EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
CONTENTS
Tuesday 30 November 1993
Employment Equity Act, 1993, Bill 79, Ms Ziemba \ Loi de 1993 sur l'équité en matière d'emploi, projet de loi 79, Mme 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
Sutherland, Kimble (Oxford ND) for Mr Winninger
Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Tilson
Also taking part / Autres participants et participantes:
Ministry of Citizenship:
Ziemba, Hon Elaine, minister
Alboim, Naomi, deputy minister
Hewson, Katherine, manager, employment equity legislation and regulations unit
Beall, Kathleen, counsel, employment equity legislation and regulations unit
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Joyal, Lisa, legislative counsel
The committee met at 1550 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'd like to call the meeting to order. Given that there's a Liberal amendment to section 31, what I propose to all of you is that we stand this matter down until Mr Murphy gets here and we'll move on to section 32. Do we have consent for that?
Mr Derek Fletcher (Guelph): I have a question on that. I thought debate had ended on subsection 31(4) and that we were almost ready for the vote yesterday.
The Chair: There was a vote in the House. We were in the middle of the debate on that, I thought. But if you don't mind, Mr Fletcher, it will be easier once he's here just to complete it.
Mr Fletcher: That's fine. I recognize that. I understand.
The Chair: Do we have unanimous consent to go on to section 32 then? Very well. Mr Fletcher, 32(1).
Mr Fletcher: I move that subsection 32(1) of the bill be amended by adding after "the applicant" in the second line "the respondent."
This is a technical amendment to ensure that the respondent will also be a party of any action before the tribunal. This is necessary because there may be cases where the respondent is neither the employer nor the bargaining agent.
The Chair: Discussion? Seeing none, all in favour of this motion? Opposed? That carries.
Subsection 32(1), PC motion, Ms Witmer.
Mrs Elizabeth Witmer (Waterloo North): I move that subsection 32(1) of the bill be struck out and the following substituted:
"Parties
"(1) The parties to an application under this part are the applicant, the interested employer and the interested bargaining agent."
This amendment removes the phrase "any such other persons as the tribunal may specify," and this would prevent third-party intervention.
The Chair: Debate? Clarification, perhaps? Seeing none, all in favour of this motion? Opposed? The motion is defeated.
All in favour of section 32, as amended? Opposed? That carries.
Section 33, subsection 33(1), government motion, Mr Fletcher.
Mr Fletcher: I withdraw the previous motion and replace it with paragraph 33(1)4.
I move that subsection 33(1) of the bill be amended by striking out "the employer's employment equity plan" in the fourth and fifth lines of paragraph 4 and substituting "an employment equity plan."
This is another technical amendment dealing with the number of plans that can be done by any employer.
The Chair: Discussion? All in favour of this motion? Opposed? That carries.
Subsection 33(1), PC motion.
Mrs Witmer: I move that subsection 33(1) of the bill be struck out and the following substituted:
"Power to make orders
"(1) In an application under this part, the tribunal may make an order requiring an employer to amend an employment equity plan."
This amendment would limit the tribunal's power to making an order to require an employer to amend an employment equity plan. I believe the tribunal should not have the authority to establish an employment equity plan for an employer, require an employer to set aside funds for an unspecified purpose or appoint an outside administrator at an employer's expense.
Mr Fletcher: We'll be voting against this one. We feel that it weakens the enforcement aspect of the bill.
The Chair: Further debate? Seeing none, all in favour of the motion? Opposed? That motion is defeated.
Subsection 33(4), government motion, Mr Fletcher.
Mr Fletcher: I move that section 33 of the bill be amended by adding the following subsection:
"Orders re collective agreements
"(4) Despite any provision of this act, the tribunal may make an order amending a collective agreement only if the tribunal considers that other orders are not sufficient in the circumstances to ensure compliance with this act."
This amendment limits the tribunal's power to amend collective agreements. The tribunal can amend a collective agreement only if other remedies are not sufficient to ensure compliance with this act. The amendment reflects the legal status of a collective agreement which has been freely negotiated by the workplace parties.
This amendment is similar to clause 94(1)(d) of the Labour Relations Act, which limits the ability of the Ontario Labour Relations Board to interfere in the provisions of a collective agreement. The circumstances under which a change would be ordered to a collective agreement have been severely limited by the proposed amendment to section 5, which will provide that an employment equity plan prevails over the collective agreement to the extent that there is any conflict between them.
The Chair: Discussion? All in favour of this motion? Opposed? The motion carries.
All in favour of section 33, as amended? Opposed? That carries.
Section 34: subsection 34(2), a PC motion.
Mrs Witmer: I move that subsection 34(2) of the bill be struck out and the following substituted:
"Appeal
"(2) An appeal may be taken from a decision or order of the tribunal to the Divisional Court."
This amendment would give the employer the right to appeal a decision or order made by the tribunal to the Divisional Court.
The Chair: Discussion? All in favour of the motion? Opposed? The motion is defeated.
Shall section 34 carry? It carries.
Section 35: subsection 35(2), Mrs Witmer.
Mrs Witmer: Yes, I know. I see the government motion, but for whatever reason I don't see ours. What number is that? It's this one here. Okay, number 81? Okay, sorry. It was out of order.
I move that section 35 of the bill be amended by adding the following subsection:
"Same
"(2) A person in possession of information collected from an employer shall keep the information confidential and shall not disclose or use it except for the purpose of complying with part III or IV."
This amendment extends the confidentiality provision to information collected from the employers. We know that this has been of tremendous concern to the employer community, and the bill provides a wide-ranging right on the part of bargaining agents to have access to information held by the employer. There is a need to do whatever we can within the legislation to ensure that the degree of confidentiality afforded to individual and proprietary data be enhanced.
Mr Gordon Mills (Durham East): I wonder if I might ask the difference between that motion and the government motion 35(2). I'd like to understand the difference there is between those two amendments.
Ms Kathleen Beall: Subsection 35(2), the government motion, was a consequential amendment to an earlier amendment that had been filed with respect to provision of confidential information; that is, 14 and 16. Those earlier amendments were withdrawn and replaced with the amendment saying the employer was not required to provide the confidential information in the first instance. So subsection 35(2), which is consequential, to require the protection of the information, would also, I understand, be withdrawn.
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The Chair: Further discussion? Seeing none, all in favour of the motion? Opposed? That is defeated.
Subsection 35(2), government motion.
Mr Fletcher: I'll withdraw that motion right now.
The Chair: Very well. Discussion on section 35? Seeing none, all in favour of section 35? Opposed? Section 35 carries.
I'd like to go back to section 31 then. That's where we left off yesterday. We were in the middle of either finalizing the discussion or in the discussion. I can't remember which.
Mr Mills: I think we were finalizing and everyone had said enough and we were just in the process.
Mrs Witmer: We were having the vote.
Mr Mills: Yes, that's what I think.
The Chair: All right. Any further discussion on that motion? Seeing none, all in favour of Mr Fletcher's motion? Opposed? That carries.
Subsection 31(4).
Mr Tim Murphy (St George-St David): I will not move it.
The Chair: Any discussion on section 31, as amended? Shall section 31, as amended, carry? That carries.
Section 36: Any discussion on that? Seeing none, all in favour of section 36? Opposed? That carries.
Section 36.1, government motion, Mr Fletcher.
Mr Fletcher: I move that the bill be amended by adding the following section:
"Providing false information
"36.1 No person shall knowingly provide false information on a certificate that is filed with the Employment Equity Commission under subsection 11(2.2) or 13(2.2)."
I think that's self-explanatory.
Mrs Witmer: Does this refer to both employer and employees?
Mr Fletcher: No. There's only the employer who files the certificate.
Ms Beall: It's the employer who provides the information on the certificate.
Mrs Witmer: Is there anything within the bill which would prohibit an employee from contributing to providing false information on the certificate? What penalty is there for the employee who files false information?
