Date: 20250815

File: 569-02-45427

 

Citation: 2025 FPSLREB 93

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Professional Institute of the Public Service of Canada

Bargaining Agent

 

and

 

Treasury Board of Canada

 

Employer

Indexed as

Professional Institute of the Public Service of Canada v. Treasury Board of Canada

In the matter of a policy grievance referred to adjudication

Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Bargaining Agent: Tony Micallef-Jones, counsel

For the Employer: Richard Fader, counsel

Decided on the basis of written submissions,
filed February 10, March 7 and 25, May 23, and July 30, 2025,

and by videoconference,
May 16, 2025.

REASONS FOR DECISION

I. Overview

[1] This decision is about whether the Board has the jurisdiction to hear this policy grievance.

[2] The policy grievance is about the classification standard for the Pharmacy (PH) subgroup. The Professional Institute of the Public Service of Canada (PIPSC) filed a policy grievance alleging that the classification standard for the PH subgroup is so badly written that it cannot result in a proper classification evaluation and position rating level for positions in the PH group. As a remedy, it seeks a declaration that the classification standard is deficient. The employer states that this remedy (and the entire policy grievance) falls outside the jurisdiction of the Board because it is about classification, an issue reserved to the employer and not part of the Board’s jurisdiction.

[3] I agree with the employer. This policy grievance falls outside the Board’s jurisdiction. The Board does not have the jurisdiction to order any change to a classification standard or even to make a declaration about it.

[4] PIPSC made another argument that the grievance fell within the Board’s jurisdiction because of the Pay Equity Act (S.C. 2018, c. 27, s. 416). In essence, PIPSC argued that the Pay Equity Act is an employment-related statute incorporated into the collective agreement, that a badly written classification standard prevents the creation of a pay equity plan, and that the Board has jurisdiction over this breach of a statute incorporated into the collective agreement. I disagree. The Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA) specifically prohibits a party from presenting a grievance that is in respect of pay equity. Those provisions are decisive in this case.

[5] My detailed reasons follow.

II. Factual and procedural background to the grievance

A. The Pharmacy (PH) classification standard

[6] Classification is the process of dividing positions held by employees of the Treasury Board into occupational groups, subgroups, and levels. Each occupational group has a definition to explain which positions fall within it. Some occupational groups are divided into subgroups, which have their own definitions. Finally, each group or subgroup is divided into levels; the lower the level, the less difficult the job.

[7] The PH subgroup is within the Health Services (SH) occupational group. Without quoting it or discussing it in detail, the SH occupational group is for medical professionals. It has nine subgroups, one of which is the PH subgroup. The PH subgroup is defined as those medical professionals responsible for “... the compounding and dispensing of drugs; and the maintenance and control or the audit of drug stocks ...” as well as for providing advice or leadership of those activities. The PH subgroup is divided into three levels.

[8] This grievance is about the description used to decide which PH positions fall within each level. That description for the PH subgroup is called a classification standard; more current descriptions for different occupational groups are called job evaluation standards. The employer prepared the PH classification standard in 1992. It is two pages long, unlike other classification or job evaluation standards that are lengthier. It is brief and easy to understand. Level 1 are working pharmacists, level 2 are supervising pharmacists who manage drug dispensaries of small hospitals, treatment facilities, or medical stores for a group of treatment facilities, and level 3 are managers of drug dispensaries of large hospitals. The three levels can also have some duties related to audit programs. One common feature of classification or job evaluation standards is the use of benchmark positions. Benchmark positions are examples of positions at different levels used to provide concrete examples of what positions are found at which level. There are two benchmark positions in the PH subgroup classification standard, one for level 1, and one for level 2, both in the audit program.

B. Grievance filed by PIPSC

[9] PIPSC filed this grievance because it is concerned about the PH subgroup’s classification standard. Many other classification standards in the public service are more detailed than the PH classification standard. Other classification standards divide a position into a number of attributes such as knowledge, responsibility, and work environment. Those classification standards use a point system to decide a position’s level. A position is allocated a number of points depending on its required knowledge, responsibility, work environment, and so on. Each level has a certain point range, and the position’s classification is determined by calculating its point total. The PH classification standard does not use a points system. PIPSC thinks it should. PIPSC argues that this lack of detail in the PH classification standard means that there is or could be inconsistency in how positions are classified across departments.

