Legislative Assembly of Ontario

EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI

CONTENTS

Tuesday 16 November 1993

Employment Equity Act, 1993, Bill 79, Ms Ziemba \ Loi de 1993 sur l'équité en matière d'emploi, projet de loi 79, M^me Ziemba

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

*Chair / Président: Marchese, Rosario (Fort York ND)

Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)

*Akande, Zanana L. (St Andrew-St Patrick ND)

Chiarelli, Robert (Ottawa West/-Ouest L)

*Curling, Alvin (Scarborough North/-Nord L)

Duignan, Noel (Halton North/-Nord ND)

*Harnick, Charles (Willowdale PC)

*Malkowski, Gary (York East/-Est ND)

*Mills, Gordon (Durham East/-Est ND)

*Murphy, Tim (St George-St David L)

Tilson, David (Dufferin-Peel PC)

*Winninger, David (London South/-Sud ND)

*In attendance / présents

Substitutions present/ Membres remplaçants présents:

Carter, Jenny (Peterborough ND) for Ms Harrington

Fletcher, Derek (Guelph ND) for Mr Duignan

Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Tilson

Also taking part / Autres participants et participantes:

Beall, Kathleen, legal counsel, Ministry of Labour

Ministry of Citizenship:

Alboim, Naomi, deputy minister

Bromm, Scott, policy analyst

Clerk / Greffière: Bryce, Donna

Staff / Personnel: Joyal, Lisa, legislative counsel

The committee met at 1559 in room 228.

EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI

Consideration of Bill 79, An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women / Projet de loi 79, Loi prévoyant l'équité en matière d'emploi pour les autochtones, les personnes handicapées, les membres des minorités raciales et les femmes.

The Chair (Mr Rosario Marchese): I call the meeting to order. We're on subsection 3(5), Mr Murphy's amendment. Mr Harnick had the floor when we last convened. He's not here. I wonder if there is any further debate on Mr Murphy's amendment.

Mr Alvin Curling (Scarborough North): I'm asking the committee to support this amendment because then it becomes very consistent with what is being put forward, and consistent with the action of the government when it took that advertisement from Job Mart. I think the minister has said in the House not only that he's taking the ad out but that he will actually review the policy. If the government intends to do that, then this amendment will make it emphatically clear that it is a policy that has to be reviewed. The support should follow likewise on this to be consistent with what he said in the House.

Mr Derek Fletcher (Guelph): We will not be supporting Mr Murphy's amendment.

I find it strange that we didn't receive this amendment two hours before committee yesterday, after all that went on yesterday about amendments being here two hours before committee. I would have thought that perhaps the Liberals would have the decency to afford us the same courtesy they were asking for.

This amendment is poorly worded. The stated purpose is to prohibit any policies or practices which would exclude individuals who are not members of a designated group. Not only would this amendment significantly prejudice the implementation of employment equity; it would also remove a right that is currently recognized by both the Human Rights Code and the Canadian Charter of Rights and Freedoms.

Positive measures are a vital part of employment equity because they're designed specifically for the designated groups to help them overcome identified barriers to their workplace participation and eliminate their underrepresentation in the workplace. The amendment Mr Murphy has introduced is a typical Liberal knee-jerk reaction to something that has happened rather than a thoughtful process of trying to ensure that employment equity will work. For that reason, we cannot support this amendment.

Mr Curling: Mr Fletcher, let me remind you that this amendment came about because of the knee-jerk reaction of the minister at the time, who decided he didn't know what he was doing, when we were warning him the whole time, and he pulled that ad. Then his remarks in the House stated emphatically to questions being put to him not only that he would be taking the ad out but that he'd be looking at the policy.

About notice being given, I think that was said in the House a little after 2 o'clock, and we responded immediately. We had an amendment in here a little after 4 to say that if you did not come forward with an amendment to be consistent with the policy he indicated he will be changing, we would put together an amendment. You have not done so. I and my party are willing to withdraw this amendment immediately, provided you can bring in an amendment consistent with the kind of statement the minister made in the House.

The government is doing the knee-jerking, which keeps on flip-flopping every day. That's knee-jerking. Right now it's so knee-jerking you couldn't even start the committee on time at 3:30 because you were flip-flopping inside your caucus room before we could even get started at 4 o'clock. I just want to get the record straight who is flip-flopping around here.

The Chair: Mr Fletcher, and then we will stop the cross-fire and move on to other speakers, okay?

Mr Fletcher: As far as flip-flops are concerned, Mr Curling, I believe it was your leader who singled out the Somali population for being the cause of all fraud and then went about to say, "Oh, maybe that piece of information was not quite correct." Don't talk to me about flip-flop and don't preach to this committee either.

Your amendment, as far as I'm concerned, is a kneejerk reaction and you are just trying to fan the flames that are going on in the province right now. That's one of the reasons we cannot vote for your amendment.

Mrs Elizabeth Witmer (Waterloo North): I think the flames in this province have been fanned by this provincial government, which has made it count to be different and which has really focused on racism. I think they are driving people apart. Certainly the ad last week indicated that's indeed what was happening. If you were a white male you were being denied access to jobs.

My suggestion to you today would be supportive of what Mr Harris said in the House today. I recommend very strongly that we not deal any further with this employment equity legislation that is before this committee until such time as the government has had an opportunity to look at its internal employment equity policy.

How can we endeavour to impose this legislation on the private sector when the government doesn't even know what it's doing with the public sector? We need to ensure the legislation before us does not exclude anyone.

If we want equal opportunity in this province, then we need to ensure that this legislation provides equal opportunity, that we don't have numerical goals that mean quotas and that individuals will continue to be discriminated against. That's the very thing we're trying to avoid, yet this legislation is doing that. It's going to discriminate against another group.

My recommendation is that we stop today. This is poor legislation, poorly drafted. We've had nothing but trouble. The government doesn't know what's going on.

I told you after the committee hearings, "Let's wait a day before we deal with the amendments," and you said, "Oh no, not necessary." It's taken you two months to get your amendments together. You don't know what you're doing. When we ask you questions you can't give any clarification --

The Chair: Ms Witmer, I don't want to interrupt you, necessarily, but we're speaking to the amendment.

Mrs Witmer: I am speaking to the amendment, because this amendment is endeavouring to ensure that all people in this province have access and equal opportunity to jobs. I am suggesting to you that we even go one step further and postpone any further discussion of any of the amendments until such time as the government reconsiders its internal employment equity policy.

The Chair: Is there any further debate? Mr Fletcher?

Mr Fletcher: No. As far as I'm concerned, I'm surprised the Conservative Party is even at the table discussing this, knowing the Reform attitude of the Conservative Party right now.

Employment equity has been a centrepiece for this party and for this government for many years. In fact, it was the then opposition leader, the Premier, who introduced an employment equity private member's bill. That was a commitment from this party. Employment equity was very important to us and a cornerstone of our party: equality throughout the province.

Sometimes governments move quickly to implement and sometimes they move overzealously; perhaps that's what happened. You don't scrap the whole plan because of that. If there is a true commitment to employment equity in this room, then why don't we get on with the legislation, get it over with and then let's start implementing what we've been saying?

I don't see any commitment from the opposition parties as far as employment equity is concerned. All I see are cheap theatrics and political games that have been played throughout this province by your parties. As far as employment equity is concerned, we are determined to get this piece of legislation through, and we'll move it through. If you wish to walk out again, be my guest and walk out because we'll just put it through ourselves.

Mrs Witmer: That's because you weren't listening; that's why we left.

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Mr Tim Murphy (St George-St David): I feel a need to respond to some of what the parliamentary assistant said, who is unfortunately substituting the lowest form of political rhetoric for reasoned argument and principled discussion about this amendment.

He talks about fanning the flames and the Somali issue. Well, I can talk about what your government is doing to sponsored immigrants in this province, whose cheques have been cut as of November 1 to $50. I have a woman in my riding who hasn't been able to eat because of what your government has done to her. So don't lecture me.