Ms Beall: There's no provision in the bill which specifically provides for any misinformation an employee may provide.
Mrs Witmer: I will be voting against this because I think there is a need for both the employer and the employees to act in an honest and responsible manner and provide truthful information.
Mr Murphy: Is there a provision like this in any other similar statute?
Ms Beall: I don't know the answer to that question with respect to provincial statutes.
Mr Murphy: Can you think of one?
Mr Mills: I can think of one.
Mr Murphy: It's open to anybody.
Mr Mills: I can think of one as it relates to the Fuel Tax Act, very clearly. When you file a certificate to gain taxable benefits, it says there that no person shall knowingly provide false information in relation to the certificate. So it's not a precedent, in my opinion.
Mr Murphy: But I guess there are a couple of things. One is that you're applying for a benefit that's going to be paid by the government. It's a tax rebate, isn't it, or something like that?
Mr Mills: For an exemption.
Mr Murphy: Yes, for an exemption. I guess you're not getting -- at least not that I've seen. Are you going to get a tax exemption or a rebate for anything that is imposed by this act?
Mr Fletcher: Of course not.
Mr Murphy: I guess because it becomes -- I'm sort of thinking out loud. I'm just trying to think of a certain -- maybe you do know one.
Ms Beall: I just remembered one. The Occupational Health and Safety Act provides that no person shall knowingly provide false information to an occupational health and safety inspector.
Mr Murphy: Then that applies to anybody, obviously, either the employee onsite or the employer.
Ms Beall: That's because the inspector will speak with either the employer or the employee.
Mr Murphy: Yes, there's a good reason for it, but it applies to anybody.
The Chair: Madam Minister, do you want to comment?
Hon Elaine Ziemba (Minister of Citizenship and Minister Responsible for Human Rights, Disability Issues, Seniors' Issues and Race Relations): Yes, I would say that the Workers' Compensation Act, the employer health tax, the provincial sales tax act -- all of those are only pertaining to employers providing false information, and they must sign as they submit any information to any of those acts.
Mr Murphy: I guess the employee's prohibition in the workers' compensation is fraud; they may be charged with fraud in the workers' comp context if they filed false information, so there is a penalty in that regard. Employer health tax? I guess it doesn't really apply.
Hon Ms Ziemba: Well, it does.
Interjection.
Mrs Witmer: I guess, unfortunately, within Bill 79 there is no provision for dealing with or penalizing in any way an employee who knowingly submits false information. The onus is only on the employer. As I say, I think we have to be cognizant of the fact that all people need to be truthful in their responses.
Mr Murphy: Would an employer who provided false information knowing it was false -- would that be fraud for the purposes of the Criminal Code? I guess it would have to be for the purpose of benefit.
Mr Fletcher: Monetary.
Mr Murphy: I guess there is a benefit. It doesn't have to be monetary benefit, I don't think.
Mr Fletcher: That would be fraud. You'd have to have money for fraud.
Mr Murphy: Anyway, that's fine. Thank you.
Mrs Witmer: We know there are going to be people who don't want to identify themselves, for example, as disabled or even as a visible minority. People are going to do with this what they choose. Now, the employer files this certificate knowing full well that there are four visible minorities but only two have indicated that they are, or you have someone in a wheelchair who is obviously disabled. What happens to that employer if he cannot convince those employees to provide him with truthful information?
Hon Ms Ziemba: If you would look at the amendment, it says, "knowingly," and obviously if somebody is self-identifying, that is not "knowingly" to the employer, so I think that covers it very clearly.
Mrs Witmer: I don't think it does.
Hon Ms Ziemba: That's your interpretation, but I'm just telling you the intent.
Mr Mills: "Knowingly" to me means you knew what you were doing.
Hon Ms Ziemba: That's right.
Mr Fletcher: As the minister said, the information that comes from the survey, from self-identification, is the information that is used. They're taking it right off the survey. It's not knowingly interpreting what is on the survey; it's giving the information that is right on the survey to the commission. So they're not knowingly supplying false information; what they're supplying is what is on the survey. Because a person who self-identifies may not put down the right information, they can't be held accountable for it if it is on the survey sheet.
Mrs Witmer: I hope that's indeed what happens, because it could be interpreted in a different manner.
The Chair: Further discussion? Seeing none, all in favour of section 36.1? It's a government motion. Opposed? That carries.
Any discussion on section 37?
Mr Murphy: We could do flash cards for Kimble.
The Chair: Kimble doesn't need them.
Discussion, section 37? Seeing none, all in favour of section 37? Opposed? That carries.
Section 38, government.
Mr Fletcher: I move that section 38 of the bill be amended by adding after "36" in the second line "36.1."
This amendment includes 36.1, knowingly providing false information on the certificate, as an offence.
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Mr Murphy: This is really on the substance of 38, not on the amendment as such. This is a Provincial Offences Act charge, and the standard in that circumstance is a reasonable doubt. You've nodded twice, so those are affirmatives?
Ms Beall: Yes.
Mr Murphy: I'm trying to remember all of my criminal law, but the standard in this case is "due diligence" defence for an employer to a charge that it failed to comply with an order of the Employment Equity Tribunal?
Ms Beall: No, because it has the "knowingly" aspect to it. It involves a knowing that he -- you'd have to establish --
Mr Murphy: No, 38 doesn't. I'm sorry; I'm talking about 38 as a whole, not the 36.1 amendment.
Ms Beall: I'm sorry. Section 38 as a whole would fall under the Provincial Offences Act, yes. As you know, since R v Sault Ste Marie, in matters which are strict liability, there would be a defence of due diligence.
Mr Murphy: All right. I just want to make sure I've got this clear. So your interpretation of this is that if the employer comes and says, "Well, we tried to do it and we couldn't," that would be a defence? You know, "The economy turned down and we ran out of money"?
Ms Beall: You'll note that the only offence sections in this bill are 35, 36, 37 or failing to comply with an order.
Mr Murphy: That's the point I'm making. It relates to the order, because an Employment Equity Tribunal could -- you could have a dispute about a plan or positive or supportive measures or barrier removal under a plan. It goes to the commission; it goes to the tribunal. The tribunal makes an order.
As a result of some positive measure outlined in a plan, anything in section 11 could end up in a tribunal and an order be issued. The question then is, will an employer's defence that the economy changed and, "We ran out of money; there's no opportunities," be sufficient to provide it with a defence to a charge under section 38?
Ms Beall: I don't know of any particular case that provides sufficient defence to a charge. It would all depend on all the facts arising in the circumstances. However, in answer to your general question, a defence of due diligence and having taken all reasonable steps in the circumstances to comply with requirements for which you are charged would be considered by the court.
Mr Murphy: Yes, I know. That's the standard of a due diligence defence, that you take all reasonable steps. The question then is: "We didn't have the money. Our sales went down 15% and we lost money last year, and therefore we could not afford some positive measure or something coming out of an order of a tribunal."
Ms Beall: I can't answer a question in the hypothetical with so few facts as to what a court would find in the circumstances. I'm sorry.
Mr Murphy: What's the intent? Is it to catch that circumstance or not?
Ms Katherine Hewson: The intent is to legislate in accordance with the criminal law as set down by the Supreme Court of Canada, which is to provide a due diligence defence. As Ms Beall has said, we cannot be sure of how each fact situation would be adjudicated by a court and how the defence of due diligence would be interpreted in each fact situation.
Mr Murphy: Absolutely. Of course not, and I'm not asking you that. I guess I'm asking, and this may in fact be more appropriately a policy question than a technical question, is the intent that an employer have a due diligence defence or have a defence of "I ran out of money," or is the intent not to have that as a defence?
