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Personal Services Contract Regulations

made under Section 15 of the

Public Service Act

R.S.N.S. 1989, c. 376

O.I.C. 2005-443 (September 30, 2005, effective January 1, 2006), N.S. Reg. 188/2005

as amended to O.I.C. 2016-264 (Oct. 20, 2016, effective Nov. 1, 2016), N.S. Reg. 234/2016


Citation

1     These regulations may be cited as the Personal Services Contract Regulations.


Definitions

2     In these regulations,

 

                (a)    “Civil Service” has the same meaning as in the Civil Service Act;

 

                (b)    “compensation” means the annualized base salary and any other payments, contributions or benefits required or potentially required to be made, paid or provided by the employer to or on behalf of an employee under a personal services contract;

 

                (ba)  “compensation framework” includes any policies, practices or plans that describe compensation, including descriptions of classifications, salary scales, pay for performance, bonuses, annual increments or cost of living adjustments;

Clause 2(ba) added: O.I.C. 2011-403, N.S. Reg. 308/2011.

 

                (c)    “department” means a government department listed in Section 2 of the Public Service Act;

 

                (d)    “government agency” has the same meaning as in subsection 10(1) of the Public Service Act;

 

                (e)    “office” means an office of the public service created under Section 4B of the Public Service Act;

 

                (f)    “personal services contract” means an agreement that establishes an employment relationship between an individual and a department, office or government agency, whether or not the terms are in writing, and includes an amendment of or extension to the agreement;

 

                (g)    “routine access policy” means the policy of routinely or automatically releasing in full or in part certain types of administrative or operational records in response to a request, without the need for a formal application for the records under the Freedom of Information and Protection of Privacy Act.


Personal services contracts with departments and offices

3     (1)    A personal services contract between an individual and a department or office must be approved based on the amount of annualized compensation payable under the contract, in accordance with the following table:


Approval of Personal Services Contract with Department or Office

Annualized Compensation

Required Approvals

$75 000 or less

Deputy Minister of department or

Deputy Head of office

More than $75 000

but less than $120 000

All of the following:

-  Deputy Minister of department or

    Deputy Head of office

-  Deputy Minister of the Treasury Board

-  Public Service Commissioner

$120 000 or more

One of the following:

-  Executive Council

-  Treasury Board

 

       (2)    A personal services contract between an individual and a department or office

 

                (a)    must be in writing; and

 

                (b)    except as provided in subsection (3), must be in the form set out in Schedule A.

 

       (3)    A department or office may enter into a personal services contract that is not in the form set out in Schedule A if the form used for the contract is approved in accordance with the following table:


Personal Services Contract with Department or Office –

Approval of Alternate Form of Contract

Annualized Compensation

Required Approvals

Less than $120 000

All of the following:

-  Deputy Minister of department or

    Deputy Head of office

-  Deputy Minister of Treasury Board

-  Public Service Commissioner

$120 000 or more

One of the following:

-  Executive Council

-  Treasury Board

 

       (4)    A personal services contract between an individual and a department or office that is not approved in accordance with this Section is of no force and effect.

 

       (5)    A copy of every executed personal services contract between an individual and a department or office must be filed with the Public Service Commission.


Personal services contracts with government agencies

4     (1)    A personal services contract between an individual and a government agency under which the annualized compensation is more than $75 000 is of no force or effect unless its terms are approved in accordance with this Section.

 

       (2)    A government agency must not begin recruiting an individual to enter into a personal services contract with annualized compensation of more than $75 000 unless the proposed terms of the personal services contract, including compensation, are approved in accordance with the following table:


Approval of Terms of Personal Services Contract

with Government Agency

Annualized Compensation

Required Approvals

More than $75 000

but less than $120 000

Both of the following:

-  Deputy Minister of Treasury Board

-  Public Service Commissioner

$120 000 or more

One of the following:

-  Executive Council

-  Treasury Board

 

       (3)    A personal services contract may be entered into on the same terms that were approved under subsection (2) without any further approval.

 

       (4)    A government agency negotiating a personal services contract must not agree to a term that deviates from the original terms approved under subsection (2) unless the new term is approved by the same authorities who approved the original terms under subsection (2).

 

       (5)    The final terms of a personal services contract between an individual and a government agency must be in writing, and copies must be filed with the Public Service Commission and the Treasury Board.


Routine access

5     The terms contained in a personal services contract, other than personal information, must be released under the routine access policy of a department, office or government agency.


Exemptions to these regulations

6     These regulations do not apply to any of the following:

 

                (a)    a personal services contract that is approved by the Minister of Education in accordance with subsection 64(3A) of the Education Act;

 

                (b)    an employment relationship with an individual appointed to the Civil Service who is not part of a bargaining unit;

 

                (c)    an employment relationship governed by a collective agreement;

 

                (d)    a personal services contract under which the compensation payable to the individual is governed by a compensation framework approved by the Executive Council;

 

                (e)    a personal services contract to employ an individual in a particular occupation, if the terms of the contract do not deviate from the contract template approved by the Executive Council for employment in the particular occupation;

 

                (f)    an employment relationship with an individual employed by a department or office on a casual basis for less than 12 continuous months, if the terms and conditions of employment do not exceed those available under the Labour Standards Code.


