Term Employees and Workforce Adjustment

Should the use of term employment be a substitute for indeterminate   hiring ?

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)

When is it appropriate to hire term employees instead of indeterminate  employees?

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.

Why is it important to talk about term employment now?

Because of the current cuts being implemented  by the Harper government, term employees are especially vulnerable.  Many term contracts are being terminated early or are not being renewed.

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)

Does the Workforce Adjustment Appendix (WFAA) apply to term   employees?

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

Do term employees have any form of job security when their term contracts are being terminated early or are not being renewed?

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.

Are term employees entitled to severance pay as a result of the termination of their contract?

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.

How much notice must the Employer give term employees if their term isn't renewed?

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

What happens if I'm a term employee and on maternity or paternity leave?

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.

What does it mean when term employment is generated by sunset funding?

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 serviceorganization, 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.

Is there any formal recourse available to term employees upon expiry or non-renewal of their term?

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.

What does it mean when a department decides to invoke the exception under the Treasury Board T erm Employment Policy that allows them to stop counting accumulation of service toward the required three years to become indeterminate?

The Term Employment Policy contains  an exception to the three year roll over 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.

  1. The department  must inform  the Treasury Board that they are taking this action.

  2. The department must inform the union that they are taking this action.

  3. The department  must inform  the term employee in writing  that they are taking this action.

  4. The department  “must  establish  that the appointment  of term employees would result in workforce 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 item at all Union Management Committee meetings and Joint Workforce Adjustment  Committees.  The PSAC believes that all departments and agencies should 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  ororganization,  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 instances  when the exception to the Treasury Board policy for rollover is being used inappropriately to undermine the purpose and goals of the policy.

What should you do if you are a term employee?

If you receive notice that your term will not be renewed or 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 affect

  • 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 affect

  • the total amount of continuous  time that you have been a term employee

  • any breaks in service that has occurred.

What  is the PSAC and its components doing to ensure that term employees are treated in a fair and transparent manner?

The PSAC and its components will:

  • Oppose the government's  cutting  exercise. Neither PSAC members, public service employees or the majority of Canadian  citizens are responsible  for the deficit  that  is being used as an excuse to cut public  services and public service jobs. The deficit was caused in large by irresponsible tax cuts and one time stimulus spending to counteract irresponsible global financial transactions.

  • Ensure that the employer and all departments and agencies respect and adhere to their obligations  in collective agreements and in particular  their workforce adjustment obligations.

  • Use Union Management  Committees  and Workforce Adjustment  Committees  as forums to ensure that members who are term employees are treated in a fair and transparent  manner.

  • Use Public Service Commission and Treasury Board complaint  mechanisms  where there are opportunities for success.

  • Where necessary, file grievances  under the WFA to force the employer to engage fully in consultation  because of WFA situations  and to provide the union with full information with respect to the existence of a WFA. We will also use the provisions of section 1.1.27 of the WFA to ensure that the employer is doing everything it can  to avoid  a WFA, and we will put priority on their requirement to review the use of private contractors and temporary help agencies as strategy for reducing or eliminating the need to declare and apply the other provisions of the WFA as well  as the  Term  Policy.

     

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September 17, 2013
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