Canada Gazette, Part I, Volume 157, Number 23: Locally Engaged Staff Employment Regulations, 2023

June 10, 2023

Statutory authority
Public Service Employment Act

Sponsoring agency
Public Service Commission

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Locally engaged staff (also referred to as locally-engaged staff) are persons hired outside Canada to perform diverse functions in support of government operations abroad. They are subject to employment practices and labour laws of the host country where they are employed, which are particular to the more than 112 jurisdictions where missions or military support units abroad are located. The local knowledge, contacts and language skills of locally engaged staff are essential to the delivery of the government operations abroad.

Global Affairs Canada (GAC) manages over 5 000 locally engaged staff at Canada’s diplomatic and consular missions, while the Department of National Defence (DND) manages over 100 locally engaged staff in foreign military support units abroad.

The locally-engaged staff employment regime has been excluded pursuant to the Locally-Engaged Staff Exclusion Approval Order from the operation of the Public Service Employment Act (the Act) since it was first enacted in 1967, and is regulated by the Locally-Engaged Staff Employment Regulations (the current Regulations).

The current Regulations need to be modernized as they no longer meet the operational needs of the two organizations they serve and they are not aligned with the current flexible, merit-based staffing system of the Act.

Objective

The objective of this regulatory initiative is to modernize the current Regulations to align with the Public Service Employment Act framework and to improve the Government of Canada’s ability to efficiently and effectively employ a locally engaged workforce in support of its operations abroad.

Description

The proposed Locally Engaged Staff Employment Regulations, 2023 (the proposed Regulations) would repeal and replace the current Regulations. The proposed Regulations would update requirements around authority, appointments, temporary employment and termination of employment as they pertain to the hiring of locally engaged staff in missions and military support units outside Canada to better align with the Public Service Employment Act. They would also set new requirements for oversight and reporting.

Provisions pertaining to oath and affirmations of allegiance and office as well as probation included in the current Regulations are not included in the proposed Regulations because they did not translate well in the international context.

Authority

The proposed Regulations would establish authority to make appointments directly to the deputy heads (e.g. Deputy Minister of Foreign Affairs and Deputy Minister of National Defence) of GAC and DND, each within their respective departments. It would also specify that this authority can be sub-delegated by those deputy heads to persons within their organization. The proposed Regulations would also remove the restriction imposed on DND to appoint solely in NATO countries.

Appointments

The proposed Regulations would provide the deputy heads of GAC and DND, or their delegate, with the flexibility to appoint locally engaged staff while ensuring that such appointments are made on the basis of merit. The proposed Regulations would require that these deputy heads, or their delegate, establish the qualifications needed for the work to be performed and could use any assessment method they consider appropriate to determine whether a person meets those qualifications, and determine if the appointment opportunity should be advertised or not and be made for a specified or indeterminate period. The changes would allow a better alignment with the Act, including removing the requirement for vacant positions to be filled by competition and ensuring that selection criteria are based on relative merit.

Temporary employment

The proposed Regulations would provide for a mechanism allowing the employment of temporary staff to meet short-term immediate needs expeditiously. This mechanism would allow the deputy heads of GAC or DND, or their delegate, to appoint temporary staff for a maximum of 125 working days in a calendar year. The current Regulations restrict this employment mechanism to emergency situations.

Termination of employment

The proposed Regulations would establish requirements related to the termination of employment, in the following circumstances.

(1) Lay-off

The proposed Regulations would authorize deputy heads of GAC and DND, or their delegate, to lay off locally engaged staff if their services were no longer required for the reasons of lack of work, the discontinuance of a function or the transfer of work or a function outside a mission or a military support unit. Written notice of the lay-off would be required one month prior to the effective date of the lay-off or in accordance with local labour law, whichever period is greater. The current Regulations have similar lay-off provisions with the exception of a priority entitlement for an employee appointed for an indeterminate period who has been laid off, which has been removed from the proposed Regulations.

(2) Resignation

The current Regulations do not include provisions pertaining to the resignation of locally engaged staff. Under the proposed Regulations, a person who is appointed as locally engaged staff could resign by giving notice in writing of their intention and as per the requirements of local labour law. The employment of a person appointed as locally engaged staff would end on the date specified in writing by the deputy head of GAC or DND, or their delegate.

Oversight and reporting

The current Regulations do not prescribe any requirements related to the oversight and reporting. The proposed Regulations would prescribe oversight and reporting requirements for the deputy heads of GAC and DND. Deputy heads would be required to monitor compliance to the proposed Regulations and report their results to the Public Service Commission of Canada (the Commission)three years after the coming into force of the proposed Regulations and, at a minimum, every five years after that.

Regulatory development

Consultation

The concepts and elements that underpin the new proposed regulatory approach were shared with locally engaged staff during a global symposium. The feedback gathered was positive and supportive of the proposal.

