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Public Service Employment Act

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:

Short Title

Marginal note:Short title

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

Interpretation

Marginal note:Definitions

2 (1) The following definitions apply in this Act.
Board
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
Commission means the Public Service Commission continued by subsection 4(1). (Commission)
department
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. (ministère)
deployment
deployment means the transfer of a person from one position to another in accordance with Part 3. (mutation)
deputy head
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. (administrateur général)
employee
employee means a person employed in that part of the public service to which the Commission has exclusive authority to make appointments. (fonctionnaire)
employer
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. (employeur)
external appointment process
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
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
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
organization means any portion of the federal public administration named in Schedule I, IV or V to the Financial Administration Act. (administration)
public service
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. (fonction publique)
separate agency
separate agency means an organization named in Schedule V to the Financial Administration Act. (organisme distinct)
statutory deputy head
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
Tribunal[Repealed, 2013, c. 40, s. 403]
Marginal note:References to deputy head
(2) In this Act, unless the context otherwise requires,
- (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.
Marginal note: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.
Marginal note: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
2013, c. 40, s. 403
2017, c. 9, s. 48

Marginal note:Descriptive 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 1Public Service Commission, Deputy Heads and Employer

Commission

Marginal note:Commission continued

4 (1) The Public Service Commission is continued, consisting of a President and two or more other Commissioners.
Marginal note: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.
Marginal note:Full-time or part-time
(3) The President shall serve on a full-time basis and the other Commissioners on a part-time basis.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).)

Marginal note:Salaries

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

Marginal note:President

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

Marginal note:Quorum

7 (1) A majority of the Commissioners constitutes a quorum of the Commission.
Marginal note:Vacancy
(2) A vacancy in the membership of the Commission does not impair the right of the remaining Commissioners to act.

Marginal note: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.

Marginal note:Human resources

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

Marginal note: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.
Marginal note: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

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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 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.

2003, c. 22, s. 12 “14”
2017, c. 9, s. 55

Delegation by Commission to Deputy Heads

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

Marginal note: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

Marginal note: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.

Marginal note:Powers of Commission

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

Marginal note: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.
Marginal note: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.
Marginal note: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

Marginal note: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.
Marginal note: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.
Marginal note: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).

Marginal note: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

Marginal note: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.
Marginal note: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 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);
- (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;
- (i) respecting the manner of laying off employees and the manner of selecting employees to be laid off, for the purposes of section 64; and
- (j) prescribing circumstances for the purposes of section 50.2.

2003, c. 22, s. 12 “22”
2006, c. 9, s. 100
2013, c. 18, s. 59
2015, c. 5, s. 2

Reports — Commission

Marginal note: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.
Marginal note: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.
Marginal note: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

Marginal note: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.
Marginal note: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.

Marginal note: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

Marginal note: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.
Marginal note: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.

Marginal note: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 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
(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).

2003, c. 22, s. 12 “27”
2017, c. 9, s. 55

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

PART 2Appointments

Authority to Appoint

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

Basis of Appointment

Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.

Marginal note: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.
Marginal note: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).

Marginal note: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.

Marginal note:Appointment processes

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

Marginal note: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.
Marginal note: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.

Marginal note:Mobility — separate agencies

35 (1) 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
- (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.
Marginal note: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.
(3) [Repealed, 2013, c. 40, s. 404]
Marginal note: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).
Marginal note:Revocation
(5) The Governor in Council may, on the recommendation of the Commission, revoke any designation under subsection (4).

2003, c. 22, s. 12 "35"
2013, c. 40, s. 404

Marginal note:Mobility — member of Canadian Forces

35.1 (1) 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
- (a) may participate in an advertised internal appointment process; and
- (b) has the right to make a complaint under section 77.
Marginal note:Exception
(1.1) 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.
Marginal note: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.
Marginal note:Definition of member
(3) In this section, member means a person who is enrolled in the Canadian Forces.

2005, c. 21, s. 115
2015, c. 5, s. 3

Marginal note:Mobility — former member of Canadian Forces

35.11 (1) 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
- (a) may, during a period of five years after their date of release, participate in an advertised internal appointment process; and
- (b) has the right to make a complaint under section 77.
Marginal note:Deemed employment in public service
(2) 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.
Marginal note:Exception
(3) 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.

