352. Section 80 of the English version of the Act is replaced by the following:
353. Sections 81 and 82 of the Act are replaced by the following:
Marginal note:Corrective action when complaint upheld
81. (1) If the Tribunal finds a complaint under section 77 or 78 to be substantiated, the Tribunal may
(a) order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Tribunal considers appropriate; and
(b) if it has determined that the Commission or the deputy head has engaged in a discriminatory practice set out in section 7, 8, 10 or 14 of the Canadian Human Rights Act,
(i) order that the Commission or deputy head, as the case may be, cease the discriminatory practice and take measures to redress the practice or to prevent the same or a similar practice from occurring in the future; or
(ii) make any order that may be made under any of paragraphs 53(2)(b) to (e) or subsection 53(3) of that Act.
(2) The Tribunal may not order the Commission or the deputy head to make an appointment or to conduct a new appointment process if the Commission or the deputy head, as the case may be, has not been determined to have engaged in a discriminatory practice set out in section 7, 8, 10 or 14 of the Canadian Human Rights Act.
354. Paragraph 83(a) of the Act is replaced by the following:
(a) the person who made the complaint under section 77 or 78,
355. Section 84 of the Act is amended by striking out “and” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b):
(c) if the complaint involved a discriminatory practice set out in section 7, 8, 10 or 14 of the Canadian Human Rights Act, make any order against the deputy head or the Commission that the Tribunal considers appropriate in the circumstances.
356. Subsection 88(2) of the Act is replaced by the following:
(2) The Tribunal’s mandate is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77, 78 and 83.
357. Section 99 of the Act is amended by adding the following after subsection (2):
Marginal note:Dismissing complaint
(2.1) The Tribunal may summarily dismiss a complaint if the complainant fails to comply with any procedures set out in this Act, or the Tribunal’s regulations, in relation to a complaint.
Marginal note:Dismissing complaint
(2.2) The Tribunal may summarily dismiss a complaint if the deputy head has taken the corrective action that the Tribunal considers appropriate in relation to the complaint.
358. Section 101 of the Act is replaced by the following:
Marginal note:Copy of decision provided
101. The Tribunal shall render a decision on a complaint made under subsection 65(1) or section 74, 77, 78 or 83 and provide a copy of it — including any written reasons — and any accompanying order to the Commission and to each person who exercised the right to be heard on the complaint.
359. (1) Paragraph 109(a) of the Act is replaced by the following:
(a) the manner in which and the time within which a complaint may be made under subsection 65(1) or section 74, 77, 78 or 83;
(2) Section 109 of the Act is amended by adding “and” at the end of paragraph (c) and by repealing paragraph (d).
360. The provisions of the Public Service Employment Act, as it Act read immediately before the day on which sections 348 to 357 come into force, continue to apply in respect of every complaint made under that Act before that day.
2009, c. 2. s. 394Public Sector Equitable Compensation Act
17. If arbitration has been chosen under subsection 104(1) of the Public Service Labour Relations Act as, or is, by reason of subsection 104(2) of that Act, the process for the resolution of disputes, questions concerning the provision of equitable compensation to employees may be the subject of a request for arbitration under subsection 136(1) of that Act.
362. Section 20 of the Act is replaced by the following:
20. If conciliation is the process for the resolution of disputes by reason of section 103 of the Public Service Labour Relations Act, questions concerning the provision of equitable compensation to employees may be the subject of a request for conciliation under subsection 161(1) of that Act.
Marginal note:2009, c. 2
(2) If section 400 of the other Act comes into force before section 295 of this Act, then section 13 of the Public Service Labour Relations Act is replaced by the following:
13. The Board’s mandate is to provide adjudication services and mediation services in accordance with this Act and the Public Sector Equitable Compensation Act.
(3) If section 295 of this Act comes into force before section 400 of the other Act, then that section 400 is replaced by the following:
(4) If section 295 of this Act comes into force on the same day as section 400 of the other Act, then that section 400 is deemed to have come into force before that section 295 and subsection (2) applies as a consequence.
Coming into Force
Marginal note:Subsections 307(2) and 316(2)
Marginal note:Sections 325 to 336, 340 and 342 to 359
(2) Sections 325 to 336, 340 and 342 to 359 come into force on a day to be fixed by order of the Governor in Council.
Division 18Reorganization of Federal Public Service Labour Relations and Employment Boards
Public Service Labour Relations and Employment Board Act
Marginal note:Enactment of Act
365. The Public Service Labour Relations and Employment Board Act is enacted as follows:
Marginal note:Short title
1. This Act may be cited as the Public Service Labour Relations and Employment Board Act.
2. The following definitions apply in this Act.
« agent négociateur »
“bargaining agent” has the same meaning as in subsection 2(1) of the Public Service Labour Relations Act.
