The Public Service Alliance of Canada is pleased to present its views and recommendations to the Standing Committee on Human Resources Development and the Status of Persons with Disabilities, as they assess the provisions of the Employment Equity Act.

The PSAC represents over one hundred and thirty thousand workers. Our members work for Federal Government Departments and Agencies, separate employers, federal crown corporations and agencies, the Yukon, Northwest Territories and Nunavut governments and a variety of other public and private sector employers.

The Public Service Alliance of Canada views the Employment Equity Act as a critical tool in the struggle against all forms of discrimination. We understand that employment equity will not, in itself, eradicate all forms of discrimination, or harassment, from the workplaces of our members - but we see a clear advantage to proceeding with a “collective” process or mechanism to deal with systemic discrimination. 

Other than the Canadian Human Rights Commission, unions are the only resourced group that have been provided a role, although a limited one, in the development and the implementation of employment equity plans in unionized workplaces.  The PSAC takes seriously its role in critiquing the effectiveness of the legislation.  We will reaffirm the need for a comprehensive legislative process to bring equity into the workplaces of members we represent.

Our specific comments and recommendations on the Employment Equity Act are as follows:

Our initial recommendation is to suggest that Human Resources Development Canada (HRDC) should develop an effective means of communicating employment equity strategies, resources,   programs, policies and progress to all stakeholders, including unions.  There are infrequent formal contacts between HRDC, the Canadian Human Rights Commission (CHRC) and unions and this undoubtedly weakens their ability to understand the complexity of the labour relations process as they attempt to respond to employment equity issues in a unionized environment.

Recommendation 1:

The Employment Equity Act should provide for the creation of regional employment equity councils which will serve to bridge the experiences of those who are covered by the Employment Equity Act.  The council would foster an exchange of information and strategies in order to support the effective implementation of employment equity in our workplaces.  It is our view that HRDC/Labour should be resourced and mandated to carry out this function.

The Employment Equity Act, when initially enacted, was portrayed as being an important opportunity to remedy systemic discrimination in the workplace.  There, however, are several fundamental problems with the Act that undermine its effectiveness.  First, sole responsibility for employment equity resides with employers and the Commission; bargaining agents and employees are no longer considered to be parties with expertise and insight who can play a meaningful role in the process.  For example, although an employer may develop an equity plan in consultation with a bargaining agent, there is no remedy in the event that the bargaining agent does not agree with the plan.  Nor is there any statutory method by which a bargaining agent can trigger a workplace audit by a compliance officer in cases where the bargaining agent has concerns about a particular workplace.

Of equal concern to us is the fact that the Commission’s own methods of initiating audits are insufficient.  Although there could be a series of individual complaints pursuant to the CHRA from a particular worksite that might suggest a systemic problem, the EEA specifically blocks a sharing of information between investigators which could lead to an audit, which renders the Commission’s own investigators as powerless to initiate meaningful measures as is the bargaining agent and individual employees.

The consequential amendments to the CHRA following the enactment of the EEA have eliminated the possibility of relying on statistical evidence alone to illustrate a problem or to found a complaint.  Instead, the complaint must now be tied to a specific discriminatory policy/practice.  Those not intimately familiar with specific workplace human resources policies and practices (e.g., community organizations, individual employees, unions in some cases) are disadvantaged by these amendments.   

As well, positive remedial measures can no longer take the form of a specific order by a Canadian Human Rights Tribunal on hiring practices involving numerical objectives.

As a result, the only recourse is to pursue a remedy under s.15 of the Charter of Rights and Freedoms.  There is no other option left for an employee, a union or an equality-seeking organization wishing to initiate a complaint that leads to a systemic solution.  This recourse is problematic in that the cost of a Charter challenge renders it inaccessible to most employees and bargaining agents looking for practical and timely remedial measures. 

The PSAC is also concerned that the Commission does not consider remedial measures and orders as being part of a public record that can be accessed for research purposes.  The identification and analysis of workplace barriers, for example, is an evolving area of law, yet access to information about current practices and remedial measures is limited, thereby preventing employees and bargaining agents, among others, from participating in informed discussions about current practices.

The PSAC again recommends that, in unionized workplaces, the Employment Equity Act make reference to the negotiation of employment equity plans. 

