Questions and Answers

The PSAC believes that in order to maintain a professional meritorious Public Service, staffing should always be indeterminate unless there are compelling reasons not to do so.

The Public Service Employment Act and Public Service Employment Regulations clearly state that public service employees must be hired according to the principles of merit. This includes term staffing.

The Treasury Board Term Policy is in agreement, stating that “Merit is the fundamental principle of hiring all employees, including term employees, into the Public Service.” The Public Service Commission reinforces this principle, saying that although casual employees need not pass a merit test in order to be employed but term employees must. (Career Progression in the Public Service – Temporary versus Permanent Start-ups, A Summary Report by the Public Service Commission of Canada 2009)

The TBS Term Policy says that “There are valid requirements for using term employment, such as backfilling temporary vacancies resulting from indeterminate employees on leave and acting/developmental assignments, short-term projects and fluctuating workloads.” It goes on to say, “This option should be used, however, only in situations where a need clearly exists for a limited time and is not anticipated to become a permanent ongoing need.”

The TBS Term Employment Policy goes on to specify that “where a person who has been employed in the same department/ agency as a term employee for a cumulative working period of three (3) years without a break in service longer than sixty (60) consecutive calendar days, the department/agency must appoint the employee indeterminately at the level of his/her substantive position.”

The intent of the Term Policy isn’t that three years is an appropriate length of time during which an employee should remain in a term status. Instead three years is an arbitrary length of time after which misuse of term employment can no longer be tolerated. Concurrent renewals for three years strongly suggest that these employees must be considered meritorious by their employer.

The long term expectation of the Term Policy was to force Departments to improve human resources planning and integration with business planning and to move from a short to longer-term focus in their hiring strategies.

The PSAC opposes all forms of precarious employment and believes that all workers should have timely access to indeterminate employment in the federal public sector.

Anytime there are cuts, austerity measures, or “efficiencies” put forward by the Government, term employees become particularly vulnerable.  Term contracts can be terminated early or not renewed, and opportunities to become indeterminate employees – or even remain employed with the Government – may be significantly reduced.

Because of Section 51 of the Public Service Employment Act (PSEA) and the Treasury Board Term Employment Policy, term employees who have been employed in the same department for a period of three (3) continuous years, without a break of 60 consecutive calendar days or more, must be appointed as an indeterminate employee at the level of their substantive position.

Many departments are invoking an exception under the Treasury Board Term Employment Policy that allows them to stop the accumulation of service toward the required three years to become indeterminate. (More on this later)

Only indeterminate employees have rights under the WFAA. Term employees do not.

The Public Service Employment Act Section 58(1) states that an employee ceases to be an employee and is not entitled to priority status for placement within the federal public service when their term contract expires.

Despite this, term employees must be treated in a fair and transparent fashion and in accordance with the principles of merit.

Most term employees are not eligible for severance pay under the collective agreement. Term employees in the EB, PA and SV bargaining units were entitled to receive severance termination payouts for service up to the second day of the new labour contract (June 22 PA, July 2 EB, August 6 SV). These employees were entitled to immediate or delayed severance pay at a rate equal to one week’s pay for each year of continuous employment to a maximum of 30 weeks.

Term employees are entitled to a 30-day written notice period if their term isn’t being renewed.

On June 20, 2008, the Canadian Human Rights Tribunal in Lavoie v. Treasury Board of Canada found that the Term Employment Policy was discriminatory on the basis of sex because periods of maternity and parental leave were considered breaks in service. As a result, the Term Employment Policy was amended. Now, maternity and parental leave does not constitute a break in service for female employees and must be counted when calculating the three years for an appointment to an indeterminate position.

Term employees are entitled to Maternity and Parental Allowance top-up payments if they return to work for a period equal to the period they were in receipt of the allowance. If their term isn’t renewed these employees may not be able to return to work and instead will have to repay the allowance unless they are re-employed within the Public Service within 90 days.

Sunset funding must be of a limited duration. The source of funding for salary dollars must also be from external sources, either from the private sector, another public service organization, shared agreements with provincial governments or funds received from Treasury Board to carry out a program, project or activity of a limited duration. Funding transferred from within the department doesn’t meet these criteria.

Periods of term employment that are sunset funded do not count as part of the cumulative working period for the purposes of conversion to indeterminate status. Departments and agencies must identify a program, project, or initiative as being sunset funded and term employees must be advised in writing, at the time that they are offered employment or re-appointed in such programs/projects/initiatives, that their period of employment will not count in the calculation of the cumulative working period for indeterminate appointment.

