Law:Public Service Employment Act

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

Assented to 2003-11-07

An Act respecting employment in the public service

(Enacted by sections 12 and 13 of chapter 22 of the Statutes of Canada, 2003, in force December 31, 2005, see Si/2005-122.)Preamble

Recognizing that

the public service has contributed to the building of Canada, and will continue to do so in the future while delivering services of highest quality to the public;

Canada will continue to benefit from a public service that is based on merit and non-partisanship and in which these values are independently safeguarded;

Canada will also continue to gain from a public service that strives for excellence, that is representative of Canada’s diversity and that is able to serve the public with integrity and in their official language of choice;

the public service, whose members are drawn from across the country, reflects a myriad of backgrounds, skills and professions that are a unique resource for Canada;

authority to make appointments to and within the public service has been vested in the Public Service Commission, which can delegate this authority to deputy heads;

those to whom this appointment authority is delegated must exercise it within a framework that ensures that they are accountable for its proper use to the Commission, which in turn is accountable to Parliament;

delegation of staffing authority should be to as low a level as possible within the public service, and should afford public service managers the flexibility necessary to staff, to manage and to lead their personnel to achieve results for Canadians; and

the Government of Canada is committed to a public service that embodies linguistic duality and that is characterized by fair, transparent employment practices, respect for employees, effective dialogue, and recourse aimed at resolving appointment issues;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the Public Service Employment Act.


Interpretation

Definitions

2. (1) The following definitions apply in this Act.

“Commission”

« Commission »

“Commission” means the Public Service Commission continued by subsection 4(1).

“department”

« ministère »

“department” means

(a) an organization named in Schedule I to the Financial Administration Act;

(b) any other organization that is designated by the Governor in Council as a department for the purposes of this Act; or

(c) any part of any organization that is designated by the Governor in Council as a department for the purposes of this Act.

“deployment”

« mutation »

“deployment” means the transfer of a person from one position to another in accordance with Part 3.

“deputy head”

« administrateur général »

“deputy head”

(a) in relation to an organization named in Schedule I to the Financial Administration Act, its deputy minister;

(b) in relation to any organization or part of an organization that is designated as a department under this Act, the person that the Governor in Council designates as the deputy head for the purposes of this Act; and

(c) in relation to any organization named in Schedule IV or V to the Financial Administration Act to which the Commission has the exclusive authority to make appointments, its chief executive officer or, if there is no chief executive officer, its statutory deputy head or, if there is neither, the person designated by the Governor in Council as its deputy head for the purposes of this Act.

“employee”

« fonctionnaire »

“employee” means a person employed in that part of the public service to which the Commission has exclusive authority to make appointments.

“employer”

« employeur »

“employer” means

(a) the Treasury Board, in relation to an organization named in Schedule I or IV to the Financial Administration Act; or

(b) in relation to a separate agency to which the Commission has exclusive authority to make appointments, that separate agency.

class="Mar“external appointment process”

« processus de nomination externe »

“external appointment process” means a process for making one or more appointments in which persons may be considered whether or not they are employed in the public service.

“internal appointment process”

« processus de nomination interne »

“internal appointment process” means a process for making one or more appointments in which only persons employed in the public service may be considered.

“minister”

« ministre »

“minister”, except in section 131, means any minister referred to in section 4.1 of the Salaries Act and any minister of State referred to in the Ministries and Ministers of State Act.

“organization”

« administration »

“organization” means any portion of the federal public administration named in Schedule I, IV or V to the Financial Administration Act.

“public service”

« fonction publique »

“public service” means the several positions in or under

(a) the departments named in Schedule I to the Financial Administration Act;

(b) the organizations named in Schedule IV to that Act; and

(c) the separate agencies named in Schedule V to that Act.

“separate agency”

« organisme distinct »

“separate agency” means an organization named in Schedule V to the Financial Administration Act.

“statutory deputy head”

« administrateur général au titre de la loi »

“statutory deputy head” means any officer who, by any Act of Parliament, is or is deemed to be a deputy head or who has, or is deemed to have, the rank of a deputy head.

“Tribunal”

« Tribunal »

“Tribunal” means the Public Service Staffing Tribunal continued by subsection 88(1).

References to deputy head

(2) In this Act, unless the context otherwise requires,

class="Paragr(a) a reference to a deputy head in relation to an employee shall be construed as a reference to the deputy head of the department or other organization, as the case may be, in which the employee is employed; and

(b) a reference to a deputy head in relation to an appointment shall be construed as a reference to the deputy head of the department or other organization, as the case may be, in which the appointment is made.

References to occupational groups

(3) A reference in this Act to an occupational group shall be construed as a reference to a group or subgroup of employees defined by the employer, and a reference to the executive group shall be construed as a reference to an occupational group or subgroup designated by the employer and consisting of management personnel.

References to abuse of authority

(4) For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.

2003, c. 22, ss. 12 “2”, 271; 2005, c. 16, s. 17.

Previous VersionDescriptive cross-references

3. If, in any provision of this Act, a reference to another provision of this Act is followed by words in parentheses that are descriptive of the subject-matter of the provision referred to, the words in parentheses form no part of the provision in which they occur and are deemed to have been inserted for convenience of reference only.


Part 1. Public Service Commission, Deputy Heads And Employer

Commission

Commission continued

4. (1) The Public Service Commission is continued, consisting of a President and two or more other Commissioners.

Eligibility

(2) In order to be eligible to hold office as a Commissioner, a person must be a Canadian citizen within the meaning of the Citizenship Act or a permanent resident within the meaning of the Immigration and Refugee Protection Act.

Full-time or part-time

(3) The President shall serve on a full-time basis and the other Commissioners on a part-time basis.

Other employment or activities

(4) Commissioners shall not accept or hold any office or employment, or carry on any activity, that is inconsistent with their functions, and the President shall devote the whole of his or her time to the performance of the President’s functions.

Appointment of Commissioners

(5) The President and other Commissioners shall be appointed by the Governor in Council. The appointment of the President shall be made by commission under the Great Seal, after approval by resolution of the Senate and House of Commons.

Tenure and term of office

(6) A Commissioner holds office during good behaviour for a term of seven years, but may be removed by the Governor in Council at any time on address of the Senate and House of Commons.

Re-appointment

(7) A Commissioner, on the expiration of a first or any subsequent term of office, is eligible to be re-appointed for a further term not exceeding seven years.

Oath or affirmation

(8) Before commencing his or her functions, a Commissioner shall take an oath or make a solemn affirmation in the following form before the Clerk of the Privy Council or the person designated by the Clerk:

I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgment, skill and ability, execute and perform the office of (Commissioner or President, as the case may be) of the Public Service Commission. (Add, in the case where an oath is taken, “So help me God” (or name of deity).)

Salaries

5. (1) The Commissioners shall be paid the remuneration determined by the Governor in Council.

Expenses

(2) The Commissioners are entitled to be paid reasonable travel and other expenses incurred by them in the course of their duties while absent from their ordinary place of residence or, in the case of the President, while absent from his or her ordinary place of work.

Application of Public Service Superannuation Act

(3) The President is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

Application of other Acts

(4) The Commissioners are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.

President

6. (1) The President is the chief executive officer of the Commission.

Residence

(2) The President shall reside in the National Capital Region as described in the schedule to the National Capital Act or within the distance of it specified by the Governor in Council.

Acting President

(3) If the President is absent or unable to act or if the office of President is vacant, the minister designated under section 23 may authorize a Commissioner or other qualified person to act as President for a period not exceeding sixty days, and the Governor in Council may authorize a Commissioner or other qualified person to act as President for any longer period.

Quorum

7. (1) A majority of the Commissioners constitutes a quorum of the Commission.

Vacancy

(2) A vacancy in the membership of the Commission does not impair the right of the remaining Commissioners to act.

Head office

8. The head office of the Commission shall be in the National Capital Region described in the schedule to the National Capital Act.

Human resources

9. The Commission may appoint the persons necessary for the proper conduct of its work in the manner authorized by this Act.

Experts and advisers

10. (1) The Commission may retain on a temporary basis the services of experts or other persons having technical or special knowledge to assist it in an advisory capacity and, subject to the approval of the Treasury Board, fix their remuneration.

Application of Public Service Superannuation Act

(2) Persons whose services are retained under subsection (1) are not employed in the public service for the purposes of the Public Service Superannuation Act.


Mandate and Functions of Commission

Mandate

11. The mandate of the Commission is

(a) to appoint, or provide for the appointment of, persons to or from within the public service in accordance with this Act;

(b) to conduct investigations and audits in accordance with this Act; and

(c) to administer the provisions of this Act relating to political activities of employees and deputy heads.