These provisions should also specify that the negotiation of the employment equity plan occur as a separate process from regular collective bargaining. In the Federal Public Service, staffing and promotions are areas that have not been negotiable. However, given the gaps in representation for racial minorities and persons with disabilities, staffing and promotions are areas that need to have meaningful joint discussions. The failure to adequately deal with the gaps in the representation of the employment equity groups is, in great part, a result of an absence of rigorous monitoring of how staffing is carried out in Departments and Agencies.

We believe that our human rights obligations and our process of monitoring the application of collective agreements could lead to increased vigilance on the issue of staffing. It could also place an early responsibility on the parties to negotiate staffing protocols that seek to eliminate gaps in the representation of under-represented equity groups. 

As well, the negotiation of employment equity plans will provide an additional opportunity to ensure that collective agreements are examined to provide barrier free language.

With respect to consultation and collaboration (note: only consultation is enforceable under the current legislation) between unions and employers, in workplaces where we are the bargaining agent, meaningful consultations can only be described as uneven and, for the most part, limited.  With respect to the federal Public Service, the members of the Standing Committee should understand the contradictions posed by the Public Service Staff Relations Act, which precludes the negotiation of staffing and classification, and the requirements of the Employment Equity Act, which call for consultation and collaboration on the review of recruitment, selection, promotions and other employment systems.  

There is a need for Regulations to support the negotiation of employment equity plans.  In addition, the regulations must set out minimum requirements with respect to access to information by the bargaining agents and employee representatives, in areas such as:

§      results of the workforce survey,

§      workforce analysis,

§      conclusions and findings emanating from the employment systems review,

§      information on barriers which have been identified,

§      information to support measures and goals in relation to the employment equity plan.

Our members are encountering difficulties in accessing data with respect to representation, hirings, promotions and terminations, by occupational category and employment equity groups.  Employers are supporting their refusal to provide this information by referring to the Act’s confidentiality provisions of the self-identification process.

In addition, the Employment Equity Act and Regulations need to clearly distinguish between the requirement to consult with the two groups covered by the Act’s definition of “representatives”.  In a unionized organization, consultation for employees covered by the collective agreement has to take place with bargaining agent representatives.

It is critical that equity group members are represented in any process leading to the employment equity plan preparation, implementation and revision.  However, confusion as to who speaks on behalf of unionized workers does not facilitate this process.  The members of the Standing Committee should note that unions have a significant history with measures to correct under-representation of equity groups.  The PSAC has established programs/structures in the area of human rights, women’s issues and employment equity to overcome our institutional barriers.  

Recommendation 2:

That, in unionized workplaces, employment equity plans be the subject of negotiations with bargaining agents, and that bargaining agents have the ability to seek recourse or resolution in the event of disagreement with the plan.

The PSAC recommends that Regulations be enacted to assist the negotiation of employment equity plans.  In addition, these regulations should set out access to information entitlements for bargaining agent representatives and employee representatives in areas such as:

§      results of the workforce survey,

§      workforce analysis,

§      conclusions and findings emanating from the employment systems review,

§      information on barriers which have been identified,

§      information to support measures and goals in relation to the employment equity plan.

Recommendation 3:

That bargaining agents and employees have the right to trigger workplace audits by a compliance officer where there are concerns about the workplace.

Recommendation 4:

That the statutory barrier which prevents investigators of the Commission who are investigating individual complaints pursuant to the CHRA and those conducting audits pursuant to the EEA be eliminated to allow investigators to share their information where the information before them suggests the possibility of a systemic problem.

Recommendation 5:

That the prohibition against reliance on statistical evidence alone to file a complaint be removed and Tribunals should not be limited in the remedies they may design in order to address problems in particular workplaces.

Recommendation 6:

That information related to employment barriers and remedial measures in workplaces be made available through the CHRC for research and educational purposes. 

Our members from the lesbian, gay, bi-sexual and transgendered communities have experienced the effects of direct and systemic discrimination.  Given the absence of Census data for this group, and the difficulty in assessing socio-economic status which could lead to the identification of employment disadvantage for this group, they continue to be excluded from legislation that is meant to be a pro-active tool to identify and remove systemic barriers.

