Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2)

Reference to Adjudication

Marginal note:Reference to adjudication

216 The bargaining agent may refer to adjudication any group grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to its satisfaction.

Marginal note:Notice to Canadian Human Rights Commission

• 217 (1) When a group grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

• Marginal note:Standing of Commission

  (2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Withdrawal from Group Grievance

Marginal note:Notice to Accessibility Commissioner

• 217.1 (1) When a group grievance has been referred to adjudication and a party to the grievance raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, that party must, in accordance with the regulations, give notice of the issue to the Accessibility Commissioner, as defined in section 2 of that Act.

• Marginal note:Standing of Accessibility Commissioner

  (2) The Accessibility Commissioner has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Marginal note:Right of employee to withdraw

218 An employee in respect of whom a group grievance has been presented may, at any time before a final decision is made in respect of the grievance, notify the bargaining agent that the employee no longer wishes to be involved in the group grievance.

Marginal note:Effect of notice

219 After receiving the notice, the bargaining agent may not pursue the grievance in respect of the employee.

Policy Grievances

Presentation

Marginal note:Right of employer and bargaining agent

• 220 (1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.

• Marginal note:Limitation

  (2) Neither the employer nor a bargaining agent may present a policy grievance in respect of which an administrative procedure for redress is provided under any other Act of Parliament, other than the Canadian Human Rights Act.

• Marginal note:Limitation

  (3) Despite subsection (2), neither the employer nor a bargaining agent may present a policy grievance in respect of the right to equal pay for work of equal value.

• Marginal note:Limitation

  (4) A bargaining agent may not present a policy grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

• Marginal note:Order to be conclusive proof

  (5) For the purposes of subsection (4), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

Reference to Adjudication

Marginal note:Reference to adjudication

221 A party that presents a policy grievance may refer it to adjudication.

Marginal note:Notice to Canadian Human Rights Commission

• 222 (1) When a policy grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

• Marginal note:Standing of Commission

  (2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Adjudication

Notice to Board

Marginal note:Notice to Accessibility Commissioner

• 222.1 (1) When a policy grievance has been referred to adjudication and a party to the grievance raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, that party must, in accordance with the regulations, give notice of the issue to the Accessibility Commissioner, as defined in section 2 of that Act.

• Marginal note:Standing of Accessibility Commissioner

  (2) The Accessibility Commissioner has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Marginal note:Notice

• 223 (1) A party who refers a grievance to adjudication must, in accordance with the regulations, give notice of the reference to the Board.

• Marginal note:Action to be taken by Chairperson

  (2) If the party specifies in the notice that an adjudicator is named in an applicable collective agreement, that an adjudicator has otherwise been selected by the parties or, if no adjudicator is so named or has been selected, that the party requests the establishment of a board of adjudication, then the Chairperson must, on receipt of the notice by the Board,

  • (a) if the grievance is one arising out of a collective agreement and an adjudicator is named in the agreement, refer the matter to the adjudicator;

  • (b) if the parties have selected an adjudicator, refer the matter to the adjudicator; and

  • (c) if a board of adjudication has been requested and the other party has not objected in the time provided for in the regulations, establish the board and refer the matter to it.

• Marginal note:Board seized of grievance

  (2.1) If the notice does not specify any of the things described in subsection (2), or if a board of adjudication has been requested and the other party has objected in the time provided for in the regulations, the Board is seized of the grievance.

• Marginal note:Conference

  (3) The Chairperson may, at any time after receipt of the notice, direct the parties to attend a conference in order to attempt to settle or simplify the issues in dispute.

Board of Adjudication

Marginal note:Constitution

• 224 (1) A board of adjudication consists of one member of the Board designated by the Chairperson, who is the chairperson of the board of adjudication, and two other persons, each of whom is nominated by one of the parties.

• Marginal note:Ineligibility

  (2) A person is not eligible to be a member of a board of adjudication if the person has any direct interest in or connection with the grievance referred to the board of adjudication, its handling or its disposition.

Jurisdiction

Marginal note:Compliance with procedures

225 No grievance may be referred to adjudication until the grievance has been presented at all required levels in accordance with the applicable grievance process.

Powers

Marginal note:Powers of adjudicator

• 226 (1) An adjudicator may, in relation to any matter referred to adjudication, exercise any of the powers set out in paragraph 16(d) of this Act and sections 20 to 23 of the Federal Public Sector Labour Relations and Employment Board Act.

