PSOA Employment

• Author: Timothy Hadwen/David Strang
• Pages: 44-96

44

 

PSOA Employment

The Public Service of Ontario Act 2006 (PSOA), proclaimed in 2007,

replacing the Public Service Act (PSA), addresses two primary concerns.1

The f‌irst is to modernize the legal structure of the public service to align

with the more centralized nature of modern government and a whole

government approach to human resources while preserving its impartial,

non-partisan nature. The second is to strengthen the ethical standards

expected of public servants and expand the coverage to agencies. The

beginning of this chapter addresses how the PSOA structures the public

service. The remainder of the chapter reviews terms and conditions of

employment established under Part III of the Act. The ethical framework,

including the oaths of loyalty and oce and Parts IV, V, and VI, of the

PSOA dealing with conf‌lict of interest, political activity, and disclosure

of wrongdoing, are addressed in the next chapter.

A. LEGAL AND POLITICAL CONTEXT

In accordance with the Constitution Act, 1867 and constitutional con-

ventions, Ontario is a Westminster-model parliamentary democracy.2

The executive branch of government is divided into ministries, each of

1 Public Service of Ontario Act, 2006, SO 2006, c 35, Sch A [PSOA], replacing

Public Service Act, RSO 1990, c P.47 [PSA].

2 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 134, reprinted in RSC 1985,

App II, No 5 [Constitution Act, 1867]. See Chapter 1 for a discussion of the

constitutional context.

PSOA Employment | 45

which is headed by a minister who is answerable to the legislature for the

conduct of their ministry. Executive authority resides with the elected

executive council, or Cabinet, composed of the premier and their min-

isters.3 The Cabinet is responsible for and has authority to direct the

operations of government, including the public service. This includes

the authority to create ministries (though key ministries are created by

statute) or alter the assignment of responsibilities among ministers.4

A permanent politically neutral public service able to provide advice

and implement political direction impartially and eectively is essential

to the functioning of a parliamentary democracy.5 New administrations

must have a loyal, experienced, ecient, eective public service to allow

the new administration to govern successfully and begin to implement

their policy agenda when they take oce. While the public service must

be non-partisan, it must also be eectively directed and managed by the

elected executive.

With the growth in the size and complexity of government, the for-

mer PSA became inconsistent with the increasingly centralized nature of

modern government and the eective supervision of the public service

by the elected executive.

The PSOA formalized a fundamental change in the structure of

the public service from one that had separate ministries reporting to a

deputy minister who reported to their minister, to a whole government

structure where the management of the public service was centralized.

The role of the secretary of the Cabinet as head of the public service was

strengthened and formalized, with deputy ministers having a reporting

relationship to the secretary. The role of the Management Board of

Cabinet (MBC) was also strengthened. With the exception of hiring

and dismissal, which are central to ensuring the non-partisan nature

of the public service, the MBC retains authority over all aspects of the

management and direction of the public service. In practice, respons-

ibility for management of the public service is delegated to the Pub-

lic Service Commission (PSC) and then to deputy ministers and their

management teams, but the authority of the elected executive to direct

or limit the exercise of delegated authority is clear so long as its direc-

tions do not compromise the non-partisan nature of the public service.

3 Ibid, ss 63, 65 & 66; Executive Council Act, RSO 1990, c E.25.

4 Executive Council Act, ibid, ss 2 and 5.

5 See Chapter 1 for a discussion of the role and attributes of the public service, and

the history of its oversight.

46 | ONTARIO PUBLIC SERVICE EMPLOYMENT AND LABOUR LAW

The PSOA preserves the fundamental nature of the Westminster

model while addressing the practical issues of maintaining an eect-

ive, democratically controlled, large, complex, and non-partisan public

service.

B. APPLICATION OF THE ACT

) Def‌initions and Terminology

The PSOA def‌ines the “public service of Ontario” broadly to encom-

pass both ministries, including ministers’ oces, and public bodies.

“Public bodies” are agencies prescribed by regulation for the purpose of

making those bodies subject to the PSOA’s ethical framework.6 “Public

servants” are def‌ined for the same purpose to be employees in ministries

or public bodies, deputy ministers including the secretary of the Cabinet,

and appointees to public bodies (except judicial appointees and ocers

of the legislature).7 In practice, entities that are agencies of the govern-

ment of Ontario are prescribed as public bodies.8 Those provisions of

the PSOA that apply to “public servants” apply to both ministry sta

and appointees to and employees of public bodies.

The term “Ontario Public Service” (OPS) has been traditionally,

but not statutorily, applied to the direct employees of the Ontario gov-

ernment. The OPS includes employees in ministries and in agencies of

the Ontario government that do not have authority to hire their own

employees that are prescribed as commission public bodies.9 Under

PartIII of the Act, members of the OPS are appointed under the author-

ity of the Public Service Commission to employment in ministries or

commission public bodies under section 32, or by a person delegated

by the premier or a minister to employment in a minister’s oce under

section 47.

Appointments by the PSC may be “for a f‌ixed term or otherwise.”10

In practice, “regular” appointments are for an indef‌inite period to a

position established and classif‌ied within a ministry or commission pub-

lic body. “Fixed- term” appointments are for a specif‌ic period and cease

6 PSOA, above note 1, s 2(1).

7 Ibid, s 2(2)d–(3).

8 O Reg 147/10.

9 Ibid.

10 PSOA, above note 1, s 32.