 

Recommendation 7:

The designated groups should be expanded to include lesbians, gay men, bisexual groups and the transgendered.  We further recommend that the government undertake specific consultations with these groups on how they should be included in the Employment Equity Act.

We have previously called for the inclusion of older workers to the designated groups, given the experience of older workers when the Federal Public Service went through a downsizing period in 1990’s.   

The Employment Equity Act makes mention of the need to ensure that the requirements of the Federal Contractors Program are equivalent to the requirements with respect to the implementation of employment equity.  The Federal Contractors Program, for a variety of reasons, has had limited impact on correcting conditions of disadvantage experienced by the equity groups.  Although we are concerned with the enforcement inadequacies in the Employment Equity Act, we think that compliance audits by the Canadian Human Rights Commission will be more effective, and lead to a consistent implementation of equity, if both these programs fall under the same audit responsibility and function.

Recommendation 8:

We recommend that the Federal Contractors Program be folded under the Employment Equity Act and subject to CHRC compliance audits.

Recommendation 9:

We will repeat our recommendation that the Employment Equity Act. apply to the following employers:

The Senate, the House of Commons and the Library of Parliament

The Canadian Armed Forces (members and officers)

The Royal Canadian Mounted Police (members and officers)

In addition, there is a clear need for an effective public reporting for separate employers under Part II, schedule I of the PSSRA.  As it stands these employer reports are tabled concurrently, but separately, from the Treasury Board Annual Report on Employment Equity in the Federal Public Service. In addition, these organizations are not officially supported by HRDC/Labour as is the case with the federally regulated sector.

The important role of public scrutiny in encouraging appropriate accountability cannot be effectively carried out.  We are also of the view that the reporting scheme is incomplete and would echo a comment found in the December 2001 Report of the Standing Senate Committee on Human Rights, which suggests a need for a Parliamentary Human Rights Committee.  We think such a committee, given its mandate, would be well placed to enhance employment equity public policy, in addition to human rights public policy.  To this end, rather than assessing gains or trends in the course of a legislative review, a parliamentary human rights committee could also be tasked with receiving employment equity annual reports from HRDC, CHRC, TBS and separate employers with a view of consolidating demographic trends and assessing areas for action.

Recommendation 10:

We recommend the creation of a Parliamentary Human Rights Committee.  We also recommend that annual employment equity reports from Human Resources Development Canada, the Canadian Human Rights Commission, the federal Public Service and from separate employers be tabled with this Parliamentary Committee for their review and action.

We have also been consistent in our view that there should be full mobility between separate employers and the federal Public Service.  The identification of employment barriers against the equity groups is intricately linked to an assessment of employee mobility.  Given the government’s propensity to create large independent agencies to perform core government functions, it is critical that mobility rights between these two categories of workers be sustained.

The Task Force on Modernizing Human Resources Management also raises important considerations.  It is our view that continued delegation of human resources management to Departments and Agencies is rendering difficult a consistent and effective implementation of employment equity in the federal Public Service. 

The Task Force, which did not consider the Employment Equity Act, nor the Canadian Human Rights Act in their deliberations, is likely to table their report prior to the conclusion of the current review by the Standing Committee on Human Resources Development and the Status of Persons with Disabilities.

It is critical that human resources reform in the federal Public Service support an effective and consistent development and implementation of employment equity.  We don’t want the federal public sector to become a string of separate entities that can quickly do away with the entitlement of public sector workers to enjoy the same rights and treatment, and equality in the workplace, regardless of where they are employed.

The federal government’s continuous and increasing use of a term and casual workforce is a significant problem, and it needs to be rectified.  Our analysis of Treasury Board data indicates that of the total federal Public Service workforce, 84.4% are indeterminate employees. By comparison, only 47.3% of equity group employees are indeterminate.   Eighty percent (80%) of hires in the federal Public Service, last year, were hires into temporary positions.  Seven out of ten of these temporary hires were members of the equity groups.

Gains in the hires of equity group members must translate into more than gains in temporary positions.

Recommendation 11:

The Employment Equity Act should include the additional requirement to carry out a workforce analysis by employee status (permanent full-time, permanent part-time and temporary employees).  As well, short term numerical goals for the hiring and promotion of equity group persons should respond to gaps by employee status.

