Reacting to Non-Compliance Within the Public Service - 700-5-IPG-035

Effective Date: March 25, 1994 (Revised)

1. Issue

Within the Public Service, departments and agencies, building custodians and property managers have diverse and sometimes overlapping responsibilities and authorities. In some instances of violations under Part II of the Canada Labour Code , and in most cases under the Treasury Board Fire Protection Standards, some departments/agencies will not have the authority or responsibility to effect changes, and must rely upon the custodian/property manager to effect the necessary corrections. As such, those departments/agencies have little or no control over the availability of funds or the time frames involved in achieving compliance.

2. Question

With whom should Labour Affairs Officers (LAOs) deal to gain compliance within the Public Service?

3. Conclusion

The management of federal property, whether owned or leased, is delegated to some twenty-two (22) departments/agencies, such as Public Works Canada, Department of National Defence etc. (see Appendix A-at the bottom of the page for a complete listing).

These departments/agencies are generally referred to in a property management context as "custodians". The day-to-day management of these properties is, in many cases (if not all), contracted by the custodian to another organization, which may or may not be in the same department (e.g. Public Works Realty Services are contracted by Public Works Accommodations, by Agriculture Canada, by Health and Welfare Canada, etc.).

In addition, most public service departments and agencies have persons, sections and branches with some responsibility for their physical accommodation.

In the case of the Public Service, the Crown (represented by the Treasury Board) is the employer. As such, individual departments/agencies, including custodians and property managers, have been delegated authority to act on behalf of Her Majesty and, from the perspective of Part II of the Canada Labour Code, are deemed to be employers.

Any prosecutions initiated under the Canada Labour Code will have to name the employer (either the department or the agency) and/or a specific individual who is ultimately responsible for the given violation. Consequently, the Crown can prosecute itself. It therefore becomes very important for LAOs to ensure that compliance activities are being undertaken with the appropriate individual(s).

Treasury Board has a policy set out in PMM, Chapter 4, TB Proc. 4-6, Procedures for Correction of Physical Safety and Health Hazards, which describes the usage of Form DPW 337, Tenant Service Request for Estimate or Work (CGS Cat. 7540-21-879-7571).

3.1 Definitions

"Labour Affairs Officers" includes a Health and Safety Officer and an Appeals Officer.

"Employer" means a person who employs one or more employees and includes an employer's organization and any person who acts on behalf of an employer. In the Public Service context, it includes an agency acting on behalf of the Treasury Board, a department or any person who acts in a managerial capacity on behalf of a department.

"Responsible Manager" means the person who has the authority to designate the funds necessary to effect corrective measures, and/or has control over the conduct of employees while at work.

"Building Custodian" means the person who has the responsibility of orchestrating the department's accommodation requirements vis-à-vis leasing agreements, fit-up of space, etc.

"Property Manager" means the person who manages a property on a day-to-day basis on behalf of the custodian (usually on a contractual basis). There may be some cases where the building custodian also acts as the property manager.

3.2

In handling non-compliance within the Public Service, the LAO's role will be to ensure that compliance activities are undertaken with the appropriate parties following the standard procedures set out in OPDs 700-5, Response to Non-compliance with Part II of the Canada Labour Code, and 969-3, Enforcement of Treasury Board Fire Protection Standards.

It is also to be noted that while this present IPG is applicable to the Public Service, the same approach is to be used with any other large employer in the federal jurisdiction.

3.3 Procedures in Dealing With Public Service Department/Agencies

  1. Upon reviewing the assignment, the LAO is to make a judgement as to whether to request the involvement of the building custodian/ property manager at the outset. Depending upon the nature of the assignment, they should be invited to participate. The department/agency should initiate the actual invitation at the LAO's request. In the case of MOU assignments, dealings are likely to be with the custodian and/or property manager directly.
  2. The onus is on the responsible manager of the department/agency and the building custodian/property manager to determine their respective responsibilities. In general the department/agency is most likely to be responsible for violations involving equipment, furniture, personal protective equipment, etc. whereas the building custodian/property manager is more likely to be responsible for the building structure including elevators, fire protection equipment, ventilation, and other similar building systems.
  3. It is primarily the responsibility of the department/agency to involve the appropriate custodian/property manager. If necessary, the LAO will make contact with the custodian/property manager to elicit cooperation.

    Where both parties agree as to who is responsible for taking corrective measures, the standard process for achieving compliance will be followed. (Refer to OPDs 700-5, Response to Non-compliance with Part II of the Canada Labour Code, and 969-3, Enforcement of Treasury Board Fire Protection Standards.)

  4. Where the two parties cannot agree on their responsibilities, the LAO has a number of options available to gain compliance. It is imperative that the LAO ensure the matter is not unduly delayed because the parties are unable to decide who has the authority to implement corrective measures. Consideration should be given to the type and severity of the infraction, and the time frames which will be necessary to seek Assurances of Voluntary Compliance or issue Directions to both the department/agency and the building custodian/property manager.

    Every effort must be made to identify the responsible manager, by name, of each department.

Appendix A - List of "Custodians"

  • Agriculture Canada
  • Communications Canada
  • Correctional Service Canada
  • Energy, Mines and Resources Canada
  • Environment Canada
  • Environment Canada (Parks)
  • External Affairs and International Trade Canada
  • Fisheries and Oceans
  • Health and Welfare Canada
  • Indian and Northern Affairs Canada
  • National Archives of Canada
  • National Capital Commission
  • National Defence
  • National Library of Canada
  • National Museums of Canada
  • National Research Council Canada
  • Public Works Canada
  • Revenue Canada - Customs and Excise
  • Royal Canadian Mounted Police
  • Transport Canada - Canadian Coast Guard
  • Transport Canada - Airports Group
  • Veterans Affairs Canada
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