Ms Hewson: The intent is to have a due diligence defence. What is not clear and what I cannot answer from a policy perspective is the extent to which lack of funds constitutes a due diligence defence. It would seem that there may be other, perhaps more appropriate, avenues available to an employer in that situation; for example, to apply to the tribunal for a reconsideration of its order.
Mr Murphy: It may have other avenues, but it may be caught under 38 too, unless you can get the tribunal to agree to a lifting of its order retroactively. Nunc pro tunc.
Ms Hewson: The other thing that should be remembered is that in order for a prosecution to proceed, the tribunal must agree to the prosecution going forward.
Mr Murphy: Yes.
Ms Hewson: Another thing to remember is that in making an order under particularly section 26, I believe, the employer need show that its plan complies with the Employment Equity Act and that it has made all reasonable efforts. That is the standard the employer must show.
Mr Murphy: I understand that. It's really for the minister or Mr Fletcher. I just want to know: Is your intent to provide the employer with the opportunity to say, "The economy changed, our sales went down, we lost money," and that is sufficient to provide a defence to a charge that it failed to comply with an order of the tribunal to do something or not? It could very well be that your intention is that they have that defence, which is fine, or that they don't. Then we have a debate about whether this is sufficient to capture it or not.
Ms Hewson: Your concern arises from the effect of not following an order of the tribunal. However, I would point out again that an order would be made only if the employer failed to show that it had made all reasonable efforts.
Mr Murphy: Yes, but situations change. That's what I'm saying. You have a dispute about it, and as a result of that dispute an order issues and it applies for the life of a plan. Then circumstances change after a plan's in place or after measures implemented pursuant to the plan have been put in place as part of an order of the tribunal.
I don't disagree with what you say, but it could very well be that -- it's just going to happen; I know it is -- you're going to have disputes between employees and employers and bargaining agents and employers about the scope and adequacy of every plan. A certain percentage of them are inevitably going to go to the commission and then the tribunal, and given these economic times, just the reality of any economic time is that some businesses fail, some succeed. That's just the truth of the matter. The question then is, in circumstances after a dispute that results in an order by the tribunal, what standard applies?
What you said about all that prior to the issuing of the order is entirely correct, and the consent of the tribunal is part of the process too. All I'm really trying to get at is the policy decision. Are you trying to prevent an employer from having that defence or permit an employer to have that defence that "We ran out of money"?
Hon Ms Ziemba: I will give a political interpretation of the policy. It would be the intent on our political, government side that if the circumstances were to change for an employer, an employer could use that as a defensible argument for non-compliance of an order.
Mr Murphy: Okay, thank you. That's very clear, and I appreciate the answer.
Hon Ms Ziemba: You're very welcome.
Mr Murphy: I just want --
The Chair: On the whole section or on the amendment, the motion?
Mr Mills: Now we're going into discussion on that, right?
Mr Murphy: Well, in part. The question then is, given that that's the policy, are you, as the technical people, empowered with the right to put that in statute form? Are you satisfied that this achieves that policy?
Ms Beall: From a legal perspective, the answer is yes.
The Chair: Any further discussion? All in favour of Mr Fletcher's motion? Opposed? Carried.
All in favour of section 38, as amended? Opposed? Carried.
Section 39: Any discussion? Seeing none, all in favour? Opposed? Carried.
Section 40: Any discussion? Seeing none, all in favour of section 40? Opposed? Carried.
Paragraph 41(1)5, Mr Fletcher.
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Mr Fletcher: I move that paragraph 5 of subsection 41(1) of the bill be struck out.
This amendment deletes the specific function of the commission working with bargaining agents to ensure that seniority rights are not barriers to the list of its functions.
Mrs Witmer: I'm going to just be brief; we've gone through this debate already. I find it most unfortunate that seniority rights, which this government originally considered to be a barrier to employment equity, now are deemed not to be, yet any employer who is not able to reach the goals and the timetables because of seniority doesn't have any recourse to justice to appeal that decision. It's obvious that the government has bent to the labour unions' demands to remove seniority rights as a barrier.
Mr Fletcher: The government has never said that all seniority is a barrier to employment equity but that some forms of seniority can be and that they should be worked out between the two parties that are going to be affected when there's a bargaining agent. I think we've been quite consistent on that.
Mr Murphy: I think, Mr Fletcher, you've made the argument as articulately as possible for keeping the very section in that you're just in the process of deleting. You've admitted that in some circumstances seniority systems can be a barrier to advancement and employment equity and that the appropriate thing to do in those circumstances is to work together with employers and bargaining agents to try and work around those barriers.
It strikes me that regardless of the decision on the balance that you've made in section 10 deeming seniority not to be a barrier, there is still a utility in providing a role to the commission to say, "We've deemed them not to be barriers, but in reality it they are a barrier in this case. Let's see if we can work around it."
That's exactly what you said. I view that as entirely sensible, an appropriate thing for the commission to talk to people about, to say, "Let's see. Here, another employer did it this way, another bargaining agent did it this way. They worked around these circumstances in ways that have provided people an opportunity to respect seniority in some circumstances, move around it a little bit with some sensitivity to the workplace," exactly the appropriate thing to do. You've made the argument very well and I hope that predicts how you're going to vote on this amendment.
Mr Fletcher: The employment equity bill provides for that process, and that's what this government has been saying all along, that we'd rather see a less confrontational style when it comes to employment equity.
Mr Murphy: I can't let that go unresponded to, because in fact what this is supposed to be, this whole section is to provide the commission with a function to work with, not to confront, to have confrontations with. It's meant to encourage and facilitate. I would expect that your argument for every single other provision in this section is that this is facilitating, this is assisting, this is not confrontation. It just strikes me as incredibly illogical. You could even leave this in, having maintained your position on section 10 that you've now taken, which is the deemed-to-be barriers. It has nothing to do with the compromise you made, the compromise of employment equity by way of seniority.
I just find it astounding. The members opposite sat here and heard through this whole thing people coming in. Granted, there were differing views, but you know as well as I that seniority can be a barrier to employment equity in circumstances. How is it inappropriate to have the commission work with those people to get around those barriers?
They are barriers; that's the reality in some circumstances. That's the whole point, that you have workforces where, starting 20 and 25 years ago, the only people they hired were white males, and if you have a seniority system in place, those are going to be the people who have seniority. In a situation where you don't have opportunities, it's going to be the white males who get laid off last, it's going to be the white males who have the first opportunity for promotion. How can you not say that the commission has a role in education and in assisting those workforces to move forward with employment equity? It is just bizarre.
Ms Naomi Alboim: If you look at 41(1)4, it says, "To assist employers, employees and bargaining agents in complying with part III." It was felt that covered all aspects that the commission might want to provide assistance in, in terms of the implementation of employment equity. Repeating the seniority provisions specifically in number 5 was redundant and highlighted that particular aspect to exclude every other aspect that employers, bargaining agents and employees will also want to look at and want assistance in. So it was felt that it was redundant and therefore not necessary.
Mr Murphy: If I am a bargaining agent or an employer, I'm going to go: "In committee and the House this was taken right out of the bill and the intent is pretty clear: You're not supposed to dabble in this; seniority is deemed to be protected and not a barrier, so get out of our backyard. You have no right here in the Employment Equity Commission. Go away." That's how I would interpret it if I were in those circumstances. To argue that you're sort of giving with one and taking with the other is -- well, I won't say what it is but I think it's pretty clear what it is.
Ms Zanana L. Akande (St Andrew-St Patrick): In terms of the seniority discussion, I know Mr Murphy makes the point that those who have been traditionally hired have been white males and that in fact if we can't touch seniority, what we're going to do is perpetuate a system that was begun at a time when employment equity was not in place. But we also have to recognize that there were discussions and there were presentations put forth by visible minorities and others who were themselves employed in the public service and other places who said they had been in the workplace significantly long, that they in fact should have been promoted, that they had the qualifications and they certainly had the experience. So for those people seniority was not the question.
