Vol. 144, No. 14 — July 7, 2010

Registration

SOR/2010-147 June 17, 2010

PUBLIC SERVICE EMPLOYMENT ACT

Statistics Canada Census-Related Term Employment Regulations

P.C. 2010-772 June 17, 2010

Her Excellency the Governor General in Council, on the recommendation of the Minister of Canadian Heritage and the Public Service Commission, pursuant to section 21 of the Public Service Employment Act (see footnote a), hereby makes the annexed Statistics Canada Census-Related Term Employment Regulations.

STATISTICS CANADA CENSUS-RELATED TERM EMPLOYMENT REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

“Act” means the Public Service Employment Act. (Loi)

“acting appointment” means the temporary performance of the duties of another position by a person, if the performance of those duties would have constituted a promotion had the person been appointed other than on an acting basis to the position. (nomination intérimaire)

“deployment” means the transfer under section 6 of a person, an employee not excluded by the Order or an individual employed by a separate agency to a position. (mutation)

“internal appointment process” means a process for making one or more appointments in which only persons may be considered. (processus de nomination interne)

“Order” means the Statistics Canada Census-Related Term Employment Exclusion Approval Order. (décret)

“person” means a person excluded by the Order who is appointed or deployed to a position. (personne)

“position” means a position excluded by the Order. (poste)

APPLICATION

2. These Regulations apply to those positions in Statistics Canada whose function is solely to provide administrative or management support or to perform data processing duties for the purpose of conducting the population census and the agriculture census as described in the Statistics Act and to the persons appointed or deployed to those positions on a specified term basis, except for other persons mentioned in subsection 5(1) of that Act, that are excluded from the application of the definitions “deployment” and “internal appointment process” in subsection 2(1), and of paragraphs 22(2)(a) to (c) and sections 40, 41, 48, 51 to 53, 57, 59 and 62 of the Public Service Employment Act.

DEALING WITH EXCLUDED POSITIONS AND PERSONS

APPOINTMENT OR DEPLOYMENT ON A SPECIFIED TERM BASIS

3. Appointments or deployments to positions may be on a specified term basis only.

INTERNAL APPOINTMENT PROCESS

4. A person is not eligible for an internal appointment process other than for an acting appointment.

ACTING APPOINTMENTS

5. (1) The Commission must, at the time that the following acting appointments are made or proposed as a result of an internal appointment process, inform the persons in the area of recourse, within the meaning of subsection 77(2) of the Act, in writing of the name of the person who is proposed to be, or has been, appointed and of their right and grounds to make a complaint:

(a) an acting appointment of four months or more;

(b) an acting appointment that extends the person’s cumulative period in the acting appointment from less than four months to four months or more.

(2) An acting appointment of less than four months, if it does not extend the cumulative period of the acting appointment of a person in a position to four months or more, is excluded from the application of sections 30 and 77 of the Act.

(3) Despite subsection (2), the provision of paragraph 30(2)(a) of the Act respecting official language proficiency continues to apply, in the case of an acting appointment of less than four months, to a vacant bilingual position if

(a) the Commission is able to fill the position with an appointment of a person or of an employee not excluded by the Order who meets the official language proficiency qualification; or

(b) the cumulative period of the acting appointments of all persons and the acting appointments within the meaning of the Public Service Employment Regulations of all employees not excluded by the Order in that position is four months or more.

(4) An acting appointment of four months or more but not more than twelve months to an encumbered bilingual position that the Commission cannot fill with an acting appointment of a person or an acting appointment within the meaning of the Public Service Employment Regulations of an employee not excluded by the Order who meets the language proficiency qualification under paragraph 30(2)(a) of the Act is excluded from the application of that paragraph respecting official language proficiency.

(5) Subsection (4) does not apply to an acting appointment to the same position if the cumulative period of the acting appointments of all persons and the acting appointments within the meaning of the Public Service Employment Regulations of all employees not excluded by the Order in that position is more than twelve months.

DEPLOYMENT

6. (1) The Chief Statistician may deploy to a position a person, an employee not excluded by the Order or an individual employed by a separate agency from which deployments have been approved under subsection 51(2) of the Act.

(2) A deployment may be made within an occupational group or, unless deployment within the meaning of any regulations made under paragraph 26(1)(a) of the Act is excluded under those regulations, between occupational groups.

(3) A deployment made to a position is to be made following the same rules as are established in any regulations regarding deployment, within the meaning of subsection 2(1) of the Act, made by the Treasury Board.

(4) A deployment must not

(a) constitute a promotion within the meaning of any regulations made by the Treasury Board; or

(b) change a period of employment from specified term to indeterminate.

(5) A deployment may be made without consent of a person if

(a) agreement to being deployed is a condition of employment of their current position; or

(b) the person has in the course of their employment harassed another person or an employee not excluded by the Order and the deployment is made to another position.

(6) On deployment, a person ceases to be the incumbent of the position to which they had previously been appointed or deployed.

(7) A deployment is not an appointment for the application of the Act.

