Current requirements

Under the Act, employers are required to consult with bargaining agents on most areas related to the employment equity plan.

Section 8 of the Act makes consultation a requirement to be enforced through the compliance audit process. The Commission’s assessment factors require that this consultation must be timely and meaningful.

In assessing an employer’s compliance, interviews with union representatives are an important part of a compliance officer’s activities.

The Act also clearly establishes an obligation for employers to "collaborate" with its bargaining agents on employment equity while explicitly defining such collaboration as not constituting co-management. Inexplicably, however, this requirement is excluded from Section 8, which means the Commission has no mandate to assess collaboration between employers and unions for compliance during the course of an audit.

Issues discussed

Unions raised a number of concerns with the current limiting provisions of the Act . First, while they support the requirement to consult with bargaining agents, they recommended that the Act should also mandate the involvement of the union as an organization. Second, the unions believe that the existing statutory requirement to collaborate should be included in Section 8 in order to permit the Commission to audit for compliance.

Some advocacy groups also suggested that consideration should be given to including statutory requirements imposing certain obligations on unions. Unions, it was argued, should be obliged to educate their members on employment equity and actively promote the achievement of equity goals in the workplace. Protection of seniority should be important but unions should be required to review with the employer all aspects of the collective agreements and to formulate a strategy to minimize any adverse impact.

The issue of an increased role for the unions was also confirmed during the HRDC consultations, and clearly expressed during the appearance of union representatives at the Committee hearings.

The Commission is of the view that the more the unions are involved in the employment equity process, the better the results for the workforce. In terms of consultations, where these are done properly, they have the potential to harness the broad experience of the employer’s diverse workforce, substantially improve the information base on which decisions are made, tap into a valuable source of creative solutions, and significantly increase the chances for support of the resulting plan.

Recommendation 17

The Commission recommends that the existing statutory requirement to collaborate with bargaining agents be included in Section 8 of the Act in order that the Commission can assess for compliance.

The Committee should also consider establishing statutory requirements for bargaining agents in those areas where the Act requires employers to consult and collaborate.

The Committee should also recommend including the union as an organization as part of the duty to consult and collaborate, in addition to that of bargaining agents as currently specified in the Act.

7. COMPLAINTS BASED ON PATTERNS OF DISCRIMINATION

From our Discussion Paper

Consequential amendments passed along with the Act significantly curtail the ability of the Commission and Tribunals to respond effectively to complaints under section 10 of the Canadian Human Rights Act which allege patterns of discrimination. In subsequent Annual Reports, the Commission has recommended that consideration be given to rescinding these amendments. In particular, section 50 of the Employment Equity Act states:

Where a Tribunal finds that a complaint against an employer is substantiated, it may not make an order pursuant to subparagraph 53(2)(a)(I) requiring the employer to adopt a special program, plan or arrangement containing:

(a) positive policies and practices designed to ensure that members of designated groups achieve increased representation in the employer’s workforce; or

(b) goals and timetables for achieving that increased representation.

This restriction severely limits the ability of a Tribunal to deal effectively with patterns of discrimination and their past effects. Section 10 complaints usually deal with specific, problematic areas within an organization which may not be considered as part of a compliance review. There would be little difficulty in integrating any Tribunal decision requiring remedial action into the context of a compliance audit.

The Discussion Paper proposed that the legislation be amended to repeal the consequential amendment, section 50, that prohibits a tribunal from issuing a remedy.

Consultation Results

Employer organizations consulted did not raise any concerns with this recommendation. While most advocacy groups and unions strongly supported this recommendation, several forcefully argued that it should be extended by:

• amending the Canadian Human Rights Act to eliminate the prohibition against using information gathered during a compliance audit for the purposes of complaints under the Canadian Human Rights Act;
• amending the Canadian Human Rights Act to permit section 10 complaints to again be permitted based solely on the data provided in employment equity reports.
• amending section 22 of the Employment Equity Act to permit complaints under the Canadian Human Rights Act to trigger employment equity audits.

While the Commission accepts that the first two existing restrictions outlined above limit the rights of Canadians to pursue complaints under the Canadian Human Rights Act based on a full access to information, it believes these limitations are necessary to ensure full and open co-operation of employers during the compliance audit process

Recommendation 18

The Commission continues to believe that the Employment Equity Act should be amended to repeal the consequential amendment (Section 50) that prohibits a tribunal or court from issuing a full remedy when it believes a complaint under Section 10 related to patterns of discrimination under the Canadian Human Rights Act is founded.

Regulations under the Employment Equity Act covering the development of an employment equity plan should include clear instructions on how such a remedy should be considered in the course of an audit.