[10] A bargaining agent may only file a policy grievance alleging a breach of the collective agreement. PIPSC relies on the work description clause in the collective agreement for the SH group. Like most collective agreements, this one gives employees the right to an accurate work description. It reads as follows:

 

[11] PIPSC argues that a poorly drafted classification standard means that a position cannot be properly classified, which in turn means that an employee’s work description cannot include its classification level, contrary to clause 20.01. Therefore, PIPSC seeks an order that the PH classification standard be reviewed and replaced.

[12] The Treasury Board objects to the Board’s jurisdiction to hear this grievance.

C. Process of written submissions and the oral hearing

[13] At a case management conference, a different panel of the Board heard from the parties and decided that the initial jurisdictional question should be dealt with in writing with a short oral hearing if necessary. That panel of the Board ordered the parties to answer the following question: “Does the Board have jurisdiction to order any change to the job evaluation standard used by the employer to establish the classification level and position rating form for the Pharmacy PH Occupational Group?”

[14] The parties filed written submissions, and I was assigned to be the panel of the Board to decide this grievance. After reviewing those submissions, I had some questions for the parties. Therefore, I convened a short oral hearing to give the parties the opportunity to answer those questions and elaborate on their positions. I had one remaining question that the parties answered in writing. My decision is based on the written and oral submissions that I received.

III. This grievance is about classification and is outside the Board’s jurisdiction

[15] The question posed by the Board was about its jurisdiction to impose a particular remedy. During the written and oral submissions, the parties argued the case a little bit differently from how the Board posed its question. PIPSC ended up conceding during oral argument that the Board does not have the jurisdiction to order any change to a classification standard — i.e., the answer to the Board’s original question is “no”. Instead, PIPSC argued that the Board has the jurisdiction to declare that the classification standard does not conform to the quality needed to comply with an obligation set out in the collective agreement and to declare what would be needed to correct those deficiencies. PIPSC analogized this to an appellate court remitting a matter back to a lower court or tribunal, with directions. The employer urged the Board to focus on the text of the collective agreement, arguing that the Board’s jurisdiction is limited to the subjects covered by the collective agreement.

[16] It is fairly trite to state that a tribunal’s jurisdiction to order a particular remedy requires that the tribunal have jurisdiction over the subject matter of the dispute. The parties in this case focussed on that question, namely, whether the Board has jurisdiction over the subject matter of this grievance. In my view, they were right to, and I will focus on the same question.

A. Legal context: the Board has no jurisdiction to hear a grievance about classification unless there is express language in the collective agreement

[17] Both parties agree that the Board has no jurisdiction to hear what is commonly called a classification grievance.

[18] To explain, s. 7 of the FPSLRA provides that the Treasury Board or a separate agency has three rights that fall outside of the scope of the FPSLRA: the organization of the public service, the assignment of duties to public servants, and classification. Section 7 reads as follows:

 

[19] There is a lengthy and detailed body of jurisprudence about s. 7 of the FPSLRA, much of which was discussed by the Board and Federal Court of Appeal in National Police Federation v. Treasury Board (Royal Canadian Mounted Police), 2021 FPSLREB 77 (upheld in 2023 FCA 75). I do not need to go through it in detail in this case because the parties agree, broadly, on the impact of s. 7.

