ARCHIVED — Regulations Amending the Public Service Employment Regulations

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Vol. 144, No. 10 — May 12, 2010

Registration

SOR/2010-89 April 27, 2010

PUBLIC SERVICE EMPLOYMENT ACT

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

Ottawa, April 26, 2010

MARIA BARRADOS
President of the Public Service Commission
MANON VENNAT
Commissioner
DAVID ZUSSMAN
Commissioner

REGULATIONS AMENDING THE PUBLIC SERVICE EMPLOYMENT REGULATIONS

AMENDMENTS

1. The definition “excluded position” in section 1 of the Public Service Employment Regulations (see footnote 1) is repealed.

2. Section 6 of the Regulations is repealed.

3. (1) Subsection 7(1) of the Regulations is replaced by the following:

Employee who becomes disabled

7. (1) An employee who becomes disabled and who, as a result of the disability, is no longer able to carry out the duties of their position is entitled to appointment in priority to all persons, other than those referred to in section 40 and subsections 41(1) and (4) of the Act, to any position in the public service for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act if

(a) within five years after the day on which the employee became disabled, the employee is certified by a competent authority to be ready to return to work on the day specified by the authority; and

(b) the day specified is within five years after the day on which the employee became disabled.

(2) The portion of subsection 7(2) of the Regulations before paragraph (b) is replaced by the following:

Entitlement period

(2) The entitlement period begins on the day on which the employee is ready to return to work, as certified by a competent authority, and ends on the earliest of

(a) the day that is two years after the day on which the entitlement period begins;

(3) Paragraph 7(2)(b) of the English version of the Regulations is replaced by the following:

(b) the day on which the employee is appointed or deployed to a position in the public service for an indeterminate period; and

4. (1) The portion of subsection 8(1) of the Regulations before paragraph (a) is replaced by the following:

Canadian Forces and RCMP

8. (1) The following persons who are released or discharged for medical reasons are entitled to appointment in priority to all persons, other than those referred to in section 40 and subsections 41(1) and (4) of the Act, to any position in the public service for which the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a) of the Act:

(2) The Regulations are amended by adding the following after subsection 8(1):

Conditions

(1.1) The priority applies if

(a) within five years after the day on which the person is released or discharged, as the case may be, the person is certified by a competent authority to be ready to return to work on the day specified by the authority;

(b) the day specified is within five years after the day on which the person is released or discharged, as the case may be; and

(c) the person requests the priority within five years after being released or discharged, as the case may be.

(3) The portion of subsection 8(2) of the Regulations before paragraph (b) is replaced by the following:

Entitlement period

(2) The entitlement period begins on the day on which the person is ready to return to work, as certified by a competent authority, and ends on the earliest of

(a) the day that is two years after the day on which the entitlement period begins;

(4) Paragraph 8(2)(b) of the English version of the Regulations is replaced by the following:

(b) the day on which the person is appointed to a position in the public service for an indeterminate period; and

5. The Regulations are amended by adding the following after section 8:

Surviving spousal or common-law priority

8.1 (1) If the death of any of the following persons is attributable to the performance of duties, their spouse or common-law partner is entitled to appointment in priority to all persons, other than those referred to in section 40 and subsections 41(1) and (4) of the Act, to any position in the public service in an advertised external appointment process for which the Commission is satisfied that the spouse or common-law partner meets the essential qualifications referred to in paragraph 30(2)(a) of the Act:

(a) an employee;

(b) a member of the regular force of the Canadian Forces;

(c) a member of Class A, B or C of the reserve force of the Canadian Forces as prescribed under articles 9.06, 9.07 and 9.08 of the Queen’s Regulations and Orders for the Canadian Forces;

(d) a member of the special force of the Canadian Forces;

(e) a member, within the meaning of subsection 2(1) of the Royal Canadian Mounted Police Act, of the Royal Canadian Mounted Police; and

(f) a member of the Reserve of the Royal Canadian Mounted Police.

Conditions

(2) The priority applies if the spouse or common-law partner

(a) is not employed in the public service for an indeterminate period at the time the request is made;

(b) qualifies under any federally or provincially legislated plan for compensation as a result of the death of the person that is attributable to the performance of duties; and

(c) makes a request within two years of qualifying for compensation.

Death prior to these Regulations

(3) If the death of the persons referred to in paragraphs (1)(a) to (f) is attributable to the performance of duties and occurred during the period beginning on October 7, 2001 and ending on the coming into force of this section, their spouse or common-law partner is entitled to appointment in priority to all persons, other than those referred to in section 40 and subsection 41(1) and (4) of the Act, to a position in the public service in an advertised external appointment process, for which the Commission is satisfied that the spouse or common-law partner meets the essential qualifications referred to in paragraph 30(2)(a) of the Act if the spouse or common-law partner

(a) is not employed in the public service for an indeterminate period at the time the request is made;

(b) qualifies under any federally or provincially legislated plan for compensation as a result of the death of the person that is attributable to the performance of duties; and

(c) makes a request within two years of the latter of

(i) the coming into force of this section, or

(ii) the spouse’s or common-law partner’s having qualified for compensation.

