Vol. 139, No. 23 — November 16, 2005

Registration
SOR/2005-334 November 4, 2005

PUBLIC SERVICE EMPLOYMENT ACT

Public Service Employment Regulations

The Public Service Commission, pursuant to section 22 of the Public Service Employment Act (see footnote a), hereby makes the annexed Public Service Employment Regulations.

Ottawa, November 4, 2005

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

As result of the implementation of the Public Service Modernization Act, the Public Service Employment Act will be implemented in December 2005. In preparation for the implementation of this Act, the Public Service Commission undertook a review of its current Public Service Employment Regulations, 2000 (PSER, 2000) and in consultation with its stakeholders, established the new Public Service Employment Regulations which will come into force with the new Public Service Employment Act.

Some of the content and intent of the previous Regulations has been retained; however new measures have also been added. The number of definitions has been reduced and interpretations are included which are consistent with other statutes and legislation used in the public service. Effort was made to minimize the number of regulations which is in keeping with the philosophy and intent of flexibility in human resources management in the public service.

Therefore, under the authority provided by section 22 of the Public Service Employment Act, the Public Service Commission is establishing the 2005 Public Service Employment Regulations.

The Regulations contain provisions on the following main subjects:

1. Incumbent-based Processes:

The Regulations define incumbent-based processes for the purpose of subsection 34(1) of the Public Service Employment Act which addresses the establishment of areas of selection. An incumbent-based process is an internal appointment within the Research and the University Teaching Groups, where there is a career progression framework including an independent recourse mechanism established by the deputy head in consultation with the authorized bargaining agents. The career progression framework under which these two groups function is one in which appointments and promotions are not based on the classification of the position, but rather on the continuous learning and acquisition of credentials of the person in order to advance to the next level. Designating these appointment processes as being "incumbent-based" will exclude them from the requirement to establish an area of selection for purposes of appointments and complaints.

2. Priorities:

The Act provides the Commission with the authority and discretion to create priority entitlements for appointment, subject to the statutory entitlements in the Public Service Employment Act. This regulatory authority has been used to establish priority entitlements for: surplus employees, persons in excluded positions in the Office of the Governor General's Secretary, employees who become disabled and are no longer able to carry out the duties of their position, persons who are members of the Canadian Armed Forces and the Royal Canadian Mounted Police who are medically released or medically discharged, employees who are on a leave of absence because their spouse or common-law partner has relocated, and employees who have taken a position at a lower level because of their surplus or lay-off priority or because of their priority for appointment because they became disabled or their relocation of spouse or common-law partner. In all cases, the period of entitlement is specified in the Regulations, as well as the conditions under which the entitlement will cease.

Most of the priority entitlements set out in the Regulations continue those that were established under the PSER, 2000. However, the Regulations also establish that certain appointments where the entitlement to a priority does not apply: incumbent-based appointments, acting appointments and the appointment of a member of a designated group in accordance with an employment equity program, unless the person who is entitled to appointment in priority is a member of a designated group to which the employment equity program applies.

The Regulations establish a new priority for appointment for a person employed in an excluded position in the Office of the Governor General's Secretary. Conditions attached to this priority are: the person was an employee within the meaning of section 2 of the Act prior to being appointed to an excluded position, or while employed in the Office of the Governor General's Secretary, the person was found in an advertised external appointment process, to have met the essential qualifications for appointment to the public service; or the person was employed in an excluded position, in the Office of the Governor General's Secretary for at least three years.

As well, the priority for members of the Canadian Armed Forces and the Royal Canadian Mounted Police, has been expanded to apply to members who were medically released or medically discharged, under certain conditions. In addition, the period allowed for members of the Canadian Armed Forces and the Royal Canadian Mounted Police to be certified as being ready to return to work has been extended from two years to five years. The period allowed for employees who have been disabled to be ready to return to work has also been extended to five years.

The regulation for reinstatement priority remains the same as the PSER, 2000 except that it now applies to not only the statutory priorities of lay-off and leave of absence, but also employees with the following a regulatory priorities: surplus, disabled and relocation of spouse or common-law partner. The period of entitlement for this priority has been changed from three years to one year.

The entitlement to a regulatory priority will not apply to an employee who is employed for a specified period.

3. Acting Appointments:

The Regulations exclude acting appointments from the application of merit and recourse if the acting appointment is for a period less than four months. The acting appointment provision will also provide for all acting appointments to be excluded from the notification requirement. Acting appointments which are initially made for a period more than four months or where extensions are made and the period exceeds four months will have a requirement that persons in the area of recourse be informed of the name of the person being appointed or proposed for appointment and of their right to recourse. This will allow managers to efficiently accommodate short-term vacancies.

All acting appointments will be excluded from the consideration of statutory and regulatory priorities and excluded from the notification requirement.

In addition, special provision is made for acting appointments in bilingual positions. In order to ensure the provision of services in both official languages, the duration that an acting appointment can be excluded from meeting the official languages proficiency in bilingual positions will have some restrictions. When the position is vacant, the duration of the acting appointments which are excluded from official languages proficiency cannot exceed four months; for positions that are encumbered, the duration is up to twelve months and for an acting appointment where the incumbent is on language training, the maximum period of acting appointments is eighteen months.

Special provision is made for acting appointments to rotational positions, which will be excluded from merit, statutory priorities, notification and recourse to the Public Service Staffing Tribunal. A rotational position is one which is part of a rotational system established by the deputy head for the purpose of providing for the movement of employees within and outside Canada for the Department of Citizenship and Immigration, Department of Foreign Affairs and International Trade and the Canada Border Services Agency.

