April 29, 2015 By: Christopher C. Rootham
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If federal boards and tribunals could participate in speed-dating, these are five things I imagine we would learn about the Public Service Labour Relations Board or PSLREB.

1.    What is the PSLREB?

The PSLREB was created by the Public Service Labour Relations and Employment Board Act, which was a part of the Economic Action Plan 2013 Act, No. 2. The PSLREB is largely a consolidation of two tribunals: the Public Service Labour Relations Board, and the Public Service Staffing Tribunal. The Public Service Labour Relations Board was responsible for resolving disputes between employers and bargaining agents, and also providing Adjudicators to resolve certain categories of grievances by employees or bargaining agents. The Public Service Staffing Tribunal, on the other hand, was responsible for hearing complaints by employees against certain types of staffing actions (mainly certain categories of appointments and layoffs). The PSLREB now combines these two functions. The PSLREB came into existence on November 1, 2014.

2.    How do you pronounce PSLREB?

I explained to my eleven year old child that it is pronounced “PISS-LER-EB”. However, when speaking with people over the age of twelve (or at least who act as if they are over the age of twelve), I refer to it as “the Board.”

3.    Who is on the PSLREB?

The PSLREB is comprised of a Chairperson, up to two Vice-Chairpersons, up to ten other full-time members, and as many other part-time members as seems appropriate. There are currently only seven full-time members of the PSLREB (plus a Chairperson and two Vice-Chairpersons). The old tribunals had a total of twelve full-time members (including the Chairpersons and Vice-Chairpersons) between them, so there is some concern that this overall reduction in the number of members may result in increased waiting times for a hearing. 

The members of the PSLREB are appointed after consultation with employers and bargaining agents, but otherwise there are no statutory qualifications for being a member of the PSLREB. Under the old statute, members had to have knowledge of or experience in labour relations; that statutory requirement was eliminated for the new PSLREB, but so far all of the members who have been appointed have extensive backgrounds and experience in labour relations or staffing matters.

The current Chairperson is Catherine Ebbs. She was the Chairperson of the old PSLRB for a short period of time and, before that, Chairperson of the Royal Canadian Mounted Police External Review Committee.

4.    Who is in charge of the PSLREB?

This is a more interesting question than it sounds. Under the old system, the Chairperson of the PSLRB was responsible for the administration of that board. This responsibility included human resource management of the employees of the board. The Public Service Labour Relations Act used to provide that the Chairperson of the PSLRB had all of the powers listed in sections 7(1)(e), 11.1 and 12(2) of the Financial Administration Act. This meant that the Chairperson could determine the terms and conditions of employment of all employees of the PSLRB. The PSLRB – using the terminology common to this field – was a “separate employer.” This in turn meant that there was a certain level of independence between PSLRB employees and the Treasury Board. 

The Chairperson of the PSLREB still has the authority to assign members to hear cases and determine the date, time and place of hearings. However, the Chairperson no longer has authority over the employees of the board. Employees who work at the PSLREB are now employed directly by the Treasury Board. They ultimately report to the Chief Administrator of the Administrative Tribunals Support Service of Canada – a relatively new portion of the public service responsible for providing support services to eleven federal administrative tribunals, including the PSLREB. The Chief Administrator has the powers of a deputy head, but the ultimate authority over terms and conditions of employment rests with Treasury Board.

5.    What does the Treasury Board’s authority over the PSLREB mean?

Maybe nothing. Even separate employers are controlled to some extent by Treasury Board.  The Treasury Board exercised control over the release of funds to the PSLRB. The PSLRB also followed the Treasury Board classification system and directed that the terms and conditions of employment for Treasury Board’s employees would apply to PSLRB employees. At first glance, not much will change.

However, the PSLRB was a separate employer for a reason. The predecessor to the PSLRB (the “PSSRB”) was initially under the Treasury Board. On July 8, 1968, the Chairperson of the PSSRB, Jacob Finkelman, wrote to the Treasury Board Secretary, requesting that the PSSRB be exempt from the personnel management powers of the Treasury Board. Mr. Finkelman pointed out that certain parties appearing before the PSSRB had begun questioning its independence and objectivity, due to the fact that the Treasury Board was the main employer falling within the PSSRB’s jurisdiction. In response to these concerns, on October 28, 1968, the Governor in Council designated the PSSRB as a separate employer. 

The concerns expressed by Mr. Finkelman in 1968 still exist today. The Treasury Board is still the largest employer falling with the PSLREB’s jurisdiction.  Some people are concerned about the fact that the Treasury Board controls the remuneration of the employees of a tribunal whose main job is to regulate the Treasury Board. 

The question of whether a tribunal is sufficiently independent is typically assessed by examining three things: security of tenure of the members of the tribunal, financial security of the members of the tribunal, and the administrative control exercised by members of the tribunal. The PSLREB meets the first two elements easily: members are appointed for fixed terms, and are paid according to a wage scale that applies to all tribunal members across the federal government. The concern is over the Chairpersons’ level of administrative control over the PSLREB.  The fact that the Treasury Board sets terms and conditions of employment for employees of the PSLREB begs the question of whether it’s administrative powers as employer will have any impact upon the decision-making by members of the PSLREB. There is some concern – at least as a matter of appearance – about the result of PSLREB hearings being influenced by Treasury Board being the employer of the PSLREB’s staff. Whether this influences hearings in favour of Treasury Board (as staff want to appease their employer) or against Treasury Board (as staff want particular rulings that would benefit their own terms and conditions of employment) is not important: what is important is that there is at least a perception that results could be different. Hopefully, as the PSLREB evolves, there will be safeguards put in place to prevent even the appearance of impropriety.

A shorter version of this post, ‘Three things you should know about the public service labour relations and employment board’ appeared in the April 2015 issue of Public Sector Digest.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law