PROBATIONARY PERIOD – TERMINATION OF EMPLOYMENT

7. (1) While a person is on probation, the Chief Statistician may notify the person in writing that their employment will be terminated

(a) seven days after the day on which the notice is received and that the person ceases to be an employee at the end of the notice period, or

(b) on the date specified in the notice, that they will be paid an amount equal to the salary they would have been paid if they had been given notice that their employment will be terminated seven days after the day on which the notice is received and that the person ceases to be an employee on the date specified in the notice.

(2) In the case of paragraph (1)(a), the person ceases to be an employee at the end of the period specified in the notice.

(3) In the case of paragraph (1)(b), the person ceases to be an employee on the date specified in the notice and the person is paid an amount equal to the salary they would have been paid if they had been given notice that their employment will be terminated seven days after the day on which the notice is received.

COMING INTO FORCE

8. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Statistics Canada Census-Related Term Employment Exclusion Approval Order (the Order) excludes employees hired to work on the censuses pursuant to the Statistics Act, and the positions they occupy from several provisions of the Public Service Employment Act (PSEA). The employees and positions are excluded from the definitions of “internal appointment process” and “deployment.” They are excluded from the Public Service Commission’s (PSC) Public Service Employment Regulations related to acting appointments and the consideration of priority persons. They are also excluded from the provisions related to deployments, indeterminate employment, conversion to indeterminate status, and the length of the notice period for the termination of employment due to rejection on probation.

The Statistics Canada Census-Related Term Employment Regulations prescribe how excluded employees and positions are to be dealt with. There are alternate definitions and provisions for “acting appointments” and “deployments”; both of these are limited to positions excluded by the Order. Appointments and deployments to excluded positions are made on a specified term basis only. The Regulations provide a shorter notice period for the termination of employment as a result of rejection on probation than provided in the PSEA.

The objective of the Order and Regulations is to ensure a balance between cost and time effectiveness for the conduct of the censuses and a fair employment regime for excluded employees. With the current economic situation, an Order and Regulations that result in a cost saving, while ensuring the fair treatment of excluded employees, is in line with government objectives.

Description and rationale

The Statistics Act requires that Statistics Canada conduct the censuses every five years, which will next take place on May 10, 2011. The work takes approximately three years to complete, and is conducted within a very strict timeframe and budget.

Section 5(1) of the Statistics Act provides an authority to hire enumerators and crew chiefs on a temporary basis to conduct the censuses. However, approximately 2 800 additional employees are required on a temporary basis to provide administrative and management support and to perform data processing duties. This exclusion prevents the loss of these employees to appointments or deployments within the public service, which could have a negative impact on census operations, due to the strict timeframe and budget, and the time and cost associated with hiring and training replacements.

The current PSEA came into effect on December 31, 2005. The previous PSEA required appointments to the public service to be made based on relative merit. It required the assessment of all candidates to determine their relative merit in order to place them in ranked order on an eligibility list before any appointments could be made. The current PSEA contains a different definition of merit, and provides for the appointment of a candidate who simply meets the merit criteria, as opposed to appointing the “most qualified” candidate. There is no longer a requirement to wait until all candidates have been assessed and ranked in order before making an appointment.

Beginning in 1986, an Order was made every five years to exclude employees hired for census work from the application of the entire PSEA, with the exception of the provisions related to the oath of allegiance, political partisanship, and fraud. With the greater flexibility of the current PSEA, there is no longer a need to fully exclude employees and positions from its application. With the coming into force of the current PSEA, the PSC has adopted a new approach and has been reviewing all exclusion approval orders and regulations made pursuant to the PSEA with a view to ensuring that they are compatible with the PSEA’s principles. In keeping with this objective, the Order and Regulations do not expire as has been the case with previous Orders and Regulations. This eliminates the need to reproduce the Order and Regulations for future censuses.

Statistics Canada expects to hire 1 600 excluded employees in varying locations across the country, and 1 200 excluded employees in the data processing centre in the National Capital Region for the 2011 censuses. Excluded employees are hired for employment periods ranging from nine months to three years, depending on the occupational group and level of the position, the duties to be performed, and the geographic location. Excluded employees are hired in positions in the Clerical and Regulatory (CR), Administrative Services (AS), Information Services (IS), General Services (GS), General Technical (GT), Economics and Social Science Services (EC), Computer Systems Administration (CS), Financial Management (FI), and Personnel Administration (PE) occupational groups, although the numbers and occupational groups could possibly change for future censuses.

Statistics Canada first appoints those persons who had previously worked on the censuses and whose performance was fully satisfactory using non-advertised external appointment processes. It then appoints other persons from outside the public service using advertised external appointment processes and deploys existing public service employees.

The Regulations prescribe how the excluded employees and positions are to be dealt with. Excluded employees are hired on a specified term basis only. They are excluded from the provision in the PSEA that allows term employees to be converted from term to indeterminate status at the end of the cumulative employment period specified by the employer. The work required for the censuses lasts only three years and there is no intention for excluded employees to be employed on an indeterminate basis.

