Regulations Amending the Public Service Employment Regulations: SOR/2024-295

Canada Gazette, Part II, Volume 159, Number 2

Registration
SOR/2024-295 December 30, 2024

PUBLIC SERVICE EMPLOYMENT ACT

The Public Service Commission makes the annexed Regulations Amending the Public Service Employment Regulations under section 22footnote a of the Public Service Employment Act footnote b.

Gatineau, December 23, 2024

Marie-Chantal Girard
President of the Public Service Commission

Fiona Spencer
Commissioner

Hélène Laurendeau
Commissioner

Regulations Amending the Public Service Employment Regulations

Amendments

1 The definition acting appointment in section 1 of the Public Service Employment Regulations footnote 1 is replaced by the following:

acting appointment
means an appointment for the temporary performance of the duties of another position by an employee, if the assignment to the employee of those duties constitutes a promotion within the meaning of section 3 of the Definition of Promotion Regulations. (nomination intĂ©rimaire)

2 Subsection 4(2) of the English version of the Regulations is replaced by the following:

Non-application — certain persons

(2) The entitlement to appointment in priority established by sections 5, 7, 9 and 10 does not apply to an employee who is employed for a specified term.

3 (1) Paragraph 4.1(5)(a) of the Regulations is replaced by the following:

(2) Subsection 4.1(5) of the Regulations is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

4 Subsection 5(2) of the Regulations is amended by adding “and” at the end of paragraph (a) and by repealing paragraph (b).

5 (1) The portion of subsection 7(1) of the Regulations before paragraph (a) is replaced by the following:

Employee unable to carry out their duties

7 (1) An employee referred to in subsection (4) who, as a result of a disability, is no longer able to carry out the duties of their position is entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and subsections 41(1) and (4) of the Act, to any position in the public service for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act if

(2) Paragraph 7(2)(a) of the Regulations is replaced by the following:

(3) Subsection 7(2) of the Regulations is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

(4) Section 7 of the Regulations is amended by adding the following after subsection (3):

Additional entitlement period

(3.1) A person whose entitlement under subsection (1) ended within the period beginning on April 1, 2022 and ending on March 31, 2025 as a result of the operation of paragraph (2)(a), as that provision read on March 31, 2025, is entitled to an additional entitlement period that begins on April 1, 2025 and ends on the earliest of

(5) The portion of subsection 7(4) of the Regulations before paragraph (a) is replaced by the following:

Application

(4) This section applies in respect of an employee who qualifies for disability compensation under

6 (1) Paragraph 7.1(3)(a) of the Regulations is replaced by the following:

(2) Subsection 7.1(3) of the Regulations is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

(3) Section 7.1 of the Regulations is amended by adding the following after subsection (3):

Additional entitlement period

(4) A person whose entitlement under subsection (1) ended within the period beginning on April 1, 2022 and ending on March 31, 2025 as a result of the operation of paragraph (3)(a), as that provision read on March 31, 2025, and who is not, on April 1, 2025, already employed in the public service for an indeterminate period is entitled to an additional entitlement period that begins on April 1, 2025 and ends on the earliest of

7 (1) Paragraph 8(2)(a) of the Regulations is replaced by the following:

(2) Subsection 8(2) of the Regulations is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):

8 Sections 8.01 and 8.02 of the Regulations are repealed.

9 (1) Paragraph 8.1(2)(c) of the Regulations is replaced by the following:

(2) Subsection 8.1(3) of the Regulations is replaced by the following:

Exception — additional period to make request

(3) A spouse or common-law partner is deemed to satisfy paragraph (2)(c) if they

(3) The portion of subsection 8.1(4) of the Regulations before paragraph (b) is replaced by the following:

Entitlement period

(4) The entitlement period begins on the day on which the request is made and ends on the earliest of

(4) Subsection 8.1(4) of the English version of the Regulations is amended by striking out “and” at the end of paragraph (b) and by replacing paragraph (c) with the following:

(5) Subsection 8.1(4) of the Regulations is amended by adding the following after paragraph (c):

10 Paragraphs 9(2)(b) and (c) of the Regulations are replaced by the following:

11 (1) Subsection 10(1) of the Regulations is replaced by the following:

