A-569-78
Public Service Alliance of Canada (Applicant)
v.
Public Service Staff Relations Board (Respond-
ent)
and
The Queen as represented by the Treasury Board
(Mis -en-cause)
Court of Appeal, Jackett C.J., Ryan J. and Kerr
D.J.—Ottawa, March 9 and 19, 1979.
Judicial review — Public Service — Occupational classifi
cation — Employees originally excluded from Programme
Administration Group — Employees placed in new occupa
tional classification not defined by Public Service Commission
pursuant to s. 26 of Public Service Staff Relations Act —
Public Service Staff Relations Board finding that the declara
tion of new classification was beyond employer's authority,
and that employees retained excluded status — Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, ss. 2, 7, 18, 26, 33
— Financial Administration Act, R.S.C. 1970, c. F-10, s. 7
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Applicant (the Union) and mis -en-cause (the Employer)
make separate applications to set aside part of a "Decision" of
the Public Service Staff Relations Board. Certain employees
had originally been excluded from the Programme Administra
tion Group when the Union was first certified as its bargaining
agent. When the Employer unilaterally declared a new `occu-
pational group" not defined or specified by the Public Service
Commission pursuant to section 26 of the Public Service Staff
Relations Act and reclassified these excluded employees as part
of that new group, the Union argued that the Employer did not
have the authority to declare the new occupational group, and
that the employees resumed their status as part of the Pro
gramme Administration Group bargaining unit on the deletion
of the exclusions. The Board found pursuant to section 33, that
the employees were still excluded, and, pursuant to section 18,
that the Employer had exceeded its authority in establishing a
new occupational group and that the employees affected there
fore remained part of the Programme Administration Group.
Held, the application of the Union to set aside the Board's
decision dismissing the request for a determination under sec
tion 33 of the Public Service Staff Relations Act is dismissed
and the application of the Employer to set aside the part of the
Board's decision under section 18 of the Act is allowed for want
of jurisdiction. With regard to the Union's application, the
determination requested was not one that section 33 authorized
the Board to make. All that section 33 authorizes the Board to
decide is whether an "employee" is or is not excluded in a
bargaining unit (not whether a person is or is not an
"employee") and what the Board was really being asked to
determine was whether the persons in question had lost their
"excluded" status and become employees. It is not, however,
necessary to express any final view on that question. The
request under section 33 was rightly refused because there was
no material before the Board on which the determination
requested could have been made. Assuming that section 33
vests in the Board the power to determine whether a person is
or is not an employee, and assuming that the persons involved
were excluded from the statutory concept of "employee", there
was no material before the Board on the basis of which it could
have determined that, after that time, they had ceased to be in
that class. With regard to the Employer's application, there is
no statutory authority for the Board, under section 18 of the
Public Service Staff Relations Act, to decide that the Employ
er exceeded its authority in purporting to establish a new
occupational group and to find that the affected persons
remained part of the Programme Administration Group. An
authority to make a purely declaratory decision is not to be
implied from a statutory provision imposing on a body the duty
to administer an Act nor from a provision requiring it to
exercise such powers as may be incidental to the attainment of
its objects; nor does such an authority fall within a power to
make orders requiring compliance with the law or decision.
APPLICATION for judicial review.
COUNSEL:
Paul C. LaBarge for applicant.
No one appearing for respondent.
Walter L. Nisbet, Q.C. for mis -en-cause.
SOLICITORS:
Honeywell, Wotherspoon, Ottawa, for appli
cant.
Public Service Staff Relations Board,
Ottawa, for respondent.
Deputy Attorney General of Canada for
mis -en-cause.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.:
I. INTRODUCTION
This is a section 28 application by the Public
Service Alliance to set aside a part of a "Decision"
of the Public Service Staff Relations Board, the
nature of which will be hereinafter discussed.
There is also a section 28 application on Court file
No. A-563-78, by "Her Majesty in right of
Canada as represented by the Treasury Board", to
set aside the same "Decision". The two applica
tions were argued on the same day and, being so
closely related, it is preferable to consider them
together. These reasons will therefore deal with
both applications. To avoid confusion, the parties
will be referred to as "the Union" and "the
Employer", respectively, and the substantive part
of these reasons will be divided into three parts,
viz.,
(a) a general part applicable to both section 28
applications,
(b) a part dealing with the section 28 applica
tion on this file (A-569-78), and
(c) a part dealing with the section 28 applica
tion on A-563-78.
All the material referred to in the Board's
"Decision" is not to be found in the Rule 1402(1)
material received from the Board. The nature of
legal effect, if any, of some of the documents to be
found therein is not obvious. There is doubt that
all the relevant facts are to be found in, or deduced
from, such material. Difficult questions of statu
tory interpretation, which may or may not have to
be decided, are brought to mind when an attempt
is made to relate the facts to the statutes that
appear to be relevant. The purpose and character
of the applications to the Board are uncertain as is
the purpose of these section 28 applications. For
all these reasons, it seems well to begin by a
chronological review of the law, facts and proceed
ings, in so far as possible on the material available.
II. GENERAL
1. Prior to 1967, speaking generally, terms and
conditions of employment of persons employed
in the Public Service of Canada were deter
mined by statutes and regulations or other exer
cise of statutory authority.
2. Statutory provision for a system of collective
bargaining for the determination of terms and
conditions of employment in the Public Service
was made by
(a) the Public Service Employment Act,' c.
71 of the Statutes of Canada of 1966-67
(which provided inter alia for a body known
as the Public Service Commission 2 ),
(b) the Public Service Staff Relations Act,'
c. 72 of the Statutes of Canada of 1966-67
(which provided inter alia for a body known
as the Public Service Staff Relations Board 4 ),
and
(c) amendments to the Financial Adminis
tration Act made by c. 74 of the Statutes of
Canada of 1966-67.
(N.B. The Employer's authority to "determine
the organization of the Public Service and to
assign duties to and classify positions therein"
was expressly reserved. See section 7 of the
P.S.S.R.A. 5 and section 7 of the Financial
Administration Act. 6 )
' Hereinafter referred to as "the P.S.E.A."
2 Hereinafter referred to as "the Commission".
3 Hereinafter referred to as "the P.S.S.R.A."
° Hereinafter referred to as "the Board".
5 Section 7 of the P.S.S.R.A. reads:
7. Nothing in this Act shall be construed to affect the right
or authority of the employer to determine the organization of
the Public Service and to assign duties to and classify
positions therein.
