Introduction

• Author: Christopher Rootham
• Pages: 3-30

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Introduction

A. INTRODUCTION

The terms and conditions of employment of the federal govern-

ment’squarter of a million current workers are set out in statutes,

collective agreements, Treasury Board directives, regulations, minis-

terial orders, and other documents that consume bookshelves of loose-

leaf binders. Human resources personnel are recruited into the system,

spend a career attempting to understand it and die out of it.1

With that somewhat macabre description, the Supreme Court of Can-

ada introduced the topic of this book, Labour and Employment Law in

the Federal Public Service. The title itself is anomalous because it refers

to both “labour” and “employment” law. In the Canadian taxonomy

of industrial relations, “labour” law refers to the laws that govern

employees who are represented by trade unions and whose relation-

ship with employers is consequently governed by collective agreements;

“employment” law refers to the laws that govern employees who are

not represented by trade unions and therefore have an individual, con-

tractual relationship with their employer. Canadian textbooks typ-

ically address one topic or the other; those rare texts that address both

topics still divide the work world into unionized and non-unionized

workplaces.2 “Employment” law is simply not relevant for unionized

1 Vaughan v Canada, 2005 SCC 11 at para 1, Binnie J.

2 Such as Labour Law Casebook Group, Labour and Employment Law: Cases,

Materials and Commentary, 9th ed (Toronto: Irwin Law, 2018).

4 | LABOUR AND EMPLOYMENT LAW IN THE FEDERAL PUBLIC SERVICE

employees because they no longer have an individual relationship with

their employer: the individual relationship has become subsumed by the

collective relationship between their trade union and their employer.3

In the federal public service, however, labour and employment law

remains relevant to all employees. Employees represented by a bar-

gaining agent still have many of their terms and conditions of employ-

ment determined otherwise than by collective bargaining, and they have

the right to pursue certain rights and recourses without their union’s

consent. Employees who are not represented by a bargaining agent

must refer certain disputes to a grievance procedure and (in some cases)

to determination by an independent third-party decision-maker — in

other words, they are required to use a system of recourse that mirrors

the arbitration system that is typically limited to unionized employees.

Therefore, any book concerning the federal public service inevitably

deals with some aspects of topics usually considered to be within the

separate spheres of labour law and employment law.

The very title of this book, and the necessity of writing a book about

the federal public service, speaks to one of the three theses of this book:

exceptionalism. Federal public service labour and employment law is

exceptional in that there are a number of signif‌icant dierences between

labour and employment law governing the federal public service and

labour and employment law in other jurisdictions (whether the federally

regulated private sector, provincial public services, or the provincially

regulated private sector). This introduction will explain the three theses

of this book. First, that federal public service labour and employment

law is about the waxing and waning of two concepts: the merit prin-

ciple and free collective bargaining. Second, that federal public service

and employment law is “exceptional,” and not always in a positive

way. Third, that the role played by the judiciary and the concept of the

“rule of law” should be more important in federal public service labour

and employment law than in labour and employment law in the private

sector. Before setting out these three theses in turn, this book will f‌irst

explore the nature and characteristics of the federal public service.

3 Isidore Garon ltée v Tremblay; Fillion et Frères (1976) inc v Syndicat national

des employés de garage du Québec inc, 2006 SCC 2 at para 13. Some statutory

protections for individual employees remain in place, where those statutory pro-

visions are capable of being incorporated into a collective agreement.