Functions assigned by Governor in Council

12. The Commission shall perform any functions in relation to the public service that are assigned to it by the Governor in Council.

Delegation to Commissioners and employees

13. Any power or function of the Commission under this Act, other than under section 20 or 22, may be exercised or performed by any Commissioner or employee of the Commission authorized by the Commission to do so and, if so exercised or performed, is deemed to have been exercised or performed by the Commission.

Consultation by Commission

14. The Commission shall, on request or if it considers consultation necessary or desirable, consult with the employer or any employee organization certified as a bargaining agent under the Public Service Labour Relations Act with respect to policies respecting the manner of making and revoking appointments or with respect to the principles governing lay-offs or priorities for appointment.


Delegation by Commission to Deputy Heads

Exercise of powers and functions by deputy heads

15. (1) The Commission may authorize a deputy head to exercise or perform, in relation to his or her organization, in the manner and subject to any terms and conditions that the Commission directs, any of the powers and functions of the Commission under this Act, other than its powers under sections 17, 20 and 22, its power to investigate appointments under sections 66 to 69 and its powers under Part 7.

Revision or rescission

(2) Subject to subsection (3), the Commission may revise or rescind an authorization granted under this section.

Revocation of appointments

(3) Where the Commission authorizes a deputy head to make appointments pursuant to an internal appointment process, the authorization must include the power to revoke those appointments and to take corrective action whenever the deputy head, after investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment.

Exception

(4) In authorizing a deputy head under subsection (3), the Commission is not required to include the authority to revoke appointments or to take corrective action in circumstances referred to in sections 68 and 69.

Commission jurisdiction

(5) The Commission may not revoke an appointment referred to in subsection (3) or take corrective action in relation to such an appointment except in circumstances referred to in sections 68 and 69.

Re-appointment on revocation

(6) Where the appointment of a person is revoked by a deputy head acting pursuant to subsection (3), the Commission may appoint that person to another position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

Compliance with appointment policies

16. In exercising or performing any of the Commission’s powers and functions pursuant to section 15, a deputy head is subject to any policies established by the Commission under subsection 29(3).


Commission Audits

Audits by Commission

17. The Commission may conduct audits on any matter within its jurisdiction and on the exercise, by deputy heads, of their authority under subsection 30(2) and may make recommendations to deputy heads.

Powers of Commission

18. In conducting an audit, the Commission has all the powers of a commissioner under Part I of the Inquiries Act.

Persons acting for Commission

19. (1) The Commission may direct that any audit under section 17 be conducted, in whole or in part, by a Commissioner or any other person.

Powers of Commissioner

(2) In relation to a matter before a Commissioner under subsection (1), the Commissioner has the powers referred to in section 18.

Powers of other persons

(3) In relation to a matter before a person other than a Commissioner under subsection (1), the person has the powers referred to in section 18 subject to any limitations specified by the Commission.


Exclusions from this Act

Exclusion of positions and persons

20. (1) Where the Commission decides that it is neither practicable nor in the best interests of the public service to apply this Act or any of its provisions to any position or person or class of positions or persons, the Commission may, with the approval of the Governor in Council, exclude that position, person or class from the application of this Act or those provisions.

Consultation with employer

(2) The Commission shall consult the employer in respect of an exclusion from any provision of this Act whose application is not within the Commission’s jurisdiction.

Re-application of provisions to persons or positions

(3) The Commission may, with the approval of the Governor in Council, re-apply any of the provisions of this Act to any position or person, or class of positions or persons, excluded pursuant to subsection (1).

Regulations of Governor in Council

21. The Governor in Council may, on the recommendation of the Commission, make regulations prescribing how any position or person, or class of positions or persons, excluded under section 20 from the application of this Act or any of its provisions is to be dealt with.


Regulations of Commission

General regulatory power

22. (1) The Commission may make any regulations that it considers necessary to give effect to the provisions of this Act relating to matters under its jurisdiction.

Regulations

(2) Without limiting the generality of subsection (1), the Commission may make regulations

(a) establishing for any person or class of persons a right to be appointed — in priority to all persons other than those referred to in section 40 and subsections 41(1) and (4) — during the period specified by the Commission, to any position for which the Commission is satisfied that they meet the essential qualifications referred to in paragraph 30(2)(a);

(b) determining the order of priority of the rights to appointment established by any regulations made under paragraph (a);

(c) respecting appointments on an acting basis and the maximum period for which any such appointments or any class of such appointments may be made, and excluding any such appointments or class from the operation of any or all of the provisions of this Act;

(d) for the purpose of facilitating the implementation of employment equity programs developed by an employer or a deputy head, respecting the appointment to or from within the public service of persons belonging to a designated group within the meaning of section 3 of the Employment Equity Act, and excluding any such persons or any group of such persons from the operation of any or all of the provisions of this Act;

(e) respecting the appointment of persons within the executive group or to the executive group from within or outside the public service, and excluding any such persons or any class of such persons from the operation of any or all of the provisions of this Act;

(f) respecting the disclosure of information obtained in the course of an investigation under this Act;

(g) defining “incumbent-based process” for the purposes of subsection 34(1);

(h) prescribing the manner in which and the period within which allegations are to be made, and the manner in which investigations are to be conducted under Part 7; and

(i) respecting the manner of laying off employees and the manner of selecting employees to be laid off, for the purposes of section 64.

2003, c. 22, s. 12 “22”; 2006, c. 9, s. 100.

Previous Version

Reports — Commission

Preparation of report

23. (1) The Commission shall, as soon as possible after the end of each fiscal year, prepare and transmit to the minister designated by the Governor in Council for the purposes of this section a report for that fiscal year in respect of matters under its jurisdiction.

Tabling in Parliament

(2) The minister to whom the report is transmitted shall cause the report to be laid before each House of Parliament within the first fifteen days on which that House is sitting after the minister receives it.

Special reports

(3) The Commission may, at any time, make a special report to Parliament referring to and commenting on any matter within the scope of the powers and functions of the Commission where, in the opinion of the Commission, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for transmission of the next annual report of the Commission.


Deputy Heads

Delegation by deputy head

24. (1) Subject to subsection (2), a deputy head may authorize any person to exercise or perform any of the powers and functions conferred on the deputy head by this Act.

Subdelegation by deputy head

(2) Where the Commission has authorized a deputy head under subsection 15(1) to exercise or perform any of the Commission’s powers and functions, the deputy head may — subject to the Commission’s approval and any terms and conditions specified under that subsection — authorize another person to exercise or perform any of those powers or functions, other than the power to revoke appointments.

Acting deputy head

25. In the absence of the deputy head of a department or other organization, the powers and functions of the deputy head may be exercised by the person designated by the deputy head to act in his or her absence or, if no person has been so designated or there is no deputy head,

(a) the person designated by the person who, under the Financial Administration Act, is the appropriate Minister with respect to that department or other organization; or

(b) any other person designated by the Governor in Council.


Regulations and Policies of Employer

Regulations of Treasury Board

26. (1) The Treasury Board may, in respect of organizations named in Schedule I or IV to the Financial Administration Act, make regulations

(a) respecting deployments;

(b) defining the word “promotion” for the purposes of subsection 51(5);

(c) establishing periods of probation for the purposes of subsection 61(1) and notice periods for the purposes of subsection 62(1); and

(d) in respect of any occupational group or part of one, extending or changing to levels the provisions of this Act that apply to positions.

Policies of separate agencies

(2) A separate agency to which the Commission has exclusive authority to make appointments may make policies for the purposes referred to in subsection (1) in respect of the separate agency.

Consultation by employer

27. An employer shall, on request or if it considers consultation necessary or desirable,

(a) consult with the Commission, or any employee organization certified as a bargaining agent under the Public Service Labour Relations Act, with respect to regulations made under paragraph 26(1)(b) or (d) or corresponding policies made under subsection 26(2), as the case may be; and

(b) consult with any employee organization so certified with respect to regulations made under paragraph 26(1)(a) or (c) or corresponding policies made under subsection 26(2), as the case may be, or with respect to any standards established under subsection 31(1).


Annual Report — Treasury Board

President of Treasury Board

28. As soon as possible after the end of each fiscal year, the President of the Treasury Board shall prepare a report on the exercise of the Treasury Board’s responsibilities under this Act for that fiscal year, and shall cause the report to be laid before each House of Parliament.


