Short Title

Marginal note:Short title

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

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  closed competition

  concours interne

  closed competition means a competition that is open only to persons employed in the Public Service; (concours interne)

  Commission

  Commission

  Commission means the Public Service Commission established by subsection 3(1); (Commission)

  commissioner

  Version anglaise seulement

  commissioner means a member of the Commission, and includes the President; (Version anglaise seulement)

  common-law partner

  conjoint de fait

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

  department

  ministères

  department means a department named in Schedule I to the Financial Administration Act and any division or branch of the Public Service designated by the Governor in Council as a department for the purposes of this Act; (ministères)

  deployment

  mutation

  deployment means the transfer of an employee from one position to another; (mutation)

  deputy head

  administrateur général

  deputy head means

  • (a) in relation to a department named in Schedule I to the Financial Administration Act, the deputy minister thereof,

  • (b) in relation to any division or branch of the Public Service designated under the definition “department”, such person as the Governor in Council may designate as the deputy head for the purposes of this Act, and

  • (c) in relation to any other portion of the Public Service to which the Commission has the exclusive right and authority to appoint persons, the chief executive officer thereof or, if there is no chief executive officer, such person as the Governor in Council may designate as the deputy head for the purposes of this Act; (administrateur général)

  employee

  fonctionnaire

  employee means a person employed in that part of the Public Service to which the Commission has the exclusive right and authority to appoint persons; (fonctionnaire)

  lay-off

  lay-off[Repealed, 1992, c. 54, s. 2]

  local office

  bureau local

  local office means an office established to serve an area comprising a part but not the whole of Canada; (bureau local)

  Minister

  ministre

  Minister, except in section 9, means any member of the Queen’s Privy Council for Canada holding the office of a minister of the Crown; (ministre)

  open competition

  concours public

  open competition means a competition that is open to persons who are employed in the Public Service as well as to persons who are not employed in the Public Service; (concours public)

  promotion

  promotion

  promotion has the meaning assigned by the regulations of the Commission; (promotion)

  Public Service

  fonction publique

  Public Service has the same meaning as in the Public Service Staff Relations Act. (fonction publique)

• Marginal note:Presumption

  (2) For the purpose of being eligible to enter competitions and for the purposes of section 11, persons not otherwise employed in the Public Service who are employees in or under any portion of the public service of Canada designated pursuant to subsection 37(2) are deemed to be persons employed in the Public Service.

• Marginal note:References

  (3) Unless the context otherwise requires,

  • (a) a reference in this Act to a deputy head in relation to an employee shall be construed as a reference to the deputy head of the department or the deputy head in relation to the portion of the Public Service, as the case may be, in which the employee is employed; and

  • (b) a reference in this Act to a deputy head in relation to a department or other portion of the Public Service shall be construed as a reference to the deputy head of that department or the deputy head in relation to that portion of the Public Service, as the case may be, to which the context extends.

• Marginal note:Idem

  (4) A reference in this Act to an occupational group shall be construed as a reference to a group or subgroup of employees specified and defined by the Treasury Board, and a reference to the executive group shall be construed as a reference to such of those groups or subgroups specified and defined for senior management personnel as the Treasury Board may designate.

• Marginal note:Idem

  (5) A reference in subsection (4), section 5.1, subsections 12(5), 17(1.1), 34.2(1) and 34.3(1) and (3) and section 37.1 to the Treasury Board or the Public Service shall, in the case of any portion of the public service of Canada specified in Part II of Schedule I to the Public Service Staff Relations Act for which appointments are made in accordance with this Act, be construed, respectively, as a reference to the separate employer concerned within the meaning of that Act and as a reference to that portion of the public service of Canada.

PART IPublic Service Commission

Commission Established

Marginal note:Commission established

• 3 (1) There is hereby established a Commission, to be called the Public Service Commission, consisting of a President and two other members to be appointed by the Governor in Council.

• Marginal note:Appointment

  (2) Subject to this section, a commissioner holds office during good behaviour for a period of ten years, but may be removed at any time by the Governor in Council on address of the Senate and House of Commons.

• Marginal note:Re-appointment

  (3) A commissioner, on the expiration of the first or any subsequent term of office, is eligible for re-appointment to the Commission in the same or another capacity for a further term not exceeding ten years.

• (4) [Repealed, 1992, c. 54, s. 3]

• Marginal note:Rank

  (5) The rank and standing of each commissioner is that of a deputy head of a department.

• Marginal note:Salaries

  (6) There shall be paid to each commissioner such salary or allowances as may be fixed by the Governor in Council.

• Marginal note:Other employment

  (7) A commissioner shall not hold any other office in the Public Service or engage in any other employment.

• Marginal note:Oath of office

  (8) Each commissioner shall, before entering on the duties of the office, take and subscribe before the Clerk of the Privy Council the oath or solemn affirmation set out in Schedule I.

Marginal note:President

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

• Marginal note:Acting President

  (2) The Governor in Council may authorize any commissioner to act as President if the President is absent or unable to act or if the office is vacant.