Second, I'd like to talk about what this amendment is attempting to do. I apologize to the civil servants for creating some work for them so that the parliamentary assistant had something to say, but I think there is a mistaken assumption in the comments of the parliamentary assistant about what the amendment does. He says it takes away a right in the Human Rights Code and the charter that already exists. On the plain face of the amendment, that is clearly wrong. He obviously doesn't understand the first principle of drafting legislation if he can say that. All it says is, "Nothing in this act" requires; it doesn't say anything about any other provision.

I have the Human Rights Code in front of me here, and section 14, for example, of the Human Rights Code provides for special programs for individuals to provide opportunities for advancement where that's attempting "to relieve hardship or economic disadvantage or to assist disadvantaged persons." That continues to exist.

The parliamentary assistant is engaging in the same error the minister engaged in in her response yesterday. It's too bad she didn't deign to visit us a second day.

Mr Fletcher: She may be here.

Mr Murphy: I'm glad to hear she'll come.

Mr Fletcher: No, I said she may.

Mr Murphy: Okay. It strikes me fairly clearly what this is meant to do. The issue was raised by Mr Mills yesterday. I think it was a good question, and I want to direct my response to him. You've said this was a typical Liberal knee-jerk reaction, and I think that's entirely unfair. You've been here, Mr Fletcher, the whole time. I think we've had some very fruitful debate, and I'm sure if you talk to some of the other members of your caucus in this committee, they will know we've had some fruitful debate. In fact, you've adopted some of the recommendations I've made in your amendments, so don't lecture us about how to conduct, and our cooperation and our commitment to employment equity. Our commitment is to get a good bill through.

This is meant to prevent exactly the kind of error that your government fell into related to the ad for the public service, restricting it. It strikes me, from the perspective that you want to proceed with employment equity and gain acceptance for a principle which I think we all accept, that this is a lesson in how not to do it, in how to create an environment where it gets more difficult to do as opposed to easier to do.

This is meant to say, "You can't do what this ad did." It is not to prevent any of what the minister talked about, job sharing or mentoring. The wording clearly on its face does not prevent any of those things being directed to designated groups. It strikes me that it's difficult to read it in any other way but that it does not do that. All it is saying is that you cannot exclude on a prima facie basis a non-designated group from consideration. If you subsequently come to the conclusion that a special program is appropriate, you can do that, but you cannot exclude up front, without any thought, a person from having access. It is a fundamental principle. We have not fought in this province for a long time to eliminate barriers to the participation of all people just to create new ones by virtue of some of what the government is trying to do, either in this ad or in this bill.

In summation, I think your criticisms of this are misguided and misinformed. I'm not claiming that the wording of this is magical. It may very well be that legislative counsel or ministry staff, who have long expertise in dealing with this, can suggest amendments to make it better. I am more than happy to hear those, more than happy to change it at their recommendation to achieve the policy result it is intended to achieve, which is to eliminate these errors from being committed.

I hope I can appeal above the rhetoric that the parliamentary assistant engaged in to the members of the committee to consider discussing this in a reasoned way and voting for it or an altered version that serves the same purpose.

Mr Fletcher: As far as your amendment is concerned, you say it doesn't take away any supportive measures. Yes, it does. Read the amendment: "require an employer to exclude from consideration for recruitment, hiring, treatment, retention." The Employment Equity Act would be prejudiced with this amendment because special training programs for all or any of the designated groups, such as job mentoring, shadowing, whatever else, would not be available with this amendment. As far as the Employment Equity Act itself is concerned, it does not discriminate, so there's no need for this amendment.

The Chair: I think we're ready for the vote on this amendment. All in favour of the amendment?

Mr Murphy: Recorded vote.

Ayes

Curling, Murphy, Witmer.

The Chair: Opposed?

Nays

Akande, Carter, Fletcher, Malkowski, Mills.

The Chair: The amendment is defeated. I think we're ready to vote on section 3 now, as amended. All in favour of section 3, as amended? Opposed? Section 3 carries.

Moving on to section 10, it's a government motion.

Mr Fletcher: Mr Chair, I would like to withdraw the section 10 that is presently before the committee and then replace it with a new section 10.

Interjection: Which section 10?

Interjections.

Mr Murphy: So this is the third version?

The Chair: This is the second version. You had one before in your file and this is the one that was handed to you yesterday, "29" at the top of the page.

Mr Murphy: So this is 29, entitled "Replacement Government Motion."

The Chair: Yes. Go ahead, Mr Fletcher.

Mr Fletcher: I move that section 10 of the bill be struck out and the following substituted:

"Review of employment policies

"10(1) Every employer shall review the employer's employment policies and practices in accordance with the regulations.

"Purpose of review

"(2) The purpose of the review is to identify and enable the employer to remove barriers to the recruitment, hiring, retention, treatment and promotion of members of the designated groups, including terms and conditions of employment that adversely affect members of the designated groups.

"Seniority rights

"(3) For the purpose of this act, employee seniority rights with respect to a layoff or recall to employment after a layoff that are acquired through a collective agreement or an established practice of an employer are deemed not to be barriers to the recruitment, hiring, retention, treatment or promotion of members of the designated groups.

"Same

"(4) For the purpose of this act, employee seniority rights, other than those referred to in subsection (3), that are acquired through a collective agreement or an established practice of an employer are deemed not to be barriers to the recruitment, hiring, retention, treatment or promotion of members of the designated groups unless a board of inquiry under the Human Rights Code finds that the seniority rights discriminate against members of a designated group in a manner that is contrary to the Human Rights Code."

It's self-explanatory, Mr Chair.

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The Chair: Thank you. Debate on this motion?

Mr Curling: I'll just ask the parliamentary assistant a question. Have we got all the final regulations now?

Mr Fletcher: Do you have the draft regs?

Mr Curling: I'm asking you if we have.

Mr Fletcher: What is your question: Do you have the final regs?

Mr Curling: Yes. Do I have the final regs? I don't know what is final in here.

Mr Fletcher: No.

Mr Curling: We don't. Okay. So in subsection 10(1), "Every employer shall review the employer's employment policies and practices in accordance with the regulations," I really can't comment on that because this is all draft stuff. I don't have the regulations because you are consulting still and it's not final. So that part I presume I should leave out. You might withdraw it. I just wondered if you could define for me, and I wish the minister was here, what you mean by "established practice."

Ms Kathleen Beall: If I can assist, the term "established practice" would refer to a situation which is not a workplace where there's a collective agreement. You would have a seniority right that is not part of a collective agreement, because there is no collective agreement, but the employer, through the established practice of the employer over several years, has a practice with respect to employment seniority rights which has been long established in the workplace, which the workers have come to know to be the normal expectations as part of what are the working conditions in their workplace.

Mr Curling: You're saying to me then that if there's a custom that is discriminatory, where there are no collective bargaining agreements but it is an established practice, it's okay. Does that mean no?

Mr Fletcher: That means no.

Mr Curling: Because I don't know what established practice is. I presume it's custom and the way that a company behaves, and because the unions are not there, it would be acceptable. That's what you're saying, where there are no collective bargaining agreements and as long as it's a custom that they do things in a certain way.

Mr Fletcher: I'm sorry, Mr Curling. I wasn't listening to you again.

Mr Curling: What were you doing then? Do you want me to repeat what I said?

Mr Fletcher: Sure. Can you remember what you said?

The Chair: Mr Fletcher, please. It's not helpful.

Mr Curling: You weren't listening. I was speaking --

The Chair: Mr Curling, please. It won't be helpful if we do that.

Mr Curling: He asked me if I remember. I've been listening to him.

The Chair: I know, and I told him it wasn't helpful to make that remark.

Mr Curling: Oh, you did tell him that?

The Chair: Yes, I did.

Mr Fletcher: Sorry, Mr Curling.

Mr Curling: Thank you very much, Mr Chair.

