Vol. 149, No. 12 — June 17, 2015
SOR/2015-118 May 29, 2015
PUBLIC SERVICE LABOUR RELATIONS ACT
Order Amending the Public Service Labour Relations Act Separate Agency Designation Order
P.C. 2015-630 May 28, 2015
His Excellency the Governor General in Council, on the recommendation of the Minister of Canadian Heritage, pursuant to subsection 209(3) of the Public Service Labour Relations Act (see footnote a), makes the annexed Order Amending the Public Service Labour Relations Act Separate Agency Designation Order.
ORDER AMENDING THE PUBLIC SERVICE LABOUR RELATIONS ACT SEPARATE AGENCY DESIGNATION ORDER
1. The schedule to the Public Service Labour Relations Act Separate Agency Designation Order (see footnote 1) is amended by adding the following in alphabetical order:
Canada Revenue Agency
Agence du revenu du Canada
COMING INTO FORCE
2. This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
Paragraph 209(1)(d) of the Public Service Labour Relations Act (the Act) allows employees of a separate agency to refer individual grievances related to a demotion or termination for any reason not related to a breach of discipline or misconduct to adjudication before the Public Service Labour Relations and Employment Board (the Board), but only if the agency has been designated under subsection 209(3) of the Act. The Canada Revenue Agency (CRA) is a separate agency within the meaning of subsection 11(1) of the Financial Administration Act, but it is not currently designated under subsection 209(3) of the Act.
When the CRA became a separate agency, it no longer had access to the Board adjudication process, and so it developed an internal process unique to the CRA. Over the years, experience has shown that the CRA’s process does not effectively address the specific nature and requirements of labour relations grievance cases. It is also not in line with the Board’s adjudication processes used by the core public administration.
On November 1, 1999, the Department of National Revenue became the Canada Customs and Revenue Agency, and on December 2, 2005, it became the CRA. Prior to becoming an agency, employees of National Revenue came under the Treasury Board’s management authority and thus had the same rights as the core public service to refer any grievances against a non-disciplinary demotion or termination to the Public Service Staff Relations Board (this was the Board’s title in 2005).
When the CRA was established as a separate agency, it was given the authority to exercise its own responsibilities in human resources management. Consequently, the CRA adopted its own recourse mechanism which meant that its employees were no longer entitled to refer their grievances related to a non-disciplinary demotion or termination to the Public Service Staff Relations Board for adjudication. This recourse mechanism, the Independent Third Party Review (ITPR) process for labour relations cases, was also used for recourse in staffing matters.
The ITPR process is governed by the Canada Revenue Agency (CRA) Independent Third Party Review (ITPR) Processing Directive dated May 1, 2005. The ITPR is an administrative process which provides a rights-based recourse mechanism to employees regarding grievances related to non-disciplinary demotion or termination, as well as staffing related matters. ITPR cases are assigned to external “reviewers” who specialize in mediation and arbitration services and who are mandated, by contract, to conduct a review and to make a decision that is final, binding, and that respects the CRA Human Resources Regime.
The objective of this amendment is to designate the CRA under subsection 209(3) of the Act so that CRA employees have the same recourse mechanism for non-disciplinary demotions or terminations as have other employees in the core public service. In addition, this change will result in there being a single recourse mechanism for both disciplinary and non-disciplinary matters for CRA employees, contributing to internal administrative efficiencies.
The Public Service Labour Relations Act Separate Agency Designation Order (the Designation Order) [SOR/2005-59], dated March 22, 2005, is amended to add the CRA (in alphabetical order) to the Schedule to the Designation Order. As a result, the CRA, a separate agency within the meaning of subsection 11(1) of the Financial Administration Act, is designated for the purposes of paragraph 209(1)(d) of the Act, which allows CRA employees to have access to the Board’s process for grievances related to a non-disciplinary demotion or termination.
The “One-for-One” Rule does not apply, as this amendment does not impact business.
Small business lens
The small business lens does not apply, as this amendment does not impact small business.
Consultations with the CRA and the Treasury Board Secretariat have taken place with respect to this amendment. In addition, the Public Service Labour Relations and Employment Board and the Administrative Tribunals Support Service of Canada have been consulted and they have no concerns with this amendment.
Any employee, as defined in the Act, employed by a separate agency or federal government department who is demoted or terminated for a non-disciplinary reason (a reason other than a breach of discipline or misconduct) has a right to file an individual grievance against that employer decision. Once a decision has been rendered at the final level of the grievance procedure by the delegated manager, the next course of action for an employee unsatisfied with the decision received depends on whether the employee is employed by a department under the Treasury Board’s management authority or by a separate agency, within the meaning of subsection 11(1) of the Financial Administration Act.
If the employee is employed by a department under the Treasury Board’s management authority, the employee can refer a grievance against a non-disciplinary demotion or termination to the Board for adjudication pursuant to subparagraph 209(1)(c)(i) of the Act.
If the employee is employed by a separate agency, the employee does not have access to the Board unless the separate agency is specifically designated under subsection 209(3) of the Act.
CRA’s experience since becoming a separate agency has been that its ITPR process for labour relations cases does not effectively address the specific nature and requirements of these types of grievance cases. Based on a comparative review of the ITPR process and the current Board adjudication process, the CRA has determined that the most suitable option for the CRA and its employees is to have these cases adjudicated by the Board. Therefore, the CRA requested to be designated, by Order, for purposes of paragraph 209(1)(d) of the Act.
The Board’s process is an effective recourse mechanism that provides a comprehensive review of non-disciplinary demotion and termination grievances and issues, including the review of allegations of discriminatory treatment under the Canadian Human Rights Act. The ability to rely on previous Board decisions will enable better assessment early in the process which could reduce the number of grievances that proceed through the full formal adjudication process. This amendment also aligns the recourse mechanism for CRA employees with that of the core public service and this alignment of recourse mechanisms eliminates duplication.
There are no implementation costs associated with this amendment, as the CRA will use the Board adjudication process which already exists and is already being used for the core public service with respect to grievances related to non-disciplinary demotion or termination. The Board currently assumes the costs related to adjudication processes. However, the expenses of the Board adjudication process will be borne in equal parts by the CRA and the bargaining agents in the future, once the amendments to the Act, as amended by the Economic Action Plan 2013 Act, No. 2, take effect.
Implementation, enforcement and service standards
This amendment comes into force upon registration.
Collective Bargaining, Interpretation and Recourse
Workplace Relations and Compensation Directorate
Human Resources Branch
Canada Revenue Agency
395 Terminal Avenue