Bill 56 - An Act to Amend the Civil Service Act

BILL 56

An Act to Amend the Civil Service Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Civil Service Act, chapter C-5.1 of the Acts of New Brunswick, 1984, is amended

(a) in the definition “closed competition”

(i) in paragraph (c) by striking out “such period of time as may be prescribed by regulation” and substituting “for the period of time specified in subsection 17(7),”

(ii) in paragraph (e) by striking out “special employment programs” and substituting “employment equity programs”;

(b) by adding the following definition in alphabetical order:

“favouritism” means giving preference to a candidate (favoritisme)

(a) that is based on factors that supersede the assessment of qualifications or work performance, and

(b) that is attributable to a relationship or connection that is external to the workplace;

2 The Act is amended by adding after section 1 the following:

PURPOSE OF THE ACT

Purpose of the Act

1.1 The purpose of this Act is to ensure the delivery of quality public services to the residents of New Brunswick by means of non-partisan, qualified and competent employees in the Civil Service.

3 Section 3.1 of the Act is amended

(a) in subsection (2) by striking out “and the power of appointment”;

(b) by adding after subsection (3) the following:

3.1(4) A deputy head to whom the power of appointment has been delegated shall

(a) publish such staffing information as may be required by the Deputy Minister of the Office of Human Resources in the annual report for that portion of the Civil Service for which the deputy head is responsible, and

(b) report the number of complaints received by him or her to the Deputy Minister of the Office of Human Resources within 6 months after the end of each fiscal year.

4 The Act is amended by adding after section 4 the following:

Oversight of delegated powers

4.1(1) If the Deputy Minister of the Office of Human Resources has delegated any of his or her powers or functions under this Act to a deputy head, the Deputy Minister of the Office of Human Resources shall ensure that the deputy head, and any delegate of the deputy head, is exercising those powers and functions in the manner required and in accordance with the terms and conditions of the delegation and the requirements of this Act.

4.1(2) The Deputy Minister of the Office of Human Resources may, in acting under subsection (1), conduct audits of the operations of the human resource management practices conducted in that portion of the Civil Service for which a deputy head referred to in subsection (1) is responsible.

5 Subsection 6(1) of the Act is amended by adding “, shall be free from favouritism” after “shall be based on merit”.

6 Subsection 10(1) of the Act is amended

(a) by repealing paragraph (a);

(b) by repealing paragraph (b).

7 Section 11 of the Act is repealed and the following is substituted:

11(1) The Deputy Minister of the Office of Human Resources shall examine and consider all applications received within the time fixed by him or her for the receipt of applications.

11(2) The Deputy Minister of the Office of Human Resources, after having examined and considered the applications, may select for further screening those candidates who best appear to him or her to be the most qualified and suitable for the position or positions for which the competition is conducted.

11(3) The Deputy Minister of the Office of Human Resources, after considering such further material and conducting further screening by means of such examinations, tests, interviews or investigations as he or she considers necessary or desirable, shall select the candidates who are most qualified and suitable for the position or positions for which the competition is conducted.

8 Subsection 12(1) of the Act is amended by striking out “From among the qualified candidates in a competition the Deputy Minister of the Office of Human Resources shall select and place the most qualified candidates” and substituting “The Deputy Minister of the Office of Human Resources shall place the names of the candidates who are the most qualified and suitable”.

9 Section 13 of the Act is amended

(a) in subsection (2) by striking out “and notify him of the time and place to report for duty”;

(b) by repealing subsection (3);

(d) by repealing subsection (4).

10 Section 14 of the Act is repealed.

11 Section 15 of the Act is repealed and the following is substituted:

15(1) Appointments to any position or class of positions requiring special professional, scientific or technical knowledge and experience may be made by the Deputy Minister of the Office of Human Resources without competition.

15(2) The Deputy Minister of the Office of Human Resources shall not make an appointment under subsection (1) unless he or she is satisfied that there is a demonstrable lack of qualified persons available in the labour market to fill such a position.