I'm going to read it, because I want to understand it properly. Subsection (4) says, "For the purpose of this act, employee seniority rights, other than those referred to in subsection (3), that are required through a collective agreement or an established practice of an employer are deemed not to be barriers to the recruitment, hiring, retention, treatment or promotion of members of the designated groups." Do you find that seniority is in conflict with employment equity practices and principles?

Mr Fletcher: No.

Mr Curling: You're saying to me then, if someone is in a company and the collective agreement states that as long as the person is there for a length of time, they have precedence over any promotion, any hiring or any training, over anyone, even though they may be better qualified, have the merit to their cause; in other words, they are qualified for the job, but because an individual is there longer than the other person, the other person will be considered above that individual because they are senior to that person in number of years.

Mr Fletcher: That's the way seniority works.

Mr Curling: You don't see that as a conflict, as a barrier for promotion to those people who are more qualified?

Mr Fletcher: No.

Mr Curling: So you're saying to me then --

Mr Fletcher: I can see seniority as being a barrier in certain circumstances, yes.

Mr Curling: Would you repeat that for me?

Mr Fletcher: In certain circumstances, seniority could be a barrier.

Mr Curling: So we agree then, that seniority could be a barrier.

Mr Fletcher: In certain circumstances.

Mr Curling: Why then are you trying to make legislation where the entire object of this legislation is to remove barriers and then you're saying to me you would entrench something in this legislation to say there are barriers: "Yes, there could be barriers and I'm going to put it in there. I'm going to entrench it in this legislation and admit to it that, yes, there will be barriers." Why would you put it in then?

Mr Fletcher: Mr Curling, for one thing, yes, seniority can be a barrier and that's why the legislation seeks to have bargaining agents and the employers work together to try and reduce the barriers. At that time, while they're preparing their plan, perhaps a seniority issue will be resolved between the two tiers rather than stepping in and making sure.

But you forgot to read on, "unless a board of inquiry" of the Human Rights Commission determines whether or not it is a barrier. There is still the provision of going through Human Rights to make sure that a person is not being discriminated against because of seniority. That provision is there and the protection is there for people.

Mr Curling: Since you're hurrying to that kind of review then, or to the appeal, who should take that to the Human Rights Commission to have that checked out?

Mr Fletcher: Any employee who feels they have been discriminated by the --

Mr Curling: Oh, so it is up to the employee now to say to the employer who has all this money and resources, "Prove to me that seniority is a barrier." And he says, "I have no money at this time to be laid off and to go through this exercise."

Mr Fletcher: Yes.

Mr Curling: You said it's the employee.

Mr Fletcher: Employees don't have to pay for the Human Rights Commission.

Mr Curling: An employee doesn't have to pay? I have been laid off. I have been fired.

Mr Fletcher: Not yet, but you will be.

Mr Curling: I have not been promoted. I have been deprived of this, losing my pay, and you said they don't have to pay for it? Seniority has already thrown this individual out of a job, and you said the employer who sits there, who has all this, says, "Prove me wrong." He said, "You are wrong." He said, "Prove me wrong."

Mr Fletcher: Mr Curling, I think you have to realize that seniority is treated differently because it's a fundamental right in the workplace today, and we have to look at that in a way that is going to treat seniority fairly and treat the people who have been under seniority rights for years and years fairly.

Mr Curling: The reason for legislation like this, employment equity -- because what was seen as fundamentally right was fundamentally wrong and this is what employment equity legislation is about, to remove the systemic barriers, to identify them and to remove them.

I have identified a systemic barrier and you have also identified a systemic barrier, which you have confirmed to me. He had said, Mr Chair, that a systemic barrier could be seniority. We have identified that, but he said these are rights that we fought for. Did you cut a deal with the unions and say, "Listen, we will protect all this; while we are there, we will make sure that the collective agreement, which shall be deemed a fundamental right, will not be removed"? Did you cut a deal with the unions not to interfere with seniority rights?

Mr Fletcher: No, I did not cut a deal --

Mr Curling: Did the minister --

Mr Fletcher: Mr Curling, you've said a few things and I will respond. What you have said is that yes, there can be times when seniority is seen as a barrier. If it's identified as a barrier, then it will be dealt with if it's identified by the groups who are in the workplace.

Mr Curling: Not a group, an individual.

Mr Fletcher: If it's identified by an individual, that individual has the right to go to the Human Rights Commission. In fact, I think if you remember, and thank you for the note --

Mr Curling: Keep on feeding him the notes until he gets it right.

Mr Fletcher: We did hear during the committee hearings -- and I'm glad I've brought a little help -- is that in many instances the seniority system was not really a barrier that was faced by the groups, it was the failure to adhere to --

Mr Curling: I can't hear you.

Mr Fletcher: The OPS sat here, Mr Curling, and you defended the OPS. In fact I think I remember asking the question of the OPS, was employment equity in the government services any good, and they said no. "Would you like seniority rights?" "If we had seniority rights, we would have employment equity now." That's what the OPS told you. Did you not listen?

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Mr Curling: While he's questioning my hearing, let me tell him what I heard too, what the OPS also said. I'm speaking to you, Mr Chairman. You can relate that to him.

What they said, even though seniority rights are there to help us, women and minorities were still seen at the bottom of the ladder. I'm not debating if it worked effectively or not. I don't know what you're saying to tell me that they told me they want it. I can't understand how they could want seniority rights, then they were still at the bottom of the ladder and can't get promoted, because what is happening, Mr Chairman --

Mr Fletcher: What they told you, Mr Curling, was that seniority rights were not working there.

Mr Curling: May I speak? What is happening is that while we are trying to legislate attitude, even when we have the seniority rights which we feel will protect those individuals, the same individuals from OPSEU came in here and told us -- and you were there and I know you were listening very attentively that day. I saw your eyes open really aghast to realize that here is a union that's supposed to protect the minorities and women, and I said to myself, the Chairman has even seen the point himself, because the fact is that they said they were still at the bottom of the ladder and not being promoted --

The Chair: Thank you.

Mr Curling: -- and seniority --

The Chair: Oh, you're not finished.

Mr Curling: I'm not finished -- and seniority, that if it had worked properly, they may have gotten up in the system.

I am making two points. I'm saying to you that when seniority stands by itself, it doesn't help. May I say this as a suggestion, as he said he doesn't get good information or informative advice. There are seniorities that have worked well. Let me tell you one, just one maybe. I have lots more.

Look at the police, for instance. The fact is you cannot be a constable, you cannot be a corporal, you cannot be a sergeant, you cannot be an inspector, unless you're there for a certain time and take those exams. As you go up through those ranks, if you see an inspector there, you know full well that he has been around the police force for some time, but what you also know is that that individual has gone through training and has been promoted accordingly. There is discrimination of course in how one recruits and there are problems within the police force, in which they're doing their own employment equity. I so wish, Mr Chairman, that the minister was here.

Mr Gordon Mills (Durham East): On a point of order, Mr Chairman: I'd like to make it perfectly clear that my colleague across the way there, Mr Curling, indicated there's only one way to go through the police. There's an accelerated promotion and people do jump ranks and go ahead.

The Chair: That's not a point of order, though, Mr Mills.

Mr Curling: I'm glad I woke up your colleague because if he had heard what I said, there are also problems in the system I said. That's a part too. Although they have the process, there are also problems there. He interfered with my thoughts here.

The fact is I want to come back to the point that seniority is an impediment. It works against the principles of employment equity. As I said, I hoped that the minister was here and we made many efforts. Maybe it's two or three times she attended here. Yesterday we were so happy to have her here. But they didn't have their act together. Again, the wrangling went on about how they were going to get their act together and sneaking in amendments.

The fact is, if she was here, I would have loved to have asked her too if she found that seniority conflicts with the principle of employment equity. As her parliamentary assistant has indicated, yes, he too sees it as a barrier for employment equity.

Mr Fletcher: In certain circumstances.