Periods of term employment immediately before and after sunsetted term employment (i.e. when the original criteria no longer applies) should count as part of the cumulative working period where no break in service longer than 60 consecutive calendar days has occurred.

The legislation and policies governing term employment in Treasury Board departments give the employer significant discretion.

The Public Service Labour Relations Board does not have jurisdiction to hear grievances based upon the term employment policy or the expiration of a term contract.

The employer has the right to end term employment before the originally anticipated end date as long as the notice period is respected.

Because the termination of term employment isn’t considered a lay-off, there are no complaint rights before the Public Service Staffing Tribunal.

Unfortunately, the Federal Court was clear in a case called Endicott that the term policy is not “binding” on departments but, rather, operates as a series of considerations that departments must take into account when managing their work through the use of terms.

The Term Employment Policy contains an exception to the three-year rollover obligation. The Term Policy 7.2 says that:

“In circumstances where a department/agency has given notice to the employer that, in reviewing its financial situation over the planning horizon (2-3 years), it can establish that the indeterminate appointment of term employees would result in workforce adjustment situations in the department overall, the department will advise affected employees employed on a term basis, in writing, that any further time spent in their current position will not count in the calculation of the cumulative working period for indeterminate appointment.”

Departments can invoke this exception if they meet the following pre-conditions:

• The department must inform the Treasury Board that they are taking this action.
• The department must inform the union that they are taking this action.
• The department must inform the employee that they are taking this action.
• The department must establish that the appointment of term employees would result in work force adjustment situations in the department overall.

The PSAC believes that departments and agencies must:

• Respect merit principles around all staffing actions and staff indeterminately for all positions that can reasonably be expected to be on-going.
• Make term employees indeterminate as soon as it is clear that the work that needs to be done is on-going.
• Make treatment of term employees a standing agenda ite at all Union Management Committee meetings and Joint Workforce Adjustment committees. The PSAC believes that all departments and agencies sould be acting proactively and create standing Workforce Adjustment Committees.
• Ensure that when they decide to terminate or not renew term contracts, the process must respect the dual principles of merit and employment equity. It is the union’s position that when term contracts are either terminated or not renewed, they must be done so through a process of barrier free seniority. Departments and agencies must consider the fact that employees who have had their term contracts consistently renewed must be meritorious and reflect that in their decisions about which terms will have their contracts not renewed.
• Carry out effective human resource planning to minimize the impact of workforce adjustment situations on indeterminate employees, on the department or organization, and on the public service (WFAA 1.1.2). Human resource planning must include planning around the transparent and fair treatment of term employees.
• Share its human resource planning with its unions on a regular basis, including its use of term employment, casual employment and temporary staffing employment, and indicate how each staffing conforms to its human resource planning and a meritorious public service.
• Ensure that they inform the union that they are using the exception in the Term Policy and that term employees are being suspended 30 days before the date when the suspension is taking place.
• Ensure that they inform all term employees in writing that they are using the exception in the Term Policy and that term employees are being suspended 30 days before the date when the suspension is taking place.
• “Establish that the appointment of term employees would result in workforce adjustment situations in the department overall”. The PSAC believes that the employer must share the information that led them to this decision with the union.
• Ensure that when the workforce adjustment threat has passed, and if term employees are still on strength and three years have passed, they should be made indeterminate.
• Participate in Workforce Adjustment Committees and proactively monitor the employment status of term employees who have had their three year roll over date suspended, in order that they be treated in a fair and transparent fashion and staffed indeterminately and before external staffing for equivalent positions is contemplated.

The union supports measures that increase employment in the public service for both indeterminate and term employees, but will oppose isntances when the exception to the Treasury Board policy for rollover is being used inappropriately to undermine the purpose and goals of the policy.

If you receive notice that your term will not be renewed of that the contract will end before the original specified time, inform the union in your workplace, detailing:

• your place of work, classification and a short description of the work you perform or if you have been hired to work on a specific project or program;
• the date of the notice;
• the date that the contract termination takes effect;
• the total amount of continuous time that you have been a term employee.

If you receive notice that your department is invoking the exception in the Term Policy that allows them to suspend the calculation of time towards your rollover to indeterminate status, inform the union in your workplace, detailing:

• your place of work, classification and a short description of the work you perform or if you have been hired to work on a specific project or program;
• the date of the notice;
• the date that the suspension takes effect;
• the total amount of continuous time that you have been a term employee;
• any breaks in service that have occurred.