HUMA Committee Report

Throughout the review, we heard many different perspectives on the administration of the Employment Equity Act. Essentially, these considerations can be boiled down to three different questions:

Some of the answers to these questions have appeared throughout the text and recommendations of this report. Others will be more fully addressed in this section.

1. Human Resources Development Canada

As it now stands, the Employment Equity Act gives the Minister of Labour the responsibility for research, promoting public education and understanding of the Act, and providing labour market information regarding the representation of designated groups. In addition, the Minister can issue guidelines and provide advice to private sector employers and employee representatives. The Minister also tables an annual report in Parliament that analyses and consolidates all the reports from federally regulated private sector employers and assesses progress.

Throughout our hearings, many witnesses mentioned that they believed that Human Resources Development Canada (HRDC), and in particular its Labour Branch, required adequate resources to carry out the functions that have been assigned to them.⁸⁴ In addition, some of the recommendations in this report will require additional resources.

Recommendation 26

The Committee recommends that the government allocate adequate resources to the Labour Branch of Human Resources Development Canada in order to ensure that the Branch fulfils its obligations under the Employment Equity Act.

The Minister of Labour is also responsible for the administration of the Federal Contractors Program (FPC) with the mandate to ensure that it is implemented in an equivalent manner to the Employment Equity Act. Currently, the department estimates that there are approximately 845 employers with approximately 1.1 million employees who are federal contractors for the purposes of employment equity. These employers are required to certify their commitment to implement employment equity initiatives in order to bid on a contract and are subject to a review by HRDC once a contract has been awarded.

Many of our witnesses have pointed out that there is a discrepancy between the employment equity requirements of federally regulated private sector employers and those with federal contracts. There seems to be no firm basis for judging the latter’s performance under the Act. Anecdotally, some of our witnesses believe that they are not performing well, but the Committee has no evidence to make a judgement one way or another. Some witnesses felt that HRDC’s reviews have been conducted sporadically by HRDC employees who have left employers confused and uncertain. Some employers told us that they do not know what is expected in terms of compliance and that they need greater confidence in the program.

Reporting to the FCP is sporadic and appears unplanned. The expectations are vague and the process is generally disorganized. … The reviews by the FCP, on the other hand, are totally focused on numbers with little regard to the other non‑quantitative initiatives taken by employers…. There is general agreement that it would be too onerous to expect employers to report annually. A review every three or four years would be sufficient, but it must be a planned review…. Additionally, what does it mean to be in compliance or not? How is this measured? I’ve raised this latter question several times with representatives of the FCP and nobody seems to know what would constitute non-compliance. This leads to the conclusion that the reviewers and the colleagues in FCP are as confused as the employers they review.⁸⁵

At the outset of our review, officials from the Labour Branch of HRDC told us that the Minister of Labour promised that the Committee would receive the evaluation of the federal contractors program. At a later date, the former Deputy Minister of HRDC was requested to provide the Committee with this information. Because it has not been received prior to the preparation of this report, the Committee has been unable to fully assess the operations of this program apart from our witnesses’ testimony.

The Committee would remind the Minister of Labour that the Act states:

The Minister is responsible for the administration of the Federal Contractors Program for Employment Equity and shall, in discharging that responsibility, ensure that the requirements of the Program with respect to the implementation of employment equity by contractors to whom the Program applies are equivalent to the requirements with respect to the implementation of employment equity by an employer under this Act.⁸⁶

We are not certain that this part of the Act has been properly implemented.

Recommendation 27

The Committee recommends that:

2. Treasury Board Secretariat

Since 1996, the Employment Equity Act has applied to the public service and as the federal public service employer, the President of the Treasury Board has also certain responsibilities under the Act. Treasury Board has been responsible for many of the same tasks within the public service as the Minister of Labour, but, as the employer, these have also included identifying and eliminating barriers, instituting positive policies and accommodation, and preparing employment equity plans (delegated to departments). The Employment Equity Act states that:

The Treasury Board and the Public Service Commission, each acting within the scope of its powers…are responsible for carrying out the obligations of an employer [italics added] under this Act in relation to employees …⁸⁷

As the role of the Treasury Board has evolved vis-à-vis the departments, however, its place in the administration of the Employment Equity Act has become increasingly unclear. Prior to the current Act, the Treasury Board had an employment equity policy in place and began reporting on the representation of designated groups in the public service workforce.