• Marginal note:Quorum

  (3) A majority of the commissioners constitutes a quorum of the Commission.

• Marginal note:Vacancy

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

• Marginal note:Place of business

  (5) The Commission may sit at such times and places as it considers necessary or desirable for the proper conduct of its business.

General Powers and Duties of Commission

Marginal note:Powers and duties

5 The Commission shall

• (a) appoint or provide for the appointment of qualified persons to or from within the Public Service in accordance with the provisions and principles of this Act;

• (b) operate and assist deputy heads in the operation of staff training and development programs in the Public Service;

• (c) engage competent persons to assist the Commission in the performance of its duties;

• (d) [Repealed, 1992, c. 54, s. 4]

• (e) report to the Governor in Council on such matters arising out of or relating to the administration or operation of this Act and the regulations as the Commission considers desirable; and

• (f) perform such other duties and functions with reference to the Public Service as are assigned to it by the Governor in Council.

Marginal note:Request for implementation of employment equity programs

• 5.1 (1) The Treasury Board may request the Commission to implement an employment equity program in the Public Service or any part thereof.

• Marginal note:Idem

  (2) A deputy head may request the Commission to implement an employment equity program in that part of the Public Service over which the deputy head has jurisdiction.

• Marginal note:Action on request

  (3) The Commission may, in its discretion, act on any request under subsection (1) or (2).

• Marginal note:Action on own initiative

  (4) Where and to the extent that the Commission considers it appropriate, the Commission shall carry out its activities under this Act, including the implementation of programs, in a manner that will further employment equity programs in the Public Service.

• Marginal note:Definition of “employment equity program”

  (5) In this section, employment equity program means a policy or program established by the Treasury Board with respect to the implementation of employment equity in the Public Service.

Delegation of Authority

Marginal note:Delegation to deputy head

• 6 (1) The Commission may authorize a deputy head to exercise and perform, in such manner and subject to such terms and conditions as the Commission directs, any of the powers, functions and duties of the Commission under this Act, other than the powers, functions and duties of the Commission under sections 7.1, 21, 34, 34.4 and 34.5.

• Marginal note:Idem

  (2) Where the Commission is of the opinion

  • (a) that a person who has been or is about to be appointed to or from within the Public Service pursuant to the authority granted by it under this section does not have the qualifications that are necessary to perform the duties of the position the person occupies or would occupy, or

  • (b) that the appointment of a person to or from within the Public Service pursuant to the authority granted by it under this section has been or would be in contravention of the terms and conditions under which the authority was granted,

  the Commission, notwithstanding anything in this Act but subject to subsection (3), shall revoke the appointment or direct that the appointment not be made, as the case may be, and may thereupon appoint that person at a level that in the opinion of the Commission is commensurate with the qualifications of that person.

• Marginal note:Idem

  (3) An appointment to or from within the Public Service may be revoked by the Commission pursuant to subsection (2) only on the recommendation of a board established by the Commission to conduct an inquiry at which the employee and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.

• Marginal note:Idem

  (4) The Commission may, as it sees fit, revise or rescind and reinstate the authority granted by it pursuant to this section.

• Marginal note:Delegation by deputy head

  (5) Subject to subsection (6), a deputy head may authorize one or more persons under the jurisdiction of the deputy head or any other person to exercise and perform any of the powers, functions or duties of the deputy head under this Act including, subject to the approval of the Commission and in accordance with the authority granted by it under this section, any of the powers, functions and duties that the Commission has authorized the deputy head to exercise and perform.

• Marginal note:Acting deputy head

  (6) In the absence of the deputy head, the person designated by the deputy head to act in his absence or, if no person has been so designated or there is no deputy head, the person designated by the person who under the Financial Administration Act is the appropriate Minister with respect to the department or other portion of the Public Service, or such other person as may be designated by the Governor in Council, has the powers, functions and duties of the deputy head.

Marginal note:Powers, duties and functions of Commission

6.1 Subject to section 7.3, any power, duty or function of the Commission under this Act, other than section 35, 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, shall be deemed to have been exercised or performed by the Commission.

Records and Inquiries

Marginal note:Access to records, assistance, etc.

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

Marginal note:Investigations and audits

7.1 The Commission may conduct investigations and audits on any matter within its jurisdiction.

Marginal note:Powers of Commission

7.2 In connection with and for the purposes of any investigation or report, other than an audit, by the Commission under this Act, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.

Marginal note:Persons acting for Commission

• 7.3 (1) The Commission may direct that any investigation, report or audit by the Commission under this Act be conducted or made, in whole or in part, by a commissioner or any other person.

• Marginal note:Powers of commissioner

  (2) Where the Commission, pursuant to subsection (1), directs that an investigation or report be conducted or made by a commissioner, the commissioner has, in relation to the matter before the commissioner, the powers referred to in section 7.2.

• Marginal note:Powers of other person

  (3) Where the Commission, pursuant to subsection (1), directs that an investigation or report be conducted or made by a person, other than a commissioner, that person, subject to such restrictions or limitations as the Commission may specify, has, in relation to the matter before the person, the powers referred to in section 7.2.

