Research publications

Contents

Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.

• 1 Background
• 2 Description and Analysis
  • 2.1 Priority for Appointment over All Other Persons for Members of the Canadian Forces Released for Medical Reasons that are Attributable to Service (Clause 5)
  • 2.2 Retroactivity to 1 April 2012 (Clause 9)
  • 2.3 Creation of Appointment Priority and Consequences (Clauses 2 to 4)
  • 2.4 Non-application of Priority Provisions (Clauses 6 and 7)
    • 2.4.1 Creation of a Priority Right for Another Person (Clause 6)
    • 2.4.2 Deployments (Clause 7)
    • 2.4.3 Complaints Regarding Internal Appointments (Clause 8)
• 3 Commentary
• Notes

1 Background

Bill C-11: An Act to amend the Public Service Employment Act (short title: Priority Hiring for Injured Veterans Act) was introduced in the House of Commons on 7 November 2013 by the Minister of National Defence, the Honourable Rob Nicholson, on behalf of the Minister of Veterans Affairs, the Honourable Julian Fantino. It amends the Public Service Employment Act (PSEA)1 to grant priority for appointment in the federal public service to members of the Canadian Forces (CF) who are released from military service for medical reasons attributable to service.

The PSEA was enacted as Part 3 of the Public Service Modernization Act on 7 November 2003 and came into force on 31 December 2005. It governs the staffing process in the federal public service, which means staffing in all institutions listed in schedules I, IV and V of the Financial Administration Act.2

Under the PSEA, the Public Service Commission of Canada (PSC) is responsible for recruiting and appointing qualified persons to the public service. The PSC may delegate this authority to the deputy heads of each federal institution that is subject to the PSEA, and it may make exclusions. The deputy heads report to the PSC on how their delegation is used, and the PSC tables in Parliament its assessment of the compliance of staffing practices in federal institutions with the PSEA.

Under the PSEA and the Public Service Employment Regulations (PSER),3 certain categories of individuals who meet specific criteria are given priority to appointments in the federal public service over all other persons. Provided that the eligible candidates meet the essential qualifications of the position and that preference is given to Canadian citizens,4 the priority levels set out in the PSEA follow this order:

1. An employee who is surplus within his or her organization - who has been informed that he or she will be laid off5 but has not yet been laid off - because the employee’s services are no longer required by reason of lack of work, the discontinuance of a function or the transfer of work or a function outside of the public service (section 40 of the PSEA)
2. Both an employee on leave of absence whose position was staffed for an indeterminate period and a person who replaced an employee on leave of absence, if that replacement was appointed for an indeterminate period, a priority over all others for up to one year following the return of the employee who had been on leave of absence (sections 41(1)(a) and 41(1)(b) of the PSEA)
3. A person already laid off because his or her services are no longer necessary for the reasons listed in point 1 (section 41(4) of the PSEA)
4. The following persons or classes of persons designated by the PSER pursuant to section 22(2)(a) of the PSEA, who are given fourth level priority over all others, in no particular order:
   • before a layoff becomes effective, a surplus employee from another federal organization whose services are no longer required but before any layoff becomes effective (section 5 of the PSER);
   • an employee who becomes disabled and is no longer able to carry out the duties of his or her position (section 7 of the PSER);
   • a member of the CF or the Royal Canadian Mounted Police (RCMP) who is released or discharged for medical reasons (section 8 of the PSER);
   • the surviving spouse or common-law partner of an employee or of a member of the CF or the RCMP whose death is attributable to the performance of duties (section 8.1 of the PSER);
   • an employee on a leave of absence as a result of the relocation of his or her spouse or common-law partner (section 9 of the PSER); and
   • a priority employee who was appointed or deployed to a lower level position in the public service (section 10 of the PSER).

Currently, priority consideration given to members of the CF released for medical reasons - attributable to service or not - has the same standing as other fourth-level priority categories provided by the PSEA.

Bill C-11 adds a priority right that will take precedence over all others. This right will be given to members of the CF released for medical reasons, provided that these reasons are attributable to their military service. In other words, this creates a distinction between members of the CF released for medical reasons that are attributable to service and those released for medical reasons that are not attributable to service. This second group will continue to receive priority under the PSER (now for a longer period), while the priority for those released for medical reasons that are attributable to service will take precedence over any other group designated in the PSEA or the PSER.

Currently, the PSER states that members of the CF released for medical reasons have:

• up to five years following their release to assert their right to priority appointment if the individual is certified within this period as being ready to return to work; and
• up to two years starting from the date on which the individual asserted his or her right to exercise this priority and apply for positions.

