Legislative Assembly of Ontario

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

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

CONTENTS

Thursday 9 September 1993

Employment Equity Act, 1993, Bill 79 / Loi de 1993 sur l'équité en matière d'emploi, projet de loi 79

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 Mr Mills

Fawcett, Joan M. (Northumberland L) for Mr Chiarelli

Fletcher, Derek (Guelph ND) for Mr Duignan

Jackson, Cameron (Burlington South/-Sud PC) for Mr Tilson

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

Also taking part / Autres participants et participantes:

Beall, Kathleen, legal counsel, Ministry of Labour

Bromm, Scott, policy analyst, Ministry of Citizenship

Clerk / Greffière: Freedman, Lisa

Clerk pro tem / Greffière par intérim: Bryce, Donna

Staff / Personnel: Joyal, Lisa, legislative counsel

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

THURSDAY 9 SEPTEMBER 1993

The committee met at 1014 in room 151.

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 / 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): We left off at section 5. We'll begin with a government amendment on subsection 5(2).

Mr Derek Fletcher (Guelph): I move that subsection 5(2) of the bill be struck out.

The effect of deleting subsection 5(2) is that it will be moved to subsection 10(3) of the bill. The effect of this is that we can deal with seniority in section 10, which governs the review of the employer's policies and practices. Because subsection 5(2) dealt with whether seniority is deemed to be a barrier, we think it is more appropriately placed in the section dealing with the review process, where barriers are identified. It's pretty straightforward. We're just moving it.

Mr Alvin Curling (Scarborough North): Instead of just moving it, are you going to speak on it? I know there are two aspects to this: one, that you are deleting it out of 5(2), the seniority, and putting it somewhere else in 10. We can either debate it now or maybe it's better off if I leave it.

The Chair: My recommendation, Mr Curling, is that we wait and debate it --

Mr Curling: Until 10. I think that may be a better place to debate it.

The Chair: Any further discussion on that amendment? All in favour? Opposed? That carries.

Subsection 5(3), PC, Ms Witmer.

Mrs Elizabeth Witmer (Waterloo North): We've moved section 5 to section 10. I'm not sure what this does to our motion.

Mr Fletcher: We just moved subsection 5(2).

The Chair: Is yours an addition, Ms Witmer?

Mrs Witmer: No. I'm actually suggesting that subsection 5(2) be struck out, but that's now been moved to section 10.

The Chair: That's right. So again I would suggest that we debate it at that time. So, Ms Witmer, you can propose whatever you wish to at that time.

Section 5.1, Mr Fletcher.

Mr Fletcher: I move that the bill be amended by adding the following section:

"Plan to prevail

"5.1 An employment equity plan that is prepared, established or amended under this act prevails over all relevant collective agreements in the event of any inconsistency and to the extent of that inconsistency."

This amendment provides that if a provision of the employment equity plan conflicts with a collective agreement, the provision of the plan will prevail over the provision of the collective agreement.

The Chair: If we could pause for a moment, I'm getting some assistance on this matter. This would become a new section 6. We should pass section 5, as amended, then we'll move on to this section.

Mr Tim Murphy (St George-St David): On subsection 5(1), one of the things that we heard about in the submissions, particularly from the Catholic school association -- the umbrella organization, Ontario English Catholic Teachers' Association, I think it is -- was the concern about the impact of this on the special characteristic of Catholic schools. I'm wondering whether the provisions of this especially would apply to that, or does this apply directly to the protection of affirmative action programs? Is that what this is geared to?

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Mr Fletcher: I'm going to defer to Mr Bromm.

Mr Scott Bromm: Section 5.1 incorporates all of the special employment sections of the Human Rights Code, so it doesn't apply only to affirmative action programs themselves. So to the extent that the Catholic school board or the Catholic school association falls within the provisions of the code that are set out in this section, then that protection would continue in this legislation. I can't comment directly on the Catholic school board itself, but if they are currently within the provisions of the code, then that would continue in this legislation.

Mr Murphy: Really, it's a point of clarification because they did raise the concern. If the ministry is satisfied that that protection will continue through this provision or perhaps another one, then that's fine with me. I just wanted to see if we could get that assurance for them.

Mr Bromm: If they're protected in the code, then they're protected here.

Mr Cameron Jackson (Burlington South): At the time that deputation was before us, reference was made to legal opinions, and we have asked that the separate school trustees exchange their lawyer's letter with the ministry to satisfy the point that's been raised. Did that letter exchange occur, and do we have that legal opinion, because they had a differing legal opinion and I wanted that reconciled. It won't hold up the bill. I think that was the point, that this committee was seeking to get the two opinions legally reconciled.

Mr Bromm: I can defer to Kathleen, but we don't have the letter. I believe what the letter refers to, though, is the issue they raised with respect to whether or not the tribunal was required to hold a hearing on an appeal under section 24, and if not, whether or not the protection of the SPPA came into play.

Ms Kathleen Beall: On the assumption that that indeed was the question that was asked, because I want to make sure that I don't give an answer to a question that wasn't asked, the SPPA, the Statutory Powers Procedure Act, which is legislation which basically codifies the existing common law in what is required to provide a fair hearing at an administrative tribunal. It says that particular act applies if legislation specifically requires a hearing or if a hearing would be required otherwise at law.

The case law on the issue says that, "In order to determine whether or not a hearing is required," otherwise at law you look to the type of a tribunal, the kinds of issues that are before it, the seriousness of the potential orders that they could be issuing.

The legislation as it is drafted now does not specifically state that a tribunal in an appeal must hold a hearing. It says that one can appeal an order of the Employment Equity Commission to the tribunal and the tribunal can make any order it considers just, including that it may vary the order, may rescind it, may affirm it. One would then rely on the common law to determine, in your type of issue that was before the board, if that would be the kind that would be sufficient to invoke the Statutory Powers Procedure Act. However, whether or not the Statutory Powers Procedure Act is invoked, the rules of natural justice with respect to fairness and an opportunity to have your case heard and have notice about your case would still apply whether or not the Statutory Powers Procedure Act applies, because there still is the protection of fairness in administrative hearings.

The Chair: Okay, we'll get back to section --

Mr Murphy: Sorry. There was that one letter -- although I believe it was actually Mr Jackson's questioning of the group that came before us. They had referred to a second letter which they hadn't shared with us at the time and they had indicated that they would do as Mr Jackson has indicated today, possibly share it with the ministry and talk about their concern about whether or not this impinged upon their constitutional jurisdiction.

Now, I have not seen the letter. I don't know whether I agree with them nor not. I just don't know. I gather from a discussion with staff that you haven't seen that second letter. All I'm looking for is some kind of indication or assurance for them that it is the view of the ministry that this will not impact upon the special character of those schools in an unconstitutional way.

Mr Bromm: Are you referring back to section 5.1 and not to the section Kathleen was discussing?

Mr Murphy: That's correct, yes.

Mr Bromm: We haven't received any subsequent letters from the school board, but, as I said before, as long as they have that protection under 24(1)(a) of the code at the present time, that protection would continue under this section.

The Chair: Back to section 5. Shall section 5 carry as amended? That carries.

Mr Fletcher, 5.1.

Mr Fletcher: I move that the bill be amended by adding the following section:

"Plan to prevail

"5.1 An employment equity plan that is prepared, established or amended under this act prevails over all relevant collective agreements in the event of any inconsistency and to the extent of that inconsistency."

I gave an explanation earlier when I moved it before.

The Chair: Discussion? Seeing none, all in favour? Opposed? That carries.

We'll move on to section 6. PC motion, 6(2).

Mrs Witmer: I move that subsection 6(2) of the bill be amended by striking out "ten" in the third and fifth lines respectively and substituting in each case "fifty."

This is an amendment which responds to requests that were made specifically by the municipal public sector. They had expressed some very grave concerns, I guess about the work involved and whether or not it would even be possible to do employment equity planning in the municipal sector, so they had asked if we would expand the definition of "small employers" in the broader public sector from 10 to 50. That would be consistent with the private sector as well. As I say, this was the smaller municipalities that were making this request that they be treated in the same way as the small private sector employer because they could foresee tremendous difficulties in trying to put together an employment equity plan for 10 employees.

Mr Curling: I would have liked to have supported this. If I understand this, you're amending to strike out "ten" in the third line and you're going to increase this to 50. We feel that most of the people who are employed in that sector will be people in those designated groups, and if you do that, I think what will be happening is that you will not be having a legislation that would include these people in those targeted groups who would be affected by these systemic barriers and we would not be able to deal with that. So my caucus and party will not be supporting this amendment.

The Chair: All in favour? Opposed? Defeated.

Shall section 6 carry? Opposed? That carries.

Section 7.

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Mr Murphy: One point of clarification. It's highly technical, I think, in any event, but section 7 says, "Parts III, IV and V bind the crown," and earlier the longer wording, "crown in right of Ontario" is used. Is there a reason for the different terminology?

Ms Lisa Joyal: There isn't a reason that I'm aware of. When a statute says that it binds the crown, that's usually how it's referred to.

Mr Murphy: Right. Okay.

The Chair: Shall section 7 carry? Opposed? Carried.

Section 8. PC motion.

Mrs Witmer: I move that subsection 8(1) of the bill be struck out and the following substituted:

"Implementation and maintenance of employment equity

"(1) Every employer shall make all reasonable efforts to implement and maintain employment equity by recruiting, employing and promoting employees according to employment equity principles and in accordance with the employer's employment equity plan."

This amendment adds the phrase "shall make all reasonable efforts to." The addition of the reasonable effort standard is simply an attempt to make section 8 consistent with section 12 of the act, which requires employers to "make all reasonable efforts to implement the employment equity plan." It would make the language similar.

The change would require employers to act reasonably, but obviously it would also allow some relief to an employer who, although very sincere in his or her attempt to implement the plan, as a result of circumstances beyond his or her control might not be able to achieve the objectives of the act or its plan.

As I say, this is simply an attempt to make this consistent with section 12 of the act.

Mr Curling: One of the things that we want to be consistent about is that the legislation must be effective, and if people will be making an employment equity plan, it must be able to serve and to be quite defined. While I'm not in total disagreement with this amendment, it puts in doubt who will define "reasonable," and "reasonable" somehow seems to weaken the efforts of this section here. I could ask the PC Party to define to me who will define "reasonable" and what would be reasonable.

Mrs Witmer: As I've indicated, if you take a look at section 12 of the act, the government has already indicated that "every employer shall make all reasonable efforts." So that is already there, and obviously the government needs to determine what is reasonable. We need to discuss that. But I'm simply saying, let's make sure -- we talked about this yesterday -- that the language is consistent in all parts of the legislation. So, simply, this is a request that all reasonable efforts be made.

I guess what we want to make certain as well is that if there are circumstances that are totally beyond a employer's control -- and unfortunately this does happen from time to time -- and they're not able to achieve their objective, there would be the possibility that some relief could be provided. I think we have to be reasonable.

What we're trying to do is, we're trying to encourage the employer community throughout the province of Ontario to really buy into the employment equity proposal. We want cooperation, and certainly I think already we've indicated and we've heard from business people that this is good for business in this province and most of them are quite willing to proceed along the path that has been indicated. But let's make certain that we are fair and that we really are equitable.

The Chair: Mr Curling, you still have the floor.

Mr Curling: Again, I'm not convinced this will assist us in having effective legislation. This will more or less weaken the bill, and the definition of "reasonable" is there in that bill, and that is the complaint we have had with the government legislation, that it is ineffective and therefore producing a rather weak bill. So we won't be supporting this section of the bill.

Mr Murphy: I want to support Mr Curling's comments. The concern I have with this amendment is that really section 8 sets up the obligation on the employer and in a sense the method and the manner by which employment equity should be achieved. In other words, it says you have to apply employment equity principles and you do it by way of the plan, and the standard of that obligation comes from section 12. I'm not sure from a really technical point of view it makes sense to put the reasonable efforts standard in section 8, because it's really describing how we are supposed to do it. The standard comes later.

The irony, of course, of this amendment and the government's own section 12 is that we wasted a fair amount of time yesterday in our amendments to section 2 outlining the employment equity principle, which, ironically enough, reflected almost identically the words that the government has in section 12. In fact I would argue that we set the standard higher by saying it was not only reasonable efforts but to the greatest extent possible. We were imposing a higher obligation on employers than even the government was prepared to do. I hope the government and the parliamentary assistant will listen to those words and see that in fact they were arguing against a position stronger than the one they were taking, despite saying it was weaker. Hopefully, because of that clarification, they'll understand it more clearly now.

But to the actual motion at hand, I do think that this isn't the appropriate place for it. I think the standard is outlined in section 12, so we won't be supporting it.

Ms Zanana L. Akande (St Andrew-St Patrick): I really feel that an additional qualification at this time isn't necessary, at least in this particular part. It's interesting that you raised, though, about reasonable efforts, because it was a concern of mine and I just want to share with you some of the information that we've been given. Perhaps with your legal background it'll be another vantage point from which we can discuss it.

One of the things that concerned me was that "reasonable efforts" sounded and seemed quite vague and I would have preferred "demonstrated progress" or other words that spoke more actively or more substantially, at least in my interpretation, to what was been effected. But I am told that "reasonable efforts" is in fact a term which has some tradition in law and is actually much more definitive than "demonstrated progress," because what is reasonable to one person, as we say, may not be reasonable to another but to a tribunal will be looked at in light of some definite progress.

I give you the explanation that was given to me, not implying that I completely understand it or support it, but trusting that at least it is truthful. I'd be interested in your response or your discussion of that.

The Chair: All in favour? Opposed? Defeated.

Subsection 8(4), PC amendment.

Mrs Witmer: I move that section 8 of the bill be amended by adding the following subsection:

"Employer not required to terminate employees

"(4) No employer is required to demote or terminate any of the employer's employees who are not members of a designated group in order to achieve employment equity."

This is simply an amendment which would make the legislation clear. I've heard the minister say and I've heard the government say that this certainly isn't going to penalize anyone presently employed, that there will not be favourable treatment and preferential treatment for the designated groups as a result of someone else being demoted or released. It simply makes it clear that the employer is not required to achieve employment equity by terminating or demoting existing employees who are not members of the designated groups.

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I guess that hit home with me this morning. I received a call from a gentlemen who works for the government. He indicated to me that last year when OPS was doing some hiring and doing some recruiting and there were competitions taking place, those competitions were only open to the designated group members. Certainly that individual has also shared some flyers with me indicating that there is a concern out there, I need to tell you, that as a result of employment equity people might be demoted or might be terminated in order that the numerical goals, which are sometimes interpreted as quotas, will be achieved.

I think we need to lay to rest that fear. What we want to have in this province is everyone really determining that employment equity is essential. We need to have equal opportunity for all individuals. So simply, this is a statement which the government itself has indicated will not happen. No one will lose their job or be demoted in order that employment equity can be achieved within the workplace.

Mr Fletcher: I find myself not being able to support this amendment, only because it appears to come at the legislation from a negative perspective that inherent in the legislation is the fact that people are going to be terminated or demoted in order to achieve employment equity. The purposes of the act are to create a level playing field so that people who are seeking employment, seeking advancement, are being treated as equally as anyone else in the workplace.

That's basically the crux of employment equity. It's to make sure that there is a level playing field. This amendment, from what I can see, is an attempt, personally I think, to weaken what's already there as far as the protection of people in the designated groups and people in general who work in the workplace are concerned.

Mr Curling: I had hoped the parliamentary assistant would have waited until some comments had been made on this before he'd quickly come out of the stable and say he's voting against it. I don't find this negative one bit. I don't agree with Mrs Witmer's saying that someone would either be demoted or dehired in this process. If it is so, it would be unfortunate, but I don't think so.

In the meantime, I think it is consistent with what employment equity is all about, that no one should lose out with this. Employment equity is about all people, not about the four designated groups. It's about all people being treated fairly, and that's why the emphasis on merit. The idea is to identify systemic barriers, remove those barriers and allow these people to perform because they do have the ability.

I support this very, very strongly and I think the government should be urged to support this. I think it speaks for itself that no one should be penalized because they want to get someone else when he or she has gotten the job fairly, or that we have to dehire or demote someone in order to get our numbers in place. I don't think that's the objective of employment equity. It is a matter of moving those systemic barriers and allowing people to have access to these jobs. So I strongly support this amendment and I hope you see it this way. I don't think it's a negative amendment.

Ms Jenny Carter (Peterborough): I find this a very strange motion. It reminds me of a story that we used to tell about the mother who was going to leave her child alone. She said, "Now, you be a good girl and make sure the doors are locked and don't let any strangers in and don't put pebbles up your nose." The kid thought, "Well, I hadn't thought of that, but maybe it's worth a try. Why would mother suggest that?"

I think this is a bit like that. There's nothing in this bill to have suggested that people might be demoted or terminated in order to make room. I know it's being raised in the press, but then the press can raise anything it likes. This is just a total red herring. By actually using the words "no employer is required," it almost looks as though some of them might have thought that they were, or that this is something we might have considered as being a good idea at some point, which just isn't the case.

This weakens the bill. It creates a fear that otherwise probably wouldn't have been there by raising this whole issue. Anyhow, we do have laws against wrongful dismissal which we don't need to extend right here, so I shall certainly oppose this motion.

Mr Jackson: I don't believe what I'm hearing. To have a socialist speak against essentially what amounts to a job protection clause is mind-boggling.

I accept Ms Carter's -- whatever field she's coming from. I don't think she has much of a labour background. By leaving this open in the legislation, I can see employers wanting to get rid of troublemaking, white Anglo-Saxon Protestant male union organizers. This is great. Let them get tied up in the judiciary. "We're going to demote you or fire you while we hire someone from the target group. Now you take us to court and you hold this whole thing up. We won't have to demote the union organizer, but he'll be busy going through a whole series of appeals and so on. Meanwhile, we won't be hiring the person from the target group. We will have complied with our employment equity plan, but somebody's grieved."

I can't believe that the socialists haven't heard this. Where did this idea come from? It didn't come from employers. It comes from workers in this province who are worried about it. Where have you guys lost your origins, your roots? Don't you remember who elected you to come up here to Queen's Park?

It is very clear that this should be stated in the law. If not, the regulations will be permissive, open-ended and could allow for this. An overzealous bureaucrat assisting in the writing of these regulations -- Mr Fletcher talks about looking for a level playing field. Basically, after his comments, I think he's playing without a helmet.

