open competi-

tive examination. As a political compromise, competitive examinations

were not used in some departments whose ministers objected to open

competitions as a matter of principle (most notably, the foreign secre-

tary); however, the principle of appointment by merit had taken hold.

By the end of the nineteenth century,

certain basic principles had been agreed upon. It had been recognized

that posts should be awarded on merit, and that merit should be

objectively assessed, that the role of personal prejudice and political

inf‌luence in recommending candidates for appointments should be

eliminated as far as the Home Service was concerned.5

C. THE EARLY YEARS: THE INTRODUCTION OF

APPOINTMENT ACCORDING TO MERIT IN CANADA

The f‌irst Canadian Civil Service Act6 was enacted in 1857 in the United

Province of Upper and Lower Canada. This early Civil Service Act did

f‌ive things:

1) The people comprising the “sta” of each department of the Can-

adian civil service were divided into two classes: “ocers” and

“clerks.” “Ocers” were the deputy heads of each department,

5 Ibid at 166.

6 An Act for improving the organization and increasing the eciency of the Civil

Service of Canada, 20 Vict c 24 (1857).