Part 2. Appointments

Authority to Appoint

Commission’s exclusive authority

29. (1) Except as provided in this Act, the Commission has the exclusive authority to make appointments, to or from within the public service, of persons for whose appointment there is no authority in or under any other Act of Parliament.

Request of deputy head

(2) The Commission’s authority under subsection (1) may only be exercised at the request of the deputy head of the organization to which the appointment is to be made.

Commission policies

(3) The Commission may establish policies respecting the manner of making and revoking appointments and taking corrective action.


Basis of Appointment

Appointment on basis of merit

30. (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.

Meaning of merit

(2) An appointment is made on the basis of merit when

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and

(b) the Commission has regard to

(i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,

(ii) any current or future operational requirements of the organization that may be identified by the deputy head, and

(iii) any current or future needs of the organization that may be identified by the deputy head.

Needs of public service

(3) The current and future needs of the organization referred to in subparagraph (2)(b)(iii) may include current and future needs of the public service, as identified by the employer, that the deputy head determines to be relevant to the organization.

Interpretation

(4) The Commission is not required to consider more than one person in order for an appointment to be made on the basis of merit.

Qualification standards

31. (1) The employer may establish qualification standards, in relation to education, knowledge, experience, occupational certification, language or other qualifications, that the employer considers necessary or desirable having regard to the nature of the work to be performed and the present and future needs of the public service.

Qualifications

(2) The qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i) must meet or exceed any applicable qualification standards established by the employer under subsection (1).

Professional development programs

32. In respect of appointments made within the framework of any professional development or apprenticeship program that is offered across departments and other organizations, the qualifications, requirements and needs referred to in subsection 30(2) are established or identified by the Treasury Board with respect to organizations for which the Treasury Board is the employer.

Appointment processes

33. In making an appointment, the Commission may use an advertised or non-advertised appointment process.

Area of selection

34. (1) For purposes of eligibility in any appointment process, other than an incumbent-based process, the Commission may determine an area of selection by establishing geographic, organizational or occupational criteria or by establishing, as a criterion, belonging to any of the designated groups within the meaning of section 3 of the Employment Equity Act.

Designated groups

(2) The Commission may establish different geographic, organizational or occupational criteria for designated groups within the meaning of section 3 of the Employment Equity Act than for other persons.

Mobility — separate agencies

35. (1) Unless otherwise provided in any other Act, a person employed in a separate agency to which the Commission does not have the exclusive authority to make appointments

(a) may participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all employees to be considered, as long as the person meets the other criteria, if any, established under that section; and

(b) has the right to make a complaint under section 77.

Mobility — designated organizations

(2) A person not otherwise employed in the public service who is employed in any portion of the federal public administration designated under subsection (4)

(a) may participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all persons employed in the public service to be considered, as long as the person meets the other criteria, if any, established under that section; and

(b) has the right to make a complaint under section 77.

Mobility — employees of Tribunal

(3) A person employed by the Tribunal under subsection 95(1) may participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all employees to be considered, as long as the person meets the other criteria, if any, established under that section.

Designation

(4) The Governor in Council may, on the recommendation of the Commission, designate any portion of the federal public administration for the purposes of subsection (2).

Revocation

(5) The Governor in Council may, on the recommendation of the Commission, revoke any designation under subsection (4).

Mobility — members of the Canadian Forces

35.1 (1) A member of the Canadian Forces

(a) may participate in an advertised internal appointment process for which the organizational criterion established under section 34 entitles members of the Canadian Forces to be considered, as long as the member meets the other criteria, if any, established under that section; and

(b) has the right to make a complaint under section 77.

Deemed employment in public service

(2) A member who participates in a process referred to in subsection (1) is, for the purpose of the process, deemed to be a person employed in the public service.

Definition of “member”

(3) In this section, “member” means a person who is enrolled in the Canadian Forces.

2005, c. 21, s. 115.

Mobility — ministers’ staffs

35.2 A person who has been employed for at least three years in the office of a minister or of a person holding the recognized position of Leader of the Opposition in the Senate or Leader of the Opposition in the House of Commons, or in any of those offices successively,

(a) may, during a period of one year after they cease to be so employed, participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all employees to be considered, as long as they meet the other criteria, if any, established under that section; and

(b) has the right to make a complaint under section 77.

2006, c. 9, s. 101.

Parliamentary employees

35.3 A person employed in the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner

(a) may participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all employees to be considered, as long as the person meets the other criteria, if any, established under that section; and

(b) has the right to make a complaint under section 77.

2006, c. 9, s. 101.

Assessment methods

36. In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).

Language of examination

37. (1) An examination or interview, when conducted for the purpose of assessing qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i), other than language proficiency, shall be conducted in English or French or both at the option of the candidate.

Testing for language skills

(2) An examination or interview, when conducted for the purpose of assessing the qualifications of the candidate in the knowledge and use of English or French or both, or of a third language, shall be conducted in that language or those languages.

Exceptions to merit

38. Paragraph 30(2)(b) does not apply in relation to any appointment made under subsection 15(6) (re-appointment on revocation by deputy head), section 40 (priorities — surplus employees), subsection 41(1) or (4) (other priorities) or section 73 (re-appointment on revocation by Commission) or 86 (re-appointment following Tribunal order), or under any regulations made pursuant to paragraph 22(2)(a).

2003, c. 22, s. 12 “38”; 2006, c. 9, s. 102.

Previous Version

Preferences, Priorities and Entitlements

Preference to veterans and Canadian citizens

39. (1) In an advertised external appointment process, subject to any priorities established under paragraph 22(2)(a) and by sections 40 and 41, any of the following who, in the Commission’s opinion, meet the essential qualifications referred to in paragraph 30(2)(a) shall be appointed ahead of other candidates, in the following order:

(a) a person who is in receipt of a pension by reason of war service, within the meaning of the schedule;

(b) a veteran or a survivor of a veteran, within the meaning of the schedule; and

(c) a Canadian citizen, within the meaning of the Citizenship Act, in any case where a person who is not a Canadian citizen is also a candidate.

Application of merit

(2) Where the Commission is satisfied that two or more candidates described in any of paragraphs (1)(a) to (c) meet the essential qualifications referred to in paragraph 30(2)(a), paragraph 30(2)(b) applies in the selection of a person from among the candidates described in that paragraph.

Priority — surplus employees

40. Notwithstanding section 41, after a deputy head informs an employee that the employee will be laid off pursuant to subsection 64(1) and before the lay-off becomes effective, the Commission may appoint the employee in priority to all other persons to another position under the deputy head’s jurisdiction if the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) and that it is in the best interests of the public service to make the appointment.

Priority — persons on leave

41. (1) When an employee on leave of absence is replaced, pursuant to the appointment or deployment of another person for an indeterminate period to the employee’s position, priority for appointment shall be given over all other persons to

(a) the employee on leave of absence, for the duration of the leave of absence and a further period of one year; or

(b) if the employee on leave of absence returns to his or her position, the person who replaced that employee, for a period of one year after that employee returns to the position.

(2) and (3) (Repealed, 2006, c. 9, s. 103)

Priority — persons laid off

(4) Priority for appointment over all other persons shall be given, during the period determined by the Commission, to a person who is laid off pursuant to subsection 64(1).

Essential qualifications

(5) The priority of a person referred to in subsection (1) or (4) applies with respect to any position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

Order of priorities

(6) Persons described in subsection (1) shall be appointed in priority to persons described in subsection (4), and persons described in each of those subsections shall be appointed in the order determined by the Commission.

2003, c. 22, s. 12 “41”; 2006, c. 9, s. 103.

Previous VersionResumption of employment

41.1 (1) At the end of a leave of absence from employment that is taken by an employee who is a member of the reserve force in order to take part in an operation or activity referred to in paragraphs 247.5(1)(a) to (f) of the Canada Labour Code, the deputy head shall reinstate the employee in the position that the employee occupied on the day before the day on which the leave begins.

Workforce adjustment

(2) Despite subsection (1), if a deputy head is not able to reinstate the employee in that position by reason of a workforce adjustment, the workforce adjustment measures that are established by the employer or the measures that are set out in agreements relating to workforce adjustment apply.

2008, c. 15, s. 6.

Failure to appoint person on leave

42. A person who is entitled under subsection 41(1) to be appointed to a position and who is not so appointed in the applicable period provided for in that subsection ceases to be an employee at the end of that period.

