HUMA Committee Report

Many of the witnesses who appeared before the Committee voiced some concern about the scope of the Act. In this regard, some witnesses expressed the view that Parliament and federal contractors should be covered under the Act. Others suggested that coverage should be broadened to include employers who obtain contracts or receive grants and contributions, regardless of the number of workers employed in these organizations. Although there was a great deal of support for maintaining the status quo, some witnesses thought that the number of groups designated under the Act should be increased.

1. Private and Public Sector Employers

Section 4 of the Employment Equity Act specifies those employers covered under the Act. The largest group of employers covered under this section of the Act includes federally regulated private sector employers and Crown corporations that employ 100 or more employees. According to the most recent available data, there were 394 federally regulated private sector companies covered under the Act in 2000 with a combined workforce of some 612,000 employees.³⁷

The Act also applies directly to all federal departments, agencies and commissions, irrespective of the number of employees, as set out in Part I of the Public Service Staff Relations Act. As of 31 March 2001, there were 65 federal departments, agencies and commissions for which the Treasury Board is the employer with a combined employee population of 149,339 individuals.³⁸

Special operating agencies or corporations set out in Part II of the Public Service Staff Relations Act with 100 or more employees are also covered directly under the Employment Equity Act. These employers are outside the traditional federal public service and, as such, are commonly referred to as “separate” employers. Currently, there are 15 separate employers who employ more than 100 employees.³⁹ Combined, their workforces include somewhere between 60,000 and 70,000 workers.⁴⁰

For security and operational reasons, the Employment Equity Act of 1996 contained special provisions for bringing the non-civilian workforces of the Canadian Armed Forces, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service under the purview of the Act. Six years have passed and these federal organizations are still not effectively covered under the Act. Of the witnesses who addressed this issue, all agreed that it has taken much too long to develop the necessary regulations for extending the Act to non-civilian workers in these organizations. As far as the Committee can ascertain, the regulatory framework for extending coverage to these organizations is now in place; these regulations only need to be promulgated. The Committee is in total agreement that this matter has taken far too long and absolutely no reason exists for continued delays.

We also want to draw your attention to the need to proclaim the Act's application to non-civilian staff of the RCMP, the Canadian Security Intelligence Service and the Canadian Armed Forces. It is quite abnormal that, after nearly six years, this provision has not yet been implemented. (Mr. Fo Niemi, Executive Director, Centre for Research-Action on Race Relations)⁴¹

Some of the witnesses who appeared before the Committee expressed concern about the fact that Parliament is not covered under the Employment Equity Act. In their view, Parliament should fall under Act, since it created the Act and, as a consequence, should play an exemplary role in the pursuit of fairness in the workplace.

For Parliament, it is ironic that in the very body whose staff support this, the guardians of the Act are not covered by the provisions of the Act. It is strongly recommended that the House of Commons, the Senate, the Speakers, the staff, and the Library of Parliament also be covered by it. (Mr. Baljinder Gill, President, National Association of Canadians of Origins in India)⁴²

The Committee is aware of the fact that Parliament and the Library of Parliament have adopted employment equity policies as part of their overall approach to human resource management. However, members of the Committee are unsure about the extent to which these policies meet the requirements of the Employment Equity Act itself. We were told that data does not exist on the number and proportion of designated group members employed by the House of Commons. In addition, we know that the Parliamentary campus is not completely accessible to persons with disabilities, although we were assured that work is continuing in this area.

Like many of our witnesses, we support the view that Parliament should fall under the purview of the Employment Equity Act. However, a problem does arise if the Act were to be extended fully to Parliament, although not to the Library of Parliament. This problem of parliamentary privilege is not restricted to the Employment Equity Act, but applies to all legislation passed by Parliament. We were told that the House of Commons can serve the objectives of the Act, provided the operational independence and constitutional position of the House of Commons is upheld. In other words, parliamentary privilege must prevail.

The Committee supports including the Library of Parliament under section 4 the Employment Equity Act. Most members also believe that the employer obligations under the Act should apply to Parliament, provided that the tradition of parliamentary privilege remains intact.

Right now, we are not dealing with employment equity, but with parliamentary privilege. Parliamentary privilege is Parliament's right to run its own affairs and to organize its relations between employees and the employer as it sees fit. That right is protected under the Constitution. The underlying principle is that the House is sovereign and must not be accountable to one of its creations, in this case the Canadian Human Rights Tribunal. (Mr. William Corbett, Clerk of the House of Commons)⁴³

Recommendation 6

The Committee recommends that:

2. The Federal Contractors Program

The Employment Equity Act does not apply directly to federal contractors. Instead, section 42(2) of the Employment Equity Act requires the Minister of Labour to ensure that the requirements of the Federal Contractors Program (FCP) with respect to the implementation of employment equity are equivalent to the employment equity implementation requirements of employers covered under section 4 of the Act.