Reinstatement

10 (1) The following employees are entitled to appointment in priority to all persons, other than those referred to in sections 39.1 and 40 and subsections 41(1) and (4) of the Act, to any position in the public service referred to in subsection (1.1) for which the Commission is satisfied that the employee meets the essential qualifications referred to in paragraph 30(2)(a) of the Act:

Eligible positions

(1.1) The position must be at a level that is

(2) The portion of subsection 10(2) of the Regulations before paragraph (c) is replaced by the following:

Entitlement period

(2) The entitlement period begins on the day of the appointment, deployment or conversion and ends on the earliest of

(3) Paragraph 10(2)(c) of the French version of the Regulations is replaced by the following:

(4) Section 10 of the Regulations is amended by adding the following after subsection (2):

Interpretation — lower level

(3) For the purpose of paragraphs (1)(a) and (b) and  (2)(b), a position is at a lower level than another position if the assignment of the duties of that other position — to an employee whose substantive level, as defined in section 1 of the Definition of Promotion Regulations, corresponds to the position in question — would constitute a promotion within the meaning of section 3 of those Regulations.

Interpretation — higher level

(4) For the purpose of subsection (1.1), a position is at a higher level than another position if the assignment of the duties of the position in question — to an employee whose substantive level, as defined in section 1 of the Definition of Promotion Regulations, corresponds to the other position — would constitute a promotion within the meaning of section 3 of those Regulations.

12 The portion of section 11 of the Regulations before paragraph (b) is replaced by the following:

Lay-off

11 The periods referred to in subsection 41(4) and section 44 of the Act begin on the day on which the person is laid off and end on the earliest of

13 (1) The portion of section 17 of the Regulations before paragraph (a) is replaced by the following:

Rotational position

17 Despite sections 14 to 16, an acting appointment is excluded from the operation of sections 30 and 77 of the Act if it is to a position in a rotational system that is established by the deputy head in any of the following organizations and requires the movement of employees among places of work, at least one of which is outside Canada:

(2) Paragraph 17(b) of the Regulations is replaced by the following:

14 Subsection 20(2) of the Regulations is replaced by the following:

Standardized test

(2) For the purpose of subsection (1), a standardized test is a systematic procedure for sampling an individual’s behaviour in order to assess job-relevant characteristics. The procedure is systematic in five areas: development, content, administration, scoring and communication of results. The content of the test is equivalent for all test-takers. The test is administered according to standard instructions and procedures and is scored according to a set protocol.

15 Sections 21 to 23 of the Regulations are replaced by the following:

Notice

21 (1) A deputy head must, before laying off an employee under section 64 of the Act, provide a written notice to the employee that includes

Employees retained

(2) The deputy head must notify in writing any employee referred to in subsection 22(3) who is not selected for lay-off that they are to be retained.

Non-application — specified term

(3) This section does not apply in respect of an employee who is appointed for a specified term.

Selection of employees for lay-off

22 (1) For the purpose of subsection 64(2) of the Act, the selection of the employees to be laid off in any part of an organization in which the deputy head has determined that the services of some but not all of the employees are no longer required must be conducted in accordance with subsections (2) to (8).

Determination of qualifications, requirements and needs

(2) For each category of employees of the same occupational group and level who are either employed in similar positions or performing similar duties in the part of the organization referred to in subsection (1), if the services of some but not all of those employees are no longer required, the deputy head must determine

Information

(3) The deputy head must inform, in writing, all employees who belong to a category referred to in subsection (2) of

Assessment methods

(4) The deputy head may, subject to subsections (5) and (6), use any assessment method that they consider appropriate, such as a review of past performance and accomplishments, interviews and examinations, to assess the employees.

Identification of biases and barriers

(5) Before using an assessment method, the deputy head must 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 a bias or barrier is identified, make reasonable efforts to remove it or to mitigate its impact on those persons.

Second language assessment

(6) Any assessment of an employee’s proficiency in their second official language must be conducted using the same methods as apply to appointments to or from within the public service.

Language of examination or interview

(7) Any examination or interview must

Assessment and selection

(8) The deputy head must assess the employees having regard to the factors determined under subsection (2) and must select which of the employees are to be laid off.