We'd like a recorded vote on this.

Ms Akande: I must admit that I am concerned about the implications of our responding in legislation to someone's selective interpretation of a bill.

Having been, and as Mr Jackson has, for a long time in a profession where we taught reading comprehension, it does not surprise me that there are people who read into things, who omit understanding things, who in fact apply things in an illegal way and in an erroneous way. As Ms Carter has pointed out, we do have labour laws, and in fact in this very legislation it does talk about seniority and other causes.

I have to tell you that I really am concerned about having to put this in this legislation. It always surprises me when the powerless have to spend most of their time appeasing the powerful that they're not going to be wrongfully harmed. We have no intentions of supporting any employer who would do such a thing, and we have labour laws which have preceded employment equity to protect that anyone would. I see no reason to support this.

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Mrs Witmer: Just one final comment. I will indicate to you that the reason the amendment is here is because of concerns that have been expressed by the employee community. It's not the employer community, I can assure you. As a result, I guess, of the hearings, I've received numerous phone calls, and I told you about the one from the OPS individual. I guess that individual was feeling, because the competition was not available to him for certain promotions, that already employment equity was offering differential treatment to different people. I guess the fear out there is that if, already, individuals are being prevented from competing for promotions, they really do believe very strongly that the next step that's going to happen if employers are required to meet the objectives of an employment equity plan is that there will be demotions and there will be terminations.

I think if you take a look at what's happening in the civil service, if you take a look at where some of those pink slips have been going, I'll tell you, a lot of them have been going to white males.

Ms Akande: Many more have been going to visible minorities.

Mr Curling: That's right.

Mrs Witmer: We have to be careful. Nobody wants to be terminated.

Mr Murphy: I want to speak in favour of this motion. I think the objective that it attempts to articulate is one, frankly, that I've heard the minister articulate, the parliamentary assistant and members of this committee in the course of the public hearings, that it is not the intent of this bill to have any existing employees demoted or fired in order to achieve employment equity. I think we all agree with that as to how this bill is intended to operate.

It strikes me that this is just attempting to put that idea, that principle, with which we all agree, into the legislation. It seems to make sense to me. The only slight change I might make is I would broaden it in the sense that I would say that you not demote or terminate any employee. That's the only change I might recommend, so that it's clear that anybody who has a job should be maintained in the position they have. That's the only suggestion I might make.

Let me say to the parliamentary assistant that in fact his comment that he thought this amendment might weaken the bill could lead to the very fears this is trying to address. By saying this weakens the bill, he's implying that the potential for doing exactly this, demoting or firing someone to achieve employment equity, is in the provisions of the bill. So I find his argument odd, at the very least.

I'm frankly not sure what to make of the "pebbles up your nose" analogy, but perhaps I'll leave that.

Interjection.

Mr Murphy: Yes. Perhaps Mrs Carter spent too long on the three-legged stool; I don't know.

Part of the purpose, I think, of the amendments that both, frankly, the third party and our caucus made to the preamble was to create an environment where we could sell this bill, we could sell what we're trying to do, where we're trying to say to the white Anglo-Saxon male worker out there: "Look, this is not about targeting you. This is about helping others and helping all of us."

To Mrs Carter, who said you're creating a fear that's not there, well, go out and talk to people. This does direct itself at a fear that I think is really there, that we have to be cognizant of and attempt to assuage in order to make sure people don't have a backlash to this bill. I think it's something we want to achieve.

Easing the passage and easing the implementation is something we should all work towards, and I think something like this is part of how that can be done. Subject to my one comment about broadening its application to all employees, I think it's a worthwhile amendment.

The Chair: Mr Murphy, you haven't moved an amendment, so I'll assume we are ready for the vote on the original amendment.

Mrs Witmer: A recorded vote.

Ayes

Curling, Fawcett, Jackson, Murphy, Witmer.

Nays

Akande, Carter, Fletcher, Harrington, Malkowski, Winninger.

The Chair: The motion is defeated.

Government motion: Mr Fletcher on section 8 still.

Mr Fletcher: I move that section 8 of the bill be struck out and the following substituted:

"Implementation and maintenance of employment equity

"8(1) Every employer shall implement and maintain employment equity by recruiting, hiring, retraining, treating and promoting employees according to employment equity principles and in accordance with the employment equity plan that applies in respect of those employees.

"Role of supervisors etc

"(2) Every employer shall ensure that the employer's staff who have responsibility for recruiting, hiring, supervising, evaluating or promoting employees are aware of, and observe, the requirements of this act, the regulations and the employment equity plan that applies in respect of those employees.

"Same

"(3) Every member of staff who has responsibility for recruiting, hiring, supervising, evaluating or promoting employees shall work in accordance with this act, the regulations and the employment equity plan that applies in respect of those employees."

This amendment replaces the current section 8, to clarify that the implementation and the maintenance of the employment equity plan must apply to all levels of employment.

This amendment also addresses concerns raised by many presenters, the designated groups, labour, employers, advocates and employment equity professionals that consistent language should be used throughout the bill.

Mr Curling: It's the same thing we're saying again, how unprepared this government is, that this legislation has been just botched up, every time we get another thing saying "replacement to the bill."

At one stage, my colleague here raised the point about "treat" when he saw it, raised the rafters in this government. They hustled through every portion of the legislation and decided to insert "treat," "treatment," "treating," and it's still there, an inadequate replacement. In the first paragraph, subsection 8(1), they inserted quickly, "retaining" and "treating," but again -- he spoke about consistency -- no "treating" is in the second part, no "retaining" in the second part, no "treating" in the third part, no "retaining" in the third part.

When are you going to get your act together so we can have a proper bill, so we know what we're dealing with? Must I point out to you now that you should put -- I shouldn't be doing this. I don't want to move an amendment to something I don't believe in. Are you consistent here? Are you putting "retaining" and "treating" in here now or are you leaving them out? We haven't got a proper definition of "treat," "treatment" or "treating" yet and you want us to support this and have strong legislation.

When we have strong amendments put forward to make the legislation effective, you put it down and say it's negative and talk about pebbles up the nose and things like that. We don't understand what's going on here. Why don't you get your act together, take some time off, so we can make this legislation proper, effective legislation.

Mr Murphy: The real treat comes in section 10. I think, in fact, my colleague has said it as well as can be said. Again, we see a certain inconsistency. My interpretation of the way this amendment is worded now would suggest to me that the word "treating" means supervising and evaluating, although that doesn't make obvious sense on one level, but by having it in one and not in the other and using different words in subsection (2) and subsection (3) would imply that "treating" equals the new words. I don't think that's probably the case, it just again reflects a bit of a hurried drafting, making up your mind in smoke-filled back rooms late at night about what's going to be changed and what's going to be filled in.

I think the real treat, if I can, will come in section 10, when seniority rights are going to be put back into this bill. That's the real "treating" for the union friends of the government, but we'll come to that.

Mr Fletcher: If we look at subsection 8(1), "Every employer shall implement and maintain employment equity by recruiting, hiring, retaining, treating..." that is the employer who is offering the job; that is the owner, the CEO, whoever the person is who is doing the job. Supervisors and supervisory staff are covered by that subsection 8(1) and they also have the additional supervisory functions to perform. They are going to be covered by the act itself and then they have specific duties to carry out as supervisors. Supervisors are not the people who have to retain, or anything else as far as employment equity is concerned.

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Mr Jackson: Could I ask a question. When I checked the definition section at the beginning, "employer" makes no reference to designation or eligibility; it only describes an employer. This clause says absolutely every employer shall implement the plan. My question would be, why are we not saying "every designated employer" or "every eligible employer"? According to this, every employer in Ontario has to abide by these rules. I'd sure like to know how that doesn't reconcile with the definition section.

Ms Beall: Perhaps I can assist. In a piece of legislation, the first thing you look to is the definition. Following that, you look to the application. It's in the application section of the legislation that it identifies to which employers this legislation applies. By looking at the definition of "employer" in the legislation and the application, an employer determines whether or not the legislation applies to them. If it does apply to them, then the provisions of section 8, "every employer," pertain to them. If the legislation doesn't apply to them, then the term "every employer" means every employer to whom this legislation applies.

Mr Jackson: Normally, there would be a further clarification in the definition section. The reference to designation, in my view, would've made it a lot more clear. I understand what you're saying and I've seen legislation done that way, but my worry is that this, on the face of it, states that. I know a lawyer will check another section, but we are going to get difficulties with numbers and I'd rather be arbitrating the numbers than arbitrating the language of this bill. I don't think it's sufficiently clear and I don't see why we don't say "every designated employer."

The Chair: I think the answer would be the same, correct?

Mrs Witmer: I think there's another example here of the attempt the government has made to rush this bill through after three weeks of public hearings. We see inconsistency each day. I think again this is proof that it's going to be a legal nightmare for any employer to implement and for employees to determine what their rights are under the legislation. I'm very concerned. I'm not sure why it was so necessary to deal with the amendments this week.

If the government really was concerned in having an effective bill that was going to be applied fairly and equally to all people in the province, I wish it had taken the time, because each day we are seeing areas that can be misinterpreted, that are going to be misunderstood, and certainly I think it's unfortunate. Why the haste? Why not do it right the first time? It's a very frustrating experience for us on this committee, but I'll tell you, for employees who have high expectations about this legislation, and for employers who are going to have to implement it, it is going to be a legal nightmare and a consultant's dream, because people are going to require a tremendous amount of assistance in the interpretation of this legislation.

I find it interesting that both the government and the Liberal Party want to be so consistent and yet in section 8, when I suggested that we would use the term "reasonable efforts" in order to be consistent with section 12, it was said that wasn't necessary. It seems to depend on your interpretation. Whatever you please, you do, and whatever you don't please, you don't do. There doesn't seem to be a very adequate rationale. It's really just on a whim.

As I say again, I regret the fact that we're rushing through this legislation because I think there are going to be very serious problems in the implementation.

Mr Fletcher: As far as the rushing through, I don't think we've been rushing through. We've gone a long time without any legislation as far as employment equity is concerned. The consultation process: The minister has been consulting with people for years. There have been previous consultations through the previous government and finally, we have to come to some legislation.

Again, the consistency: I believe if you look at the words that were added into our amendment, they were added primarily because of Mr Murphy's astute observation yesterday, even though he doesn't know what a three-legged stool is for. These additions to the amendment are because of the cooperation we did have with the opposition parties in recognizing that, yes, they had a valid point, and we're willing to work with the opposition parties.

As far as what we're doing with the legislation, Mrs Witmer just the amendment before attempted to weaken the legislation by extending how far it would have to go by raising the limit to 50 employees. We can argue back and forth about who has the biggest stick and everything else, but I think the main objective is to move into the legislation and try to get this legislation through, because it is a good piece of legislation that is based on what we heard in the consultation process and through the committee.

Mr Murphy: I just want to say very briefly that while I appreciate the allocation of responsibility for this by the parliamentary assistant, I'm not willing to take the blame for it. I had quite a different solution than the government has proposed. I do thank him for the compliment for being astute. I guess with enemies like that, who needs friends? So thank you.

The Chair: All in favour of Mr Fletcher's amendment? Opposed? The amendment carries.

All in favour of section 8 as amended? Opposed? That carries.

Section 9: subsection 9(3), a Liberal amendment.

Mr Curling: I move that section 9 of the bill be amended by adding the following subsection:

"9(3) The survey shall be drafted to be as consistent as reasonably possible with surveys conducted by Statistics Canada for the census."

In speaking to that part, considering that the purpose of the legislation is to have the workforce reflect the larger community, what the amendment is doing is to make sure that the Canada census and the survey within the workforce are consistent. It is the same case that we had drawn yesterday, the inconsistency that would have happened with the farmers, as my colleague Ms Fawcett raised quite appropriately yesterday, stating that the workers who have come in from outside of Ontario, who are not a part of the survey, the Statistics Canada census, would skew, really, the workforce statistics because they are not taken from those statistics within the Ontario workforce.

This itself is trying to make it consistent. What we are talking about is the survey done on the outside, that the drafting of the people in the workforce is reflected inside the workplace. Of course, I'm quite sure the government will support that when they talk about consistency and making the bill more relevant.

Mr Murphy: During the public hearings, we heard from groups, employers, people representing unions, employees who are not in unions and others that, with respect to the survey, one of the important factors that made sure a lot of employees completed the survey and therefore increased the representativeness was that you had everyone fill it out, that you had a category for others than the designated groups.

Part of the purpose of this amendment is to have a survey that everyone can be part of, so there is a category for the white male to check off as well. As well, it's meant to reflect the questions and some of the comments we've heard in the public hearings, that the phraseology of the surveys and the regulations was a little difficult asking about whether you were female, that it had better just have a male or female category and people can tick off. As well, as Mr Curling said, the purpose is to make sure that we have a set of information inside the workforce that is the same basic information as you're collecting in Statistics Canada so that you can compare apples to apples. So I hope the government will support this amendment.

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Mr Jackson: Maybe I'm missing something here. To understand this: Are we saying that if you've got a migrant worker who's here, who's a member of the designated group, if you have an illegal immigrant who's here working, these people will not be counted if we use this recommendation? I mean, maybe I'm missing something. It seems patently unfair that someone can be here working and not be counted as a member of the designated group. I'm just trying to understand what the effect of this recommendation is, that it only deals with naturalized Canadians who come out of these Statscan statistics.

Mr Curling was mentioning that it has the effect of inappropriately counting too many people. Maybe I've missed something here and I'd like it explained. I apologized I wasn't here today when this came up but I don't think this fine a point was put on it. But before I can support it, I want to make sure that aspects of migratory workers or illegal immigrants who find employment in this country are not being counted so it has the net effect of even compounding the situation. I'd like that explained to me, please.

Mr Curling: I presume there are two parts to this question. I don't think Statistics Canada counts illegal immigrants, because if they're illegal they don't know where they are or how they got in. I don't think that's a part of the Statistics Canada survey, to begin with.

Mr Jackson: I know that. That's what I said.

Mr Curling: That's it. When we talked about migrant workers, and we were talking about farmers yesterday, there are people who are legitimate, who have been recruited outside of the country to come and work on farms. They are mostly -- and I could be wrong on this one -- people from the West Indies, Barbados and Jamaica in particular, and then I think some Mexicans are here. I'm not quite sure if they are. Within that workforce, they are performing duties, and this legislation is asking farmers to make that survey and make them a part of the employment equity plan.

Canada did not count them as a part of the statistics outside, that they are part of the Canadian workforce outside there. It would be inconsistent, as I said, if you count those people within the workforce and you're trying to get an employment equity plan, as I understand it, that targets in on those four designated groups. It will skew the results, because you're supposed to be tapping from the workforce within Ontario and trying to reflect that workforce with those personnel within the workforce, within the employer, and this is not so.

We were asking yesterday that farmers be exempted from that because of how they recruit. Those countries that are sending those workers are not in any way consistent to the employment equity plan. They don't have to adhere to the employment equity plan. They are not out there recruiting in Jamaica and Barbados, making sure that women, disabled and minorities come. They are just sending able-bodied and most of the time men, and most of the time they are black men who are coming.

Ms Akande: Maybe they are not able-bodied.

Mr Curling: They will be able-bodied. They're quite able-bodied, I tell you. That's what they're checked for. Therefore, it would be inconsistent or it would really skew the results of what one is intended to get with the employment equity plan in place.

Mr Jackson: I appreciate Mr Curling's explanation, but perhaps legal counsel could enhance my understanding of the effect of this amendment in terms of how it would influence the actual survey results. If you're being guided by a document, then how does that impact? I thought it was done by geographical comparisons and so on and so forth. Now we're to follow Statscan census information.

Ms Beall: I'm at a bit of a disadvantage because, not knowing what was the intention behind the wording obviously of the party that moved it, I'm unable to give any legal opinion at all as to what it would mean or what it would do without knowing and having full understanding of the intention behind, which of course is not for me to ask.

Mr Jackson: Forgive me. Is it the government's intention to pass this motion? Because if it isn't -- and they control this committee -- then we can drop the issue. But if the government is supporting it, could it share with me why it's supporting it?

Ms Akande: I have a question for clarification in the same area as Mr Jackson's question. If in fact you're focusing on workers who are brought specifically for that time of year to perform that task and then go back, if you're using that specific group in relation to the farming population -- and I don't know that you are, so I am asking -- why not word the motion in a way that addresses that specific group? But if it's a more general description, then would you please specify who it is you're trying to -- I thought you were trying to work around the same group that Ms Fawcett was discussing yesterday. Please explain what this means.

Mr Curling: Just a quick explanation and then I'll ask Mr Murphy to expand. It is not drafted in regard to the farmers, but I use that as an example. It's broader. Your comment is well taken.

Mr Murphy: No, the intention is not to focus on that problem specifically. Really, what it's intended to do, as I think I was trying to outline in my comments, is to make sure that the information you requested employers to gather about their workforce was as closely done as possible to the information that Statistics Canada gathers, which you used as your comparator information.

In other words, the commission will have information that it gathers and that comes directly from the census information. All we're trying to do is say that when you ask your employer to get information, the survey should reflect the categories and kinds of questions that are asked in the Statistics Canada survey, so that you can basically compare apples with apples and oranges with oranges. It's a much more general principle.

As well, part of the rationale, I think I was saying, was that we also want a survey that everyone can fill out, so that you have, "Are you male or female?" You can check one of those. Not just, "Are you a member of the designated group?" but also other, broader categories so that you increase the participation rate.

I think we heard evidence in our public hearings that the participation rate by employees in completing workplace surveys was vastly increased when everyone could fill out a box. In fact I think we heard evidence that designated groups in some cases, if you focused exclusively on them, were really concerned about filling it out, because they thought it was targeting them in a negative way. So the intention of this amendment is to have the survey as inclusive as possible to reflect the information that you're gathering to use as a comparison. Hopefully, that helps answer the question.

Mr Fletcher: When we look at the amendment as far as Statscan, every now and then Statscan changes its questions and the structure of its survey. If the definitions are in the bill, employers could be in a real bind if Statscan does change its survey questions.

Mr Murphy: That's why it said "as reasonably as possible."

Mr Fletcher: I know, but that's vague. That's very vague, "as reasonably as possible."

Mr Murphy: You use "reasonable." It's vague here but not vague there.

Mr Fletcher: That's right. In some places it's very vague, and this is one place where it's very vague.

Interjection.