6 Section 7 of the Financial Administration Act reads, in
part:
7. (1) Subject to the provisions of any enactment respect
ing the powers and functions of a separate employer but
notwithstanding any other provision contained in any enact
ment, the Treasury Board may, in the exercise of its respon
sibilities in relation to personnel management including its
responsibilities in relation to employer and employee rela
tions in the public service, and without limiting the generality
of sections 5 and 6,
(c) provide for the classification of positions and employees
in the public service;
(d) determine and regulate the pay to which persons
employed in the public service are entitled for services
rendered, the hours of work and leave of such persons and
any matters related thereto;
(i) provide for such other matters, including terms and
conditions of employment not otherwise specifically pro
vided for in this subsection, as the Treasury Board consid
ers necessary for effective personnel management in the
public service.
3. The legislation provides for negotiation of a
collective agreement for a unit of "employees"'
in the Public Service by the Employer and an
employee organization certified as bargaining
agent by the Board after inter alla the unit of
employees has been determined by the Board to
be appropriate for collective bargaining (sec-
tions 34, 40 and 49 et seq. of the P.S.S.R.A.).
4. During a statutorily defined "initial certifica
tion period", there was a limitation on the units
of employees that could be determined to be
appropriate for collective bargaining. During
such period, such a unit had to be composed of
For the purpose of the P.S.S.R.A., the word "employee" is
defined by section 2 thereof to mean a person employed in the
Public Service other than certain defined "exclusions" among
which exclusions is a "person employed in a managerial or
confidential capacity", which exclusion is defined to mean
2....
... any person who
(a) is employed in a position confidential to the Governor
General, a Minister of the Crown, a judge of the Supreme
or Federal Court of Canada, the deputy head of a depart
ment or the chief executive officer of any other portion of
the Public Service, or
(b) is employed as a legal officer in the Department of
Justice,
and includes any other person employed in the Public
Service who in connection with an application for certifica
tion of a bargaining agent for a bargaining unit is desig
nated by the Board, or who in any case where a bargaining
agent for a bargaining unit has been certified by the Board
is designated in prescribed manner by the employer, or by
the Board on objection thereto by the bargaining agent, to
be a person
(c) who has executive duties and responsibilities in relation
to the development and administration of government
programs,
(d) whose duties include those of a personnel administrator
or who has duties that cause him to be directly involved in
the process of collective bargaining on behalf of the
employer,
(e) who is required by reason of his duties and responsibili
ties to deal formally on behalf of the employer with a
grievance presented in accordance with the grievance pro
cess provided for by this Act,
(/) who is employed in a position confidential to any
person described in paragraph (b), (c), (d) or (e), or
(g) who is not otherwise described in paragraph (c), (d),
(e) or (/), but who in the opinion of the Board should not
be included in a bargaining unit by reason of his duties and
responsibilities to the employer;
employees in an "occupational group" of
"employees" as defined by the Commission for
the purpose (each of which groups had to be
within one of the statutorily defined occupation
al categories, one of which was the "administra-
tive and foreign service" category),$ which
groups had to comprise all "employees" in the
relevant part of the Public Service (section 26 of
the P.S.S.R.A.) 9 . [The emphasis is mine.]
5. One of the occupational groups in the
administrative and foreign service category that
was defined by the Commission, for the purpose
of the limitation on the determination of units
appropriate for collective bargaining during the
initial certification period (paragraph 4 supra),
was the Programme Administration Group,
which was defined as follows:
Programme Administration Group
GROUP DEFINITION
The planning, execution and control of programmes directed
toward the public.
Inclusions
Positions included in the group are those in which one or
more of the following duties is of primary importance:
—The provision of various services to the public.
—The collection of taxes and other money from the public.
Exclusions
Positions excluded from the group are those in which one or
more of the following duties is of primary importance:
—The provision of internal management services in such
fields as financial, personnel or computer systems adminis
tration, organization and method, and purchasing and
supply.
B Section 2 of the P.S.S.R.A. defines "occupational category"
as follows:
2....
"occupational category" means any of the following catego
ries of employees, namely,
(a) scientific and professional,
(b) technical,
(c) administrative and foreign service,
(d) administrative support, or
(e) operational,
and any other occupationally-related category of
employees determined by the Board to be an occupational
category;
9 See Appendix "A".
— The provision of assistance in the social development of
communities and groups and in the settlement, adjustment
and rehabilitation of individuals.
— The planning, production and distribution of publications
and promotional material about government programmes.
Minimum Qualifications
Either university graduation or demonstrated capacity for
administrative work combined with the ability normally
required to complete secondary school education. For specif
ic jobs, post-secondary school education may be
mandatory. 10 [The emphasis is mine.]
6. On July 24, 1978, the Board certified the
Union as bargaining agent for a unit of
employees in the Programme Administration
Group by a certificate reading as follows:
Upon the application of the Applicant, and in accordance
with the provisions of the Public Service Staff Relations Act,
THIS BOARD CERTIFIES the Public Service Alliance of
Canada, as bargaining agent for all of the employees of the
Employer in the Programme Administration Group of the
Administrative and Foreign Service Category.
This certificate is to be read subject to the terms of the
Board's reasons for decision in this case.
The Board's "reasons" contained a paragraph
reading:
Having regard to the agreement of the Alliance and the
employer, the Board designates the persons listed in the
schedule attached hereto as persons employed in a
managerial or confidential capacity."
(N.B. The "schedule" referred to does not
appear in the material.)
7. In 1976, a Treasury Board Minute, expressed
to be effective April 1, 1976, was apparently
adopted approving the following proposal:
SUBJECT
Postal Management Group Standard and Pay Rates
Administrative and Foreign Service Category.
10 Canada Gazette, Part II, Vol. 101, p. 894 at pp. 912 and
919-920 (1967). The purpose for quoting this definition is not
that the actual wording would seem to be relevant but that it
may be of importance to have in mind the way in which the
Commission defined occupational groups.
11 Query whether this is a designation such as is contemplat
ed by the definition of "person employed in a managerial or
confidential capacity"?
PROPOSAL
Approval of the establishment of a Postal Management
Group with an interim Classification standard and structure
utilizing the features of the Programme Administrative
Group, attached as Schedules A and B respectively; of the
rates of pay for the excluded group with variable increment
conversion effective 1 April 1976 as attached in Schedule C;
and of revisions effective 27 December 1976 to maintain
parity coincident with increases at levels 5 and 6 in the
Programme Administration Group and a modified adjust
ment to levels 1 through 4, to remain in effect until 1 April
1977) 2
(N.B. The schedules referred to therein do not
appear in the material.)
8. On March 31, 1978, the Employer filed with
the Board certain sheets of paper referred to as
a "Form "A" Valid Transaction Report" 13
dated March 22, 1978, by which, according to
the Employer's memorandum in this Court,
"some 157 positions the incumbents of which
had been designated as `persons employed in a
managerial or confidential capacity' ... and
who were employed in the Post Office Depart
ment were removed from the Programme
Administration Group and allocated to a new
occupational group named the `Postal Manage
ment Group' ". 14 [The emphasis is mine.]