Volunteers

(9) Despite subsections (1) to (8), if an employee volunteers to be laid off, the deputy head may advise the employee that their services are no longer required and may lay off the employee.

Recording reasons

(10) The deputy head must record the reasons for selecting or not selecting each employee for lay-off.

Non-application — specified term

(11) This section does not apply in respect of an employee who is appointed for a specified term.

Transitional Provisions

16 (1) For the purpose of subsection (2), Directive means the Work Force Adjustment Directive that was issued on the recommendation of the National Joint Council of the Public Service and with the approval of the Treasury Board and came into force on December 15, 1991, as amended from time to time.

(2) Section 21 of the Public Service Employment Regulations, as it read immediately before the day on which section 15 of these Regulations comes into force, continues to apply in respect of the lay-off of an employee who, before that day, is advised in writing that they are an affected employee within the meaning of the Directive or their collective agreement or is advised in writing, in accordance with the Directive or their collective agreement, that they are subject to a workforce adjustment situation.

(3) Section 22 of the Public Service Employment Regulations, as enacted by section 15 of these Regulations, does not apply in respect of the lay-off of an employee referred to in subsection (2).

Coming into Force

17 (1) Subject to subsection (2), these Regulations come into force on the 30th day after the day on which they are registered.

(2) Sections 2 to 12 come into force on April 1, 2025.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Currently, the Public Service Employment Regulations (the current Regulations) prescribe, among other things, rules in relation to priority entitlements, appointments and the lay-off regime that support the Public Service Employment Act (PSEA). The current Regulations have remained almost unchanged for over a decade. During this time, the staffing system has evolved and, therefore, a review has been undertaken to ensure the current Regulations continue to support the PSEA and to meet current and emerging needs of departments and agencies that fall within the jurisdiction of the PSEA.

Objective

The main objective of the amendments is to ensure that the current Regulations remain relevant and continue to meet current and emerging needs of departments and agencies that fall within the jurisdiction of the PSEA, as well as to eliminate requirements that are no longer necessary.

Specific objectives are listed below:

Description

The Public Service Commission (the Commission) is responsible for establishing the current Regulations, which give effect to the PSEA, so that Canadians will continue to benefit from a professional and non-partisan public service. Section 22 of the PSEA provides the Commission with the authority to make regulations.

The Regulations Amending the Public Service Employment Regulations (the amending Regulations) modify the current Regulations. Most of the content and intent of the current Regulations is retained. Specifically, the amending Regulations maintain the requirements around incumbent-based processes and executive group — underfill and overfill, make minor modifications to the acting appointments provisions and disclosure of information obtained in the course of an investigation, and modify or add requirements to the interpretation, priority entitlements and lay-off provisions.

Interpretation

The amending Regulations modify the definition of acting appointment to specify that the term “promotion” must be understood within the meaning of section 3 of the Definition of Promotion Regulations, thereby prescribing that the calculation methods provided for in those regulations be used to determine if an acting appointment occurs.

Disclosure of information obtained in the course of an investigation

Within the context of disclosure of information pertaining to standardized tests obtained in the course of an investigation, the amending Regulations broaden the definition of a standardized test to include non-competency-based tests.

Priority entitlements

The current Regulations establish, for certain classes of persons, a right to be appointed in priority of others. The period of entitlements and the conditions under which the entitlements will cease are specified in the current Regulations. Most of these provisions remain; however, some amendments are made and are listed below.

New parameter concerning the end of a priority entitlement

The amending Regulations add provisions that end priority entitlements upon accepting or declining indeterminate placement without good and sufficient reason, regardless of the type of mechanism used, including conversion of the period of employment from term to indeterminate under subsection 59(1) of the PSEA, and deployment for an indeterminate period.

Surplus entitlement

The amending Regulations harmonize when the surplus entitlement ends in the current Regulations with the surplus entitlement of the PSEA, so that the entitlement ends upon indeterminate placement or when the lay-off becomes effective.

Title change — Employee who becomes disabled

The amending Regulations change the title of a priority entitlement from “employee who becomes disabled” in the current Regulations to “employee unable to carry out their duties.” The requirement and application of the priority entitlement remain the same; however, the formulation of the provision is amended to better reflect the intent of the priority entitlement.