Non-application of priority provisions

43. Notwithstanding sections 40 and 41 and any regulations made under paragraph 22(2)(a), if the Commission considers that the appointment of a person who has a right to be appointed in priority to other persons under any of those provisions will result in another person having a priority right, the Commission may decide not to apply that provision in that case.

Participation in advertised process — lay-offs

44. A person who is laid off under subsection 64(1) is entitled, during any period that the Commission determines for any case or class of cases, to participate in any advertised appointment process for which the person would have been eligible had the person not been laid off.

Non-application to term employees

45. Section 40, subsection 41(4) and section 44 do not apply to a person whose employment was for a specified term at the time they were informed that they would be laid off.

Deemed lay-off

46. For the purposes of subsection 41(4) and section 44, a person who, while employed in the public service, does not accept an offer of employment made in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act that is a reasonable job offer within the meaning of an agreement respecting work force adjustment or who accepts an offer of employment, made in such circumstances, that is not a reasonable job offer within the meaning of such an agreement, is deemed to be laid off.


Informal Discussion and Appointment

Informal discussion with employee

47. Where a person is informed by the Commission, at any stage of an internal appointment process, that the person has been eliminated from consideration for appointment, the Commission may, at that person’s request, informally discuss its decision with that person.

Persons being considered for appointment

48. (1) After the assessment of candidates is completed in an internal appointment process, the Commission shall, in any manner that it determines, inform the following persons of the name of the person being considered for each appointment:

(a) in the case of an advertised internal appointment process, the persons in the area of selection determined under section 34 who participated in that process; and

(b) in the case of a non-advertised internal appointment process, the persons in the area of selection determined under section 34.

Waiting period

(2) For the purposes of internal appointment processes, the Commission shall fix a period, beginning when the persons are informed under subsection (1), during which appointments or proposals for appointment may not be made.

Appointment or proposed appointment

(3) Following the period referred to in subsection (2), the Commission may appoint a person or propose a person for appointment, whether or not that person is the one previously considered, and the Commission shall so inform the persons who were advised under subsection (1).

Finality of appointments

49. The Commission’s decision to appoint a person or to propose a person for appointment is final and is not subject to appeal or review except in accordance with this Act.


Casual Employment

Appointment

50. (1) The Commission may appoint any person as a casual worker to that part of the public service to which the Commission has exclusive authority to make appointments.

Maximum period

(2) The period of employment of a casual worker may not exceed 90 working days in one calendar year in any particular department or other organization.

Application of Act

(3) The provisions of this Act, other than this section, do not apply to casual workers.

Ineligibility

(4) A casual worker is not eligible to be considered for appointment in any internal appointment process.

Term appointments

(5) This section does not affect the Commission’s authority to appoint a person to or from within the public service, other than on a casual basis, for a specified term of ninety working days or less.

50.1 Despite subsection 50(2), the maximum period of employment of casual workers appointed in the Office of the Chief Electoral Officer for the purposes of an election under the Canada Elections Act or a referendum held under the Referendum Act is 165 working days in one calendar year.

2007, c. 21, s. 40.


Part 3. Deployments

Authority of deputy heads to deploy

51. (1) Except as provided in this or any other Act, a deputy head may deploy employees to or within the deputy head’s organization.

Deployment from separate agencies

(2) Except as provided in this or any other Act, a deputy head may deploy to the deputy head’s organization persons who are employed in a separate agency to which the Commission does not have the exclusive authority to make appointments if the Commission has, after reviewing the staffing program of the separate agency at the agency’s request, approved deployments from it.

Deployment within or between groups

(3) A deployment may be made within an occupational group or, unless excluded by regulations under paragraph 26(1)(a), between occupational groups.

Treasury Board directives and regulations

(4) A deployment to or within an organization named in Schedule I or IV to the Financial Administration Act shall be made in the manner directed by the Treasury Board and in accordance with any regulations of the Treasury Board.

Employment status preserved

(5) The deployment of a person may not

(a) constitute a promotion, within the meaning of regulations of the Treasury Board, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or as determined by the separate agency, in the case of a separate agency to which the Commission has the exclusive authority to make appointments; or

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

Consent to deployment

(6) No person may be deployed without his or her consent unless

(a) agreement to being deployed is a condition of employment of the person’s current position; or

(b) the deputy head of the organization in which the person is employed finds, after investigation, that the person has harassed another person in the course of his or her employment and the deployment is made within the same organization.

Previous position

52. On deployment, a person ceases to be the incumbent of the position to which he or she had previously been appointed or deployed.

Deployment not an appointment

53. (1) A deployment is not an appointment within the meaning of this Act.

Exceptions to priority rights

(2) A deputy head may deploy a person without regard to any other person’s right to be appointed under subsection 41(1) or (4) or any regulations made pursuant to paragraph 22(2)(a).

2003, c. 22, s. 12 “53”; 2006, c. 9, s. 104.

Previous Version

Part 4. Employment

Oath or affirmation

54. A person appointed or deployed from outside that part of the public service to which the Commission has exclusive authority to make appointments shall take and subscribe an oath or solemn affirmation in the following form:

I, ...................., swear (or solemnly affirm) that I will faithfully and honestly fulfil the duties that devolve on me by reason of my employment in the public service of Canada and that I will not, without due authority, disclose or make known any matter that comes to my knowledge by reason of such employment. (Add, in the case where an oath is taken, “So help me God” (or name of deity).)

Effective date of appointment or deployment

55. The appointment or deployment of a person from outside that part of the public service to which the Commission has exclusive authority to make appointments takes effect on the later of the date that is agreed to in writing by the deputy head and that person and the date on which the person takes and subscribes the oath or solemn affirmation set out in section 54.

Effective date of appointment

56. (1) The appointment of a person from within that part of the public service to which the Commission has exclusive authority to make appointments takes effect on the date agreed to in writing by that person and the deputy head, regardless of the date of their agreement.

Effective date of deployment

(2) The deployment of a person from within that part of the public service to which the Commission has exclusive authority to make appointments takes effect

(a) on the date agreed to in writing by that person and the deputy head, regardless of the date of their agreement; or

(b) if the person’s consent to the deployment is not required, on the date fixed by the deputy head.

Indeterminate employment

57. Subject to this Act, any other Act and regulations made under this or any other Act, the period of an employee’s employment is indeterminate unless the deputy head has specified a term of employment.

Term appointment or deployment

58. (1) Subject to section 59, an employee whose appointment or deployment is for a specified term ceases to be an employee at the expiration of that term, or of any extension made under subsection (2).

Extension by deputy head

(2) A deputy head may extend a specified term referred to in subsection (1), and such an extension does not constitute an appointment or a deployment or entitle any person to make a complaint under section 77.

Acting appointments

(3) This section does not apply in respect of appointments made on an acting basis.

Conversion to indeterminate

59. (1) Unless the employee requests otherwise of the deputy head, the period of employment of an employee who is employed for a specified term as a result of an appointment or deployment is converted to indeterminate in the employee’s substantive position, at the end of the cumulative period of employment specified by the employer in circumstances prescribed by the employer.

Not an appointment or deployment

(2) A conversion under subsection (1) does not constitute an appointment or a deployment or entitle any person to make a complaint under section 77.

Rate of pay on appointment

60. The rate of pay on appointment to a position shall be determined by the employer within the scale of rates of pay for that position or for positions of the same occupational nature and level as that position.

Probationary period

61. (1) A person appointed from outside the public service is on probation for a period

(a) established by regulations of the Treasury Board in respect of the class of employees of which that person is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act; or

(b) determined by a separate agency in respect of the class of employees of which that person is a member, in the case of an organization that is a separate agency to which the Commission has exclusive authority to make appointments.

Effect of appointment or deployment

(2) A period established pursuant to subsection (1) is not terminated by any appointment or deployment made during that period.

Termination of employment

62. (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

(a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act, or

(b) the notice period determined by the separate agency in respect of the class of employees of which that employee is a member, in the case of a separate agency to which the Commission has exclusive authority to make appointments,

and the employee ceases to be an employee at the end of that notice period.

Compensation in lieu of notice

(2) Instead of notifying an employee under subsection (1), the deputy head may notify the employee that his or her employment will be terminated on the date specified by the deputy head and that they will be paid an amount equal to the salary they would have been paid during the notice period under that subsection.

Resignation

63. An employee may resign from the public service by giving the deputy head notice in writing of his or her intention to resign, and the employee ceases to be an employee on the date specified by the deputy head in writing on accepting the resignation, regardless of the date of the acceptance.

Laying off of employees

64. (1) Where the services of an employee are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside those portions of the federal public administration named in Schedule I, IV or V to the Financial Administration Act, the deputy head may, in accordance with the regulations of the Commission, lay off the employee, in which case the deputy head shall so advise the employee.