Mr Murphy: Absolutely. You're right.
Ms Akande: The question wasn't seniority in those situations. The question was, how is this promotion looked at, how are the competitions conducted, who can apply etc?
I think we have to make two points here. One is a recognition that we cannot throw all systems totally out of whack without consideration. There is consideration given here for the commission to do the education for them, to work out a process with the unions, with the employees, to work around this. Then the second thing is that we also have to recognize that people require the structures of their employment situations in order to proceed in some kind of fashion. I think that with the commission working and with the recognition of the talents of those who are already in the workplace, we'll be able to proceed in a more progressive and orderly fashion at the same time.
The Chair: All in favour of Mr Fletcher's motion? Opposed? That carries. Mr Murphy, 41(1).
Mr Murphy: I move that subsection 41(1) of the bill be amended by adding the following paragraph:
"8. To educate and encourage employers and others to implement the directions of the Report of the Task Force on Access to Professions and Trades in Ontario dated October 1989."
For a brief explanation, we heard during the public hearings on this bill that one of the very real barriers a number of communities faced was the issue of restrictive rules for access to trades and professions. It happens in my riding. I have a large population of people who came from the Philippines, lawyers and doctors and others who have been unable to practise in their field despite the training they received in the Philippines because of restrictions imposed on those professions. We heard people come before our committee and talk about those in other areas: engineering, accounting. There are many professional bodies that have a set of rules that are not as open to the fact that people have very often gained very adequate and excellent training in other jurisdictions. Some would even think that maybe we should recognize other provinces in the same way too, but that might be far too radical for this time.
The bottom line is that we think it's appropriate that if you're doing employment equity, employment equity in the context of trades and professions is an area that is not really very well looked at by this bill and we should encourage the commission to educate and encourage at this point in time with a view, when the next review comes up, to coming up with some real, concrete ideas and frankly to move towards implementation of it now where that's appropriate to do. It's merely to give the commission the authority to educate and encourage.
It's not a forcing at this point. It's not a motion that forces this to happen but makes it a part of the discussion and part of what happens in workforces in the province.
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Mr Mills: I've read your amendment. I look back to the time when we were on that committee and I must say that I was very impressed by the very sad story of the architect from Afghanistan who was even questioned by his children as to his capability in Canada because he seemed to be doing menial tasks. So of course, contrary to what you may think, I think of my own two here and I have some degree of concern about what you said.
But before I endorse that agreement, I would like to hear from staff here. If it's not there, I will presume that there's a reason for it and I would like to understand that reason, although I have great empathy for your amendment and what those folks told us. As I said, two of those people were very sad to listen to, to hear they've been blocked out of the system. So can I hear something?
Ms Hewson: I think that although all of the recommendations of this report or the subject of education etc will not be implemented by the commission, a number of the areas may well be dealt with in their general functions, that they have to assist employers and employees in complying with part III, and part of that will be barrier elimination. One of the things that can be a barrier is a requirement for Canadian experience etc. So there may be proactive requirements, and the commission will have a role to play in helping employers and employees deal with those barriers, but in a different context than just simply implementing a report which is on its own, outside the Employment Equity Act, although some things may correspond.
Mr Mills: Thank you. I'd just like to respond to that. What you're telling me is that the concerns that I have and the concerns that Mr Murphy has, in so far as those people who appeared before us, as a committee, are concerned, you're saying that yes, they're going to be sort of addressed in some way.
Ms Hewson: In some way, but perhaps not all of the recommendations. I think some of the recommendations of the commission on access to trades and professions deal with self-regulating professions --
Mr Mills: Yes, I can see that.
Ms Hewson: -- and things that are under separate legislation that would require, I think, sometimes legislative amendments to those professional acts. That would be, I believe, outside the scope of what the commission could do, although it could work with government ministries and professional associations to implement changes of that sort.
Mr Mills: I would like to see in here dealing with that so-called Canadian experience which seems to be such a stumbling block for people to accessing. If that will be dealt with here, I can sort of not prolong this debate and agree with that.
Mr Kimble Sutherland (Oxford): There is work being done through the ministry, through the access-to-trades projects that are under way.
The Chair: Any further discussion? Madam, do you want to add something to the discussion?
Ms Alboim: If we're
talking about the role that employers can play, that is already dealt with in
terms of barrier elimination. If we're talking about the role that is played
by regulatory bodies and by licensing bodies, one could argue whether that is
the role of the Employment Equity Commission or not. This would imply that it
is the role of the Employment Equity Commission. The minister should be
addressing this, but it's not really the Employment Equity Commission's role
to deal with regulatory bodies or lic
T
dies.
Mr Mills: I'm glad I spoke up. I think the intent of Mr Murphy here was too important to just have no comment or discussion and vote on it. That's why I wanted this discussion.
Mrs Witmer: I will be supporting this amendment. I have certainly had similar meetings with people in my community who are professionals and do have trades and, unfortunately, once they arrive in this country and province, they are unable to gain access to the positions for which they have been educated and trained.
I think this government needs to take a far more active role than it has at the present time in offering these people some sort of encouragement that there is a light in the tunnel and that the very valid concerns they have are going to be addressed. It's an issue now that I've dealt with for three years, and I can tell you, people don't feel there's been much, if any, progress made at all regarding a very, very critical issue.
I don't think there's a month goes by in our community that we don't see an article in the paper about the people who have excellent qualifications, but you know what? There's just nothing available to give them any support whatsoever.
Mr Fletcher: I share the sentiments of Ms Witmer. There have been a number of people who have come from other countries who cannot get jobs in this country and yet are highly trained. Ms Witmer has said she's been dealing with it for three years. In my former life, in a lot of areas, I've been dealing with this for 10 to 12 years. It's not something that has just come along today; it's something that has been around.
That's why the report on access to trades and professions was commissioned. We believe some of the recommendations that are in that report may be followed by the commission, but we believe that the commission's job right now is to assist employers, to help educate employers and to make sure that there's compliance with the employment equity plan. As far as access to trades, we do believe there is movement in that area already with the report, and as was said by others, when the reports are being done, perhaps some of these will be seen as barriers.
Mr Murphy: Just to respond, first of all, there is the view of ministry officials that some of this may be -- I think that was how it was highest put, "may be" -- addressed elsewhere. It's not exactly a manner of expression that gives great confidence that it is addressed. Certain aspects of it are and will be by necessity; others won't.
Quite clearly, it is self-regulating bodies in particular that are the bone of contention in relation to this, although not exclusively. But when you think about the Canadian experience thing, especially related to lawyers or architects or any of those areas where you have both the impact of experience in working with the rules as they apply here and also how that impacts on the qualifications, I think it is appropriate for the commission to say, because a law firm would clearly come under this rule: "Look, for you to encourage designated groups to become part of the process and become more extant in your firms, you should provide them with opportunities to gain that experience in order to move towards meeting the qualifications set by the regulations. You should work with your governing body, as a law firm, to maybe think about how these things are going to be applied."
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If this bill is about employment equity, that is certainly a fundamental place where employment equity could be pursued and should be pursued. We had many people come before us and say that the issue was not that they didn't feel they had the qualifications as they didn't get the opportunities despite having the qualifications. This is trying to address that problem very particularly. I guess I don't really understand why it's being opposed ultimately and I haven't heard a really good rationale as to why it's not in.
Mr Fletcher: Again, as far as the commission is concerned, we agree there should be something done as far as access to professions and trades, but the commission's job is to make sure there is compliance with the legislation.
Again, the commission may see some of the recommendations of the report and use some of the recommendations of the report and it may even make the determination that certain things have been barriers to people who have professions and trades.
That may be a decision of the tribunal, and the government is not about to tell the tribunal what it must decide or the commission what it must decide. I think in all commissions, there should be some arm's length from the decision-making between government and what the commission can do.