« employeur »
“employer” has the same meaning as in subsection 2(1) of the Public Service Labour Relations Act.
« ministre »
“Minister” means the Minister who is designated under section 3.
DESIGNATION OF MINISTER
Marginal note:Power of Governor in Council
3. The Governor in Council may, by order, designate any federal minister, other than a member of the Treasury Board, to be the Minister referred to in this Act.
PUBLIC SERVICE LABOUR RELATIONS AND EMPLOYMENT BOARD
Establishment and Composition
Marginal note:Establishment of Board
4. (1) A board is established, to be known as the Public Service Labour Relations and Employment Board.
Marginal note:Board’s composition
(2) The Board is composed of
(a) a Chairperson, who is to hold office on a full-time basis;
(b) not more than two Vice-chairpersons, who are to hold office on a full-time basis;
(c) not more than 10 other members who are to hold office on a full-time basis; and
(d) any part-time members that the Governor in Council considers necessary to carry out the Board’s powers, duties and functions.
Appointment of Members
5. (1) To be eligible to hold office as a member, a person must
(b) not hold any other office or employment under the employer;
(c) not be a member of or hold an office or employment under an employee organization, as defined in subsection 2(1) of the Public Service Labour Relations Act, that is certified as a bargaining agent; and
(d) not accept any office or employment, or carry on any activity, that is inconsistent with the person’s duties or functions.
(2) Despite paragraph (1)(b), a person is not ineligible to hold office as a member by reason only of holding office as a member of any board that may be constituted by the Commissioner in Council of the Northwest Territories or the Legislature of Yukon or the Legislature for Nunavut with powers, duties and functions similar to those of the Board.
Marginal note:Appointments of other members from list
6. (1) Every member, other than the Chairperson or a Vice-chairperson, must be appointed from among eligible persons whose names are on a list prepared by the Chairperson after consultation with the employer and the bargaining agents.
(2) The Chairperson must set out on the list
(a) the names of all eligible persons who are recommended by the employer;
(b) the names of all eligible persons who are recommended by the bargaining agents; and
(c) the names of any other eligible persons whom the Chairperson considers suitable for appointment.
Marginal note:Equal numbers
(3) The appointment of members, other than the Chairperson and the Vice-chairpersons, is to be made so as to ensure that, to the extent possible, an equal number are appointed from among persons recommended by the employer and from among persons recommended by the bargaining agents.
Marginal note:Non-representative Board
(4) Despite being recommended by the employer or the bargaining agents, a member does not represent either the employer or the employees and must act impartially in the exercise of their powers and the performance of their duties and functions.
Marginal note:Residence of full-time members
7. A full-time member must reside in the National Capital Region as it is described in the schedule to the National Capital Act or within any distance of it that the Governor in Council may determine.
Marginal note:Appointment of members
8. (1) Each member is to be appointed by the Governor in Council, on the Minister’s recommendation, to hold office during good behaviour and may be removed by the Governor in Council for cause.
Marginal note:Term of office
(2) A full-time member may be appointed for a term of office that is not more than five years and a part-time member may be appointed for a term of office that is not more than three years.
(3) A member is eligible for reappointment on the expiry of any term of office.
Marginal note:Completion of duties and functions
(4) A person who ceases to be a member for any reason other than removal may, at the request of the Chairperson, within eight weeks after ceasing to be a member, carry out and complete any duties or functions that they would otherwise have had in connection with any matter that came before the Board while they were still a member and in respect of which there was any proceeding in which they participated as a member. For that purpose, the person is deemed to be a part-time member.
Marginal note:Oath or solemn affirmation
9. Before beginning their duties or functions, a person who is appointed as a member of the Board must take an oath or make a solemn affirmation in the following form before a commissioner of oaths or other person having authority to administer oaths or solemn affirmations:
I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgment, skill and ability, execute and perform the office of member (or Chairperson or Vice-chairperson) of the Public Service Labour Relations and Employment Board.
10. Every member and former member referred to in subsection 8(4)
(a) is to be paid the remuneration that may be determined by the Governor in Council; and
(b) is entitled to be paid reasonable travel and other expenses incurred by them in the course of their duties while absent from, in the case of full-time members, their ordinary place of work and, in the case of part-time members, their ordinary place of residence.
Application of Other Acts
Marginal note:Application of Public Service Superannuation Act
11. A full-time member is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.
Marginal note:Application of certain Acts
12. A member is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the federal public administration for the purposes of regulations made under section 9 of the Aeronautics Act.
Head Office and Meetings
Marginal note:Head office
13. The Board’s head office is to be in the National Capital Region as it is described in the schedule to the National Capital Act but the Board may, with the approval of the Governor in Council, establish any regional offices that the Chairperson considers necessary for the exercise of the Board’s powers and the performance of its duties and functions.