Mr Fletcher: That's right. You have to realize that.

Mr Murphy: If you're going to vote against it, give a good reason.

Mr Fletcher: That is the reason, because it doesn't skew anything and as far as the Statscan questions that change, it could change the intent of everything else. I would like Mr Bromm to also get in on this with some explanation.

Mr Murphy: Because I can't yell at him.

Mr Bromm: I can maybe just clarify a little. One of the difficulties with this would be that when Statscan does the census, it uses a number of different indicators to find out information about residents and households. For example, their definition of "racial minority" and their definition of "persons with disabilities" are much broader than the definitions that are used for employment equity purposes. What happens is, after the census, then data are compiled for specific purposes that are then used. Data are compiled for labour market purposes and data are compiled for employment equity purposes, which is then fed into the employment equity branch for the federal government.

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It would be very difficult to make questions on a survey similar or even reasonably similar to questions in a census because the definitions are much more broad. What happens after the census is that information is compiled in more restrictive terms, depending on how that information is used. The information for employment equity purposes then gets fed into the employment equity branch.

Mr Jackson: I think I'm getting closer to what my concern might be. If the Statistics Canada survey doesn't interview illegal immigrants who are employed in Ontario and it's guided by that, then it would skew this legislation and I don't think that's fair. We have a generous immigration policy in this country. When a person arrives here and is welcomed by the Canadian people, then this law will apply. We do have thousands of people who have arrived here and refused to go home. The fact is that they are seeking and obtaining employment in this province. Their numbers should be counted.

I don't want to put a value on whose responsibility it is that they have jobs and whether they should or shouldn't have them. We know what's going on. But I don't in any way condone or support not counting these people if in fact they're taking jobs away from other Ontario citizens.

I couldn't support the amendment on that basis and I think it's a legitimate fear and concern about just how we're changing our workforce and our workplace situations. Immigrants who have arrived here properly should not be discriminated against, but I don't think people should be here illegally and allowed to discriminate against other Ontario workers. I won't support this amendment either.

Mr David Winninger (London South): I can to some extent understand Mr Murphy's concern that the survey methodology conducted by employers dovetail to the greatest extent possible with Statistics Canada data that it's going to be measured against. I can also understand Mr Bromm's commentary that the criteria that Statscan uses may not be appropriate for employers to use.

In any event, whatever the answer to that question is, I think this is an extremely technical amendment and it's appropriate more for input into the draft regulation than to be included in the act. For all I know, the federal government may decide a month from now to change the name of Statistics Canada. Do we want that embedded in legislation? We know how long it takes to amend legislation. I would suggest that that would be more appropriate for input into the draft regulation; therefore I won't be supporting it.

Mr Murphy: I appreciate all the helpful comments. I do want to say to my friend Mr Jackson that I don't think, frankly, that the intent is to exclude people who are employees. There are other sections which make it fairly clear that every employee is to get a copy and is to have the right to fill it out or not fill it out. I think I've indicated already the objective in doing this. I hope the government's listening and then, when it gets around to drafting the surveys, that it get its commission to draft the surveys to reflect those principles.

I don't need to say much more. It's going to be defeated but I hope it listens to what we heard in the public hearings part and that we have a survey that all employees can fill out, that all employees can participate in, and that we have information that we can compare between the workplace and the broader community.

The Chair: All in favour of Mr Curling's amendment? Opposed? That is defeated.

Shall section 9 carry? That carries.

Section 10.

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 the 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 the seniority rights discriminate against members of a designated group in a manner that is contrary to the Human Rights Code."

This amendment replaces the current section 10. First, it divides the current section into four subsections making the obligations clearer to read and to understand. This amended structure addresses concerns that were raised by many presenters that obligations set out in the act be as clear and as concise as possible.

Second, subsections (2), (3) and (4) add specific reference to recruitment and treatment as an area which must be specifically addressed in the employer's review of its policies.

Third, subsection 10(3) incorporates the current subsection 5(2) into section 10, and this section provides that seniority provisions with respect to layoff and recall are deemed not to be barriers to the recruitment, hiring or retention. This section has also been moved to section 10 because it is not an interpretation issue but part of the review process where barriers are identified.

Finally, in subsection 10(4), this is a new provision to deal with seniority rights not related to layoff or recall, and this subsection recognizes the need to determine whether seniority rights operate as a barrier to the recruitment, hiring, promotion and treatment of designated groups that are contrary to the Human Rights Code. It also obligates the workplace parties to review their collective agreement or established employment practice seniority provisions to ensure that they do not act as barriers to designated groups.

Mr Curling: I know that you had moved it out of section 5 to section 10, and we know also during the hearings many people have raised the issue about seniority rights.

I think to begin with, I want you to understand I know where you're coming from and I know how this is very dear to the heart of the NDP, these seniority rights. As a matter of fact, it is almost sacred to the unions, that after struggles for years and years for this part of the collective bargaining agreement, and they got the seniority rights in place, after those battles, now comes legislation that will challenge that. To them, they would feel of course it was a hard battle that had been fought and now here is a law that will tear this down after years of struggle.

I want to say to you, I understand that, and I'd like the government to come clean on the fact and say, "Yes, seniority somehow could conflict with the principles of employment equity." And it does. Because standing by itself, it does. As I said, I knew that when we were fighting to have merit as a part of the principle, in the preamble, the struggle that you put up, eventually you limpingly slid people of merit inside the preamble, because what we're saying to you is that there are many, many barriers that people who are designated -- those four groups that are designated -- are faced with in order to have access to the workplace. Furthermore, not only to the workplace, but also to education and training and even just transportation, those barriers, and we have to deal with that.

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Another barrier that they have found in the workplace is that seniority right. It is logical that the fact is that the workplace and the way they were employing was not based on merit; it was based on other things. The fact is, if we were to have people promoted and trained through those processes, that if there are other people who were there before them who had come to the workplace long before through other means, they did not reflect -- we have just heard that admission. You admit that in the preamble, that those four designated groups are not being treated fairly within the workplace.

Now we have the seniority. Those who have seniority have now said, "We are sacred." I want to say to you, I understand that. Come clean with us and say, "It's a difficult thing to deal with and we have to deal with that." Having said that, then we say, "We'll have to then make laws in order to protect, in some respects, in that way." You weaselly put in there, "as long as it does not conflict with the Human Rights Code."

Now, let me deal with that aspect of it. There are debates on and on that the Human Rights Code does not effectively deal with systemic discrimination. Seniority is, in some respects, in conflict with employment equity, and it's a matter of systemic discrimination and how it is used. People have come before us and stated that even when there are minorities in the seniority, they don't even use seniority to promote them. They said it right there. They said it and you listened carefully. I asked a question and they said, "Yes, there are blacks and there are visible minorities who have seniority but do not get promoted."

Here we are having the protection of this sacred cow of seniority and saying, "It must not be deemed as a barrier to recruitment and hiring." Furthermore, we identified in one respect that seniority is that, and then say it is no argument now because we're going to make a law to say, "We should not deem it as a barrier for recruiting, hiring," yet people come before us and say "Seniority has blocked us from being promoted." The unions have said, "We have had this to protect us from employers who use it to fire people and people have contributed so long to their institution."

Now, we know that technology has walked in, in some respects, and challenged people's ability. Some people have to be trained properly; some people are selected to be trained. They are trained in a way because of who, within the system, should be selected.

Now, the employer needs to be competitive in this highly technological era, in this global technology and this global competitive force. The fact is that someone who is there 20 years and has done a lot, of course, has contributed greatly to their employer and to their institution in which they work, now has to say: "I've been here 20 years, and the other person who is more qualified than I am cannot move up. All I have is my seniority of 20 years, and therefore, any promotion, it's me because I'm here longer. Not on merit, not on ability, but because I'm here longer." I'm telling you, while I accept the fact of the struggle of the unions who have fought for this to have that seniority, now you come in with a law, come in with this kind of token stuff to say: "Listen, we want fair, effective employment equity legislation. However, seniority is sacred and it must not be seen as a barrier." It conflicts with the principles of employment equity.

If you said that, I would be able to deal with it and say, "Recognizing all of that, let's move on with it." But you don't want to accept that. What you did, you came back in, and of course the unions heard all the presentations, they got you in a corner and they said: "Listen, don't you dare touch the seniority stuff. We have fought for it for years. Make sure that it is enshrined in this legislation." If you compare what you had in the legislation and when you compare what you have the amendments to be, it is much stronger.

Admit then that you want to perfect that. Admit that it conflicts with employment equity principles, and let us then go on with dealing with the other things. But don't sneak it in like this. Don't do it like that, because it will, as a matter of fact, make the whole employment equity a laughingstock, that some people are protected because they have this power and others who are left out there will not be protected. I just want to make those comments and say that seniority does place those conflicting principles in regard to employment equity.

Mr Fletcher: You asked me questions and I'd like to respond to them. As far as what you're saying about seniority, Mr Curling, yes, I realize it's sacred to the union movement and that, yes, it was a tough decision for the government to wrestle with.

Mr Curling: Say that to us.

Mr Fletcher: Well, I am saying it. It was a tough decision for the government to wrestle with, and we had to come up with some wording that would fit into the act. But as far as, does seniority conflict with EE: In some cases, yes, it does, and I think if you look at section 4 we recognize that fact.

But I think that what we also look at is the fact that when OPS was here, saying, "If we had proper seniority, we wouldn't need employment equity," I think we had to listen to that group. The UFCW, the CAW -- and for people who don't understand what that is, the United Food and Commercial Workers, the Canadian Auto Workers, the Ontario Federation of Labour, the United Steelworkers -- agreed, that yes, at some point in time seniority could be a barrier, but let's examine what it is through the human rights. I think that that's a fair way to go.

As far as the protection of seniority, there is also the part in there about an established practice by an employer, and many employers do use seniority even in non-unionized workplaces. So this isn't just something to protect union people; it's there to protect all workers in all situations.

In fact, if you look at most workplaces, even in the non-organized or non-unionized shops or factories or companies, when there is a layoff, they usually lay off by seniority. Now, there are some exceptions to that, and I think that they have to be examined. It is an established practice throughout the workplace that seniority and time there be honoured, and even the business community is agreeing with that, if that's the way they do it.

As far as protecting the unions and getting us into a corner, I don't think this government can be accused of being one side or the other when it comes to dealing with the people of Ontario. We've done things that unions don't like; we've done things that business doesn't like. So we're not leaning on one side or another. We recognize the fact that seniority is a collectively bargained institution and should remain so.

Mr Curling: The parliamentary assistant --

The Chair: Ms Witmer.

Mr Curling: The parliamentary assistant should know that the reason we have employment equity --

The Chair: Mr Curling, I'll put you back on the list if you want to speak to the matter.

Mr Curling: I do.

Mrs Witmer: It's interesting that the government has determined, as we do the clause-by-clause, that seniority rights are okay and quite acceptable and they're not a barrier, and we now have them back into the bill.

I really wonder. The government has indicated to us that there have been two years of consultation. The unions had made it abundantly clear throughout the two-year period that seniority was very important. I think the government had probably intended all along to change the bill, because this is going to be the selling tool that it is going to use with its union friends. It's a very easy selling tool. Many of the union members are very concerned about employment equity, and they can now say to them: "We listened. We've given you your seniority." I personally think this was all predetermined and it was going to happen anyway. It certainly makes it, then, acceptable for the people in the unions.

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I would say to you we had many presenters come before us who indicated to us that seniority rights are barriers to an effective, equitable employment equity system, including the Ontario Advisory Council on Women's Issues. They stated that this was definitely a barrier, and now the government is saying that seniority rights are not barriers to recruitment.

I think if we're going to do this, if we're going to include this type of proposal, in all fairness we have to take a look at the other side of the coin because we need to take a look at the addition that I'm going to be recommending at a later time. I think we need to give some protection to the employer as well and we need to excuse him or her from non-compliance when it is due to seniority. If you're going to be fair to everyone in this province, you've got to take a look at that as well.

In order to be fair, we need to give some consideration to giving the same type of protection to the employer community if it cannot achieve the numerical goals, if it's due to the seniority clauses. You want to be fair; let's take a look at that. But I would have to tell you I strongly believe seniority rights are a barrier to employment equity and I think they're going to have a very, very negative impact, especially at a time when we're seeing layoffs and we're seeing a recessionary period when employers are not hiring new employees.

Certainly, the protection of these seniority rights with respect to layoff and recall is going to frustrate an employer's ability to alter the makeup of his or her workforce. It's going to be very frustrating for the designated groups to even gain access to the workplace, because there are not many employment opportunities. We've heard the employer community say there is only going to be about 1% or 2%.

I would have to say again that legislation which places and protects a union security clause and places no obligation on the union for implementing employment equity, while at the same time holding the employer liable for failing to comply with the legislation without any exception, where the employer's efforts are frustrated entirely by the seniority clause, is totally unacceptable to all employees and employers in this province.

Ms Akande: I must say I'm just a wee bit confused. A few minutes ago, not too very long ago, we heard Mrs Witmer's amendment talking about the fear of some of the majority groups that in fact they were being passed over because of the concentration on employment equity, even though it is not yet really in effect. We heard how fearful some of the white males were that in fact their positions were very tenuous because employment equity was going to concentrate on the designated groups.

Now we're looking at, as they expressed it, the unions have focused on seniority and we're saying seniority is a barrier. It seems to imply, or at least I infer from this that you're suggesting that we remove seniority and then bring the designated groups forward in spite of seniority, and that would somehow solve the situation. I think your two points are in contradiction, but more than that, they point out a competition between those who have seniority and the visible minorities, and that does not exist.

It sets up opposition between groups that should be working together towards the benefit of the workplace, all of them, and it says that if you have seniority and you are one of the members of the designated group, we are now in a tug of war. It does in fact so often what people do: It sets up confrontational situations where none exist.

Visible minorities, members of other designated groups, have come as deputants to this committee and told us that seniority is not a barrier. They have said in fact, and it was particularly apparent with the Ontario public service group, that if seniority had been followed, plus their abilities and their experience, they would be in much better positions than they are today. They have told us that again and again and we have listened to them.

This is not affirmative action. It is not exactly the same thing. It is not cutting a path through existing pathways that have been designed by the representatives of workers. That's what unions are, not some people who flew in from outside; they're the representatives of workers.

This is a bill which says that all people, including the majority groups, are on an even playing field, and we are going to recognize seniority, but we are also going to open the doors so that all of them can compete equally. It is not a special program whereby they're given a special route; it is a program whereby others move from behind the door as we try to push it open.

I don't see where seniority is a barrier. I don't see where unions are always wrong. I think in this case they are right. I see that perhaps you're setting up confrontational situations where none exist, and I will support the motion.

Ms Margaret H. Harrington (Niagara Falls): I think that was certainly very well said. What I wanted to do was to react once again to what Mr Curling has said very strongly. I find there are two points in what he has said that frankly I find erroneous.

The first is the statement he made about this clause about seniority rights being different. It is in fact the very same clause that was subsection 5(2) being transferred here to section 10. As you can see, the only one word that is different is that we've included the word "treatment," so we have not altered that whatsoever.

Secondly, he claims that the groups that came before us found that seniority was a barrier. As the previous speaker, Ms Akande, said -- I recall very specifically, when the groups sat here in front of us, what they said right here was that seniority would be helpful to the designated groups. I wish I had before me the summary of the recommendations that was prepared by our research staff.

Mr Curling: Get Hansard. Don't read the summary.

Ms Harrington: That lists the groups that talked about seniority and what their reaction was, so I find that the record has to be set straight with regard to what Mr Curling has said.

Mr Winninger: Actually, Ms Akande covered most of the ground I wanted to cover and did so very eloquently. I would just come back though to subsection (4), which encourages the workplace parties, and that includes the employer, the unionized employees and non-unionized employees, to all work together in a very proactive way; where there is potential conflict between employment equity and seniority, if in fact it's seen that a seniority policy other than layoff and recall might discriminate, to work together proactively to resolve that conflict and not just to resolve it through human rights complaints. I think there is a very affirmative mechanism built into subsection (4) that can deal with the kinds of concerns expressed by opposition members.

Mr Jackson: Ms Akande said she was confused, and I guess I'm confused by some of the rhetoric I'm hearing from the government. Part of the problem we have here is that collective agreements, by their very nature, are very complex and they provide opportunities, on the anniversary date of every collective agreement, for a certain degree of mischief to occur. Clearly, this freeze-frames anything that's currently in a collective agreement but doesn't speak to how collective agreements could evolve or devolve in this province as a result of this legislation.

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The mischief I refer to, I think, is a legitimate point to be raised at this time, and I want to bring it to the government's attention because this is a parallel problem with the labour force that is occurring in this province as we speak.

I bring the members' attention to the issue of Ontario Hydro, which announced on July 13 it was going to discriminate against employees on the basis of whether they're a member of a target group with its voluntary separation package. The words here that are key are "voluntary separation package." This amendment, as I read it, speaks of contractual leave arrangements. That does not include a voluntary separation plan or an early leave bonus package or whatever you may call it.

We're talking about a major employer, probably the biggest employer in this province, Ontario Hydro, with the largest drain on tax dollars in this province being used for Ontario Hydro. We're dealing with a substantive issue here. There was a third-step grievance on August 23, and this is going to arbitration on a magical date, September 10, when this government hopes to have all this legislation completed.

I want to bring to the members' attention that at the grievance hearing of two weeks ago, Ontario Hydro, as an employer, with its collective agreement asserted that it had the endorsement and the support -- and I'll read directly from a memo from the grievance officer, dated August 26, 1993: "At the grievance meeting, Hydro offered no satisfactory explanations which would justify such discrimination. They said they had advice from the Human Rights Commission that it was acceptable to discriminate against white males in the context of a program designed to prevent employees in the designated groups from leaving when in fact they might not become surplus." It was therefore felt they were free to introduce these changes.

Now, the reason I read this into the record and why I wish to present it is that, having negotiated contracts in this province for 10 years in the sector that Ms Akande is very familiar with -- it is possible, by changing the language, to contract-strip in this context. In this way you're offering a bonus, at taxpayers' expense, to leave your job. It's more economically viable for you to leave the door, but don't offer the package or delay the package for designated groups. You're not violating the collective agreement; it's not included.

So my suggestion to this committee: If in fact all these words of support for seniority that this government now wishes to re-entrench -- then I suggest to it, put in "which shall include early leave provisions or voluntary separation plans" or any other language bonusing provisions to help encourage white males out the door, in order to retain. That is, in effect, how you skew your employment pool. You're using taxpayers' dollars, which is offensive, but that's another point altogether.