2015, c. 5, s. 4

Marginal note: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

Marginal note:Parliamentary employees

35.3 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

(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
2015, c. 36, s. 151
2017, c. 20, s. 186

Marginal note: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).

Marginal note: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.
Marginal note: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.

Marginal note: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 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).

2003, c. 22, s. 12 “38”
2006, c. 9, s. 102
2013, c. 40, s. 414
2015, c. 5, ss. 5, 14

Preferences, Priorities and Entitlements

Marginal note: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 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) 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.
Marginal note: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.
Marginal note:Limit of five years
(3) 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.

2003, c. 22, s. 12 "39"
2015, c. 5, s. 6

Marginal note:Priority — member of Canadian Forces

39.1 (1) 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.
Marginal note:Essential qualifications
(2) 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).

2015, c. 5, s. 7

Marginal note: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.

Marginal note: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]
Marginal note: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).
Marginal note: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).
Marginal note: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

Marginal note:Resumption 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.
Marginal note: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

Marginal note: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.

Marginal note:Non-application of priority provisions

43 Despite sections 39.1, 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.

2003, c. 22, s. 12 "43"
2015, c. 5, s. 8

Marginal note: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.

Marginal note: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.

Marginal note: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

Marginal note: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.

Marginal note: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.
Marginal note: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.
Marginal note: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).

Marginal note: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

Marginal note: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.
Marginal note: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.
Marginal note:Application of Act
(3) The provisions of this Act, other than this section, do not apply to casual workers.
Marginal note:Ineligibility
(4) A casual worker is not eligible to be considered for appointment in any internal appointment process.
Marginal note: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

Marginal note:Exception

50.2 (1) Despite subsection 50(2), a person may be appointed as a casual worker to the Royal Canadian Mounted Police for a period of more than 90 working days in one calendar year in the circumstances prescribed by regulations made under paragraph 22(2)(j).
Marginal note:Review
(2) The Commission may, on an annual basis, conduct a review of the exercise of the authority to appoint casual workers to the Royal Canadian Mounted Police for more than 90 working days during the preceding calendar year.

2013, c. 18, s. 60

PART 3Deployments

Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.

Marginal note: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.

Marginal note:Deployment not an appointment

53 (1) A deployment is not an appointment within the meaning of this Act.
Marginal note:Exceptions to priority rights
(2) A deputy head may deploy a person without regard to any other person’s right to be appointed under section 39.1 or subsection 41(1) or (4) or any regulations made under paragraph 22(2)(a).

2003, c. 22, s. 12 “53”
2006, c. 9, s. 104
2015, c. 5, s. 9

PART 4Employment

Marginal note: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, blank line , 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).)

Marginal note: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.

Marginal note: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.
Marginal note: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.

Marginal note: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.

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

Marginal note: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.
Marginal note: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.

Marginal note: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.

Marginal note: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.
Marginal note: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.

Marginal note: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.
Marginal note: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.

Marginal note: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.

Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Effect of lay-off
(4) An employee ceases to be an employee when the employee is laid off.

Marginal note:Complaint to Board 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 Board, in the manner and within the time fixed by the Board’s regulations, that his or her selection constituted an abuse of authority.
Marginal note: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.
Marginal note: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 Board.
Marginal note:Lay-off set aside
(4) Where the Board 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.
Marginal note: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 Board, notify the Canadian Human Rights Commission of the issue.
Marginal note: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 Board with respect to that issue.
Marginal note:Application of Canadian Human Rights Act
(7) In considering whether a complaint is substantiated, the Board 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.
Marginal note: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.

2003, c. 22, s. 12 "65"
2013, c. 40, s. 414

PART 5Investigations and Complaints Relating to Appointments

Investigation of Appointments by Commission

Marginal note: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.

Marginal note: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.
Marginal note: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.

Marginal note: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.

Marginal note: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.

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

Marginal note: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.
Marginal note: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.
Marginal note: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.

Marginal note: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.

Marginal note: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 Board — Revocation of Appointment

Marginal note: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 Board’s regulations, make a complaint to the Board that the revocation was unreasonable.