12 This is quoted in full because, while it appears in the
material that was before the Board, it is not obvious to me,
when it is read by itself, what legal or other effect, if any, it
had.
13 There is nothing in the record to explain what a "Form 'A'
Valid Transaction Report" is.
14 This statement of fact is not obvious from the documents
that appear in the material filed and must be read with
paragraphs 2 and 3 of the Employer's memorandum, which
read:
2. The Form "A" Valid Transaction Report dated March 22,
1978 is in the form of a computer print-out in the extreme
right hand column of which appear the letters "H T". The
meaning to be given to these letters is set out opposite them
in "Form A Change—Reason for Change Code". The letter
"H" means that the person opposite to whose name it
appears has been "Transferred/Promoted to another posi
tion, Group is SX, OM, AT, PE or UT". These initials are
used to designate the following occupational groups:
(a) Executive Category;
(b) Organization and Methods Group;
(c) Administrative Trainee Group;
(d) Personnel Administration Group;
(e) University Teaching Group;
9. The decisions attacked purported to have
been made pursuant to requests made under
sections 18 and 33 of the P.S.S.R.A., which
sections read:
18. The Board shall administer this Act and shall exercise
such powers and perform such duties as are conferred or
imposed upon it by, or as may be incidental to the attain
ment of the objects of, this Act including, without restricting
the generality of the foregoing, the making of orders requir
ing compliance with this Act, with any regulation made
hereunder or with any decision made in respect of a matter
coming before it.
33. Where, at any time following the determination by the
Board of a group of employees to constitute a unit appropri
ate for collective bargaining, any question arises as to
whether any employee or class of employees is or is not
included therein or is included in any other unit, the Board
shall, on application by the employer or any employee
organization affected, determine the question.
10. By a letter dated April 25, 1978, written to
the Board by solicitors for the Union, a request
was made for a decision under section 33, as
follows:
By a decision of the Board, dated the 24th day of July,
1968, the Public Service Alliance of Canada was certified as
the bargaining agent for all employees in the Program
Administration Group in the Administrative and Foreign
Service Category, and employed in the Post Office Depart
ment. The certification excluded certain persons listed in the
Schedule attached to the said decision as designated as
persons employed in a managerial or confidential capacity.
Pursuant to the valid FORM 'A' TRANSACTION REPORT,
prepared by Personnel Application Centre, Department of
Supply and Services, designated as a part of the Personnel
Management Information System, exclusion Subsystem
(PMIS-EXLSS) which was filed by the employer March 30,
1978 and received by the PSAC on April 7, 1978. Tile
respectively. The letter "T" means that the position opposite
to which it appears in the Form "A" Valid Transaction
Report is an "excluded position now deleted".
3. Because the computer used to produce the Form "A"
Valid Transaction Report was not programmed to include
the new Postal Management Group and the Reason for
Change Code had not been amended to show the new "PL"
Group to be one of those included under the letter "H" in
that Code, neither the Form "A" Valid Transaction Report
nor the Reason for Change Code indicated on its face that
the 157 positions and their incumbents were transferred from
the Programme Administration Group to the Postal Manage
ment Group, although this was, in fact, what took place. In
any event the 157 positions and the designated incumbents
thereof were allocated to the new occupational group created
by the applicant and named the "Postal Management
Group".
employer deleted certain positions for those persons present
ly excluded in the Program Administration Group of the
Post Office. As a result of this action taken by the employer,
these persons are no longer classified as confidential or
managerial exclusions. Accordingly under the terms of the
PSSRA, these persons are employees and subject to the
jurisdiction of the PSSRA. The PSAC hereby requests,
pursuant to Section 33 of the Statute which Section reads:
Where at any time following the determination by the
Board of a group of employees to constitute a unit appro
priate for collective bargaining, any question arises as to
whether any employee or class of employees is or is not
included therein or is included in any other unit, the
Board shall, on application by the employer or any
employee organization affected, determine the question.
that the Board determine whether these "employees" are
included in the Program Administration Group as a result of
the deletion of their designated position.
and for adecision under section 18 as follows:
The employer has purported to create a new occupational
group designated as PL's (being Postal Management Group)
BUD 306, and tentatively a group of the Administrative and
Foreign Service Category.
The Statute provides that occupational groups are
restricted to those specified and defined by the Public Ser
vice Commission pursuant to Section 26(1) of the PSSRA.
These occupational groups are clearly and exhaustively set
out in the Canada Gazette, dated March 20, 1967. It is our
contention that the Section is exhaustive and that no further
occupational groups may be created without amendment to
the Statute. There is in the Canada Gazette of Monday,
March 20, 1967, no occupational group designated as PL.
The employer by its purported creation of the PL group is
attempting to usurp the functions of the Board and, in fact,
is in breach of the Statute. The PSAC hereby formally
requests a reference under Section 18 of the PSSRA to
interpretation of the term `occupational group" and the
Statutory limitation imposed thereon.
The section 33 request was apparently given
Board file No. 147-2-15 and the section 18
request was apparently given Board file No.
148-2-23.
11. On May 16, 1978, counsel for the Employer
wrote to the Board, with reference to the request
under section 33 setting out the Employer's
position as follows:
1. On March 30, 1978 the Employer filed with the Board a
document entitled "Form 'A', Valid Transaction Report"
dated March 22, 1978 and prepared for the Employer by the
Personnel Application Centre, Department of Supply and
Services, designated as a part of the Personnel Management
Information System, exclusion Subsystem (PMIS-EXLSS).
2. In this report the Employer deleted 157 positions in Post
Office Canada, the incumbents of which were employed in a
managerial or confidential capacity under section 2 of the
Act.
3. Those 157 persons were previously classified in the Pro
gramme Administration Group and are presently classified
in the Postal Management Group.
4. The Employer has the right to classify those persons in
the Postal Management Group.
5. Those persons are not included in the Programme
Administration Group Bargaining Unit.
6. The Bargaining Agent for the Programme Administra
tion Group has no authority to represent persons classified in
the Postal Management Group.
and on the same date a similar letter was written
with reference to the section 18 request in which
the Employer's position was expressed in identi
cal terms except that, for paragraphs 5 and 6 of
the letter concerning the section 33 request,
there was substituted a paragraph reading as
follows:
5. The Employer has the right to create a new occupational
group under the authority of paragraph 7(1)(c) of the
Financial Administration Act.