It is a loophole for employers to use. This language only speaks to seniority rights that exist in the collective agreement. It talks about the layoff -- and I've seen those clauses; I've worked on them. Frankly, I'll throw another one into the hopper here. I don't want employers all over this province saying, "I'm now putting all of your seniority rights on the bargaining table." Labour groups now have to make concessions on a whole series of clauses that they fought for over the years while management says, "Yes, but I've got the support of Bob Rae's government and I've got the support of the Human Rights Commission and we want to strip your contract," because the way this reads, as long as your collective agreement reflects it you can go ahead and do it.

Seniority rights have never been put on the bargaining table. It was won by unions over the years, it was fair, it was equitable, but now we've given tacit approval to go in there and be mischievous with it. I'm sorry; I see all sorts of problems with this thing. I see a loophole in the language. I think the government may be a lot smarter than we give it credit for because it knows it's doing it. They can stand out publicly and enunciate its support to the union movement, but as soon as this -- and I use the example of the Ontario Hydro grievance report. It's all here. I'll circulate copies to the committee members, if any of them are interested in it. This is a clause in the collective agreement that is going to be undermined.

I think collective bargaining rights are something that should be preserved and protected. They were fought hard for and anything that undermines those in such an overt way we have to be very, very careful with. Any legislation that purports to do one thing when another thing can be done is bad legislation. This may not be bad legislation, but this sure as heck is a bad clause the way it's left.

Mr Curling: I just want to correct some of the things Mrs Harrington has said. First, you said what is placed in section 10 is similar to what is placed in subsection 5(2). It's not the same. There are changes. You have even subsection (4) that is added to this. If you take your bill carefully and read it, you'll realize that where they're talking about seniority here, it's much more expansive than what is done in section 10.

I don't know where you're saying that it's similar. Only "treatment" is there. Maybe you have the wrong replacement. There are so many replacements. I understand where you can get confused, because even I am juggling all these balls of replacement and amended motions by the government side. I find it a bit confusing.

Also, I think what Mrs Akande said tells me that she's got a lot of faith in the process that exists in seniority rights. What I am stating here is what I heard from some of the OPSEU group who also stated that minorities are also in the seniority club, and when they came to promotion, they were overlooked. So only if it came under established practice, you were to say, "We will deem it not a barrier." Maybe that established practice is a thing we were looking to.

I think if seniority is played properly, I fully agree with you that it could work. But within that group there, there seem to be barriers being set up for people not to be promoted and not to be trained. Maybe that's another matter altogether. Maybe the unions have to get their house in order to make sure they have those promotions or hiring or training according to seniority. If seniority is done properly, of course the training would have taken place and those who would be targeted to get the proper training would have gotten it because of their seniority within the company. But groups are saying to us that even with seniority, which they want to protect so very well here, they are being overlooked.

We cannot identify the barrier and then move on to say, "Let us not deem it as a barrier and let's move on to do our employment equity." It will come back to haunt you later on. Of course, as Mr Jackson said, these things that they fought for, for years, were done on the right principles. But now I think it's gone astray. As a matter of fact, even the unions examine themselves and look at who as at the helm, who has been promoted there within the establishment of the unions. How much of the diversity of this community have we seen there? We don't see very much. So they themselves want to clean up their act.

By saying all of this I'm not here to get votes; I'm here to get fair legislation. If we don't do that and include all people, we're going to have something that is awful later on, where the clubs are being more established. I think the unions have done an excellent job to break down quite a few of those barriers that we are fighting for today. I think what government is doing today is taking over some of those powers that unions have fought for so much. I think we must make sure it is fair, and it has become quite a club now. I think the established practice and the seniority are something that must be looked at very clearly. Tell the unions, "Thank you very much for those struggles," and then move on to make it bigger and better for all.

I just want to touch on another aspect of it, because the way we are going about this really concerns me. Mr Chairman, I know that we are at 12 o'clock. I just wondered if we could ask for adjournment now and that we continue when we get back.

The Chair: I was thinking that after you had finished speaking, we would recess.

Mr Curling: I'd rather after, because I think that you will do your "limited" stuff on me, and I don't want that.

The Chair: All right. We'll recess until 2 o'clock.

The committee recessed from 1200 to 1410.

The Chair: Resuming discussion on section 10; Mr Curling, you were about to finish.

Mr Curling: Yes, Mr Chairman. I wasn't about to finish, and I want to thank you again for allowing me to continue on this very, very serious flaw in the bill. As a matter of fact, I'm so thankful for the break, because I have been given some information and was able to do a bit of research that really supports the position that I was taking.

I want not to in any way delay the process but to put on record some of the concerns that I've had and have found out to be confirmed by what I see here. You may recall, Mr Chairman, Bill 172. That was a private member's bill by Mr Rae at the time, now the Honourable Bob Rae, Premier, who has now come under the guise of Bill 79. I thought that he had captured the real reason and the purpose for an employment equity plan.

In his bill, this private member's bill, 172, subsection 3(3), he stated, "In developing an employment equity plan, the employer" -- and I think he really captured it well -- "and the trade union or trade unions involved shall examine all of its practices and policies affecting employees, including, without limiting the generality of the foregoing..." Listen to the foregoing, Mr Chairman, and I want the parliamentary assistant to listen very carefully.

He talks about "recruitment; determination of job qualifications; hiring and development of selection criteria for hiring" -- and as you go along, remember what has been exempt in your Bill 79 on the seniority -- "training programs; transfer and promotion; hours of work and schedules; compensation; workplace design and physical access" -- where he had included the disabled in the process -- "organization of work; technology and processes" and, Mr Chair, "impact of seniority provisions." Here it is in Bill 172 saying that it plays a role in conflict and contrast to employment equity: "impact of seniority provisions." And again he goes on to the other things that we talk about that have to be a part of employment equity, not only within the workplace but "provision of child care" and "provisions for leave of absence," and all that. We cannot deem this, the seniority, as a matter that it is not a conflict in employment equity. It is a conflict in the principles of employment equity.

You know, the DPEE executive had a chat with me, the Disabled People for Employment Equity, who are so upset about, actually, the process, that while everyone else had an opportunity to make their presentation and to be heard and to be analysed -- employers, unions, visible minorities who got a chance -- it's not only that the native people are completely upset, but the Disabled People for Employment Equity are extremely concerned. In their comment, they said: "It must be made very clear that seniority and collective agreements must be subject to positive measures. Without this, it may take many generations to make up for the accumulated disadvantage of past discrimination."

Omnibus Consulting, again -- and the reason why I want to read this into the record is because I heard from the members of the government, and also from the parliamentary assistant, who stated that he did not hear any presentation of people against the seniority.

Mr Fletcher: I didn't say that.

Mr Curling: All right. I stand corrected.

Mr Fletcher: Mr Chair, I did not say I did not hear any. What I said was we heard many who were in favour of protecting seniority.

Mr Curling: And I've seen that he did not say, as he said -- those who are left out will assume that he did not hear. I'm assuming that if we heard much more who said they want seniority -- I didn't hear that; much more who said they wanted the seniority clause left out because it works in conflict with that.

Here not only, as I said, are the other interest groups and the designated groups who feel seniority is a hindrance to employment equity, but Omnibus Consulting, which represents quite a number of employers, said, "Employers and many `equity-seeking groups' took the position at the public hearings" -- they seem to be hearing the same thing I'm hearing, and not what you're hearing -- "that the seniority provisions in collective agreements could, under some circumstances, act as a barrier to the implementation of employment equity. Unions, not surprisingly, took the opposite approach and asserted that seniority provisions actually assist in the implementation of employment equity. The unions have won a clear-cut victory on this point."

Remember, you know, that we are making an employment equity legislation for all people, not only for the designated groups but for all people, and specifically to assist those who have systemically been discriminated against.

It continues here: "The proposed amendments have extended the protected area within which seniority may operate without being deemed to be a barrier to employment equity. Seniority is now a fundamental principle in the bill." So it's a part of that bill, seniority. You have taken it and put it in, and therefore people have seen after we have fought and said, "Identify that this is a barrier to employment equity," you have now put it right there and said, "Don't regard it as a barrier to employment equity."

You cannot have come so far beyond the Conservatives, beyond the Liberals, and introduced an employment equity bill and now put this block in the way. What you have done? Simon says, "Take two steps forward," and then somebody said, "Take four steps backward," and you think you have progress. You haven't had progress. If we don't have this employment equity legislation written properly, we have done more damage to those we want to help.

OPSEU came here and told us basically -- the minority who were part of OPSEU said although they are part of seniority within that club, they did not get promoted. Just think about that.

There's a case I want to tell you about, and I won't call any names. A gentleman with a PhD degree, quite qualified for his position and an individual who hadn't gotten the merit; a woman who hasn't gotten the merit -- in other words, the qualification. He wants to do the job. He has the seniority and then, within the institution -- and the only reason why I don't call names is to protect the gentleman. The stage that he's in now, it's very unfortunate that having worked with this institution, a government institution, so long, he was bypassed with his seniority and it was given to someone with less seniority. The fact is that now he's a member of the seniority club, but he didn't get the job. He couldn't believe it, had a heart attack, and is now in intensive care. This gentleman thought that with the qualification, with the merit, with the seniority, you know --

I'm just telling you, even while you're protecting the seniority, it doesn't even help those who it should be helping. It will act as an hindrance, and lawyers and all those will having a field day if they even attempt to try to climb over that wall. So it is bad.

The other point I'd like to make is an extremely important point, and Mrs Harrington seemed to have overlooked that subsection 10(4), that last part: "Unless the seniority rights discriminate against members of the designated group." I want you to keep in mind the disabled group who have dropped almost 12% in employment. They thought they were having gains with all the sensitivity around in employment. "...unless the seniority rights discriminate against members of a designated group in a manner that is contrary to the Human Rights Code." You know what that will do? You know, Mr Parliamentary Assistant, what it will do, since your minister won't be here? I wanted her to hear this and I wanted maybe the Premier to hear this, because this wrote this Bill 172 and seemed to have grasped it at the beginning. It will allow the disabled people who are struggling to fund themselves through access that is not being given, transportation not being given to them, to get lawyers or to prove that they are a discrimination before they can get a job. They have dropped 12% in employment and they must prove -- so therefore the legal battle in order to get there.

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So I'm telling you, seniority here is another barrier. While this legislation is trying to identify barriers and then eliminating those barriers, what you have done is identified barriers and said, "Don't touch it," because seniority is a barrier. We want to tell you, deem it as not as barrier and "Don't touch it," it conflicts with the principles of employment equity, and if you continue to carry this bill through, it's just a sham in the entire thing. Ramming this thing through, trying to hurry us through all this process, to say, "We must continue with this, and stop holding it up," each of these areas --

If we ever get over this hurdle, I would tell you I'd have greater respect for this government and yourself if you, in your own conscience over there -- as you vote for that aspect of it in protecting seniority as a barrier, it is telling me you're not consciously really committed to employment equity.

The Chair: Ms Akande.

Mr Fletcher: No, hold it. Come on.

The Chair: Mr Fletcher.

Mr Fletcher: What's going on here?

The Chair: Are you responding?

Mr Fletcher: Yes.

Ms Akande: It's all right.

Mr Jackson: Mr Chair, it's certainly not in Hansard.

Mr Fletcher: Thank you. First, let me address what Mr Curling was talking about, if I can get it right. As far as what Mr Rae had four or five years ago, so what?

Mr Curling: Exactly.

Mr Fletcher: I mean, he was not the leader of the government at the time. He was not the minister responsible for this legislation. This came from a government caucus, not from one person.

Mr Curling: He's the Premier now.

Mr Fletcher: Well, he listens to what the caucus says too. Mr Curling, when Buzz Hargrove was sitting in this chair, you said to him: "Oh, no. We want to protect seniority rights." And now, all of a sudden, you're flipping around again, going --

Mr Curling: I said that? You show me that in Hansard.

Mr Fletcher: Yes. Yes, you did. It's in Hansard; believe me, it's in Hansard. Then you vote in favour of the PC motion on section 8 --

Interjection.

Mr Fletcher: Let me tell you exactly what it was, about employers required to demote or terminate. So if you get rid of seniority rights, then that's what can happen.

As far as the seniority rights being a barrier, yes, we recognize that in some cases, such as Mr Rae said, seniority rights can be a barrier.

Mr Jackson: Rosemary Brown and the Human Rights Code --

Mr Fletcher: He did not say that it was a barrier when it was concerning layoff or recall. That isn't in that piece of legislation.

Mr Jackson: Get your head out of the sand, Derek.

Mr Fletcher: As far as section 4 is concerned, for the purposes of this act, the employee seniority rights that are not referred to in subsection (3) are going to be determined by the Human Rights Code.

Mr Jackson: The Human Rights Code has already spoken to it. I gave you a memo --

Mr Fletcher: So that allows for some form of arbitration when it comes to where seniority rights can be a barrier.

I listen to Mr Jackson say how he used to negotiate collective agreements. Well, I used to negotiate collective agreements, private and public sector, with school boards and also in the private sector, and there are many times when you negotiate a collective agreement that when you come to the part of seniority rights, they have been attacked for years and years and years. This is not anything new that is going on. Where I would like to see something happening is since seniority rights are in a collective agreement, I would like to see the union that represents the employees and management sit down to determine where seniority could be a barrier and where they could fix it, I think more so than being heavy-handed and saying, "This is what's going to happen." There should be some form of cooperation between employees and employers to determine how best the plan can fit within the confines of their collective agreement.

The purposes of section 10 are to state emphatically that seniority rights, when it comes to layoff and recall, are not a barrier to employment equity.

The Chair: Mr Curling.

Ms Akande: Mr Curling is not speaking.

The Chair: Mr Curling.

Mr Curling: If you want to comment before --

The Chair: I'd rather hear your remarks before as opposed to returning to it.

Mr Curling: It is rather interesting, Mr Fletcher, that you completely disregard that there exists a Bob Rae in May 1990, and then you recognize a Bob Rae in June 1990. It just baffles my mind to say, "Oh, that's what Bob Rae did at that time; it doesn't matter." That is why people are cynical of politicians.

I hope that when we have done our little trip here we will feel we have served to the best of our ability, not an Alvin Curling yesterday and a different one today, not a Bob Rae. We want consistency. Even you in this bill talk about consistency, you want consistency, but then you say not to be consistent at all, because if we have seniority in here, it's not consistent to what is fair. Of course, it's inconsistent to Bob Rae. We've found him extremely inconsistent all the time. That's okay. We find you all inconsistent. But at least to your moral principles, be consistent. Be fair to the things we've fought for all along, to identify and research, to find out that these people, the designated groups, who have been systemically and intentionally discriminated against, that we can be consistent in clearing out those barriers and treat people fairly.

But what you have done here is a lot of token stuff. You throw a little paper around and call it Bill 72 and call it legislation, and some people say, "Thank you very much for the crumbs." People don't come here to be patronized; they come here for their rights. They pay taxes and they want to be treated fairly.

Mr Fletcher: That's one of the reasons why you're not in government any more.

The Chair: Mr Fletcher, please.

Mr Curling: You will get your chance. And then when they said, "Okay, your government seemed to be the one that wants to address the thing, address this fairly," you arrive and you said: "Forget that May 1990. That was Bob Rae in 1990. That was employment equity when we thought we would promise something nice."

The Chair: Mr Curling, do you think you might wrap up?

Mr Curling: I'm wrapping up as you would like me to do. It is very difficult to wrap up, because I'm trying my best to convince you to come back to some sort of moral principle with your employment equity and deal with the five designated groups who have been discriminated against for so long. Seniority rights themselves are seen as a barrier that you can say: "I've seen the light. I understand where you were then and I understand where we are now." I would encourage you to take out the seniority protection that you have here, which plays as a systemic barrier to people for good employment equity.

Ms Akande: I'm wondering if it would be helpful to have perhaps a question. Would it be helpful to have a definition of what is meant by "seniority" so there is some standardization? I don't mean that everyone implements it exactly the same way, but some standardization in terms of an accepted process or definition.

The reason I'm wondering that -- and I want to be as brief as possible because I know we have a great deal to do -- is that we discussed yesterday with one of the members who was here in this committee -- or was it the day before -- the fact that employers sometimes have differing definitions about what seniority actually is. I'm just wondering if a definition would be helpful.

Mr Curling: I think I would answer by saying, yes, I think a definition may be helpful, because I may be speaking on seniority as I understand it to be and you are explaining seniority as you think it is. Therefore, maybe if we have a definition, we can agree on what seniority is. Yes, maybe the debate would be different and I agree with you, what comprises seniority, but I understand it in one way and I won't give a definition now, because it would just create a lot of debate.

Mrs Witmer: It's obvious that the process being used is not responding to the needs of the individuals who have made presentations and the individuals who are going to be impacted by the legislation. That's becoming abundantly clear and I think Mr Curling has addressed some of the concerns.

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Yesterday we heard that many individuals had received late notice as far as appearing before this committee. I would like to get an explanation as to why people were not able to appear before this committee.

The Chair: The explanation is that we had three weeks of hearings. We heard as many people as we could, slotted as many people --

Mrs Witmer: That's not my question. Mr Chairperson, the individuals I spoke about yesterday had not received notification until September 2, and the letter was dated July 30.

The Chair: Okay. Miss Freedman.

Clerk of the Committee (Ms Lisa Freedman): I think that letter you're referring to is a letter that went out from the Employment Equity Commission, dated July 30, that contained information about the committee hearings and, yes, I think due to some problems that were incurred, the letter did not arrive to the people it was addressed to till about September 2. Because the letter referred to the deadline for written briefs as August 27, anybody who's called my office has been informed that we will continue to accept written briefs as long as this committee continues to consider this bill.

Mrs Witmer: What I'd like to know from you is, when was the letter dated July 30 actually sent out?

Clerk of the Committee: My understanding -- this letter did not come from my office, so mine is information that's been passed on to me -- is that the letter was mailed out on or about August 27.

Mrs Witmer: Who sent the letter out at that time?

Clerk of the Committee: My understanding is, the letter is on letterhead from the Ministry of Citizenship.