[20] The effect of s. 7 is that an employer may choose to collectively bargain these subjects, but it cannot be forced to adopt terms and conditions about these subjects through arbitration or binding conciliation; see Public Service Alliance of Canada v. Canada (Treasury Board), [1987] 2 F.C. 471; Public Service Alliance of Canada v. Canada (Treasury Board), [1987] F.C.J. No. 240 (QL); and Canada (Attorney General) v. Canada (Public Service Staff Relations Board), [1988] F.C.J. No. 633 (QL). A corollary of that principle is that any limit on the employer’s rights under s. 7 to assign duties or classify positions must be expressed clearly in a collective agreement. As the Board stated in Federal Government Dockyard Trades and Labour Council (East) v. Treasury Board (Department of National Defence), 2014 PSLRB 51 at para. 70: “... in the face of such clear management rights, an express prohibition in the collective agreement would be required to limit the employer’s right to assign work to non-bargaining unit members.” The same applies to the classification of positions.

[21] Not surprisingly, the employer has jealously guarded its right to classify positions set out in s. 7 of the FPSLRA and tends not to negotiate collective agreement language that infringes on that right.

[22] This explains the dozens of Board decisions stating that grievances about the classification of positions fall outside its jurisdiction. PIPSC cited one of those cases: Desender v. Canada Revenue Agency, 2024 FPSLREB 65. The employer cited 17 of them: Raabe v. Treasury Board (Department of Indian Affairs and Northen Development), 2019 FPSLREB 111; Coupal v. Canadian Food Inspection Agency, 2021 FPSLREB 124; Allain v. Treasury Board (Royal Canadian Mounted Police), 2014 PSLRB 52; Gibbon v. Treasury Board (Solicitor General Canada), [1984] C.P.S.S.R.B. No. 185 (QL); Tousignant v. Treasury Board (Correctional Service of Canada), 2005 PSSRB 13; Gvildys v. Treasury Board (Health Canada), 2002 PSSRB 86; Public Service Alliance of Canada v. Treasury Board (Correctional Service of Canada), 2020 FPSLREB 99; Lagueux v. Treasury Board (Department of National Defence), 2012 PSLRB 80; Aphantitis v. Treasury Board (Department of Justice), 2014 PSLRB 85; Fong v. Canada Revenue Agency, 2017 PSLREB 45; Rondeau v. Treasury Board (Revenue Canada - Taxation), [1997] C.P.S.S.R.B. No. 17 (QL); Letourneau v. National Research Council of Canada, 2011 PSLRB 104; Lauder v. Treasury Board (Employment and Immigration Immigration Canada), [1989] C.P.S.S.R.B. No. 130 (QL); Jones v. Treasury Board (Canadian Space Agency), [1996] C.P.S.S.R.B. No. 60 (QL); Avey v. Canada (Canadian Forces, Staff of the Non-Public Funds), [1998] C.P.S.S.R.B. No. 10 (QL); Public Service Alliance of Canada v. Canada Customs and Revenue Agency, 2004 PSSRB 121; and Federal Government Dockyards Trades and Labour Counsel (East) v. Treasury Board (Department of National Defence), 2014 PSLRB 51. I cite more of them in the following paragraphs.

[23] Those cases tend to be about identifying the essential character of a grievance and deciding whether that essential character falls within the Board’s jurisdiction; see Swan v. Canada Revenue Agency, 2009 PSLRB 73 at para. 59 and Toth v. Treasury Board (Canada Border Services Agency), 2024 FPSLREB 108 at para. 10. If the grievance is about the content of a work description or acting pay, its essential character is about the alleged violation of collective agreement provisions about work descriptions or acting pay and the Board has jurisdiction to hear it. If the grievance is about the classification of a position, the Board does not have jurisdiction to hear it unless the collective agreement contains an express provision that is implicated in the grievance.

[24] This line between classification and collective agreement issues is not always easy to draw. For example, it can be difficult to determine whether a dispute is about acting pay or classification when the grievor has been performing those duties for a significant length of time. The Board set out some indicators to distinguish a classification issue from an acting pay issue in Bungay v. Treasury Board (Department of Public Works and Government Services), 2005 PSLRB 40 at para. 59, a case cited numerous times since to help decide whether a particular grievance was about acting pay or classification. It can also be difficult to draw the line between a work description grievance and a classification grievance, as shown in Coupal, in which the Board concluded that the employer violated the work description clause in the collective agreement by not classifying a new work description. Additionally, the Board has the jurisdiction to hear an allegation about a breach of a no-discrimination clause in a collective agreement when the discrimination allegation is connected to classification; see Charbonneau v. Treasury Board (Canada Border Services Agency), 2022 FPSLREB 1 at para. 23.