Application of regulations

7     (1)    These regulations apply to all personal services contracts that are entered into on or after the effective date of these regulations.

 

       (2)    For greater certainty, these regulations apply to an amendment or extension that is made on or after the effective date of these regulations to a personal services contract that is in effect on the effective date of these regulations.


Compensation frameworks

8     A compensation framework must comply with the directives and policies issued by the Treasury Board and must be filed with the Treasury Board Office annually and submitted to the Treasury Board for review and approval

 

                (a)    at least once every 5 years; and

 

                (b)    at any other time on the request of [the] Treasury Board.

Section 8 added: O.I.C. 2011-403, N.S. Reg. 308/2011.


“Treasury and Policy Board” replaced with “Treasury Board”: O.I.C. 2011-403, N.S. Reg. 308/2011.


[Note: Effective October 22, 2013, the references to the Treasury Board, Treasury Board Office and Minister of the Treasury Board should be read as references to the Department of Finance and Treasury Board and Minister of Finance and Treasury Board in accordance with Order in Council 2013-348 under the Public Service Act, R.S.N.S. 1989, c. 376.]




Schedule A

Standard Employment Contract of Service


 

This agreement is made this                           (date)


Between

 

 

Her Majesty the Queen in right of the Province of Nova Scotia, as represented by (name), Deputy Minister, (department)

(the “Employer”)

 

-and-

 

(employee name)

(the “Employee”)


The parties agree as follows:

 

1.    The Employee agrees

 

       (a)    to provide services as _______________ under the direction of (insert reporting title);

 

       (b)    to work at least the minimum number of hours per week as required of full-time civil servants; and

 

       (c)    to be bound by the principles and purposes of all of the following:

 

                (i)     Values, Ethics & Conduct: A Code for Nova Scotia’s Public Servants, as prepared by the Public Service Commission, as amended from time to time,

 

                (ii)    the Government of Nova Scotia’s Conflict of Interest Policy, as amended from time to time,

 

                (iii)  the Conflict of Interest Act,

 

                (iv)   the Freedom of Information and Protection of Privacy Act,

 

                (v)    the Government of Nova Scotia’s Privacy Policy, as amended from time to time.

 

2.1. In this section, “confidential information” means non-public information that meets any of the following criteria:

 

       (a)    it is marked “confidential” or with a similar legend;

 

       (b)    it is disclosed in any other manner and identified as confidential at the time of disclosure;

 

       (c)    it is “personal information” as defined in the Freedom of Information and Protection of Privacy Act;

 

       (d)    it would be recognized as confidential or proprietary by a reasonable person considering the nature of the information and the circumstances of disclosure;

 

provided however, that the term “confidential information” shall not include any information that the Employee can establish by competent evidence:

 

       (e)    was publicly known and made generally available in the public domain before it was disclosed to the Employee;

 

       (f)     becomes publicly known and made generally available after disclosure by the Employer to the Employee through no action or inaction of the Employee;

 

       (g)    was in the possession of the Employee, without confidentiality restrictions, at the time of disclosure by the Employer as shown by the Employee’s files and records in existence before the disclosure; or

 

       (h)    is independently developed by the Employee without use of a reference to the Employer’s confidential information.

 

2.2. The Employee shall

 

       (a)    review and follow all established policies, procedures and standards of the Employer for ensuring the security of confidential information and shall take reasonable precautions to protect all confidential information disclosed to the Employee from any unauthorized or inadvertent disclosure;

 

       (b)    keep all confidential information strictly confidential, and shall not, without the prior written consent of the Employer, release, publish, disseminate or disclose any confidential information to any party, unless the Employee is required to do so by applicable law or in response to an order of a court of competent jurisdiction;

 

       (c)    only use confidential information to carry out tasks assigned by the Employer in relation to the Employee’s employment under this agreement; and

 

       (d)    report any breach of the terms of this section to the Employer immediately upon becoming aware of such breach.

 

2.3. The Employee acknowledges that the Employer may be harmed if any provision of this section is not complied with or performed by the Employee, and that the harm could not be compensated reasonably or adequately in damages. The Employee further acknowledges and agrees that the Employer is entitled to injunctive and other equitable relief or other remedies to prevent or restrain a breach of any of the provisions of this Section by the Employee, or to enforce the terms of this section.

 

2.4. Subsections 2.1 to 2.3 remain binding on the Employee after termination of this agreement.

 

2.5. A violation by the Employee of subsection 2.2 may be considered just cause for termination pursuant to subsection 6.1.

