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Chapter 1
Opinion of the Commission
1.1 In 2008-2009, the Public Service Commission (PSC) continued to play its unique and essential role of ensuring, on behalf of Parliament, a professional, merit-based,
non-partisan public service.
1.2 This year was the third full year of operation under the Public Service Employment Act (PSEA) which came into force in 2005. Departments and agencies, and the PSC, continued to make progress in implementing the objectives set out in the Act, with significant achievements being made in some areas. However, the PSC is concerned that there are early and important signs that added vigilance is required to ensure that Canadians continue to benefit from a merit-based, non-partisan public service in the years ahead.
Context
1.3 The current PSEA introduced changes across the public service to modernize human resources (HR) management. The changes increased the responsibilities of deputy heads to staff their organizations and manage people. They reinforced safeguards to protect the long-standing core public service values of merit and non-partisanship and strengthened the accountability of the institutions and individuals responsible for managing the public service.
1.4 Specific elements of the HR management regime underwent fundamental changes. The current Act introduced an explicit definition of merit, the basis upon which appointments are made to and within the public service. The Act is values-based in its orientation. It encourages the PSC to delegate staffing authorities to deputy heads who, in turn, put staffing in the hands of managers. The central objective was to improve the ability of managers to customize staffing processes to address their particular operational needs. At the same time, the Act placed greater emphasis on ensuring effective accountability of deputies to the PSC and, through the PSC, to Parliament.
1.5 The Preamble to the Act envisions a public service that, amongst other things, "is characterized by fair, transparent employment practices, respect for employees, effective dialogue, and recourse aimed at resolving appointment issues." Consistent with this, several important changes were made to the recourse regime. "Informal discussion" was introduced for employees participating in internal appointment processes. The Act provides that, where the PSC delegates the authority to make internal appointments to a deputy head, the authorization must include the power to revoke those appointments and to take corrective action following an investigation by the deputy head. The intent of these changes was, for the most part, that the concerns of employees be addressed in the workplace, with the exception of fraud, political influence or abuse of authority. The Public Service Staffing Tribunal (PSST) was established to hear and decide complaints of abuse of authority in internal appointments, implementation of corrective actions ordered by the Tribunal and layoffs. An employee can also complain to the PSST that a revocation was unreasonable or that there was a failure to assess them in the official language of their choice. The Act places a greater emphasis on oversight for the PSC, through its audit function and refocused investigative powers.
1.6 The Act also addresses political activities. Part 7 clarifies the right of employees to engage in political activities while maintaining the principle of political impartiality in the public service. It established a new role for the PSC in reviewing requests from employees to seek nomination as, or to be, a candidate in a municipal election. The PSC may grant permission if it is satisfied that the activity will not impair, or be perceived as impairing, the employee's ability to perform his or her duties in a politically impartial manner.
1.7 As has been widely noted by the PSC and others, the full potential of the PSEA could only be realized with significant cultural change. The Act affected deputy heads, who were accountable for exercising increased delegated responsibilities for their staffing operations; managers, who needed to learn how to apply a values-based approach and their new accountability for staffing; HR professionals, who needed to adjust their roles to support managers; and employees, who needed to become familiar with new staffing processes and mechanisms for recourse.
1.8 In the third year since implementation, we now have a base of knowledge and experience under the PSEA to better understand the impact of these changes.
Overall strength and integrity of staffing
1.9 In 2008-2009, the public service continued to experience growth. As of March 2009, there were 208 947 individuals in organizations for which the PSC has delegated its authority to make appointments to deputy heads, an increase of 4.5% from March 2008.
1.10 Growth, along with retirements and continued strong internal mobility, resulted in persistent high levels of staffing activity this year. Organizations for which the PSC has delegated its authority to make appointments conducted a total of 126 651 staffing activities in 2008-2009.1 This represents an increase of 3.7% over the previous fiscal year. Of note, the number of new indeterminate hires from outside the public service increased by 20.1%, to 12 705. In addition, of the approximately 9 700 indeterminate employees who left the public service in 2008-2009, most left through retirement. Resignations represented only 1.4% of the indeterminate population.