We have comments to offer on the concept of merit.  Recognizing, as we do, that a number of elements included in the concept need to be balanced, we note that the word «merit» already applies in two potentially contradictory senses: «individual merit», in which an individual person’s qualifications are measured against the requirements of the position, and «relative merit», in which a competition is meant to determine the person best qualified for the position.

In the case of employment equity, it is understood and accepted that the public service should reflect the public that it serves. Staffing should, in a systemic sense, be geared to bringing about that representativity, not by focusing exclusively upon external recruitment, but by having a wide range of mechanisms at its disposal to overcome barriers and attain the desired result, such as internal designated staffing processes with full recourse rights, and testing/selection tools which have been vetted for adverse impact.

The concept of merit has been tarnished over the years by the significant subjective component known as «personal suitability».  Our members, in large numbers, are utterly convinced that this factor allows a manager to effectively select whomever he or she pleases.  This potential for bias has been reported in numerous studies and government investigations. If the determination of merit is to have any face validity, then subjective elements that could have adverse impact or be otherwise unjustified or unfair need to be closely circumscribed.

The reference to the “not authorized by law” in section 5 a) of the Employment Equity Act continues to concern us.  For example, merit is mentioned, although not defined, in the Public Service Employment Act.  It is our view that the Employment Equity Act and Regulations require the federal Public Service to ensure that merit is assessed in a barrier-free manner.  This has given rise to the question of primacy of legislation.

Recommendation 12:

We recommend that a statement giving primacy to the Employment Equity Act over other types of employment related legislation, be added.

Aboriginal Peoples

It is important that the Employment Equity Act. provide the tools necessary to determine the factors that may be contributing to high termination rates for Aboriginal Peoples.  Our Aboriginal members speak to us of their feeling of isolation and of un-welcoming environments.  The current employment systems review framework under the Act, does not adequately respond to the need to evaluate the workplace culture, for potential attitudinal barriers.

Recommendation 13:

The Employment Equity Act and Regulations should incorporate the requirement to review the workplace culture in the course of the employment systems review.

Racially Visible Persons:

In the federal Public Service, representation of visible minorities is far from the labour market availability rate generally used in the federally regulated sector of 10.3%.  With the creation of the Canadian Customs and Revenue Agency as a separate employer, the representation rate of visible minorities in the Federal Public Service has decreased from 5.9% to 5.5%.

The Employment Equity Act should be clear in ensuring that barrier free labour market availability rates are used.  The decision by the Treasury Board to exclude non-Canadian citizens from the availability rate established for visible minorities, in our view, has an adverse impact on visible minorities.  The current legislative provisions require that we rely on the CHRC employment equity audits, or the Courts, to have this matter addressed.

We also note the questions being raised in relation to the definition of this equity group in the HRDC report which has been submitted to the members of the Standing Committee.  We will immediately say that the issue of designated group definitions must be raised in a manner that allows for significant dialogue with members from these communities. We also offer the following:

·      Labour understands the concept of layers of oppression or disadvantage.  We also understand the need to assess who appears to not be making gains under the Employment Equity Act.

·      We also understand the need to ensure that designated groups are not further marginalized by a prioritization of disadvantage and discrimination that creates tensions and divisions among these groups.

The PSAC strongly urges that appropriate consultations also occur with equality-seeking groups and unions, in particular the advocacy groups best placed to provide input with respect to race and disability issues, before any specific recommendations are offered on the definition to be used to establish the identity of individuals who fall under these categories.

Recommendation 14:

The PSAC recommends that the Employment Equity Act. require that labour market availability rates be established in a barrier free manner.  

Persons With Disabilities

We must underscore that the labour market availability rates for persons with disabilities stem from the 1991 Health Activities Limitations Survey.  This provides an inadequate basis from which to assess our workplaces and upon which to set numerical goals.

In addition, the duty to accommodate is a key priority for our members with disabilities.  The Supreme Court decisions in the cases of Meorin and Grismer have re-affirmed the obligation of employers and service providers to devise and implement barrier free systems, policies, practices and standards.

The Employment Equity Act makes a reference to the “reasonable accommodation of the needs of the designated groups” (as opposed to the concept of the duty to accommodate to the point of undue hardship).

