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|
(ii) deployment under the Public Service
Employment Act without the employee's
consent where consent is required; or
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|
(d) in the case of an employee of a separate
agency designated under subsection (3),
demotion or termination for any reason that
does not relate to a breach of discipline or
misconduct.
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| Application of
paragraph
(1)(a)
|
(2) Before referring an individual grievance
related to matters referred to in paragraph
(1)(a), the employee must obtain the approval
of his or her bargaining agent to represent him
or her in the adjudication proceedings.
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|
| Designation
|
(3) The Governor in Council may, by order,
designate any separate agency for the
purposes of paragraph (1)(d).
|
|
| Notice to
Canadian
Human Rights
Commission
|
210. (1) When an individual 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.
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|
| 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).
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|
| Exception
|
211. Nothing in section 209 is to be
construed or applied as permitting the referral
to adjudication of an individual grievance
with respect to
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(a) any termination of employment under
the Public Service Employment Act; or
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|
(b) any deployment under the Public
Service Employment Act, other than the
deployment of the employee who presented
the grievance.
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|
Representation
|
|
| Right to be
represented
by employee
organization
|
212. An employee who is not included in a
bargaining unit for which an employee
organization has been certified as bargaining
agent may seek the assistance of, and, if the
employee chooses, may be represented by,
any employee organization in the presentation
or reference to adjudication of an individual
grievance.
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|
| Right to be
represented
by employee
organization
|
213. No employee who is included in a
bargaining unit for which an employee
organization has been certified as bargaining
agent may be represented by any other
employee organization in the presentation or
reference to adjudication of an individual
grievance.
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|
|
Binding Effect
|
|
| Binding effect
|
214. If an individual grievance has been
presented up to and including the final level in
the grievance process and it is not one that
under section 209 may be referred to
adjudication, the decision on the grievance
taken at the final level in the grievance process
is final and binding for all purposes of this Act
and no further action under this Act may be
taken on it.
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|
Presentation
|
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| Right of
bargaining
agent
|
215. (1) The bargaining agent for a
bargaining unit may present to the employer a
group grievance on behalf of employees in the
bargaining unit who feel aggrieved by the
interpretation or application, common in
respect of those employees, of a provision of
a collective agreement or an arbitral award.
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| Consent
required
|
(2) In order to present the grievance, the
bargaining agent must first obtain the consent
of each of the employees concerned in the
form provided for by the regulations. The
consent of an employee is valid only in respect
of the particular group grievance for which it
is obtained.
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| Single portion
|
(3) The group grievance must relate to
employees in a single portion of the federal
public administration.
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| Limitation
|
(4) A bargaining agent may not present a
group grievance in respect of which an
administrative procedure for redress is
provided under any Act of Parliament, other
than the Canadian Human Rights Act.
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| Limitation
|
(5) Despite subsection (4), a bargaining
agent may not present a group grievance in
respect of the right to equal pay for work of
equal value.
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| Limitation
|
(6) If an employee has, in respect of any
matter, availed himself or herself of a
complaint procedure established by a policy
of the employer, the bargaining agent may not
include that employee as one on whose behalf
it presents a group grievance in respect of that
matter if the policy expressly provides that an
employee who avails himself or herself of the
complaint procedure is precluded from
participating in a group grievance under this
Act.
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| Limitation
|
(7) A bargaining agent may not present a
group 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.
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|
| Order to be
conclusive
proof
|
(8) For the purposes of subsection (7), 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.
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|
|
Reference to Adjudication
|
|
| 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.
|
|
| 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.
|
|
| 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).
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|
|
|
Withdrawal from Group Grievance
|
|
| 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.
|
|
| Effect of
notice
|
219. After receiving the notice, the
bargaining agent may not pursue the
grievance in respect of the employee.
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|
|
|
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|
Presentation
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
|
|
| 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.
