The Federal Public Sector Labour Relations and Employment Board

• Author: Christopher Rootham
• Pages: 120-151

120

 

he Federal Public Sector Labour

Relations and Employment Board

A. INTRODUCTION

The Federal Public Sector Labour Relations and Employment Board (the

Board) was created on 1November 2014 with the coming into force of

the Federal Public Sector Labour Relations and Employment Board Act

(FPSLREB Act).1 It is the successor to two tribunals: the Public Service

Labour Relations Board (which itself was the successor to the Public

Service Sta Relations Board) and the Public Service Sta Tribunal. The

Board’s primary mandate is to adjudicate disputes. The Board also pro-

vides mediation services related to this core adjudication mandate.

The Board’s jurisdiction to hear disputes can be divided into four

areas: industrial disputes (governed by Part I of the Federal Public Sec-

tor Labour Relations Act [FPSLRA]2); grievances of rights disputes

(governed by Part II of the FPSLRA); reprisal complaints relating to

occupational health and safety (governed by Part III of the FPSLRA,

which incorporates Part II of the Canada Labour Code); and com-

plaints against certain categories of appointments under the Public Ser-

vice Employment Act.3

The Board also administers the Parliamentary Employment and

Sta Relations Act.4 Finally, the Board, under an agreement with the

1 Federal Public Sector Labour Relations and Employment Board Act, SC 2013, c 40,

s 365 [FPSLREB Act].

2 Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2 [FPSLRA].

3 Public Service Employment Act, SC 2003, c 22, ss 12 & 13.

4 Parliamentary Employment and Sta Relations Act, RSC 1985, c 33 (2nd Supp).

The Federal Public Sector Labour Relations and Employment Board | 121

Yukon government, administers the collective bargaining and grievance

adjudication systems under the Yukon Education Labour Relations Act5

and the Yukon Public Service Labour Relations Act.6 When performing

these functions funded by the Yukon government, the Board acts as the

Yukon Teachers Labour Relations Board and the Yukon Public Service

Labour Relations Board, respectively.

B. COMPOSITION OF THE BOARD

The Board is composed of a chair, up to two vice-chairs, up to twelve

full-time members, and as many other part-time members as the Gov-

ernor in Council may appoint.7 There are no particular criteria for being

a member of the Board, aside from being a Canadian citizen and not

holding other oce or employment in the public service or an employee

organization that is a bargaining agent in the federal public service. The

previous version of the legislation contained a statutory requirement

that Board members have “knowledge of or experience in” labour rela-

tions. That provision was removed in 2014. In 2017, Parliament added

a requirement that at least two members of the Board have “knowledge

of police organizations”8 when it also amended the FPSLRA to include

members of the RCMP.

This absence of an express requirement for members to have labour

relations knowledge or expertise is mitigated because members are

appointed from a list prepared by the chair after consultation with the

Treasury Board and the separate employers on the one hand and the

bargaining agents on the other.9 Members are then appointed so that,

to the extent possible, an equal number are appointed from among the

employers’ recommendations and the bargaining agents’ recommen-

dations.10 Members of the Board are appointed for terms not longer

than f‌ive years and hold that oce during “good behaviour”11 — thus

guaranteeing them security of tenure.

5 Education Labour Relations Act, RSY 2002, c 62.

6 Public Service Labour Relations Act, RSY 2002, c 185.

7 FPSLREB Act, s 4(2).

8 Ibid, s 6(1.1).

9 Ibid, ss 6(1) & (2).

10 Ibid, s 6(3).

11 Ibid, s 8(1).

122 | LABOUR AND EMPLOYMENT LAW IN THE FEDERAL PUBLIC SERVICE

In this way, the Board is — in some respects — a tripartite Board.

However, this does not hold true in any particular hearing. As discussed

below, most hearings are conducted before a single member. When hear-

ings are conducted before three members, there is no obligation on the

part of the chair to appoint one member from each of the employers’

and bargaining agents’ lists.12 Furthermore, the FPSLREB Act specif‌ic-

ally states that the Board is not a representative Board. Members rec-

ommended by employers or bargaining agents do not represent either

the employer or employees and must act impartially.13

The chair has the authority to assign a panel of three members to

hear a particular matter “when the complexity of a matter requires it.”14

For example, the Board has convened three-member panels to hear the

f‌irst (and leading) case on what constitutes an essential service in the

post-2005 legislation15 and to hear competing applications for certif‌i-

cation of a bargaining agent for members of the RCMP.16 In virtually

all cases, however, matters are heard by a single member of the Board.

Prior to the creation of the Board in 2014, grievances referred to

adjudication were heard by an “adjudicator” who was also a member

of the Board. This meant that, in practice, the Board heard adjudica-

tions but, legally, they were an “adjudicator” and not the Board. Par-

liament ended this charade in 2014 and amended the FPSLRA so that

the Board is seized of a grievance unless the parties agree to refer the

grievance to a dierent adjudicator.17 The parties to an adjudication

under Part II of the FPSLRA may specify their choice of adjudicator,

either in the collective agreement or on a case-by-case basis.18

The parties may also elect to have the matter heard by a “board of

adjudication” comprising one member of the Board appointed by the

chair and two side members, each appointed by one of the parties.19

According to the FPSLRA, the nominees may not have a “direct interest”

in or connection with the grievance being referred, but otherwise there

12 FPSLRA, s 31.

13 FPSLREB Act, s 6(4).

14 Ibid, s 37(2).

15 Public Service Alliance of Canada v Parks Canada Agency, 2008 PSLRB 97.

16 National Police Federation v Treasury Board, 2019 FPSLREB 74.

17 FPSLRA, s 223(2.1).

18 Ibid, s 223(1)(a) & (b).

19 Ibid, s 224(1).