Mr Curling: Seeing that he has seen it, and if the minister herself had seen it as a barrier to employment equity, why then have they proceeded with this? I would like to know, when you met with the labour unions in regard to this, what were the points they made that they thought there would be some concern, and what were your remarks and the minister's remarks when you met to negotiate this section with the unions?

Mr Fletcher: Mr Curling, when we held the consultation process, we heard from business organizations --

Mr Curling: No, I'm talking about the unions only.

Mr Fletcher: -- that have established practices, we heard from unions who have seniority rights and we heard from people who are in non-organized workplaces who also prescribed to the seniority rights issue. The seniority rights issue was one that was understandably emotional for some people, and the labour unions were one. But just because someone has an emotional issue on something doesn't mean that you cave in. You have to listen to all sides, Mr Curling. That's why --

Mr Curling: Who caved in, you or the unions?

Mr Fletcher: That's why we, as a committee, sat down and listened to them.

The Chair: Let him finish.

Mr Fletcher: The other thing is, Mr Curling, as far as seniority rights are concerned, before you can get seniority rights, you have to get in the door. That's what employment equity is about.

Mr Curling: Play it again, sonny.

Mr Fletcher: You have to get your foot in the door so you can at least get the job first. That's what employment equity is about: giving people the chance to at least get in before they can get a job.

Mr Curling: You raised a very important point. The parliamentary assistant raised a very important point. He said you've got to get into the door. After they went out of the door to come back, do you know who they called first? The ones with the seniority rights, on recall. Did you read that? I have to ask the parliamentary assistant if he read that part. It said when they would exercise the seniority rights, "also recall those who were there," and if they want to come back they'll call them back first. So they are protected.

How are you going to open up the system if it is all cluttered, as they would want you to believe, with all the wrong people and they have to get other people inside? Then, even when that happens, upon recall, if there should be a layoff, the first person you call back would be -- I would like to ask the parliamentary assistant, in this legislation who would be called back first?

Mr Fletcher: It all depends on the established practice or the seniority rights that are used within the collective agreement. Some collective agreements I've negotiated state that on recall they have to recall people to start up boilers first and then they work through the line of progression as far as getting production started, not by seniority. So it goes by position first. It all depends on how it's negotiated within the collective agreement.

Mr Murphy: Seniority within the position too, Derek.

Mr Fletcher: There are different types of seniority also. There's plant seniority, departmental seniority, classification seniority, all of which have a bearing on when a person is recalled. I've negotiated many collective agreements on that basis.

The Chair: I would request that we move on because there are three other speakers on the list.

Mr Curling: I just want to summarize and make a short recommendation here. If the seniority, which I want to respect under the collective agreement -- I think what will be done --

Interjection.

Mr Curling: May I just finish, because you'll say something and I have to make a comment and then the Chairman wouldn't allow me to do that.

What could be done here is that if the seniority agreement, the collective agreement conflicts with employment equity, then you say we're in a manner that's contrary to the Human Rights Code and then they would rule it out of order in some respect.

I would recommend then that every company or every collective agreement that has seniority rights submit their agreement to the Human Rights Code for a stamp of approval to say this seniority rights collective agreement does not conflict. Let the Human Rights mission state that. "This seniority agreement, through collective agreement, does not conflict with the employment equity legislation."

Mr Fletcher: No. Mr Curling, when they negotiate their plan between the two groups, whether it be organized or unorganized, but seniority rights are mostly organized, if they recognize seniority as a barrier, they will do something about it and that's why it's there. As far going to the Human Rights Commission, that's another avenue for people to take.

Mr Murphy: We've had some debate on a previous version of this caving in before; I guess this is the third or fourth version of this provision. A couple of concerns, and again I'd want to ask the parliamentary assistant this: There is wording in subsection (4) -- and I know that some of his own caucus have raised the same question without much of a really good answer, but I want to try it again.

The seniority rights that apply to other than layoff and recall are subject to a Human Rights Code application determination. That wording is not in subsection (3) -- sorry, the other way round. In subsection (4), for anything but layoff and recall, you have to apply the Human Rights Code. In subsection (3), for layoff and recall, you do not have to make that application. Why?

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Mr Fletcher: Can you run that by me again, please? I'm trying to understand.

Mr Murphy: Okay. You've got subsection (4) --

Mr Fletcher: Yes, I have subsection (4).

Mr Murphy: -- which is those employee seniority rights other than in subsection (3). You have to make an application if you think they are somehow barriers to the Human Rights Code.

Mr Fletcher: Yes.

Mr Murphy: But in subsection (3), those are not barriers and you have no opportunity outlined there to go to the Human Rights Code to have them overturned. I'm wondering why there is that distinction.

Mr Fletcher: No. Subsection (3) states what the seniority rights are. Subsection (4) relates to subsection (3) by saying that you can go, "unless a board of inquiry under the Human Rights Code finds that the seniority rights" under that subsection --

Mr Murphy: That's not right, though. Subsection (3) deals with employee seniority rights related to layoff and recall.

Mr Fletcher: Yes, and retention and hiring.

Mr Murphy: No, that's not correct. It's only layoff and recall seniority rights that are dealt with in subsection (3).

The Chair: Mr Fletcher, Ms Beall may want to answer that, if you want.

Mr Murphy: That's fine.

Mr Fletcher: Go ahead.

The Chair: Do you want to go further, Mr Murphy?

Mr Murphy: No. If Ms Beall, a fine constituent of mine, understands the question --

Ms Beall: Perhaps I can assist on this one. Subsection (4) says that seniority rights other than seniority rights with respect to layoff and recall after layoff are deemed not to be barriers unless they have been found to be barriers by a board of inquiry under the Human Rights Code.

That would mean that if there had been a finding by a board of inquiry under the Human Rights Code, they would automatically be deemed to be barriers for the purposes of employment equity.

Mr Murphy: Yes.

Ms Beall: Subsection (3) doesn't make specific reference to the Human Rights Code. However, there's nothing in subsection (3) that would prohibit someone from taking that type of seniority right to the Human Rights Commission and for the Human Rights Commission to deal with those types of seniority rights. There's nothing there that prohibits that kind of application to the Human Rights Commission.

Mr Murphy: It strikes me that what you're telling me then is either the wording at the end of subsection (4) is superfluous -- because you're saying the same right exists with respect to subsection (3) despite the absence of language. So either it's superfluous wording on subsection (4) or something further is intended.

Let me tell you, my concern is that if you are not putting that wording in subsection (3) but are putting it in subsection (4), courts looking at this, or commissions or whoever, are going to assume, in some cases I think quite wrongly, but they're none the less going to assume that there is a purpose to the absence in one case and the presence in the other of that language.

It strikes me, therefore, that it could be an interpretation of this, despite what you stated as your view, that none the less you can make that application and a court could say, "No, the Legislature intended in this case to not have that provision apply to layoff and recall, although it applies to other seniority rights." It just strikes me as nonsensical to say that, "Well, we really mean to have the same right apply to both provisions, but we're only going to say it in one of the provisions."

I see the deputy here. Maybe she can explain it better to me.

Ms Naomi Alboim: It's probably more a matter for legal counsel.

Mr Murphy: All right. Let me ask you a specific question, because I don't want to put civil servants on the spot to talk about policy. Is there a policy reason that was identified to you in the drafting of these provisions for having it in one case and not in the other?

Mr Scott Bromm: I'm sorry. I can't provide a policy reason why the two sections were dealt with differently.

Mr Murphy: Okay, fine. I appreciate your frankness in a difficult situation.

We've established, I think, fairly enough that some kind of odd political compromise was attempted to be reached here that, on the face of it, doesn't make much sense. I'd like to talk briefly about what's going to happen in the circumstance -- and I think Mr Curling started to go at this -- about what section 4 is going to mean.

I think we had some discussion about this in the public hearings, that we cannot point to an example where a neutral seniority practice has been found by a tribunal or a court to be in contravention of the Human Rights Code. In fact, I think it's likely to be the consensus of most lawyers, and I see a member of ARCH here, that neutral seniority rights are likely not to be in contravention of the Human Rights Code and the charter.