1.11 High levels of staffing activity reinforce the need for a modernized staffing system, one that is responsive to the needs of organizations and managers and supported by a strong HR community. At the same time, this environment presents many opportunities for employees and Canadians to be engaged in meaningful work in the public service.
1.12 Based on the PSC's various oversight activities in 2008-2009, we have found that the progress made in realizing the intent of the current PSEA in its first two years of operation has continued and, in some areas, improved. Of particular note:
- Overall, the staffing performance of organizations is acceptable, with an improvement of about four percentage points (to 77%) in the number of performance areas reviewed across departments and agencies and assessed as acceptable. Furthermore, we are starting to see examples of strong management performance.
- The number of departments and agencies having acceptable performance regarding integrated HR and business planning jumped 33 percentage points, from 28% in 2007-2008 to 61% in 2008-2009.
- There has also been a significant increase, from 36% in 2007-2008 to 75% in 2008-2009, in organizations assessed as acceptable with respect to organizational HR support systems. Nonetheless, in seven large organizations (representing 40.4% of the PSEA universe), sub-delegated managers indicated that better support was required from their staffing advisors and systems.
At the same time, significant improvements are still required by organizations in the area of managerial accountability for results.
1.13 We have also concluded based on our 2008-2009 oversight activities that the core values of merit and non-partisanship are generally being respected across the public service. However, we are increasingly concerned that the integrity of the appointment system is being undermined by the cumulative impacts of organizational practices that do not adequately adhere to a values-based approach respecting the guiding values of fairness, access, transparency and representativeness. We have found individual cases where merit has not been respected, or where there is insufficient evidence to determine whether merit was respected. We have also observed the emergence of new challenges with respect to non-partisanship that require more attention to ensure that Canadians continue to benefit from a merit-based, non-partisan public service in the years ahead.
Issues of concern
1.14 Time to staff — One of the primary expectations of the PSEA was that staffing would be faster and more efficient. Efficient staffing processes allow the public service to maintain effective operations and program delivery and enable managers to compete more effectively with other prospective employers. Efficient staffing processes also ensure that employees are appointed more quickly and in place to perform the work that is required.
1.15 The time it takes to staff positions is an important indicator of the efficiency of the staffing system. When faced with excessive time to staff, work can be delayed or managers may turn to alternate or temporary staffing options, such as casual employees or acting appointments, with the attendant impacts on the core and guiding values of the PSEA. Candidates may also accept offers of employment elsewhere, in another work unit or another organization, or outside the public service.
1.16 In 2008-2009, the PSC's analysis of the Survey of Appointments and Survey of Staffing found that, while the average time required to staff indeterminate advertised positions increased following the coming into force of the PSEA in December 2005 from 22.8 weeks to 24.1 weeks, it then decreased to 23.5 weeks as organizations started to adapt to the new staffing regime. Analysis of internal indeterminate advertised staffing processes shows that increased time to staff under the current PSEA is partly due to the increased use of collective staffing, which can often take longer to complete than distinct staffing processes. Additional analysis of time to staff is presented in Chapter 5.
1.17 While improvements are being made as experience with the current regime grows, the PSC is concerned that the average time to staff still remains higher than it was prior to the current Act. Other analysis we conducted in 2008-2009 demonstrated that improvements in time to staff can be achieved by up-front investments in HR planning, organizational support (e.g. HR capacity and systems), as well as managerial accountability and monitoring of results. The PSC's Extreme Hiring Makeover pilot, for example, showed that managers, and a strong project management approach, can help ensure that efficiencies are achieved along the various steps of the process. Using such an approach for an external process, staffing was completed in 45 calendar days (from advertisement to offers of appointment).
1.18 Based on the evidence available, the PSC believes that there remains considerable potential for organizations and individual managers to reduce the time required to staff within the existing legislative and policy framework. Reductions of up to 30% in the time to staff may be possible, depending on the type of process and the size of the organization, and provided managers have the HR support, information and tools they require and adopt a more proactive management approach.