The fate of policies and programs that have supported the achievement of employment equity is now in doubt. Chief among them are the Employment Equity Positive Measures Program which provided support to build institutional capacity and the Embracing Change Program that was designed to address the representation of visible minorities. The recent cancellation of the Employment Equity Positive Measures Program has eliminated what Treasury Board itself calls a “significant part of Treasury Board’s overall employment equity program for the federal public service.” The nature of the replacement of this program is uncertain because Treasury Board and the Public Service Commission (PSC) have delegated the functions of this program to all departments. The Public Service Commission, which operated the program components of this program, told the Committee that “under the EEA [Employment Equity Act] and current government policy on the duty to accommodate, departments are responsible for removing employment barriers and for accommodating their employees….”⁸⁸ The President of the Public Service Commission informed the Committee in a letter that the PSC and the Treasury Board Secretariat are “continuing discussions with interested departments” to get departments “to consider serving as a centre of expertise….” The Commission and Treasury Board are working on a new policy to spell out the duty to accommodate.

Through its Chair, this Committee has already expressed its concern in letters to both the President of the Treasury Board and the President of the Public Service Commission. We believe that in the absence of a centralized inventory of assistive devices and best practices, public service managers will now be tasked with seeking, through information networks the supports and services that should be equally available to all public service managers and employees.

The Committee firmly believes that the federal government, as the initiator of the Employment Equity Act, and Treasury Board Secretariat, as the public service employer, have an obligation to provide leadership and to set an example. It is as an employer that Treasury Board negotiates collective agreements on behalf of all departments and obviously would retain some responsibility under the Act. In addition, neither the delegation of management to the departments nor their assumption of increased responsibility for employment equity diminishes our belief that, like private sector employers, the “head office” of the public service should retain responsibility for ensuring compliance with the law. Despite the provision for delegation and sub-delegation of powers to departments, the Committee believes that Treasury Board should not have it both ways.

One of the underlying principles of this report has been the achievement of equity in its broadest sense — the application of the law equally to all employers. The federal public service should be no exception. In order to clarify the roles and responsibilities of the Treasury Board Secretariat, we have recommended elsewhere that the Minister of Labour assume responsibility for the compilation, analysis and reporting on progress that were formerly carried out by Treasury Board. In addition, we have recommended that the Minister of Labour assume the same function for the separate employers that also form part of the Government of Canada.

Recommendation 28

The Committee recommends that:

3. The Canadian Human Rights Commission

The Canadian Human Rights Commission has been given the mandate to monitor and ensure compliance through on-site audits. In 1995, the Act created an Employment Equity Review Tribunal to ensure final enforcement of the Act where necessary. The work of the Commission in conducting its activities has been discussed throughout this report. We have, for example, recommended that the Commission be provided with greater resources to carry out its audit and compliance functions.

Throughout our hearings, we heard from several witnesses that many of the functions assigned to the Commission and to HRDC should be consolidated in a new office of an employment equity commissioner. They argued that this could achieve greater uniformity in the administration of the employment equity program across the public and private sectors. Some members of the Committee support this position. Most members, however, believe that the employment equity delivery structure, as it exists with the changes that we have recommended in this report, could become more closely integrated and better co-ordinated.

Recommendation 29

The Committee recommends that the Department of Human Resources Development Canada’s Labour Branch, the Treasury Board Secretariat and the Canadian Human Rights Commission collaborate more closely to ensure that employment equity is delivered consistently across the public and private sectors and that HRDC’s Labour Branch assume primary responsibility for program administration, policy development, workforce analyses of designated groups, and the production of consolidated employment equity reports.

Not all members of the Committee believe that this recommendation is sufficient to achieve greater uniformity in the administration of employment equity. Consequently, some of us propose that consideration be given to establishing an employment equity commissioner or an employment equity commission, whose mission, terms of reference and operation should be studied by the Standing Committee on Human Resources Development and the Status of Persons with Disabilities.