All acting appointments will be excluded from the application of priorities in the Act and the Regulations, as well as the requirements for notification.

4. Underfill/Overfill:

A regulation is being created to exclude an appointment to a position in the executive group from section 60 of the Public Service Employment Act when that appointment is to a level that is either lower than the classification level of the position; or higher than the classification level of the position, provided that compensation at the higher level is authorized by the Treasury Board. This Regulation is required in order to allow for the corporate management of the EX cadre. It allows for the compensation to be at the level of the person rather than the level of the position to which the person is appointed.

5. Disclosure of Information Obtained During the Course of Investigation:

Regulations have been established regarding disclosure of information obtained in the course of investigations conducted by the Public Service Commission under section 66, subsection 67(1) or sections 68 or 69 of the Act. The purpose of the disclosure has been outlined in the Regulations and it covers such areas as: promoting fair and transparent employment practices, promoting accountability, ensure wrongdoing or improper employment practices is corrected and encourage the adoption or continuance of proper employment practices.

A regulation is being created where the Commission, in considering disclosure of personal information, shall consider whether the public interest outweighs privacy interests.

The Commission will not disclose a standardized test or information concerning a standardized test, unless it may be disclosed, with or without conditions set by the Commission in a manner that will not affect its validity or continued use or affect the results of the standardized test by giving an unfair advantage to any individual.

6. Lay-off:

The Regulations describe the manner in which a deputy head must proceed when employees are to be laid off. The provisions also specify the period within which employees who are laid off are eligible to enter into internal appointment processes, the length of priority for appointment conferred by the Act and the circumstances under which the entitlement to the priority will cease.

The Regulations will require deputy heads to assess the merit of the employees, employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization, and identify the employees who are to be retained according to merit, having regard to the continuing functions of that part of the organization and identify the remaining employees who may be declared surplus and laid off.

A provision also exists for the Ship Repair group in the Department of National Defence to allow for a combination of merit and seniority determined by the deputy head of the Department of National Defence in consultation with the bargaining agents concerned to be the basis for deciding who will be laid off. This is a similar regulation to that which came into effect in 1993.

Deputy heads will be required to document the reasons for the selection of the employees to be retained. This will ensure that decisions are recorded and substantiated and ensure accountability of decisions.

In situations where an employee volunteers for lay-off, the deputy head may declare this employee to be a surplus employee and may lay off this employee when the deputy head is required to lay off employees employed in similar positions or performing similar duties in the same occupational group and level within that part of the organization.

Deputy heads, in situations of surplus and lay-off, will be required to notify the Public Service Commission in writing, of the names of the employees who may be laid off and their proposed lay-off date and the name of any employee who is declared surplus and the proposed date of lay-off.

For employees who are laid off, the period of priority entitlement and the period within which they may participate in advertised processes for which they would have been eligible had they still been employed, is one year. The period of entitlement ends when a person who is laid off is appointed for an indeterminate period or declines an appointment without good and sufficient reason.

The regulations regarding surplus and lay-off do not apply to a specified period employee.

7. Coming into force:

The 2005 Public Service Employment Regulations will come into force when the new Public Service Employment Act created under the Public Service Modernization Act comes into effect.

Alternatives

Under section 22 of the Public Service Employment Act, the Public Service Commission may make such Regulations as it considers necessary to carry out and give effect to the Act. Many of these provisions give effect to the provisions of the Act and address situations involving an individual's rights. Other Regulations make the appointment process more flexible and effective which is in keeping with the principles of the Public Service Employment Act. As well, subsection 22(2) authorizes the Commission to make Regulations that pertain to specific matters, such as priorities, acting appointments, employment equity programs, incumbent-based processes and appointments to and within the executive group.

One of the principles in establishing these Regulations was to ensure that the Regulations were in keeping with the principle of a flexible and more efficient appointment process. Also, Regulations were not established where the effect could be better achieved through other means such as policy, procedures and guidelines.

Benefits and Costs

The new Regulations make it easier for the Commission and the organizations affected to apply them and consequently, carry out appointments in a more efficient and effective manner.

Consultation

Through various forums, such as the Public Service Commission Advisory Council (joint union-management participation), the Public Service Commission Advisory Council Working Group made up of departmental and union representatives, the National Staffing Council and consultation sessions, the Public Service Commission consulted organizations and the certified bargaining agents when preparing these Regulations, and gave them the opportunity to express their views. All parties concerned were in favour of the principles of the regulations that are being made, and no major concerns were expressed.

Compliance and Enforcement

Through its Accountability Directorate, Audit Branch and Investigations Branch, the Public Service Commission monitors, audits and can investigate the practices followed by organizations in applying the Regulations.

Contact

Lisa Imbesi
Policy Specialist
Policy Development Directorate
L'Esplanade Laurier, West Tower
300 Laurier Avenue West, 17th Floor
Ottawa, Ontario
K1A 0M7
Telephone: (613) 947-9871
E-mail: lisa.imbesi@psc-cfp.gc.ca

Footnote a

S.C. 2003, c. 22, ss. 12 and 13

Footnote 1

SOR/2000-80

Footnote 2

SOR/2005-289

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with hypertext language (HTML). Its content is very similar except for the footnotes, the symbols and the tables.

	Top of page
Maintained by the Canada Gazette Directorate	Important notices