Entitlement period

(4) The entitlement period for appointment in priority referred to in subsections (1) and (3) begins on the day on which the request is made and ends on the earliest of

(a) the day that is two years after the day on which the request is made;

(b) the day on which the spouse or common-law partner is appointed to a position in the public service for an indeterminate period; and

(c) the day on which the spouse or common-law partner refuses an appointment for an indeterminate period without good and sufficient reason.

6. Paragraph 10(2)(a) of the French version of the Regulations is replaced by the following:

a) le jour qui tombe un an après qu’il a été nommé ou muté au poste de niveau inférieur;

TRANSITIONAL PROVISION

Continuation of priority

7. On the coming into force of sections 1 and 2 of these Regulations, a person who was employed in a position excluded by the Office of the Governor General’s Secretary Exclusion Order , and who ceases to be employed continues to be entitled to appointment in priority to all persons, other than those referred to in section 40 and subsections 41(1) and (4) of the Public Service Employment Act , as enacted by sections 12 and 13 of the Public Service Modernization Act , chapter 22 of the Statutes of Canada, 2003, in accordance with section 6 of the Public Service Employment Regulations as it read immediately before the coming into force of sections 1 and 2.

COMING INTO FORCE

8. (1) Subject to subsection 2, these Regulations come into force on the day on which they are registered.

(2) Sections 1 and 2 come into force on the day on which the Regulations Amending the Governor General’s Secretary Employment Regulations (2010) come into force.

REGULATORY IMPACT ASSESSMENT STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Regulations Amending the Public Service Employment Regulations (the Regulations) amend the entitlements to appointment in priority in the Public Service Employment Regulations (see footnote 2) (the PSER).

The Regulations repeal the entitlement to appointment in priority for persons who cease to be employed in an excluded position (see footnote 3) in the Office of the Governor General’s Secretary. This mirrors the repeal of the provisions in the Public Service Employment Act (see footnote 4) (the PSEA) that provided priority for appointment for minister’s staff, thereby maintaining parity with minister’s staff who perform functions and duties similar to those performed by persons occupying an excluded position in the Office of the Governor General’s Secretary.

Other provisions with respect to the rights to be appointed in priority are amended to ensure greater clarity and avoid misunderstandings in their application.

The Regulations also provide spouses or common-law partners of employees pursuant to the PSEA, members of the Canadian Forces and of the Royal Canadian Mounted Police, whose death is attributable to the performance of duties, with an entitlement to be appointed in priority in an advertised external appointment process in order to provide them with access to public service employment.

Description and rationale

Section 22 of the PSEA provides that the Public Service Commission (the Commission) may make regulations establishing a right to be appointed in priority to all persons other than those who have priority for appointment provided by the PSEA. The Regulations provide the following amendments with respect to the rights to be appointed in priority provided in the PSER.

Persons employed in an excluded position in the Office of the Governor General’s Secretary

The Regulations repeal the entitlement to appointment in priority for persons who cease to be employed in an excluded position in the Office of the Governor General’s Secretary. A mobility provision in the proposed Regulations Amending the Office of the Governor General’s Secretary Employment Regulations would allow them to participate in an advertised internal appointment process open to all employees. This is equivalent to the mobility provision in the PSEA (see footnote 5) which allows ministers’ staff to participate in an advertised appointment process open to all employees for a period of one year after they cease to be employed.

The transitional provision of the Regulations provides that persons employed in an excluded position in the Office of the Governor General’s Secretary, as of the date on which the entitlement to appointment in priority is repealed, will continue to be given this entitlement when they cease to be so employed. The mobility provision in the Regulations Amending the Office of the Governor General’s Secretary Employment Regulations will apply to persons appointed to an excluded position after the mobility provision comes into force.

Since the entitlement to appointment in priority for persons who cease to be employed in an excluded position in the Office of the Governor General’s Secretary is repealed, it is no longer necessary to define “excluded position” in the PSER. Consequently, the definition of “excluded position” is also repealed.

Employees who become disabled, and members of the Canadian Forces and the Royal Canadian Mounted Police who are released or discharged for medical reasons

The amendments to the Regulations regarding the right to appointment in priority for employees who become disabled, and for members of the Canadian Forces and of the Royal Canadian Mounted Police who are released or discharged for medical reasons, specify the conditions in which these persons are entitled to appointment in priority, namely

(a) within five years after the day on which the person became disabled or was released or discharged for medical reasons, the person is certified by a competent authority to be ready to return to work on the day specified by the authority; and

(b) the day specified for return to work is within five years after the day on which the person became disabled or was released or discharged for medical reasons.

