Public Service Act Employment

AuthorTimothy Hadwen - David Strang - Leonard Marvy - Don Eady
ProfessionDirector, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
 
Public Service A Employment
) Structure
e Public Services Act (PSA) is primarily concerned with employ ment in the
“public service” which, in general terms, consists of the direct employees of gov-
ernment in the ministries of government and agencies staed by direct employ-
ees of the government. e Act also de nes “Crown employee” to include both
the public servic e and employees in certain designated agencies.
e PSA is divided into ve par ts. is chapter focuses on Parts I a nd V, and
the regulat ions under Part V. Part I denes the public ser vice, provides for hir-
ing, managing a nd termination of members of the public service and deter mines
the powers and duties of minister s, deputy ministers, the Civi l Service Commis-
sion (CSC), and their delegates. Part V provides authorit y for the CSC to make
regulations, subjec t to the approval of Cabinet, governing t he administration of
the public servic e and the terms and conditions of employment of members of
the public ser vice. e general re gulation made pur suant to that Part , contains a
range of adminis trative rules and terms of employment applic able to members of
the public ser vice. Part I of the PSA also denes the term “Crown employee” and
Part II —Onta rio Provincial Polic e is reviewed under the corre sponding topic in
Chapter ; Part II I— Political Activit y, Part IV, Whistleblowing, a nd the portions of
Regulation   concerning conict of i nterest are reviewed in Chapt er ; and the por-
tions of Regulat ion  concerning grie vances to the Public Ser vice Grievance Boa rd
are reviewed in Ch apter .
R.R.O. , Reg.  as amended.
Public service pension s are discussed in Ch apter , section G at .
         
provides that only the members of t he public service a nd employees of Crown
agencies designated by regu lation under the Act employ Crown employees.
) Legal Context
e authority for the governance of the publ ic service and the ter ms of employ-
ment of public ser vants do not ari se exclusively f rom the PSA and regu lations.
Except as it is displaced by stat ute, the elected executive, t he Executive Council
or Cabinet made up of the premier and the min isters, have authority to direct
the operations of government. Whether oci als making decisions regardi ng the
management of the public serv ice are acting under legi slative authority or pur-
suant to the inherent power of the execut ive, they are subject to the common
law duty to act fairly, in good faith, a nd in the public interest. e operation of
the public servic e is subject to, and the PSA must be read i n the context of, cer-
tain still-unwrit ten constitutional conventions or customary rules: ministerial
responsibilit y, public service anonymit y and public serv ice impartia lity. ey
are central to understanding both the structure of Ontario’s government and the
related legislat ion. e administ ration of the public service i s also subject to a
number of other st atutes including t hose of general applicat ion, most notably the
Charter of Rights and Freedom s,Human Rights Code,Pay Equity Act,Occupa-
tional Health and Safety Act, cert ain parts of the Empl oyment Standards Act, as
well as t he Management Board of Cabinet Act, and the Crown Employees Collec-
tive Bargaining Act (CECBA). Finally, unless expressly excluded or modied by
statute, the common law ru les of employment law apply to public service employ-
ment. All these st atutes and rules form the context with in which the provisions
of the PSA and regul ations must be read.
) Inter-Relationship of the PSA, Crown Employees Collective
Bargaining Act 1993, and Collective Agreements
e denition of Crown employee in Par t I of the PSA, further discus sed below,
is adopted as the denit ion of Crown employee for purposes of the application of
O. Reg. /as ame nded lists the designated a gencies.
See section C(), below at .
See section C(), below at .
See Chapter  and Chapter  at .
“e Constitution includes w ritten rules, of cou rse, but at the same time we c annot
ignore the unwr itten principles inherent i n the democratic and parl iamentary form of
Canadian gove rnment and its origins , principles which govern th e exercise of an inde-
pendent legislat ive power.” Quebec (Commission des droits de la pe rsonne et des droits de
la jeunesse) v. Communauté urbai ne de Montréal, []  S.C.R.  at .
Discussed in this chapt er in section C(), below at .
 S.O. , c. , s. (). As discussed in C hapter .
Chapter : Public Servic e Act Employment
CECBA. CECBA applies in the plac e of the Labour Relations Act (LRA) to union-
ized members of the public ser vice and unionized employees of desig nated agen-
cies with the e xception of certain employees excluded f rom the application of the
Act. Members of the Ontar io Provincial Police Associat ion (OPPA) negotiate
under the la bour provisions of Par t II of the PSA and commun ity college employ-
ees collectively barga in under the Colleges Collective Bargaining Act.
e vast majority of public serv ants are unionized. is rai ses the potential
for a conict between t he provisions of the PSA, regu lations under the PSA and
collect ive agreement provision s. Provisions deemed by the Legislatu re to be fun-
damental to the i ntegrity of the public service are addre ssed in the Act itself and
are not subject to amendment in collect ive bargaining. Matters addre ssed by a
regulation under the Ac t are subject to collective barga ining. e PSA provide s
Any provision in a col lective agreement that is in c onict with a provision of a
regulation a s it aects the employees of a b argaining u nit covered by the col-
lective agree ment prevails over the provision of t he regulation.
Many of the provisions in the re gulations are expre ssly made inapplicable
to members of a bargaining u nit, which limits the chance for conict. However,
potential for conict remai ns where matters are dealt wit h by a combination of
provisions in both the Ac t and a regulation.
Unlike minimum standards legislation, which is normally only superseded
by a collective agreement provid ing a superior benet, the PSA appears to con-
template the collective agreement deter mining all t he terms and conditions of
employment of those in the bargai ning unit in the event of any “conict.” Under
modern collective bargain ing legislation, the collective ag reement is the docu-
ment that determines the term s and conditions of those in the barga ining unit
unless there is e xpress provision to the contrary. Ambigu ity in the application of
the “ in con ict” provisio n is li kely to be resolve d in favo ur of appl ying t he coll ec-
tive agreement provision.
Only collective agreements negotiated under CECBA and t he OPP collective
bargaining prov isions in the PSA itself would appear to preva il over a regulation
under the Act. Assoc iations representing OPP commissioned ocers , lawyers,
doctors and dentists negotiate ter ms and conditions of employment for their
 Ibid., s. .().
 R. S.O. , c. .
 PSA, R.S.O. , c. P. , s. ().
 See, for exa mple, the provisions in the Ac t creating unclassi ed employees and the
provisions in the Re gulation divid ing those employees into groups for va rious purposes,
as discuss ed in section D() below at .
 Employment Standa rds Act, , S.O. , c. , s. ().

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