Public service employment act

AuthorChristopher Rootham
 
is chapter aims to se t out the rules governing “employment” or “st ang” of
employees whose appointment and employment is governed by the Public Ser vice
Employment Act. at Act governs the appointment of employees to the feder al
public servic e, unless those appoint ments are governed by another statute. Si nce
most separate employers are governed by statutes th at grant them the power to
appoint employees to positions, in practice the Public Service Employment Act
applies primar ily to employees in the core public administ ration.
In most labour law texts, i ncluding texts dea ling with public service labour
law, there is no need to distinguish between “labour” and “employment” law. In
the private sector, “labour law” refers to t he laws governing unionized employees,
and “employment law” refers to the laws governing a ll employees, regardles s of
whether they are member s of a union. Hence, in Ontario, there is a Labour Rela-
tions Act for unionize d employees, and an Employment Standards Act sett ing out
minimum sta ndards that govern unioni zed and non-unionized employees al ike.
In the federal public ser vice, “employment” law refers largely to appoint ments
to the core public admini stration. While the Public Service Employ ment Act also
governs political act ivities of public ser vants and layos, thos e powers have al-
ready been addressed in prev ious chapters. e core of “employment law” in the
federal public serv ice is about appointments — or, to use jargon common to the
federal public serv ice, “stang.”
ere was nothing requi ring the federa l government to isolate stang i nto
a dierent statutory or lega l regime from collec tive bargaini ng. In Ontario, for
Public Service Employment Act, S.C. , c . , ss. , .
Labour Relations Act, , S.O. , c. , Sch. A.; Employme nt Standards Act, , S.O.
, c. .
           
example, where there is no stat utory “merit principle,” allegations about promo-
tions that are not made according to merit (and seniority) are dea lt with by way
of grievance li ke any other complaint. e Fryer Report recommended some
level of integration of the “ labour” and “stang” areas, alt hough not a full-scale
integration as is the c ase in Ontario. e new Public Ser vice Labour Relations
Act does go some way towards that integration by permitting grievances about
deployments, a subject matter that (under the old Act) was dea lt with exclusively
by the Public Serv ice Commission on the “stang” side of the div ide. However,
for the most part, the federa l government has decided to deal with appointments
through a specic s tatutory regime, r ather than perm it the parties to ne gotiate
aspects of the promotional proc ess.
e cornerstone of “employment law” in the federal public ser vice is the
“merit principle.” is principle was rst enshrined in the  Civil Service Act
and then extended to employees outside of Ott awa in the  version of the Civil
Service Act. As discus sed in the histor ical overview i n Chapter Two, the prin-
ciple of appointment according to merit evolved th roughout the later half of t he
nineteenth centur y and the early part of the twentieth centur y, due to an emer-
ging consensus that appoint ments to the federal civil service shou ld be based on
merit instead of patronage. However, despite that consensus, the term “merit”
was not dened by legislation. Instead, a rich body of jurisprudence developed
(particularly aer employees gained the right to appeal against promotions and
transfers), dening and t hen rening the merit principle.
On  April  the old Public Ser vice Employment Act was repea led and
replaced by a new Act of the same na me. e new Public Service Employment Act
made wholesale changes to t he merit principle, includi ng a statutory de nition
of merit and a more limited rig ht of appeal against appointments that a re alleged
to b e cont rar y to m erit . Howe ver, a s ex plai ned b elow, t he ol d jur ispr ude nce ab out
the merit principle is sti ll relevant to interpreting t he new Act, and should not be
discarded out of hand.
Finally, it is worth exam ining why the Public Ser vice Employment Act and
the merit principle were amended in t he Public Service Moderni zation Act,
and whether those a mendments were truly necess ary. e purpose behi nd the
amendments to the merit principle a nd the appointments process was to permit
 T. HadwenT. Ha dwen et al.,Onta rio Public Service Emp loyment & Labour Law (Toronto: Irwin
Law, ) at –.
AdvisoryCommitteeonLabour-ManagementRelationsintheFederalPublicService,Advisory C ommittee on Labour-Man agement Relations in the Feder al Public Servic e,
Working Together in the Public Interest: Se cond Report (Ottawa: Treasu ry Board Secre-
tariat, ) [Fryer Rep ort].
Public Serv ice Labour Relations Act , S.C. , c. , s. .
e Civil Serv ice Amendment Act, , (U.K.), – Edward VII , c. .
e Civil Serv ice Act, (U.K.), – George V, c. .
Public Service Modernization Act, S.C. , c . .
Chapter Eleven: Public Serv ice Employment Act
greater exibility in making appointments to and within the federal public ser-
vice. e minister re sponsible for the Act testied before the Standing Comm it-
tee on Government Operations and Esti mates as follows:
We have all heard the complai nts about the cur rent stang syst em: it is too
cumbersome, too slow a nd too focused on unnece ssary red tape. It is a n obstacle
course. We need to x th is if we want to compete with more agi le employers.
e provisions of the bil l are designed to promote i ncreased exi bility in
stang. ey w ill improve the way we achieve results for C anadians by ensur-
ing our continued abi lity to put the right people in the r ight place at the right
e federal public serv ice is also rife wit h anecdotal evidence about t he glacial
pace of the appointments process, a nd the inevitable frust ration this caused. No-
where is this better demonstrated that in Sampson v. Canada (Attorney General).
Mr. Sampson had been employed on a term basis as an im migration counse lor
with the Imm igration Department since . In , he won a competition for
an indeterminate position in July . Unfortunately for Mr. Sampson, one of
the unsuccessful candidates in that competition appealed against his appoint-
ment. e Public Serv ice Commission Appeal Board a llowed that appeal in Feb-
ruary . e govern ment applied for judicial rev iew, but lost that application
at rst instance i n June  before being successful i n May . e Federal
Court of Appeal ret urned the matter to the Appeal Boa rd for redetermination on
the basis that the orig inal appeal must be dismissed. However, when Mr. Samp-
son asked to be appointed to the position he had won, he was i nformed that due
to anticipated sta  reductions he would not be appointed to t hat position, and he
was in fact release d from the public service in March  upon the ex piration of
his last term contrac t. Mr. Sampson applied to Federal Court to force the federa l
public service to appoint him but, although expressing sympathy for him, the
Court concluded that the government wa s not obligated to appoint him to a pos-
ition. erefore, Mr. Sampson was denied an indeter minate position in the fed-
eral public serv ice (and the various rig hts to redeployment under the Workforce
Adjustment Directive disc ussed in Chapter Ten) only because another c andidate
launched an unsucces sful appeal, a nd the appeals proce ss (culminating i n the
Federal Court of Appea l) took almost four years to run its course .
Anecdotal ev idence, along with more concrete ex amples such as that of
Mr. Sampson, indicates that t he appointments process in the federa l public ser-
vice was problematic . Competitions were t aking too long to c omplete because
managers were worried about appeals , and the appeals t hemselves were caus-
Hon.LucienneRobillard(PresidentoftheTreasuryBoard),testimonybeforetheStand-Hon. Lucienne Robilla rd (President of the Treasury Boa rd), testimony before the Stand-
ing Committ ee on Government Operations a nd Estimates,  Febru ary .
[]F.C.J.No.(T.D.).[] F.C.J. No.  (T. D.).

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