Oh. Well, David Baker of ARCH disagrees with me but I think the Supreme Court -- we'll see what it says. I think we're going to find that seniority rights are likely to be upheld under section 1. But I think we're going to have the result that this is going to be a meaningless provision because we're not going to have a circumstance where at the end of the day the courts are going to find that a seniority practice that is neutral -- now, I can see a seniority practice that has arisen where in some circumstances, in some employment contexts, the union and management have agreed that the seniority practice will be that the eldest son of male employees always gets hired. But that, on its face, I don't think is a neutral practice. It's that if you're in and there for a period of time and the hiring process is fair, that will be upheld.

So you're going to have a circumstance where no employee seniority right that isn't in and of itself unfair is going to be deemed to be in contravention of the Human Rights Code. So you're going to have seniority rights winning. What that means is that you're going to have the employer and the union agreeing before a human rights tribunal that the seniority practice should be upheld and you're imposing upon the employee the requirement to go before the human rights tribunal, facing off against his or her own union, his or her own employer.

Yes, there's often a commission-supplied lawyer, but as we all know, that in and of itself is a very difficult process for employees and they often try and find lawyers. So there's an expense. How long do tribunals take? Years and years and years before this could ever have an impact, if it even can have an impact at the end of the day.

This is, I think, a stunning caving in. Because what it does, what it's saying is, "We're not even going to put seniority rights on the table to be discussed up front." It may very well be that discussion will result in a decision that the practice you have with respect to seniority rights is what you keep. But you're not even allowing it to be discussed. You're not even saying: "Union and management, sit down and think about this. Think about a way, maybe, to accommodate around your seniority practice those who may need access in," as you yourself said, parliamentary assistant.

You're not even saying it should be discussed. You're saying: "No, that's off to the side. Seniority wins." That seems ludicrous on its face. You should give at least, as Mr Curling, I think, in excellent legal style has said --

Mr Fletcher: I think essentially what you're missing is that when they sit down to do the plan they discuss.

Mr Murphy: Mr Fletcher, I have the floor.

The Chair: You'll have an opportunity, Mr Fletcher.

Mr Murphy: You've said -- I'll give you credit for your candour -- that seniority can be a barrier in certain circumstances. I think that's clear. That strikes me as an agreement with the concept that if you want barriers discussed, seniority should be one of those discussed, because it is a barrier in certain circumstances, as you've admitted.

Why not at least permit the discussion? You may have a conclusion after a review that, yes, it's a barrier but it's an appropriately applied one in the circumstances. Or, with some minor variances or certain programs, you can get around the seniority problem.

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I think this provision is a complete caving-in to a viewpoint that is wrongheaded. I understand the concern in the union community about the sacred nature of seniority rights, but all we're really saying is give it an opportunity to be discussed, because in all of those unionized workforces this is going to be a real barrier.

Where employees have been in a workforce for 18 and 20 years, we know from the hiring practices across this province that most of those employees, not all but a significant number, are likely to be white and male and are going to be benefited by the seniority practice you've deemed not even to be negotiable and on the table. So I have a real problem with it because of that result.

Mr Fletcher: As far as people sitting down and discussing is concerned, that's when they sit down to discuss the plan. If management and the bargaining agent agree that their seniority practices are a barrier to employment equity, then they will identify them as a barrier, and that means they will work together to remove the barrier -- a better way than a confrontational way of attempting to remove barriers.

You may remember from some of the presentations that the CAW already has an employment equity plan that it has negotiated and has recognized some forms of seniority as a barrier. Buzz Hargrove sat here and told you that. UFCW is another one that has started to negotiate employment equity plans and it has also said that, yes, some forms of seniority can be a barrier. They are working with the employers to try and fix that.

I think that's the best route to take rather than a confrontational approach.

Mr Murphy: What do you think the Human Rights Code is but confrontational? There's nothing more adversarial than that.

Ms Zanana L. Akande (St Andrew-St Patrick): I want to speak in support of the amendment. I want to point out to my Liberal colleagues that the process of legislation followed by regulations only after the legislation is finished should be one that they're quite familiar with since during their term of office, as I read it, they did rule by regulation. The process is quite common, not at all unusual.

It's interesting that you have focused on seniority as being a barrier and that you want to take exceptional measures that one might call positive measures in order to circumvent it, especially since you have recorded your opinion that positive measures in themselves are unfair and wrong and should probably be eliminated.

You referred to the term "established practice." It's a term that's very commonly used in all labour legislation. That would comply with what you were asking for yesterday when you said we should attempt to use in this legislation terms which are consistent with other legislation, and "established practice" is one of those terms. You might ask some of your staff or the civil servants to do research to pull that kind of information out.

I want to tell you about job competitions. You know and I know that not just seniority is considered. As a matter of fact, there are many criteria that should be considered in job competitions. We are not suggesting, nor would we have you believe, that the only consideration would be seniority if in fact there were people who were much better qualified and much more appropriate to do the job that was being offered. Certainly those are criteria that would also be considered: their educational background; several things. It wouldn't just be the idea of seniority, nor is it ever only seniority.

You've tried to imply that seniority is the concern only of unions, and that's not true. Management would also be concerned that perhaps through the process of seniority people would have the opportunity to acquire the skills that would make them much more appropriate for the jobs that they would hold. Yet we have examples -- some shared here this afternoon -- of where seniority has been ignored and people have been catapulted, so to speak, into positions that are much higher than the one from which they came, through what I would call rather preferential treatment. That is why this legislation has come to this table at this time, because of preferential treatment.

Another thing you mention is that there are people who are newly entering the workplace. Of course they would be at the bottom of the ladder and therefore employment equity would take a very long time to effect. I suggest to you again that if you're thinking of seniority as the only criterion for promotion or in a job competition, that would be the case; but there are many, many others.

Then I have to comment just briefly on the fact that you have made so much point of this being perhaps the third version. It is perhaps the third version because of that new process of being consultative, of trying to reflect upon what people bring as their opinions and their views, of recognizing the importance of the little person in the province who in fact has some very real and very big ideas. It is not the traditional process in government but then, of course, if you always do what you have always done, you always get what you always got.

What we have had in government and in this province, certainly in OPS, is not employment equity. It is a system of preferential hiring which has maintained the status quo and which has kept us very effectively and efficiently at the bottom of the ladder and outside looking in.

Third version: I wouldn't mind if it took five versions to get something that was implementable and effective so that we wouldn't have to sit here and discuss this; we could in fact do it.

Mrs Witmer: I hope, based on the comments that have just been made by Ms Akande, that the government will continue to give us the time necessary to deal with all of the amendments, if it truly is interested in getting the best bill possible for people in this province, and that it will not cut short the time of this committee or introduce time allocation into the House when this goes back. I hope that same commitment to consultation will prevail until this bill comes to a final vote in the House. She gives me some assurance that this indeed will be the case.

I'd like to take a look at the seniority rights. I think what we see here is an indication, again, that the amendments that have been presented to us do not accurately reflect the input we received during the weeks of public hearings in August and September. I continue to see the bulk of the amendments reflecting special interest groups. In this case, when we see the seniority rights prevailing, we see that it is a win for labour. Seniority rights have been put back into the legislation. It's obvious that the government listened to labour, whereas it did not listen to the employer community.

When we put forward an amendment asking for an affirmation of the merit principle indicating that the employer would continue to have the right to hire or promote the most qualified person for a position, that was voted down. I would have to indicate to you I'm extremely disappointed that the amendments here do not reflect accurately all of the input that was presented to us.

Also, if you take a look at seniority rights, there's a real contradiction here. The government speaks to barriers to employment equity. Mr Fletcher himself has indicated that seniority rights can constitute a systemic barrier, and yet the government is not prepared to move on them; it's going to allow the unions to settle this and work it out. Well, I can tell you what this is going to do. It is going to entrench the employment of older white males and it is going to disproportionately affect the recent immigrants or women who have entered the labour force at a later time. So it's a contradiction. For these people, it will be a barrier to employment equity, it will be a barrier to equal opportunity.