Mrs Witmer: I'd just like to say to this committee, this whole process has been a sham. I would agree, I think the Minister of Citizenship did try to consult for two years, but I'll tell you, the process this last month, the committee hearings, the sending out of the information -- and now we hear that a letter dated July 30 didn't go out from the minister's office until August 27. People haven't even been able to participate in this process who wanted to. We're now rushing through the amendments. Last week, when I tried to indicate my concern about the fact that there was no way we could have a bill that was fair and equitable, everybody kind of tee-heed.

Do you know what? I think right now, you've done your consultation, you know what the end is going to be and you really don't care to hear to from any of these individuals. Now we're hearing from the equity groups. We've heard from the Disabled People for Employment Equity today that on examining the amendments introduced by the government, it has very grave concerns about the impact they're going to have on individuals who are represented in the designated groups, especially people with disabilities.

I don't think this government has really, really been concerned about the equity groups and the impact of the legislation on those groups. As I said before, you can't listen to submissions for three weeks and then suddenly draft your amendments. You have not given ample thought. As a result, we've now sat here for three days, we've nickelled and dimed these little pieces of paper to death, changing words. The government realizes it has made a mistake and it continues to change the wording.

If we had postponed this whole debate for a month, as I had originally suggested, we might have before us some amendments that truly reflect the representation that was made for three weeks. Right now, nobody's happy. It appears the only group that's being appeased is the union group, organized labour. Both the equity groups and the business community are indicating to us that's the only group that certainly has been appeased in any of these amendments. As the Disabled People for Employment Equity state here, "Employment equity has become the pawn in a much larger agenda that does not have anything to do with levelling the playing field for those whose disadvantage should be addressed by Bill 79."

I guess I would suggest -- do you know what, folks? I think this committee needs to adjourn. I think the government needs to take a look at the amendments it has and I think we need to come back here at the end of the month, because I understand that's the earliest that would be possible to do so, and come in with legislation, some bill, that really addresses the concerns of all the people in this province, that responds to the equity groups, the employer groups, the employees throughout this province, a bill that is fair and a bill that is equitable. We've not, any one of us, had time to do justice to this piece of legislation. It's just too big, and you can see the mess that is being made of it daily.

The Chair: In relation to what you're saying, Ms Witmer, I would suggest that we continue to do the work we need to do until the time that I think there was agreement to do it to and, on completion of that, we'll see where we're at. I will not adjourn this committee prior to that time.

Mr Fletcher: Speaking to some of the concerns that Mrs Witmer has just spoken of, advertising this committee procedure is the job of the clerk's office, I believe, is it not?

Clerk of the Committee: Sorry, I didn't hear the question.

Mr Fletcher: Advertising for the committee proceedings is the job of the clerk's office, is that right?

Clerk of the Committee: Advertising is done at the direction, in this case, of the subcommittee and the Chair.

Mr Fletcher: Did the subcommittee say it was going to advertise?

Clerk of the Committee: No, the committee did not do an advertisement in newspapers. A targeted mailing was sent out to approximately 4,000 people.

Mr Fletcher: The subcommittee decided not to advertise in newspapers?

Clerk of the Committee: Yes.

Mr Fletcher: The subcommittee decided to send out the information to certain groups?

Clerk of the Committee: Yes.

Mr Jackson: The government has the majority.

Mr Fletcher: No, not on the subcommittee. The subcommittee is not a majority of the government.

Mr Jackson: Could we adjourn for 20 minutes while the parliamentary assistant gets updated on this bill?

Mr Fletcher: The one thing I do have to say is that the letter that was sent out by the ministry was a courtesy letter. It didn't say you were going to be guaranteed a spot, because that can only happen from the clerk's office. The ministry is just sending out a courtesy letter that said there are going to be public consultations. The clerk's office, after listening to the subcommittee, can send out the information. That's where the information comes from.

As far as the letter itself, the dates of this job are as follows: Monday, August 9 they received the requisition diskettes; August 13 they received the material. The person that was handling it returned from vacation and picked up the job, but the diskettes could not be located. The client was notified. The diskettes were located, the job was subcontracted out, to be completed by Monday, August 3, and the mail was to go third class. The subcontractor was contacted on August 23. Some of the job was completed; the rest was to follow. On August 24, it was understood that the job was completed and then they were phoned again, with a three-day turnover.

Really, as I said, the letter from the ministry was more or less a courtesy letter, not to invite people that they had a spot. That is up to the clerk's office.

The Chair: I'm going to propose as the Chair that we move on. We listened to what Miss Witmer has raised; I think it was clear enough and Mr Fletcher also responded. Rather than continuing in that debate over this matter, given the points that have been made, I would prefer that we move on.

Mr Curling: Move on to another section?

The Chair: To the same section, with the same debate, because there are people still on that list.

Mrs Witmer: One final point. I'm very disturbed that the government has indicated it wishes to hear from individuals and then it sends out a letter dated July 30. My office would never do that; it would be dated the date it would actually go in the mail. It's sent out August 27, and people are given the impression that they can appear before the committee or at least even apply, but by the time they receive it, the deadline in the committee is already finished. I think it's most irresponsible to have acted in that way, to have created the impression that you could appear and yet you were not physically able to because the time was past.

The Chair: There are other speakers, actually. If people want to continue in this and not deal with the bill, we could do that as well. I would urge members, given the points that have been made, to not continue. But if that's what you want to do, I'll simply take speakers and add Mr Winninger to speak to this and then Mr Jackson if he wants to.

Mr Winninger: I did actually want to make a substantive point about section 10. But I think it should be quite clear to Ms Witmer, and she admits it, that a very extensive consultation did take place; that this government caucus wanted to take this committee on the road and the opposition declined that; that no matter what committee I've served on, there have always been potential deputants who have declared that they were denied a fair opportunity to appear before the committee. We had over 100 presentations. As the clerk said, we're still continuing to review written submissions.

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On my substantive point on section 10, I think my colleague Ms Akande raised an issue of concern that I think we should look at in conjunction with the ministry around definition of "seniority," for example. I've heard other presenters suggest that there has to be more attention paid to subgroup data. For that reason, I would ask for unanimous consent that we defer section 10. Stand it down.

The Chair: Is there unanimous consent to stand section 10 down?

Mrs Witmer: Fine.

Mr Murphy: Sure.

Mr Jackson: No. I want some clarification on some issues I raised.

The Chair: On section 10?

Mr Jackson: Yes.

The Chair: Okay. If you want further questions before you agree to standing it down, fine. You want to ask questions of clarification before we stand it down, is that it?

Mr Jackson: Yes. I wanted to give sufficient time for members to read the memo which I circulated, which indicates that Ontario Hydro checked with the Human Rights Commission and the Human Rights Commission has taken a clear position that seniority rights discriminate against target groups. I happen to think that's a reasonable assumption for them to make. Much of the dialogue around this section prior to me introducing this was built on the assumption that seniority rights in fact do the exact opposite, that they don't discriminate. I just wondered, since the parliamentary assistant is here, how he reconciles that the Human Rights Commission has made a clear and unequivocal statement, which is consistent with what Mr Curling has shared with the committee was the position taken by Bob Rae as leader of the official opposition and was contained in this government's original bill and commitment to disabled people in Ontario. I'm trying to understand the reconciliation, because the wording in section 10 doesn't clearly set out for us what the rules are here. It implies that, in goodwill, collective agreements will be reopened, and then you have to bargain in the best interests of groups to overcome seniority. Can somebody from the legal advisers explain to me how the Human Rights Commission can rule that seniority discriminates?

The other question I raised was specific to the inclusion in the wording of "early leave provisions" or "voluntary separation plans" or "early exit bonusing." You can call it all of that. Those are not included in collective agreements, but they are a phenomenon that has emerged recently of variations of a golden handshake, which we're now advised can be done to the benefit of target groups and fall outside of seniority. In other words, this clause isn't written in such a way that it captures those kinds of albeit loosely defined leave arrangements. They're not leave arrangements that are contained in collective agreements, nor are they leave arrangements which are precedented or -- your wording here is "established" practices. These are relatively new phenomena where you encourage a person to leave earlier than they have to in accordance with their collective agreement.

Those were my two questions: How do we reconcile the clear and unequivocal advice of the Human Rights Commission, and the second is, how are the issues I've raised à la the Ontario Hydro employees' grievance covered or not covered in this section 10? Before I agree to walk away from this section at the moment, I'd like to have at least some response to that.

Mr Fletcher: I'll let staff respond, because I'll say something that maybe I shouldn't say.

Ms Beall: Mr Jackson asked if there could be some legal assistance in this matter. This is the first that I've heard of this matter when you raised it today. I do not know what the Human Rights Commission said to Ontario Hydro. I do not know any of the details of this, and I can in no way begin to provide a legal interpretation or opinion on this particular matter.

Mr Murphy: Mr Chair, can I follow up on that?

The Chair: Mr Jackson, do you want to continue, or did you get your answers and can we move on?

Mr Jackson: I accept that, and that's fair. What I'm hoping we'll get at there -- I mean, there's more evidence that we should stand down this section until we have somebody who can come in and advise us. I accept that the union wouldn't lie to its employees, that in fact when you've gone through third-stage grievance what you put on the table is pretty clearly the truth and then it's arbitrated, and I don't think assertions of what the Human Rights Commission in Ontario is saying about seniority rights would have been fabricated. So I very much would like to get someone to contact the Human Rights Commission and say, "Just exactly what did you tell Hydro and how does that impact on here?"

The Chair: I'm not sure whether that's within the scope of this, Mr Jackson.

Mr Fletcher: I would like to know, where there's a violation of the Employment Equity Commission, where the Employment Equity Commission made this --

Mr Jackson: I said the Human Rights Commission.

The Chair: Ms Beall did give her opinion.

Mr Fletcher: So this didn't come from the Human Rights Commission.

Mr Jackson: Yes, it did.

Mr Fletcher: I mean, this didn't come from the Employment Equity Commission.

Mr Jackson: No. It came from the Human Rights Commission.

Mr Fletcher: And they didn't review it with their joint employment equity committee.

Mr Jackson: The Human Rights Commission has ruled that seniority --

Mr Fletcher: This is a pension issue.

Mr Jackson: This is not pension.

Mr Fletcher: Yes, it is.

Mr Jackson: This is a severance package. It's an early leave.

Mr Fletcher: Yes.

Mr Jackson: But it's a bonusing leave. It's not a leave in accordance with their collective agreement. That's the thin edge of the wedge.

Mr Fletcher: And that's why they're losing it, probably.

Mr Jackson: You're missing the point.

Mr Fletcher: It's still in grieve.

Mr Bromm: Where does it say that it discriminates?

Mr Jackson: It says that Ontario Hydro -- "They said they had advice from the Human Rights Commission that it was acceptable to discriminate against white males in the context of a program to prevent employees in the designated groups from leaving when, in fact, they might not become surplus."

Mr Bromm: But this has nothing to do with the seniority provision. This is an opinion from the commission on an affirmative action program that it's an acceptable program under the provisions of the code. It doesn't say anything about seniority being discriminatory.

Mr Jackson: I'm talking about the departure --

Mr Bromm: I'm just not understanding what you want an opinion on in this.

Mr Jackson: I want to get the opinion from the Human Rights Commission which clearly sets out that an employer can say to one group of employees with similar seniority that, "We're going to delay your bonusing package because you're an identified group." The government's legislation on employment equity says you can't do that. The Human Rights Code is saying that you can bonus the exit of an employee at a date out of their regular seniority and delay the departure of designated groups. Now, you can call that what you want. It amounts to a disruption of pure seniority.

You've got the Human Rights Commission, which is separate and distinct, in one corner saying one thing and you've got, with all due respect, you as the lawyers and this government saying on the other hand that we're going to create a bill that won't allow you to do that.

Mr Bromm: But I think that, just to clarify, the bill is saying that seniority is deemed not to be a barrier, but it does not say that it's preventing employers and bargaining agents or employers from having affirmative action programs that somehow deal with seniority provisions. That's not what the bill is now saying.

Mr Jackson: So then all the disabled groups who've said that by upholding seniority, they're reading this all wrong. All these groups that are saying you are adhering to seniority have somehow misinterpreted your intention here. Your intentions are to return to what Bob Rae suggested three years ago, that affirmative action plans will supersede the collective agreement. Is that what you're now saying?

Mr Bromm: No. What I'm saying is, this provision says that seniority is deemed not to be a barrier on layoff and recall, but it does not prevent the parties from dealing with seniority provisions on their own. This doesn't preclude the parties from dealing with their seniority on layoff and recall or from dealing with seniority for other practices in a manner that follows employment equity principles.

I'm just telling you what the section means.

Mr Jackson: I'm sorry, but lawyers are great at talking in circles, and I am afraid --

Mr Curling: You understand he's a lawyer.

Mr Bromm: Yes, I am.

Mr Jackson: I'm just reading an opinion from the Human Rights Commission. I have made a reasonable request of this committee that we somehow get some feedback on this point, and I raised it not to disrupt the proceedings, but if you're going to stand down a section and we're going to revisit it in three or four weeks, I would like to make it clear to the parliamentary assistant the nature of the information I'd like to find.

The Chair: I appreciate that, Mr Jackson, and you've done that. They've attempted to answer.

Mr Jackson: And they asked me for clarification and that degenerated into a debate. I'm just trying to clarify it.

The Chair: I think they've answered. You may still have other questions of this matter stood down when it comes back. You may have other questions further, they might have other answers, but if it's stood down at least you'll be able to come back to this matter, presumably.

Mr Murphy: I'd like to follow up both on Mr Jackson's point and one other matter of clarification I'd like to have dealt with when this matter is brought up for us again.

The Hydro employees' union letter says that, in their view, the seniority principle is undermined by the program that Hydro undertook to provide designated group employees access to a volunteer settlement program and the commission said that was okay. To undermine seniority in that way was okay.

Now, if you take that interpretation and feed it into subsection 10(4) -- and I'm not asking for your opinion right now; I want you to think about it and come back to me -- in what other circumstances do you see that same view that the commission seems to be articulating in this circumstance, where else could that apply such that this "unless" clause in subsection 10(4) is going to say that despite the fact that you're throwing in seniority in one case, you may be taking away from it in others, because there clearly is a circumstance here where the commission is saying: "So what? Seniority can be undermined for this purpose." There may be other circumstances. I don't know.

I've said before I think that seniority is both a sacred cow and a Trojan horse -- a bit of a zoo -- for this, but I do think seniority can be a real problem for employment equity, although the commission seems to be leaning towards an interpretation that implies something different. I'd just like a clarification on that.

As a follow-up to that, subsection 10(3) does not have the "unless" wording, and I don't understand why that is. What it seems to say to me is that if you're laid off or recalled, seniority rights apply even if it doesn't contravene the Human Rights Code, but in other employment-related decisions, it applies only if it doesn't contravene the Human Rights Code. There's a certain amount of illogic to the absence of it in one circumstance and the presence of it in the other and I'd like a clarification from the parliamentary assistant. I asked this question of the staff yesterday and asked what the policy reason was, and I think the answer was that it was a policy reason and you'd have to ask the policy person. Well, Mr Parliamentary Assistant, you're the policy person, you're here and I'm asking, when we resume this, if I could find out what the rationale is for its presence in one case and absence in others. I know some of your own caucus members share a similar concern and I'm sure they'll have other forums to ask you the same question, maybe perhaps even this one.

I do think Mr Jackson has a very valid point and I think it's worth following up on. I'm concerned about the differential application of this "unless" clause. I do think my friend the former principal has a valid point as to what seniority rights mean, and I think those are all good reasons to, frankly, stand this down and see if we can get this government to do it right occasionally. I think we should stand the clause down.

The Chair: Is there unanimous consent to stand this matter down? Unanimous consent has been given.

Moving on to section 11. Mr Fletcher?

Mr Fletcher: Mr Chair, could I have a five-minute recess, please?

The Chair: The committee will recess for five minutes.

The committee recessed from 1454 to 1518.

The Chair: On section 11, a government motion.

Mr Fletcher: You mean we've got a new one?

Mr Curling: I believe we made the decision, Mr Chairman, to stand that down.

The Chair: Yes, we did.

Ms Akande: We did make the decision to stand down section 10.

The Chair: Yes, we stood section 10 down. We're on section 11.

Mr Murphy: That stands down all the amendments to section 10?

The Chair: That's correct.

Ms Akande: I have serious concerns about section 11 and I've been hearing them repeated in several of the things that the --

The Chair: I'm sorry; procedurally, someone has to move the motion before we speak to it.

Mr Fletcher: 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."

This amendment clarifies that employers must implement positive measures for the recruitment, hiring, retention, treatment and promotion of the designated groups. We feel this wording is consistent with the wording as amended in paragraph 4 of section 2.

Ms Akande: I have some really serious concerns about section 11, and they have been spoken to by the third party and by the opposition, in terms of what goes into the plan and what kind of clarification is needed even before we complete the design of the plan or the instructions that are given to employers for greater uniformity. They were raised this morning, even though the amendment was defeated, about having information that's similar to what Statistics Canada requires there. I feel that I need greater time around the whole issue that's dealt with in amendments on section 11 and I would ask that that section be stood down.

Mr Murphy: Can I ask Ms Akande if she could outline some of the concerns she has before we agree to standing it down?

Ms Akande: One of the things that came to us through several of the deputants was that the clearer the plan, the more specific the information or guidelines given by the government, the less would be the need for consultants to be hired by employers and the less likely would be the number of cases that would be taken to litigation by lawyers. So in order to remove this from, as you have frequently stated, a lawyer's haven and a consultant's haven, we wanted to look at the information that's being asked for in the plan and be sure that it is clear and specific and in keeping with information that's gathered through other sources. That becomes a very serious issue and refers to a lot of the discussion that happened this morning in relation to other sections also.

Mr Curling: Since Ms Akande has asked us to stand down this part, I fully agree with you. We're going to find evidence right through where we need some more clarity. While you're at it again, since treatment has arrived in this one, I hope that when we get back we get a proper definition of what "treatment" is all about, because there are a lot of things that we're going to see coming appearing in here -- treating, treated, treatment.

The Chair: Is there unanimous consent to stand this matter down? There is.

We'll move to a PC motion, 11.1. Mr Jackson.

Mr Jackson: I move that the bill be amended by adding the following sections:

"Numerical goals

"11.1(1) The plan of every employer other than a small employer shall set out numerical goals for each of the designated groups in each occupational group in the employer's workforce.