Marginal note:Powers of boards

7.4 Subject to such restrictions or limitations as the Commission may specify, a board established under subsection 6(3), 21(1), 21(1.1) or 34(1) has, in relation to the matter before it, the powers referred to in section 7.2.

Marginal note:Corrective action

7.5 Subject to section 34.5, the Commission may, on the basis of any investigation, report or audit under this Act, take, or order a deputy head to take, such corrective action as the Commission considers appropriate.

PART IIAppointment

Authority to Appoint

Marginal note:Exclusive right to appoint

8 Except as provided in this Act, the Commission has the exclusive right and 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:Diplomatic appointments

9 Nothing in this Act shall be construed to limit or affect the right or authority of Her Majesty to appoint ambassadors, ministers, high commissioners or consuls-general of Canada to any other country, or to appoint other persons t represent Canada in another country.

Appointments

Marginal note:Appointments to be based on merit

• 10 (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.

• Marginal note:Idem

  (2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.

Marginal note:Appointments to be from within Public Service

11 Appointments shall be made from within the Public Service except where, in the opinion of the Commission, it is not in the best interests of the Public Service to do so.

Standards and Criteria

Marginal note:Standards

• 12 (1) For the purpose of determining the basis for selection according to merit under section 10, the Commission may establish standards for selection and assessment as to education, knowledge, experience, language, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed and the present and future needs of the Public Service.

• Marginal note:Inconsistency

  (2) No standard established under subsection (1) shall be inconsistent with any classification standard established under the Financial Administration Act.

• Marginal note:No discrimination

  (3) The Commission, in establishing or applying standards under subsection (1), shall not discriminate against any person by reason of race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.

• Marginal note:Limitation

  (4) Subsection (3) does not apply in respect of the establishment or application of standards that constitute bona fide occupational requirements having regard to the nature of the duties of any position.

• Marginal note:Consultation

  (5) The Commission shall, on request or where, in the opinion of the Commission, consultation is necessary or desirable, consult with representatives of the Treasury Board or any employee organization certified as a bargaining agent under the Public Service Staff Relations Act with respect to the standards that may be established by the Commission under subsection (1) or the principles governing promotion, lay-off or priorities of entitlement to appointment.

Marginal note:Review of qualifications

12.1 The Commission may review any qualifications established by a deputy head for appointment to any position or class of positions to ensure that the qualifications afford a basis for selection according to merit.

Marginal note:Establishment of criteria

• 13 (1) The Commission may establish, for competitions and other processes of personnel selection, geographic, organizational and occupational criteria that prospective candidates must meet in order to be eligible for appointment.

• Marginal note:Different criteria for disadvantaged persons

  (2) In establishing criteria under subsection (1), the Commission may establish different criteria for groups of persons that are disadvantaged, including women, aboriginal peoples, persons with disabilities and persons who are, because of their race or colour, in a visible minority in Canada.

Competitions

Marginal note:Notice

• 14 (1) The Commission shall give such notice of a proposed competition as in its opinion will give all eligible persons a reasonable opportunity of making an application.

• Marginal note:Idem

  (2) A notice under subsection (1) shall be given in both the English and French languages together, unless the Commission otherwise directs in any case or class of cases.

Marginal note:Applications

15 Applications shall be in such form and shall be made and verified in such manner as the Commission determines.

Marginal note:Consideration of applications

• 16 (1) The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications and, after considering such further material and conducting such examinations, tests, interviews and investigations as it considers necessary or desirable, shall select the candidates who are qualified for the position or positions in relation to which the competition is conducted.

• Marginal note:Languages in which examination to be conducted

  (2) An examination, test or interview under this section, when conducted for the purpose of determining the education, knowledge and experience of the candidate or any other matter referred to in section 12, except language, shall be conducted in the English or French language or both, at the option of the candidate.

• Marginal note:Idem

  (3) An examination, test or interview under this section, when conducted for the purpose of determining the qualifications of the candidate in the knowledge and use of the English or French language or both, or of a third language, shall be conducted in the language or languages in the knowledge and use of which the qualifications of the candidate are to be determined.

• Marginal note:Veterans, etc.

  (4) Where, in the case of an open competition, the Commission is of the opinion that there are sufficient qualified applicants who are

  • (a) persons in receipt of a pension by reason of war service as defined in Schedule II,

  • (b) persons who do not come within paragraph (a) and who are veterans as defined in Schedule II or survivors of veterans as defined in Schedule II, or

  • (c) persons who are Canadian citizens who do not come within paragraph (a) or (b),

  to enable the Commission to establish an eligibility list in accordance with this Act, the Commission may confine its selection of qualified candidates under subsection (1) to the applicants who come within paragraph (a), paragraphs (a) and (b) or paragraphs (a), (b) and (c).

Marginal note:Establishment of eligibility lists

• 17 (1) From among the qualified candidates in a competition the Commission shall select and place the highest ranking candidates on one or more lists, to be known as eligibility lists, as the Commission considers necessary to provide for the filling of a vacancy or anticipated vacancies.