 

3.1  The Employer agrees to

 

       (a)    pay a salary to the Employee of approximately $__________ per year before any deductions required by law or this agreement;

 

       (b)    grant the Employee vacation days earned at a rate of 1.25 days for each month of employment, to be taken in the year the vacation entitlement is earned;

 

       (c)    reimburse the Employee for all expenses incurred that would be reimbursed if the expense was incurred by a civil servant;

 

       (d)    grant the Employee the same holiday benefits granted to civil servants;

 

       (e)    allow the Employee

 

                (i)     to enroll in the Province of Nova Scotia Group Life Insurance Policy,

 

                (ii)    to receive insured health benefits under the Province of Nova Scotia Consolidated Health Plan;

 

       (f)     grant the Employee sick leave benefits at the rate of 1.5 days per month for each month of service with the Employer to a maximum of 18 days per fiscal year beginning April 1 and ending March 31; and

 

       (g)    indemnify the Employee and to extend to the Employee the same protection against liability from suits or claims brought against the Employee in respect of work performed on behalf of the Province as the Employer would provide to a civil servant.

 

3.2. The Employee agrees that the Employer reserves the right to publish or release the terms and conditions of this agreement in whole or in part in accordance with clause 20(4)(f) of the Freedom of Information and Protection of Privacy Act and the applicable departmental Routine Access Policy, and same may be made public by the Employer as the Employer considers fit in its sole discretion.

 

4.    The Employee is not entitled to enroll in the Province of Nova Scotia Public Service Long Term Disability Plan and is not, by this agreement or otherwise, a civil servant.

 

5.    The term of this agreement is from (start date) to (end date) unless terminated earlier under this agreement or extended by mutual agreement of the parties in writing.

 

6.1. Despite any other provision of this agreement, this agreement may be terminated, without notice or compensation in lieu of notice, for just cause, which the parties agree includes failure by the Employee to carry out the terms of this agreement.

 

6.2. This agreement may be terminated at any time and for any reason by either of the parties giving the other party 30 days’ written notice to that effect.

 

6.3. If this agreement is terminated under subsection 6.1 or 6.2, the Employee must be paid the sum or sums that have accrued under clause 3.1(a) up to the date of termination, and such sum or sums must be received by the Employee in full satisfaction and discharge of all claims and demands against the Employer in respect of this agreement.

 

7.    The parties agree that any recourse or remedy arising with this agreement arises from contract, and that neither party has a claim or remedy, in damages or otherwise, in tort arising from performance or non-performance of this agreement, except as provided for in subsection 2.3.

 

8.    All materials and information produced by the Employee in the performance of this agreement, and all rights therein, belong to the Employer.

 

9.    The Employer reserves the right to publish or release in whole or in part, to publish an amended version of or not to publish or release at all, or to use or not to use as the Employer considers fit, any research, reports, material, audio-visual materials or information produced by the Employee in the performance of this agreement.

 

10.  This agreement is not assignable.

 

11.  Any discretionary authority or right under this agreement is not subject to the expectations, reasonable or otherwise, of the parties and any action taken under a discretionary provision is deemed to be an exercise in good faith.

 

12.  No term or provision of this agreement is deemed waived and no breach excused, unless the waiver or consent to the breach is in writing and signed by the party making the waiver or giving the consent. Any waiver of a term or provision or consent to a breach, whether express or implied, does not constitute a waiver of a different term or provision or consent to a different or subsequent breach or continuation of the same breach unless expressly stated.

 

13.  If any term or provision of this agreement is found to be unenforceable or illegal, the rest of the agreement remains in full force and effect except that the offending term or provision is deemed to be removed from the agreement.

 

14.  Any notice required to be given under this agreement shall be valid if given in writing by pre-paid registered letter to the following applicable address:

 

To the Employer:

Commissioner, Public Service Commission

1800 Argyle Street, 5th Floor

PO Box 943

Halifax, Nova Scotia

B3J 2V9

 

To the Employee:

(employee name)

(employee address)

 

or to another address that is communicated in writing to the parties, and notice is deemed to have been given 2 business days after the day the letter is posted. Nothing in this agreement precludes the delivery of notices by means other than mailing.

 

15.  Time is of the essence in this agreement.

 

16.  The parties acknowledge that this agreement is of no force and effect unless approved as required by the Public Service Act and regulations.

 

17.  The Employee hereby certifies that they have reviewed and fully understand the terms of this agreement.

 

18.  This agreement is the entire agreement between the parties but for the policies and plans referred to above. Any other agreement between the parties is void upon the signing of this agreement and no changes may be made to this agreement except in accordance with section 19.

 

19.  This agreement can only be amended, supplemented or otherwise modified by written agreement signed by both parties.

 

20.  This agreement must be construed in accordance with the laws of the Province of Nova Scotia.



The parties have executed this agreement on the date set out at the beginning of this agreement.



Signed in the presence of:

)

 

 

 

)

 

 

 

)

 

 

Witness

)

 

Employee

 

)

 

 

 

)

 

 

 

)

)

 

Her Majesty the Queen in the

Right of the Province of Nova Scotia

 

)

 

 

 

)

Per:

 

 

)

 

 

Witness

)

 

Deputy Minister, Finance and Treasury Board

 

)

 

 

 

)

 

 

 

)

 

 

Witness

)

 

Commissioner, Public Service Commission

 

)

 

 

 

)

 

 

 

)

 

 

 

)

Per:

 

Witness

)

 

(name of deputy)

 

)

 

Deputy Minister, Originating Department



Schedule A replaced: O.I.C. 2016-264, N.S. Reg. 234/2016.