[25] Finally, the onus is on the employer to demonstrate that the grievance is about classification and not some other subject (such as acting pay) that falls within the jurisdiction of the Board; see Doiron v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 77 at para. 95.

[26] In summary, the Board only has jurisdiction to hear a policy grievance whose essential character is the interpretation or application of a collective agreement. Section 7 of the FPSLRA means that the employer is not required to enter into a collective agreement whose terms and conditions affect its rights to classify positions. This statutory context explains why collective agreements in the federal public administration tend not to contain provisions touching on the classification of positions. When the Board has stated that it has no jurisdiction over the classification of positions, it was simply pointing out that it has jurisdiction only over the application and interpretation of collective agreements that, generally speaking, do not contain provisions about the classification of positions.

[27] This means that the next step is to examine the collective agreement.

B. The collective agreement does not contain an express provision about classification standards

[28] PIPSC is relying on clause 20.01 of the collective agreement, which I reproduced earlier. It requires the employer to provide an employee with a complete and current statement of the duties of their position, including the position’s classification level and the position rating form.

[29] The interpretation of a collective agreement starts with its text and then considers the context in which that text appears. To quote from Ewaniuk v. Treasury Board (Department of Citizenship and Immigration), 2020 FPSLREB 96 at para. 45, the words in a collective agreement “... must be read in their entire context, in their grammatical and ordinary sense, and harmoniously with the scheme of the agreement, its object, and the parties’ intention.”

[30] Beginning with the text, nothing in that clause provides any entitlement to an employee about their classification aside from knowing the classification level of their position and receiving a copy of the position rating form. On a plain reading of the clause, it does not limit the employer’s power to establish the classification standard for a position in any way.

[31] This interpretation of the clause is also consistent with the broader context of the collective agreement in four ways.

[32] First, this interpretation is consistent with the broader legislative context that I set out earlier. Section 7 of the FPSLRA expressly reserves the employer’s ability to classify positions. It would take express and clear wording in a collective agreement to show that the employer has agreed to limit its rights.

[33] Second, this interpretation is consistent with the dozens of previous Board decisions that I referred to earlier stating that it does not have the jurisdiction to hear grievances about classification.

[34] Third, this interpretation is consistent with the rest of the collective agreement. There are two clauses in particular that I considered. Clause 34.08 of the collective agreement permits an employee to present a grievance “... in matters other than those arising from the classification process ...” [emphasis added]. PIPSC argues that the relief sought in this grievance falls within the Board’s jurisdiction because the grievance is not a “classification grievance” in that it does not ask that the Board make an order changing the classification level of any given pharmacist position. However, clause 34.08 prohibits grievances about the “classification process”, not just classification grievances. I agree also with the Federal Court in Peck v. Parks Canada, 2009 FC 686, when it stated at paragraph 36 that “[i]mplied in the power to classify is the power to determine the classification standard and minimum qualifications for positions” [emphasis added]. The power to write a classification standard is implied in, or indistinguishable from, the power to classify a position. Thus, preparing a classification standard is part of the classification process (indeed, it is the first step in the classification process) and, therefore, expressly excluded from the grievance process in the collective agreement by clause 34.08.

[35] Additionally, clause 45.10 provides that the Treasury Board must negotiate new rates of pay with PIPSC if “... a new classification standard is established and implemented by the Employer ...”. The parties to this collective agreement turned their minds to classification standards and negotiated only this single clause about them. This clause also confirms that it is the Treasury Board’s responsibility to establish and implement classification standards — they are not something co-determined by PIPSC and the Treasury Board.

[36] Fourth, I considered the wording of this collective agreement against the wording of other collective agreements involving the Treasury Board. For context, almost every collective agreement that the Treasury Board has entered into has a clause about providing employees with a statement of their duties. This collective agreement is worded slightly differently from most others.