Selection of employees

(2) Where the deputy head determines under subsection (1) that some but not all of the employees in any part of the deputy head’s organization will be laid off, the employees to be laid off shall be selected in accordance with the regulations of the Commission.

Exception

(3) Subsection (1) does not apply where employment is terminated in the circumstances referred to in paragraph 12(1)(f) of the Financial Administration Act.

Effect of lay-off

(4) An employee ceases to be an employee when the employee is laid off.

Complaint to Tribunal re lay-off

65. (1) Where some but not all of the employees in a part of an organization are informed by the deputy head that they will be laid off, any employee selected for lay-off may make a complaint to the Tribunal, in the manner and within the time fixed by the Tribunal’s regulations, that his or her selection constituted an abuse of authority.

Limitation

(2) No complaint may be made under subsection (1) against the decision to lay off employees, the determination of the part of the organization from which employees will be laid off or the number of employees to be laid off from that part.

Right to be heard

(3) A complainant, every other employee in the part of the organization referred to in subsection (1), the deputy head and the Commission — or their representatives — are entitled to be heard by the Tribunal.

Lay-off set aside

(4) Where the Tribunal finds a complaint under subsection (1) to be substantiated, it may set aside the decision of the deputy head to lay off the complainant and order the deputy head to take any corrective action that it considers appropriate, other than the lay-off of any employee.

Notice to Canadian Human Rights Commission

(5) Where a complaint raises an issue involving the interpretation or application of the Canadian Human Rights Act, the complainant shall, in accordance with the regulations of the Tribunal, notify the Canadian Human Rights Commission of the issue.

Canadian Human Rights Commission

(6) Where the Canadian Human Rights Commission is notified of an issue pursuant to subsection (5), it may make submissions to the Tribunal with respect to that issue.

Application of Canadian Human Rights Act

(7) In considering whether a complaint is substantiated, the Tribunal may interpret and apply the Canadian Human Rights Act, other than its provisions relating to the right to equal pay for work of equal value.

Relief for discrimination

(8) Corrective action may include an order for relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.


Part 5. Investigations And Complaints Relating To Appointments

Investigation of Appointments by Commission

External appointments

66. The Commission may investigate any external appointment process and, if it is satisfied that the appointment was not made or proposed to be made on the basis of merit, or that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment, the Commission may

(a) revoke the appointment or not make the appointment, as the case may be; and

(b) take any corrective action that it considers appropriate.

Internal appointments — no delegation

67. (1) The Commission may investigate an internal appointment process, other than one conducted by a deputy head acting under subsection 15(1), and, if it is satisfied that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment, the Commission may

(a) revoke the appointment or not make the appointment, as the case may be; and

(b) take any corrective action that it considers appropriate.

Internal appointments — delegation

(2) The Commission may, at the request of the deputy head, investigate an internal appointment process that was conducted by a deputy head acting under subsection 15(1), and report its findings to the deputy head and the deputy head may, if satisfied that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment,

(a) revoke the appointment or not make the appointment, as the case may be; and

(b) take any corrective action that he or she considers appropriate.

Political influence

68. If it has reason to believe that an appointment or proposed appointment was not free from political influence, the Commission may investigate the appointment process and, if it is satisfied that the appointment or proposed appointment was not free from political influence, the Commission may

(a) revoke the appointment or not make the appointment, as the case may be; and

(b) take any corrective action that it considers appropriate.

Fraud

69. If it has reason to believe that fraud may have occurred in an appointment process, the Commission may investigate the appointment process and, if it is satisfied that fraud has occurred, the Commission may

(a) revoke the appointment or not make the appointment, as the case may be; and

(b) take any corrective action that it considers appropriate.

Powers of Commission

70. (1) In conducting any investigation under this Part, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.

Informality

(2) An investigation shall be conducted by the Commission as informally and expeditiously as possible.

Persons acting for Commission

71. (1) The Commission may direct that any investigation under this Part be conducted, in whole or in part, by one or more Commissioners or other persons.

Powers of Commissioner

(2) A Commissioner directed under subsection (1) has the powers referred to in section 70 in relation to the matter before the Commissioner.

Powers of other person

(3) Subject to any limitations specified by the Commission, a person directed under subsection (1), other than a Commissioner, has the powers referred to in section 70 in relation to the matter before the person.

Right to make submissions

72. Where an investigation is conducted under this Part in relation to a person’s appointment or proposed appointment, that person and the deputy head in relation to the appointment — or their representatives — are entitled to make submissions to the Commission, Commissioner or other person, whichever is conducting the investigation.

Re-appointment following revocation

73. Where the appointment of a person is revoked under any of sections 66 to 69, the Commission may appoint that person to another position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).


Complaints to Tribunal — Revocation of Appointment

Complaint

74. A person whose appointment is revoked by the Commission under subsection 67(1) or by the deputy head under subsection 15(3) or 67(2) may, in the manner and within the period provided by the Tribunal’s regulations, make a complaint to the Tribunal that the revocation was unreasonable.

Right to be heard

75. Where a complaint is made under section 74, the complainant, the deputy head and the Commission — or their representatives — are entitled to be heard by the Tribunal.

Revocation set aside

76. Where the Tribunal finds a complaint under section 74 to be substantiated, it may order the Commission or the deputy head, as the case may be, to set aside the revocation.


Complaints to Tribunal — Internal Appointments

Grounds of complaint

77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of

(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);

(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process; or

(c) the failure of the Commission to assess the complainant in the official language of his or her choice as required by subsection 37(1).

Area of recourse

(2) For the purposes of subsection (1), a person is in the area of recourse if the person is

(a) an unsuccessful candidate in the area of selection determined under section 34, in the case of an advertised internal appointment process; and

(b) any person in the area of selection determined under section 34, in the case of a non-advertised internal appointment process.

Excluded grounds

(3) The Tribunal may not consider an allegation that fraud occurred in an appointment process or that an appointment or proposed appointment was not free from political influence.

Notice to Canadian Human Rights Commission

78. Where a complaint raises an issue involving the interpretation or application of the Canadian Human Rights Act, the complainant shall, in accordance with the regulations of the Tribunal, notify the Canadian Human Rights Commission of the issue.

Right to be heard

79. (1) A person making a complaint under section 77, the person appointed or proposed for appointment, the deputy head and the Commission — or their representatives — are entitled to be heard by the Tribunal.

Canadian Human Rights Commission

(2) Where the Canadian Human Rights Commission is notified of an issue pursuant to section 78, it may make submissions to the Tribunal with respect to that issue.

Application of Canadian Human Rights Act

80. In considering whether a complaint under section 77 is substantiated, the Tribunal may interpret and apply the Canadian Human Rights Act, other than its provisions relating to the right to equal pay for work of equal value.

Corrective action when complaint upheld

81. (1) If the Tribunal finds a complaint under section 77 to be substantiated, the Tribunal may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Tribunal considers appropriate.

Relief for discrimination

(2) Corrective action taken under subsection (1) may include an order for relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.

Restrictions

82. The Tribunal may not order the Commission to make an appointment or to conduct a new appointment process.

Failure of corrective action

83. Where the Commission has made or proposed an appointment as a result of the implementation of corrective action ordered under section 81, a complaint may be made to the Tribunal, in the manner and within the period provided by its regulations, by

(a) the person who made the complaint under section 77,

(b) the person who was the subject of the appointment or proposed appointment referred to in subsection 77(1), or

(c) any other person directly affected by the implementation of the corrective action,

on the grounds that the person was not appointed or proposed for appointment by reason of an abuse of authority by the Commission or deputy head in the implementation of the corrective action.

Powers of Tribunal

84. Where the Tribunal finds a complaint under section 83 to be substantiated, it may

(a) order the Commission or the deputy head to revoke the appointment made as a result of the implementation of the corrective action, or not to make the appointment, as the case may be; and

(b) give the Commission or the deputy head any directions that it considers appropriate with respect to the implementation of the corrective action.

Right to be heard

85. In the consideration of a complaint made under section 83, the persons entitled to be heard by the Tribunal are the persons entitled to make a complaint under that section in respect of the corrective action, the person appointed or proposed for appointment as a result of the corrective action, the deputy head and the Commission, or their representatives.