• Marginal note:Inclusion of certain candidates

  (1.1) A candidate may be placed on an eligibility list while it is being determined if the candidate meets the security, reliability and medical conditions of employment established by the Treasury Board.

• Marginal note:Duration

  (2) An eligibility list is valid for such period of time as may be determined by the Commission in any case or class of cases.

• Marginal note:Closed competition

  (3) When establishing an eligibility list in the case of a closed competition, the Commission shall place the qualified candidates thereon in order of merit.

• Marginal note:Open competition

  (4) When establishing an eligibility list in the case of an open competition, the Commission shall, after complying with section 16 and after conducting such further investigations as it considers necessary, proceed in accordance with the following principles:

  • (a) persons who come within paragraph 16(4)(a) and who are qualified shall be placed, in order of merit, ahead of other successful candidates;

  • (b) persons who come within paragraph 16(4)(b) and who are qualified shall be placed, in order of merit, on the list immediately following any candidates mentioned in paragraph (a) of this subsection;

  • (c) persons who come within paragraph 16(4)(c) and who are qualified shall be placed, in order of merit, after any candidates mentioned in either paragraph (a) or (b) of this subsection; and

  • (d) persons who do not come within paragraph 16(4)(a), (b) or (c) and who are qualified shall be placed, in order of merit, after any candidates who come within those paragraphs.

• Marginal note:Application of age limits, etc., to veterans, etc.

  (5) Nothing prescribed by or under this Act or any other Act as to the age limit and physical requirements with respect to any appointment to the Public Service applies to a person who comes within paragraph 16(4)(a) or (b) if the Commission certifies that the person is of such an age and in such a satisfactory physical condition that the person is able to perform the duties of the position and will probably be able to do so for a reasonable period after the appointment.

Marginal note:Appointment from eligibility list

• 18 (1) An appointment under this Act made to a position by competition shall be made from an eligibility list in accordance with the regulations of the Commission.

• Marginal note:Order of appointment

  (2) A candidate on an eligibility list who ranks lower on the list than a candidate placed on the list pursuant to subsection 17(1.1) may be appointed before the higher-ranking candidate, if a position is left vacant for the appointment of the higher-ranking candidate until it is determined if the higher-ranking candidate meets the conditions of employment referred to in that subsection.

Marginal note:Appointment to local office

19 Where an appointment is to be made to a local office, the Commission in making the appointment from outside the Public Service shall, whenever it is in the best interests of the Public Service to do so, give preference in appointment to qualified candidates who reside in the area served by the local office over qualified candidates who do not so reside.

Marginal note:Language

20 Employees appointed to serve in any department or other portion of the Public Service, or part thereof, shall be qualified in the knowledge and use of the English or French language or both, to the extent that the Commission deems necessary in order that the functions of the department, portion or part can be performed adequately and effective service can be provided to the public.

Appeals

Marginal note:Appeals

• 21 (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.

• Marginal note:Idem

  (1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.

• Marginal note:Duty of Commission when notified of decision

  (2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision,

  • (a) if the appointment has been made, confirm or revoke the appointment; or

  • (b) if the appointment has not been made, make or not make the appointment.

• Marginal note:Appointment to other position

  (2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualifications of that person.

• Marginal note:Other measures

  (3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.

• Marginal note:Appeal

  (4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.

• Marginal note:Exception

  (5) Section 10 and the rights of appeal provided by this section do not apply to appointments made under subsection 29(1.1) or (3), 30(1) or (2) or 39(3) of this Act or subsection 11(2.01) of the Financial Administration Act or any regulations made under paragraph 35(2)(a) of this Act.

Marginal note:Appeal to Federal Court of Appeal

21.1 Despite the Federal Courts Act, an application to the Federal Court for relief under section 18 or 18.1 of that Act against a decision of a board established under subsection 21(1) or (1.1) shall be transferred to the Federal Court of Appeal if the parties to the application so agree or if the Federal Court of Appeal, on application by any of those parties, so orders on the basis that the sound administration of that part of the Public Service over which the deputy head concerned has jurisdiction would be unduly prejudiced by delay if the matter were heard and determined by the Federal Court and subject to an appeal to the Federal Court of Appeal.

Casual Employment

Marginal note:Casual employment

• 21.2 (1) Notwithstanding any other provision of this Act, the Commission may appoint any person to the Public Service for a period not exceeding ninety days.

• Marginal note:Restriction

  (2) No person appointed under subsection (1) may work in any particular department, or in any other particular portion of the Public Service, on more than one hundred and twenty-five days in any year.

• Marginal note:Application of Act

  (3) The provisions of this Act, other than this section, do not apply to a person who is appointed under subsection (1).

• Marginal note:Term appointments unaffected

  (4) Nothing in this section derogates from any other authority of the Commission to appoint persons to or from within the Public Service for specified periods not exceeding ninety days.