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Also, if you're going to preserve these seniority rights, you're going to make it very difficult for an employer to change the makeup of the workforce in this difficult economy, when most employers are either downsizing or just hanging on to the workforce they have. So I can tell you, the preservation of seniority rights is going to have a very negative impact on the employment equity that you have indicated is so absolutely necessary.

I guess I would ask you, Mr Fletcher, how are you going to change the workforce if employers are not hiring new employees? They are recalling but not adding.

Mr Fletcher: I think there are many ways employers can accomplish that. Just because someone is not hiring doesn't mean they cannot promote someone within their company to another position of more responsibility. It doesn't stop anyone from being promoted. Seniority rights are there to help in the promotion process in some areas.

When union and management sit down during the creation of their employment equity plan, if they identify that in their particular case certain aspects of the seniority issue are barriers, they can address those through their collective agreement or through their employment equity committee. If an individual feels, even after the case, that seniority rights are a barrier to that person being promoted or hired or anything else, he can take it to the Human Rights Commission for a decision from the Human Rights Commission.

In a time of downsizing, I believe it is the right time to be looking at the internal operations and the promotion, transfer and training of employees within the workplace, now, as people are starting to downsize and people are being moved around and there may be surplus workers for a time.

I think the OPS advertisement -- let's face it, it drew a lot of flak -- was a restricted advertisement to OPS people within the system. It was not an outside advertisement; it was within the system. Through their plan, which they had negotiated, which they had talked about, they attempted to introduce some special measures to make sure that people from the designated groups were put into positions. Their survey showed that in that position, I believe it was the information technology service branch, there were no people from the designated groups within that area. So they did a survey, they looked at it, and this is what they came up with.

I guess the uproar was that it did exclude certain people from getting that job, but there are measures that can be taken, through positive measures, to ensure that people are promoted and that they are retrained and retained and recruited for promotion through employment equity.

Mrs Witmer: Mr Fletcher, what this legislation is endeavouring to do is to change the makeup of the workforce. If within the workforce you do not have the four designated groups represented, and this legislation is mandating that employers must put together a timetable and have numerical goals, how are they going to achieve those goals if there's no hiring taking place?

Mr Fletcher: You're presuming that every workplace is made up of one group of people, which it isn't, and that the promotion of people within the workplace -- there are workplaces that have many different backgrounds of people -- persons with disabilities, women -- who can be promoted. I don't presume already that a workplace is a one-ethnic-group workplace. Within a workplace, people can be promoted within during times of downsizing, and people can not only be promoted, but some of the positive measures such as job shadowing and training can go on. These things can all occur during the time of downsizing, during the time of slow economic growth. As the economy begins to turn around, they will have a workforce that is not only reflective of the general society, but also one that's probably a lot better trained for the future.

Mrs Witmer: Do you know, Mr Fletcher, you just don't seem to understand. That's why the government is in difficulty, because it doesn't have the representation from the four designated groups. We know that the disabled are not well represented. I would ask you this: If you are going to preserve seniority rights, as you've indicated that you are going to, and if you have caved into the labour community, particularly the unions, is it not also fair -- I guess fairness depends on what interpretation you put on it; you talk about fairness -- that we should excuse employers from non-compliance, when this is due to the seniority clauses, if they cannot achieve the goals?

Mr Fletcher: When they set their goals, there is a clause about unreasonable effort. That's an out for them. I hate to say it that way, but it is, if it's unreasonable to be able to do something. Also, if there is no hiring going on, they won't be setting any goals until their hiring picks up. They can set goals, but once they start to hire, then they start to work through the employment equity position. Meanwhile, they still work within the internal structure to try and make sure that people -- women, people with disabilities -- are being moved into positions of responsibility. Once the hiring process begins, then they will be hiring according to their employment equity plan they have drawn up.

Mrs Witmer: It appears to me that we have one set of rules and regulations for the unionized workplaces and we have one set of rules and regulations for the others. If we are going to ensure that everybody has equal opportunity, I don't see how you can preserve seniority rights, because you have indicated yourself that this is a systemic barrier, and this is an absolute contradiction to what you people have indicated that you intend to do, and that is provide equity.

I met with the employer community all day yesterday in towns in southwestern Ontario. Each one said to me that it is downsizing. In the case of Uniroyal in Kitchener, it is going to be expanding, but what it's doing is recalling its employees. Now, that workforce is primarily white male. You know yourself that many of the unions are almost exclusively white-male-dominated. I don't know how you are going to achieve the equity if you continue to preserve these seniority rights, because I can tell you it will impact on recent immigrants and also the women who are looking for some entry into these jobs. As far as I'm concerned, this bill is not about fairness and it's not about equity. There is not equal opportunity.

The Chair: I think we're ready for the vote on this motion.

Mr Murphy: Recorded vote.

The Chair: All in favour of this motion?

Ayes

Akande, Carter, Fletcher, Malkowski, Mills, Winninger.

The Chair: Opposed?

Nays

Curling, Murphy, Witmer.

The Chair: The motion carries.

Section 10 again, a Liberal motion. Mr Murphy? Mr Curling?

Interjections.

The Chair: Do you want a recess? This committee will recess for five minutes.

The committee recessed from 1711 to 1720.

The Chair: I call the meeting to order. We're on the Liberal motion.

Mr Murphy: I move that section 10 of the bill be struck out and the following substituted:

"10. (1) Every employer shall review the employer's employment policies and practices. The purpose of the review is to identify and enable the employer to remove barriers to the hiring, retention and promotion of members of the designated groups, including terms and conditions of employment that adversely affect members of the designated groups or members of other groups that are subject to systemic discrimination contrary to section 5(1) of the Ontario Human Rights Code.

"(2) Every employer other than a small employer shall more particularly identify the employer's employment policies and practices with respect to the following matters:

"1. Hiring of employees, including the recruitment and selection of employees.

"2. Promotion of employees and movement of employees between occupational groups.

"3. Training of employees and the evaluation of their performance.

"4. Termination of employees, including the dismissal, resignation and retirement of employees.

"5. Determination of salaries and benefits.

"6. Accommodation of the special needs of members of the designated groups.

"(3) An employer may identify the employer's employment policies and practices for the employer's workforce as a whole or separately for the individual components of the employer's workforce, so long as the identification is done for the whole workforce.

"(4.1) Every employer shall determine which of the policies or practices that the employer has identified contains a barrier to the hiring, retention or promotion of members of each designated group.

"(4.2) A policy or practice contains such a barrier if it has a direct or indirect adverse impact on members of the designated group."

This amendment has two purposes. One of them is primarily to move some of what's in the regulation into the act. We heard a great deal of discussion in committee about how it's important to have the regulations in the act, and it's a principle we support.

The second and, for me, very important provision, is the last few lines in subsection 10(1). We had a debate on my previous amendment in a similar fashion, I believe, in section 4 or 5; I can't remember.

Interjections.

Mr Murphy: I wonder if we could have some order.

The Chair: You got it, Mr Murphy.

Mr Murphy: The purpose of this provision is to ensure that while employers are reviewing their policies and practices, barriers and measures, they look not just at designated groups but at other groups that may be subject to systemic discrimination. For example, one of the groups to whom this would apply is the gay and lesbian community. My riding contains a significant number of members of that community, as does yours, Mr Chair. They came before our committee and expressed concern about their absence from this legislation.

This is intended to add them not to the self-identification part and not to the numerical goals and targets part but to the measures and barriers part, so that employers can in essence create a level playing field, create an opportunity and an environment where members of the gay and lesbian communities and others subject to systemic discrimination who aren't designated groups -- francophones, linguistic minorities perhaps, and others -- can have an opportunity to participate in a fair way, and that employers can look at their workforce and make sure they aren't doing anything that is in any way discriminating against members of those groups and also identify ways in which they can enhance their participation.