Appointment to other position

86. Where the appointment of a person is revoked pursuant to subsection 81(1), the Commission may appoint that person to another position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

Where no right to complain

87. No complaint may be made under section 77 in respect of an appointment under subsection 15(6) (re-appointment on revocation by deputy head), section 40 (priorities — surplus employees), subsection 41(1) or (4) (other priorities) or section 73 (re-appointment on revocation by Commission) or 86 (re-appointment following Tribunal order), or under any regulations made pursuant to paragraph 22(2)(a).

2003, c. 22, s. 12 “87”; 2006, c. 9, s. 105.

Previous Version

Part 6. Public Service Staffing Tribunal

Composition and Mandate

Tribunal continued

88. (1) The Public Service Staffing Tribunal is continued, consisting of between five and seven permanent members appointed by the Governor in Council and any temporary members that are appointed under section 90.

Mandate

(2) The mandate of the Tribunal is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83.

Eligibility

(3) In order to be eligible to hold office as a member, a person must

(a) be a Canadian citizen within the meaning of the Citizenship Act or a permanent resident within the meaning of the Immigration and Refugee Protection Act; and

(b) have knowledge of or experience in employment matters in the public sector.

Full-time or part-time

(4) Members shall be appointed on a full-time or part-time basis.

Chairperson and Vice-Chairperson

(5) The Governor in Council shall designate a full-time permanent member to be Chairperson of the Tribunal and a full-time or part-time permanent member to be its Vice-Chairperson.

Residence of Chairperson

(6) The Chairperson shall reside in the National Capital Region as described in the schedule to the National Capital Act or within the distance of it specified by the Governor in Council.

Tenure

89. (1) A permanent member of the Tribunal holds office during good behaviour for a term not exceeding five years, but may be removed for cause by the Governor in Council.

Reappointment

(2) A permanent member is eligible to be reappointed.

Temporary members

90. (1) The Governor in Council may appoint temporary members of the Tribunal whenever, in the Governor in Council’s opinion, the workload of the Tribunal so requires.

Tenure

(2) A temporary member of the Tribunal holds office during good behaviour for a term not exceeding two years, but may be removed for cause by the Governor in Council.

Reappointment

(3) A temporary member is eligible to be reappointed.

Carrying out functions

91. Members shall not accept or hold any office or employment or carry on any activity inconsistent with their functions, and full-time members shall devote the whole of their time to the performance of their functions.

Remuneration

92. (1) A member shall be paid the remuneration fixed by the Governor in Council.

Expenses

(2) Members are entitled to be paid reasonable travel and other expenses incurred by them in the course of their duties while absent from, in the case of full-time members, their ordinary place of work and, in the case of part-time members, their ordinary place of residence.

Application of Public Service Superannuation Act

(3) Full-time members are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

Application of other Acts

(4) All members are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.

Offices

93. (1) The head office of the Tribunal shall be in the National Capital Region described in the schedule to the National Capital Act and the Tribunal may, with the approval of the Governor in Council, establish any regional offices that it considers necessary to carry out its mandate.

Services and facilities

(2) In executing its mandate, the Tribunal may use any services and facilities of departments, boards and agencies of the Government of Canada that are appropriate for the operation of the Tribunal.

Chief executive officer

94. (1) The Chairperson of the Tribunal is its chief executive officer and has supervision over and direction of the work of the Tribunal, including the assignment of complaints to members and the determination of the date, time and place of hearings.

Delegation by Chairperson

(2) The Chairperson may authorize the Vice-Chairperson to exercise any of the Chairperson’s powers or perform any of the Chairperson’s functions.

Absence of Chairperson

(3) If the Chairperson is absent or unable to act or the office of Chairperson is vacant, the Vice-Chairperson shall act as the Chairperson and, while so acting, has all the powers and shall perform all the duties of the Chairperson.

Acting Chairperson

(4) If both the Chairperson and the Vice-Chairperson are absent or unable to act or if both of their offices are vacant, the minister designated under section 110 may authorize a permanent member or other qualified person to act as Chairperson for a period not exceeding 60 days and the Governor in Council may authorize a permanent member or other qualified person to act as Chairperson for any longer period.

Human resources

95. (1) The Chairperson may employ persons for the proper conduct of the Tribunal’s work, fix their period of employment, establish their probationary periods, reject them on probation and lay them off.

Experts and advisers

(2) The Chairperson may retain on a temporary basis the services of mediators and other experts or persons having technical or special knowledge to assist the Tribunal in an advisory capacity and, subject to the approval of the Treasury Board, fix their remuneration.

Application of Public Service Superannuation Act

(3) Persons retained under subsection (2) are not employed in the public service for the purposes of the Public Service Superannuation Act.

Political activities

96. Part 7 applies to persons employed by the Tribunal as if they were employees as defined in subsection 2(1).


Complaint Procedure

Mediation services

97. (1) The Tribunal may provide mediation services at any stage of a proceeding in order to resolve a complaint.

Member as mediator

(2) The provision of mediation services by a member at any stage of hearing a complaint does not prevent that member from continuing to hear the complaint with respect to any issues that have not been resolved, unless the Commission or any person entitled to be heard objects to that member continuing.

Hearing by single member

98. (1) A complaint shall be determined by a single member of the Tribunal, who shall proceed as informally and expeditiously as possible.

Decision of member

(2) A decision made by a member is a decision of the Tribunal.

Powers of Tribunal

99. (1) The Tribunal has, in relation to a complaint, the power to

(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner and to the same extent as a superior court of record;

(b) order that a hearing be conducted using any means of telecommunication that permits all persons participating to communicate adequately with each other;

(c) administer oaths and solemn affirmations;

(d) accept any evidence, whether admissible in a court of law or not;

(e) compel, at any stage of a proceeding, any person to produce any documents and things that may be relevant; and

(f) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of an employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliances or articles in the premises and require any person in the premises to answer all proper questions relating to the complaint.

Dismissing complaint

(2) The Tribunal may summarily dismiss any complaint that, in its opinion, is frivolous or vexatious.

Decision without oral hearing

(3) The Tribunal may decide a complaint without holding an oral hearing.

Former member continuing to act

100. At any time within eight weeks after a person resigns or otherwise ceases to hold office as a member of the Tribunal, the person may, at the request of the Chairperson, dispose of any matter previously heard by that person and, for that purpose, the person is deemed to be a part-time member.

Copy of decision provided

101. The Tribunal shall render a decision on a complaint made under subsection 65(1) or section 74, 77 or 83 and provide a copy of it — including any written reasons — and any accompanying order to the Commission and to each person who exercised the right to be heard on the complaint.

Decisions final

102. (1) Every decision of the Tribunal is final and may not be questioned or reviewed in any court.

No review by certiorari, etc.

(2) No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Tribunal in relation to a complaint.

Filing of order in Federal Court

103. (1) The Commission or any person to whom an order of the Tribunal applies may, after the day specified for compliance or, if no such day is specified in the order, not sooner than 30 days after the day the order was made, file in the Federal Court a certified true copy of the order.

Effect of filing

(2) On the filing of an order, it becomes an order of the Federal Court and may be enforced as such.


General

Members not compellable as witnesses

104. Members of the Tribunal, persons employed by the Tribunal and persons retained under subsection 95(2) are not competent or compellable to appear as a witness in any civil proceedings respecting information obtained in the discharge of their functions.

Notes and drafts not to be disclosed

105. None of the following may be disclosed without the consent of the person who made them:

(a) notes or draft orders or decisions of the members of the Tribunal; and

(b) notes of any person providing mediation services under this Part.

Immunity from proceedings

106. No criminal or civil proceedings lie against a member of the Tribunal, or any person acting on behalf of the Tribunal for anything done or omitted to be done by that member or that person in good faith under this Part.

Oath or affirmation

107. Before commencing his or her functions, a person appointed as a member of the Tribunal shall take an oath or make a solemn affirmation in the following form before a commissioner of oaths or other person having authority to administer oaths or solemn affirmations:

I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgement, skill and ability, execute and perform the office of member (or Chairperson or Vice-Chairperson) of the Public Service Staffing Tribunal. (Add, in the case where an oath is taken, “So help me God” (or name of deity).)

Payment of witness fees

108. A person who is summoned by a member of the Tribunal to attend as a witness at any proceeding of the Tribunal is entitled to receive fees and allowances for so attending equal to those to which the person would be entitled if summoned to attend before the Federal Court.