The Chair: I think we've had plenty of discussion on this matter. All in favour of Mr Murphy's motion? Opposed? The motion is defeated.
Subsection 41(3).
Mr Murphy: For a brief moment there, Mr Mills, I thought I saw a light. You even prefaced it by saying you think for yourself, and then the light faded.
I move that section 41 of the bill be amended by adding the following subsection:
"(3) The commission shall have the right to not pursue or hear any complaint it considers to be trivial, frivolous, vexatious or made in bad faith."
This is meant to give the commission the same powers that the government has provided to the tribunal.
The Chair: Discussion? Seeing none, all in favour of Mr Murphy's motion? Opposed? The motion is defeated.
All in favour of section 41, as amended? Opposed? That carries.
On section 42, any discussion? Seeing none, all in favour of section 42? Opposed? That carries.
Any discussion on section 43? Seeing none, all in favour? Opposed? That carries.
Subsections 44(1), (1.1), (1.2), a government motion.
Mr Fletcher: I move that subsection 44(1) of the bill be struck out and the following substituted:
"Annual report
"44(1) Each year the Employment Equity Commissioner shall make an annual report to the Minister of Citizenship on the activities and affairs of the commission.
"Same
"(1.1) The report shall include data and information in respect of the progress made towards achieving employment equity in Ontario.
"Tabling of report
"(1.2) The minister shall table the report before the assembly if it is in session or, if not, at the next session."
I think it's self-explanatory.
The Chair: Discussion? Seeing none, all in favour of Mr Fletcher's motion? Opposed? That carries.
Any discussion on section 44? All in favour of section 44, as amended? Opposed? That carries.
Section 45, any discussion on that? Seeing none, all in favour of section 45? Opposed? That carries.
Subsection 46(1). It's a Liberal motion. Mr Murphy.
Mr Murphy: No, that's fine.
The Chair: Number 88.
Mr Murphy: No, that's fine. I'm not moving it.
The Chair: Very well. Sections 46, 47 and 48, PC motion. Mrs Witmer.
Mrs Witmer: I move that the heading before section 46 of the bill in sections 46, 47 and 48 be struck out and -- this was the companion amendment to the transfer of complaint responsibilities to the Ontario Human Rights Commission and we were concerned because the Employment Equity Tribunal is a duplication of effort, but I'm not sure that this is even in order.
The Chair: Mrs Witmer, I was going to propose that if there were parts of the section that you wanted to strike out, that would be all right, but our suggestion is that you vote against --
Mrs Witmer: I think I will just withdraw this motion.
The Chair: Very well. Any discussion on section 46?
Seeing none, all in favour of section 46? Opposed? That carries.
Section 47, discussion? Seeing none, all in favour? Opposed? That carries.
Section 48, discussion? All in favour of section 48? Opposed? That carries.
Subsections 49(3) and (5). Mr Fletcher.
Mr Fletcher: I move that subsections 49(3) and (5) of the bill be amended as follows:
"1. By striking out `or loan' in the second line of subsection (3) and substituting `loan or guarantee.'
"2. By striking out `or loan' in the fourth and fifth lines of subsection (3) and substituting `loan or guarantee.'
"3. By striking out `or loan' in the third line of subsection (5) and substituting `loan or guarantee.'
"4. By striking out `or loan' in the fifth and sixth lines of subsection (5) and substituting `loan or guarantee.'"
This is a series of amendments to contract compliance provisions to ensure that it extends to both loans and loan guarantees. It acknowledges that the government enters into a number of loan guarantee contracts and ensures employment equity principles extend to those contracts under section 49.
Mr Murphy: I'm just trying to figure out how this works. Who would not be covered by the earlier provisions that would be covered by this?
Ms Hewson: If a company, let's say, had received a loan guarantee from the government, if the government agreed to guarantee a loan rather than extending a loan but was a guarantor with a lending institution, then this situation would be covered.
Mr Murphy: No, I understand that, but there are a whole series of employers that this applies to just by virtue of their size and being subject to the jurisdiction of -- I am just wondering, who in addition to that group is covered because of this?
Ms Hewson: There are no additional requirements because of the contract compliance section, section 49. The section applies to those employers who have obligations under the act. In other words, those employers that, because of their size or because of their jurisdiction, are covered by the Ontario Employment Equity Act.
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Mr Murphy: Okay. I'm just trying to run this through now. If, for example, I am a private sector employer that employs fewer than 50 employees, which means I would not be otherwise covered, am I covered as a result of this section?
Ms Hewson: No.
Mr Murphy: And does this act retroactively? I guess that wouldn't apply if they're not covered in any event, because they'd be in at the date of the -- sorry, I answered my own question, so don't worry about that one.
Would it apply to people or employers over whom the province didn't otherwise have jurisdiction except by virtue of the guarantee?
Ms Hewson: No.
Mr Murphy: Why is that?
Ms Hewson: Because the words of subsection 49(1) say that this applies only to the extent that the party has obligations under that part, meaning part III of this act.
The Chair: Anything further?
Ms Akande: I'm afraid I'm unclear on this one, so I'll need some assistance. Tell me, would this be the kind of thing that would affect, say, the ventures program? I'm trying to look for situations where it would not be a loan but where the government would somehow be involved in the guarantee. Please help me.
Ms Beall: I think the first thing you have to look at is the particular entity that's entering into the contract with the government. The first thing you would have to look at is, does that particular entity have obligations under the Employment Equity Act? All this section says is that if you already have obligations under the Employment Equity Act, then as part of your contract with the government, if it's any of these particular types of contracts, it will be a term of the contract that you will agree with the government that you will comply with your existing requirements under the Employment Equity Act.
It doesn't create new requirements under the act; it doesn't bring employers under the act who weren't already there. It just says that if you have obligations under the Employment Equity Act, then any contract you have with the government that falls into the type of grant, contribution, loan or loan guarantee, it will become a term of that contract that you agree that you will comply with your requirements under the Employment Equity Act.
Ms Akande: So then it's quite possible for the government to still enter into contract with those companies that have numbers fewer than would allow them or would focus their being included under the act. Is that correct?
Ms Beall: I'm sorry. Could you say that again?
Ms Akande: It would still be possible for the government to enter into contract with companies that had a number of employees, let's say fewer than 50, without their having to comply with these standards. Am I correct?
Ms Beall: Yes. The mere fact the government enters into the contract with them does not therefore make the legislation apply to them automatically. That's correct.
Ms Akande: I see.
Mr Murphy: Ms Akande's question has raised a couple for me. One is, this would have the effect of incorporating a condition into the contract that they have with the government, so the result would be that the government could, without going to the commission, determine that a company fails to comply with the Employment Equity Act and therefore terminate the arrangement?
Ms Beall: Subsection 49(4) says a finding by the Employment Equity Tribunal that part III has been breached is conclusive proof of a breach of the condition. The act is silent with respect to findings of the breach by the government, just in the contractual mode.
Mr Murphy: That's right; it says that is conclusive evidence. But it's certainly not -- presumably what would happen is the government might decide: "We want to terminate this contractual arrangement. We think you've breached the employment equity part III obligations." We terminate, they sue, and the court could then determine as part of the court case between the contractor and the government whether that compliance has occurred. Am I right?
Ms Beall: It would so appear, yes.
Mr Murphy: Without any Employment Equity Commission review of that, necessarily.
Ms Beall: Yes. There's nothing in the section that would prevent that scenario from unfolding as you've described it.
Ms Akande: Should the government already be under contract with the company at the passing of the employment equity legislation, then this immediately goes -- after it's proclaimed, of course -- into play. Is it possible for companies then to argue that when they entered into contract, this did not exist, so therefore non-compliance would mean that they could win the lawsuit; that they cannot be compelled to comply sort of mid-term, in the middle of a contract? There are going to be a lot of companies that are in that situation.