Marginal note:Services and facilities
14. In exercising its powers and performing its duties and functions, the Board may use any services and facilities of departments, boards and agencies of the Government of Canada that are appropriate for the Board’s operation.
15. (1) Meetings of the Board are to be held at any date, time and place that the Chairperson considers appropriate for the conduct of the Board’s business.
Marginal note:Off-site participation
(2) A meeting of the Board may be held by any means of telecommunication that permits all persons who are participating to communicate adequately with each other. A person who is participating by such means is deemed to be present at the meeting.
16. The Chairperson, one Vice-chairperson and a majority of the other full-time members constitute a quorum at a meeting of the Board.
Marginal note:Attendance of part-time members at meetings
17. A part-time member is not entitled to attend a meeting of the Board, but may attend at the Chairperson’s invitation.
Marginal note:Decision of majority
18. A decision of a majority of the Board’s members who are present at a meeting of the Board is a decision of the Board.
Board’s Powers, Duties and Functions
Marginal note:Powers, duties and functions
19. The Board is to exercise the powers and perform the duties and functions that are conferred or imposed on it by this Act or any other Act of Parliament.
Marginal note:Powers of Board
20. The Board has, in relation to any matter before it, the power to
(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;
(b) order pre-hearing procedures, including pre-hearing conferences that are held in private, and determine the date, time and place of the hearings for those procedures;
(c) order that a pre-hearing conference or a hearing be conducted using any means of telecommunication that permits all persons who are participating to communicate adequately with each other;
(d) administer oaths and solemn affirmations;
(e) accept any evidence, whether admissible in a court of law or not; and
(f) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant.
Marginal note:Frivolous matters
21. The Board may dismiss summarily any matter that in its opinion is trivial, frivolous, vexatious or was made in bad faith.
Marginal note:Determination without oral hearing
22. The Board may decide any matter before it without holding an oral hearing.
Marginal note:General power to assist parties
23. The Board, or any of its members or employees that it designates, may, if the parties agree, assist the parties in resolving any issues in dispute at any stage of a proceeding and by any means that the Board considers appropriate, without prejudice to the Board’s power to determine issues that have not been settled.
Marginal note:Delegation by Board
24. The Board may
(a) authorize the Chairperson to exercise any of its powers or perform any of its duties or functions, other than the power to make regulations; and
(b) authorize any person to exercise any of its powers under paragraphs 20(d) to (f) and require the person to report to it on what the person has done.
Marginal note:Chief executive officer
25. The Chairperson is the chief executive officer of the Board and has supervision over and direction of the Board’s work, including
(a) the assignment and reassignment of matters that the Board is seized of to panels;
(b) the composition of panels; and
(c) the determination of the date, time and place of hearings.
Marginal note:Delegation by Chairperson
26. The Chairperson may authorize a Vice-chairperson to exercise any of the Chairperson’s powers or perform any of the Chairperson’s duties or functions, including powers, duties or functions delegated to the Chairperson by the Board.
Marginal note:Acting Chairperson
27. (1) If the Chairperson is absent or unable to act or the office of Chairperson is vacant, a Vice-chairperson designated by the Minister is to act as Chairperson.
Marginal note:Absence of Chairperson and Vice-chairpersons
(2) If the Chairperson and the Vice-chairpersons are absent or unable to act, or all of those offices are vacant, the Minister may designate a member to act as Chairperson but no member so designated has authority to act as Chairperson for more than 90 days without the Governor in Council’s approval.
Marginal note:Responsibility for human resources management
28. The Chairperson is authorized, in respect of persons who are employed by the Board, to exercise the powers and perform the duties and functions of the Treasury Board under the Financial Administration Act that relate to human resources management within the meaning of paragraph 7(1)(e) and section 11.1 of that Act, and those of deputy heads under subsection 12(2) of that Act, including the determination of terms and conditions of employment of persons who are employed by the Board.
Marginal note:Human resources
29. (1) The Chairperson may employ persons for the conduct of the Board’s work, fix their period of employment, establish their probationary periods, reject them on probation and lay them off.
Marginal note:Political activities
(2) Part 7 of the Public Service Employment Act applies to persons who are employed by the Board as if they were employees as defined in subsection 2(1) of that Act.
Marginal note:Experts and advisors
30. (1) The Chairperson may engage on a temporary basis the services of mediators and other experts to assist the Board in an advisory capacity and, subject to the Governor in Council’s approval, fix their remuneration.
Marginal note:Non-application of Public Service Superannuation Act
(2) A person who is engaged under subsection (1) is not to be considered as being employed in the public service for the purposes of the Public Service Superannuation Act by reason only of being so engaged.