1.19 While increased efficiency and reduction in time to staff was a primary expectation of the PSEA, efficiency cannot be gained at the expense of the core and guiding values of the Act. By focusing its efforts on providing innovative approaches and tools for staffing, information to monitor staffing performance and clearer guidance on balancing the values, the PSC will continue to support organizations seeking to become "best performers" when it comes to time to staff.
1.20 Temporary workforce — In its 2006-2007 Annual Report to Parliament, the PSC raised concerns related to the recruitment of permanent hires via the temporary workforce. In 2008-2009, the PSC observed not only that the trend has persisted, but also that casual employment is increasingly used as a source of permanent hires.
1.21 While we recognize the need for temporary workers to meet short-term requirements or to bring in special expertise, casual workers are excluded from all provisions of the PSEA, including merit. In subsequent appointments of casuals to indeterminate positions, these workers have an advantage over other candidates because of the knowledge, experience and exposure they acquired while they were employed as a casual worker. In addition, casuals tend to be drawn from local pools, impacting on the values of access and representativeness.
1.22 In 2008-2009, PSC statistics showed that there has been some improvement in the area of indeterminate hires, with the proportion of public servants with no prior experience in the public service increasing from just over 16% in 2000-2001 to 35% in 2008-2009. However, we also observed a new trend: the prior public service employment of new indeterminate hires is increasingly more likely to be in the casual workforce exclusively. Individuals whose prior experience in the public service was as casual workers, and who were never term employees, represented 4% of all new indeterminate hires in 2000-2001. By 2008-2009, this proportion had increased to 15%.
1.23 The proportion of new indeterminate hires with prior experience as casual hires in the public service is a concern to the PSC. The advantage of hiring individuals with prior experience in the federal public service needs to be balanced with the guiding values of access, fairness, transparency and representativeness. In 2009-2010, the PSC will be examining this trend and its implications in more depth and determining whether further actions are necessary.
1.24 Use of private firms — We are also concerned that private firms are being used to hire temporary workers outside the PSEA. If there is an established job, unless it is temporarily vacant, under most circumstances it should be filled pursuant to the PSEA through an appointment made on the basis of merit. In addition, the repeated use of contractors over an extended period can be counter to the guiding values. For example, there are issues associated with the advantages gained by the contract workers for entry into the public service and whether these workers meet the requirements of public servants. Given the use of private firms, in 2009-2010 we will be taking a closer look at temporary help services within the context of the PSEA and adherence to the guiding values.
1.25 Student bridging — The PSC's October 2008 statistical study on Appointments under the Public Service Employment Act following participation in federal student employment programs determined that over one fifth of participants in the Federal Student Work Experience Program (FSWEP) obtained term and indeterminate jobs in the public service. The PSC's Audit of the Federal Student Work Experience Program and Subsequent Appointments Through Bridging Mechanisms, released in May 2009, found that, overall, the program is working reasonably well.
1.26 However, the audit also found that over one third of the bridging appointment processes reviewed were unsatisfactory in that they did not respect the PSC Appointment Framework. Furthermore, audited organizations had not integrated bridging appointments into their HR plans and few of them had monitored selection and appointment decisions to ensure that they respected the PSEA and the guiding values. The audit concluded that more rigour is needed in the documentation supporting bridging decisions in order to ensure that legislative and policy requirements, as well as the staffing values, are respected.
1.27 Over the past few years, the number of FSWEP participants hired into the public service has continued to increase, from 9 574 hires in 2006-2007 to 9 932 hires in
2008-2009. With the announcement in the January 2009 Budget of an additional $20 million over two years for departments and agencies to hire students, this upward trend may continue. Especially if it does, the PSC expects managers to apply greater rigour in demonstrating merit and adherence to the guiding values when making bridging decisions.
1.28 National area of selection — The national area of selection (NAOS) policy requirement was designed to increase access to federal public service jobs for people across Canada and for Canadians living abroad. As of December 2008, the PSC finalized its expansion of the use of a NAOS for all positions across the country. All full-time term positions of six months or more and all indeterminate jobs that are advertised external appointment processes are now open to candidates across Canada and to Canadians living abroad, whereas just 19% of such jobs were so in 2004.