12 Section 16 of the Act is repealed and the following is substituted:

16(1) The Deputy Minister of the Office of Human Resources may, without competition, appoint to a position within the Civil Service

(a) any person who is registered in an employment equity program prescribed by regulation,

(b) any person who is participating in a human resource development program prescribed by regulation,

(c) any person who is employed in a portion of the public service listed under Part II or Part III of the First Schedule of the Public Service Labour Relations Act or in a portion of the public service under Part I of that Schedule that is not a portion of the Civil Service if the person, immediately prior to the appointment, occupied a position for which the requirements are, in the opinion of the Deputy Minister of the Office of Human Resources, substantially similar to the position to which the person is being appointed, or

(d) any person who has been assessed by the Deputy Minister of the Office of Human Resources as being both qualified and suitable for the position if the person

(i) holds an appointment under section 17 for a position with similar requirements, or

(ii) has held an appointment under section 17 for a position with similar requirements within such period of time before the date of the appointment as may be prescribed by regulation.

16(2) Subsection 6(1) does not apply to appointments made under paragraph (1)(a).

16(3) A person who holds or has held a position pursuant to an appointment under section 17 shall not be appointed under paragraph 16(1)(d) unless the person has held or had held the position for a minimum of 6 consecutive months.

16(4) Subsection (3) does not apply to students who are employed under a university or community college co-op program.

13 The Act is amended by adding after section 16 the following:

Effective administrative processes

16.1 The Deputy Minister of the Office of Human Resources and any deputy head to whom a power of appointment has been delegated shall ensure that processes surrounding competitions, appointments and any review processes provided for under this Act are conducted in a timely manner with integrity, respect and impartiality.

14 Section 17 of the Act is repealed and the following is substituted:

17(1) A deputy head or his or her delegate may make a casual or temporary appointment in accordance with this section.

17(2) Subsection 6(1) does not apply to an appointment under this section.

17(3) If the work requirements are temporary or sporadic in nature, a casual appointment, or a series of casual appointments, may be made, but no appointment shall be made if the total of the time worked by the person under all previous casual or temporary appointments in the same portion of the Civil Service exceeds 260 paid days in a 24 month period.

17(4) Subsection (3) does not apply to students who are employed under a university or community college co-op program.

17(5) If the work requirements are anticipated to be for an anticipated term of one year or more, a temporary appointment may be made for a term that is not less than one year and not more than 3 years, but no appointment shall be made if the total of the consecutive terms of all previous casual or temporary appointments of that person in the same portion of the Civil Service exceeds 3 years.

17(6) A temporary appointment may be made of a person who would otherwise be ineligible for an appointment under subsection (5) only if a period of 12 months has elapsed since that person last ceased to work in that portion of the Civil Service.

17(7) A person who holds a position under a casual or temporary appointment may apply for any closed competition after having held the position for a minimum of 6 consecutive months.

17(8) A person who holds a position under a temporary or casual appointment before the commencement of this subsection and whose employment was not terminated before the commencement of this subsection continues to be so employed, unless such employment is terminated.

15 Subsection 18(4) of the Act is amended by striking out “has the status of an employee for the purposes of subsection 13(3) and section 32” and substituting “has the status of an employee for the purposes of sections 33, 33.1 and 33.2”.

16 Paragraph 31(1)(b) of the Act is repealed and the following is substituted:

(b) may investigate and report upon a complaint made under section 33.2,

17 Section 31.3 of the Act is repealed and the following is substituted:

31.3 Notwithstanding subsection 12(2) and section 14 of the Ombudsman Act and section 33.2 of this Act, the Ombudsman, an assistant or employee of the Office of the Ombudsman or any other person appointed or designated to act on behalf of the Ombudsman or to whom the Ombudsman has delegated any powers of the Ombudsman shall not

(a) commence or continue to hear a complaint or investigate a complaint under this Act if the subject of the complaint has been, becomes or is the subject of an investigation or the making of recommendations under the Ombudsman Act, or

(b) commence or continue, under the Ombudsman Act, to investigate or make recommendations respecting a grievance or other matter if the subject of the grievance or other matter was, after the commencement of this paragraph, or becomes or is the subject of an investigation or complaint under this Act.

18 The heading “INQUIRIES AND APPEALS” preceding section 32 of the Act is repealed.

19 Section 32 of the Act is repealed.

20 The heading preceding section 33 of the Act is amended by striking out “INQUIRIES AND”.

21 Section 33 of the Act is repealed and the following is substituted:

Explanation to employee - closed competition

33(1) If an employee applies for a closed competition and is unsuccessful in obtaining the appointment, the employee may, within 30 days after being notified under subsection (2), request an explanation from the Deputy Minister of the Office of Human Resources as to the reasons why he or she was not successful.

