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From our Discussion Paper

Under the existing Act and Regulations, private sector employers and separate federal public agencies are required to report by 14 occupational groups based on groupings under the National Occupational Classification (NOC) system. This information is publicly available.

Federal departments and agencies under the Treasury Board Secretariat, however, are required to report only by the six public service occupational categories which are broad and gather quite disparate types of jobs into each category.

For example, under the Administrative and Foreign Service Category, the Administrative Services Group (AS) includes junior administrative positions where there may be a high clustering of designated group members, through to senior middle management where gaps in representation might be prevalent.

The public service is in the process of coding all its positions under the NOC. The Commission has been told that this will be completed by March 31, 2002 and believes there is no operational reason why the public service could not report under the same system without major difficulties. This change would enable Parliament and the Canadian public, as well as the Commission, to assess the situation in the public service and compare results with those in the private sector.

The Discussion Paper proposed amending the regulations to require each federal department and agency to report publicly using the same 14 occupational groups used by the private sector.

Consultation Results

All organizations, with one significant exception, supported the Commission’s proposed recommendation. One representative of the public service employer strongly opposed such a change. While it was conceded that the process was in place to enable the Public Service to report along these lines, it was felt that there was no reason to do so. Conversely, another public service participant supported the change, stating that "one can’t argue with virtue."

Separate Employers

There are currently 17 Separate Employers representing 148,116 employees. Separate employers are described in Section 4(c) of the Act. While they form part of the Public Service Staff Relations Act, they do not fall under Treasury Board as the official employer. Currently, however, they submit their annual reports to TBS for tabling with Parliament but that is the extent of TBS involvement.

As stated earlier, these separate employers report using the 14 occupational groups as does the private sector. Over the last year, Human Resources Development Canada has taken on the responsibility of providing liaison for these organizations.

At present, there is no agency responsible for vetting these reports and ensuring they are consistent with the legislation or for preparing an annual report on their progress as a separate sector. This would be an appropriate time to clarify the reporting status of separate employers and to ensure the delegation of an appropriate agency to monitor annual reports for consistency with the Act.

Public Service Departments

Under Section 4(4) of the Act, the Treasury Board is identified as the employer for public service departments and agencies. Through a Memorandum of Understanding between the Treasury Board and the Commission, the Commission has the mandate to audit individual departments.

In its presentation to the Committee, the Treasury Board recommended clarifying responsibilities of central agencies and individual departments under the Act.

Amending the Act in order to designate individual departments as employers for purposes of Employment Equity would, in essence, reflect current practice. It is the Commission’s understanding that the Treasury Board would maintain its monitoring and liaison function with individual departments, where it plays a critical role.

Recommendation 19

The Commission continues to believe that the Regulations to the Act should be amended to require each federal department and agency to report under the National Occupational Code, using the same 14 occupational groups used by the private sector.

The Commission recommends that the Act be amended to place separate employers under the private sector and Crown corporation regulations, assign HRDC the responsibility for receiving, vetting, and tabling the reports with Parliament, and confirm HRDC’s support role with these employers.

The Commission also supports the Treasury Board’s recommendation to the Committee that the Act should clarify the role of central agencies and individual departments.

9. FEDERAL CONTRACTORS PROGRAM

Issues discussed

Although the CHRC has no role to play in the Federal Contractors Program (FCP), issues surrounding this program were raised by several organizations during the course of consultations. About 850 companies, together employing 800,000 people, are registered under the program. The organizations are subject to audits by HRDC once a contract has been awarded.

There is a strong conviction that the lack of a clear legislative basis for the FCP, a requirement for federal contractors to report annually, and a forceful auditing and monitoring framework, are continuing impediments to the achievement of employment equity amongst this group of employers.

In a written submission to the Commission, one organization called for the expansion of the program to reduce the size of companies and the threshold of the contracts; to add recipients of federal grants and contributions as well as recipients of training, job creation and other labour market development programs; and the expansion of the program to include construction contractors and sub-contractors.

Another submission recommended that the Employment Equity Act should be amended to enable enforcement of the FCP obligations through the Canadian Human Rights Commission’s enforcement program. Similar strong views were expressed by several witnesses before the Committee, including various union representatives.

Some Considerations

In the Report of the Royal Commission on Equality in Employment, Judge Rosalie Abella assessed the authority of the federal government to use its contract rights with provincial employers (page 231): "Not only does the federal government have the jurisdiction to require contract compliance, it also has the power to pass any necessary legislation and to provide for remedies and enforcement procedures. A legislative, rather than an administrative base, seems preferable, given the uncertain life span of cabinet directives".

Judge Abella went on to recommend that "The same agency used to enforce employment equity should be used to enforce contract compliance".

One of the most important elements outlined in Judge Abella’s report was that the agency which would be given the enforcement role be independent. The Commission has found that its status as an independent, administrative body has served it well in the administration of its auditing functions with legislated employers.

Recommendation 20

The Commission recommends that the Committee may wish to review the framework applying to the Federal Contractors Program, including the feasibility of conferring the same sharing of responsibilities between HRDC and CHRC as now exists with the federally regulated program.

VI CONCLUSION

An illustrative quote...

The following quote from a participant in the Commission`s consultation process is particularly illustrative of the support which its compliance mandate has garnered over the past four years:

"In my experience, the audit process has been the most powerful tool (I might even say the only effective tool) to promote EE that I have seen so far in my career.

My one urgent appeal is that the Commission show employers as soon as possible that it will be equally zealous in its second stage audits - that is, ensuring that organizations act on their plans and meet their numerical goals. I suspect that many employers still make their plans and put them in the bottom drawer considering themselves "finished" with EE. A few second stage audit dates, well publicized, would begin to dispel this notion."

To summarize...

The Commission’s experience in conducting compliance audits under the Employment Equity Act over the past four years, as well as the consultations it has held with stakeholders, leads to some definitive conclusions:

• The Act was designed to correct under-representation of four designated groups, and while some progress is being achieved, there is still a long way to go before full equality is reached. This alone justifies the continued need for the Act.
• Parliament was correct in adding a compliance and enforcement mandate to the 1995 Act, since the Commission has found that most employers had not fully implemented most of the requirements of the 1986 Act, despite the 15 years that have ensued.
• Cooperation and negotiation provide an effective basis on which to conduct audits and implement employment equity in the workplace, although as a consequence, the audit process is often stretched over three years.
• Although there is no need, at the present time, to completely overhaul the Act, the Commission’s experience and that of the groups and organizations consulted by the Commission clearly point to the need for clarifying and strengthening some requirements and considering some additions to its scope. These are outlined in the recommendations included in this Report.