1.29 The number of applicants in 2008-2009 indicates that more Canadians are taking advantage of the expanded access to jobs. In 2007-2008, 91 996 (38%) of 242 096 applications for jobs in the National Capital Region were from other regions. In 2008-2009, this rose to 88 050 (41%) of 214 756 applications. This rate of increase was typical of other regions except for Saskatchewan, where the number of applications from other regions rose from 7 419 (66%) of 11 242 in 2007-2008 to 16,646 (80%) of 20 808 in 2008-2009.
1.30 Preliminary analysis of appointment data suggests that the goal to enhance access to jobs is being met. However, the PSC cannot conclude whether the appointment rate of candidates from other regions is sufficient since there is no benchmark. The PSC will therefore continue to monitor appointment rates and initiate research to better understand the variables that affect it.
1.31 Non-advertised appointment processes have been assessed by the PSC as a risk area that needs to be more closely monitored by deputy heads to ensure respect for the core and guiding values. The PSC has concerns about the reporting of this information and data quality. The PSC's Study on the Data Collection of Non-Advertised Appointment Processes found that accuracy varied greatly among organizations and that both over- and under-reporting was occurring. Coding errors were found in all four organizations selected for the study.
1.32 Nevertheless, based on organizational reports to the PSC, we estimate that, in 2008-2009, the percentage of non-advertised processes appears to have decreased from the year before, from 40% to 37%. The PSC's estimates also indicate that 84% of acting appointments of four months or more were made via non-advertised processes. Given that acting appointments provide an advantage for subsequent promotion, there is room for improvement in advertising acting positions and ensuring fair staffing practices.
1.33 The PSC's preference is for advertised processes, as they are a better reflection of the guiding values of access and transparency. Non-advertised processes may be justified if they are compliant with organizational criteria and the PSC's policy for choice of appointment process. The PSC requires that there be documentation with written rationale for using a non-advertised process, demonstrating that the values have been considered. Deputy heads are also required to monitor and report on their use of non-advertised processes. The results of our audits show that organizations are having difficulty meeting these requirements.
1.34 Employment equity — Representativeness is one of the PSC's guiding values that managers must consider throughout an appointment process. Reliable information to effectively plan and monitor progress in representativeness is also critical. The PSC has developed a new methodology for determining the recruitment rates for Aboriginal peoples, visible minorities and persons with disabilities in externally advertised processes.
1.35 In 2008-2009, PSC analysis shows continued progress for three employment equity (EE) groups — Aboriginal peoples, visible minorities and women — whose appointment rates from externally advertised processes are greater than their respective workforce availability (WFA). However, the public service is not sufficiently attracting persons with disabilities to externally advertised positions, and their recruitment rate continues to be lower than their WFA.
1.36 For visible minorities, the PSC's latest statistics show that their appointment rates from externally advertised processes have been much better than previously estimated and that the rates have increased steadily, from 15.6% in 2006-2007 to 17.3% in 2007-2008 to 18.8% in 2008-2009. We are still concerned about the rate of "drop-off" from the application to the appointment stages. The PSC's most recent research on EE groups in externally advertised recruitment processes found that the rate of drop-off for visible minorities was four percentage points, based on applicants. This is lower than the rate reported in previous studies. The PSC will work with organizations to understand the contributing factors to this drop-off and remove any barriers in the process.
1.37 The new methodology for calculating the rate of EE recruitment is only the beginning of a solution. Given the importance of accurate and reliable statistical data on EE groups, the PSC is working with stakeholders to achieve one common methodology for measuring and reporting on representativeness in appointments and in the public service population. The methodology will comply with both the Employment Equity Act and the Privacy Act in addition to the PSEA.
Continuous improvement of Public Service Commission functions
1.38 Implementing the PSEA continues to be a work in progress in departments and agencies, as it is in the PSC. In a highly delegated and decentralized model, the PSC's mechanisms for oversight and accountability as well as its policy framework, guidance and support have to be clarified, refined and adjusted on an ongoing basis, in collaboration with key players.