"Determination of goal

"(2) A numerical goal for a designated group in an occupational group is the proportion of opportunities for entry into the occupational group during the term of the plan that will be filled by members of the designated group.

"Goal by geographical area

"(3) The plan shall set out the numerical goals separately for each geographical area in which the employer's workforce is located.

"Geographical areas

11.2(1) The geographical areas in which an employer's workforce is located are,

"(a) each census metropolitan area or census glomeration in which one or more workplaces of the employer are located; or

"(b) for those workplaces that are not located in a census metropolitan area or census agglomeration, each upper-tier municipality in which one or more workplaces of the employer are located.

"Definitions

"(2) In this section,

"`census agglomeration' means a census agglomeration for Ontario set out in the Statistics Canada publication Reference Maps, Census Metropolitan Areas and Census Agglomeration, dated September 1992;

"`census metropolitan area' means a census metropolitan area for Ontario set out in the same publication;

"`upper-tier municipality' means a territorial district, a county or a regional, district or metropolitan municipality but does not include a regional or district municipality that is located in a territorial district.

"Employer's obligations

"11.3 The employer shall ensure that the numerical goals set out in the plan,

"(a) constitute reasonable progress towards achieving a representation of members of the designated groups in each occupational group in the employer's workforce that reflects the representation of those members of the designated groups in the working age population of the geographical area; and

"(b) are reasonably achievable by working in good faith to carry out the qualitative goals set out in the plan.

"Factors to be considered

"11.4(1) In setting a numerical goal for a designated group in an occupational group in a geographical area, the employer shall take into account all of the following factors:

"1. The underrepresentation, if any, of members of the designated group in the occupational group in the employer's workforce in the geographical area in comparison with their representation in the working age population of the geographical area.

"2. The number of members of the designated group in the employer's workforce who have the necessary skills for entry into positions in the occupational group or whom the employer could reasonably be expected to train to be so qualified.

"3. The representation of members of the designated group in the population groups described in subsection (2) that are relevant for the positions that comprise the occupational groups.

"Population groups

"(2) For the purposes of paragraph 3 of subsection (1), the population groups that may be referred to are:

"1. The working age population in the geographical area.

"2. Persons in the geographical area who are in the occupational group.

"3. Persons in the geographical area who have the necessary skills for employment in positions within the occupational group.

"4. Persons graduating in Ontario from educational and training programs that give them the necessary skills for employment in positions within the occupational group.

"5. Any other group of people for which the commission provides data.

"Data for geographical area

"(3) If the commission does not provide data for a geographical area, the employer shall refer to the commission's data for the next largest area for which data are provided.

"Same

"(4) The employer may consider data for a larger geographical area for the purposes of paragraph 2 or 3 of subsection (2) if it is the employer's ordinary business practice to recruit persons into the occupational group from that larger geographical area and that business practice does not offend the principles of employment equity.

"If no commission data

"(5) The employer may consider a factor set out in subsection (2) for which the commission has not provided data if the employer has reliable data for that factor.

"Definition

"(6) In this section, `working age population' has the same meaning as set out in the Statistics Canada publication The 1991 Census Dictionary, dated January 1992.

"Explanation by employer

"11.5 The plan shall explain how the employer took into account the factors set out in subsection 11.4 and how the employer arrived at the numerical goals."

Mrs Witmer: What this amendment, sections 11.1 to 11.5, is doing is simply responding to the concerns that were raised during the presentations to the committee and it moves sections 21 to 25 from the draft regulations to the bill. I think we all would agree that really the skeleton of employment equity is contained within those sections of the draft regulations at the present time. This really states what employment equity is all about in its reference to numerical goals, how the goals are to be determined, the geographical areas, the definitions, the employer's obligations, the factors to be considered, the population groups, the data for the geographical area and also further explanation.

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What we have attempted to do here is to put into the bill, then, that part of the regulations, sections 21 to 25. We have clarification here in order that all individuals, employees and employers and all the equity groups, know exactly what will be happening and how the numbers will be determined and how the planning will be achieved.

Mr Winninger: Point of order, Mr Chairman: Will that be stood down in the same way section 11 was?

The Chair: This is a new section.

Mr Winninger: I know it is, but I'm wondering as to the intention of the third party with respect of that amendment, which appears to overlap to some extent with section 11 and its provisions.

The Chair: It's up to them, I suppose.

Mrs Witmer: It's a new section.

Mr Jackson: The Chair has ruled. You can challenge the Chair's ruling. He has ruled that it's in order. If you don't believe it is, then you've got to challenge the ruling.

The Chair: It is a new section. They could move or somebody could move that this matter be stood down.

Ms Akande: But some of it does overlap.

Mr Jackson: In the interests of time, the way to deal with this is to challenge it and then we can get on with it. But you've ruled that it has been accepted.

The Chair: My sense is for us to continue with this discussion. The motion to stand it down could be made, and if there's support for that at some point, we could do that. But until then, I think it is a new section.

Mr Murphy: It's an interesting example, in fact maybe a rare circumstance, where all three parties are swimming in the same direction, because this wording reflects almost identically the wording of an amendment that the opposition Liberal caucus is moving to section 12. The wording of that, of course, is reflected directly in the government's draft regulations to the bill. So we have a rare example of the three parties agreeing on wording.

I would, though, make one friendly amendment suggestion, if I could, to Ms Witmer, and that is to the definition of "census agglomeration." In our section 12, we've added after the date, "or as prescribed in the regulations." The logic for that is you're putting this into the act itself and Statistics Canada may in fact issue a new publication. So you want to allow a regulatory power to recognize the new publication and therefore update your definition to reflect new Statistics Canada information.

So I propose a friendly amendment, if it is friendly, to add the words "or as the prescribed in the regulations" in there to encompass a revision by Statistics Canada to its publication. I think a similar change should be made perhaps to "census metropolitan area" since it's defined in the same publication and therefore should also allow for an opportunity for updating.

Mrs Witmer: I don't have a problem with the updating. My only concern would be that as it presently reads, it says, "Or as prescribed in the regulations," and that does not refer entirely just to the updating. That could refer to any change that could be made in the regulations and they could use any other data or any other publication. That would be my only concern. If you could restrict the definition more, I'd be pleased to accept it.

Mr Murphy: Perhaps, if I can, it would be wording such as "or such other similar updated Statistics Canada publication as prescribed in the regulations."

The Chair: If you're moving an amendment, you would have to do that.

Mr Murphy: It may be friendly.

The Chair: Yes, I know that we said friendly from time to time, but she would have to literally withdraw the previous one and re-read it as a new motion.

Mr Curling: That's the last part. Are we going to read it all?

Mr Murphy: We can waive re-reading.

Mr Curling: That's if counsel wants to. Legislative counsel wants to put a pertinent point here, Mr Chair.

Ms Joyal: If I could just give an opinion on the amendments you were going to suggest, Mr Murphy, in my opinion, that's not something that you could actually do by way of regulation, because in the bill what you're proposing to do is set out a definition of "census agglomeration" and once it's a definition, it wouldn't be appropriate to amend a definition set out in the bill by way of regulation. It's not an authorized use of a regulation-making power.

Mr Murphy: If I can follow up, is there a way to reflect an updating of the publication in wording that you could include in this section?

Ms Joyal: No, you can't do a rolling adoption by reference. If you're referring to a publication, you refer to the publication as it is. If a further publication should come out at some other time, you would have to amend this particular definition in order to incorporate that.

Mr Murphy: Okay. Why don't we all wait on that amendment then?

Mr Curling: May I ask you something on this?

Mr Murphy: I didn't yield the floor quite yet.

I do want to say that this amendment I think we can support because it reflects, as I said, exactly the amendment that our caucus was moving. We put it in section 12, as an amendment to that section as opposed to a new section. I don't think that's significant.

I think we heard a number of groups, quite rightly, come before us and say they thought that the meat of employment equity should be in the bill and not the regulations. I think that's a sensible idea. I think, as a matter of principle, that if you're going to do something as a legislative body, you should do it in a way that's accountable through the legislative body, and that's to put it in the act and not in the regulations and not to have it done by cabinet, to be changed at a whim by cabinet that cannot be accountable to the people of the province through the Legislature.

As a matter of principle, I think it's important that we put the meat and potatoes of employment equity in the act, and then detail can be dealt with in regulations that are too much for the act. But this is, as Ms Witmer quite rightly pointed out, the real, to use Mr Winninger's phrase, pith and substance of employment equity. I think it's a valid amendment and one we could support, subject to some concerns that legislative counsel has pointed out.

Ms Akande: I have some really serious concerns around this. Recognizing that it's a new section, it does relate in very many areas to the actual content and the design of the plan which is in section 11, which is a section I had asked to be stood down. To pass this without the consideration of the areas to which I had referred in section 11 would be in fact to put the cart before the horse and to confine some of the real considerations that I would make. So I'm challenging the ruling. I'm doing a number of things.

Mr Jackson: Just ask for unanimous consent.

Ms Akande: Just ask to stand this down. I guess I hear consensus around here because I'm getting directions from all three parties.

The Chair: Is there unanimous consent?

Mrs Witmer: I'm quite willing to stand it down.

The Chair: Very well. There was agreement on that.

Moving on to section 12, Mr Fletcher.

Mr Fletcher: I move that section 12 of the bill be amended,

(a) by striking out "the employer's employment equity plan" in the second and third lines and substituting "each of the employer's employment equity plans"; and

(b) by striking out "the plan" in the fourth line and substituting "each plan."

This is a rather technical amendment which reflects the fact that employers will now be permitted to develop several employment equity plans rather than one overall plan and section 12 now refers to "each plan" rather than "the plan."

Mr Murphy: I think this is a sensible amendment, one that we heard a lot of support for, one that our caucus has supported, so I think we'll vote for it.

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The Chair: All in favour? It's unanimous.

Does section 12, as amended, carry?

Clerk Pro Tem (Ms Donna Bryce): There is a Liberal motion.

The Chair: Oh, sorry. There are other motions on section 12. We'll continue with that.

Mr Curling: I move that section 12 of the bill be struck out and the following substituted:

"12(1) Every employer shall make all reasonable efforts to implement each of the employer's employment equity plans and to achieve the goals set out in each plan in accordance with the timetables set out in each plan.

"(2) An employment equity plan of every employer other than a small employer shall set out numerical goals for each of the designated groups in each occupational group in the employer's workforce.

"(3) A numerical goal for a designated group in an occupational group is the proportion of opportunities for entry into the occupational group during the term of a plan that will be filled by members of the designated group.

"(4) A plan shall set out the numerical goals separately for each geographical area in which the employer's workforce is located.

"(5) The geographical areas in which an employer's workforce is located are,

"(a) each census metropolitan area or census agglomeration in which one or more workplaces of the employer are located; or

"(b) for those workplaces that are not located in a census metropolitan area or census agglomeration, each upper-tier municipality in which one or more workplaces of the employer are located.

"(6) In this section,

"`census agglomeration' means a census agglomeration for Ontario set out in the Statistics Canada publication Reference Maps, Census Metropolitan Areas and Census Agglomerations, dated September 1992, or as prescribed in the regulations.

"`census metropolitan area' means a census metropolitan area for Ontario set out in the same publication, or as prescribed in the regulations.

"`upper-tier municipality' means a territorial district, a county or a regional, district or metropolitan municipality but does not include a regional or district municipality that is located in a territorial district.

"(7) The employer shall ensure that the numerical goals set out in the plan,

"(a) constitute reasonable progress toward achieving a representation of members of the designated groups in each occupational group in the employer's workforce that reflects the representation of those members of the designated groups in the working-age population of the geographical area; and

"(b) are reasonably achievable by working in good faith to carry out the qualitative goals set out in a plan.

"(8.1) In setting a numerical goal for a designated group in an occupational group in a geographical area, the employer shall take into account all of the following factors:

"1. The underrepresentation, if any, of members of the designated group in the occupational group in the employer's workforce in the geographical area in comparison with their representation in the working-age population of the geographical area.

"2. The number of members of the designated group in the employer's workforce who have the necessary skills for entry into positions in the occupational group or whom the employer could reasonably be expected to train to be so qualified.

"3. The representation of members of the designated group in the population groups described in subsection (2) that are relevant for the positions that comprise the occupational group.

"(8.2) For the purposes of paragraph 3 of subsection (1), the population groups that may be referred to are:

"1. The working-age population in the geographical area.

"2. Persons in the geographical area who are in the occupational group.

"3. Persons in the geographical area who have the necessary skills for employment in the positions within the occupational group.

"4. Any other group of people for which the commission provides data.

"(8.3) If the commission does not provide data for a geographical area, the employer shall refer to the commission's data for the next largest area for which data are provided.

"(8.4) The employer may consider data for a larger geographical area for the purposes of paragraph 2 or 3 of subsection (2) if it is the employer's ordinary business practice to recruit persons into the occupational group from that larger geographical area and that business practice does not offend the principles of employment equity.

"(8.5) The employer may consider a factor set out in subsection (2) for which the commission has not provided data if the employer has reliable data for that factor.

"(8.6) In this section, `working age population' has the same meaning as set out in the Statistics Canada publication The 1991 Census Dictionary dated January 1992, or as prescribed by regulation.

"(9) A plan shall explain how the employer took into account the factors set out in subsection (8.1) and how the employer arrived at the numerical goals."

Mr Speaker, without even elaborating on this, you know that --

The Chair: Please do.

Mr Murphy: If you want, Mr Chair.

The Chair: Just kidding.

Mr Curling: Just briefly, the concern of course is that many of the things that are found in regulations should be based in the legislation. However, for the more elaborate discussion and definition on this, we ask you to stand this down for later debate. I'm just seeking unanimous consent to do so.

The Chair: Is there unanimous consent? Very well. There are no further matters on this particular section. We'll defer all further consideration of section 12, given that some parts of this connect to section 11. We will not do anything else with it.

Moving on to section 13.

Ms Witmer: Same problem.

The Chair: The same applies to section 13, so presumably there's unanimous consent to stand that down. Yes.

Section 14.

Mr Murphy: Does the government want to stand down the rest of the bill?

The Chair: Is it the same thing? Give us a few moments.

Mr Curling: While you're getting the rest of your thoughts together, I was just wondering if the government would like to stand down the rest of the bill until we all get our act together.

The Chair: We need to get to section 14, and that's where we are.

Mr Jackson: We're not going too fast for you, are we, Mr Chairman?

The Chair: You're doing fine, Mr Jackson. We are at section 14. It's a Liberal amendment, and we ask you to read it. Then if you wish to stand it down, you could move that.

Mr Curling: So we should go through the exercise of trying to stand down all of them instead of just saying it once.

The Chair: Let's just see how it goes, Mr Curling.

Ms Akande: Do you require that time, Mr Curling?

Mr Curling: We are quite ready here. I move that subsection 14(1) be amended by adding after "bargaining agent" in line 3 "or such other association that represents employees and is governed by a memorandum of understanding between the employer and such association."

The Chair: Speaking to that, Mr Curling?

Mr Curling: I was speaking to my colleague, who of course will add his learned knowledge to this. As we know, we actually saw that we want all people in the workforce to participate. While the bill itself gave provision for only bargaining agents, we thought that other people belonging to associations should also be represented and their voice heard and their contribution taken into consideration. We thought it very necessary to include this in the legislation, meaning that this bill is not excluding people from employment equity but including people within it. We think that this inclusion is a positive move towards having a complete and comprehensive employment equity bill.

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Mr Murphy: If I can, Mr Chairman, we had heard through the course of the public submissions that there are employee associations that do not qualify as bargaining agents in the sense of the term as defined in the Ontario Labour Relations Act but nonetheless are representative organizations on behalf of employees.

We've sought to make sure that those are reasonably fair and representative associations by including that they're governed by some kind of memorandum of understanding between that association and the employer, so that there is a formalized structure to them, because there's a group of employees who sort of sit between the two stools of bargaining agent and entirely unrepresented in a formal sense.

The intent is then to say that these are in essence like bargaining agent representative organizations and so should have the same access to the provisions of section 14 as bargaining agents do, because they operate in much the same way without actually being bargaining agents for the purpose of the Labour Relations Act. The intent of this amendment is to give those associations access to the joint responsibilities outlined in section 14.

Mrs Witmer: I would certainly like to support this particular subsection. It certainly does respond to the concerns. I think there were some municipal associations that had memorandums of understanding with their employers and certainly this would address that concern. We will be supporting this subsection amendment.

Ms Harrington: I had a brief question for Mr Murphy: If he could give us some examples of such groups.

Mr Murphy: Ms Witmer just gave an example. I think they were municipal associations. I can't frankly remember off the top of my head. I know it was raised two or three times, certainly in the context of municipal employees, and there were a couple of other occasions. Some of the professional-type organizations may qualify under this. In fact staff may be able to assist in that regard too, but I can't remember off the top of my head.

Mr Curling: I think some of the chartered accountants, in that area, associations like that, which may not fall under bargaining agents or may be outside -- and I would need some help in this -- of the bargaining agents, that are not included or are not a part of this bill.

The Chair: All in favour of Mr Curling's amendment? Opposed? The amendment is defeated.

PC motion, subsection 14(3), Ms Witmer.

Mrs Witmer: I would move that subsection 14(3) of the bill be amended by striking out the second sentence and substituting the following:

"The committee shall be composed of one representative of each of the bargaining agents and an equal number of representatives of the employer."

This is simply being done to be consistent with the regulations and also to ensure fairness and equity as far as the representation on the committee is concerned.

Mr Fletcher: As far as subsection 14(3) is concerned, we do have a government motion that does cover some of what Mrs Witmer is saying. The only thing that is lacking in the PC motion is that it doesn't recognize that, if the employees are represented by more than one bargaining agent, this is what should happen.

Mr Curling: It seems to me that the parliamentary assistant is not yet up to date on what the amendment is saying. It's unfortunate that the previous amendment wasn't passed, that we were recognizing everybody in the workforce. It seems if you're not a part of the union, you have no game and no play in this kind of bill.

However, the amendment explicitly states, and we will be supporting that, "each of the bargaining agents and an equal number of representatives." We want cooperation in this thing here, and if you just don't see yourself able to have equal representation at the table, well, I just don't know what this is all about. We will be supporting this amendment.

Mrs Witmer: I would just like to correct the parliamentary assistant. I think it's quite clear "the committee shall be composed of one representative of each of the bargaining agents," so each of the agents would be represented, and there would be "an equal number of representatives of the employer." If the government truly intends for this to be a process which involves cooperation and working together and developing a plan in the best interests of all the employees and potential employees, we need to ensure that there is fair and equal representation on this joint committee.