Ms Beall: I think that would depend on whether you read that section as being retroactive in effect, to affect contracts entered into before the legislation came into effect, which would be a unilateral amendment to a contract which, depending on the particular contract, may not be able to be done. You would have to look at the original contract to find out whether or not the government could unilaterally change the terms of the contract or whether or not it would take consent of both parties to change any term of the contract. It's not a legislative issue. You're now into contract law, and you'd have to look at the particular contracts in order to determine the effect of this section on a contract which existed before this legislation came into existence.
Ms Akande: True, but the contract that existed before, once the legislation is proclaimed -- employment equity applies to some of those companies. If employment equity applies to those companies, then so too do the conditions that are stated in section 49. If that's true --
Mr Murphy: They're in for a shock.
Ms Hewson: They still have a legislative obligation to comply with the statute in any case. The contract compliance section would act more as an additional deterrent for them in terms of compliance, in addition to the actions that may be taken during an audit or as a result of an order of the tribunal. The contractor may also lose the right to continue to be a contractor of the provincial government.
Ms Akande: Then it does have a retrospective effect?
Ms Beall: I agree with what Katherine Hewson said, that those employers who have already entered into contracts with the government, if they fall under the legislation, will be subject to the provisions of the legislation. The fact that they've already got a contract with the government is not in any way determinative of whether or not they fall under the legislation.
The question that I raise, though, is whether or not section 49 necessarily amends the contract, because which would prevail, the legislative law or the contract law? I am unable at this point to give you a definitive answer on that particular question as to which would prevail, the contract law that you cannot change a contract unilaterally or this section. Would it be read to be retrospective? There's no retrospective wording in it.
Ms Akande: But there is the present tense. It does apply.
Mr Sutherland: I was just trying to get the same point clarified. Cancellation of the contract would only come once a breach has been found by the commission, correct? So you have to work your way through that process first, have that presented and then at that point if there was a breach found, you could do it.
I guess, though, picking up on Ms Akande's question, is it to existing contracts? Is it only upon renewal of contracts or new contracts?
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Ms Beall: I believe -- and this is without looking at every contract the government entered into -- most government contracts already stipulate in them that it's a condition of a contract with the government that you comply with the laws of the province of Ontario and that therefore they already have an existing obligation to comply with the laws of Ontario in general. That's a general statement in contracts generally entered into by the government. I cannot say if that is true for every contract this government has entered into as a contracting party, but if there already is that term in the contract, then there already is an obligation to comply with the laws of Ontario.
Again, you'd have to look at the particular contract to determine the effect of this section. In the absence of that information, I'm afraid your questions can't be answered in a definitive way.
Ms Akande: But this is -- I'm sorry, Chair.
The Chair: You might as well, and then we'll get to Mr Murphy afterwards.
Ms Akande: Thank you. Section 49 is a part, or it will be once it's proclaimed, of the laws of Ontario. It seems to me that it becomes clear then that this does kick in. It may be possible -- it will be possible -- that there will be companies that are not in conformance with what is requested here. The contract may be broken.
The Chair: Mr Fletcher, did you want to comment on that?
Mr Fletcher: Just a short comment. What you're saying is a possibility, but contracts are not left out there for that long with the government. They are renewed perhaps every year, every two years. I don't know. Perhaps the deputy minister could answer this one as far as contracts are concerned. Information will be going out to people who hold contracts with the government about the employment equity legislation, that it's coming through the House and what the requirements will be. There will also more than likely be a kicker to each tender or each contract that is signed recognizing the fact that employment equity legislation does govern the contract with the government.
Mr Murphy: I guess my concern is this. You've said it is a possibility without saying how much of a possibility, but that this could apply right away to people who have contracts, loans, guarantees with the government of Ontario, and that their obligations could kick in right away. I think the reason it might is because the time limit on the imposition of the obligations comes in part II, whereas the substantive obligations arise out of part III. The wording of this provision says that you have to comply with part III to the extent that you have obligations under that part.
The question I have then is whether that wording is sufficient to bring in the part II time limit; in other words, whether that will provide employers with an opportunity to say, "Well, I don't have to comply right this minute because to the extent I have obligation, it is attenuated by part II, which says that for the size I am, I don't have to do it until 1996."
Ms Beall: In order to determine your obligations under part III, you look at the act as a whole to determine who it applies to and when it comes into effect for your particular company. Then you look to see what your obligations are under part III. So you don't look at part III in isolation from the application and the timing sections.
Mr Murphy: Can I ask, in the absence of the minister, the parliamentary assistant: I just want it clear that's the policy, that your intention is not to enforce compliance by contractors right away but that the policy is to make sure that people who would fit in under this part conform to the same time frames everyone else has to.
Mr Fletcher: Yes.
The Chair: Seeing no further discussion, all in favour of Mr Fletcher's motion? Opposed? That carries.
All in favour of section 49, as amended? Discussion on section 49?
Mr Sutherland: Yes, I had one section. Sorry, I don't have a copy of the actual amendment here. I've got the bill.
On subsection 49(5), as I read that, it says the breach is sufficient, and the cancellation, and it says, "...refusal to enter into any further contract with or to make any further grant, contribution, loan...to the same person." Does that mean permanently or until they comply with the terms of the legislation?
Ms Beall: It's silent. That would remain up to the government. It merely allows them to use it as a sufficient ground.
Mr Sutherland: Okay. In there you say "person." Should "corporation" be in there, or is that implied?
Ms Beall: The term "person" is defined in the act. It means any entity, whether incorporated or not.
Mr Murphy: Can I ask Mr Sutherland whether he's moving an amendment to that provision to ensure that the very able question he asked is included in the bill?
Mr Sutherland: No, I'm not moving an amendment. I have faith, now that the issue has been brought forward, that someone will respond to it.
Mr Murphy: I thought the response to your question was that it's not clear, that it's up to the government.
Mr Sutherland: I believe someone will respond appropriately in making it clear.
The Chair: All in favour of section 49, as amended? Opposed? This section carries.
Section 50: subsection 50(1).
Mr Fletcher: Can I call a 10-minute recess, please?
The Chair: Very well. This committee will recess for 10 minutes.
The committee recessed from 1707 to 1730.
The Chair: I call this meeting to order. Subsection 50(1): Mr Fletcher.
Mr Sutherland: Did we have any formal vote on section 49 before we adjourned?
The Chair: We have voted.
Mr Sutherland: Okay. I just want to be clear on that.