1.39 Funding — In January, the government announced the results of the Horizontal Strategic Review of Human Resources Management as part of Budget 2009. The PSC participated in this review, along with the Treasury Board of Canada Secretariat, the Canada Public Service Agency, the Canada School of Public Service, the PSST and the Public Service Labour Relations Board. As a result of the review, the PSC's annual budget was reduced by $3.1 million in 2009-2010 and by a further $1.5 million in 2011-2012, for a total permanent reduction of $4.6 million. The PSC believes that this 5% cut is manageable with increased cost-recovery authorities.
1.40 Oversight — Following the Horizontal Strategic Review of Human Resources, the PSC mandated an Independent Review Committee (the Committee) to determine the appropriateness of the approach and the level of effort of the PSC oversight and to identify areas for improvement.
1.41 The Committee concluded that the PSC's approach to oversight was appropriate, but that some calibration was required in the quality and amount of monitoring. In its review, the Committee found that there was a need to develop capacity across the PSC's monitoring and audit activities. It also concluded that simply enhancing PSC oversight, in isolation, would not be enough. It noted that full implementation of the PSEA would require renewed engagement and a concerted "team effort," including deputy heads, managers, HR specialists and bargaining agents.
1.42 In particular, the Committee underscored the importance of effective communication channels with employees and bargaining agents for ensuring effective oversight. The PSC is committed to revitalizing its regular meetings with bargaining agents to discuss and consult on the effectiveness of the staffing system through the Public Service Commission Advisory Council.
1.43 The Committee made a total of 18 recommendations in its January 2009 report. The PSC has accepted all of them, and an action plan has been put in place to address them over the next two years.
1.44 Investigations are an important oversight tool to help safeguard the integrity of the staffing system and the non-partisanship of the federal public service. The PSC has the authority to investigate certain appointment processes. Deputy heads are delegated the authority to make internal appointments, to revoke internal appointments and to take corrective action whenever the deputy head, after an investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment. In the last fiscal year, only nine investigations by deputy heads were reported to the PSC, six of them founded.
1.45 The PSC is concerned that deputy heads may not be using their authority as expected. If it is determined that problems exist within an internal appointment process and that no action was taken by the department or agency to examine the problems, the PSC can and will conduct an audit under section 17 of the PSEA. In 2008-2009, the PSC provided information to delegated organizations and bargaining agents in order to explain this new approach. These efforts will continue in 2009-2010.
1.46 Appointment Policy — To ensure a values-based, harmonized suite of policies respecting the spirit of the legislation and supporting a well-functioning delegated appointment model, the PSC has begun a review of its Appointment Policy. The review focuses on identifying issues and determining whether statutory or policy solutions are required; policies and policy support tools are consistent with PSEA requirements and with staffing values; and policy guidance is concise and clear. The policy review will be completed in December 2009.
1.47 Political Candidacy — In 2008-2009, the PSC received 54 new requests for permission to seek nomination as, or to be, a candidate in an election. This represents a 20% increase from last year, when 45 new requests were received. Municipal election requests once again represented the majority of new candidacy requests (41 of 54, or 76%) received from employees during the fiscal year. Of the 36 employees granted permission to be candidates in municipal elections in 2008-2009, only 2 (6%) were on condition of a leave of absence without pay, if elected.
1.48 In light of the experience gained in the last three years, the PSC has undertaken to streamline its approach to approving municipal candidacy requests. It is expected that this streamlining will facilitate the timely review of candidacy requests, while ensuring that the PSC fulfills its mandate to safeguard a politically impartial public service.
1.49 Staffing and Assessment Services — Given our statutory mandate, the PSC continues to support organizations in their delegated appointment authorities. In order to do so, it is essential to maintain a core group of centralized services providing automated tools, systems and services that support collective needs, such as post-secondary recruitment and student programs. This approach offers economies of scale across the public service and allows the PSC to implement innovative and leading practices in staffing in order to meet the current and future resourcing needs of the public service. PSC services are increasingly provided on a cost-recovery basis.