Mr Jackson: Each bargaining agent is guaranteed access to the committee.

Mr Fletcher: I think the difference is only one representative per agent, and there must be an equal number of reps of the bargaining agent and the employer. Our amendment allows for "up to an equal number" for the employer, and it can have more than one rep for the bargaining agents. That's why we're looking at our amendment as opposed to what the Conservative amendment is talking about.

Mr Jackson: Let me ask a question which I think is at the root of what our concern is here. It's possible with your amendments that not all bargaining agents in a given employment situation will be represented. It just says that "agents," plural, shall be represented on committees, and "an equal number."

There are two issues here. One is that every bargaining agent has access, is represented on the committee, which is the PC motion. Yours says "bargaining agents," a number agreed upon. It shall never be out of balance, that there will be an equal number of employer and employee representatives. But some employee groups, under your amendment, may not be represented. That's the fine point we're trying to put on it.

We're not arguing with your amendment. Maybe legal counsel can assist, if that's how they understand the reading of it. As long as there's a bargaining agent, they're guaranteed representation on the committee, and then the employer just tops up to an equal number.

Under your amendment, Mr Fletcher, it doesn't say that. It simply says, "The committee shall be composed of representatives of the bargaining agents...." It doesn't say all of them; it just says "representatives of the bargaining agents" and "up to an equal number."

We're not debating the equity issue; we're dealing with access, which is that every bargaining agent is guaranteed access, and then an employer has an equal number. Is that helpful? That's the way I read it.

Ms Beall: The government motion that will be coming before the committee on subsection 14(3) provides for a flexibility as to the number of representatives of bargaining agents. This is subsection (3.1). It doesn't prohibit each of the bargaining agents from having a representative if they so choose to do. There's nothing there that says a bargaining agent won't be able to have a representative.

Mr Jackson: No, but it says the exact opposite as well, by your explanation. It doesn't set it out that every bargaining group is guaranteed access. It just says agents, in the general term, will be represented.

Ms Beall: If you read subsection (3.1) in conjunction with subsection (3), the committee is established by the employer and the bargaining agents.

Mr Jackson: Exactly, by representatives of bargaining agents.

Ms Beall: No, no, sorry. If you go to subsection (3), "If the employees of the employer are represented by more than one bargaining agent, the employer and the bargaining agents establish the committee..." Having established the committee, then it goes on to say how the representation on that committee works.

Mr Jackson: We wouldn't quarrel with subsection (3). Our amendment is really to subsection 3(1). We're just trying to lock in the guarantee that all bargaining groups are represented.

I trust legal counsel's definitions. I just wanted to ask it in the reverse and I got, for the record, that no bargaining agent will be denied by your wording. That's all we want, to ensure that this doesn't happen.

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Mrs Witmer: I do have a concern with the government motion. I guess we're looking at both of them. It does not specify that each bargaining unit will be represented on the committee. I'm concerned that, for example, one bargaining unit might have all the representation and another union might be denied that type of access, because you don't specify that each union or bargaining agent would be represented, and we're saying there will be "one representative of each of the bargaining agents."

Mr Fletcher: I was just saying, "The committee shall be composed of representatives of the bargaining agents," which is the --

Mr Jackson: We're disagreeing on legal language and legal counsel said it's covered. We can debate it till the cows come home.

Mr Fletcher: I believe that it does include --

Mr Jackson: There's no harm in saying it very clearly, but if legal counsel -- I'm not a lawyer, but if it means no bargaining agent that's separate will be denied access to the committee, three out of seven bargaining agents can design the committee; I read it that way but I'm not going to quarrel with legal counsel. It's on the record.

Mr Winninger: Just for the sake of further clarity, three of the seven bargaining agents may in fact design the committee. All seven of the bargaining agents may in fact design the committee but may delegate two or three or however many of the seven to serve on it. Similarly, the employer may choose to have its full complement of representatives equalling the number of bargaining agent representatives on the committee or it may choose to have less than that full complement. We give them that flexibility, but we're not shutting anyone out, either on the employee side or the employer side.

Mr Curling: I think that the lawyer just made his point, that if he was in court he would have argued it that way and another person might argue it the other way. It's exactly why it is not clear, because at one point, as Mr Jackson pointed out, in subsection (3) it tells you when there is more than one bargaining agent, and it does that, then it talks precisely of composition of the committee and it tells you, "The bargaining agents and" up to "an equal number of representatives of the employer."

If they choose today to be two, therefore you guys on the employer's side can send only two, although you have five bargaining agents, so what we're doing is not clear. The fact is that it must be very clear, and as Ms Akande said and other groups have said, "Let it be clear; it's easy," and Mr Jackson is saying, "Sure, we can take the legal advice right now." But again, can we take that legal advice when someone later is putting a case forward and the judge says, "I see it different than the legal counsel," at that time? But if it's very clear here, then we have no doubt about it.

Just even at the initial stage we're having debate on this matter, and I would say let us clarify and modify it. As a matter of fact, maybe we should stand this one down until we can get a clearer picture of what's happening. Since we're debating both together too, in a way, and this one is involved here, subsection 14(3), the fact is that I'm still concerned that there other people who are shut out here: the associations and also those who are not among the brotherhood --

Mr Murphy: And the sisterhood.

Mr Curling: -- and the sisterhood too. Those who are not members of the union are not at the table and they will be consulted. So I have concern. Maybe if you're going to debate this later on I can make those points much clearer, but since we're doing both of them at this time, I think --

The Chair: Are you testing the floor, Curling?

Mr Curling: Are we testing the floor?

The Chair: For unanimous consent.

Mr Curling: To stand it down?

Mr Jackson: I wouldn't agree with that.

The Chair: Oh, that's fine then. Mr Murphy.

Mr Murphy: Let me follow up on both Mr Jackson's and Mr Curling's point, because I think there is some validity to it and I think Mr Curling's way of putting it is quite accurate. I could see an employer coming to its bargaining agents and saying, "Absolutely; we're going to set up our joint responsibility committee and it shall have four members, two of whom shall be employer representatives and two of whom shall be bargaining agent representatives," and it has seven unions in its workforce as the employer. I don't think there's anything in here that prohibits the employer to say that. What's probably going to happen is that the bargaining agents will say, "I don't think I like that," and then off to the tribunal we go, or the commission and then the tribunal, and some time in the new millennium we'll have the plan.

I think the point Mr Jackson and Mr Curling are making about the fact that this needs to be clear -- the flexibility is fine, and I think allowing the delegation, by bargaining agents, two other representatives is a good idea. I think this allows, though, the opportunity for an employer or perhaps even a strong union in a workplace to come and say: "There's only going to be this many and that's it. We're going to be one of them and the rest of you other unions fight it out over the other spot." I think this wording in the government's motion allows for that.

I think the motion moved by Ms Witmer is clearer in that regard. Maybe there's a middle ground that can be achieved, but I do think there is a problem, because there's nothing here that says the employer or a strong union can't come and say, "That's how big the committee is and tough luck."

Mrs Witmer: I think there is a further problem, actually, which I've just discovered. My understanding had always been that each bargaining agent would be represented on the joint committee. I'm now hearing the government say that might not be the case. If you have seven bargaining agents, perhaps only four of the groups might be represented. That's going to create a problem if you take a look at subsection 14(6) where it says:

"Right to information

"(6) The employer shall provide the bargaining agent with all information in the employer's possession or control in respect of the part of the employer's workforce in which employees are represented by the bargaining agent that is necessary for the bargaining agent to participate effectively in carrying out their joint responsibilities, including the information prescribed by the regulations."

That means if there are three bargaining agents who are not part of the committee, then no one will have access to that employer's information.

Mr Winninger: I may ask the technical people here to add to this.

Mr Jackson: Why would they want to add to that?

Mr Winninger: What's done here is to set up a voluntary regime where certain bargaining agents, as a totality, may decide they want to be represented by an executive committee, if you will, of bargaining agents on the coordinating committee. No one's forcing them to make that decision. In fact, subsection 14(3) says, "The committee shall be composed of..." That's pretty mandatory language.

Mrs Witmer: "Shall be composed of one" --

Mr Murphy: -- "representative of...the bargaining agents."

Mrs Witmer: That's right. It doesn't mean each bargaining agent is represented.

Mr Winninger: But subsection (3) says, "The employer and the bargaining agents shall establish a committee," if there is more than one bargaining agent. It says that quite clearly. So it's not excluding any bargaining agent from participating in the coordinating committee if it so chooses.

Mr Fletcher: Again, I think it's an attempt to confuse.

Mr Curling: You're easily confused.

Mr Fletcher: Listening to you, Alvin, it's easy to be confused sometimes. I'm still trying to figure out what were saying.

As Mr Winninger has already pointed out, if the employees of the employer are represented by more than one bargaining agent, they will set up a committee. If we look at some of the other pieces of legislation where there is more than one bargaining agent, in the health and safety committees that are mandatory in the province, there is no problem with the setting up of health and safety committees within a workplace where more than one bargaining agent exists. In fact, it's called a little bit of cooperation, where representatives of bargaining agents get together and decide on who will be on the committee. I assure you that the same thing can happen when employment equity is introduced into a situation where there is more than one bargaining agent, and the committee will be comprised solely on what the employees and the employer decide.

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The Chair: All in favour of Ms Witmer's amendment? Opposed? That is defeated.

The next one is the government amendment 14(3). Mr Fletcher, go ahead.

Mr Fletcher: I move that subsection 14(3) of the bill be struck out and the following substituted:

"More than one bargaining agent

"(3) If the employees of the employer are represented by more than one bargaining agent, the employer and the bargaining agents shall establish a committee to coordinate the carrying out of their joint responsibilities.

"Composition of committee

"(3.1) The committee shall be composed of representatives of the bargaining agents and up to an equal number of representatives of the employer, in accordance with the regulations."

This amendment provides that where employees are represented by more than one bargaining agent, a coordinating committee must be established. It also replaces the current subsection 14(3) for two reasons: One, it divides the current subsection into two subsections, making the obligations clearer to read and to understand; and second, subsection 14(3.1) changes the current structure of the committee and allows the employer to have up to the same number of representatives on the coordinating committee as the bargaining agents.

This amendment addresses what employer groups such as the Business Consortium on Employment Equity and bargaining agent concerns were as to the structure of the committee, that it was too limited, and now there is some flexibility with this amendment so that there won't be an outnumbering of bargaining agent representatives and employer representatives.

Mr Jackson: As I read the original motion which the government chooses to strike out, the wording in the last sentence of it says, "The committee shall be composed of one representative of the employer and one representative of each of the bargaining agents."

Mr Fletcher: We just changed that.

Mr Jackson: I understand that you've made a concession to employers so that there's this equity, so there's an equal number. What you've abandoned here and what we tried to include in the amendment was that no bargaining group, for any reason, would be denied access to the committee, so that all workers in a given employment situation would have access to it.

Your original language in your bill, when you get away from the issue of disproportion employer-employee -- forget that part of it, but it did guarantee every bargaining unit. So when you go into a school the caretakers are represented, the office staff are there, the men and women who prepare the meals who are in a separate bargaining unit, each of these groups would be represented as opposed to the teachers, and the janitor is saying, "We don't need the secretarial staff and we don't need the other staff on our committee, don't you agree, school board, because you'd like a smaller committee?"

That's what I'm afraid of. I simply thought there were two things you're trying -- one thing you have achieved, which is equity, balance between employer and employee, but you haven't ensured that every worker group is represented. I just use the school board because the average school board now has seven or eight unions in some instances, so they would have every right to expect that they'd have seven or eight worker representatives on a committee discussing employment equity plans.

I would have hoped that the government, if it believes in that principle, would amend its own amendment, and I would consider wording something friendly to that effect. But if the principle is as Mr Winninger interprets it, then I really can't vote for this amendment. I support part of it, but I don't support the intent of an -- we've come this far. Why would we exclude a bargaining unit? It just doesn't make sense to me, unless they're afraid that the employer can't find four or five people to sit on a committee for its side. I wish someone would just give me another reason why we're allowing anybody to exclude anybody.

Mr Curling: I give credit to the government for listening a little bit.

Mr Murphy: A little bit of credit.

Mr Curling: A little bit of credit and listening a little bit. The fact is that we had actually pointed out to them the discrepancy, that the imbalance was there, and I heard the parliamentary assistant say, "Yes, we tried to balance it and get an equal amount of representatives on the employer side and on the bargaining agent side."

What they failed to do, which people have come before them quite often and told them, there are other people -- you cannot ignore people who are in the workforce. There are people there, not because they didn't join the union, they work there. They work there and they want to participate and they are part of employment equity.

Most of the time those are the people who are shut out, and they are members in the association. While the parliamentary assistant feels that they have another section that looks after those non-union people, or non-bargaining agents people, that will provide for them an arena for involvement, it doesn't.

I think when you're creating a plan for all people, you include all people. The fact is, where you have it later down in the legislation saying, "Consultation will take place," I gather too and I read it, that you will provide them more information than you had provided them first when the bill came out, but that doesn't help either.

I think, as you know, even as we work out this plan today or we sit here and go through, word by word, pointing out to you some of the discrepancies around the table -- just think about it, Mr Parliamentary Assistant, if you're doing that and work out a plan among bargaining agents and employer and they have come to an agreement and left out certain subtleness, some subtle part about the non-union people and the association people -- as I said, you catch them around the washroom or somewhere and say: "By the way, I want to share this with you. We have come to an agreement about this employment equity plan. How do you like it so far?" Then they would say, "Well, there's a lot to it and we would like to sit at the table with you and to be a part of this plan." They are not there, and to say it and then go back and say, "We have made all efforts to consult and we have consulted that group," is not adequate.

It is also an area where you're not consistent with the principle of having people being treated equally. You're setting up two processes here: one process, that those who join the unions are able to participate in an employment equity plan in creating an employment equity plan in one way, and the others who are members of associations, who are non-union, will be treated in a different process of what you call consultation -- and don't tell me that your consultation process is effective. We have letters upon letters here of people coming to them late, after the fact. You have people who are saying, "I want to appear before you," and you say, "I'm sorry. We have drawn the line and we have cut off or we've stop consulting."

Mr Fletcher: We didn't say that.

Mr Curling: Yes, you did. You said we must finish this thing at a precise time and the House leaders have agreed at a certain time that we can't hear for any longer.

Mr Fletcher: The House leaders agreed.

Mr Curling: You see, this thing is a very painful process. I know it's tedious, but in order to get a proper plan, we must include everyone. Everyone. Not only the bargaining agents people and their employer. There are other people in the workforce right there in employment who need not to be consulted, but to be a part of the process of preparing this. Your amendment here misses that opportunity, misses the whole process of having proper planning done to have an employment equity plan.

I appeal to you again, in all fairness, include everyone and stop setting up two processes. Stop discriminating. That's what's it's all about. I would just identify a systemic discrimination within this process. You're systemically discriminating against people who are non-union. Include them. Now we identify the barriers; get to it and include them in this.

Mrs Witmer: I'd like to follow up on the conversation that's taking place about the number of bargaining agents vis-à-vis the number of employer representatives. I am extremely concerned that some bargaining agents will not be represented on this committee that's going to determine the responsibilities and develop the employment equity plan.

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Mr Jackson talked about school boards. I used to be chairperson of a school board where we negotiated with 20-some-odd bargaining groups and I can tell you somehow all of these individuals need to be fairly represented. Also, if you take a look at the section I referred to before -- that's subsection 14(6) -- I think what we're seeing here is in the government's haste to get this legislation on the table, if they do want to go ahead and speedily do this the way that they've indicated they want to, it means that some of the information relating to a particular bargaining agent in the employer's possession will never become available to the committee that's looking at developing the employment equity plan.

This legislation is so shortsighted. It's just filled with all sorts of conflicts. Nobody has taken time to consider whether one subsection is consistent with another and you've got a big problem here. In fact I'd like to ask the lawyers who are present here their interpretation of subsection 14(6), if indeed certain bargaining agents are not represented on the committee, as to the ability to get that information.

Mr Fletcher: You want an interpretation of 14(6)? We're not at 14(6).

Mrs Witmer: Yes. What I'm saying to you, if you only have -- for example, say you've got 22 bargaining agents, and you do in some school boards, as you well know.

Mr Fletcher: Yes, I know.

Mrs Witmer: According to the bill as it's presently written and the changes that you're going to be making in your motion 14(6), it means that only those bargaining agents that are on the joint committee will be able to access the information in the employer's possession in respect to their part of the workforce. The other agents and the information relating to that particular workforce will not be made available.

Ms Beall: Perhaps if one looks also at the consultation draft of the regulations as to how the coordinating committee works, it will become a little bit more helpful to understand. What the legislation says is, first of all, bargaining agents and the employer jointly carry out the responsibilities set out in sections 9, 10, 11 and 13. Subsection 14(3) says if there's more than one bargaining agent, then you have a coordinating committee to coordinate how the bargaining agents and the employer carry out their joint responsibility.

The coordinating committee is made up of representatives of the bargaining agents. When you look at subsection 14(3) in the present government motion, it starts off by saying, if they're "represented by more than one bargaining agent, the employer and the bargaining agents," meaning the employer and all the bargaining agents, establish the committee. Then it goes to "coordinate the carrying out of their joint responsibilities." Then it goes on to say in (3.1), "The committee shall be composed of representatives of the bargaining agents" -- again you're talking about all the bargaining agents -- "and up to an equal number of representatives of the employer."

Now, what Mr Winninger pointed out was it may be possible for this wording to provide flexibility that if two bargaining agents decide to have the same person be their representative at the coordinating committee, you may have of seven bargaining agents only five members on the committee, because two of the members may represent more than one bargaining agent for the purpose of the committee. That doesn't mean the bargaining agents don't have a representative on the committee; it means the bargaining agents may have decided to pool together and establish the term that he used, an "executive committee," to deal with the coordinating committee.

This is a different thing from the wording in subsection 14(6), which talks about providing information to the bargaining agent. It doesn't say "shall provide the representative of the bargaining agent at the coordinating committee"; it refers back again to the bargaining agents. So you now look back again to the individual bargaining agents within the workplace, separate and apart from the representatives on the coordinating committee.