Modern treaty obligations and Indigenous engagement and consultation

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

Instrument choice

During the policy development phase of these proposed measures, the Commission considered multiple options to meet the desired outcome of improving the Government of Canada’s ability to efficiently and effectively employ a locally engaged workforce, in support of its operations abroad.

The regulatory-making authority respecting exclusion approval orders under the Act is vested with the Commission, with the approval of the Governor in Council. In exercising this authority, the Commission considered two options regarding the employment of locally engaged staff: maintaining the current exclusion order where locally engaged staff are excluded from the entire operation of the Act, or excluding locally engaged staff from specific provisions of the Act. Pursuant to the Act, the Commission can only exclude when it is determined that it is neither practicable nor in the best interests of the public service to apply the Act or any of its provisions to a class of persons. Given the complex nature of locally engaged staff who are subject to local labour laws and varying jurisdictions, and considering that locally engaged staff are not subject to other Government of Canada human resources–related legislation, the Commission determined that the current exclusion scheme should be maintained. Further, the Act requires the enactment of regulatory rules governing the employment of excluded persons.

Regulatory analysis

Benefits and costs

A cost-benefit analysis was completed and determined that the overall net costs associated with the proposal is minimal and less than $1 million annually.

It is anticipated that the proposed Regulations would have an impact on resources for both employing departments, GAC and DND. Policies, directives and other internal documents would have to be updated to reflect the new requirements stemming from the proposal.

In addition, departmental staff would have to learn and adjust to the new regime. However, it is believed that this would not yield significant costs to the employing departments given that the proposed regime is aligned with the current Public Service Employment Act, which has been in effect for over 15 years and is widely known and understood by the hiring managers of both departments.

Establishing a regime consistent with the current Public Service Employment Act would provide deputy heads with the same flexibility they have to appoint persons in the public service and would allow for more efficient and effective appointment practices.

The proposed Regulations would provide for clear accountability for the employment of locally engaged staff. Given that deputy heads would report the monitoring results to the Commission, it would enable the PSC to provide advice and guidance to the employing departments and to share its expertise to improve the operation of the locally engaged staff employment framework. Moreover, it would allow the PSC to assess the effectiveness of the regulatory regime it established and determine if it meets the intended outcomes.

Small business lens

Analysis under the small business lens concluded that the proposed Regulations would not impact Canadian small businesses.

One-for-one rule

The one-for-one rule would not apply as there is no incremental change in the administrative burden on business. The proposal would repeal an existing regulation and replace it with a new regulatory title, which would result in no net increase or decrease in regulatory titles.

Regulatory cooperation and alignment

The proposed Regulations do not have a regulatory cooperation component.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

By establishing a modernized employment regime, this proposal would improve the Government of Canada’s ability to efficiently and effectively employ a locally engaged workforce, while granting sufficient flexibility to operate within multiple jurisdictions. This would allow employing departments to apply local labour law while strengthening Canada’s commitment to diversity and building gender equality around the world.

Implementation, compliance and enforcement, and service standards

A new Locally Engaged Staff Exclusion Approval Order (exclusion order) would be required to support implementation of the proposed Regulations. The making of this exclusion order is planned to coincide with the finalization of the proposed Regulations. Accordingly, the proposed Regulations would be made to enter into force with a new exclusion order, both of which would need to be approved by the Governor in Council.

The deputy heads of GAC and DND would be responsible for ensuring compliance to the proposed Regulations within their respective departments.

Contact

Christine Roy
Regulations and Exclusion Approval Orders Section
Policy and Strategic Directions Directorate
Public Service Commission of Canada
Email: cfp.reglements-regulations.psc@cfp-psc.gc.ca
Telephone: 873‑353‑2249

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, under section 21 of the Public Service Employment Act footnote a, proposes to make the annexed Locally Engaged Staff Employment Regulations, 2023.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Christine Roy, Regulations and Exclusion Approval Orders Section, Policy and Strategic Directions Directorate, Public Service Commission of Canada (email: cfp.reglements-regulations.psc@cfp-psc.gc.ca; tel : 873‑353‑2249).

Ottawa, June 1, 2023

Wendy Nixon
Assistant Clerk of the Privy Council

Locally Engaged Staff Employment Regulations, 2023

Interpretation

Definitions

1 (1) The following definitions apply in these Regulations.

locally engaged staff
means persons who are excluded from the application of thePublic Service Employment Act under section 20 of that Act and who are
  • (a) appointed and employed outside Canada;
  • (b) performing duties that are directly related to diplomatic or consular operations or a military support unit of the Government of Canada located outside Canada; and
  • (c) subject to the laws of the host country where they are employed. (personnel embauché sur place)
organization
means the Department of Foreign Affairs, Trade and Development or the Department of National Defence. (administration)

Interpretation

(2) Any reference to a deputy head in these Regulations is to be read as a reference to the deputy head of the Department of Foreign Affairs, Trade and Development in respect of a diplomatic or consular operation and to the deputy head of the Department of National Defence in respect of a military support unit of the Government of Canada located outside Canada for which they are responsible.

