Public Service Employment Act

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

The following definitions apply in this Act.

Board means the Federal Public Sector Labour Relations and Employment Board referred to in subsection 4(1) of the Federal Public Sector Labour Relations and Employment Board Act. (Commission des relations de travail et de l’emploi)

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

department means

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

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

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

deployment means the transfer of a person from one position to another in accordance with Part 3. (mutation)

deputy head

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

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

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. (administrateur général)

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

employer means

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

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

equity-seeking group means a group of persons who are disadvantaged on the basis of one or more prohibited grounds of discrimination within the meaning of the Canadian Human Rights Act. (groupe en quête d’équité)

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. (processus de nomination externe)

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

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. (ministre)

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

public service means the several positions in or under

the departments named in Schedule I to the Financial Administration Act;

the organizations named in Schedule IV to that Act; and

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

separate agency means an organization named in Schedule V to the Financial Administration Act. (organisme distinct)

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. (administrateur général au titre de la loi)

Tribunal[Repealed, 2013, c. 40, s. 403]

In this Act, unless the context otherwise requires,

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

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.

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.

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

A reference in this Act to an error, an omission or improper conduct shall be construed as including an error, an omission or improper conduct that results from a bias or barrier that disadvantages persons who belong to any equity-seeking group.

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.

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

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.

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

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.

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.

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.

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.

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).)

The Commissioners shall be paid the remuneration determined by the Governor in Council.

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.

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

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.

The President is the chief executive officer of the Commission.

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.

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.

A majority of the Commissioners constitutes a quorum of the Commission.

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

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

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

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.

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

The mandate of the Commission is

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

to conduct investigations and audits in accordance with this Act; and

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

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

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.

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 Federal Public Sector 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.

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.

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

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.

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.

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.

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).

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).

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.

The power to conduct audits includes the power to determine whether there are biases or barriers that disadvantage persons belonging to any equity-seeking group.

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

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

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

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.

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.

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.

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).

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.

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.

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

establishing for any person or class of persons a right to be appointed — in priority to all persons other than those referred to in sections 39.1 and 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);

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

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;

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;

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;

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

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

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;

respecting the manner of laying off employees and the manner of selecting employees to be laid off, for the purposes of section 64; and

prescribing circumstances for the purposes of section 50.2.

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.

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.

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.

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.

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.

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,

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

any other person designated by the Governor in Council.

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

respecting deployments;

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

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

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

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.

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

consult with the Commission, or any employee organization certified as a bargaining agent under the Federal Public Sector 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

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).

[Repealed, 2012, c. 19, s. 222]

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.

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.

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

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.

An appointment is made on the basis of merit when

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

the Commission has regard to

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,

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

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

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.

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

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.

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).

When establishing or reviewing qualification standards, the employer shall conduct an evaluation to identify whether they include or create biases or barriers that disadvantage persons belonging to any equity-seeking group. If a bias or barrier is identified in the course of the evaluation, the employer shall make reasonable efforts to remove it or to mitigate its impact on those persons.

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.

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

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.

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.

Unless otherwise provided in this or any other Act, a person employed in a separate agency to which the Commission does not have the exclusive authority to make appointments

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

has the right to make a complaint under section 77.

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

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

has the right to make a complaint under section 77.

[Repealed, 2013, c. 40, s. 404]

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).

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

A member of the Canadian Forces who has accumulated at least three years of service and is not employed in the public service for an indeterminate period

may participate in an advertised internal appointment process; and

has the right to make a complaint under section 77.

For the purpose of paragraph (1)(a), if a criterion in relation to belonging to any of the designated groups, as defined in section 3 of the Employment Equity Act, is established under section 34, the member shall meet that criterion.

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.

In this section, member means a person who is enrolled in the Canadian Forces.

A person who is not enrolled in the Canadian Forces, has served at least three years in the Canadian Forces, has been honourably released within the meaning of regulations made under the National Defence Act and is not employed in the public service for an indeterminate period

may, during a period of five years after their date of release, participate in an advertised internal appointment process; and

has the right to make a complaint under section 77.

A person 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.

For the purpose of paragraph (1)(a), if a criterion in relation to belonging to any of the designated groups, as defined in section 3 of the Employment Equity Act, is established under section 34, the person shall meet that criterion.

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,

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

has the right to make a complaint under section 77.

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

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

has the right to make a complaint under section 77.

In making an appointment, the Commission may, subject to subsection (2), 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).

Before using an assessment method, the Commission shall conduct an evaluation to identify whether the assessment method and the manner in which it will be applied includes or creates biases or barriers that disadvantage persons belonging to any equity-seeking group and, if one is identified, make reasonable efforts to remove it or to mitigate its impact on those persons.

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.

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.

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 39.1 (priority — members of the Canadian Forces) or 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 Board order), or under any regulations made under paragraph 22(2)(a).

In an advertised external appointment process, subject to any priorities established under paragraph 22(2)(a) and by sections 39.1, 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 person who is in receipt of a pension by reason of war service, within the meaning of the schedule;

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

a Canadian citizen, within the meaning of the Citizenship Act, and a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, in any case where a person who is not a Canadian citizen or permanent resident is also a candidate.

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.

With respect to a veteran referred to in paragraph (f) of the definition veteran within the meaning of the schedule, the order of appointment set out in subsection (1) is valid for a period of five years after the veteran’s date of release.

Despite sections 40 and 41, priority for appointment over all other persons is to be given, during the period determined by the Commission, to a person who was released from the Canadian Forces for medical reasons that the Minister of Veterans Affairs determines are attributable to service, who belongs to a class determined by the Commission and who meets the requirements established by the Commission.

A person referred to in subsection (1) has a priority for appointment with respect to any position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).

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.