Regulations and Report

Regulations of Tribunal

109. The Tribunal may make regulations respecting

(a) the manner in which and the time within which a complaint may be made under subsection 65(1) or section 74, 77 or 83;

(b) the procedure for the hearing of complaints by the Tribunal;

(c) the time within which, and the persons to whom, notices and other documents must be given in relation to complaints and when the notices are deemed to have been sent, given or received;

(d) the manner of giving notice of an issue to the Canadian Human Rights Commission under subsection 65(5) or section 78; and

(e) the disclosure of information obtained in the course of an appointment process or a complaint proceeding under this Act.

Annual report

110. (1) The Chairperson shall, as soon as possible after the end of each fiscal year, prepare and transmit to the minister designated by the Governor in Council for the purposes of this section a report for that fiscal year in respect of matters under the Tribunal’s jurisdiction.

Tabling in Parliament

(2) The minister to whom the report is transmitted shall cause the report to be laid before each House of Parliament within the first fifteen days on which that House is sitting after the minister receives it.


Part 7. Political Activities

Interpretation

Definitions

111. (1) The following definitions apply in this Part.

“election”

« élection »

“election” means a federal, provincial, territorial or municipal election.

“federal election”

« élection fédérale »

“federal election” means an election to the House of Commons.

“municipal election”

« élection municipale »

“municipal election” means an election as the mayor or a member of the council of a municipality.

“municipality”

« municipalité »

“municipality” means

(a) an incorporated or unincorporated regional municipality, city, town, village, rural municipality, township, county, district or other municipality, however designated; or

(b) any other local or regional authority that is determined by the Governor in Council to be a municipality for the purposes of this Part.

“political activity”

« activité politique »

“political activity” means

(a) carrying on any activity in support of, within or in opposition to a political party;

(b) carrying on any activity in support of or in opposition to a candidate before or during an election period; or

(c) seeking nomination as or being a candidate in an election before or during the election period.

“provincial election”

« élection provinciale »

“provincial election” means an election to the legislature of a province.

“territorial election”

« élection territoriale »

“territorial election” means an election to the Council of the Northwest Territories or the Legislative Assembly of Yukon or of Nunavut.

Meaning of “deputy head”

(2) For the purposes of this Part, “deputy head” includes a Commissioner appointed under subsection 4(5) and the Chairperson of the Tribunal designated under subsection 88(5).

2003, c. 22, ss. 12 “111”, 272.

class ="PITLink" href="/eng/acts/PPrevious Version

Purpose of Part

Purpose

112. The purpose of this Part is to recognize the right of employees to engage in political activities while maintaining the principle of political impartiality in the public service.


Employees

Permitted activities

113. (1) An employee may engage in any political activity so long as it does not impair, or is not perceived as impairing, the employee’s ability to perform his or her duties in a politically impartial manner.

Regulations

(2) The Governor in Council may, on the recommendation of the Commission, make regulations specifying political activities that are deemed to impair the ability of an employee, or any class of employees, to perform their duties in a politically impartial manner.

Factors

(3) In making regulations, the Governor in Council may take into consideration factors such as the nature of the political activity and the nature of the duties of an employee or class of employees and the level and visibility of their positions.

Seeking candidacy

114. (1) An employee may seek nomination as a candidate in a federal, provincial or territorial election before or during the election period only if the employee has requested and obtained permission from the Commission to do so.

Being a candidate before election period

(2) An employee may, before the election period, be a candidate in a federal, provincial or territorial election only if the employee has requested and obtained permission from the Commission to do so.

Being a candidate during election period

(3) An employee may, during the election period, be a candidate in a federal, provincial or territorial election only if the employee has requested and obtained a leave of absence without pay from the Commission.

Granting of permission

(4) The Commission may grant permission for the purpose of subsection (1) or (2) only if it is satisfied that the employee’s ability to perform his or her duties in a politically impartial manner will not be impaired or perceived to be impaired.

Granting of leave

(5) The Commission may grant leave for the purpose of subsection (3) only if it is satisfied that being a candidate during the election period will not impair or be perceived as impairing the employee’s ability to perform his or her duties in a politically impartial manner.

Factors

(6) In deciding whether seeking nomination as, or being, a candidate will impair or be perceived as impairing the employee’s ability to perform his or her duties in a politically impartial manner, the Commission may take into consideration factors such as the nature of the election, the nature of the employee’s duties and the level and visibility of the employee’s position.

Conditions

(7) The Commission may make permission under subsection (4) conditional on the employee taking a leave of absence without pay for the period or any part of the period in which he or she seeks nomination as a candidate, or for the period or any part of the period in which he or she is a candidate before the election period, as the case may be.

Effect of election

(8) An employee ceases to be an employee on the day he or she is declared elected in a federal, provincial or territorial election.

Candidacy in municipal elections

115. (1) An employee may seek nomination as, or be, a candidate in a municipal election before or during the election period, only if the employee has requested and obtained permission from the Commission to do so.

Granting of permission

(2) The Commission may grant permission only if it is satisfied that seeking nomination as, or being, a candidate in the election will not impair or be perceived as impairing the employee’s ability to perform his or her duties in a politically impartial manner.

Factors

(3) In deciding whether seeking nomination as, or being, a candidate will impair or be perceived as impairing the employee’s ability to perform his or her duties in a politically impartial manner, the Commission may take into consideration factors such as the nature of the election, the nature of the employee’s duties and the level and visibility of the employee’s position.

Conditions

(4) The Commission may make permission under this section conditional on

(a) the employee taking a leave of absence without pay

(i) for the period or any part of the period in which he or she seeks nomination as a candidate, or for the period or any part of the period in which he or she is a candidate before the election period, as the case may be, or

(ii) for the period in which he or she is a candidate during the election period; and

(b) the employee taking a leave of absence without pay or ceasing to be an employee if he or she is declared elected.

Notice

116. On granting an employee permission under subsection 114(4), leave under subsection 114(5) or permission under subsection 115(2), the Commission shall cause notice that it has done so, together with the name of that employee, to be published in the Canada Gazette.


Deputy Heads

Political activities

117. A deputy head shall not engage in any political activity other than voting in an election.


Allegations

Investigation and corrective action — employees

118. The Commission may investigate any allegation, in accordance with the regulations, that an employee has failed to comply with any of subsections 113(1), 114(1) to (3) and 115(1) and, if it concludes that the allegation is substantiated, may dismiss the employee or may take any corrective action that it considers appropriate.

Investigation and dismissal — deputy head

119. (1) The Commission may investigate any allegation, made to it by a person who is or has been a candidate in an election, that a deputy head has contravened section 117 and, if it concludes that the allegation is substantiated, the Commission shall report its conclusion to the Governor in Council and the Governor in Council may dismiss the deputy head.

Exception

(2) Subsection (1) does not apply in respect of any deputy head whose removal from office is expressly provided for by this or any other Act, otherwise than by termination of his or her appointment at pleasure.

Powers under Inquiries Act

120. In conducting any investigation under this Part, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.

Persons acting for Commission

121. (1) The Commission may direct that any investigation under this Part be conducted, in whole or in part, by one or more Commissioners or other persons.

Powers of Commissioner

(2) A Commissioner directed under subsection (1) has the powers referred to in section 120 in relation to the matter before the Commissioner.

Powers of other person

(3) Subject to any limitations specified by the Commission, a person directed under subsection (1), other than a Commissioner, has the powers referred to in section 120 in relation to the matter before the person.

Right to be heard

122. A person making an allegation under section 118 or 119 and the employee or deputy head against whom it is made — or their representatives — are entitled to be heard by the Commission, Commissioner or other person, whichever is conducting the investigation.


Part 8. General

Application of Act

Regulations of Governor in Council

123. (1) The Governor in Council may, notwithstanding any other Act, make regulations applying to any organization or any part of any organization all or any of the provisions of this Act that do not otherwise apply to it.

Application of other Acts

(2) A regulation made under subsection (1) prevails over the provisions of any other Act or regulations made under any other Act respecting the same matter.

Application of regulations

124. A regulation made by the Commission, the Treasury Board or the Governor in Council under this Act may be of general application or may apply to a specified person, position, occupational group, organization or part of an organization, or any class of them, or in respect of a specified process or any class of process.


Head of Public Service

Appointment by Governor in Council

125. The Governor in Council may appoint and fix the remuneration of the Clerk of the Privy Council and Secretary to the Cabinet.

Clerk of Privy Council

126. The Clerk of the Privy Council and Secretary to the Cabinet is the head of the public service.

Report of head of the public service

127. The head of the public service shall submit a report on the state of the public service in each fiscal year to the Prime Minister, and the Prime Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Prime Minister receives it.