Minister Fantino has stated that the PSER will be amended so that the priority will be valid for five years following the date on which the member of the CF asserts his or her right. The amendment to the PSER should entitle all those released for medical reasons - whether attributable to service or not - to benefit from this new five-year window. Furthermore, the definition of who is considered personnel of the CF will now include persons who are members of cadet organization administration and training services, as well as members of Rangers.6

2 Description and Analysis

2.1 Priority for Appointment over All Other Persons for Members of the Canadian Forces Released for Medical Reasons that are Attributable to Service (Clause 5)

Clause 5 is the key clause of the bill. It adds new section 39.1 to the PSEA, under which top priority for appointment to a public service position is given to members of the CF released for medical reasons that are attributable to service.

2.2 Retroactivity to 1 April 2012 (Clause 9)

Under clause 9, the bill’s provisions are made retroactive to 1 April 2012. This provision allows members of the CF who are released for medical reasons that are attributable to service and who assert their priority status under the PSER after 1 April 2012 to be given top priority for appointment for up to five years after this priority has taken effect, once the bill has come into force, instead of for the two years currently provided by the PSER. This extension will also be given to veterans whose former two-year priority status expired after 1 April 2012 and before the bill comes into force.

2.3 Creation of Appointment Priority and Consequences (Clauses 2 to 4)

Under section 22(2)(a) of the PSEA, the PSC may determine who will be granted a priority right under the PSER. Such statutory priorities are last in the order of precedence of priority rights. Clause 2 places new section 39.1 at the top of the list of priority rights that take precedence over those provided for by the PSER.

According to the Public Service Commission Guide on Priority Administration:

Priority persons need only meet the essential qualifications referred to in PSEA 30(2)(a) and the conditions of employment of the position in order to be appointed. They are not required to meet any other merit criteria, such as asset qualifications, operational requirements or current or future organizational needs.7 [Emphasis in original]

Clause 3 extends this exemption to members of the CF released for medical reasons that are attributable to service and who have a priority right.

Section 39(1) of the PSEA gives preference, subject to certain priorities, to Canadian citizens8 in an “advertised external appointment process,” namely when the competition is not limited to current public service employees. Clause 4 includes new section 39.1 in these priorities, which means that members of the CF released for medical reasons that are attributable to service and who meet the essential qualifications may also be given preference in this type of process.

2.4 Non-application of Priority Provisions (Clauses 6 and 7)

2.4.1 Creation of a Priority Right for Another Person (Clause 6)

Section 43 of the PSEA provides the PSC with the discretionary authority to not apply a priority right if, by domino effect, it would create a new priority right by requiring another person to be declared surplus. Clause 6 adds a reference to new section 39.1 and consequently adds to the list of priority rights that the PSC may choose not to apply the priority right of members of the CF released for medical reasons that are attributable to service.

2.4.2 Deployments (Clause 7)

Under section 53(2) of the PSEA, the deputy head of a federal institution may disregard priority rights in the case of a deployment. Clause 7 adds a reference to new section 39.1, thereby adding priority rights for members of the CF released for medical reasons that are attributable to service to those that a deputy head may disregard.

2.4.3 Complaints Regarding Internal Appointments (Clause 8)

Under section 87 of the PSEA, appointments resulting from the exercise of a priority right may not be appealed to the Public Service Staffing Tribunal. Clause 8 adds priority rights for members of the CF released for medical reasons that are attributable to service to the list of priority rights for which appointments cannot be appealed.

3 Commentary

During debate at second reading in the House of Commons on 20 November 2013, the opposition parties gave their support to the bill, while pointing out that the bill would likely have limited impact on the employment of veterans in the federal public service.9

Veterans Ombudsman Guy Parent offered overall support for the bill, but he raised some concerns over the distinction made between members released for medical reasons that are attributable to service and those released for medical reasons that are not:

I believe that all medically releasing [sic] Canadian Armed Forces members should be treated the same way, because there is an inherent service relationship for every Canadian Armed Forces member who is medically released because the individual can no longer serve in uniform.10

On an administrative point, Member of Parliament Sylvain Chicoine (Châteauguay-Saint-Constant) pointed out that the bill does not specify who is responsible for determining whether the medical reasons resulting in a member’s release are attributable to military service or not and that this may pose a problem with respect to the bill.11

Currently, the decision to release a member of the CF for medical reasons is the responsibility of the CF, while the responsibility for confirming the link between medical reasons and military service lies with Veterans Affairs Canada. Veterans who believe that their release for medical reasons is attributable to military service may, if the department does not share that view, appeal to the Veterans Review and Appeal Board. This may entail a lengthy process that could shorten or completely eliminate the priority period provided by the bill to the individual in question. Not until the amendments to the PSER are published will there be a clear picture as to how this situation will be handled.

Notes

*  Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]