Public Service Act Employment
| Author | Timothy Hadwen - David Strang - Leonard Marvy - Don Eady |
| Profession | Director, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP |
| Pages | 99-182 |
Public Service A Employment
A. INTRODUCTION PUBLIC SERVICE ACT
) 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 staed 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 denes 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 denes 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 conict 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 oci 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
tive Bargaining Act (CECBA). Finally, unless expressly excluded or modied 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.
Bargaining Act 1993, and Collective Agreements
e denition of Crown employee in Par t I of the PSA, further discus sed below,
is adopted as the denit 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 conict 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
that:
Any provision in a col lective agreement that is in c onict with a provision of a
regulation a s it aects 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 conict. However,
potential for conict 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 benet, 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 “conict.” 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 ocers , 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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