As noted elsewhere in our report, the FCP was initiated in 1986. The FCP applies to provincially regulated employers with a national workforce of more than 100 employees, provided they receive federal government goods and services contracts worth $200,000 or more. In order to bid on these large contracts, potential contractors are required to certify in writing their commitment to employment equity. Today, there are roughly 845 federal contractors employing some 1.1 million workers.⁴⁴ Human Resources Development Canada conducts periodic onsite compliance reviews to ensure that FCP employers are meeting their employment equity obligations.

According to several witnesses, including the CHRC which conducted its own consultations on the Employment Equity Act, the lack of a legislative basis for the FCP, no requirement to report annually, inadequate program support and guidance, and the absence of a meaningful monitoring mechanism, have all created the impression that employment equity in workplace covered under the FCP is in a state of disarray. In fact one witness indicated that despite being covered under the FCP since 1987, there was still confusion as to what constituted non-compliance and how compliance is measured. The Committee is totally convinced that this program needs to be strengthened.

Compliance reviews are sporadic and unplanned. From the perspective of the University of Saskatchewan and other employers they consulted, the process and expectations are not defined and therefore are confusing. There is a lack of direction in what the review is intended to accomplish, and virtually no follow-up on completion of the review. There is no ongoing communication with representatives of the federal contractors program. (Ms. Kathy Gray, Director of Employee Services, University of Saskatchewan)⁴⁵

With regard to the private sector and the federal contractors compliance program, the department has done a study, and there has been some leaked stuff in the newspapers about the study. I think the federal contractors program is an important tool in ensuring that the private sector plays its rightful part in promoting meaningful employment equity. It simply cannot be that all you are obligated to do is report where you're at. It has to be that if you want to get government contracts, you have to show some progress, and they need to be told that upfront. I think some of these employers are doing some good things, and there are some of them who have not made any changes in areas of employment. So looking at what needs to be tightened up, there needs to be more than simply saying, if you don't file the report on time, you might get yourself in trouble. (Mr. Hassan Yussuff, Executive Vice-President, Canadian Labour Congress)⁴⁶

Recommendation 7

The Committee recommends that the Minister of Labour examine the Federal Contractors Program with a view to re-restructuring this program to ensure that the employment equity obligations of federal contractors are the same as the obligations of employers covered under section 4 of the Act.*

3. Small Employers

Finally, a few witnesses expressed the view that coverage should be broadened to include smaller workforces in sectors already covered under the Act and organizations that receive government contracts or grants, irrespective of the level of employment in these organizations. Some members of the Committee are prepared to suggest that the employment threshold governing coverage be reduced from 100 to 50 workers. However, most of us are hesitant to recommend a change in the employment threshold at this time. Rather, we believe that the government should examine this issue further. According to one witness, we were told that, based on analysis conducted for the last legislative review, if the employment threshold was reduced to 20 employees the number of employers covered under the federally regulated private sector and the FCP would increase by 500% to 530%, while the number of employees covered would only increase by 20% to 25%.⁴⁷ Moreover, some of us are concerned about the administrative burden that a lower employment threshold would impose on small employers and the cost associated with this must certainly be considered before contemplating any change.

Recommendation 8

The Minister of Labour examine the feasibility of covering employers with fewer than 100 employees, federal contractors with contracts worth less than $200,000 and recipients of federal grants and contributions.

4. Designated Groups

For the most part, witnesses generally supported the current list of groups designated under the Employment Equity Act and did not ask for the list to be modified. However, some witnesses identified what they considered to be gaps in terms of the Act’s current coverage of disadvantaged workers. In this context, several categories of workers were mentioned as needing the Act’s protection including old workers, young workers, gay and lesbian workers, and workers facing official language barriers in the workplace.

The Committee was told that the Royal Commission on Equality in Employment used four criteria — the unemployment rate, the participation rate, earnings and occupational concentration — as indicators of workplace disadvantage. Based on these criteria, we were told that older workers were clearly not a disadvantaged group in the labour market. While some older workers do experience long spells of unemployment and hence have low earnings, as a whole this group tends to exhibit below average rates of unemployment and above average earnings compared to other age groups in the labour market. Moreover, any worker who believes that he or she is subjected to age discrimination has recourse under the Canadian Human Rights Act. The Committee is mindful of the fact that the labour force is ageing and encourages the Labour Branch at Human Resources Development Canada to monitor this situation closely.

In terms of youths, the Committee notes that the perceived labour market disadvantage in this case is largely attributed to problems encountered by youths as they make the transition from school to work. Eventually, young workers become adult workers and in so doing realize higher earnings and greater job stability.

Unfortunately, the Committee is unable to discuss the labour market situation facing other potential designated workers because there is very little information collected on these workers. Nevertheless, the Committee supports the collection and analysis of information on all potentially disadvantaged groups of workers in the Canadian labour market.