For members of the Canadian Forces and Royal Canadian Mounted Police, the Regulations also specify that the person must request the priority within five years after being released or discharged for medical reasons.

The Regulations specify that the entitlement period begins on the day on which the person is ready to return to work, as certified by a competent authority, rather than on the day on which the competent authority specifies that the person is ready to return to work.

These amendments were recommended by the Standing Joint Committee for the Scrutiny of Regulations.

Reinstatement priority

The word “an” is added before the word “après” of the French version of paragraph 10(2)(a) which deals with the reinstatement priority. This amendment was also recommended by the Standing Joint Committee for the Scrutiny of Regulations.

Surviving Spouses or common-law partners of employees pursuant to the PSEA, members of the Canadian Forces and the Royal Canadian Mounted Police whose death is attributable to the performance of duties

The Regulations establish a new entitlement to appointment in priority for a position staffed through an advertised external appointment process for surviving spouses or common-law partners of employees pursuant to the PSEA, members of the Canadian Forces and the Royal Canadian Mounted Police whose death is attributable to the performance of duties.

The Regulations set out the conditions in which the priority applies and the entitlement period of the priority.

The Regulations also contain a retrospective provision to October 7, 2001, for the spouses or common-law partners of employees, members of the Canadian Forces and the Royal Canadian Mounted Police whose death is attributable to the performance of duties. This is the date on which Canada and a coalition of other countries initiated military actions in Afghanistan.

Consultation

The Commission consulted the Office of the Governor General’s Secretary and they were given the opportunity to express their views. The Office of the Governor General’s Secretary supports the Regulations since persons currently employed in an excluded position will benefit from the right to appointment in priority whenever they will cease to be so employed.

In addition, consultations have been conducted with respect to the priority right for surviving spouses or common-law partners with the Human Resources Council, the National Staffing Council and the Public Service Commission Advisory Council, the Department of National Defence, the Royal Canadian Mounted Police, and Human Resources and Skills Development Canada. All supported the priority right.

The Regulations were pre-published in the Canada Gazette, Part I, on December 5, 2009, for a period of 30 days to provide an opportunity for public consultation. During the pre-publication period, representations were made by three individuals and one non-governmental organization. All of the representations related to the priority for surviving spouses or common-law partners.

One individual commented that the priority for surviving spouses or common-law partners provided an additional benefit to public servants while two other individuals commented that the scope of application of the priority was too narrow. The non-governmental organization also recommended that the priority for surviving spouses or common-law partners be expanded to include a wider scope of persons employed in public safety occupations.

The Commission considered these comments in light of the intent of the priority, which is to recognize the contributions of certain persons working for the federal government. As a result, persons working outside the federal government are not within the initial intent of the priority.

The Commission, therefore, concluded that it is preferable to provide the priority for surviving spouses or common-law partners to persons entitled to other rights to appointment in priority under the PSEA or the PSER.

Implementation, enforcement and service standards

The Regulations will be implemented by means of a Letter to Heads of Human Resources advising departments and agencies of the amendments to the PSER. The Commission’s Guide on Priority Administration, as well as the Priority Information Management System (PIMS), both of which are posted on its Web site, is also updated to reflect the amendments to the rights to be appointed in priority.

The Commission has a monitoring and accountability framework through which it tracks organizational staffing practices and applies corrective actions, as appropriate. PIMS is the system used to register, refer, track, and monitor all priority persons, as well as the results of organizations’ consideration of their qualifications and adherence to their entitlements.

Contact

Roch Davidson
Policy Specialist
Policy Development Directorate
Public Service Commission of Canada
L’Esplanade Laurier, West Tower
300 Laurier Avenue West
Ottawa, Ontario
K1A 0M7
Telephone: 613-943-2787
Fax: 613-943-2481
Email: Roch.Davidson@psc-cfp.gc.ca

Footnote a
S.C. 2006, c. 9, s. 100

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

Footnote 1
SOR/2005-334

Footnote 2
SOR/2005-334

Footnote 3
Certain positions in the Office of the Governor General’s Secretary are excluded from the operation of the Public Service Employment Act, pursuant to an Order made by the Public Service Commission under subsection 20(1) of the PSEA.

Footnote 4
S.C. 2003, c. 22, ss. 12 and 13. Subsections 41(2) and (3) were repealed by the Federal Accountability Act, 2006, c. 9, s. 103.

Footnote 5
The mobility provision of the PSEA for ministers’ staff was made by the Federal Accountability Act (S.C., 2006, c. 9, ss. 101 and 103) to replace their entitlement to appointment in priority.