Recommendation 15:

The PSAC recommends that the Employment Equity Act makes clear the employer obligation to have a written policy on the accommodation of the equity groups. 

Recommendation 16:

We recommend that the Employment Equity Act mandate that both the Census and Health Activities Limitations Survey (HALS) occur at regular and shorter intervals in order to ensure that accurate and timely labour market data is available.

Women

Hiring data supports the need for continued employment equity measures that broaden women’s access to a range of occupational categories. The Employment Equity Act specifically deals with under-representation, at the occupational group level.  This does not adequately deal with occupational ghettoization or occupational clustering.  The Employment Equity Act should provide mechanisms to address clustering of women in traditional female-dominated occupations.

Beyond the issue of pay equity, there is also a need to examine barriers in the classification system. The Employment Equity Act and Regulations do not make specific mention of the need to review the classification system. The PSAC is of the view that gender-based wage discrimination cannot be corrected exclusively with a pay equity model.  

In addition, the Employment Equity Act. is silent on issues of systemic discrimination and pay, although this information is included in the current reporting requirements.  We note that a review is currently under way with respect to the pay equity provisions of the Canadian Human Rights Act.  As well, the Justice Minister has indicated that a government response to the CHRA Review Panel can be expected this summer.  Unfortunately, the important need to assess non-pay systemic discrimination issues in classification systems (number of steps or increment levels by occupational category, for example) and the need to undertake an analysis to establish whether or not race and disability pay equity model is required, cannot be undertaken separately by the above noted processes/reviews.

Recommendation 17:

The PSAC recommends that the Employment Equity Act and Regulations should add the requirement to review the classification system in the course of the employment systems review. 

Recommendation 18:

The PSAC recommends that the Employment Equity Act and Regulations specifically require an analysis of under-representation based on salary ranges.

The Employment Equity Act is silent on recognizing the need for employers to balance opportunities for their employees who are members of the equity groups, with the need to increase external recruitment of equity groups in areas where they are underrepresented.

Although we have been clear of our support for the measures flowing from Embracing Change in Federal Public Service (Task Force on the Participation of Visible Minorities in the Federal Public Service), we have also been concerned with the implementation of these measures.  We are concerned that measures to increase the representation of racial groups are focused almost exclusively on external recruitment.       

Measures to close the representation gaps have to be sensitive to the disadvantage experienced by many current equity employees.   

Recommendation 19:

The PSAC recommends that the Act provides for clear employer responsibility towards their current employees from the equity groups, in addition to the requirement to increase overall representation of equity groups through external recruitment.  

The Employment Equity Act has to respond to issues of intersection between gender, race and disabilities.  There exists a serious flaw in the current legislative framework, with respect to the issue of discrimination which is based on multiple grounds (e.g. race and gender). The Employment Equity Act allows for an employer to be in compliance, even if serious levels of under-representation exist for racialized women or women with disabilities.  The purpose of achieving equality in the workplace is further undermined given that a complaint of discrimination, based on multiple grounds under the Canadian Human Rights Act can be dismissed by the CHRC given that the matter is deemed to have been adequately dealt with pursuant to section 10 of the Employment Equity Act. (Section 41 (2) of the CHRA).

Yet, the Employment Equity Act, either with respect to employer obligations or with respect to compliance, does not deal with gender inequities within each of the three other equity groups.  Multiple ground issues are not addressed in relation to the workforce analysis requirements, in relation to the employment systems review or with respect to measures to be included in the employer’s employment equity plan.

Recommendation 20:

The Act should require the workforce analysis to include an analysis on multiple equity groups.  Employer reports should also include data on gender for the three equity groups.  (This information is captured in Schedule VI of the Employment Equity Regulations)

The level of occupational analysis currently set out in the Employment Equity Act, is problematic in that the analysis is required at the “group” level.  In addition, the employment equity plan requirements respond to under-representation at the “group” level.  In the federal Public Service, group equates to occupational categories. Effective employment equity work requires an analysis and remedial measures that respond to gaps/goals at the sub-group level, given that under-representation may exist within a sub-group, while representation is met at the occupational group level.

Recommendation 21:

The Employment Equity Act should provide for an analysis of occupational sub-group clustering, even if overall occupational group representation is met.