PART IIIEmployment

Tenure

Marginal note:Effective date of appointment

22 An appointment under this Act takes effect on the date specified in the instrument of appointment, which date may be any date before, on or after the date of the instrument.

Marginal note:Oath of office and allegiance

23 Every deputy head and employee shall, on appointment from outside the Public Service, take and subscribe the oath or solemn affirmation of allegiance and the oath or solemn affirmation set out in Schedule III.

Marginal note:Tenure of office

24 The tenure of office of an employee is during pleasure, subject to this Act and any other Act and the regulations thereunder and, unless some other period of employment is specified, for an indeterminate period.

Marginal note:Term appointments

25 An employee who is appointed for a specified period ceases to be an employee at the expiration of that period.

Marginal note:Resignation

26 An employee may resign from the Public Service by giving to the deputy head notice in writing of the intention to resign and the employee ceases to be an employee on the day as of which the deputy head accepts in writing the resignation.

27 [Repealed, 1992, c. 54, s. 18]

Probation

Marginal note:Probationary period

• 28 (1) An employee who was appointed from outside the Public Service shall be considered to be on probation from the date of the appointment until the end of such period as the Commission shall establish by regulation for that employee or any class of employees of which that employee is a member.

• Marginal note:Idem

  (1.1) A probationary period established pursuant to subsection (1) is not terminated by any appointment or deployment of the employee made during the period.

• Marginal note:Rejection

  (2) The deputy head may, at any time during the probationary period of an employee, give notice to the employee that the deputy head intends to reject the employee for cause at the end of such notice period as the Commission may establish for that employee or any class of employees of which that employee is a member, and the employee ceases to be an employee at the end of that period.

Lay-Offs

Marginal note:Laying off employees

• 29 (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 the Public Service, otherwise than where the employment of the employee is terminated in the circumstances referred to in paragraph 11(2)(g.1) of the Financial Administration Act, the deputy head, in accordance with the regulations of the Commission, may lay off the employee.

• Marginal note:Departmental priorities

  (1.1) Notwithstanding subsections (3) and 30(1) and (2), section 39 and any regulations made pursuant to paragraph 35(2)(a), where the deputy head has informed an employee that the employee will be laid off pursuant to subsection (1) or section 7.2 of the Public Sector Compensation Act, the Commission may, before the lay off becomes effective and if it is of the opinion that it is in the best interests of the Public Service to do so, appoint the employee, without competition and in priority to all other persons, to another position under the jurisdic- tion of the deputy head for which, in the opinion of the Commission, the employee is qualified.

• Marginal note:Effect of being laid off

  (2) An employee ceases to be an employee when the employee is laid off pursuant to subsection (1).

• Marginal note:Re-appointment

  (3) A person laid off pursuant to subsection (1) is entitled, during such period and in such order as the Commission may determine, to be appointed, without competition and, subject to sections 30 and 39, in priority to all other persons, to a position in the Public Service for which, in the opinion of the Commission, the person is qualified.

• Marginal note:Competitions

  (4) Notwithstanding subsection (2), a person laid off pursuant to subsection (1) is entitled, during such period as the Commission may determine for any case or class of cases, to enter any competition for which the person would have been eligible had the person not been laid off.

• Marginal note:Exception

  (5) Subsections (1.1), (3) and (4) do not apply to a person whose tenure in the Public Service, at the time the person was informed that the person would be laid off, was for a specified period.

Leave of Absence

Marginal note:Appointment or deployment to another position

• 30 (1) Where an employee is on leave of absence and another person has been appointed or deployed for an indeterminate period to the position that was occupied by the employee, the employee is entitled, during the leave of absence and for a period of one year thereafter, to be appointed, without competition and in priority to all other persons, to another position in the Public Service for which, in the opinion of the Commission, the employee is qualified.

• Marginal note:Idem

  (2) Where, during the time that an employee was on leave of absence, another person was appointed or deployed for an indeterminate period to the position previously occupied by the employee, if the employee returns to that position, the other person is entitled, for a period of one year after the employee returns, to be appointed, without competition and in priority to all other persons, to a position in the Public Service for which, in the opinion of the Commission, the other person is qualified.

• Marginal note:Order of priorities

  (3) The Commission shall determine the order in which those persons to whom subsections (1) and (2) apply are to be appointed to positions in the Public Service.

• Marginal note:Failure to appoint

  (4) A person who is entitled under subsection (1) or (2) to be appointed to a position in the Public Service and who is not so appointed in the period provided for in that subsection ceases to be an employee at the end of that period.

Marginal note:Non-application of priority provisions

31 Notwithstanding subsections 29(1.1) and (3) and 30(1) and (2), section 39 and any regulations made pursuant to paragraph 35(2)(a), where the Commission is of the opinion that the appointment of a person having a right to appointment in priority to other persons pursuant to any of those provisions will result in another person having such a right, the Commission may decide not to apply that provision to that case.

Political Partisanship

Marginal note:Definition of “candidate”

32 For the purposes of sections 33 and 34, "candidate" means a candidate for election as a member of the House of Commons, a member of the legislature of a province, a member of the Council of the Northwest Territories or a member of the Legislative Assembly of Yukon or Nunavut.

