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

No Right of Action

Marginal note:Disputes relating to employment

• 236 (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

• Marginal note:Application

  (2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

• Marginal note:Exception

  (3) Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.

Regulations

Marginal note:Regulations

• 237 (1) The Board may make regulations respecting the processes for dealing with grievances, including regulations concerning

  • (a) the manner and form of presenting a grievance and, in the case of group grievances, the form of the consent of the employees concerned;

  • (b) the maximum number of levels in each grievance process;

  • (c) the manner in which employees are to be advised of the names of the persons whose decision on a grievance constitutes a level in the grievance process, including the final level;

  • (d) the time within which a grievance may be presented at any level in a grievance process;

  • (e) the circumstances in which any level below the final level in a grievance process may be eliminated;

  • (f) the manner in which and the time within which a grievance may be referred to adjudication after it has been presented up to and including the final level in the grievance process;

  • (f.1) the manner of giving notice of an issue to the Accessibility Commissioner under this Part;

  • (g) the establishment of rules of procedure for the hearing of a grievance;

  • (h) the specification of the time within which and the persons to whom notices and other documents must be sent or given under this Part or Division 2 of Part 2.1, and when the notices are deemed to have been sent, given or received; and

  • (i) the manner of giving notice of an issue to the Canadian Human Rights Commission under this Part.

• Marginal note:Application of regulations

  (2) Regulations made under subsection (1) respecting individual, group or policy grievances do not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board to the extent that the regulations are inconsistent with any provisions contained in a collective agreement entered into by the bargaining agent and the employer applicable to those employees.

Marginal note:Regulations

238 The Board may make regulations respecting

• (a) the manner of giving notice under subsection 223(1) and the time for making objections under paragraph 223(2)(c); and

• (b) the manner in which and the time within which boards of adjudication are to be established.

PART 2.1Provisions Unique to the Royal Canadian Mounted Police

Interpretation

Marginal note:Definition of RCMP Commissioner

• 238.01 (1) In this Part, RCMP Commissioner means the Commissioner of the Royal Canadian Mounted Police.

• Marginal note:Definition of RCMP member

  (2) In Division 2 of this Part, RCMP member has the meaning assigned by the definition member in subsection 2(1) of the Royal Canadian Mounted Police Act.

Marginal note:Inconsistency with Part 1 or 2

• 238.02 (1) In the event of an inconsistency between a provision of this Part and a provision of Part 1 or 2, the provision of this Part prevails to the extent of the inconsistency.

• Marginal note:Inconsistency — clarification

  (2) Without limiting the generality of subsection (1), section 58, subsections 208(1) and 209(1) and (2) and section 209.1 are inconsistent with this Part.

• Marginal note:Clarification

  (3) For greater certainty,

  • (a) the provisions of Part 1, in so far as they are applicable, apply to employees who are RCMP members or reservists unless there is an indication to the contrary; and

  • (b) the provisions of Part 2, in so far as they are applicable, apply to employees who are RCMP members, as defined in subsection 238.01(2), or reservists unless there is an indication to the contrary.

Marginal note:Employer’s right preserved

238.03 Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board to determine categories of members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act.

Marginal note:Duties preserved

238.04 Nothing in this Act is to be construed as affecting any duties of members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act who are peace officers, or any duties of reservists who are peace officers, including duties imposed under that Act.

Unique Role as Police Organization

Marginal note:Board’s additional duty

238.05 In administering this Act and in exercising the powers and performing the duties and functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act, with regulations made under it or with decisions made in respect of a matter coming before the Board, the Board must, in matters concerning RCMP members and reservists, take into account the unique role of the Royal Canadian Mounted Police as a police organization in protecting public safety and national security and its need to deploy its members and reservists as it sees fit.

DIVISION 1Labour Relations

Adjournment of Proceedings

Marginal note:Prejudice to ongoing investigations or proceedings

• 238.06 (1) The Board must, on the request of the RCMP Commissioner or the employer, adjourn all proceedings in relation to any matter before the Board under this Division or Part 1 that concerns a person who is or was an RCMP member or a reservist if the Board is satisfied that to continue those proceedings would prejudice an ongoing criminal investigation or an ongoing criminal or civil proceeding.

• Marginal note:Maximum period of adjournment

  (2) No adjournment may be for a period of more than 90 days. However, the RCMP Commissioner or the employer may request more than one adjournment in relation to a matter.

Law Enforcement, Public Safety and National Security

Marginal note:Non-disclosure

• 238.07 (1) The RCMP Commissioner may, in connection with any matter or proceeding before the Board under this Division or Part 1 that concerns a person who is or was an RCMP member or a reservist, object to the disclosure to the Board or to a party of any information whose disclosure would, in that Commissioner’s opinion, be injurious to law enforcement, public safety or national security.

• Marginal note:Notice of objection

  (2) If the RCMP Commissioner objects to the disclosure of information under subsection (1), he or she must, as soon as feasible, give written notice of the objection and the reasons for it to the Board and to the parties.

• Marginal note:Other provisions do not apply

  (3) The RCMP Commissioner may object to the disclosure of information under subsection (1) despite any provision of this Act or the Federal Public Sector Labour Relations and Employment Board Act that would otherwise permit the Board to require that the information be disclosed.

• Marginal note:Former judge

  (4) If the RCMP Commissioner objects to the disclosure of information under subsection (1), the Minister must, at the written request of the Board or a party, appoint a former judge of a superior court of a province or the Federal Court to review the information and to make an order under section 238.08.