Internal appointment processes are those that are open only to persons employed in the public service. Excluded employees are not eligible to participate in these processes, with the exception of acting appointments to other excluded positions.

The PSEA requires that persons with a priority for appointment be considered before any others have an opportunity to apply. Examples of persons with a priority for appointment are employees who are surplus to requirements, employees who have been laid off, and former Canadian Forces and Royal Canadian Mounted Police members who were released or discharged for medical reasons. Excluding from these provisions avoids any delays as a result of the priority clearance process. It limits employee turnover, as priority persons who accept term employment continue to be eligible for priority consideration for appointment to an indeterminate job, and thus they would leave to accept indeterminate employment elsewhere.

Excluded employees are only eligible to be deployed to other excluded positions. Other public service employees may be deployed to excluded positions, should they choose to accept the conditions imposed by the Order and Regulations, such as being eligible only for acting appointments or deployments to other excluded positions. This allows for greater efficiency to hire employees using deployments, which are less administratively burdensome than appointments.

The PSEA requires employees to be subject to a probationary period at the beginning of their employment in the public service. During the probationary period, a deputy head may terminate employment for disciplinary or lack of competency reasons. Employees who are rejected on probation are entitled to a notice period, determined by the Regulations of the employer, that their employment will be terminated. Excluded employees are not subject to the employer’s notice periods and are instead provided with a shorter, seven-day notice period. Employees rejected on probation are paid their regular salary during the notice period, so a shorter period results in a cost saving.

Consultation

Statistics Canada was involved in the development of the Order and Regulations, and has indicated its agreement with the provisions.

Consultations were conducted on a face-to-face basis in July 2009 with the four bargaining agent representatives for the occupational groups of the persons excluded by the Order. These were the Public Service Alliance of Canada, the Canadian Association of Public Employees, the Professional Institute of the Public Service of Canada, and the Association of Canadian Financial Officers.

The representatives stated that excluded employees should have the same status as other employees. This concern was taken into account when drafting the Order and Regulations, and as a result, excluded employees are excluded from as few provisions of the PSEA as possible, while still achieving the objective of the Order and Regulations. Excluded employees are subject to the remaining provisions of the PSEA and to the terms and conditions outlined in their collective agreements, as is the case for other employees in the public service.

Concern was also expressed regarding the establishment of an Order and Regulations for an indefinite period. The representatives were concerned that they would not be kept informed of the numbers and occupational groups of the excluded employees to be hired each time the censuses are conducted. In response to this concern, Statistics Canada will develop an internal policy to require consultation with its affected bargaining agent representatives.

The proposed Regulations were pre-published in the Canada Gazette, Part I, on January 29, 2010, followed by a 30-day comment period. The bargaining agent representatives were advised by email correspondence of the date the proposed Regulations were pre-published, and of the opportunity to make comments. No comments were received as a result of pre-publication.

One addition was made to the definition of “deployment” and to section 6(1) regarding deployments to correct an omission in the proposed Regulations. A reference to the authority of the deputy head of Statistics Canada, the Chief Statistician, to deploy individuals employed in separate agencies from which deployments have been approved by the PSC under subsection 51(2) of the PSEA was added to provide consistency with the deployment regime outlined in Part 3 of the PSEA for non-excluded employees of the public service.

A review was conducted following pre-publication, which resulted in several editorial amendments and a contextual change to subsection 6(3) of the Regulations. This subsection originally required that deployments be made in the same manner as prescribed by the Treasury Board, which is outlined in subsection 51(4) of the PSEA. It was concluded that this requirement would be best incorporated through a Statistics Canada policy that deployments made pursuant to the Regulations would be consistent with those made pursuant to the PSEA. Statistics Canada has stated it will develop an internal policy to require that deployments be made in the same manner as prescribed by the Treasury Board for deployments pursuant to subsection 51(4) of the PSEA. This will mean that, for example, deployments must comply with the Treasury Board’s Qualification Standards, and with any other requirements that the Treasury Board may institute in the future.

Implementation, enforcement and service standards

The Order and Regulations are enforced by the applicable provisions of the PSEA.

Appointment and appointment-related authority is delegated to deputy heads by the Commission through an Appointment Delegation and Accountability Instrument, in accordance with the PSEA. The Commission monitors and assesses the performance of deputy heads for compliance to the applicable legislative and regulatory requirements, the PSEA’s appointment values, and for the proper use of delegated authorities. The deputy head of Statistics Canada, the Chief Statistician, is therefore held accountable to the Commission through its accountability and oversight mechanisms.

As provided for in the PSEA, any lack of compliance on behalf of the Chief Statistician is subject to corrective action that the Commission considers appropriate, which can range from additional terms and conditions of delegation to withdrawal of delegated authority. Such enforcement measures are consistent with the spirit and intent of the PSEA.

Contact

Janine Beaulne
Policy Specialist
Policy Development Directorate
Public Service Commission of Canada
300 Laurier Avenue West
Ottawa, Ontario
K1A 0M7
Telephone: 613-992-0220
Fax: 613-943-2481
Email: janine.beaulne@psc-cfp.gc.ca

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

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