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|
|
|
Reference to Adjudication
|
|
| Reference to
adjudication
|
221. A party that presents a policy
grievance may refer it to adjudication.
|
|
| 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.
|
|
| 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).
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|
|
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|
Referral by Chairperson
|
|
| 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 and specify in the notice whether an
adjudicator is named in any applicable
collective agreement or has otherwise been
selected by the parties and, if no adjudicator is
so named or has been selected, whether the
party requests the establishment of a board of
adjudication.
|
|
| Action to be
taken by
Chairperson
|
(2) On receipt of the notice by the Board, the
Chairperson must
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|
|
(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;
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|
|
(b) if the parties have selected an
adjudicator, refer the matter to the
adjudicator;
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|
|
(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; and
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|
|
(d) in any other case, refer the matter to an
adjudicator designated by the Chairperson
from amongst the members of the Board.
|
|
| 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.
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|
|
|
Board of Adjudication
|
|
| 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.
|
|
| 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.
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|
|
|
Jurisdiction
|
|
| Compliance
with
procedures
|
225. No grievance may be referred to
adjudication, and no adjudicator may hear or
render a decision on a grievance, until the
grievance has been presented at all required
levels in accordance with the applicable
grievance process.
|
|
|
|
Powers
|
|
| Powers
|
226. (1) An adjudicator may, in relation to
any matter referred to adjudication,
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|
|
(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;
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|
|
(b) order that a hearing or a pre-hearing
conference be conducted using a means of
telecommunication that permits the parties
and the adjudicator to communicate with
each other simultaneously;
|
|
|
|
(c) administer oaths and solemn
affirmations;
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|
|
(d) accept any evidence, whether
admissible in a court of law or not;
|
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|
|
(e) compel, at any stage of a proceeding,
any person to produce the documents and
things that may be relevant;
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|
|
(f) subject to any limitations that the
Governor in Council may establish in the
interests of defence or security, enter any
premises of the employer where work is
being or has been done by employees,
inspect and view any work, material,
machinery, appliance or article in the
premises and require any person in the
premises to answer all questions relating to
the matter being adjudicated;
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|
(g) 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 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;
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|
|
(h) give relief in accordance with paragraph
53(2)(e) or subsection 53(3) of the
Canadian Human Rights Act;
|
|
|
|
(i) award interest in the case of grievances
involving termination, demotion,
suspension or financial penalty at a rate and
for a period that the adjudicator considers
appropriate; and
|
|
|
|
(j) summarily dismiss grievances that in the
opinion of the adjudicator are frivolous or
vexatious.
|
|
| Power to
mediate
|
(2) At any stage of a proceeding before an
adjudicator, the adjudicator may, if the parties
agree, assist the parties in resolving the
difference at issue without prejudice to the
power of the adjudicator to continue the
adjudication with respect to the issues that
have not been resolved.
|
|
| Determination
without oral
hearing
|
227. An adjudicator may decide any matter
referred to adjudication without holding an
oral hearing.
|
|
|
|
Decision of Adjudicator
|
|
| Hearing of
grievance
|
228. (1) If a grievance is referred to
adjudication, the adjudicator must give both
parties to the grievance an opportunity to be
heard.
|
|
| Decision on
grievance
|
(2) After considering the grievance, the
adjudicator must render a decision and make
the order that he or she considers appropriate
in the circumstances. The adjudicator must
then
|
|
|
|
(a) 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; and
|
|
|
|
(b) deposit a copy of the order and, if there
are written reasons for the decision, a copy
of the reasons, with the Executive Director
of the Board.
|
|
| 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.
|
|
| 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.
|
|
| Decision
requiring
amendment
|
229. An adjudicator's decision may not
have the effect of requiring the amendment of
a collective agreement or an arbitral award.
|
|
| Determination
of
reasonablenes
s 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
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 to have been reasonable.
|
|
| Determination
of consent
requirement
|
231. An adjudicator 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.
|
|
| 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 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
|
|