12. On May 26, 1978, the solicitors for the
Union wrote to the Board as follows:
We acknowledge receipt of your letter of May 19, 1978
and the Employer's reply contained therein. We would note
that by paragraph 2 of both letters by the Employer, the
Employer has admitted the fact circumstance alleged by the
Public Service Alliance of Canada. In addition, the Employ
er has stated in paragraph 3 of both letters that these
persons who were, in fact, employees under the Act prior to
their exclusions by the Board under the procedure estab
lished by the PSSR Act have been classified in the postal
management group. A perusal of the PSSR Act indicates
clearly that occupational groups are those specified and
defined by the Public Service Commission under Section
26(1). Section 26(1) provides:
The Public Service Commission shall, within fifteen days
after the 13th day of March 1967, specify and define the
several occupational groups within each occupational
category enumerated in paragraphs (a) to (e) of the
definition "occupational category" in section 2, in such
manner as to comprise therein all employees in the Public
Service in respect of whom Her Majesty as represented by
the Treasury Board is the employer, and shall thereupon
cause notice of its action and of the occupational groups
so specified and defined by it to be published in the
Canada Gazette.
Pursuant to Section 26(1), the Public Service Commission
did, on the 20th day of March 1967, publish in the Canada
Gazette a definition of occupational categories and groups.
Nowhere in this edition of the Canada Gazette, which
edition is exhaustive, is the postal management group men
tioned or defined. The creative powers of the Public Service
Commission with respect to operational groups have ceased.
The Employer's rights under Section 7(1)(c) of the Finan
cial Administration Act, R.S.C. 1970, is limited to "the
classification of positions and employees in the Public Ser
vice." It is our submission that this power of classification
relates to the job functions and incumbents of specified
positions of the Public Service. We freely admit that the
Employer has the unfettered discretion to classify job func
tions, provided that such classification is within the standard
groups and categories established pursuant to the PSSR Act.
The Employer states that the Public Service Alliance of
Canada has no authority to represent persons classified in
the postal management group. The PSSR Act clearly pro
vides that persons who are employees may enjoy all the
rights of collective bargaining. As the Employer has seen fit
to delete the exclusions relating to these individuals, these
persons have for the purposes of the Act become employees,
and in our view have resumed their status within the collec
tive bargaining unit for which the Alliance is certified.
It is our submission that the Board has, under the author
ity of section 18 and Section 33, the power to determine
these questions. It is clear that there is no common agree
ment with respect to the dispositions of these persons.
Accordingly, we would request that the Board set an early
date for hearing on this matter so that we might resolve the
rights and positions of the parties with respect to these
persons, and more materially with respect to the Employer's
allegation of its ability to create occupational groups without
reference to the employee organization or to the Board. It is
our submission that the Employer is by the legislation
restricted to those groups established by the PSSR Act and
must seek amendment of same in order to create additional
groups.
13. On June 1, 1978, the Board wrote to the
Employer, in part, as follows:
TAKE NOTICE that the Board will hear the parties con
cerned with respect to the application made by the Public
Service Alliance of Canada on April 28, 1978, under section
18 of the Act for an "Interpretation of the term occupational
group and the statutory limitation imposed thereon"; and
further take notice that the Board will hear the parties
concerned with respect to the application made by the Public
Service Alliance of Canada on April 28, 1978 under section
33 of the Act for a determination as to whether or not
certain "employees" who had been excluded from the pro
gramme administration bargaining unit should now be con
sidered to be employees included in that unit for the reason
that their names have been deleted by the Employer from
the list of persons excluded from the programme administra
tion bargaining unit; ....
14. On June 13, 1978, the Board heard the
parties orally with respect to both requests.
Some of the material referred to above was filed
during such hearing. (There was also filed a
letter from the Board to the Union dated April
7, 1978, the relevance of which is not obvious,
and a document entitled "Form A Change—
Reasons for Change Code"—the nature or legal
effect of which is not obvious.)
15. On October 30, 1978, the Board rendered a
single "Decision" with reference to both
requests. The parts thereof that indicate the
Board's reasoning and conclusion with reference
to the request under section 33 read as follows:
In the instant case, the Alliance applied to the Board to be
certified as the bargaining agent for all of the employees of
the employer in the Programme Administration Group of
the Administrative and Foreign Service Category. The
Board determined that the appropriate bargaining unit con
sisted of "all of the employees in the PM Occupational
Group". The duty and authority of the Board to determine
the group of employees that may constitute a unit appropri
ate for collective bargaining is outlined in Sec. 32(1) and (2)
which read as follows:
32. (I) Where an employee organization has made
application to the Board for certification as described in
section 27, the Board shall, subject to subsection 26(4),
determine the relevant group of employees that constitutes
a unit appropriate for collective bargaining.
(2) In determining whether a group of employees con
stitutes a unit appropriate for collective bargaining, the
Board shall take into account, having regard to the proper
functioning of this Act, the duties and classification of the
employees in the proposed bargaining unit in relation to
any plan of classification as it may apply to the employees
in the proposed bargaining unit.
In the course of considering the application for certifica
tion the Employer and the Alliance agreed on the persons to
be excluded from the Bargaining Unit on the grounds that
such persons were not "employees" within the meaning of
the Act. There was therefore no need to submit an applica
tion to the Board to determine such exclusions because there
was no issue between the parties on that matter.
The word "employees" as used in the certificate excludes
persons employed in a managerial or confidential capacity
and the bargaining agent is not authorized to represent any
of the designated "persons" excluded from the bargaining
unit.
In summary, then, under the Public Service Staff Rela
tions Act the Public Service Commission was given the
exclusive duty and authority to specify and define the nature
of the duties and responsibilities that would fall within each
occupational group. The Commission was not given author
ity to determine whether the persons performing such tasks
are "employees" or "persons" within the meaning of the
Act. It is the Public Service Staff Relations Board that was
given the exclusive authority to determine whether any
employed person is an employee included in an appropriate
bargaining unit or a person to be excluded from such a unit.
Whenever the employer proposed the exclusion of any
person from a bargaining unit, the certified bargaining agent
was given the opportunity to object to the proposed exclu
sion. If the certified bargaining agent objects then the
authority to determine that issue lies exclusively with the
Board both during the proceedings dealing with an applica
tion for certification and after the Board has certified a
bargaining agent to represent the employees within a bar
gaining unit. The exercise of this authority at the time the
Board is considering an application for certification of a
bargaining agent is outlined above.
On or about March 22, 1978, the employer deleted 157
positions consisting of 157 excluded persons in the PM
Group. These excluded persons were all employed in the
Post Office. They were placed in a new occupational group
created by the employer entitled "Postal Management
Group". The employer identified this new group as the "PL"
Group. In the letter of the employer this group is referred to
as a new "occupational group".
The applicant Alliance contends that the moment the
employer removed these persons from the status of "exclud-
ed persons" in the PM Group, each of them reverted to the
status of an "employee" and therefore became a member of
the PM bargaining unit.
In the opinion of this Board an issue as to whether a
person excluded from a bargaining unit is or is not an
employee, if it can be decided at all, can be determined only
on the basis of evidence of the duties and responsibilities of
any such person. In the instant case, no evidence was
submitted to the Board as to any change in the duties and
responsibilities of any of the subject 157 persons.
