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 bookshel ves of loose-leaf bind ers. Human resou rces personnel are

recruited into the system, spend a career attempting to understand it and die

out of it.

With that somewhat macabre descr iption, the Supreme Court of Canad a

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

ment Law. e title itself is anomalous because it refers to bot h “labour” and

“employment” law. In t he Canad ian ta xonomy of indust rial relat ions, “ 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 ind ividual, contract ual

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 relat ionship 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

3

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

In the federal public ser vice, 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 deter mined otherw ise 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 ser vice inevitably dea ls with some aspe cts of topics usually

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

e very title of this b ook, and the necessity of w riting a book about the

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

alism. Federal publ ic service labou r and employment law is exceptional, i n that

there are a number of signic ant dierences bet ween labour and employment

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

jurisdictions (whether t he federally reg ulated private sector, provincia l public

services, or t he provincial ly 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 a nd waning of two concepts: t he merit principle

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

“exceptional,” and not usual ly in a positive way; and t hat 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 labou r and employment law in the

private sector. Before setting out the se three these s in turn, th is 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 serv ice. Some of those concepts are sim ilar to those i n the private

sector, or in other public sector lega l 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, th is book focuses on the labou r and employment law that applies to the

federal public serv ice. is book al so does not contain a complete list of e very

judicial or admi nistrative deci sion 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.