Looking forward: preparing for the five-year review
1.50 The PSEA includes a requirement that the Act and its administration be reviewed five years after it comes into force. This five-year period will elapse on December 31, 2010. It is therefore time for the PSC to reflect on the expectations, progress and factors affecting full implementation and on whether the Act's objectives are being reached. It is also time to ask what improvements are required to ensure a modernized, values-based HR management system in the future.
1.51 In preparation for the five-year review, the PSC will be taking stock of the implementation of the PSEA: whether the Act has been implemented as intended and whether it adequately equips the PSC and others to protect merit and non-partisanship in the years ahead. In addition to the oversight review completed in 2008-2009, the PSC is undertaking a comprehensive assessment of its other roles and responsibilities, the PSC Appointment Policy Framework and the effectiveness of the PSC's service delivery model, as well as supporting research and analysis. This work is expected to be completed by December 2010 and will culminate in a special report to Parliament. The special report will include recommendations for possible amendments to the PSEA and, as one of the PSC's contributions to the five-year review, will help shape future directions for HR management in the public service. The PSC has singled out three issues for detailed analysis: merit, non-partisanship and recourse.
1.52 Merit — Merit has been the foundation of a competent, professional, non-partisan public service for more than a century. It plays an essential role not only in protecting against political patronage, but also in ensuring that employees are hired and can advance based on their ability to do the work rather than on personal favouritism.
1.53 The merit system, however, is comprised of more than the definition of merit alone. It is the inter-connected collection of institutions, laws, regulations, policies, accountabilities, processes, practices and procedures that govern appointment decisions.
1.54 Some elements of the system are prescribed in the PSEA and its regulations. Some are found in the Canadian Charter of Rights and Freedoms, other important federal legislation and related jurisprudence. Another critical element is the PSC's Appointment Policy Framework, which sets out the requirement that key decision points in the appointment process must be guided by the values of access, fairness, transparency and representativeness. The merit-based system also assigns roles and responsibilities for revoking appointments and taking corrective action, following investigations into allegations of an error, omission or improper conduct, or that merit was not respected, as well as complaints of abuse of authority.
1.55 In safeguarding merit, the PSC must be concerned with the integrity of individual appointments, as well as the integrity of the staffing system overall. As noted earlier, the PSC has concluded that merit is generally being respected in appointments across the public service. However, the Public Service Employee Survey conducted in 2008-2009 raises some concerns. For instance, the Survey found that 24% of respondents in PSEA organizations who provided an opinion did not agree that in their work unit they "hire people who can do the job"; and 35% did not agree that when they were a candidate in competitions during the previous three years "competitions were run in a fair manner." The PSC will be examining these and other employee perceptions related to merit identified in the Survey and their implications in more detail in the year ahead.
1.56 While individual staffing decisions may be appropriate, the cumulative effect of many decisions may still not ensure the integrity of the staffing system overall. The PSC has found signs in 2008-2009 that the new definition of merit in the PSEA, which provides more discretion to managers, requires — at both the individual and system levels — a more sophisticated approach to applying the core and guiding values and weighting the values in different circumstances. Experience with implementation of the new definition of merit may also suggest refinements in performance measurement. The PSC will be examining these issues further over the coming year.
1.57 Safeguarding non-partisanship — A non-partisan public service is essential for both a professional public service and responsible democratic government. A non-partisan public service provides Ministers with objective policy advice; administers programs and services in a politically impartial way; and provides a measure of stability and ensures peaceful and orderly political successions, maintaining stable operations and uninterrupted services for citizens.
1.58 Traditionally, efforts to achieve a non-partisan public service at the federal level in Canada have centered on ensuring that appointments to the public service are merit-based and free of political influence, as well as imposing restrictions on the political activities of public servants upon appointment. A number of developments over the past 30 years are putting this approach to the test. The adoption of the Canadian Charter of Rights and Freedoms in 1982 and the subsequent decision by the Supreme Court of Canada (Osborne, 1991) confirming the right of public servants to engage in political activities have fundamentally changed the landscape for safeguarding the non-partisan character of the public service. They underscore that the central challenge is to balance the rights of individuals with the constitutional convention of the political neutrality of the public service.