33(2) The Deputy Minister of Human Resources shall notify each employee who has been unsuccessful in a competition referred to in subsection (1) as soon as practicable after the successful candidate has been appointed.

33(3) The Deputy Minister of the Office of Human Resources shall provide the unsuccessful candidate with an explanation as soon as practicable, but in any event not later than 30 days after the date on which he or she received the request.

22 The Act is amended by adding after section 33 the following:

Complaint to Deputy Minister of the Office of Human Resources

33.1(1) If a candidate is screened in for further assessment under subsection 11(2) in an open competition or a closed competition, and is unsuccessful in obtaining an appointment, the candidate may, after being notified under subsection (2), make a complaint to the Deputy Minister of the Office of Human Resources if the candidate has reason to believe that the successful candidate was appointed to the position because of favouritism.

33.1(2) The Deputy Minister of the Office of Human Resources shall notify each unsuccessful candidate who has been screened in for further assessment under subsection 11(2) as soon as practicable after the successful candidate has been appointed.

33.1(3) When making a complaint, the unsuccessful candidate shall provide in writing the reasons why he or she believes that the appointment was made due to favouritism.

33.1(4) The Deputy Minister of the Office of Human Resources shall, subject to subsection (5), investigate the complaint.

33.1(5) The Deputy Minister of the Office of Human Resources may refuse to investigate the complaint if he or she is of the opinion that the complaint is frivolous, trivial, vexatious or not made in good faith.

33.1(6) The Deputy Minister of the Office of Human Resources shall, if ceasing or refusing to investigate a complaint, give the complainant written notice to that effect together with the reasons for doing so.

33.1(7) The Deputy Minister of the Office of Human Resources shall reply to the complainant in writing as to his or her findings as soon as is reasonably practicable.

33.1(8) If the Deputy Minister of the Office of Human Resources finds that an appointment has been made on the basis of favouritism, he or she shall take such measures as he or she considers appropriate, up to and including the setting aside of the appointment of the successful candidate.

33.1(9) An appointment referred to in subsection (1) shall not be set aside if more than 6 months have elapsed after it was made.

Complaint to Ombudsman

33.2(1) If an unsuccessful candidate is not satisfied with the response of the Deputy Minister of the Office of Human Resources, he or she may, within 30 days after receiving the response, file a complaint with the Ombudsman that the successful candidate was appointed to the position because of favouritism.

33.2(2) When making a complaint, the unsuccessful candidate shall provide in writing the reasons why he or she believes that the appointment was made due to favouritism.

33.2(3) The Ombudsman shall, subject to subsection (4), investigate the complaint.

33.2(4) The Ombudsman may refuse to investigate the complaint if he or she is of the opinion that the complaint is frivolous, trivial, vexatious or not made in good faith.

33.2(5) The Ombudsman shall, if ceasing or refusing to investigate a complaint, give the complainant written notice to that effect together with the reasons for doing so.

33.2(6) The Ombudsman, if deciding to investigate a complaint,

(a) shall inform the Deputy Minister of the Office of Human Resources and the deputy head concerned of the decision,

(b) shall make the findings of the investigation known to the complainant, the Deputy Minister of the Office of Human Resources and the deputy head concerned, and

33.2(7) An appointment in respect of which a complaint is made in accordance with subsection (1) may, on the recommendation of the Ombudsman, be revoked by the Deputy Minister of the Office of Human Resources within 12 months after the appointment is made.

23 Subsection 36(1) of the Act is amended

(a) in paragraph (a) by adding “and” at the end of the paragraph;

(b) in paragraph (b) by striking out “, and” at the end of the paragraph and substituting a period;

24 Section 41 of the Act is amended

(a) by repealing paragraph (a.2);

(b) by repealing paragraph (a.3) and substituting the following:

(a.3) prescribing employment equity programs for the purposes of paragraph (e) of the definition “closed competition”;

(d) in paragraph (c.2) by striking out “special employee development programs” and substituting “human resource development programs”;

(e) by adding before paragraph (d) the following:

(c.3) prescribing the period of time applicable for the purposes of subparagraph 16(1)(d)(ii);

25 Section 42 of the Act is amended

(a) by repealing paragraph (b);

(b) by repealing paragraph (f);

26 Any complaint, appeal or investigation undertaken by the Ombudsman under the Civil Service Act before the commencement of this section shall be dealt with in accordance with the provisions of that Act as they existed immediately before the commencement of this section.

27 This Act comes into force on December 1, 2009.