Vol. 144, No. 5 — January 30, 2010

Statistics Canada Census-Related Term Employment Regulations

Statutory authority

Public Service Employment Act

Sponsoring agency

Public Service Commission

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

The Public Service Commission (PSC) is proposing regulations and an exclusion approval order (the Order) for employees appointed or deployed to Statistics Canada in accordance with the Public Service Employment Act (PSEA) to conduct work associated with the census of population and census of agriculture (the censuses).

The proposed Statistics Canada Census-Related Term Employment Regulations would prescribe how excluded employees and positions are to be dealt with. There would be alternate definitions and provisions for “acting appointments” and “deployments”; both of these would be limited to positions excluded by the proposed Order. Appointments and deployments to excluded positions would be made on a specified term basis only. The Regulations would provide a shorter notice period for the termination of employment as a result of rejection on probation than provided in the PSEA.

The proposed Statistics Canada Census-Related Term Employment Exclusion Approval Order would exclude employees hired to work on the censuses and the positions they occupy from several provisions of the PSEA. The employees and positions would be excluded from the definitions of “internal appointment processes” and “deployment.” They would be excluded from the Regulations of the PSC related to acting appointments and the consideration of priority persons. They would also be excluded from the provisions related to deployments, indeterminate employment, conversion to indeterminate status, and the length of the notice period for the termination of employment as a result of rejection on probation.

The objective of the Regulations and Order is to ensure a balance between cost and time effectiveness for the conduct of the censuses and a fair employment regime for excluded employees. With the current economic downturn, regulations and an order that result in a cost saving, while ensuring the fair treatment of excluded employees, is in line with government objectives.

Description and rationale

The Statistics Act requires that Statistics Canada conduct the censuses every five years, which will next take place on May 11, 2011. The work takes approximately three years to complete, and is conducted within a very strict timeframe and budget.

Subsection 5(1) of the Statistics Act provides an authority to hire enumerators and their crew chiefs on a temporary basis to conduct the censuses. However, approximately 2 800 additional employees are required on a temporary basis to provide administrative and management support and to perform data processing duties. These employees are hired pursuant to the PSEA; their loss to internal appointment processes or deployments within the public service could have a negative impact on census operations, due to the strict timeframe and budget, and the time and cost associated with hiring and training replacements. The PSC is therefore proposing regulations and an exclusion approval order to exclude these employees and their positions from a few provisions of the PSEA.

The current PSEA came into effect on December 31, 2005. The previous PSEA required appointments to the public service to be made based on relative merit. It required the assessment of all candidates to determine their relative merit in order to place them in ranked order on an eligibility list before any appointments could be made. The current PSEA contains a different definition of merit, and provides for the appointment of a candidate who simply meets the merit criteria, as opposed to appointing the “most qualified” candidate. There is no longer a requirement to wait until all candidates have been assessed and ranked in order before making an appointment.

Beginning in 1986, the PSC proposed new regulations and Orders every five years to exclude employees hired for census work from the application of the entire PSEA, with the exception of the provisions related to the oath of allegiance, political partisanship, and fraud. With the greater flexibility of the current PSEA, there is no longer a need to fully exclude employees and positions from its application. With the coming into force of the current PSEA, the PSC has adopted a new approach and has been reviewing all of its regulations and exclusion approval orders with a view to ensuring that they are compatible with the PSEA’s principles. In keeping with this objective, the proposed Regulations and Order would not expire as had been the case with previous regulations and orders. This would eliminate the need to reproduce the Regulations and Order for future censuses.

Statistics Canada expects to hire 1 600 excluded employees in varying locations across the country, and 1 200 excluded employees in the data processing centre in the National Capital Region for the 2011 censuses. Excluded employees would be hired for employment periods ranging from nine months to three years, depending on the occupational group and level of the position, the duties to be performed, and the geographic location. Excluded employees would be hired in positions in the Clerical and Regulatory (CR), Administrative Services (AS), Information Services (IS); General Services (GS), General Technical (GT), Economics and Social Sciences Services (EC); Computer Systems Administration (CS); Financial Management (FI), and Personnel Administration (PE) occupational groups, although the numbers and occupational groups could possibly change for future censuses.

Statistics Canada would first appoint those persons who had previously worked on the censuses and whose performance was fully satisfactory using non-advertised external appointment processes. It would then appoint other persons from outside the public service using advertised external appointment processes and deploy existing public service employees.

The proposed Regulations would prescribe how the excluded employees and positions are to be dealt with. Excluded employees would be hired on a specified term basis only. They would be excluded from the provision in the PSEA that allows term employees to be converted from term to indeterminate status at the end of the cumulative employment period specified by the employer. The work required for the censuses lasts only for three years and there is no intention for excluded employees to be employed on an indeterminate basis.