[37] One of the earliest cases about the obligation to provide an employee with a statement of duties is Lanouette v. Treasury Board (Department of National Defence), PSSRB File No. 166-02-2230 (19760519). In that case, the employer took the position that the collective agreement required it to provide a statement of duties but that any examination into the accuracy of that statement fell outside the Board’s jurisdiction because it touched too closely upon classification. The Board rejected that argument. More interestingly for the current purposes of this case, the collective agreement in that case had a clause that read as follows:

 

[38] I emphasized the last phrase of that old collective agreement because it is different from the collective agreement in this case, which requires the employer to provide an employee with “the position rating form” for their position. I note as well that the wording in the collective agreement for this bargaining unit has remained constant since this clause was first negotiated in 1986 (except that it used to require a statement of duties on request, instead of also at the time of hire — that change was negotiated in 2000).

[39] If this collective agreement used that old wording of the other collective agreement, PIPSC would have a much stronger case, because a collective agreement requirement to provide a point rating allotted by factor arguably requires the existence of a classification standard that has factors and points.

[40] I also note that the language in other Treasury Board collective agreements (including those negotiated by PIPSC) has changed since that 1976 case. For example, the collective agreement for the Commerce and Purchasing (CP) Group (represented by PIPSC), expiring June 21, 2026, reads as follows:

 

[41] The addition of the phrase “where applicable” is important. It means that that collective agreement, like many others, recognizes that not every classification standard requires factors and points.

[42] My point is this: words matter. Decades ago, the Treasury Board negotiated language in another collective agreement that required it to provide an employee with their classification level, including the position’s “point rating allotted by factor”. This arguably implied a requirement that it classify those positions by using a point rating and factors. The parties to this collective agreement negotiated a different agreement that only requires the employer to provide an employee with their classification level and position rating form. They could have used different language (such as the old language from another collective agreement) had they intended the Board to have the jurisdiction to inquire into the content of the classification standard.

[43] The employer submitted that two other contextual factors supported its position. I did not rely on them.

[44] The first is the heading to this article, which reads “statement of duties”. The employer submits that headings can be a guide to the interpretation of the text of a clause, and in this case, the heading shows that the clause is not about classification standards.

[45] I agree with the employer that, in principle, headings can be used as an aid to interpret an agreement’s provisions; see Palmer & Snyder, Collective Agreement Arbitration in Canada, 7th ed. at paragraph 2.27. However, headings are most helpful as an interpretative aid when the subject matter of the text clearly falls within that particular heading. In this case, the clause in question requires the employer to provide a statement of duties along with the position’s classification level. A position’s classification level is different from a simple statement of duties. I did not find this heading helpful to interpret the scope of this clause.

[46] Second, the employer submitted that I should consider something it calls the “lack of mutual contemporaneous intent”. The employer submits that this language has been in the collective agreement for decades, and yet, this is the first time that a grievance has been filed alleging that the Board has the jurisdiction to grant a remedy impacting a classification standard. The employer argues that this demonstrates that the Board does not have jurisdiction over this grievance.

[47] I disagree with the proposition that novelty is a vice. Every good argument has to be made for the first time.

[48] Additionally, the cases cited by the employer do not support this proposition — instead, they are about past practice.

[49] In the first case (St. Lawrence Lodge, Brockville v. Canadian Union of Public Employees, Local 2107, 2014 CanLII 26942 (ON LA)), the arbitrator was describing past practice as an interpretative aid, stating that (in the event that the clause was ambiguous) the parties’ “longstanding practice” (at paragraph 41) affirmed a particular interpretation. In the second case (Sault Ste. Marie v. Amalgamated Transit Union, Local 1767, [2014] O.L.A.A. No. 450 (QL)), the union’s proposed interpretation of a collective agreement would have required the employer to take a number of administrative steps. Since the employer had not taken those steps in the roughly 30 years since the collective agreement contained that language, the arbitrator found against the union. That case too is more about past practice than any other principle, and at paragraph 51, the arbitrator characterized his interpretation as based on the parties’ “past practice”. As PIPSC pointed out in its oral arguments, past practice requires, among other things, evidence aside from the absence of a prior Board decision. I have no evidence one way or the other about past practice in this case, and therefore, I will not consider it.