We heard from the Coalition for Lesbian and Gay Rights in Ontario. I think it was Nick Mulé who came in and gave an excellent presentation. His point was about creating the environment, about positive measures, and that's what subsection 10(1) is intended to do. I hope I can get the support of the fellow members of your caucus, Mr Chair, to support this measure and its inclusion in the bill.

The Chair: Thank you. Further debate on this motion? Seeing none, all those in favour of this motion? Opposed? This motion is defeated.

Interjection: He didn't vote.

The Chair: I presumed you voted for that motion, Mr Curling.

Section 10 continued; a PC motion, and Mr Harnick.

Mr Charles Harnick (Willowdale): I wonder if I can stand this down for a few minutes.

The Chair: Is there unanimous consent to do so? Very well, Mr Harnick, there is consent to stand that down.

Moving on to section 11 and a government motion; Mr Fletcher. Withdraw your previous motion, okay?

Mr Fletcher: I withdraw the previous motion and have a replacement motion, clause 11(1)(b).

I move that clause 11(1)(b) of the bill be amended by striking out "recruitment, retention and promotion" in the second and third lines and substituting "recruitment, hiring, retention, treatment and promotion."

The Chair: Discussion, Mr Fletcher? Debate on the motion?

Mr Murphy: This amendment I think was to a certain degree my fault because of certain points I raised earlier. I apologize for that. My position remains the same. I think this isn't the correct way to do it, but that's enough said.

The Chair: Further debate? Seeing none, all in favour of the motion? Opposed? Carried.

Mr Fletcher and a government motion.

Mr Fletcher: I move that subsection 11(1) of the bill be amended by adding the following clause:

"(b.1) the implementation of supportive measures with respect to the recruitment, hiring, retention, treatment and promotion of members of the designated groups which also benefit the employer's workforce as a whole."

The Chair: Debate on the motion? Seeing none, we move to a vote. All in favour? Opposed? That carries.

A PC motion, and Mr Harnick.

Mr Harnick: Again I'd ask that we stand that down.

The Chair: Unanimous consent? Agreed. Mr Murphy.

Mr Murphy: I move that clause 11(1)(c) of the bill be amended to read as follows:

"(c) the implementation of measures to accommodate members of the designated groups in the employer's workforce or who are hired into the workforce during the term of the plan."

The purpose of this amendment is fairly straightforward. It is to make it clear that the plan is to envisage not just the people who are in the workforce at the time the plan is done but also people who might be coming into the plan as part of any identification of employment opportunities. This amendment is put forward on legal advice coming from some of the equity-seeking communities that this may not be clear enough.

The Chair: Would you read your amendment, please, for the record.

Mr Murphy: I did. Then I went straight into my explanation.

The Chair: Debate? Mr Fletcher.

Mr Fletcher: Again I know this isn't two hours before the committee, but that's okay. We feel that right now this is not a necessary motion. The present wording already says what it said. The present wording does not mean only members in the designated groups who are in the workplace at the time of the plan being in; it also covers persons if they are hired into the workplace. So really this is a motion that is not necessary.

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Mr Curling: I regard this as further consultation or continuous consultation. Mr Baker came to us and emphasized to us that this was necessary. My colleague and I took this very seriously. We think it's necessary.

There is one aspect of getting into the workplace, but staying there is another matter. I think what this amendment will do is ensure that measures to accommodate members of the designated groups, that things are being done there in the workforce, that the legislation is serious about targeting, not only identifying, the barriers, but also eliminating those barriers by putting in the kind of measures of accommodation so that the individual can operate within that environment.

It is important. I agree with the parliamentary assistant that we haven't had much time to comprehend that. That is why the little debate here. If he so wished to take some time off or ask for a recess for it to be explained to him, we are prepared to do that, because I think it's extremely important, without turning it down because he felt he hadn't much time to consider it. We are prepared to take the time off so he could be briefed about this.

So I would urge the parliamentary assistant, who seemed to be swinging the mood that they can't support this -- and I hope it's you alone who won't support that. But I will speak to other members who are, of course, also very sensible members, understanding where this is coming from, and also from people who have lived with the situation and understand the situation and, in a consultative manner, have impressed upon us, as is necessary, that the members of the government would support this measure.

Mr Murphy: In light of what the parliamentary assistant said, my intention is to make this provision as clear as possible. What I'd like to do is ask the legal counsel present at the table next to the parliamentary assistant to clarify that the intent of clause 11(1)(c) is to make sure that the plan, in terms of measures to accommodate members of the designated groups, is meant to include people not only who are in the workforce at the time of the drafting of the plan but people who will be either coming into it in the course of the plan or who, by virtue of the operation of the plan, you would hope to have as part of the workforce and that the intent of the section, as it's currently drafted, covers both of those eventualities.

Ms Beall: Yes, the intention of the section, as it's presently drafted, covers both eventualities. The term "in the employer's workforce" applies as soon as a person enters the employer's workforce if they are a member of the designated group. They become a member of the designated group in the employer's workforce. There is no wording there which locks it in time as to who was in the workforce at the time the plan was prepared. The wording will apply to a person who is a member of the designated group the moment they enter the employer's workforce.

Mr Murphy: Okay, I appreciate that. I think ultimately we're both agreeing on the intent and debating about the way of getting there. I'm going to stick by my view that this makes it clearer, so I'm prepared to vote.

The Chair: Very well.

Mr Gary Malkowski (York East): I would like to encourage government members to also rethink this. I think this is important as well. It's important to identify the removal of barriers in here.

Mr Fletcher: Are we ready for the vote?

The Chair: Yes, we are.

Mr Fletcher: Could I ask for five minutes?

Mr Curling: We'd be delighted. We don't mind.

The Chair: Very well. The committee will recess for five minutes.

The committee recessed from 1735 to 1741.

The Chair: I call the meeting back to order.

Mr Fletcher: Again, I'd like to defer to legal counsel to give an explanation that everyone can understand as far as why we believe we don't need this amendment is concerned.

Ms Beall: The legislation, as it's presently worded, refers to, as I said earlier, members of the designated groups in the employer's workforce. There's not a temporal content to this in the sense that it doesn't say "who are in the employer's workforce at the time of the undertaking of the policy and practice review," it doesn't say "in the employer's workforce at the time of the creation of the plan or at the time of the implementation of the plan." It doesn't have a temporal content, which means that as soon as a person enters into the workforce, if he or she is a member of the designated groups, he or she becomes a member of the designated group in the employer's workforce.

The motion that's been proposed by Mr Murphy puts a temporal content into this, because it ads on "or who are hired into the workforce during the term of the plan." In my view, this may lead to an interpretation that, since you've entered into the motion a concept of time, "hired during the term of the plan," the previous part of saying "designated groups in the employer's workforce" may now take on a temporal content, meaning at the time of the plan, which means you now have two types of protection, for those in the employer's workforce at the time of the plan and for those in the workforce during the term of the plan, and you run the possibility of the argument being made that there's no protection for employees who may come into the workforce during the next plan or in the future.

There's an argument that may be raised that you have now put a temporal content into this protection rather than it being a protection for any employee who is a member of the designated group, no matter at what time they enter into the workforce.

Mr Harnick: I'm somewhat confused about this amendment because I can't conceive that anyone would interpret people coming into the workforce during the course of the plan as people not being covered. It's inconceivable to me that this would be the interpretation, or everything that's happened in the first 10 sections is totally nonsensical. That's number one.

Number two, it would probably be of some comfort for the people who drafted this amendment to know whether the regulations, because I suspect that's where it's going to be, deal with what happens to people hired after the plan comes into force. Surely the regulations are going to provide a plan, a form or something to follow to complete the employment equity plan. Surely it'll have to deal specifically with people hired after the plan comes into force.

You would do us a great service if you would show us those regulations, because if those regulations are now available, then they're going to answer the question of whoever drafted this amendment. It's inconceivable to me that someone who comes into the workforce after the plan goes into effect wouldn't be covered by the plan, and if that's the way this has been drafted, it's just bizarre. But I can't also conceive that the regulations wouldn't deal with this. I see that ARCH is disagreeing with me.