Mr Fletcher: Subsection 50(1): I move that subsection 50(1) of the bill be struck out and the following substituted:
"Regulations
"(1) The Lieutenant Governor in Council may make regulations,
"1. defining any word or expression used in this act that is not already defined in this act;
"2. governing what constitutes membership in a designated group;
"3. designating subgroups within a designated group;
"4. naming or describing employers in addition to those named in the schedule to the Pay Equity Act as employers in the broader public sector;
"5. excluding employers by name or description from the broader public sector;
"6. prescribing additional bases upon which a person may regularly engage the services of others as an employer for the purpose of this act;
"7. designating persons as employees for the purpose of this act;
"8. setting out and governing circumstances in which any of an employer's obligations under part III change or cease to apply due to a change in the number of employees in the employer's workforce;
"9. governing the application of this act and adapting the requirements of this act to an employer and a bargaining agent, if any, in the case of the purchase, sale, merger or other change in the circumstances of an employer's business;
"10. governing the application of this act and adapting the requirements of this act,
"i. as it applies to the construction industry,
"ii. as it applies in situations where people are hired through union hiring halls,
"iii. as it applies to employers that employ seasonal or term employees,
"iv. as it applies to particular industries or sectors of the economy which in the opinion of the Lieutenant Governor in Council cannot be properly accommodated through the provisions of this act because of unique situations in the industry or sector;
"11. governing employment equity workforce surveys and the collection of other information to determine the extent to which members of the designated groups are employed in an employer's workforce;
"12. requiring employers that have 500 or more employees to collect additional information to determine the extent to which members of subgroups within a designated group are employed in the employer's workforce;
"13. designating classes of employers in the broader public sector and requiring the crown in right of Ontario and every employer in the broader public sector or in a class of employers in the broader public sector to collect additional information to determine the extent to which members of subgroups within a designated group are employed in the crown's workforce or the employer's workforce, as the case may be;
"14. governing reviews of an employer's employment policies and practices;
"15. governing the content of employment equity plans in situations where an employer prepares only one plan and in situations where an employer prepares more than one plan;
"16. governing the development, implementation, review and revision of employment equity plans;
"17. governing certificates to be prepared and filed with the Employment Equity Commission on the development, implementation, review or revision of the employer's employment equity plans;
"18. designating classes of employers in the broader public sector and requiring employers or classes of employers in the broader public sector to file copies of employment equity plans with the commission;
"19. governing the manner in which an employer and a bargaining agent shall jointly carry out responsibilities under part III and governing payment to employees who are selected by a bargaining agent to carry out joint responsibilities;
"20. governing the composition of the coordinating committee and respecting the powers of the committee in carrying out joint responsibilities;
"21. prescribing information that an employer must provide to a bargaining agent and prescribing criteria for the purpose of subsection 14(7);
"22. governing consultation by employers with employees in accordance with section 15 and governing payment to employees for time spent for the purpose of consultation;
"23. governing certificates and other information in respect of this act and employment equity that must be posted in the workplace;
"24. governing information in respect of this act and employment equity that an employer must provide or make available to the employer's employees;
"25. governing the establishment and maintenance of employment equity records in respect of an employer's employees;
"26. governing reports and other information to be submitted to the commission on the composition of an employer's workforce or the development, implementation, review or revision of the employer's employment equity plans;
"27. requiring employers that have 500 or more employees to prepare reports containing information on the extent to which members of subgroups within a designated group are employed in the employer's workforce;
"28. designating classes of employers in the broader public sector and requiring the crown in right of Ontario and every employer in the broader public sector or in a class of employers in the broader public sector to prepare reports containing information on the extent to which members of subgroups within a designated group are employed in the crown's workforce or the employer's workforce, as the case may be;
"29. requiring employers that have 500 or more employees to prepare reports containing information on the extent to which members of the designated groups are employed in each salary group in the employer's workforce;
"30. designating classes of employers in the broader public sector and imposing more stringent requirements on the crown in right of Ontario and employers or classes of employers in the broader public sector with respect to sectors or other information to be submitted to the commission;
"31. prescribing steps that may be taken by the Employment Equity Tribunal under subsection 30(3);
"32. prescribing, for the purpose of subsection 31(3), circumstances in which the tribunal is not required to hold a hearing and determine an application, and governing the procedure for determining whether the circumstances exist."
This amendment replaces the current regulatory powers set out in subsection 50(1) of the act. It contains new regulation-making powers --
Interjection.
Ms Akande: Do you have to read the whole thing over again?
The Chair: Just the offending part.
Mr Murphy: That would be the whole thing over again.
Ms Akande: Start from the beginning again.
Mr Fletcher: In paragraph 30, the fifth line down, the word is "reports."
The Chair: "With respect to reports"?
Mr Fletcher: Yes.
The Chair: Okay, I see. I think Mr Fletcher said "with respect to sectors" as opposed to "reports," the way it reads there.
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Mr Fletcher: Yes, it's supposed to be "reports."
This amendment replaces the current regulatory powers set out in subsection 50(1) of the act.
It contains new regulation-making powers: paragraphs 1; 3; 6; 8; 9; 10, in part; 12; 13; 15, in part; 17; 18; 19, in part; 20; 22, in part; 23, in part; 24; 26, in part; 27; 28; 29, and 30.
It also contains the regulation-making powers already in the bill. The current bill numbers are in parentheses: paragraphs 2 (1); 4 (2); 5 (3); 7 (4); 10 (5, in part); 11 (6); 14 (7); 15 (8, in part); 16 (9); 19 (10, in part); 21 (11); 22 (12, in part); 23 (13, in part); 25 (14); 26 (15, in part); 31 (16), and 32 (17).
This amendment clarifies the regulatory authority which is necessary to ensure the effective implementation of the act, and it makes the regulatory authority consistent with the obligations currently contained in the draft regulations.
The ability to enact regulations is needed in response to the complexity of the employment equity requirements and the diversity of the workplaces in which they must be implemented.
In addition, there are requirements dependent on external sources of data and definitions, primarily from Statistics Canada, which are updated from time to time. Regulation-making authority provides the flexibility to make similar changes to ensure continued consistency with external data sources.
Paragraph 1 has been added to ensure that terms used in the act which are not defined in the act may be defined in the regulations.
Mr Mills: That reminds me of who's on first base.
Mr Fletcher: This will enable the regulations to clarify the meaning and effect of terms used in this act.
This amendment addresses concerns raised by presenters -- labour, business, designated groups, advocates and employment equity professionals -- that terms used in the act be clearly defined, and obligations and standards be as clear and concise as possible.
Paragraph 3 has been added to provide the regulatory authority to define subgroups, such as subgroups for racial minorities or persons with disabilities, and to provide special regulations for those subgroups.
This amendment will enable the commission and the government to monitor the implementation and the effectiveness of employment equity and determine whether additional special measures may be needed for particular groups.
This amendment also addresses concerns of the designated groups, particularly racial minorities, such as the Canadian Council of South Asians, and persons with disabilities, such as the Canadian Hearing Society, that some groups or individuals may not benefit from employment equity unless there are special measures taken to account for their unique circumstances. This is a particular issue for persons with severe disabilities.
Paragraph 6 has been added to provide for regulation-making authority already contemplated in the definitions section. This is a technical addition.
Paragraphs 8 and 9 have been added to account for changes in circumstances which may affect an employer's employment equity obligations, for example, in circumstances such as sales and transfer of a business, or acquisitions and mergers, as well as changes in workforce size such as downsizing.
While not specifically mentioned in the committee hearing, this amendment is necessary because no provision now exists to take into account the effect of corporate restructuring on existing plans.
Paragraph 10 has been amended to include 10(iii), which provides power to pass regulations respecting special rules for dealing with employment equity obligations with respect to term and seasonal employees.
Paragraph 12 has been added to provide for the collection of subgroup data for employers with more than 500 employees. This addition is necessary to allow the government and the commission to monitor the effectiveness of employment equity for different groups, which is consistent with the addition of paragraph 3. The regulation applies only to employers with 500 or more employees, because it creates additional administrative requirements and will be statistically relevant only where there are relatively large numbers of employees in each occupational group.
Paragraph 13 has been added to provide for the collection of subgroup data for the OPS, the Ontario public service, and employers in the broader public sector. This addition is necessary to allow the government and the commission to monitor the effectiveness of employment equity for different groups, which is consistent with the addition of paragraph 3.
Paragraph 15, which is in part the current paragraph 8, has been added to reflect the fact that some employers may actually prepare more than one employment equity plan. This provides for the authority to regulate the circumstances under which more than one plan can be prepared to ensure that such action does not defeat the purposes of employment equity.
This amendment addresses concerns raised by many employers that a requirement to prepare only one plan per employer is rigid and inflexible, and fails to account for the business practices and circumstances of many employers. It also enables the government to address concerns raised by designated group representatives and advocates that an employer not be permitted to lessen its employment equity obligations by preparing more than one plan.
Paragraph 17 has been added to provide for regulations governing the contents of certificates to be filed by employers. It reflects the fact that sections 11 and 13 of the act now require the filing of certificates which have been prepared in accordance with regulations.
Paragraph 18 has been added to create the regulatory authority to require all or certain classes of broader public sector employers to file copies of their employment equity plans with the commission.
