Introduction

• Author: Christopher Rootham
• Pages: 3-25

 

INTRODUCTION

A. INTRODUCTION

e terms and condit ions of employment of the federal gover nment’s quarter of

a million cu rrent workers are set out in statutes, c ollective agreements, Treas-

ury Board d irectives, regu lations, ministe rial orders, and other do cuments 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.

With that somewhat macabre description, the Supreme Court of Canada

introduced the topic of this book, Federal Public Service Labour and Employ-

ment Law. e 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 u nions

and whose relationship 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, contractual

relationship with their employer. Canadi an textbooks typica lly address one topic

or the other; those rare texts that address both topics still divide the work world

into unionized a nd non-unionized workplaces. “Emp loyment” law is s imply not

relevant for union ized employees because they no longer have an indiv idual rela-

tionship with their employer: the i ndividual relationship has become subsumed

by the collective relationship be tween their trade union and their employer.

Vaughan v. Canada, []  S.C.R.  at pa ra. , Binnie J.

For example, Labour Law Casebook Group,For example, Labou r Law Casebook Group, Labour and Employment Law: Cases, Mate-

rials and Commen tary, th ed. (Toronto: Irwin Law, ).

Isidore Garon ltée v. Tremblay; Fillion e t Frères () inc. v. Syndicat national des em-

ployés de garage du Québec inc., []  S.C.R.  at para. . Some st atutory protections

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4        

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

relevant to al l employees. Employees represented by a barga ining agent still have

many of their terms and conditions of employment determined otherwise than

by collective bargai ning, and have the right to pursue cer tain rights and recou rses

without their union’s consent. Employees who are not represented by a bargai ning

agent must refer certain di sputes to a grievance procedure, and (in some cases) to

determination by an independent thi rd-party dec ision-maker — in other words,

they are required to u se a system of recourse that mirrors the a rbitration system

that is typica lly limited to unioniz ed employees. erefore, any book concerning

the federal public service inevitably deals with some aspects of topics usually

considered to be within t he separate spheres of labour and employment law.

e 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: exception-

alism. Federal public service labour and employment law is exceptional, in that

there are a number of signicant dierences between labour and employment

law governing the federal public ser vice and labour and employment law in other

jurisdictions (whether the federally regulated private sector, provincial public

services, or t he provincially regulated private sec tor). is introduction wil l ex-

plain the th ree theses of this book: t hat federal public service l abour and employ-

ment law is about the waxing and waning of two concepts: the merit principle

and free collect ive bargaining; that federal publ ic service and employment law is

“exceptional,” and not usually in a positive way; and that the role played by the

judiciary and t he concept of the “rule of law” is more important in federa l 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 rst

explore the nature and cha racteristics of the federal public ser vice.

is book is not about basic concepts in labour or employment law. Rather,

this book is about labour and employment law concepts a s they apply to the fed-

eral public service. Some of those concepts are similar to those in the private

sector, or in other public sector legal regimes. In fac t, many of the issues in this

book are simila r to the issues faced in other jurisd ictions. Where that is the case,

the law from other jurisd ictions is noted and discussed, but not in det ail. In most

cases, this book focuses on the labour and employment law that applies to the

federal public service. is book also does not contain a complete list of every

judicial or administrative decision governing public serv ice labour and employ-

ment law. Rather, it is meant to provide the leading cases a nd, where appropriate,

a representative sa mple of decisions to explain or provide exa mples of particular

points.

for individua l employees remain in place, whe re those statutory provi sions are capable

of being incorpor ated into a collective ag reement.