Extension and additional entitlement period — Employee unable to carry out their duties

The amending Regulations extend the entitlement period of employees unable to carry out their dutiesfootnote 2 from two years to five years.

The amending Regulations also provide employees unable to carry out their duties, whose two-year priority entitlement ended within the period beginning on April 1, 2022, and ending on March 31, 2025, with an additional three-year priority entitlement. The intent is to provide these persons with a total of five years of priority entitlement. The additional three years of priority entitlement is not provided to those whose priority entitlement ended due to an indeterminate appointment or deployment or refusal thereof without good and sufficient reason.

Extension and additional entitlement period — Royal Canadian Mounted Police discharge for medical reasons

The amending Regulations extend the entitlement period of persons discharged from the Royal Canadian Mounted Police for medical reasons from two years to five years.

The amending Regulations also provide persons discharged from the Royal Canadian Mounted Police for medical reasons, whose two-year priority entitlement ended within the period beginning on April 1, 2022, and ending on March 31, 2025, and who are not on April 1, 2025, already employed in the public service for an indeterminate period, with an additional three-year priority entitlement. The intent is to provide these persons with a total of five years of priority entitlement. The additional three years of priority entitlement is not provided to those whose priority entitlement ended due to an indeterminate appointment or deployment or refusal thereof without good and sufficient reason.

Extension and additional request period — Surviving spousal or common-law partner

The period allowed to make a request for surviving spousal or common-law partners priority entitlement is extended from two to five years in the amending Regulations.

The amending Regulations also provide persons whose two-year period to request the surviving spousal or common-law partner priority entitlement ended during the three-year period prior to the coming into force of this provision with an additional three years to request the priority entitlement. The intent is to allow these persons with a total of five years to make a request.

Reinstatement priority entitlement

The current Regulations provide for a reinstatement priority entitlement for persons with a priority entitlementfootnote 3 who are appointed or deployed to a lower level than the public service position they held, so they can be appointed or deployed to any position in the public service that is of a level that is not higher than the position that triggered the entitlement.

In the amending Regulations, this priority entitlement also applies to persons with a priority entitlement whose period of employment was converted to indeterminate under subsection 59(1) of the PSEA in a position that is at a lower level than the public service position they held prior to the start of their initial priority entitlement.

Moreover, the scope of this priority entitlement is clarified so that the priority applies only to positions in the public service that are at a higher level than the employee’s current position. In order to be more precise, the amending Regulations prescribe that the Definition of Promotion Regulations is to be used in the determination of what constitutes a position at a lower or higher level.

In addition, persons with a priority entitlement under section 39.1 of the PSEA, i.e. Canadian Forces — released for medical reasons attributable to service, are removed from the types of persons with a priority entitlement who can benefit from the reinstatement priority entitlement. Given that Canadian Forces members are not public service employees and that positions in the Canadian Forces cannot be compared to public service positions to determine whether they are at a lower level, this entitlement is not applicable to them, and the amendment corrects this anomaly.

Obsolete transitional provisions

The amending Regulations repeal transitional provisions that are no longer necessary, as no individuals could have these entitlements given their timelines, namely, in the current Regulations, priority entitlement to

Acting appointments

Rotational positions

The current Regulations exclude acting appointments to rotational positions from merit, from the application of priority entitlements, and from notice and recourse to the Federal Public Sector Labour Relations and Employment Board. The current Regulations further define a rotational position as one that is part of a rotational system established by the deputy head for the purpose of providing for the movement of employees within and outside Canada for the Department of Citizenship and Immigration, the Department of Foreign Affairs and International Trade, and the Canada Border Services Agency.

The amending Regulations clarify the intent of this provision by specifying that a rotational system requires the movement of employees among places of work, at least one of which is outside Canada. Moreover, the name of the Department of Foreign Affairs and International Trade is amended to reflect the name provided for in the Financial Administration Act, namely the Department of Foreign Affairs, Trade and Development.