The Board therefore finds that each of these 157 persons
retains the status of persons excluded from the bargaining
unit.
The Board is also of the opinion that these provisions of
Sec. 33 give the Board authority to decide a question as to
"whether any employee or class of employees is or is not
included" in an appropriate bargaining unit "or is included
in any other unit". The Board under this section has only
authority to decide an issue involving "employees" and not
one involving excluded persons. Since the Board has con
cluded that the subject 175 [sic] persons are not
"employees" but "excluded persons" the provisions of Sec.
33 are not in our view applicable to the case before us.
The parts of the "Decision" whereby the Board
indicates its reasoning and conclusion with
regard to the request under section 18 read as
follows:
The other issue the Board is asked to determine pursuant
to Sec. 18 is whether the employer has authority to unilater
ally create a new "occupational group" such as the Postal
Management Group. The employer in its letter to the Board
dated May 16, 1978 quoted above (under the Board's file
number 147-2-23) asserts in part the following:
3. Those 157 persons were previously classified in the
Programme Administration Group and are presently clas
sified in the Postal Management Group.
4. The Employer has the right to classify those persons in
the Postal Management Group.
5. The Employer has the right to create a new occupa
tional group under the authority of paragraph 7(1)(c) of
the Financial Administration Act.
The employer referred the Board to the establishment of a
new occupational group described as the Education Support
Group (see file 143-2-139). In that case, the Alliance made
an application to be certified for a group of employees
performing para -educational functions. The functions did
not fit into any of the `occupational groups" defined by the
Public Service Commission. Both the employer and the
Alliance agreed that a new occupational group should be
established in order that these employees may bargain col
lectively by the certification of the bargaining agent of their
choice. Even so, the Board before establishing the Education
Support Group as a new "occupational group" gave notice
to all other bargaining agents and provided them with the
opportunity to present evidence or argument relevant to that
issue. The fact is however that it was the Board and not the
employer that decided that the Education Support Group
should be established. In the instant case, the employer
contends that it has unilateral authority to create a new
"occupational group".
The Board does not question the right of the employer to
classify or reclassify any positions. The authority to classify
positions is granted exclusively to the employer by Sec. 7 of
the Public Service Staff Relations Act which reads as
follows:
Nothing in this Act shall be construed to affect the right
or authority of the employer to determine the organization
of the Public Service and to assign duties to and classify
positions therein.
The employer relies on Sec. 7(1)(c) of the Financial
Administration Act in asserting its "right to create a new
occupational group". That section reads as follows:
7. (1) Subject to the provisions of any enactment
respecting the powers and functions of a separate employ
er but notwithstanding any other provision contained in
any enactment, the Treasury Board may, in the exercise
of its responsibilities in relation to personnel management
including its responsibilities in relation to employer and
employee relations in the public service, and without
limiting the generality of sections 5 and 6,
(c) provide for the classification of positions and
employees in the public service;
It is of passing interest to note that while Sec. 7 of the
Public Service Staff Relations Act vests the employer with
authority to "classify positions", Sec. 7(1)(c) of the Finan
cial Administration Act empowers Treasury Board to pro
vide for the "classification of positions and employees"
(emphasis added) in the Public Service. For the purpose of
this case, nothing turns on the right to classify "employees"
as distinct from classifying "positions" and no argument was
submitted by either party in relation to this difference.
The process and criteria for determining the number and
description of position classifications within an occupational
group as distinct from determining the number and defini
tion of occupational groups within an occupational category
are entirely different exercises. The former forms the basis
for determining rates of pay for specific duties and respon
sibilities while the latter identifies similar functions in a
broad generic sense without regard to rates of pay.
It follows therefore that the employer may classify or
reclassify the subject 157 positions consisting of excluded
persons and had authority to classify these positions as a
Postal Management Group. However they remain within the
Programme Administration Occupational Group.
However, the Board does question the authority of the
employer "to create a new occupational group" under any
Act. The only enactment by Parliament which deals with the
establishment of occupational groups is the Public Service
Staff Relations Act as outlined above. Neither Sec. 7(1)(c)
nor any other provision of the Financial Administration Act
even mentions the term "occupational group" or deals with
the creation of same. As already stated, the authority to
establish occupational groups was specifically and exclusive
ly granted to the Public Service Commission. The Board
finds that the employer exceeded its authority in purporting
to establish a new occupational group.
The Board therefore finds that the subject 157 positions
and persons affected remain part of the Programme
Administration (PM) Group.
16. The Employer, by a section 28 application
(A-563-78) bearing date November 7, 1978,
seeks to have the decision on both Board files
(i.e., the section 18 decision and the section 33
decision) set aside.
17. The Union, by this section 28 application
(A-569-78) which bears date November 10,
1978, seeks to have the section 33 decision set
aside.
III. UNION'S SECTION 28 APPLICATION (A-569-78)
RE BOARD'S DISPOSITION OF SECTION 33
REQUEST
This section 28 application is an application to
set aside the dismissal of the request under section
33, which was, in effect, a request that the 157
persons in question be determined to be
"employees" falling within the bargaining unit
referred to in paragraph 6 of Part II (supra). It is
convenient to repeat section 33 at this point.
33. Where, at any time following the determination by the
Board of a group of employees to constitute a unit appropriate
for collective bargaining, any question arises as to whether any
employee or class of employees is or is not included therein or is
included in any other unit, the Board shall, on application by
the employer or any employee organization affected, determine
the question.
In my view, the Board rightly refused to make
the determination sought under section 33 and this
section 28 application should be dismissed.
In the first place, I am inclined to the view that
the determination requested was not one that sec
tion 33 authorized the Board to make. With refer
ence thereto, in my opinion, the better view is that
all that section 33 authorizes the Board to decide
is whether an "employee" is or is not included in a
bargaining unit (not whether a person is or is not
an "employee") and what the Board was really
being asked to determine was whether the persons
in question had lost their "excluded" status and
become employees. It is not, however, necessary to
express any final view on that question.
In my view, the request under section 33 was
rightly refused because there was no material
before the Board on which the determination
requested could have been made. Assuming that
section 33 vests in the Board the power to deter
mine whether a person is or is not an employee,
and assuming (as all concerned seem to have
assumed) that the 157 persons in question had,
prior to March, 1978, fallen within the class of
"person employed in a managerial or confidential
capacity" which was "excluded" from the statu
tory concept of "employee", there was, as far as I
can ascertain, no material before the Board on the
basis of which it could have determined that, after
that time, they had ceased to be in that class.
I might add some comments with regard to this
latter conclusion.