Marginal note:Evidence respecting information obtained
31. A member of the Board, any person who is employed by the Board or any person who is engaged under subsection 30(1) is not competent or compellable to appear as a witness in any civil action, suit or other proceeding respecting information obtained in the exercise of their powers or the performance of their duties and functions.
Marginal note:No disclosure of notes and drafts
32. Notes or draft orders or decisions of the Board or of any of its members are not to be disclosed without the consent of the person who made them.
Marginal note:Immunity from proceedings
33. No criminal or civil proceedings lie against a member of the Board, any person who is employed by the Board, any person who is engaged under subsection 30(1) or any person who is acting on the Board’s behalf for anything done — or omitted to be done — or reported or said by that member or that person in good faith in the course of the exercise or performance or purported exercise or performance of their powers, duties or functions.
Review and Enforcement of Orders and Decisions
Marginal note:No review by court
34. (1) Every order or decision of the Board is final and is not to be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
Marginal note:Standing of Board
(2) The Board has standing to appear in proceedings under subsection (1) for the purpose of making submissions regarding the standard of review to be used with respect to its orders or decisions and its jurisdiction, policies and procedures.
Marginal note:No review by certiorari, etc.
(3) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under any Act of Parliament may, on any ground, including the ground that the order, decision or proceeding is beyond the Board’s jurisdiction to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction,
(a) be questioned, reviewed, prohibited or restrained; or
(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise.
Marginal note:Filing of Board’s orders in Federal Court
35. (1) The Board must, on the written request of any person or organization affected by any order of the Board, file a certified copy of the order, exclusive of the reasons for it, in the Federal Court, unless, in the Board’s opinion,
(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:Effect of filing
(2) An order of 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.
36. The Board may make regulations respecting
(a) the practice and procedure for hearings and pre-hearing proceedings of the Board;
(b) the use of any means of telecommunication in the conduct of its activities;
(c) the hearing or determination of any application, complaint, question or dispute that may be made to, referred to or otherwise come before the Board;
(d) the establishment of an expeditious procedure and matters that may be determined under that procedure;
(e) the forms to be used in respect of any proceeding that may come before the Board;
(f) the manner in which and the period during which evidence and information may be presented to the Board in connection with any proceeding that may come before it;
(g) the time within which and the persons to whom notices, other than those referred to in subsections 130(1) and (2) of the Public Service Labour Relations Act, and other documents must be sent or given, and when the notices are deemed to have been sent, given or received; and
(h) any other matters or things that are incidental or conducive to the exercise of the Board’s powers and the performance of its duties and functions.
37. (1) Subject to subsection (2), matters of which the Board is seized are to be heard by a panel consisting of one member.
Marginal note:Three-member panels
(2) If the Chairperson considers that the complexity of a matter requires it, he or she may assign the matter to a panel consisting of three members.
Marginal note:Chairperson of three-member panel
(3) If the Chairperson is a member of a three-person panel, he or she is to be its chairperson; otherwise, he or she must designate a member of it to be its chairperson.
Marginal note:Member’s death or incapacity
38. (1) In the event of the death or incapacity of a member of a three-member panel, other than the death or incapacity of the chairperson of the panel, the chairperson of the panel may determine any matter that was before the panel and his or her decision is deemed to be the panel’s decision.
Marginal note:Chairperson’s death or incapacity
(2) In the event of the death or incapacity of the chairperson of a panel, or of the member when the panel consists of one member, the Chairperson must establish a new panel to hear and determine the matter on any terms and conditions that the Chairperson may specify for the protection and preservation of the rights and interests of the parties.
Marginal note:Powers, rights and privileges
39. A panel has all of the Board’s powers, rights and privileges with respect to any matter assigned to the panel.
Marginal note:Panel’s decision
40. (1) A decision made by a majority of the members of a panel is the decision of the panel or, if no decision is supported by the majority, the decision of the chairperson of the panel is the decision of the panel.
Marginal note:Board’s decision
(2) A decision of a panel is a decision of the Board.
Marginal note:Payment of witness fees
41. A person who is summoned by the Board to attend as a witness at any of its proceedings is entitled to receive fees and allowances for so attending that are equal to those to which the person would be entitled if they were summoned to attend before the Federal Court.
Marginal note:Obligation to prepare report
42. (1) As soon as feasible after the end of each fiscal year, the Board must prepare and submit to the Minister a report on its activities during the immediately preceding fiscal year, other than its activities under the Parliamentary Employment and Staff Relations Act.
Marginal note:Tabling in Parliament
(2) The Minister must cause the report to be tabled in each House of Parliament within the first 15 days on which that House is sitting after the Minister receives it.
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