[50] For the reasons that I have laid out, I have concluded that the Board does not have the power to grant the relief sought by PIPSC in this grievance, even in its more limited form of a declaration. The plain meaning of clause 20.01, even when read in context, does not govern or limit the employer’s right to classify positions, including its right to draft a classification standard.

IV. Pay equity

[51] PIPSC made an alternative argument about the Board’s jurisdiction in this case. PIPSC argues that the PH classification standard violates the Pay Equity Act because it is incapable of measuring the relative value of work within or across occupational groups. PIPSC states that the Board has the jurisdiction to interpret any Act of Parliament related to employment matters and therefore has the jurisdiction to examine classification issues when those issues are linked to wage discrimination and pay equity issues.

[52] The difficulty with PIPSC’s argument lies in ss. 220(2) and (3) of the FPSLRA. Those subsections read as follows:

 

[53] I agree with the employer that s. 220(3) is a complete bar to a grievance in respect of pay equity (i.e., the right to equal pay for work of equal value). The Board has no jurisdiction to examine pay equity and cannot have jurisdiction over this grievance just because PIPSC is advancing a pay equity argument within it.

[54] PIPSC relies on s. 226(2)(a) of the FPSLRA in support of its argument. That paragraph reads as follows:

 

[55] PIPSC argues that s. 226(2)(a) only ousts the Board’s jurisdiction over pay equity complaints made under the Canadian Human Rights Act (R.S.C., 1985, c. H-6). The pay equity provisions of the Canadian Human Rights Act were repealed and replaced with the Pay Equity Act when that statute came into force in 2021. PIPSC argues that s. 226(2)(a) shows that Parliament only intended to oust the Board’s jurisdiction over certain pay equity issues (i.e., those that arose under the Canadian Human Rights Act) and not the Pay Equity Act.

[56] I disagree because of the legislative history of all three acts.

[57] The FPSLRA was introduced in 2003 and came into force in 2005. The previous statute (the Public Service Staff Relations Act (R.S.C., 1985, c. P-35)) did not have provisions about policy grievances equivalent to s. 220 of the FPSLRA. However, the provision about individual grievances included a provision similar to s. 220(2) that prevented an employee from filing a grievance in respect of which there was another administrative procedure for redress. In Canada (Attorney General) v. Boutilier (C.A.), 1999 CanLII 9397 (FCA), the Federal Court of Appeal concluded that the complaints mechanism in the Canadian Human Rights Act was another administrative procedure for redress, and therefore, employees could not file grievances to decide a dispute relating to human rights despite collective agreement provisions prohibiting discrimination.

[58] When Parliament enacted the FPSLRA in 2003, it legislated a different result from that reached in Boutilier. Subsections 208(2), 215(4), and 220(2) continued the prohibition against filing individual, group, and policy grievances when there were other administrative recourses for redress but carved out human rights complaints from that rule. Subsections 208(3), 215(5), and 220(3) then exempted pay equity disputes from that carve-out — a carve-out from a carve-out, if you will.

[59] Paragraph 226(2)(a), which was s. 226(1)(g) in the 2005 version of the FPSLRA, reflects the pay equity carve-out. It grants the Board the express power to interpret and apply the Canadian Human Rights Act, which is necessary to permit it to exercise its jurisdiction to hear grievances about human rights issues set out in ss. 208(2), 215(4), and 220(2). It also excludes pay equity provisions within the Canadian Human Rights Act, to dovetail with ss. 208(3), 215(5), and 220(3) of the FPSLRA.

[60] That was Parliament’s intention in 2005: the Board had jurisdiction over human rights issues, except pay equity.

