Highlights - New Public Service Official Languages Exclusion Approval Order and New Public Service Official Languages Appointment Regulations effective December 31, 2005

Non-imperative appointment refers to an appointment for an indeterminate period to a bilingual position that has been identified by the deputy head as not requiring, at the time of appointment, occupation by a person who meets the required level of proficiency in both official languages.

• The Public Service Official Languages Exclusion Approval Order (PSOLEAO)
  • sets out three circumstances where, in the case of a non-imperative appointment, a person who is proficient in only one of the official languages is excluded from the application of merit with respect to proficiency in both official languages.
  • These circumstances are:
    1. when the person submits an agreement to become bilingual;
    2. when the person is excluded for medical reasons; and
    3. when the person is eligible for an immediate annuity.
• The Public Service Official Languages Appointment Regulations (PSOLAR)
  • set out the provisions applying to persons who are excluded from merit with respect to proficiency in both official languages.

1. Exclusion as a result of an agreement to become bilingual

The person agrees in writing to:

• undertake to attain the required level of official language proficiency within a period of two years, beginning on the date of the written agreement of appointment or the effective date of the appointment, whichever is later; and
• be appointed or deployed to a position, at a similar level and salary as the bilingual position, for which he or she meets the essential qualifications if, at the end of the two-year period, he or she has not attained the required level of language proficiency.

Please note that the person appointed is not required to demonstrate his or her potential for attaining the required level of official language proficiency.

The deputy head agrees in writing to:

• ensure that the person is provided with the necessary language training at the organization's expense or at the expense of the Canada School of Public Service within the two-year period; and
• appoint or deploy the person on an indeterminate basis to a position for which he or she meets the essential qualifications and that is of a similar level and salary as the bilingual position, if the person does not attain the required level of language proficiency. This must occur within two months of the end of the two-year period.

If, during the two-year period, the person accepts any other non-imperative appointment to a bilingual position requiring the same or a lower level of official language proficiency, the two-year period referred to in the first agreement applies to the new appointment.

For any non-imperative appointment, the two-year agreement period may be extended for one or more additional periods (not more than two years in total) due to:

• exceptional operational requirements that were not foreseeable at the time of the appointment;
• exceptional personal circumstances that were not foreseeable at the time of the appointment;
• a physical, mental or learning impairment that hinders the learning of the other official language at the required level of proficiency; or
• the inability to obtain language training at public expense, regardless of the language training provider.

2. Exclusion on medical grounds

• by reason of a long-term or recurring physical, mental or learning impairment that renders the individual unable to attain, through language training, the required level of official language proficiency

Please note that the Public Service Commission retains the authority to approve exclusions based on medical grounds.

3. Exclusion as a result of eligibility for an immediate annuity

The person must:

• be eligible for an immediate annuity under the Public Service Superannuation Act within two years after the non-imperative appointment; and
• submit an irrevocable resignation to take effect no later than the end of that two-year period.

Additional Information (Revised as of February 6, 2006)

The Public Service Employment Regulations (PSER) provides the following exclusions from the application of merit with respect to official language proficiency:

1. for one or more acting appointments of less than four months to a vacant bilingual position if the position cannot be filled by a person who meets the official language proficiency qualification or if the cumulative period of the acting appointments of all persons in that position is of less than four months (subsection 14(2));
2. for one or more acting appointments to an encumbered bilingual position if the cumulative period of the acting appointments of all persons acting in that position is of less than four months (subsection 14(1));
3. for one or more acting appointments to an encumbered bilingual position if the position cannot be filled by a person who meets the official language proficiency qualification and the cumulative period of the acting appointments of all persons in that position is of four months or more and less than twelve months (subsections 15(1) & 15(2));
4. for one or more acting appointments to a bilingual position while the incumbent is on language training if the position cannot be filled by a person who meets the official language proficiency qualification and the cumulative period of the acting appointments of all persons in that position is of four months or more and less than eighteen months (subsections 16(1) & 16(2));
5. for any acting appointment to a position in a rotational system in order to provide for the movement of employees within and outside Canada in the following organizations
   1. Department of Citizenship and Immigration;
   2. Department of Foreign Affairs and International Trade;
   3. Canada Border Services Agency. (section 17).

Persons currently excluded on compassionate grounds, on the basis of age or of continuous service, as a result of a reclassification, a reorganization, a lay-off or a leave of absence will maintain their exclusion for the period they occupy their bilingual position.

Persons who have submitted an agreement to become bilingual pursuant to the previous Public Service Official Languages Exclusion Approval Order will continue to be subject to the terms and conditions of the previous Order.