Deputy Ministers and Other Senior Officials

Appointment by Governor in Council

127.1 (1) The Governor in Council may appoint persons to the following positions and fix their remuneration:

(a) deputy minister, associate deputy minister and positions of equivalent ranks;

(b) deputy head, associate deputy head and positions of equivalent ranks; and

(c) special adviser to a minister.

Application of Part 7

(2) For greater certainty, the provisions of Part 7 applicable to deputy heads apply to persons appointed as such or as deputy ministers under subsection (1), and the provisions of that Part applicable to employees apply to other persons appointed under subsection (1).

2006, c. 9, s. 106.


Ministerial Staff

Ministerial staff

128. (1) A minister, or a person holding the recognized position of Leader of the Opposition in the House of Commons or Leader of the Opposition in the Senate, may appoint an executive assistant and other persons required in his or her office.

Termination of employment

(2) A person who is employed in an office referred to in subsection (1) ceases to be so employed thirty days after the person holding a position referred to in subsection (1) ceases to hold that position.

Regulations

129. The Governor in Council may make regulations applying all or any of the provisions of this Act to any of the positions of persons appointed by ministers under subsection 128(1).


Public Officials

Appointments by Governor in Council

130. The Governor in Council may appoint and fix the remuneration of

(a) the Secretary to the Cabinet for Federal-Provincial Relations;

(b) the Clerk of the Senate;

(c) the Clerk of the House of Commons; and

(d) the Secretary to the Governor General.


Diplomatic Personnel

Diplomatic appointments

131. Nothing in this Act shall be construed as affecting the right or authority of Her Majesty to appoint ambassadors, ministers, high commissioners or consuls-general of Canada to another country or to appoint other persons to represent Canada in another country.


Block Transfers

Transfer of employees

132. (1) Nothing in an order made under the Public Service Rearrangement and Transfer of Duties Act shall be construed as affecting the status of an employee who, immediately before the coming into force of the order, occupied a position in a portion of the core public administration the control or supervision of which has been transferred from one department or other portion of the core public administration to another, or in a department that has been amalgamated and combined, except that the employee shall, on the coming into force of the order, occupy that position in the department or other portion of the core public administration to which the control or supervision has been transferred or in the department as amalgamated and combined.

Transfer of other staff

(2) Where an order is made under the Public Service Rearrangement and Transfer of Duties Act, the Governor in Council may, by order made on the recommendation of the Treasury Board and where the Governor in Council is of the opinion that an employee or class of employees is carrying out powers, duties or functions that are in whole or in part in support of or related to the powers, duties and functions of employees referred to in subsection (1) and that it is in the best interests of the core public administration to do so, declare that the employee or class of employees shall, on the coming into force of the order, occupy their positions in the department or other portion of the core public administration where the employees referred to in subsection (1) are currently occupying their positions.

Core public administration

(3) For the purposes of this section, the core public administration consists of the departments, as defined in subsection 2(1), and the portions of the federal public administration named in Schedule IV to the Financial Administration Act.


Offence

Fraud

133. Every person who commits fraud in any appointment process is guilty of an offence punishable on summary conviction.


Oaths and Affirmations

Authority to administer

134. The Commission or a deputy head may administer oaths and receive affidavits, declarations and solemn affirmations in relation to matters within their respective jurisdictions under this Act.


Access to Facilities and Information

Access by Commission

135. Deputy heads and employees shall provide the Commission with any facilities, assistance, information and access to their respective offices that the Commission may require for the performance of its duties.


Five-year Review

Review

136. The minister designated by the Governor in Council for the purposes of this section shall cause a review of this Act and its administration and operation to be conducted five years after this section comes into force, and that minister shall cause a report of the review to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the review is completed.

Schedule

(Subsection 39(1))

Definitions

1. For the purposes of subsection 39(1) and this Schedule,

“common-law partner”

conjoint de fait

“common-law partner”, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year;

“member of the Women’s Royal Naval Services”

personnel du Corps féminin de la Marine royale

“member of the Women’s Royal Naval Services” means a person who

(a) enrolled in the Women’s Royal Naval Service,

(b) enrolled in Queen Alexandra’s Royal Naval Nursing Service or the reserve therefor, or

(c) enrolled as a medical or dental practitioner employed with the Medical Branch or Dental Branch of the Royal Navy with naval status for general service;

“person in receipt of a pension by reason of war service”

pensionné de guerre

“person in receipt of a pension by reason of war service” means a person who

(a) is in receipt of a pension

(i) by reason of service in World War I, or

(ii) by reason of service only in World War II, and who at the commencement of such service was domiciled in Canada or Newfoundland,

(b) has, from causes attributable to that service lost capacity for physical exertion to an extent that makes the person unfit to pursue efficiently the vocation that the person was pursuing before the war, and

(c) has not been successfully re-established in any other vocation;

“survivor of a veteran”

survivant d’un ancien combattant

“survivor of a veteran” means the surviving spouse or surviving common-law partner of a person who, being a veteran, died from causes arising during the service by virtue of which the person became a veteran;

“veteran”

ancien combattant

“veteran” means, subject to subsection 2(1) of this Schedule, a person who

(a) during World War I was on active service overseas in the naval, army or air forces or who served on the high seas in a seagoing ship of war in the naval forces of His Majesty or of any of the Allies of His Majesty, and who has left that service with an honourable record or has been honourably discharged,

(b) during World War II was on active service

(i) in the naval, army or air forces of His Majesty or of any of His Majesty’s Allies and at the commencement of that active service was domiciled in Canada or Newfoundland, or

(ii) in the naval, army or air forces of Canada, and, not being domiciled in Canada at the commencement of that active service, is a Canadian citizen,

and who, in the course of that service,erformed duties outside of the Western Hemisphere, or on the high seas in a ship or other vessel service that was, at the time the person performed those duties, classed as “sea time” for the purpose of the advancement of naval ratings, or that would have been so classed had the ship or other vessel been in the service of the naval forces of Canada,

(c) during World War II served as a member of the Women’s Royal Naval Services or as a member of the South African Military Nursing Service outside of the Western Hemisphere and who, at the commencement of her service during World War II, was domiciled in Canada or Newfoundland,

(d) has been certified by the Deputy Minister of Foreign Affairs as having been enrolled in Canada or Newfoundland by United Kingdom authorities for special duty during World War II in war areas outside of the Western Hemisphere, and who served outside of the Western Hemisphere, and at the time of enrolment was domiciled in Canada or Newfoundland, or

(e) during World War II served outside of the Western Hemisphere with the naval, army or air forces of His Majesty raised in Canada or Newfoundland as a representative of Canadian Legion War Services, Inc., the National Council of the Young Men’s Christian Associations of Canada, Knights of Columbus Canadian Army Huts, or Salvation Army Canadian War Services, was authorized so to serve by the appropriate naval, army or air force authority and who, at the commencement of that service with those forces during World War II, was domiciled in Canada or Newfoundland;

“Western Hemisphere”

hémisphère occidental

“Western Hemisphere” means the continents of North and South America, the islands adjacent thereto and the territorial waters thereof, including Newfoundland, Bermuda and the West Indies, but excluding Greenland, Iceland and the Aleutian Islands;

“World War I”

Première Guerre mondiale

“World War I” means the war declared by His Majesty on August 4, 1914 against the Empire of Germany and subsequently against other powers;

“World War II”

Seconde Guerre mondiale

“World War II” means the war declared by His Majesty on the September 10, 1939 against the German Reich and subsequently against Italy, Finland, Hungary, Rumania and Japan.

2. (1) The definition “veteran” in section 1 of this Schedule does not include a person who

(a) served outside of the Western Hemisphere or on the high seas only in that the person was a passenger in an aircraft, ship or other vessel, or only in that the person underwent a limited period of training in an aircraft, ship or other vessel incidental to a program of instruction, or

(b) by reason of the misconduct of the person, since September 10, 1939, ceased to serve in the naval, army or air forces of His Majesty or of any of His Majesty’s Allies, to be a member of the Women’s Royal Naval Services or the South African Military Nursing Service, to be enrolled for the special duty mentioned in the definition “veteran” in section 1 of this Schedule or to serve with the forces as a representative of Canadian Legion War Services Inc., the National Council of the Young Men’s Christian Associations of Canada, Knights of Columbus Canadian Army Huts or Salvation Army Canadian War Services.

(2) For th purpose of determining whether a person is a veteran, World War II is deemed to have terminated

(a) in respect of service in connection with operations in the European and Mediterranean Theatres of War, on May 8, 1945; and

(b) in respect of service in connection with operations in the Pacific Theatre of War, on August 15, 1945.


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