Marginal note:Political partisanship

• 33 (1) No deputy head and, except as authorized under this section, no employee, shall

  • (a) engage in work for or against a candidate;

  • (b) engage in work for or against a political party; or

  • (c) be a candidate.

• Marginal note:Excepted activities

  (2) A person does not contravene subsection (1) by reason only of attending a political meeting or contributing money for the funds of a candidate or of a political party.

• Marginal note:Leave of absence

  (3) Notwithstanding any other Act, on application made to the Commission by an employee, the Commission may, if it is of the opinion that the usefulness to the Public Service of the employee in the position the employee then occupies would not be impaired by reason of that employee having been a candidate, grant to the employee leave of absence without pay to seek nomination as a candidate and to be a candidate for election, for a period ending on the day on which the results of the election are officially declared or on such earlier day as may be requested by the employee if the employee has ceased to be a candidate.

• Marginal note:Notice

  (4) Forthwith on granting any leave of absence under subsection (3), the Commission shall cause notice of its action to be published in the Canada Gazette.

• Marginal note:Effect of election

  (5) An employee who is declared elected as a member of the House of Commons, of the legislature of a province, of the Council of the Northwest Territories or of the Legislative Assembly of Yukon or Nunavut ceases to be an employee on that declaration.

Marginal note:Inquiry

• 34 (1) Where any allegation is made to the Commission by a person who is or has been a candidate that a deputy head or employee has contravened subsection 33(1), the allegation shall be referred to a board established by the Commission to conduct an inquiry at which the person making the allegation and the deputy head or employee, or their representatives, shall be given an opportunity to be heard.

• Marginal note:Duty of Commission when notified of decision

  (2) The Commission, on being notified of the decision of the board on an inquiry into an allegation conducted pursuant to subsection (1),

  • (a) in the case of a deputy head, shall report the decision to the Governor in Council who may, if the board has decided that the deputy head has contravened subsection 33(1), dismiss the deputy head; and

  • (b) in the case of an employee, may, if the board has decided that the employee has contravened subsection 33(1), dismiss the employee.

• Marginal note:Application of this section

  (3) In the application of this section to any person, the expression “deputy head” does not include a person for whose removal from office, otherwise than by the termination of his appointment at pleasure, express provision is made by this Act or any other Act.

PART III.1Deployment

Right to Deploy

Marginal note:Exclusive right to deploy

• 34.1 (1) Except as provided in this Act or any other Act, a deputy head has the exclusive right and authority to make deployments to or within that part of the Public Service over which the deputy head has jurisdiction.

• Marginal note:Deployments within or between groups

  (2) Deployments may be made within occupational groups and, when authorized by the regulations of the Commission, between occupational groups.

• Marginal note:Term

  (3) Unless some other period is specified, a deployment is for an indeterminate period.

Conditions

Marginal note:Manner

• 34.2 (1) Deployments shall be made in such manner as the Treasury Board may direct.

• Marginal note:No promotion or change in tenure

  (2) No employee shall be deployed in a manner that results in a promotion or a change in the tenure of office of that employee.

• Marginal note:Consent to deployment

  (3) No employee shall be deployed without the consent of the employee, unless an agreement to being deployed is a term or condition of employment of the employee’s current position.

Recourse on Deployment

Marginal note:Complaint to deputy head

• 34.3 (1) An employee who is deployed and any other employee in the work unit to which the deployment is made may, within such period and in such manner as the Treasury Board may provide for, complain to the deputy head concerned that the deployment was not authorized by, or made in accordance with, this Act or constituted an abuse of authority.

• Marginal note:Exceptions

  (2) Subsection (1) does not apply in respect of the deployment of an employee who is in the executive group or who occupies a position in an occupational group or part thereof in respect of which regulations have been made under subsection 37.1(2).

• Marginal note:Action by deputy head

  (3) On receiving a complaint under subsection (1), the deputy head shall review the deployment in such manner as the Treasury Board may direct and, after considering the results of the review, shall take such corrective action, including revocation of the deployment, as the deputy head considers appropriate.

• Marginal note:Work units

  (4) A deputy head may specify work units for the purposes of subsection (1).

Marginal note:Referral to Commission

• 34.4 (1) An employee who lodged a complaint under subsection 34.3(1), or whose deployment is the subject of such a complaint, and who is not satisfied with the disposition of the complaint or any corrective action taken in respect thereof, may, within the period provided for by the regulations of the Commission, refer the complaint to the Commission.

• Marginal note:Designation of investigator

  (2) On the referral of a complaint under subsection (1), the Commission shall designate a person to investigate the deployment.

• Marginal note:Conduct of investigation

  (3) An investigator designated under subsection (2) shall conduct the investigation in such manner as the Commission may prescribe and give the employee who referred the complaint to the Commission, the employee who was deployed and the deputy head an opportunity to be heard.

