Public Service Alliance of Canada v. Treasury Board (Indian and Northern Affairs Canada)

147-2-111 (2002 PSSRB 31)

  • Before: M.-M. Galipeau
  • Appearances: A. Raven, for the Applicant/Bargaining Agent; M. LeFrançois, for the Respondent/Employer
  • Decision Rendered: 2002-03-18

An application for judicial review before the Federal Court of Appeal has been discontinued (Court file: A-217-01).

Subject terms:

Determination of membership in bargaining units – Native-language teachers, classroom assistants, education assistants, tutor escorts and administrative assistants employed on the Six Nations Reserve – Education and Library Science (EB) Group and Program and Administrative Services (PA) Group bargaining units – Status of employee – Oath of allegiance – Section 34 of the Public Service Staff Relations Act (PSSRA) – some of 30 native-language teachers, classroom assistants, education assistants, tutor escorts and administrative assistants employed by Indian and Northern Affairs (INAC) on the Six Nations Reserve had refused to take the oath of allegiance to the Crown – as a result, they were asked to sign individual contracts of employment – the Public Service Alliance of Canada (PSAC) applied before the Canada Industrial Relations Board (CIRB) to be certified as the bargaining agent for these employees – on objection by the Six Nations Band Council (SNBC), the CIRB decided that the SNBC was not the employer of these employees and rejected the PSAC's application – pursuant to section 34 of the PSSRA, the PSAC applied to have these employees included in the EB Group and PA Group bargaining units, for which it had been certified as the bargaining agent: 142-2-340, (1999) 35 PSSRB Summaries 12; 142-2-337, (1999) 35 PSSRB Summaries 11 – the evidence established that these employees were employed pursuant to individual contracts of employment signed by representatives of INAC, as the employer – INAC drafted the contracts – these contracts specifically stated that the SNBC was the "administrator only" – the SNBC was issuing these employees pay cheques, on funds received from INAC and in the amounts specified by INAC, for a 10% fee – INAC controlled these employees' terms and conditions of employment – the PSAC claimed that these employees were employed by INAC – it argued that INAC consistently held out to these employees that it was their employer – it added that the control over these employees rested with INAC, not with the SNBC – it alleged that INAC had delegated authority from the Public Service Commission to appoint under the Public Service Employment Act (PSEA) – it suggested that the precipitating event in this case was the refusal of some employees to take the oath of allegiance to the Crown – it urged that the contracts signed by INAC ought to have some binding effect – the Treasury Board responded that it was not the employer – it claimed that taking the oath of allegiance to the Crown is a condition precedent to an appointment under the PSEA – it alleged that, as these employees were not appointed pursuant to the PSEA, they were not employees for the purposes of the PSSRA – it added that there is a contradiction between wanting to be an employee of the Crown and refusing to take the oath of allegiance to the Crown – it argued that INAC hired these employees out of necessity, because the SNBC did not have time to do it – it reminded the Board that INAC has a constitutional responsibility to provide education to the Six Nations – it suggested that it is possible to have employees without an employer – the Board commented that the evidence confirmed in its mind the CIRB's decision that the SNBC is not the employer in this case – it found that INAC is the factual employer – it considered that the facts of this case were different from those in the Supreme Court of Canada's decision in Public Service Alliance of Canada v. Canada (Attorney General) , [1991] 1 S.C.R. 614 – it found that these employees were employees for the purposes of the PSSRA, as they were intentionally hired by representatives of INAC, who had delegated appointment authority under the PSEA and who consistently held out that INAC was their employer – the Board was of the view that any irregularities in their hiring were not determinative in this case – it further found that the taking of the oath of allegiance to the Crown is not a prerequisite to an appointment under the PSEA and that no penalty exists for its omission.

Application allowed.

Cases cited: Public Service Alliance of Canada v. Canada (Attorney General) , [1991] 1 S.C.R. 614; Public Service Alliance of Canada v. Six Nations Band Council (2000), CIRB Letter Decision no. 198, 20451-C.