In the first place, there is a very difficult ques
tion as to the effect of the words in the definition
of "person employed in a managerial or confiden
tial capacity" that precede paragraphs (c) to (g)
inclusive, viz.:
and includes any other person employed in the Public Service
who in connection with an application for certification of a
bargaining agent for a bargaining unit is designated by the
Board, or who in any case where a bargaining agent for a
bargaining unit has been certified by the Board is designated in
prescribed manner by the employer, or by the Board on objec
tion thereto by the bargaining agent, to be a person
If these words are read in their most literal sense,
a person who is or has been within any of para
graphs (c) to (g)
(i) does not fall within the "excluded" class
until he has been "designated" by the Employer
or the Board in such a way as to comply with
the procedure contemplated by those words, and
(ii) continues, once he has been so designated,
to fall within the "excluded" class forever even
though he has ceased in fact to fall within any of
paragraphs (c) to (g).
It is not necessary to decide on this application
whether such arbitrary results flow from the lan
guage used. When the question arises for determi
nation, consideration should be given, I suggest, to
the question whether the language just quoted is
an integral part of the substantive definition or is
merely a special procedure for deciding whether a
person is in any of paragraphs (c) to (g), which
procedure can be invoked by a bargaining agent
objection by reason of a change of circumstances
even after a prior Board designation. On the latter
view, the Board must make a decision, in each case
where the procedure is invoked, by the application
of the wording of the appropriate paragraph to the
facts established before it.
My second comment is that no matter how
much the executive arm of government has suc
cumbed to the use of the computer, in my view, in
the absence of special statutory direction, tribunals
applying the law—such as the Board or this
Court—must do so by the application of the rele
vant statutory provisions to facts found on intelli
gible evidence. In this case, for example, before a
finding could have been made with reference to
any of the 157 persons involved, there would have
to have been some evidence as to his status under
the Act and it is difficult to conceive of such
evidence being anything less than evidence of
appointment or employment in some position or
class by an authorized person and evidence of a
legal definition of the position or class in which he
had been placed by reference to duties, qualifica
tions, etc. (Compare sections 15 et seq. of c. 57 of
Statutes of Canada, 1960-61.) There is, however,
on the material, no evidence that is intelligible to
me as to the nature of the position or employment
of any of the 157 either before or after the particu
lar time. In the absence of some such evidence, I
fail to see how the Board could have made a
determination that any of the 157 persons had
ceased to be in the excluded class and had become
an employee, even assuming that it had jurisdic
tion to make such a determination.
My third comment is really a corollary from the
first two. The Union's contention, as I understand
it, is really that the "excluded" status of the 157
was conditional on a designation that had been
made by the Employer, that the Employer had, in
effect, cancelled the designation, that the excluded
status had therefore disappeared and that the
result was that the 157 were "employees". The
answer, in my view, is that the words preceding
paragraphs (c) to (g) must either be read literally,
in which event, there is no provision for cancella
tion of a designation, or they must be read as
providing a procedure for a determination, in
which event, the Board must have evidence on
which it can make such a determination. On either
view, for the reasons already indicated, there was
no material on which it could be concluded that
the 157 had ceased to be "excluded".
IV. EMPLOYER'S SECTION 28 APPLICATION
(A-563-78) RE BOARD'S DECISION
(While, as worded, the section 28 application
attacks the Board's decision with regard to the
section 18 request and the section 33 request,
counsel has made it clear that the Employer is only
attacking the decision re the section 18 request.)
In terms the Union requested "a reference under
Section 18 of the P.S.S.R.A. to interpretation of
the term `occupational group' and the Statutory
limitation imposed thereon". The Employer's posi
tion in reply was that certain persons "were previ
ously classified in the Programme Administration
Group and are presently classified in the Postal
Management Group", that the Employer has the
right to classify those persons in the Postal Man
agement Group and that the Employer "has the
right to create a new occupational group under the
authority of paragraph 7(1)(c) of the Financial
Administration Act". The Commission decided the
matter in the following passage from its decision:
The process and criteria for determining the number and
description of position classifications within an occupational
group as distinct from determining the number and definition
of occupational groups within an occupational category are
entirely different exercises. The former forms the basis for
determining rates of pay for specific duties and responsibilities
while the latter identifies similar functions in a broad generic
sense without regard to rates of pay.
It follows therefore that the employer may classify or reclas
sify the subject 157 positions consisting of excluded persons and
had authority to classify these positions as a Postal Manage
ment Group. However they remain within the Programme
Administration Occupational Group.
However, the Board does question the authority of the
employer "to create a new occupational group" under any Act.
The only enactment by Parliament which deals with the estab
lishment of occupational groups is the Public Service Staff
Relations Act as outlined above. Neither Sec. 7(1)(c) nor any
other provision of the Financial Administration Act even men
tions the term "occupational group" or deals with the creation
of same. As already stated, the authority to establish occupa
tional groups was specifically and exclusively granted to the
Public Service Commission. The Board finds that the employer
exceeded its authority in purporting to establish a new occupa
tional group.
The Board therefore finds that the subject 157 positions and
persons affected remain part of the Programme Administration
(PM) Group.
For convenience, I repeat section 18 of the
P.S.S.R.A.:
18. The Board shall administer this Act and shall exercise
such powers and perform such duties as are conferred or
imposed upon it by, or as may be incidental to the attainment
of the objects of, this Act including, without restricting the
generality of the foregoing, the making of orders requiring
compliance with this Act, with any regulation made hereunder
or with any decision made in respect of a matter coming before
it.
The position of the Employer, who by her sec
tion 28 application asks that this decision be set
aside, is set out in Part II of the memorandum
filed in this Court on her behalf, which reads:
9. Having held that it had authority only to decide an issue
under Section 33 of the Public Service Staff Relations Act
involving "employees" and not one involving "persons employed
in a managerial or confidential capacity" who are not
"employees", did the Public Service Staff Relations Board err
in law or exceed its jurisdiction by determining
(a) that the Applicant has no authority to establish a new
occupational group, and
(b) that the 157 positions and their incumbents remain part
of the Programme Administration (PM) Group notwith
standing that these positions have been reclassified by the
Applicant so as to exclude them from that occupational
group?
10. The Applicant submits that the answer to this question
must be in the affirmative.
By Part IV of the memorandum, the Employer
submits that the decision of the Board should be
set aside. Presumably, this should be interpreted as
referring only to the decision in that part of the
Board's "Decision" that I have just quoted.
In so far as the Board has purported to decide
under section 18 of the P.S.S.R.A. that the
Employer exceeded its authority in purporting to
establish a new occupational group and has pur
ported to find that "the subject 157 positions and
persons affected [thereby] remain part of the Pro
gramme Administration (PM) Group" I am of the
view that the decision should be set aside because I
do not find in section 18 any authority for the
Board to make such a decision. An authority to
make a purely declaratory decision is not, in my
view, to be implied from a statutory provision
imposing on a body the duty to administer an Act
nor from a provision requiring it to exercise such
powers as may be incidental to the attainment of
its objects; nor does such an authority fall within a
power to make orders requiring compliance with
the law or a decision. In my view, therefore, in so
far as the Board's "Decision" of October 30, 1978
found, under section 18,
(a) that the Employer exceeded its authority in
purporting to establish a new occupational
group, and
(b) that the 157 positions and persons affected
remain part of the Programme Administration
(PM) Group,
it should be set aside as being outside any jurisdic
tion conferred on the Board by section 18.