• Marginal note:Report

  (4) On completion of the investigation, the investigator shall prepare and send to the employee who referred the complaint to the Commission, the employee who was deployed and the deputy head a report in writing setting out such findings and recommendations with respect to the deployment as the investigator sees fit.

Marginal note:Report to Commission

• 34.5 (1) If the investigator is not satisfied with the response of the deputy head to a report prepared under subsection 34.4(4), the investigator shall report the matter to the Commission.

• Marginal note:Corrective action

  (2) On receiving a report under subsection (1), the Commission may order the deputy head to take such corrective action, including revocation of the deployment, as the Commission considers appropriate.

• Marginal note:Restriction

  (3) The Commission may not, pursuant to subsection (2), direct a deputy head to deploy any employee.

Provisions not Applicable

Marginal note:Provisions not applicable

• 34.6 (1) For greater certainty, sections 8, 10 to 22, 38, 42 and 43 do not apply in respect of a deployment.

• Marginal note:Idem

  (2) A deputy head may make a deployment without regard to the rights to appointment or to enter competitions established by subsections 29(3) and (4), 30(1) and (2) and 39(3) and (4) and any regulations made under paragraph 35(2)(a).

PART IVGeneral

Regulations

Marginal note:Regulations by Commission

• 35 (1) The Commission may make such regulations as it considers necessary to carry out and give effect to this Act.

• Marginal note:Additional regulations by Commission

  (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, without competition and, subject to sections 29, 30 and 39, in priority to all other persons, to any position in the Public Service for which, in the opinion of the Commission, the person is qualified, and specifying the period during which the right subsists;

  • (b) establishing the order of priority of the rights to appointment established by any regulations made pursuant to paragraph (a);

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

  • (d) respecting the appointment to and within the Public Service of persons from disadvantaged groups, including women, aboriginal peoples, persons with disabilities and persons who are, because of their race or colour, in a visible minority in Canada, and excluding any such person or group of 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 inside or outside the Public Service, and excluding any such persons or class of such persons from the operation of any or all of the provisions of this Act;

  • (f) respecting the disclosure of personal information obtained in the course of an investigation, inquiry or procedure for appointment under this Act; and

  • (g) dealing with any other matter that any provision of this Act contemplates being the subject of a regulation of the Commission.

Marginal note:Regulations by Governor in Council

• 36 (1) The Governor in Council may make regulations

  • (a) applying all or any of the provisions of this Act to all or any of the positions of persons mentioned in subsection 39(1);

  • (b) notwithstanding any other Act, applying all or any of the provisions of this Act that do not otherwise apply, including the provisions relating to appointments, to any portion or part of any portion of the Public Service; and

  • (c) prescribing the manner in which inquiries shall be instituted and conducted for the purposes of section 34.

• Marginal note:Idem

  (2) Where a regulation made pursuant to paragraph (1)(b) provides for a matter for which provision is made in or under any other Act, the other Act, during the time that the regulation is in force, is deemed to make no provision for that matter either therein or thereunder.

Marginal note:Regulations by Governor in Council

• 37 (1) The Governor in Council, on the recommendation of the Commission, may make regulations prescribing how positions or persons, wholly or partly excluded under section 41, shall be dealt with.

• Marginal note:Designation

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

• Marginal note:Revocation

  (3) The Governor in Council, on the recommendation of the Commission, may revoke any designation under subsection (2).

Marginal note:Treasury Board regulations respecting deployment

• 37.1 (1) The Treasury Board may make regulations respecting deployments.

• Marginal note:Treasury Board regulations respecting levels

  (2) The Treasury Board may, in respect of any occupational group or part thereof, make regulations extending or changing to levels the provisions of this Act that apply to positions.

• Marginal note:Consultation

  (3) The Treasury Board shall, on request or where, in its opinion, consultation is necessary or desirable, consult with representatives of the Commission or any employee organization certified as a bargaining agent under the Public Service Staff Relations Act with respect to any regulations that may be made under this section.

Marginal note:Application

37.2 A regulation made under this Act may be of general application or may apply to a specified person, occupational group, part of the Public Service or process, or any class thereof.

Block Transfers

Marginal note:Deemed transfer of employees

• 37.3 (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 Public Service the control or supervision of which has been transferred from one department or portion of the Public Service 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 portion of the Public Service 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 Public Service 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 portion of the Public Service where the employees referred to in subsection (1) are currently occupying their positions.

• Marginal note:Definition of “Public Service”

  (3) In this section, Public Service means the departments and other portions of the public service of Canada specified in Part I of Schedule I to the Public Service Staff Relations Act.

• Marginal note:Retroactive application

  (4) This section applies to any order made under the Public Service Rearrangement and Transfer of Duties Act on or after March 20, 1995 and before or after the coming into force of this section.

Rate of Pay on Appointment

Marginal note:Rate of pay on appointment

38 Subject to any direction of a special or general character that may be made pursuant to the Financial Administration Act, the Commission may make an appointment to a position at any rate in the scale of rates of pay that may be established for that position or for positions of the same occupational nature and level as that position.