[61] In 2009, Parliament changed its mind about the Board’s jurisdiction over pay equity. Parliament enacted the Public Sector Equitable Compensation Act (S.C. 2009, c. 2, s. 394; PSECA), which would have created a separate pay equity regime for the federal public administration and granted the Board the jurisdiction to regulate that regime. The PSECA was never proclaimed into force and never became law. However, Parliament also enacted some transitional measures in s. 396 of the Budget Implementation Act, 2009 (S.C. 2009, c. 2). In essence, any existing pay equity complaints made under the Canadian Human Rights Act, or future pay equity complaints made before the PSECA was proclaimed into force, were redirected to the Board to decide. The Board’s jurisdiction during this period is described in Melançon v. Treasury Board, 2010 PSLRB 20.

[62] In 2021, Parliament changed its mind again. It enacted the Pay Equity Act in 2018, which was proclaimed into force in 2021. In essence, the Pay Equity Act replaced the complaints-based system of pay equity under the Canadian Human Rights Act with a proactive obligation for federally regulated employers to ensure equal pay for work of equal value. More importantly for the purposes of this case, the Budget Implementation Act, 2018, No. 2 (S.C. 2018, c. 27), which contained the text of the Pay Equity Act, also amended s. 396 of the Budget Implementation Act, 2009 so that it applied only to existing complaints made before the Pay Equity Act came into force. In other words, any complaint already redirected to the Board would stay with the Board, but all future pay equity issues would be dealt with by the Pay Equity Commissioner under the Pay Equity Act. As PIPSC acknowledged in oral argument, since 2021, the approach in Melançon no longer applies.

[63] The texts of ss. 208(2) and (3), 215(4) and (5), 220(2) and (3), and 226(2)(a) of the FPSLRA remained unamended during these changes in 2009 and 2021. Parliament would have amended those subsections had the PSECA been proclaimed into force, to refer specifically to the PSECA, but since the PSECA was never proclaimed into force, neither were those amendments. Specifically, ss. 208(3), 215(5), and 220(3) would have still prohibited grievances about pay equity issues, but they would have referred explicitly to prohibiting grievances “... in respect of any matter related to equal pay for work of equal value or any other matter referred to in the Public Sector Equitable Compensation Act” (see the Budget Implementation Act, 2009, ss. 401 to 403).

[64] This legislative history makes Parliament’s intention clear. From 2005 to 2009, it intended the Board to have no jurisdiction over pay equity issues; from 2009 to 2021, it intended the Board to have jurisdiction over pay equity complaints; and from 2021 to the present, it took that jurisdiction away from the Board again. Parliament means what it says in ss. 208(3), 215(5), and 220(3) of the FPSLRA: grievances cannot be about pay equity issues. The fact that s. 226(2)(a) of the FPSLRA states specifically that the Board has no jurisdiction to interpret the pay equity provisions of the Canadian Human Rights Act instead of the Pay Equity Act does not change the meaning of those other subsections. Instead, the reference to pay equity issues in s. 226(2)(a) is simply legacy language explained through examining the legislative history of pay equity and the FPSLRA.

[65] For these reasons, s. 226(2)(a) of the FPSLRA does not expressly oust the Board’s jurisdiction to interpret and apply the Pay Equity Act; however, ss. 208(3), 215(5), and 220(3) do expressly oust the Board’s jurisdiction to hear a grievance in respect of pay equity, and s. 226(2)(a) does not change the plain meaning of those other subsections. Therefore, I must reject PIPSC’s submission. The Board does not have the jurisdiction to hear a grievance in respect of issues related to wage discrimination and pay equity.

[66] I invited the parties to make submissions about whether the Pay Equity Act contains an administrative procedure for redress for the purposes of ss. 208(2), 215(4), and 220(2) of the FPSLRA. The employer filed written submissions on that point. In light of my conclusion, I do not need to address that issue. In addition, both parties filed submissions about s. 95 of the Pay Equity Act in response to one of my questions; in light of my conclusion, I do not need to interpret that section either. I want to thank the parties for their submissions, even though I ended up not addressing them.

[67] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[68] The grievance is dismissed.

August 15, 2025.

Christopher Rootham,

a panel of the Federal Public Sector

Labour Relations and Employment Board