Ms Beall: The draft regulations were released in June. Subsection 20(3) deals specifically with requests for accommodation by persons which disabilities. It says:

"The plan shall also set out,

"(a) the procedure that is to followed by persons with disabilities who are employees or job applicants and who want to request and receive accommodation from the employer; and,

"(b) the procedure that members of the employer's staff who have responsibility for recruiting, supervising, evaluating and promoting employees shall follow when a request for accommodation is made."

So in that section it's clearly identified that we're not only talking about employees at the time that the plan is made, but applicants and people who will come into the workforce in the future.

With respect to the accommodation of the special needs of persons of other designated group members, other than those with disabilities, that's addressed in paragraph 19(2)3 of the regulations. It talks about measures designed to accommodate the special needs of members of the designated groups in the employer's workforce.

During the period of the consultation, we recognized that this section 19 needs to be clarified in order to make it clear that this is not locked in time, but includes persons who are members of the designated groups as they come into the workforce, in order to be in accord with what is written in the legislation. The next version would be the final version of the regulations. That has not yet been drafted to include all the considerations which have come up as a result of the consultation on the regulations.

Mr Harnick: I don't understand what you just said, but it seems to me that subsection 11(1) says: "Every employer shall prepare an employment equity plan in accordance with the regulations. It must provide for," and then (c) says, "the implementation of measures to accommodate members of the designated groups in the employer's workforce."

So I gather that this says it has to deal with what measures are being taken to accommodate the members of the four designated groups. Surely somewhere in those regulations there has got to be a regulation that deals specifically with section 11 of the act. Am I right?

Ms Beall: Yes.

Mr Harnick: And surely that regulation would have some kind of specific comment dealing with, in a very particular way, those who are hired into the workforce during the term of the plan but after the plan is made. Doesn't it say somewhere in the regulations that these regulations apply to any person hired after the date the plan comes into effect?

Ms Beall: With respect, that's what I just read to you, sir.

Mr Harnick: No, what you read to me very much dealt with those with disabilities. I'm just talking about overall. You don't have to pigeonhole people in terms of their designations to say generally that it applies to all those coming into the workforce after the plan is in effect.

Ms Beall: I'm sorry, I missed the final comment you were making because I was looking for the particular section in the regulations.

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Mr Harnick: What section in the regulations covers this amendment?

Ms Beall: The provisions I read to you which refer to people who come into the workforce advising the employer and setting up the plan requiring that a process be set up that people coming into the workforce can advise the employer of their need for accommodation, and it follows from that that the accommodation provisions --

Mr Harnick: We're talking about two different things. I think what this amendment is directed at is saying that anyone who comes into the workforce after the date that the plan goes into effect is deemed to be covered by the plan. Am I wrong? Is that what the amendment --

Ms Beall: With respect, sir, the legislation already says that. The legislation as it's worded already says that.

Mr Harnick: Where?

Ms Beall: In the wording of "members of the designated group in the employer's workforce," as contrasted with "members of the designated groups who are not employees of the employer at any time." In other words, this doesn't apply to members of the designated groups who may be tenants of a landlord. This applies in the workplace setting. That is what that term means, and it's not a temporal term. It doesn't mean "who are in the workforce at the time of the plan." It means that as soon as you enter the workforce and you're a designated group member, clause 11(1)(c) applies to you.

Mr Harnick: Shouldn't the regulations make that even more clear?

Mr Fletcher: Well, should or shouldn't; you have an answer.

Mr Harnick: But I'm trying to decide whether to vote for this or not vote for it.

Mr Fletcher: The regs are not here for debate.

Mr Harnick: I appreciate that the regs aren't here for debate, but maybe they should be.

The Chair: Mr Harnick, have we sufficiently dealt with your concerns to move on?

Mr Harnick: No, because I still don't understand. Somebody here has written out this amendment, and they've obviously done it because there's some concern about this temporal relationship.

The Chair: The lawyer has explained to the best of her ability as much as she could several times. I don't know that we could repeat the same thing again. Mr Murphy's on the list to speak as well.

Mr Harnick: I didn't know we had a time limit here.

The Chair: You don't.

Mr Harnick: What concerns me is that there's some idea that if you're in the workforce we don't have to be specific about the time you entered the workforce. That may be an interpretation. What concerns me is that someone obviously doesn't think that's clear enough and has framed an amendment to make the time aspect of this perfectly clear so there is no ambiguity.

I was going to vote against this. I'm talking myself into voting for it now. I get the impression that if someone's gone so far as to say that we're not clear about the time relationship, maybe we should amend it so we are. There doesn't seem to be anything sinister in this amendment, except that it's not from the government and that may be the sinister aspect. But somebody obviously has felt strongly enough that the words "in the workforce" don't mean "in the workforce before the plan, during the plan, after the plan" or whenever. It seems to me that if you want this section to work or at least to be clearer, maybe you have to do this.

Mr Murphy: I understand the concerns about the temporal impact, or the impact on what other terms mean in terms of time, but I'm not sure I agree, and Mr Harnick has pointed to some reasons.

One is that the preface to section 11 is that the plan should be in accordance with the regulations, and the context of what the plan shall deal with is then outlined in the series of provisions. I'm not sure I agree with the concept that we are going to have that negative impact in terms of time related to other sections, because we're framing what we're trying to get at in terms of the plan.

I was trying to read through what you had referred to in terms of the regulations. I'm not sure, to follow up on Mr Harnick's question, that I saw in here clearly that these referred to that perspective element of it. One of the members of the ministry -- it may have been the deputy, not to put her in a difficult position -- identified the question about the interviewing process and its impact, but I actually don't see that referred to in this part of the regulation that presumably rises out of section 11.

This amendment comes from a concern identified to me by the counsel for ARCH, who had consultation, I gather, with other members of equity-seeking groups. After their review of the act, they said this was an issue, that there is a concern related to the necessity to make it clear that the plan needs to deal with not just who was in the group but who might come in. It isn't meant to be sinister; it's meant to get at that concept, to make it clear.

You referred to a couple of sections of the regulation. I don't see where that issue is responded to in those provisions of the regulation. That's the intent, that's the purpose. Obviously there's some disagreement, and I guess we'll settle that by the vote.

Mr Harnick: I wonder if Mr Murphy would be amenable to a friendly amendment. I propose adding the word "reasonably" before "accommodate," which would then deal with the PC motion at page 34. Can I give Mr Murphy a couple of minutes to consider that?

Mr Murphy: I think I'm going to say it's not friendly, because the intent of these provisions (a) through (f) is to outline what is meant to be in the plan, not the standard to be imposed with respect to those provisions. The word "reasonably" would outline a standard in a context that outlines what the focus of the plan would be, and I think that's more appropriately dealt with in another section. I prefer to leave it on the clean basis that it is now.

The Chair: Mr Harnick, to be helpful, if you wanted to move that as an amendment, you could and then we could deal with that. He's not accepting that. He's not accepting your suggestion.

Mr Harnick: I'm shocked and shattered.

The Chair: You still have the floor.

Mr Harnick: Can I have your indulgence for just a moment? I've received some comment about this amendment. That comment is -- I think this is important -- that the plan could provide for accommodation only for current employees unless the bill makes it clear that the plan must provide for both current and future employees.

I really think the issue is one of clarity. If the government is quite content that there's no issue or that it could never be raised that there's a temporal issue here, I'm content with that, if that's what the government says. But I would think that in the interest of clarity, the government would want to take a look at that section. I don't see the amendment as anything that's at all deceptive or deceitful or dishonest or something to worry about. It's just adding clarity. It's up to the government.

Mr Murphy: Are we ready to vote?

The Chair: We're ready for the vote. All in favour of Mr Murphy's motion? Opposed? This motion is defeated.

This committee's adjourned until next Monday at 3:30.

The committee adjourned at 1800.