This amendment recognizes that the government may require employers in the broader public sector, as publicly funded institutions, to be subjected to a higher standard of scrutiny with respect to its obligations under employment equity legislation.
This amendment addresses in part concerns raised by designated groups and advocates that employers be required to file their employment equity plans with the commission.
Paragraph 19, which is in part the current paragraph 10, has been amended to provide for the payment of bargaining agent representatives selected to carry out joint responsibilities. This amendment is consistent with the payment obligations contained in the draft regulations.
This amendment addresses concerns raised by labour representatives that their members be guaranteed payment for participation, and concerns by employers that standards be set for the payment of participating employees.
Paragraph 20 has been added to ensure that regulations can be passed with respect to the composition and function of the coordinating committee established under subsection 14(3). This is consistent with the structure and powers set out in the current draft regulations, and will provide the workplace parties with a clear understanding of the coordinating committee process.
This amendment addresses concerns raised by business, labour and employment equity professionals that the joint responsibility process be set out as clearly as possible in order to avoid conflicts.
Paragraph 21 has been amended to allow a regulation which sets out additional adverse effects to be considered when protecting an employer's confidential business information. For example, information which could adversely affect an employer's negotiations with other businesses could be protected by this regulation-making power.
Paragraph 22 contains a technical amendment to ensure consistency with the amended section 15. This paragraph now clarifies that regulations with respect to consultations will apply only to non-unionized employees. It also provides for the payment of employees for the time they spend participating in the consultation process.
Paragraph 23, which is in part the previous paragraph 13, has been added to reflect the fact that the legislation now specifically requires certificates to be posted in the workplace. The change ensures that all these matters can be properly regulated.
Paragraph 23 will provide the authority to regulate both the information to be posted and the manner in which the information is to be posted.
Paragraph 24 has been added as a technical amendment to ensure consistency with the amended section 16. This reflects the fact that employers may be required to provide information to employees in a manner other than posting, and regulatory authority is needed to set out the manner in which that information is provided, as well as what information the employer must make available. This amendment addresses many concerns raised by designated groups, group representatives and advocates that employees be provided with sufficient information to enable them to fully participate in the employment equity process.
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Paragraph 26, which is in part the previous paragraph 15, refers only to reports and other information because certificates have been specifically addressed in paragraphs 15 and 21.
Paragraph 27 adds the regulation-making authority to require employers with more than 500 employees to report subgroup information to the commission. This amendment is necessary to implement paragraphs 3 and 11, which are defining subgroups and collecting subgroup data. This will allow the commission to fully monitor the effectiveness of the act on certain groups.
Paragraph 28 adds the regulation-making authority to require the OPS and the BPS employers to report subgroup information to the commission. This amendment is necessary to implement paragraphs 3 and 11. This will allow, again, the commission to fully monitor the effectiveness of the act on certain groups.
Paragraph 29 has been added to require employers with 500 or more employees to report salary information. This amendment is consistent with obligations that are contained in the current draft regulations. This amendment is necessary to ensure that notwithstanding their increased representation in the workplace, designated groups are not being segregated into lower salary ranges in an occupational group. This power provides an additional means through which employment equity can be monitored.
Paragraph 30 provides the authority to pass a regulation subjecting the Ontario public service and all or classes of broader public sector employers to more stringent requirements with respect to preparing and filing reports or other information with the Employment Equity Commission. This amendment recognizes that, as employers funded by public dollars, the Ontario public service and the broader public sector or certain classes of the BPS should be subject to a higher level of scrutiny under the Employment Equity Act. This amendment will allow the government to address the concerns of designated groups, advocates, labour and some employment equity professionals that the implementation of employment equity must be monitored through stringent reporting requirements.
Thank you, Mr Chair, and thank you to the committee.
Mr Mills: Paying attention, Chair?
The Chair: Yes, Mr Mills.
Mr Fletcher: Do I have to read it again, Mr Chair?
Mr Murphy: On a point of order, Mr Chair: It's approaching 6 o'clock and it's clear that we're not going to get the bill done by the end of today's hearings. One of the issues that we've yet to resolve is what's happening after this.
I know there is some expectation of yet another time allocation motion coming from the government House leader to deal with this bill, providing us with some time next Monday within which to complete the balance of the consideration of the bill to be done by, I think, 5 o'clock on Monday, but the details, I'm sure, are still being worked out. But what that raises, then, is what do we do after?
As you know, we've had some discussions in subcommittee without any agreement as to what bills we are going to proceed with subsequently. On deck, as it were, are, I believe, two bills in order of introduction by members of the third party: one on Teranet, I believe, and one, an amendment to the Landlord and Tenant Act, in any event. The third one is my bill on the amendment to the definition of spousal status in the Human Rights Code.
What we obviously haven't been able to agree on is, where next? One of the issues that I was concerned about, as you'll know -- I told you, as I told the Attorney General; the Attorney General had made a promise to introduce legislation of her own --
The Chair: Can I just interrupt?
Mr Murphy: Sure, absolutely.
The Chair: It isn't a point of order.
Mr Murphy: It's really a point of ordering the business.
The Chair: I wanted to allow you to make the statement. I was going to suggest, however, given that we're going to have an organizational meeting after our Monday meeting to discuss where we go from here, and this organizational meeting would involve the entire committee, you would have an opportunity at that time to make whatever statements you would want.
Mr Murphy: I appreciate that. My concern I guess is really a matter of time. It's a little difficult for us on Monday to schedule business for Tuesday. Are we making the assumption we're not doing anything on Tuesday? That's the last sitting day for this committee, if we don't extend the sitting.
The Chair: In the event this motion proceeds tomorrow as it is, if that is the case, we'll end this discussion on Monday.
Mr Murphy: That's correct.
The Chair: Presumably we would have time left over on Monday, or we may, to discuss what else to do. My assumption would be that we would meet as a committee on Tuesday. I'm saying this out loud for everyone to know that we can have that organizational meeting on Tuesday to decide what to do next.
Mr Murphy: The question is, are we going to do something substantive on that Tuesday or not? If we're going to do something substantive on the Tuesday, we need to decide that now, it seems to me, realistically speaking. If we're not going to do something substantive on the Tuesday, then your suggestion to wait to discuss on Monday is fine. I'm just trying to get your guidance as to what the intention is.
The Chair: My sense is that we may not as a committee decide clearly what needs to be done for that particular day. If that were so, we could probably deal with it now, but I'm not sure that people are disposed to deal with that clearly today. I'm assuming that on Tuesday we will be able to give a clearer direction on substance, on what will happen. I'm assuming that will be the case. If we are not prepared at this moment to give clear direction on what you're suggesting, then I'm not sure that we can give any other answer.
Mr Murphy: All right. I'm just trying to get a sense of what we're doing.
Mr Fletcher: When is the subcommittee meeting?
The Chair: The subcommittee has met and there was no clear direction. That is why I proposed that we have an organizational meeting on Tuesday of the whole committee to decide what to do.
Mr Murphy: That's fine. That effectively means we're not doing anything substantive on Tuesday. As long as we understand that, that's fine with me.
The Chair: I'm not sure what it may mean, substantively or not.
Mr Murphy: I just think realistically, given that we're going to discuss on Tuesday what we're doing Tuesday, it's unlikely that we're going to be spending much time -- it's just not fair to any of the members who might have a bill to do anything on Tuesday.
The Chair: Clearly, we won't be able to start anything on Tuesday other than to decide what to do for the following week or weeks or the following intersession.
Mr Murphy: Okay, that's fine. I'm prepared to have that discussion on Tuesday, given the motion we're likely to see.
The Chair: Very well. I'm prepared to move adjournment, given that it's close to 6. I'm assuming there is discussion on this matter. Rather than taking other questions or remarks on this, we'll adjourn this committee.
The committee adjourned at 1758.