2003, c. 22, s. 12 "74"
2013, c. 40, s. 414

Marginal note: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 Board.

2003, c. 22, s. 12 "75"
2013, c. 40, s. 414

Marginal note:Revocation set aside

76 Where the Board 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.

2003, c. 22, s. 12 "76"
2013, c. 40, s. 414

Complaints to Board — Internal Appointments

Marginal note: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 Board’s regulations — make a complaint to the Board 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).
Marginal note: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.
Marginal note:Excluded grounds
(3) The Board 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.

2003, c. 22, s. 12 "77"
2013, c. 40, s. 414

Marginal note: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 Board, notify the Canadian Human Rights Commission of the issue.

2003, c. 22, s. 12 "78"
2013, c. 40, s. 414

Marginal note: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 Board.
Marginal note: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 Board with respect to that issue.

2003, c. 22, s. 12 "79"
2013, c. 40, s. 414

Marginal note:Application of Canadian Human Rights Act

80 In considering whether a complaint under section 77 is substantiated, the Board 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.

2003, c. 22, s. 12 "80"
2013, c. 40, s. 414

Marginal note:Corrective action when complaint upheld

81 (1) If the Board finds a complaint under section 77 to be substantiated, the Board 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 Board considers appropriate.
Marginal note: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.

2003, c. 22, s. 12 "81"
2013, c. 40, s. 414

Marginal note:Restrictions

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

2003, c. 22, s. 12 "82"
2013, c. 40, s. 414

Marginal note: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 Board, 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.

2003, c. 22, s. 12 "83"
2013, c. 40, s. 414

Marginal note:Powers of Board

84 Where the Board 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.

2003, c. 22, s. 12 "84"
2013, c. 40, s. 414

Marginal note:Right to be heard

85 In the consideration of a complaint made under section 83, the persons entitled to be heard by the Board 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.

2003, c. 22, s. 12 "85"
2013, c. 40, s. 414

Marginal note: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).

Marginal note:No right to complain

87 No complaint may be made under section 77 in respect of an 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).

2003, c. 22, s. 12 “87”
2006, c. 9, s. 105
2013, c. 40, s. 414
2015, c. 5, ss. 10, 14

PART 6Federal Public Sector Labour Relations and Employment Board

Powers, Duties and Functions

Marginal note:Complaints

88 The Board is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83.

2003, c. 22, s. 12 "88"
2013, c. 40, s. 405

Marginal note:Powers

89 Subject to any limitations that the Governor in Council may establish in the interests of defence or security, the Board has, in relation to a complaint, the power to 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 questions relating to the complaint.

2003, c. 22, s. 12 "89"
2013, c. 40, s. 405

90 [Repealed, 2013, c. 40, s. 405]

91 [Repealed, 2013, c. 40, s. 405]

92 [Repealed, 2013, c. 40, s. 405]

93 [Repealed, 2013, c. 40, s. 405]

94 [Repealed, 2013, c. 40, s. 405]

95 [Repealed, 2013, c. 40, s. 405]

96 [Repealed, 2013, c. 40, s. 405]

Mediation Services

Marginal note:Mediation services

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

2003, c. 22, s. 12 "97"
2013, c. 40, s. 414

98 [Repealed, 2013, c. 40, s. 407]

99 [Repealed, 2013, c. 40, s. 407]

100 [Repealed, 2013, c. 40, s. 407]

101 [Repealed, 2013, c. 40, s. 407]

102 [Repealed, 2013, c. 40, s. 407]

Complaint Procedure

Marginal note:Filing of order in Federal Court

103 (1) The Board must, on the request in writing of the Commission or any person to whom an order of the Board applies, file a certified copy of the order in the Federal Court unless, in the Board’s opinion
- (a) there is no indication, or likelihood, of failure to comply with the order; or
- (b) there is another good reason why the filing of the order in the Federal Court would serve no useful purpose.
Marginal note:Non-application
(2) Section 35 of the Federal Public Sector Labour Relations and Employment Board Act does not apply to an order of the Board referred to in subsection (1).
Marginal note:Effect of filing
(3) An order of the Board becomes an order of the Federal Court when a certified copy of it is filed in that court, and it may subsequently be enforced as such.