Lay-off provisions

The current Regulations do not provide a clear distinction between direct identification for lay-off, pursuant to subsection 64(1) of the PSEA, and the selection of employees for retention or for lay-off as per subsection 64(2), which are two types of lay-off exercises.

The amending Regulations clarify the lay-off provisions of the current Regulations that apply to the selection of employees for retention or for lay-off (i.e. when some, but not all, the employees in any part of the deputy head’s organization will be laid off), as opposed to those that apply to all lay-offs. They also clarify that when only one employee in a unique position is to be laid off, or when all the employees in the part of the organization are to be laid off, there is no need to select them.

Notice to employees

The amending Regulations increase transparency and communication requirements for both the identification and the selection of employees for retention or for lay-off.

Laid-off employees

The amending Regulations provide that all employees to be laid off be notified, in writing, of the reason for which their services are no longer required, the date on which their services will no longer be required, a statement indicating that they are to be laid off, and their proposed lay-off date,footnote 4 if it is known; if it is not known, a statement indicating that they will be informed, in writing, of that date once it is known.

Laid-off employees identified through a selection of employees for retention or lay-off process

In addition to the communication requirements outlined above, the amending Regulations also provide that all employees who have been selected for lay-off following a selection of employees for retention or for lay-off process be notified, in writing, of the reason for which they have been selected for the lay-off (that is, the qualification[s], requirement[s], need[s] used to make the selection); and a statement that they may make a complaint under subsection 65(1) of the PSEA.

Employees retained

The amending Regulations provide that employees who are not selected for lay-off following a selection of employees for retention or lay-off process are informed, in writing, that they are to be retained.

Determination — Employees part of a selection for retention or lay-off process

As for selection of employees for retention or for lay-off, the amending Regulations provide that, for each occupational group and level for which lay-offs are to take place, in the relevant part of the organization, the deputy head has the responsibility to determine the employees who are at the same occupational group and level and who are either employed in similar positions or performing similar duties.

When there are employees in different occupational groups or levels, or when employees in the same occupational group and level perform different duties or are employed in positions that are not similar, different processes are conducted: one for each occupational group and level where some but not all the employees will be selected for lay-off.

Determination of qualifications, requirements and needs

The amending Regulations provide that when, in any part of the organization, some but not all of the employees at the same occupational group and level who are either employed in similar positions or are performing similar duties are to be laid off, the deputy head determines the qualifications, requirements or needs most relevant for the work to be performed or for the organization, currently or in the future. The qualifications that are the most relevant are a subset of merit and must consist of essential qualifications (including official language proficiency), and may include asset qualifications, operational requirements and/or organizational needs.

Information

The amending Regulations provide that the deputy head informs employees, in writing, of the qualifications, requirements and needs against which they will be assessed, the assessment methods to be used, and the opportunity and process to request accommodation measures.

Assessment methods

The amending Regulations provide that the deputy head may use any assessment method that they consider appropriate to determine to what extent an employee meets the most relevant qualifications, requirements and needs.

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

Moreover, the amending Regulations provide that when assessing the employee’s proficiency in their second official language, the assessment must be conducted using the same methods as those applied to appointments to or within the public service.

Language of examination or interview

The amending Regulations provide that examinations or interviews conducted for the purpose of assessing qualifications, requirements or needs, other than language proficiency, shall be conducted in English or French or both, at the option of the employee, and that those conducted for the purpose of assessing the qualifications of the employee 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.

Assessment and selection

The amending Regulations provide that when, in any part of the organization, some but not all of the employees are to be laid off, employees at the same occupational group and level who are either employed in similar positions or are performing similar duties must be assessed against the most relevant qualifications, requirements or needs for the work to be performed or for the organization, currently or in the future, as determined by the deputy head. The deputy head then selects which employees to lay off.

Volunteers

The amending Regulations provide that, if an employee volunteers to be laid off, the deputy may advise the employee that their services are no longer required and lay off the employee.

Recording the reasons

The amending Regulations expand record-keeping requirements to include reasons for the selection of employees for retention or for lay-off. Specifically, it provides that deputy heads are to record the reasons for their selection of employees for retention or for lay-off decisions, for both the decision to retain an employee and the decision to lay off an employee.