Ministers’ Staffs

Marginal note:Ministerial staffs

• 39 (1) A Minister may appoint his Executive Assistant and other persons required in his office.

• Marginal note:Termination of employment

  (2) A person who is employed in the office of a Minister ceases to be so employed thirty days after the person holding the position of such Minister ceases to hold that position.

• Marginal note:Rights on termination of employment

  (3) A person who

  • (a) was an employee immediately before becoming employed in the office of a Minister, or

  • (b) while employed in the office of a Minister, qualified for appointment under this Act to the Public Service

  is entitled, for a period of one year from the day on which the person ceases to be so employed, to be appointed without competition and, subject to section 30, in priority to all other persons, to a position in the Public Service for which, in the opinion of the Commission, the person is qualified.

• Marginal note:Idem

  (4) A person who for at least three years has been employed as Executive Assistant, Special Assistant or Private Secretary to a Minister, or in any of those capacities successively, is entitled, for a period of one year from the day on which the person ceases to be so employed, to be appointed without competition and, subject to subsection (3) and section 30, in priority to all other persons to a position in the Public Service, at a level at least equivalent to the level of private secretary to a deputy head, for which, in the opinion of the Commission, the person is qualified.

• Marginal note:Order of appointments

  (5) The Commission shall determine the order in which those persons to whom subsection (3) or (4) applies are to be appointed to positions in the Public Service.

• Marginal note:Leader of the Opposition

  (6) This section applies to a person employed in the office of the person holding the recognized position of Leader of the Opposition in the House of Commons, Leader of the Government in the Senate or Leader of the Opposition in the Senate, as it applies to a person employed in the office of a Minister.

Other Public Officials

Marginal note:Appointments by Governor in Council

40 The Governor in Council may appoint and fix the remuneration of

• (a) the Clerk of the Privy Council and Secretary to the Cabinet;

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

• (c) the Clerk of the Senate;

• (d) the Clerk of the House of Commons; and

• (e) the Secretary to the Governor General.

Marginal note:Head of the Public Service

40.1 The Clerk of the Privy Council and Secretary to the Cabinet is the Head of the Public Service.

Exclusions

Marginal note:Exclusion of persons and positions

• 41 (1) In any case 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 in whole or in part from the operation of this Act.

• Marginal note:Re-application of provisions to persons or positions

  (2) 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 excluded pursuant to subsection (1).

Irregularities and Fraudulent Practices

Marginal note:Fraudulent practices

42 Where the Commission is satisfied that any irregularity or fraudulent practice has occurred in a selection process for appointment held by it or by any person deputed by it, the Commission may summon before it by a summons, in the form set out in Schedule IV, signed by the President or by any other commissioner, and may examine under oath or solemn affirmation any person who, in its opinion, is in a position to give evidence in relation to that irregularity or fraudulent practice.

Marginal note:Refusal to appoint or revocation of appointment

43 Where a person who is being considered for appointment, or who has been appointed, under this Act to or from within the Public Service is proved on an inquiry to have been concerned in any fraudulent practice, or to have been guilty of any breach of the regulations with respect to any selection process for appointment held under this Act, the Commission may refuse to consider the person for the appointment or, if the person has been appointed, may revoke the appointment of the person retroactively to the date of the appointment.

Marginal note:Personation

44 Every person who, in any selection process held under this Act, personates any candidate or employs, induces or allows any other person to personate the person or connives or assists in any personation is guilty of an offence punishable on summary conviction.

Marginal note:Illegally obtaining papers

45 Every person who, without authority, procures from any printer or other person, and every person who, without authority, furnishes to any other person, any examination paper or any other paper relating to a selection process held under this Act is guilty of an offence punishable on summary conviction.

Oaths

Marginal note:Authority to administer oaths, etc.

46 The Governor in Council may authorize any person to administer oaths and take and receive affidavits, declarations and solemn affirmations for any of the purposes of this Act or the regulations.

Report to Parliament

Marginal note:Annual report

• 47 (1) The Commission shall, within five months after the end of each fiscal year, transmit to the Minister designated by the Governor in Council for the purposes of this section a report and statement of

  • (a) the transactions and affairs of the Commission during that year;

  • (b) the nature of any action taken by it under subsection 6(1) or (4);

  • (c) the positions and persons, if any, excluded under section 41 in whole or in part from the operation of this Act and the reasons therefor; and

  • (d) the activities of the Commission during that year in relation to the implementation of employment equity programs, including its activities during that year in discharging its obligations under the Employment Equity Act.

• Marginal note:Report to Parliament

  (2) The Minister designated by the Governor in Council under subsection (1) shall cause the report and statement referred to in that subsection to be laid before Parliament within fifteen days after the receipt by the Minister thereof or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting.

Marginal note:Report of Head of the Public Service

47.1 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.

Application of Act

Marginal note:Application

• 48 (1) This Act applies to all employees whether appointed before, on or after March 13, 1967.

• Marginal note:Reference to periods of employment

  (2) A reference in any of the provisions of this Act to a period of employment shall be construed as including employment before as well as on or after March 13, 1967.