Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365)

Short Title

Marginal note:Short title

1 This Act may be cited as the Federal Public Sector Labour Relations and Employment Board Act.

Interpretation

Marginal note:Definitions

2 The following definitions apply in this Act.

bargaining agent

bargaining agent has the same meaning as in subsection 2(1) of the Federal Public Sector Labour Relations Act. (agent négociateur)

employer

employer has the same meaning as in subsection 2(1) of the Federal Public Sector Labour Relations Act. (employeur)

Minister

Minister means the Minister who is designated under section 3. (ministre)

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.

Federal Public Sector Labour Relations and Employment Board

Continuance and Composition

Marginal note:Continuance of Board

• 4 (1) The Public Service Labour Relations and Employment Board is continued under the name of the Federal Public Sector 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 12 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

Marginal note:Qualifications

• 5 (1) To be eligible to hold office as a member, a person must

  • (a) be a Canadian citizen within the meaning of the Citizenship Act or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act;

  • (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 Federal Public Sector 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.

• Marginal note:Exception

  (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.

• Marginal note:Knowledge of police organizations

  (1.1) In preparing the list, the Chairperson must take into account the need for the Board to have two members with knowledge of police organizations.

• Marginal note:Contents

  (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.

• Marginal note:Reappointment

  (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 Federal Public Sector Labour Relations and Employment Board.

Remuneration

Marginal note:Remuneration

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.

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.

Marginal note:Meetings

• 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.

Marginal note:Quorum

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 a member of the Board or an employee of the Administrative Tribunals Support Service of Canada who is authorized by the Board 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.

Chairperson

Marginal note:Chairperson’s duties

25 The Chairperson 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.

28 [Repealed before coming into force, 2014, c. 20, s. 471]

29 [Repealed before coming into force, 2014, c. 20, s. 471]

Experts

Marginal note:Experts and advisors

30 The Chief Administrator of the Administrative Tribunals Support Service of Canada 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.

Protection

Marginal note:Board members and experts not compellable

• 31 (1) A member of the Board or any person who is engaged under section 30 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:Chief Administrator and employees not compellable

  (2) The Chief Administrator or an employee of the Administrative Tribunals Support Service of Canada 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 in providing services to the Board.

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  — Board members, experts and others

• 33 (1) No criminal or civil proceedings lie against a member of the Board, any person who is engaged under section 30 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.

• Marginal note:Immunity from proceedings  — Chief Administrator and employees

  (2) No criminal or civil proceedings lie against the Chief Administrator or an employee of the Administrative Tribunals Support Service of Canada for anything done  —  or omitted to be done  —  or reported or said by that person in good faith in the course of the exercise or performance or purported exercise or performance of their powers, duties or functions in providing services to the Board.

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.

Regulations

Marginal note:Regulations

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.

Panels

Marginal note:Panels

• 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.

Witness Fees

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.

Annual Report

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.