Having reached that conclusion, I feel that I
should at least refer to certain other questions that
concern me in connection with this aspect of the
matter.
In the first place, so far as the Board's finding
that the Employer exceeded her authority in pur
porting to establish a new occupational group is
concerned, the only evidence that I can find that
the Employer did any such thing are certain state
ments in a letter written on behalf of the Employer
by "counsel". Assuming jurisdiction to make such
a determination, in my view, such "admission" was
not a sufficient basis for exercising it. This process
is unlike ordinary litigation, to this extent at least,
that, generally speaking, before there can be a
declaration that an authority such as Treasury
Board has exceeded its jurisdiction, the supervisory
tribunal should have before it the actual docu
ments whereby the authority purported to exercise
jurisdiction so that the declaration is based on
what was actually done and not on some vague
general admission a s to what was done.
My second comment in the same connection is
that, by definition, an "occupational group" is a
group of "employees" and, having found that the
157 persons were not "employees", it is difficult to
see how the Board concluded that they or their
positions were part of a "Group" that was an
occupational group.
My third comment with regard to the parts of
the decision purporting to have been made under
section 18 is that, as it seems to me, they reveal a
lurking problem of great difficulty concerning the
effect of the P.S.S.R.A. and the 1966-67 amend
ments to the Financial Administration Act in rela-
tion to the legal authority and control over the
organization of the Public Service under changing
conditions.
To show what concerns me in this latter connec
tion, it is relevant to note that Parliament adopted
a classification of October 1, 1919, according to
which the Civil Service was "classified and com
pensated" subject to changes made therein by the
Civil Service Commission in respect of classes,
grades, positions, etc., and by the Governor in
Council on the recommendation of the Commis
sion in respect of compensation. 15 The organiza
tion as so established as of the day when the new
Civil Service Act of 1961 was brought into force
was continued.' 6 From that time until March,
1967 changes in classification including compensa
tion were governed by that Act. 17 As of that time,
it is to be noted that, essentially, classification
consisted of dividing the Civil Service into "classes
of employment" and classifying each position
therein and that a class or subdivision thereof
(called a "grade") embraced all positions "having
similar duties and responsibilities and requiring
similar qualifications". It is relevant to note that,
from 1919 until the 1961 Civil Service Act was
repealed in 1967, there was a continuity in the
classification of the Public Service with provision
15 See sections 10 and 11 of the Civil Service Act, R.S.C.
1952, c. 48.
16 See section 82 of c. 57 of the Statutes of Canada of
1960-61, which reads:
82. (1) The establishment of a department as it existed
immediately before the coming into force of this Act is the
establishment of the department for the purposes of this Act,
subject to alteration as provided in this Act.
(2) The classification of the civil service at the coming
into force of this Act shall continue to be the classification of
the civil service for the purposes of this Act, subject to
alteration as provided in this Act.
(3) Every person who held a position in the civil service at
the time this Act comes into force continues to hold that
position after that time, subject to the provisions of this Act.
(4) The persons to whom the Prevailing Rate Employees
General Regulations, 1960, made under the Financial
Administration Act, are applicable at the coming into force
of this Act shall be deemed to be employed in prevailing
rates positions, subject to the provisions of this Act relating
to prevailing rates positions.
17 See relevant provisions set out in Appendix "B".
for changes therein as required by changing cir
cumstances. It is further to be noted that, when
the 1961 Civil Service Act was repealed by section
48 of the P.S.E.A., c. 71 of the Statutes of Canada
of 1966-67, there was no provision continuing the
classification or organization of the Public Service
as it existed as of that time. What we do find is
(a) definitions in section 2 of the P.S.S.R.A. of
an "occupational category" and an "occupation-
al group", both of which are restricted to
"employees", which term, by definition,
excludes certain parts of the Public Service,
(b) the requirement in section 26 of the
P.S.S.R.A. that the Commission specify and
define the occupational groups so as to include
all "employees" before the end of March, 1967,
and
(c) the authority in section 7 of the Financial
Administration Act for the Treasury Board to
"provide for the classification of positions and
employees in the public service" and to deter
mine and regulate the pay to which persons
employed in the Public Service are entitled.
[The emphasis is mine.]
The question that arises from all this, as it strikes
me, is whether the definition of occupational
groups by the Commission in 1967 has frozen the
classification of the employees in the Public Ser
vice into such groups until Parliament makes some
change therein; or whether, while that definition
governs for the purpose of section 26(4) and for
the purpose of any use of a group name in a
certification of a bargaining agent or other use
made of it before the group has been changed,
Treasury Board, in the exercise of its classification
powers, can change the occupational groups of
employees in the Public Service from time to time,
as, in its judgment, circumstances dictate such
changes. Indeed, it is not too clear whether group
ings under the P.S.S.R.A. for purposes of collec
tive bargaining limit in any way the exercise of
Treasury Board's classification powers for organi
zational purposes. The problem arises, as I see it,
only with reference to "employees" and not with
reference to other persons in the Public Service.
V. CONCLUSIONS
For the above reasons, I would dismiss the sec
tion 28 application (A-569-78) to set aside the part
of the Decision attacked that in effect dismissed
the request for a determination under section 33 of
the P.S.S.R.A. and I would allow the section 28
application on A-563-78 and set aside that part of
the Board's decision that purports
(a) to find that the Employer exceeded its au
thority in purporting to establish a new occupa
tional group, and
(b) to find "that the subject 157 positions and
persons affected remain part of the Programme
Administration (PM) Group"
for want of jurisdiction.
* * *
RYAN J. concurred.
* * *
KERR D.J. concurred.
APPENDIX "A"
Public Service Staff Relations Act, R.S.C. 1970, c. P-35
26. (1) The Public Service Commission shall, within fifteen
days after the 13th day of March 1967, specify and define the
several occupational groups within each occupational category
enumerated in paragraphs (a) to (e) of the definition `occupa-
tional category" in section 2, in such manner as to comprise
therein all employees in the Public Service in respect of whom
Her Majesty as represented by the Treasury Board is the
employer, and shall thereupon cause notice of its action and of
the occupational groups so specified and defined by it to be
published in the Canada Gazette.
(2) The Public Service Commission, in specifying and defin
ing the several occupational groups within each occupational
category pursuant to subsection (1), shall specify and define
those groups on the basis of the grouping of positions and
employees, according to the duties and responsibilities thereof,
under the program of classification revision undertaken by the
Civil Service Commission prior to the 13th day of March 1967.
