Locally Engaged Staff Employment Regulations, 2024: SOR/2024-16

Canada Gazette, Part II, Volume 158, Number 4

Registration
SOR/2024-16 February 2, 2024

PUBLIC SERVICE EMPLOYMENT ACT

P.C. 2024-84 February 2, 2024

Her Excellency the Governor General in Council, on the recommendation of the President of the King’s Privy Council for Canada and of the Public Service Commission, under section 21 of the Public Service Employment Act footnote a, makes the annexed Locally Engaged Staff Employment Regulations, 2024.

Locally Engaged Staff Employment Regulations, 2024

Interpretation

Definitions

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

locally engaged staff
means persons who are excluded from the application of the Public 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.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Locally engaged staff are persons hired outside Canada to perform diverse functions in support of government operations abroad. These individuals 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 government operations abroad.

Global Affairs Canada (GAC) manages over 5 500 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 (PSEA) since it was first enacted in 1967, and has been regulated by the Locally-Engaged Staff Employment Regulations (the former Regulations).

The former Regulations needed to be modernized, as they no longer met the operational needs of the two departments they serve, and they were not aligned with the current flexible, merit-based staffing system of the PSEA.

Objective

The objective of this regulatory initiative is to modernize the former Regulations to align with the PSEA 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 Locally Engaged Staff Employment Regulations, 2024 (the new Regulations) repeal and replace the former Regulations. To better align with the PSEA, the new Regulations update requirements around authority, appointments, temporary employment and termination of employment, as they relate to hiring locally engaged staff in missions and military support units outside Canada. They also set new requirements for oversight and reporting.

Provisions relating to oaths and affirmations of allegiance and office as well as probation included in the former Regulations are not included in the new Regulations because they do not translate well in the international context.

Authorities

The new Regulations give 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 (the employing departments), each within their respective departments. They also specify that those deputy heads can sub-delegate this authority to persons within their department. The new Regulations also remove the restriction imposed on DND to appoint solely in North Atlantic Treaty Organization countries.

Appointments

The new Regulations provide the deputy heads of GAC and DND, or their delegates, with the flexibility to appoint locally engaged staff while ensuring that appointments are made on the basis of merit. The new Regulations require that these deputy heads, or their delegates

The changes, which remove the requirement for vacant positions to be filled by competition and ensure that selection criteria are based on relative merit, will allow the new Regulations to be better aligned with the PSEA.

Temporary employment

The new Regulations provide the employing departments with a mechanism to quickly appoint temporary staff to meet short-term immediate needs. This mechanism allows the deputy heads of GAC or DND, or their delegates, to appoint temporary staff for a maximum of 125 working days in a calendar year. The former Regulations restricted this employment mechanism to emergency situations.

Termination of employment

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

(1) Lay-off

The new Regulations authorize the deputy heads of GAC and DND, or their delegates, to lay off locally engaged staff if their services are no longer required due to a 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 is required one month before the effective date of the lay-off or in accordance with local labour law, whichever period is greater. The former Regulations had 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 new Regulations.

(2) Resignation

The former Regulations did not include provisions relating to the resignation of locally engaged staff. Under the new Regulations, a person who is appointed as locally engaged staff may 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 will end on the date specified in writing by the deputy head of GAC or DND, or their delegate.

Oversight and reporting

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

Regulatory development

Consultation

GAC and DND were consulted in the development of the new Regulations and are supportive of the initiative. The concepts and elements that underpin the new regulatory approach were shared with locally engaged staff during a global symposium. The feedback gathered was positive and supportive of the initiative.

The proposal was prepublished in the Canada Gazette, Part I, on June 10, 2023, for a 30-day consultation period that ended on July 10, 2023. The employing departments were advised of the prepublication and shared the information with their staff abroad.

Two comments were received as a result of the prepublication. The first comment was out of scope, as it related to the employer’s authorities, which have been delegated to the employing departments. As a result, the comment was shared with those departments, for their consideration.

The second comment expressed concern that the oversight and reporting requirement would not be helpful to the management of staff, and that the employing departments do not need additional compliance-focused bureaucracy.

The PSC considered this feedback, but did not adjust the new Regulations. Under a fully delegated staffing system, the PSC relies on oversight and reporting to satisfy its mandate as an independent agency accountable to Parliament on the health and integrity of federal public service staffing.

All comments received during prepublication were published on the Canada Gazette website for public access.

A third comment was received weeks after the consultation period had ended, and it was determined to be out of scope. At the request of the individual who provided the comment, it was shared with GAC and Treasury Board of Canada Secretariat for their consideration.

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 was conducted for this initiative, and there did not appear to be any implications relating to Canada’s modern treaty obligations.

Instrument choice

During the policy development phase of the initiative, the PSC 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 PSEA is vested with the PSC, with the approval of the Governor in Council. In exercising this authority, the PSC considered two options regarding the employment of locally engaged staff:

Pursuant to the PSEA, the PSC can only exclude when it is determined that it is neither practicable nor in the best interests of the public service to apply the PSEA 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’s human resources–related legislation, the PSC determined that the current exclusion scheme should be maintained. Further, the PSEA 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 initiative are minimal and less than $1 million annually.

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

In addition, departmental staff will have to learn and adjust to the new regime. However, this should not yield significant costs to the employing departments, given that the new regime is aligned with the current PSEA, 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 PSEA will provide deputy heads with the same flexibility they have to appoint persons in the public service and will allow for more efficient and effective appointment practices.

The new Regulations will provide for clear accountability for employing locally engaged staff. Drawing on the monitoring results provided by the deputy heads of GAC and DND, the PSC can provide them in return with advice and guidance, and share its expertise to improve the operation of the locally engaged staff employment framework. The monitoring results will also allow the PSC to assess the effectiveness of the regulatory regime it has established and determine if it meets the intended outcomes.

Small business lens

Analysis under the small business lens concluded that the new Regulations will not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no incremental change in the administrative burden on businesses. The initiative repeals an existing regulation and replaces it with a new regulatory title, which will result in no net increase or decrease in regulatory titles.

Regulatory cooperation and alignment

The new 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 (GBA+)

By establishing a modernized employment regime, this initiative will 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 will 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

The new Regulations come into force on the day they are registered.

A new exclusion order is required to support implementation of the new Regulations. This new exclusion order has been made concurrently with the making of the new Regulations.

The deputy heads of GAC and DND will be responsible for ensuring compliance with the new Regulations within their respective departments.

Contact

Sandrine Diotte-Chénier
Manager
Regulations and Staffing Complaints Section
Policy and Strategic Directions Directorate
Public Service Commission of Canada
Telephone: 819‑665‑0620
Email: cfp.reglements-regulations.psc@cfp-psc.gc.ca