• Marginal note:Oath of secrecy

  (5) In order to be appointed, the former judge must obtain a security clearance from the Government of Canada and take the oath of secrecy prescribed by regulation.

• Marginal note:Notice of appointment

  (6) The Minister must provide notice to the Board, to the parties and to the RCMP Commissioner when a former judge has been appointed in accordance with subsection (4). The Board, the parties and the RCMP Commissioner may make their representations to the former judge only within 30 days after the day on which the notice is sent or any longer period, not more than 60 days after the day on which the notice is sent, that the former judge may permit.

• Marginal note:Former judge to have access

  (7) The former judge is to have access to the information about which an objection is made under subsection (1) for the purposes of the review.

Marginal note:Order regarding disclosure

• 238.08 (1) Unless the former judge concludes that the disclosure of the information about which an objection is made under subsection 238.07(1) would be injurious to law enforcement, public safety or national security, the former judge must order that the RCMP Commissioner’s objection under section 238.07 to the disclosure of that information be dismissed.

• Marginal note:Disclosure required

  (2) If the former judge concludes that the disclosure of all or part of that information would be injurious to law enforcement, public safety or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the former judge, after considering the public interest in disclosure, must order the RCMP Commissioner to disclose to the Board or to the party, as the case may be, all or that part of that information, a summary of that information or a written admission of facts relating to that information.

• Marginal note:No disclosure required

  (3) If the former judge does not make an order under subsection (1) or order disclosure under subsection (2), they must make an order upholding the RCMP Commissioner’s objection to the disclosure.

• Marginal note:Time limit

  (4) The order of the former judge must be made within 30 days after the day on which the period referred to in subsection 238.07(6) expires or within any longer period, not more than 60 days after the day on which the period referred to in that subsection expires, that the Minister permits.

• Marginal note:Prohibition

  (5) The former judge must not include in their order any information that reveals information that they conclude must not be disclosed, or any information from which that information may be inferred.

• Marginal note:Order final

  (6) The former judge’s order is final and binding.

• Marginal note:Review

  (7) The RCMP Commissioner’s objection is not subject to review except to the extent and in the manner provided under this section.

Marginal note:Protection

• 238.09 (1) No criminal, civil or administrative action or proceeding lies against a former judge, or any person acting on their behalf or under their direction, for anything done, reported or said in good faith in the exercise or purported exercise of any power, or the performance or purported performance of any duty or function, of the former judge under sections 238.07 and 238.08.

• Marginal note:No summons

  (2) The former judge, or any person acting on their behalf or under their direction, is not, in respect of any matter coming to the knowledge of the former judge or that person as a result of exercising a power or performing a duty or function of the former judge, a competent or compellable witness in any proceeding other than a prosecution for an offence under this Act, the Foreign Interference and Security of Information Act or section 132 or 136 of the Criminal Code.

Marginal note:Use of information

238.1 Information about which an objection is made under subsection 238.07(1) that is disclosed by the RCMP Commissioner to the Board or to a party in connection with the matter or proceeding that gave rise to the objection may be used only in connection with that matter or proceeding.

Marginal note:Memorandum of understanding

238.11 The Chairperson and the RCMP Commissioner may enter into a memorandum of understanding setting out principles and procedures respecting the disclosure of information referred to in subsection 238.07(1) and the protection of that information if it is disclosed.

Marginal note:Disclosure of information — other legal proceedings

• 238.12 (1) If the RCMP Commissioner discloses information about which an objection is made under subsection 238.07(1) to the Board or to a party in connection with the matter or proceeding that gave rise to the objection, the Board or that party is not to be required, in connection with any other criminal, civil or administrative action or proceeding, to give or produce evidence relating to that information.

• Marginal note:Application

  (2) Except as provided by any other Act of Parliament that expressly refers to it, this section applies despite any other Act of Parliament, other than the Access to Information Act and the Privacy Act.

• Marginal note:Section prevails

  (3) This section applies despite subsection 13(1) of the Auditor General Act and subsection 79.3(1) of the Parliament of Canada Act.

Certification of Bargaining Agents

Marginal note:Right to apply

• 238.13 (1) Subject to section 55, an employee organization within the meaning of paragraph (b) of the definition employee organization in subsection 2(1) that seeks to be certified as the bargaining agent for the group that consists exclusively of all the employees who are RCMP members and all the employees who are reservists may apply to the Board, in accordance with the regulations, for certification as bargaining agent for that group. The Board must notify the employer of the application without delay.

• Marginal note:Requirements for certification

  (2) The Board may certify an employee organization referred to in subsection (1) as the bargaining agent for the group only if it determines that the employee organization — and, in the case of a council of employee organizations, each employee organization forming the council — meets the following requirements:

  • (a) it has as its primary mandate the representation of employees who are RCMP members;

  • (b) it is not affiliated with a bargaining agent or other association that does not have as its primary mandate the representation of police officers; and

  • (c) it is not certified as bargaining agent for any other group of employees.

• Marginal note:Clarification

  (3) For greater certainty,

  • (a) for the purposes of subsection (2), participation by an employee organization in the National Joint Council is not considered to be an affiliation with a bargaining agent or other association that does not have as its primary mandate the representation of police officers; and

  • (b) no application is permitted to be made under section 54 in respect of employees who are RCMP members or reservists.