Ship Repair group

The current Regulations provide for the use of merit and seniority factors for the Ship Repair occupational group at the Department of National Defence in the context of selection of employees for lay-off. This provision is not included in the amending Regulations, which harmonizes the way those processes are conducted for all occupational groups in the public service.

Informing the Commission

The requirement in the current Regulations to inform the Commission of the names of the employees who are to be laid off and of their proposed lay-off date is no longer necessary and is not a requirement in the amending Regulations. The original reason for this requirement was to ensure that persons with a priority entitlement would be registered by the Commission in the Commission’s inventory so that they could be marketed for placement as a result of their priority. The Commission clarified that departments and agencies are now responsible for registering their own persons with a priority entitlement in the Commission’s inventory in a timely manner.

Regulatory development

Consultation

Initial consultation

Initially, an environmental scan was conducted internally and externally to the Commission aimed at seeking views of key stakeholders on the application of the current Regulations and soliciting thoughts on opportunities to enhance these Regulations. Based on the intelligence gathered, proposals were developed. The concepts and elements that underpin the proposed regulatory model were shared with departments and agencies within the federal public service, bargaining agents (unions), subject matter experts (including employment equity and diversity and official languages experts), the Office of the Chief Human Resources Officer and Treasury Board Secretariat (TBS). The main consultations were held in 2020, and the mechanisms used ranged from presentations at internal and external committees to formal consultation products sent by email.

A thorough analysis was made of the comments received on the proposed model to determine if any changes were required. While there was a general support of the proposal, some areas of concern were raised. In some cases, some adjustments were made to the proposal, to respond to the views of stakeholders. For example,

It should be noted that the scope of the review was revised. Despite proposed amendments shared in initial consultations, acting appointment provisions are not modified at this time, apart from minor revisions.

Consultation on the evaluation of assessment methods for bias and barriers and the use of seniority in the context of selection of employees for retention or lay-off

Independent of this regulatory initiative, an amendment to the PSEA regarding the evaluation of assessment methods for biases and barriers in the context of appointments came into force on July 1, 2023. In addition, following collective bargaining in spring 2023, the Public Service Alliance of Canada (PSAC) and TBS agreed, via a letter of agreement, to submit a proposal to the Commission with respect to the use of seniority in the context of workforce adjustment situations.

In October 2023, TBS recommended that the Commission consider and study the possibility of including seniority, along with considerations related to employment equity and merit in workforce adjustment situations where some but not all employees are to be laid off. In fall 2023, the Commission reopened consultations to allow stakeholders to provide their input on these two aspects. Stakeholders consulted were departments and agencies, the employer, bargaining agents and employment equity, diversity and inclusion networks.

The majority of the respondents were supportive and expressed strong support for the Commission’s proposal to apply the evaluation of assessment methods for biases and barriers in the context of the selection of employees for retention or for lay-off.

On the topic of the use of seniority in the context of the selection of employees for retention or for lay-off, most departments and agencies who responded expressed support for not using seniority and harmonizing the lay-off provisions across all occupational groups, including the repeal of the current seniority-related provision for the Ship Repair occupational group at the Department of National Defence. However, the bargaining agents who submitted responses were opposed to the proposal, stressing that seniority provides a fairer, more transparent method for lay-offs, and causes less stress for employees. A bargaining agent also advocated for “equitable seniority” whereby the selection of employees for lay-off would be solely based on seniority, and maintaining or increasing employment equity representation. As for the employment equity, diversity and inclusion networks, half of the respondents supported the proposal while the other half either did not support it, had no opinion on the subject or did not provide comments. Some of the networks acknowledged the difficulty in making workforce adjustment decisions while trying to uphold employment equity representation and expressed that equity considerations should be rigorously and consistently applied in the context of the selection of employees for retention or for lay-off.

Comments received through the prepublication period

The proposed amendments were published in the Canada Gazette, Part I, on September 7, 2024, for a 30-day consultation period. A total of 21 stakeholders, including departments and agencies, the employer and only one bargaining agent, PSAC, provided feedback on the proposed amendments. Some stakeholders provided their comments anonymously. Comments provided were generally supportive of the proposed amendments or provided comments that will be used to inform the Commission’s guidance and communications on implementing the amending Regulations. However, PSAC expressed disagreement with some proposals through a submission by email. Also, some comments were received but were not relevant in the context of this initiative and as such are not addressed in the Regulatory Impact Analysis Statement.