Appointments

Powers or functions of deputy head

2 (1) A deputy head is responsible for the appointment of locally engaged staff and matters related to their employment under these Regulations.

Exercise of powers or functions

(2) A deputy head may authorize any person within their organization to exercise or perform any of the deputy head’s powers or functions under these Regulations.

Appointment on basis of merit

3 (1) The appointment of any person as locally engaged staff must be made on the basis of merit.

Merit

(2) The appointment is made on the basis of merit if the deputy head is satisfied that the person to be appointed meets the qualifications established for the work to be performed before the start date of their appointment.

Powers of deputy head

(3) A deputy head may

Interpretation

(4) It is not necessary to consider more than one person for an appointment to be made on the basis of merit.

Temporary Employment

Appointment

4 (1) In order to meet short-term, immediate staffing needs, a deputy head may appoint a person as temporary staff for a maximum of 125 working days in a calendar year.

Non-application

(2) The provisions of these Regulations, other than this section and sections 1, 2 and 8, do not apply to temporary staff.

Written notice

(3) At any time during the period for which a person is appointed as temporary staff, the deputy head may provide a written notice to them ending their appointment.

Period of notice

(4) The written notice must be given at least one day before the effective date of the end of appointment provided for in the notice or in accordance with the laws of the host country where they are employed, whichever results in the longer notice.

Termination of temporary employment

(5) The employment of a person appointed as temporary staff ends at the end of the period for which they were appointed or on the effective date specified in the written notice.

Termination of Employment

Lay-off

5 (1) A deputy head may lay off a person who is appointed as locally engaged staff under these Regulations due to a lack of work, the discontinuance of a function or the transfer of work or a function outside a diplomatic or consular operation or a military support unit of the Government of Canada located outside Canada.

Written notice

(2) A deputy head must give written notice of a lay-off to the person one month before the effective date of the lay-off provided for in the notice or in accordance with the laws of the host country where they are employed, whichever results in the longer notice.

Resignation

6 A person who is appointed as locally engaged staff under these Regulations may resign by giving notice in accordance with any applicable laws of the host country and by giving written notice of their intention to resign to the deputy head who will determine the effective date of the termination of employment.

End of employment

7 The employment of a person appointed as locally engaged staff ends on one of the following dates:

Oversight and Reporting

Oversight

8 (1) A deputy head must monitor compliance with these Regulations, including the manner in which any person authorized under subsection 2(2) to exercise or perform the deputy head’s powers or functions complies with the requirements of these Regulations.

Reporting

(2) A deputy head must report the results of their monitoring to the Commission within three years after the day on which these Regulations come into force and at least every five years after that.

Transitional Provisions

Definition of former Regulations

9 For the purposes of sections 10 to 15 of these Regulations, former Regulations means the Locally-Engaged Staff Employment Regulations as they read immediately before these Regulations come into force.

Priorities

10 A person who has a priority for appointment under subsection 11(3) of the former Regulations on the day on which these Regulations come into force continues to have priority for appointment for the period provided for under the former Regulations.

Pending competitions and appointments

11 (1) Any competition or other selection process that is being conducted under the former Regulations on the day on which these Regulations come into force continues to be conducted under the former Regulations as if these Regulations had not come into force.

Results

(2) The results of those competitions or other selection processes remain valid for six months after the day on which these Regulations come into force.

Notice of lay-off

12 If an employee was served, prior to the day on which these Regulations come into force, with a written notice under subsection 11(1) of the former Regulations that they would be laid off but the applicable notice period has not ended, the provisions of the former Regulations continue to apply to that employee until the end of that period.

Employees on probation and rejection

13 Any employee who was considered to be on probation under section 10 of the former Regulations immediately before the day on which these Regulations come into force continues to be on probation until the end of the period established under the former Regulations and subsections 10(2) to (4) of the former Regulations continue to apply to that employee until the end of that period.

Emergency employment

14 Any employee who occupied a position under subsection 8(1) of the former Regulations continues to be subject to those Regulations after the day on which these Regulations come into force until they are served with a written notice under subsection 8(4) of the former Regulations and they cease to be an employee under subsection 8(5) of those Regulations.

Revocation of appointment

15 Any inquiry commenced under the former Regulations that has not been completed by the day on which these Regulations come into force must be dealt with and disposed of in accordance with the former Regulations.

Repeal

16 The Locally-Engaged Staff Employment Regulations footnote 1 are repealed.

Coming into Force

Registration

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

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