2003, c. 22, s. 12 “103”
2013, c. 40, s. 407
2017, c. 9, s. 56

Marginal note:Copy of decision provided

103.1 The Board 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.

2013, c. 40, s. 407

General

Marginal note:Certain persons not compellable as witnesses

104 Persons providing mediation services under this Part are not competent or compellable to appear as witnesses in any civil action, suit or other proceeding respecting information obtained in the discharge of their functions under this Part.

2003, c. 22, s. 12 "104"
2013, c. 40, s. 407

Marginal note: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) [Repealed, 2013, c. 40, s. 408]
(b) notes of any person providing mediation services under this Part.

2003, c. 22, s. 12 "105"
2013, c. 40, s. 408

106 [Repealed, 2013, c. 40, s. 409]

107 [Repealed, 2013, c. 40, s. 409]

108 [Repealed, 2013, c. 40, s. 409]

Regulations

Marginal note:Regulations of Board

109 The Board 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) and (c) [Repealed, 2013, c. 40, s. 411]
(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.

2003, c. 22, s. 12 "109"
2013, c. 40, ss. 411, 414

110 [Repealed, 2013, c. 40, s. 412]

PART 7Political Activities

Interpretation

Marginal note:Definitions

111 (1) The following definitions apply in this Part.
election
election means a federal, provincial, territorial or municipal election. (élection)
federal election
federal election means an election to the House of Commons. (élection fédérale)
municipal election
municipal election means an election as the mayor or a member of the council of a municipality. (élection municipale)
municipality
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. (municipalité)
political activity
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. (activité politique)
provincial election
provincial election means an election to the legislature of a province. (élection provinciale)
territorial election
territorial election means an election to the Legislative Assembly of Yukon, the Northwest Territories or Nunavut. (élection territoriale)
Marginal note:Meaning of deputy head
(2) For the purposes of this Part, deputy head includes a Commissioner appointed under subsection 4(5).

2003, c. 22, ss. 12 “111”, 272
2013, c. 40, s. 413
2014, c. 2, s. 55, c. 20, s. 474

Purpose of Part

Marginal note: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

Marginal note: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.
Marginal note: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.
Marginal note: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.

Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.

Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.

Marginal note: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

Marginal note:Political activities

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

Allegations

Marginal note: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.

Marginal note: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.
Marginal note: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.

Marginal note: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.

Marginal note: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.
Marginal note: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.
Marginal note: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.

Marginal note: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 8General

Application of Act

Marginal note: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.
Marginal note: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.

Marginal note: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

Marginal note: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.

Marginal note:Clerk of Privy Council

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

Marginal note: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

Marginal note: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.
Marginal note: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

Marginal note: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.
Marginal note: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.

Marginal note: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

Marginal note: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

Marginal note: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

Marginal note: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.
Marginal note: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.
Marginal note: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

Marginal note:Fraud

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

Oaths and Affirmations

Marginal note: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

Marginal note: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

Marginal note: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(Paragraphs 39(1)(a) and (b) and subsection 39(3))Definitions

1 For the purposes of subsection 39(1) and this Schedule,
common-law partner
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; (conjoint de fait)
member of the Women’s Royal Naval Services
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; (personnel du Corps féminin de la Marine royale)
person in receipt of a pension by reason of war service
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; (pensionné de guerre)
survivor of a veteran
survivor of a veteran means the surviving spouse or surviving common-law partner of a person who, being a veteran referred to in any of paragraphs (a) to (e) of the definition veteran, died from causes arising during the service by virtue of which the person became a veteran; (survivant d’un ancien combattant)
veteran
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, performed 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,
- (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, or
- (f) 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; (ancien combattant)
Western Hemisphere
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; (hémisphère occidental)
World War I
World War I means the war declared by His Majesty on August 4, 1914 against the Empire of Germany and subsequently against other powers; (Première Guerre mondiale)
World War II
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. (Seconde Guerre mondiale)
- 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 the 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.

2003, c. 22, s. 12 “Sch.”
2015, c. 5, ss. 11, 12

Date modified:: 2024-11-13