1.59 The current PSEA struck a particular balance. The legislation reconfirmed, in its Preamble, that non-partisanship is a core value of the public service that must be independently safeguarded for the benefit of Canadians. In addition, Part 7 of the Act established an enhanced regime for political activities at the federal, provincial, territorial and municipal levels. Part 7 explicitly recognizes the right of an employee to engage in political activity so long as it does not impair, or is not perceived as impairing, the employee's ability to perform his or her duties in a politically impartial manner.
1.60 Today, the safeguarding of the non-partisan character of the public service is taking place in the context of the baby-boomers retiring and tens of thousands of new recruits entering the public service for the first time. It is clear from numerous studies by the Public Policy Forum and others that these new recruits bring with them greater social and cultural diversity and different attitudes about work, careers and Canada's institutions — and, in many cases, less familiarity with what it means to be a public servant in a professional, non-partisan public service.
1.61 Ensuring that these new recruits understand their roles and responsibilities with respect to non-partisanship must be a key element of renewal efforts across the public service in the years ahead. Those retiring play an important role in transferring the required knowledge. In addition, it must be recognized that, compared to the influx of new recruits in the 1970s, this generation of new recruits is arriving to a different regime regulating political activities and a highly decentralized staffing system in which hiring managers have greater discretion to make values-based decisions.
1.62 Technology is also having an impact. New means of communication, such as social networking Web sites like Twitter and Facebook, as well as blogs, are helping to blur the lines between the public and private lives of public servants and make it easier to express opinions that could potentially undermine the political neutrality of the public service. They have created new avenues for, and visibility of, political activities. Technology such as the internet and satellite television also plays a part in providing Canadians with more opportunities to learn about behaviour in other jurisdictions, both domestic and international.
1.63 Non-partisanship is one of the professional values of the public service. Its relationship to other important professional values, such as neutrality, impartiality, duty of loyalty and responsiveness, is complex and uncharted. The PSEA itself recognizes that non-partisanship competes on a daily basis with other values, such as efficiency, effectiveness and responsiveness, in staffing as well as policy and decision-making across the public service. As the Task Force on Public Service Values and Ethics stated in 2000, "Even our most cherished values are regularly in tension, and we are constantly having to make trade-offs between them."2
1.64 The Act, however, does not cover all activities that could be perceived as inappropriate with respect to non-partisanship, as they do not fall within the definition of political activities in the Act, nor does it cover the broader public service. In some cases, involvement in outside causes or advocacy activities may pose real or perceived risks to the integrity of the public service. Activities not defined in the PSEA are subject to the Values and Ethics Code for the Public Service or to the respective codes of conduct of organizations for which the Treasury Board of Canada is not the employer. The Public Servants Disclosure Protection Act requires that the Employer (Treasury Board) establish a new Federal Public Sector Code of Conduct. This new Code will replace the existing Values and Ethics Code for the Public Service and will apply to the entire federal public sector, including Crown corporations. The result is potential conflicts, gaps and uncertainties in the overall approach for safeguarding non-partisanship, the scope of its application and access to practical guidance on how to reconcile competing values.
1.65 The PSC is overseeing a highly delegated system in which managers have more discretion to make values-based decisions and in which public servants have the right to engage in political activities. Both aspects are highly dependent on the judgment, responsibility and accountability of individuals. Values and ethics play an increasingly important role in guiding the actions of public servants. In 2008-2009, we started to see more complex cases that, while individually appropriate, may undermine the overall perception of the integrity of the public service. We believe that more attention is required to the way in which these values are applied.
1.66 Together, these developments and the increasingly complex situations that the PSC has reviewed or advised on in 2008-2009 point to the need for a significant reconsideration of what a non-partisan public service should look like in the coming decades, what behaviour is expected and how it should be fostered and what the appropriate balance is between individual and collective interests. The PSC is committed to playing a key role in the reconsideration that is required. It will do this in the following ways:
- Providing input to the Chief Human Resources Officer on the development and implementation of the new Federal Public Sector Code of Conduct;
- Undertaking further communication to help public servants understand their rights and limitations under Part 7 of the PSEA, ensuring that links to the Code and to other instruments are as clear as possible;
- Fostering broader dialogue with key players on non-partisanship and the public service in the 21st century; and
- Examining whether there is a need for new and/or improved approaches and mechanisms to further safeguard non-partisanship in the future.