Priority entitlements provisions

Several comments were in relation to the “employee unable to carry out their duties.” Most of these comments mentioned the need to clarify that although the title of the priority entitlement is proposed to be amended, the qualification requirements and application of the priority entitlement remain unchanged. As a result, these comments will be taken into consideration in the guidance development to ensure it clearly outlines the scope of this amendment. In addition, PSAC recommended that the definition of disability be consistent with the Canadian Human Rights Act, that the five-year condition to be ready to return to work be eliminated, that this priority entitlement be ranked first on the regulatory priority list and that, depending on the disability, more than five years’ entitlement be granted. Making these amendments would create a misalignment for priority entitlements stemming from a medical reason and would not be coherent with the Commission’s intent to harmonize them. Therefore, these comments did not lead to any changes to the Regulations. Some of the comments expressed that it could have been an opportunity to expand this entitlement to all prohibited grounds of discrimination other than disability. Since the objective is to provide a priority entitlement to employees who qualify for a disability compensation under one of the plans set out in the regulations, these comments did not lead to any changes to the Regulations.

There were comments on a variety of provisions such as the reinstatement priority, the surviving spousal or common-law priority, the extension and additional priority entitlement period, the repeal of paragraph 5(2)b) of the current Regulations as well as the end of priority entitlement due to term conversion. Those comments were minor and did not lead to any changes to the Regulations.

Lay-off provisions

Most of the comments received raised the importance of updating the selection of employees for lay-off guidance to help departments and agencies understand the requirements set out in the Regulations and interpret them accordingly. Consequently, those comments did not lead to any changes to the Regulations; however, the guidance will be updated to ensure consistency with the amending Regulations.

In addition, PSAC expressed disappointment that seniority was not included as a factor in a selection of employees for retention or lay-off process and urged the Commission to reconsider its position affirming “equitable seniority” is a superior system to select employees for lay-off allowing for a fair and transparent process that is less stressful for employees and protects their mental health. This comment was considered; however, in order to align selection of employees for lay-off with the Commission’s role of safeguarding merit not just at time of appointment but also when laying off, this comment did not lead to any changes to the Regulations.

Coming-into-force date

A commenter expressed a concern with the coming-into-force date of the Regulations 30 days after its registration, mentioning it is a short period to implement the amendments related to the priority entitlement provisions and that a longer delay between registration and coming into force would allow proper readiness.

As a result, a change was made to the coming into force to provide that all regulatory provisions related to “priorities” will come into force on the specified date of April 1, 2025, and that all other regulatory provisions will come into force 30 days following the registration of the amending Regulations.

Modern treaty obligations and Indigenous engagement and consultation

In accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, a preliminary assessment was conducted for this initiative, and there did not appear to be any implications relating to Canada’s modern treaty obligations.

Instrument choice

The regulatory-making authority respecting the matters covered in the Public Service Employment Regulations is vested to the Commission by the PSEA. The Commission may make any regulations that it considers necessary to give effect to the provisions of the PSEA relating to matters under its jurisdiction. Specifically, subsection 22(2) authorizes the Commission to make regulations that pertain to specific matters, such as defining incumbent-based processes for the purpose of subsection 34(1) of the PSEA, priorities, acting appointments, appointments to and within the executive group, disclosure of information obtained in the course of an investigation, and lay-offs.

Several of the provisions of the current Regulations give effect to the provisions of the PSEA, and address situations involving an individual’s right. Given the same matters present in the current Regulations are being modernized, and that no new powers are being exercised, it was determined that the appropriate choice was to amend the current Regulations. Also, regulations were not established where the effect could be better achieved by other means such as policy and guidelines.

Regulatory analysis

Benefits and costs

A cost-benefit analysis was completed and determined that the overall net costs associated with the initiative are minimal and less than one million dollars annually.

It is anticipated that the amending Regulations will have a minimal impact on resources for federal public service departments and agencies. Organizational staffing frameworks and other internal documents will have to be updated to reflect the modified requirements stemming from the initiative.