Internal appointment processes are those that are open only to persons employed in the public service. Excluded employees would not be eligible to participate in these processes, with the exception of acting appointments to other excluded positions.

The PSEA requires that persons with a priority for appointment be considered before any others have an opportunity to apply. Examples of persons with a priority for appointment are employees who are surplus to requirements, employees who have been laid off, and former Canadian Forces members and Royal Canadian Mounted Police members who were released due to a disability. This would avoid any delays as a result of the priority clearance process. It would limit employee turnover, as priority persons who accept term employment continue to be eligible for priority consideration for appointment to an indeterminate job, and thus they would leave to accept indeterminate employment elsewhere.

Excluded employees would only be eligible to be deployed to other excluded positions. Other public service employees could be deployed to excluded positions, should they choose to accept the conditions imposed by the Order, such as being eligible only for acting appointments or deployments to other excluded positions. This would allow for greater efficiency to hire employees using deployments, which are less administratively burdensome than appointments.

The PSEA requires employees in the public service to be subject to a probationary period at the beginning of their employment. During the probationary period, a deputy head may terminate employment for disciplinary or lack of competency reasons. Employees in the public service who are rejected on probation are entitled to a notice period that is determined by the Regulations of the employer. Excluded employees would not be subject to the employer’s notice periods and would instead be provided with a shorter, seven-day notice period that their employment will be terminated. Employees rejected on probation are paid their regular salary during the notice period, so a shorter period would result in a cost saving.

Consultation

Statistics Canada was involved in the development of the proposed Regulations and Order, and has indicated its agreement to the provisions.

Consultations were conducted on a face-to-face basis in July 2009 with the four bargaining agent representatives for the occupational groups of the persons excluded by the Order. These were the Public Service Alliance of Canada, the Canadian Association of Public Employees, the Professional Institute of the Public Service of Canada, and the Association of Canadian Financial Officers.

The representatives stated that excluded employees should have the same status as other employees. This concern was taken into account when drafting the proposed Regulations and Order, and as a result excluded employees would be excluded from as few provisions of the PSEA as possible, while still achieving the objective of the proposal. Excluded employees would be subject to the remaining provisions of the PSEA and to the terms and conditions outlined in their collective agreements, as is the case for other employees in the public service.

Concern was also expressed regarding the establishment of the Regulations and Order for an indefinite period. The representatives were concerned that they would not be kept informed of the numbers and occupational groups of the excluded employees to be hired each time the censuses are conducted. In response to this concern, a provision that would have required representatives to be notified of the number of excluded employees that were to be hired and their occupational group was considered; however, the Department of Justice determined that such a provision is beyond the scope of the Regulations, which may only prescribe how excluded persons and positions are to be dealt with. Statistics Canada has indicated that it would develop an internal policy to require consultation with its affected bargaining agent representatives, and this commitment has been included in the Regulatory Impact Analysis Statement that would be published with the Regulations.

Implementation, enforcement and service standards

Appointment and appointment-related authority is delegated to deputy heads by the Commission through an Appointment Delegation and Accountability Instrument, in accordance with the PSEA. The Commission monitors and assesses the performance of deputy heads for compliance to the applicable legislative and regulatory requirements, the PSEA’s appointment values, and for the proper use of delegated authorities. The deputy head of Statistics Canada, the Chief Statistician, is therefore held accountable to the Commission through its accountability and oversight mechanisms.

As provided for in the PSEA, any lack of compliance on behalf of the Chief Statistician is subject to corrective action that the Commission considers appropriate, which can range from additional terms and conditions of delegation to withdrawal of delegated authority. Such enforcement measures are consistent with the spirit and intent of the PSEA.

Contact

Janine Beaulne
Policy Specialist
Policy Development Directorate
Public Service Commission of Canada
300 Laurier Avenue W
Ottawa, Ontario
K1A 0M7
Telephone: 613-992-0220
Fax: 613-943-2481
Email: janine.beaulne@psc-cfp.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to section 21 of the Public Service Employment Act (see footnote a), proposes to make the annexed Statistics Canada Census-Related Term Employment Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Janine Beaulne, Policy Specialist, Policy Development Directorate, Policy Branch, Public Service Commission, L’Esplanade Laurier, West Tower, 300 Laurier Avenue West, Ottawa, Ontario K1A 0M7 (tel.: 613-992-0220; fax: 613-943-2481; e-mail: janine.beaulne@psc-cfp.gc.ca).