1.67 Recourse — The PSEA sought to change the way in which staffing was conducted and appointments made, through increasing openness, transparency and efficiency. Among the many means by which to achieve these objectives was a more efficient and effective recourse system, through which managers were to be more clearly answerable for their staffing decisions. Several mechanisms were introduced in this regard.
1.68 Previously, the PSC was mandated to establish boards to hear all appeals related to staffing issues. The current Act divides the responsibility for addressing staffing concerns among the PSC, deputy heads and the PSST. Pursuant to the PSEA, the PSC can investigate staffing situations relating to external appointments; internal appointments (if not delegated to an organization or at the request of deputy heads); appointments involving possible political influence; and appointment processes where fraud is suspected.
1.69 The current PSEA introduced informal discussion to allow employees to raise issues related to their results at the time that the decision is made to eliminate them from an internal appointment process; managers can also correct any errors, omissions or oversights in a more timely fashion before appointments are made. If, following informal discussion, the employee remains concerned about the staffing process, they can make a complaint to the PSST. The expectation was that only the most egregious situations would need to go to the PSST.
1.70 Under the current PSEA, employees can pursue complaints through the PSST on a number of grounds. An employee can complain to the PSST that a revocation was unreasonable, or that there was a failure to assess them in the official language of their choice. An employee can bring a complaint of abuse of authority in respect of a layoff; the exercise of the authority to make an appointment on the basis of merit; the choice between an advertised and non-advertised process; and an appointment made or proposed as a result of the implementation of corrective action ordered by the Tribunal. The PSST may also consider whether there has been discrimination in determining an abuse of authority. It also promotes the use of alternative dispute resolution mechanisms.
1.71 Although the intent of the Act is to streamline the formal complaints process and to see most employees' concerns addressed in the workplace, the PSC is concerned that the various responsibilities of deputy heads, the PSST and the PSC are not clearly understood by those participating in appointment processes.
1.72 The PSC is particularly concerned with the lack of clarity surrounding the proper role of the PSST. Following the judicial review of a recent PSST decision filed by the PSC and the deputy head (Attorney General of Canada v. Cameron and Maheux), the Federal Court found that the corrective actions ordered by the PSST in this case were beyond the Tribunal's jurisdiction. In the months ahead, it will be critical to ensure that the roles of the PSST and of the deputy heads are well understood by stakeholders in order to minimize the confusion regarding mandates and the various mechanisms to address staffing concerns.
1.73 A public service for the 21st century — In February 2009, the Prime Minister announced changes to HR governance to better deliver policies and services and more effective HR management. There was an important reconfirmation of the PSC's role as guardian of merit and non-partisanship in the Public Service of Canada.
1.74 In the preparations for the five-year review, we will be examining how the PSC carries out its functions, where it can make further improvements and how it can best serve the public service and Canadians in the future. The PSC will be consulting with Parliament, central agencies, departments and agencies, bargaining agents, academics and the Canadian public to ensure that their views are considered.
1.75 An important consideration for the future is the governance of the PSC itself. As such, it is time to consider succession planning for the current Commission. The PSC will also be considering whether it, as currently structured with a President and two part-time Commissioners, is appropriately empowered to fulfill its responsibilities for the future.
1.76 A dynamic and strong public service is more important than ever. Safeguarding the values of merit and non-partisanship will provide the foundation necessary for maintaining a public service that strives for excellence in the years ahead and for addressing new challenges. To support deputy heads with their delegated appointment authorities and to seek to ensure a professional, merit-based, non-partisan public service — these are the ongoing commitments of the PSC to Parliament.
1 See Chapter 2, A highly delegated staffing system
2 Canada. Task Force on Public Service Values and Ethics. A Strong Foundation, (2000), p. 2.