In addition, departments and agencies will have to learn and adjust to the new regime. However, it is believed that this will not yield significant costs to departments and agencies, given that the amended regime is a modernized version of the current Regulations, which have been in effect for almost 20 years and are widely known and understood by the human resources specialists and the hiring managers of departments and agencies that fall within the jurisdiction of the PSEA.

The cost associated with implementing the amending Regulations will be compensated by efficiencies gained in the departments and agencies’ staffing regime. For instance, the amending Regulations will increase the return on investment through the facilitated retention of persons with a priority entitlement. The granting of a longer priority entitlement period to a certain portion of the priority population will increase their chances of securing continued permanent employment in the federal public service. It is also aligned with the Government of Canada’s priorities, such as the Accessibility Strategy.

Small business lens

The employment regime of the federal public service has no cost impact on small businesses in Canada. Therefore, the small business lens does not apply.

One-for-one rule

The amending Regulations will not result in any administrative burden on industry. As a result, the one-for-one rule does not apply.

Regulatory cooperation and alignment

The amending Regulations do not have a regulatory cooperation and alignment component.

Effects on the environment

In accordance with the Cabinet Directive on Strategic Environmental and Economic Assessment, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

This initiative will ensure that the Public Service Employment Regulations continue to support the PSEA and to meet current and emerging needs of departments and agencies that fall within the jurisdiction of the PSEA. A gender-based analysis plus (GBA+) assessment was conducted to determine the amending Regulations’ impact on diverse groups. It is anticipated that the amending Regulations will not result in any disproportionate impacts on any group of persons related to identity factors. The assessment determined the amending Regulations will safeguard gender equality and diversity objectives.

The amending Regulations aim to reduce or eliminate barriers for priority persons and surviving spouses or common-law partners. Therefore, several aspects were considered, including harmonization of priority entitlements to ensure cohesion and equality, transparency, fairness, improved retention of public service talent and inclusion of persons with disabilities, which supports the Government of Canada’s Accessibility Strategy. For instance, harmonizing the priority entitlement period for persons with a priority entitlement attributed to medical reasons will allow equitable employment opportunities to those affected, which may result in an increased placement rate.

In addition, an amendment to the PSEA regarding the evaluation of assessment methods to identify biases or barriers in the context of appointments came into force on July 1, 2023. With an aim to strengthen diversity and inclusion, the amending Regulations add a new requirement to identify biases or barriers in the context of assessment of employees for retention or lay-off and make efforts to remove or mitigate their impact on persons belonging to any equity-seeking group.

Implementation, compliance and enforcement, and service standards

Implementation

The amending Regulations will come into force on the 30th day after the day on which they are registered, except for the provisions related to priority entitlements, which will come into force on April 1, 2025. Transitional provisions provide that the current Regulations continue to apply to lay-off processes for which written notices were already provided before the day the amending provisions related to lay-offs come into force. This will allow a smooth and logical transition.

Once the amending Regulations are published in the Canada Gazette, Part II, departments and agencies, the employer and the bargaining agents will be informed.

The amending Regulations and supporting documents, including a transition guide, will be made available to support departments and agencies with the implementation of the amending Regulations. The Commission’s guidance will also be updated accordingly. Information sessions may be provided to explain the changes.

Compliance and enforcement

Through its oversight activities, the Commission monitors, audits and can investigate the practices followed by departments and agencies in applying the Public Service Employment Regulations.

In addition, in accordance with the Public Service Commission’s Appointment Policy, as a component of their ongoing monitoring of their staffing systems, deputy heads of departments and agencies that fall within the jurisdiction of the PSEA must assess, on a cyclical basis, adherence to the requirements established in the PSEA and other applicable regulations, which includes the Public Service Employment Regulations. Deputy heads are responsible for ensuring that appropriate remedial action is taken to address any deficiencies, and to report to the Commission the results of their organizational cyclical assessment.

Contact

Sandrine Diotte-Chénier
Manager
Regulations and Staffing Complaints Section
Policy and Strategic Directions Directorate
Public Service Commission of Canada
Email: cfp.examenrefp-pserreview.psc@cfp-psc.gc.ca