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Unravelling The Mystery - Staff Of The Non-Public Funds, Canadian Forces Part 3 of 3
By Mary Turner, Counsel - Legal Advisory Group - Non-Public
Property Avocate, CFPSA, Ottawa, 613-996-6335,
turner.gmforces.gc.ca
In this third and fi nal article on non-public property, I will address some of the misconceptions with respect to employees of Staff of the Non-Public Funds, Canadian Forces (NPF Staff), and discuss some of the legal issues relevant to NPF Staff.
As people who are dedicated to providing the programs and services that support the CF community, NPF Staff work closely with both CF members and Department of National Defence civilian employees. While NPF Staff know that they are not members of the CF, they are sometimes not clear on what the difference is between themselves and DND civilians, often believing that the distinction is that the DND civilians are "public servants", whereas they are not. NPF Staff may also be under the impression that their employer is the CFPSA. Neither of these statements is correct.
In fact, both DND civilians and NPF Staff are employed by Her Majesty the Queen in right of Canada, meaning that both groups of employees are part of the federal public administration, or "public servants". The difference between NPF Staff and DND civilians is who their employer is. The Public Service Labour Relations Act defines "employer" as follows: "employer" means Her Majesty in right of Canada as represented by
(a) the Treasury Board, in the case of a department named in Schedule I to the Financial Administration Act; and
(b) the separate agency, in the case of a portion of the federal public administration named in Schedule V to the Financial Administration Act.
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As DND is a Department, DND civilians are employed by "Her Majesty in right of Canada as represented by Treasury Board". Among the many separate agencies referred to in part (b) above, are the Canadian Security Intelligence Service, the Communications Security Establishment, the Offi ce of the Auditor General, the National Capital Commission and the Staff of the Non-Public Funds, Canadian Forces (not the CFPSA). Because the Staff of the Non-Public Funds, Canadian Forces is one of the separate agencies named in Schedule V of the Financial Administration Act, your employer is: "Her Majesty in right of Canada as represented by the Staff of the Non-Public Funds, Canadian Forces". Note that the term "non-public funds" (as opposed to "non-public property") appears in the name of the separate agency (employer), and therefore should be used in human resources references.
For the majority of public servants in Departments, Treasury Board is responsible for personnel management, and the Public Service Commission is responsible for establishing the rules with respect to appointments to positions. The effect of being a separate agency is that the Governor in Council can decide who will be responsible for setting personnel management policies and the rules regarding appointments to positions.
In 1978, the Minister of National Defence was named by Order in Council as the person responsible for personnel management for the Staff of the Non-Public Funds, Canadian Forces. The Minister delegated this authority to the Chief of the Defence Staff or his sub delegate.
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Between 1978 and 1982 the Public Service Commission remained responsible for establishing the rules with respect to appointments to positions within NPF Staff, but in 1982 the Minister was authorized by Governor in Council Regulations to assume those responsibilities as well. That authority has also been delegated to the CDS or his sub delegate.
All of this simply refl ects the fact that the federal public administration has been organized so that different persons or bodies are responsible for the appointment of public servants and for personnel management within the various elements of the public service. In the case of NPF Staff, the CDS or his delegate has the power to set the rules governing both appointments to positions and personnel policies. Treasury Board policies that may apply to other elements of the public service do not apply to NPF Staff.
However, you should be aware that numerous other federal employment and employment-related statutes do apply to NPF Staff. These include the Offi cial Languages Act, the Public Service Labour Relations Act (dealing with employer/employee relations, bargaining and disputes), Part II of the Canada Labour Code (dealing with occupational health and safety), the Employment Equity Act (dealing with correcting conditions of disadvantage), the Canadian Human Rights Act (dealing with equal opportunity and discrimination) and the Canadian Charter of Rights and Freedoms (dealing with the protection of personal rights and freedoms, equality of treatment and providing a means to challenge government decisions, programs and laws).
To conclude, the next time anyone asks you, you can say with confidence that you are a public servant, and that your employer is Her Majesty the Queen in right of Canada, as represented by the Staff of the Non-Public Funds, Canadian Forces.