(3) As soon as possible after the 13th day of March 1967 the
Board shall, for each occupational category, specify the day on
and after which an application for certification as bargaining
agent for a bargaining unit comprised of employees included in
that occupational category may be made by an employee
organization, which day shall not, for any occupational catego
ry, be later than the sixtieth day after the 13th day of March
1967.
(4) During the initial certification period, a unit of
employees in respect of whom Her Majesty as represented by
the Treasury Board is the employer may be determined by the
Board as a unit appropriate for collective bargaining only if
that unit is comprised of
(a) all of the employees in an occupational group;
(b) all of the employees in an occupational group other than
employees whose duties include the supervision of other
employees in that occupational group; or
(c) all of the employees in an occupational group whose
duties include the supervision of other employees in that
occupational group.
(5) Subsection (4) does not apply where, upon an applica
tion for certification as bargaining agent for a proposed bar
gaining unit,
(a) the employee organization making the application, or
any employee organization whose members include
employees in the proposed bargaining unit, has filed with the
Board an objection to the determination of a bargaining unit
in consequence of the application on the basis specified in
subsection (4), on the ground that such a bargaining unit
would not permit satisfactory representation of employees
included therein and, for that reason, would not constitute a
unit of employees appropriate for collective bargaining; and
(b) the Board, after considering the objection, is satisfied
that such a bargaining unit would not, for that reason,
constitute a unit of employees appropriate for collective
bargaining.
(6) During the initial certification period, in respect of each
occupational category,
(a) notice to bargain collectively may be given in respect of a
bargaining unit comprised of employees included in that
occupational category only after the day specified in Column
I of Schedule II applicable to that occupational category; and
(b) a collective agreement may be entered into or an arbitral
award rendered in respect of a bargaining unit comprised of
employees included in that occupational category only after
the day specified in Column II of Schedule II applicable to
that occupational category;
and any collective agreement entered into or arbitral award
rendered during the initial certification period in respect of a
bargaining unit comprised of employees included in that occu
pational category shall remain in effect until the day specified
in Column III of Schedule II applicable to that occupational
category, and no longer.
(7) Where, during the initial certification period, an occupa-
tionally-related category of employees is determined by the
Board to be an occupational category for the purposes of this
Act, the Board shall, at the time of making the determination,
(a) specify the day corresponding to that described in sub
section (3) which shall apply in relation to that occupational
category as though it were specified by the Board under that
subsection; and
(b) specify the days corresponding to those described in
Columns I, II and III of Schedule II which shall apply in
relation to that occupational category as though they were
specified in Columns I, II and III of Schedule II,
respectively.
APPENDIX "B"
Civil Service Act, S.C. 1960-61, c. 57
PART II.
ORGANIZATION OF THE CIVIL SERVICE.
Classification.
9. (1) The Commission shall divide the civil service into
classes of employment and shall classify each position therein.
(2) The Commission may subdivide each class into two or
more grades, but where a class is not so subdivided it shall for
the purposes of this section constitute a grade.
(3) The Commission shall define each grade by reference to
standards of duties, responsibilities and qualifications, and shall
give it an appropriate title.
(4) Each grade shall embrace all positions in a class having
similar duties and responsibilities and requiring similar qualifi
cations of persons appointed to a position in the grade.
(5) The Commission may divide, combine, alter or abolish
any classes or grades, but no alteration in the establishment of
a department shall be effected by anything done under this
subsection without the approval of the Governor in Council.
(6) The title of each grade shall be observed in all records of
the Commission, the Auditor General and the Treasury Board,
and in all departmental estimates and parliamentary returns
and appropriations, but need not be used for other purposes.
Pay and Allowances.
10. (1) The Commission shall keep under review the rates of
remuneration to employees and shall whenever it considers it
desirable or whenever requested by the Governor in Council
make recommendations with regard thereto to the Governor in
Council.
(2) The Commission in making recommendations on remu
neration shall consider the requirements of the civil service, and
shall also take into account the rates of pay and other terms
and conditions of employment prevailing in Canada for similar
work outside the civil service, the relationship of the duties of
the various classes within the civil service and any other
considerations that the Commission considers to be in the
public interest.
(3) Prior to formulating any recommendations under this
section the Commission shall from time to time as may be
necessary consult with representatives of appropriate organiza
tions and associations of employees with respect to the matters
specified in this section.
11. The Governor in Council, after the Commission has had
an opportunity of considering the matter and after considering
any recommendations made by the Commission, shall
(a) establish rates of pay for each grade; and
(b) establish the allowances that may be paid in addition to
pay.
Establishments.
15. When a department or a branch or division of a depart
ment is constituted, the deputy head shall prepare a statement
showing
(a) the number of employees required for the proper conduct
of the business of the department;
(b) the duties and responsibilities of each employee and the
qualifications desired; and
(c) a plan of organization showing the proposed branches or
divisions of the department and the relationship between the
persons to be employed therein.
16. (1) The deputy head shall refer the statement prepared
under section 15 to the Commission and the Commission shall
classify the position of each proposed employee.
(2) The deputy head shall prepare a list of proposed posi
tions showing the class and grade of each position and the title
of each grade and, when approved by the Governor in Council,
the positions constitute the establishment for the department.
(3) The rate of pay applicable to a position as described on
an establishment is the rate established by the Governor in
Council for the class and grade within which the position is
included.
17. (1) When a deputy head is of the opinion that the
proper functioning of the department requires the addition of a
position to the establishment of the department, he may submit
to the Commission a description of the proposed position
setting forth
(a) the duties to be performed,
(b) the responsibilities to be assumed, and
(c) the qualifications desired,
and the Commission shall classify the position.
(2) Subject to any limitation or direction of a special or
general character imposed by the Governor in Council, the
deputy head may issue a certificate in a form prescribed by the
Governor in Council setting forth the classification of a position
by the Commission pursuant to subsection (1) and the day on
which the position is added to the establishment of the depart
ment, and thereupon the establishment shall be deemed to be
amended accordingly.
(3) Notwithstanding anything in this section, the Governor
in Council may add to the establishment of a department a
position classified by the Commission under subsection (1).
(4) A deputy head may by the issue of a certificate in a form
prescribed by the Governor in Council abolish any vacant
position on the establishment of the department.
18. The deputy head shall forthwith send to the Treasury
Board and the Commission a copy of every certificate issued by
him under section 17.
19. (1) The Governor in Council may from time to time
review the establishments of departments and may, after con
sidering the recommendations or representations of the deputy
head, delete positions from or add positions to the establish
ment of the department.
(2) For the purposes of this section, the deputy head shall
submit to the Governor in Council a plan of organization and
such further information or material as the Governor in Coun
cil may require.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.