• Marginal note:Powers of adjudicator and Board

  (2) An adjudicator or the Board may, in relation to any matter referred to adjudication,

  • (a) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act that are related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any;

  • (a.1) interpret and apply the Accessible Canada Act;

  • (b) give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act;

  • (b.1) give relief in accordance with section 102 of the Accessible Canada Act; and

  • (c) award interest in the case of grievances involving termination, demotion, suspension or financial penalty at a rate and for a period that the adjudicator or the Board, as the case may be, considers appropriate.

227 [Repealed, 2013, c. 40, s. 376]

Decision

Marginal note:Hearing of grievance

• 228 (1) If a grievance is referred to adjudication, the adjudicator or the Board, as the case may be, must give both parties to the grievance an opportunity to be heard.

• Marginal note:Decision on grievance

  (2) After considering the grievance, the adjudicator or the Board, as the case may be, must render a decision, make the order that the adjudicator or the Board consider appropriate in the circumstances, and then send a copy of the order  —  and, if there are written reasons for the decision, a copy of the reasons  —  to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the employee whose grievance it is belongs. The adjudicator must also deposit a copy of the order and, if there are written reasons for the decision, a copy of the reasons, with the Chairperson.

• Marginal note:Decision of board of adjudication

  (3) In the case of a board of adjudication, a decision of a majority of the members on a grievance is deemed to be a decision of the board in respect of the grievance, and the decision must be signed by the chairperson of the board.

• Marginal note:Decision where majority cannot agree

  (4) If a majority of members of the board of adjudication cannot agree on the making of a decision, the decision of the chairperson of the board is deemed to be the decision of the board.

Marginal note:Decision requiring amendment

229 An adjudicator’s or the Board’s decision may not have the effect of requiring the amendment of a collective agreement or an arbitral award.

Marginal note:Determination of reasonableness of opinion

230 In the case of an employee in the core public administration or an employee of a separate agency designated under subsection 209(3), in making a decision in respect of an employee’s individual grievance relating to a termination of employment or demotion for unsatisfactory performance, an adjudicator or the Board, as the case may be, must determine the termination or demotion to have been for cause if the opinion of the deputy head that the employee’s performance was unsatisfactory is determined by the adjudicator or the Board to have been reasonable.

Marginal note:Determination of consent requirement

231 An adjudicator or the Board, when seized of a grievance referred to in subparagraph 209(1)(c)(ii), may determine any question relating to whether

• (a) consent to being deployed was a condition of the employee’s employment; or

• (b) the employee harassed another person in the course of the employee’s employment.

Marginal note:Decision in respect of certain policy grievances

232 If a policy grievance relates to a matter that was or could have been the subject of an individual grievance or a group grievance, an adjudicator’s or the Board’s decision in respect of the policy grievance is limited to one or more of the following:

• (a) declaring the correct interpretation, application or administration of a collective agreement or an arbitral award;

• (b) declaring that the collective agreement or arbitral award has been contravened; and

• (c) requiring the employer or bargaining agent, as the case may be, to interpret, apply or administer the collective agreement or arbitral award in a specified manner.

Marginal note:No review by court

233 Subsections 34(1) and (3) of the Federal Public Sector Labour Relations and Employment Board Act apply, with any necessary modifications, to an adjudicator’s orders and decisions.

Marginal note:Filing of order in Federal Court

• 234 (1) The Board must, on the request in writing of any person who was a party to the proceedings that resulted in an order of an adjudicator or the Board, as the case may be, file a certified copy of the order, exclusive of the reasons for it, in the Federal Court, unless, in the opinion of the Board,

  • (a) there is no indication, or likelihood, of failure to comply with the order; or

  • (b) there is another good reason why the filing of the order in the Federal Court would serve no useful purpose.

• Marginal note:Non-application

  (2) Section 35 of the Federal Public Sector Labour Relations and Employment Board Act does not apply to an order of the Board referred to in subsection (1).

• Marginal note:Effect of filing

  (3) An order of an adjudicator or the Board becomes an order of the Federal Court when a certified copy of it is filed in that court, and it may subsequently be enforced as such.

Expenses of Adjudication

Marginal note:Aggrieved employee not represented by agent

• 235 (1) If an aggrieved employee is not represented in the adjudication by a bargaining agent, the costs of the adjudication are to be borne by the Board.

• Marginal note:Aggrieved employee represented by agent

  (2) If an aggrieved employee is represented in the adjudication by a bargaining agent, the bargaining agent is liable to pay and must remit to the Board any part of the costs of the adjudication that may be determined by the Chairperson with the Board’s approval.

• Marginal note:Recovery

  (3) Any amount that by subsection (2) is payable to the Board by a bargaining agent may be recovered as a debt due to Her Majesty in right of Canada. The bargaining agent is deemed to be a person for the purposes of this subsection.