Ottawa, January 26, 2009

JURICA ČAPKUN
Assistant Clerk of the Privy Council

STATISTICS CANADA CENSUS-RELATED TERM EMPLOYMENT REGULATIONS

INTERPRETATION

1. The definitions in this section apply in these Regulations.

“Act” means the Public Service Employment Act. (Loi)

“acting appointment” means the temporary performance of the duties of another position by a person, if the performance of those duties would have constituted a promotion had the person been appointed other than on an acting basis to the position. (nomination intérimaire)

“deployment” means the transfer of a person or of an employee not excluded by the Order to a position in accordance with section 6. (mutation)

“internal appointment process” means a process for making one or more appointments in which only persons excluded by the Order may be considered. (processus de nomination interne)

“Order” means the Statistics Canada Census-Related Term Employment Exclusion Approval Order. (décret)

“person” means a person excluded by the Order who is appointed or deployed to a position excluded by the Order. (personne)

“position” means a position excluded by the Order. (poste)

APPLICATION

2. These Regulations apply to those positions in Statistics Canada whose function is solely to provide administrative or management support or to perform data processing duties for the purpose of conducting the population census and the agriculture census as described in the Statistics Act and to the persons appointed or deployed to those positions on a specified term basis, other than other persons within the meaning of subsection 5(1) of that Act, that are excluded from the application of the definitions “deployment” and “internal appointment process”, paragraphs 22(2)(a) to (c) and sections 40, 41, 48, 51 to 53, 57, 59 and 62 of the Public Service Employment Act.

DEALING WITH EXCLUDED POSITIONS AND PERSONS

APPOINTMENT OR DEPLOYMENT ON A SPECIFIED TERM BASIS

3. Appointments or deployments to positions may be on a specified term basis only.

INTERNAL APPOINTMENT PROCESS

4. A person is not eligible for an internal appointment process other than for an acting appointment.

ACTING APPOINTMENTS

5. (1) The Commission shall, at the time that the following acting appointments are made or proposed as a result of an internal appointment process, inform the persons in the area of recourse, within the meaning of subsection 77(2) of the Act, in writing of the name of the person who is proposed to be, or has been, appointed and of their right and grounds to make a complaint:

1. (a) an acting appointment of four months or more;
2. (b) an acting appointment that extends the person’s cumulative period in the acting appointment from less than four months to four months or more.

(2) An acting appointment of less than four months, provided it does not extend the cumulative period of the acting appointment of a person in a position to four months or more, is excluded from the application of sections 30 and 77 of the Act.

(3) Despite subsection (2), the provision of paragraph 30(2)(a) of the Act respecting official language proficiency continues to apply in the case of an acting appointment of less than four months to a vacant bilingual position excluded by the Order if

1. (a) the Commission is able to fill the position with an appointment of a person or of an employee not excluded by the Order who meets the official language proficiency qualification; or
2. (b) the cumulative period of the acting appointments of all persons and the acting appointments within the meaning of the Public Service Employment Regulations of all employees not excluded by the Order in that position is four months or more.

(4) An acting appointment of four months or more but not more than twelve months to an encumbered bilingual position that the Commission cannot fill with an acting appointment of a person or an acting appointment within the meaning of the Public Service Employment Regulations of an employee not excluded by the Order who meets the language proficiency qualification under paragraph 30(2)(a) of the Act is excluded from the application of that paragraph respecting official language proficiency.

(5) Subsection (4) does not apply to an acting appointment to the same position if the cumulative period of the acting appointments of all persons and the acting appointments within the meaning of the Public Service Employment Regulations of all employees not excluded by the Order in that position is more than twelve months.

DEPLOYMENT

6. (1) The Chief Statistician may deploy a person or an employee not excluded by the Order.

(2) A deployment may be made within an occupational group or, unless deployment within the meaning of any regulations made under paragraph 26(1)(a) of the Act is excluded under those regulations, between occupational groups.

(3) A deployment made to a position shall be made in the same manner and in accordance with any regulations regarding deployment, within the meaning of subsection 2(1) of the Act, made by the Treasury Board.

(4) A deployment may not

1. (a) constitute a promotion within the meaning of regulations of the Treasury Board; or
2. (b) change a period of employment from specified term to indeterminate.

(5) A deployment may be made without consent of a person if

1. (a) agreement to being deployed is a condition of employment of their current position; or
2. (b) the person has harassed a person or employee not excluded by the Order in the course of their employment and the deployment is made to another position.

(6) On deployment, a person ceases to be the incumbent of the position to which they had previously been appointed or deployed.

(7) A deployment is not an appointment within the meaning of the Act.

PROBATIONARY PERIOD – TERMINATION OF EMPLOYMENT

7. (1) While a person is on probation, the Chief Statistician may notify the person in writing that their employment will be terminated in seven days from the day on which the notice is received, and the person ceases to be an employee at the end of that period.

(2) Instead of notifying a person under subsection (1), the Chief Statistician may notify the person that their employment will be terminated on the date specified by the Chief Statistician, and that they will be paid an amount equal to the salary they would have been paid during the notice period under that subsection.

COMING INTO FORCE

8. These Regulations come into force on the day on which they are registered.

[5-1-o]

Footnote a
S.C. 2003, c. 22, ss. 12 and 13

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).