Two points to make: First of all, the wording in 14(3) and (3.1) means that all bargaining agents have a representative on the committee, whether they do it one each or whether they do it two each or whether they do it sharing a representative. Second, 14(6) refers back to the bargaining agent, so it's the bargaining agent who obtains the information. I hope that clarifies it.

Mrs Witmer: I don't think it really does clarify it. I appreciate your attempt at trying to clarify it, but I think what all of us on this side of the table have been trying to point out to you is that there are inconsistencies in this section. There is certainly a hint of some inequity and there's a tremendous amount of confusion.

Somebody's going to have to interpret all of this, and I think again I will say to you it really is a legal nightmare because it's subject to tremendous interpretation. You can see that some of this is going to be challenged, and for anyone hoping to see employment equity provided in this province quickly, that's certainly not going to happen. There are going to be some real serious problems with the legislation as it's presently written because it lacks clarity and it's subject, I believe, to different interpretations.

Mr Fletcher: Mr Chair, I've listened to what Mrs Witmer has been saying and I would like a 10-minute recess to discuss with my caucus members what Mrs Witmer is saying. Also, to find out exactly --

Mr Jackson: Which lawyer --

Mr Fletcher: No, to find out exactly if her concerns can be addressed in some way or if they are being addressed. I'd like to hear what my colleagues have to say.

The Chair: Let me ask you a question, Mr Fletcher: Given the time and the time that you're requesting for a recess, would it not be appropriate, if I can get a sense of the members, that we adjourn and deal with this when the committee returns to these other matters?

Mr Fletcher: That's up for debate. I would much rather have a recess, personally.

Mr Jackson: I think the Chairman made a wise suggestion.

Mr Winninger: If you're seeking comments, Mr Chair, I'd rather proceed, and if we do need a few minutes to discuss the Witmer proposal, I'd be happy to do that.

Mr Murphy: Mr Chair, on a point of clarification: When do we normally quit?

The Chair: No, he asked for a recess for 10 minutes. At 10 minutes sharp I will resume.

The committee recessed from 1628 to 1636.

Mr Fletcher: Thank you to the committee members so we could have a discussion with our members about subsection 14(3) and its impact on subsection 14(6), and from the explanation given by our legal counsel as far as the impact of 14(3) on 14(6), we agree with what was said earlier on the record, so we like it the way it is.

The Chair: All in favour of Mr Fletcher's amendment? Against? Motion carries.

Government motion next, 14(5).

Mr Fletcher: I would like to move that subsection 14(5) of the bill be struck out.

This amendment deletes the requirement to amend a collective agreement when it conflicts with the employment equity plan. The intended purpose of this section is to ensure that employment equity plans prevail over collective agreements, and that is reflected in an amendment to section 5. Relationship between the employment equity plan and collective agreement is more appropriately dealt with in section 5 as an interpretation matter.

The Chair: Speaking to that, Mr Fletcher?

Mr Fletcher: I just did.

The Chair: I apologize. I was engrossed elsewhere for a moment. Debate?

Mr Murphy: I know there was the amendment made to section 5.1, I believe it was, and that this is the companion amendment to that. The wording in what was the old subsection 14(5) is different than what the government has moved as an amendment to section 5.1. In this sense, what 5.1 does is say that if you negotiate an employment equity plan, it prevails to the extent of any inconsistency but you don't amend the plan; it just prevails. Subsection 14(5) argues for an amendment of the collective agreement to resolve the conflict, and I'm wondering, at least to begin, what I can get from the technical staff through the Chair and through the parliamentary assistant about what they think the difference will be between the impact of subsection 14(5) and the next section 5.1.

Ms Beall: The old section 14(5) would require the employer and the bargaining agent to actually amend the collective agreement. The new 5.1 doesn't require the collective agreement to be amended. It merely says that if you have something in the employment equity plan, the plan itself would prevail over the collective agreement, but it does not amend the collective agreement; it does not form part of the collective agreement; it is separate from the collective agreement.

Mr Murphy: Can I ask the parliamentary assistant as to the logic, the policy reason behind not wanting to amend the collective agreement and not wanting to have that as part of the collective agreement?

Mr Fletcher: I think, from what counsel has said, it's quite clear. In section 5, the employment equity plan does supersede the collective agreement. It doesn't amend the collective agreement. It remains separate from the collective agreement. Subsection 14(5), the old 14(5), because of the amendment to section 5, is no longer needed.

Mr Murphy: That's really repetition of what legal counsel said, which, on its face, seems accurate. What I'm asking is why you have made the change.

Mr Fletcher: Because it isn't needed because of the change we made to section 5.

Mr Murphy: But why did you make the change to section 5?

Mr Fletcher: We already dealt with section 5 and we gave rationale to section 5.

Mr Murphy: Why is there this change?

Mr Fletcher: Why?

Mr Murphy: What's the rationale between --

Mr Fletcher: So that the employment equity plan has precedence over what is happening as far as employment equity in the workplace.

Mr Murphy: But it strikes me, in any event, that subsection 14(5) would do that.

The concern, I guess, here is I can see an employer and a bargaining agent or bargaining agents conducting a negotiation to come up with an employment equity plan separate and apart from the collective agreement. There may in fact be aspects -- it depends on the workplace. Collective agreements can be very voluminous, large documents, and I can see a circumstance where the employment equity plan could conflict with the collective agreement without it being really a conscious conflict between the employment equity plan and the collective agreement, because you don't turn your attention to it. I could see it coming up subsequently by way of, for example, grievance and arbitration when the situation arises because of the application of any number of things.

For example, I think back to what we were discussing under section 11 and the operation of seniority. Perhaps the impact of seniority -- and the example raised by Mr Jackson was Ontario Hydro -- there may be circumstances where there may be that unintended impact which only arises once there's a grievance. I think at that point you're into an arbitration and an adversarial way of resolving that conflict because of the 5.1, whereas I think subsection 14(5) really does force to a certain extent the focusing of the attention on conflict and try to resolve it in a consensual way as opposed to that adversarial way.

Really, it's more a raising of a concern about the fact that that might happen. If you delete this sub (5), you're going to not force them to focus on that conflict.

Mr Fletcher: Many collective agreements -- and when I say "many," many collective agreements in the private sector that I've been involved with -- there is usually a provision in most of them that does state that any federal and provincial legislation supersedes any article within this collective agreement. Basically, that is exactly what this is saying. In any collective agreement, any article can be subject to a grievance procedure. In any workplace, any disagreement between management and a union worker or an employee can be subject to arbitration. Arbitration and grievances are not necessarily adversarial. They are interpretations of parts of the collective agreement that must be ironed out, and an arbitrator will decide.

Unfortunately, the system has become somewhat adversarial, but the intent of the grievance procedure is to work out together whether or not there is a violation of the collective agreement or, in some cases, legislation. But, as I said, it's quite common in many collective agreements to have such a clause, that the collective agreements are superseded by provincial and federal legislation.

Mr Murphy: Absolutely, and that's happened all the time. That's not really my point. I think in fact subsection 14(5) is not a superfluous amendment. It can live together with section 5.1 in the sense that I think there is a value and a virtue to asking bargaining agents and employers to attempt to focus on the conflict, if there is one, between an employment equity plan and the collective agreement, as part of the process of coming up with it, as opposed to just saying, "Well, if it happens, then it supersedes," because there are not many arbitrations I've heard of that are cooperative ventures. In fact, an arbitration tends to be an example of the breakdown of cooperation.

So I think there is a value to that being here, of forcing that issue to be looked at up front, to be resolved in a more cooperative and consensual method than just leaving it until later. So I think that in fact section 5.1 and subsection 14(5) are not covering the same turf. You can say to an employer and a bargaining agent or bargaining agents, "Take a look at what you've done; where it impacts upon the collective agreement, amend the collective agreement."

Now, they may again not focus on everything. It's only subsequently, by virtue of an arbitration or an issue that arises that they don't see, that section 5.1 comes into play.

Mr Fletcher: If there is a disagreement between the contract and the employment equity plan, the employment equity legislation supersedes the collective agreement. That will be determined by the employment equity commission, or is it the tribunal? It would have to be arbitration if it were a grievance procedure.

Also, there are joint committees with bargaining agents, that when they're setting up their plan, they should be able to identify where there could be problems within the workplace, where the collective agreement may conflict with the employment equity plan.

Mr Murphy: That's my point.

Mr Fletcher: If there is a conflict.

Mr Murphy: So it's not superfluous.

Mr Fletcher: If there is a conflict, then the employment equity legislation supersedes the collective agreement.

Mr Murphy: Well, I've made my point. Go about it the way you want.

The Chair: All in favour of Mr Fletcher's amendment? Opposed? It carries.

Moving on, Mr Fletcher, subsection 14(6).

Mr Fletcher: I move that subsection 14(6) of the bill be struck out and the following substituted:

"Right to information

"(6) the employer shall provide the bargaining agent with all information in the employer's possession or control in respect of the part of the employer's workforce in which employees are represented by the bargaining agent that is necessary for the bargaining agent to participate effectively in carrying out their joint responsibilities, including the information prescribed by the regulations."

This section clarifies that the information an employer must provide to the bargaining agent is only information that relates to the employees that the bargaining agent represents. The section also provides that the information that the employer provides must be sufficient for the bargaining agent to participate and fulfil its obligation under the act. This section also provides a regulation-making authority to enumerate the information that must be provided.

Mr Curling: Here's a concern that has been expressed by businesses when they came before us, the employers, about information being handed over. I am quite sensitive to the fact that the bargaining agents who are at the table need all the amount of information possible in order to make very effective decisions in carrying out their duties to the best of their ability.

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Again, there's another side of it, really. As I said, if we are going to write employment equity legislation, we must be fair to all, and must not only be fair, but also be sensitive to the needs of others. An employer has a sensitive need here in the sense that he's in a competitive field. Regardless of what business he or she is in, it's a rather competitive field. Information is power and information can mean money.

The aspect of confidentiality has not been addressed properly and I would like to ask the parliamentary assistant what thought has gone into this in a sense of protecting some of those sensitive documents and information that could really cost an employer his or her business?

Mr Fletcher: Could you explain what sensitive information that would be?

Mr Curling: Information that other competitors would have.

Mr Murphy: Expansion plan?

Mr Curling: Yes, they could have expansion plan recruitment. Take, for instance, an employer -- let me give you an example, then, since you need an example. I'll maybe give you 10 examples, but I'll start with one: An employer may need to expand in a different direction or do some research or what have you. By indicating the strategy and the plan that I would employ a scientist of so-and-so and I need some people to do some research in that area, in the wrong hands will trigger off the competitor to know what direction that employer and that business is going and they could sort of gear up their business in order to start to compete and maybe be ahead of the game with them.

Business is like that, it's those who are there first, those who have the information; when they gather it, there are signs, just like how you make your budget secretive, in a sense, because if they know the government is going to buy land, it indicates somehow some development. All those things are information for business to decide how they should expand and what they should expand in.

To make information available to anyone without any documented sign of secrecy -- I could ask you that question: Will there be a document of confidentiality signed by all who sit at the table to say that you may not disclose any information beyond this table? That is only one example. I could lead into the other nine, but I'll let you deal with that one first.

Mr Fletcher: I'm trying to think where the information on the acquisition of land would be needed for an employment equity plan.

Mr Curling: What about the hiring of a scientist?

Mr Fletcher: If you advertise that you are going to hire a scientist --

Mr Curling: I don't want to advertise.

Mr Fletcher: How would you hire people?

Mr Curling: My strategy plan said this is my intention.

Mr Jackson: In the next two years we'll need another 25 employees because we're doing a corporate takeover --

Mr Fletcher: I'm glad you're explaining for Mr Curling, thank you. I'm going to defer to Mr Bromm on the technical part.

Mr Bromm: On your specific example, there's nothing in the act or the regulations that would require an employer to give any information with respect to future expansions of the workforce. There's nothing that would require the employer to say, "I'm planning on hiring 25 scientists in the next three months." I believe your issue comes up particularly in the area of goal setting. Because the goal-setting model that's now in the draft regulations focuses on proportions of opportunities, it does not require an employer to actually say what those future opportunities will be, only to set a proportion of any opportunity, whether they be zero or 100.

Mr Curling: It begs the question, then: this goal setting that we have here would not be real. You would say, "I will hold back whatever goal setting I have, because if I disclose my goals, where I want to go, it may then work as some other person taking over my competition, so I don't have to put my goals out." You are saying it's not necessary for them to put that out, the goal setting, is that what I'm hearing?

Mr Bromm: Exactly, but it doesn't make the goal-setting process any less real. Many employers who set goals for employment equity purposes, set goals as a proportion of opportunities that will be filled and in that sense, whether they hire 10 or 200 employees, they are going to make their efforts to fill the percentage they have set with the designated group members. It doesn't matter at the end of the day how many they have actually hired, it's the percentages they are striving to fill. They don't have to project how many they are going to actually have.

Mr Curling: I thought that was goals and time frame. In other words, the employer has to say where he or she wants to go, in what direction, how many staff they would need within the next two or three years to do so. Those are highly confidential matters. And you are saying now, they don't have to. Therefore then, the employment equity plan they're going to get will not be realistic, it will be either plan A or plan B. Plan A is the one I show you; plan B is the real one I keep so it's not the real plan itself. You say there is no obligation on the employer to reveal these things; and they must reveal that if they're going to expand.

Mr Bromm: Do you want me to keep going?

Mr Fletcher: Yes, go ahead.

Mr Curling: Maybe the parliamentary assistant has some policy papers there.

Mr Bromm: It doesn't make the goal-setting process any less real. In deciding whether or not an employer has met its goals will be an entirely retrospective exercise at the end of the three-year period. At the beginning of that three-year period the employer will say, "I am going to strive for a particular occupational group to hire a specific percentage of the designated group." For example, pick the designated group, women, and they will say, "In an occupational group, I am going to strive to hire 30% women." It's not a percentage that's picked out of the air, as you know, it's set in accordance with the steps that are in the regulations and that you had moved to incorporate into the bill itself.

At the end of the three-year period, if that employer has hired 100, it will show why it did or did not hire the percentage of women it had said it was going to. It's the same as if they had hired 50. They would still show why they did or did not achieve that result. It's no different than at the beginning of the three-year cycle, the employer saying, "I will definitely hire 50 women in the next three years." At the end of the three-year period, they still must show why they did or didn't hire that number of people. There's no difference between their proportional opportunity and setting an actual number because, as we heard from many employers, it is impossible to predict into the future a number of opportunities they will actually have and that in fact makes the goal-setting process less realistic than a proportional number.

Mr Curling: I don't want to say -- I don't understand what you're saying. The fact is that every business has a goal. They set their goals. They know what they're going to do and expect to do in the next three, four, five, 10 years itself. You have something in here which talks about goal setting.

What I'm hearing -- and I'll make it rather simple. If I plan to run, and if you ask me how many miles I could run and I could run 10, you're saying, "You don't necessarily have to tell me 10, you know, because although it's my goal, you can tell me five." In retrospect or, you said, in looking back, if I run six, you said: "Have you reached your goal?" I didn't reach my goal. I gave you plan B. Goal-setting is, you said, "Only the company would know how to set their own goals." But what they're going to do to you, from what I'm hearing from you, is set the goal much shorter.

Mr Fletcher: Mr Curling, using your example -- and first of all using your jogging example, because I don't believe you jog anyway.

Mr Curling: I said "run."

Mr Fletcher: Okay, you're running. If you set your goal at 10, over time you may hit 10 but you may get to six first, seven and eight and nine in a progressive step. A person who owns a company, Widget Company A -- everyone knows the widget company -- projects that it will hire a certain percentage of people from a designated group based on its geographic area and all the things that are in the regs and how it can be representative of its geographic area: "That's what we can do. That's our goal. We will try to attempt to get to that point by such-and-such a time." That is their goal. Once they get close to their goal or once the three years are up in this reporting time, if they haven't reached their goal then they have to explain why.

Mr Curling: Mr Fletcher --

The Chair: Mr Curling, the point I want to make is that it is a minute to 5. If I felt the next three speakers were going to be brief, then I would terminate this section. If not, then I would suggest we adjourn and come back to this another time. Will you be brief?

Mrs Witmer: I'll be brief. We actually are pleased that the government did respond to the request to limit access to information only to the part of the workforce the bargaining agent represents. We actually have a similar motion. However, the issue of confidentiality was of grave concern to the business community, so we have added two additional amendments to protect limited access to confidential information. The first one is subsection 14(7) where we say:

"(7) Despite subsection (6), the employer is not required to provide the bargaining agent with personal information in respect of an individual employee or business information of a strategic or proprietary nature."

This was requested to be added by the employer community, and we feel if the government does support that subsection, it would adequately protect the access to confidential information and the release of such information.

We've also added another subsection, that is, subsection 35(2). This amendment extends the confidentiality provision to information collected from employers. If we turn to that section, it says:

"(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."

We feel that would address that concern, if the government was willing to accept those two additional amendments.

Mr Murphy: I'd just like to place the question and we can leave the answer to when we resume. It seems to me that by the definition of "goal" in the regulations, you have to set a goal as a proportion of your opportunities, which is your hiring opportunities, by occupational group in a geographical area.

Let's say I'm a business that's expanding and over the next three years I have a plan in competition with another franchise -- pizza; it doesn't matter what -- to expand. Where I go in communities is important information to whoever is competing with me, when I plan to go into an area, how quickly, how strongly. I'm sitting there with a goal, which I give to my employees, for the next three years, to say, "I have 10 opportunities in the semi-skilled category in the geographical areas of Kitchener, Ottawa and London in the next three years." To that pizza franchise that fits within the definition of the act, that is valuable, competitive information. To not provide confidentiality, I think, is a difficulty.

I heard what Mr Bromm said, and I don't think frankly it addresses that very concern. I don't want the answer now, because it's late, but I'd like to ask him to think about it and to come back, to see whether he thinks that really is addressed in this; not him, to be fair, the parliamentary assistant; not to put him on the spot.

Mr Winninger: The two opposition members took so much time at being brief, there's no time left for me, so I'm yielding the floor.

The Chair: Okay. Moving to the amendment, all in favour of Mr Fletcher's amendment?

Mr Murphy: No, no, that's not the basis on which we were brief.

The Chair: You literally wanted to stand this matter down. All right. Rather than voting on this, we'll leave it and come back to it.

This committee will resume its work when the Legislature is back, when we sit again, at the call of the Chair, some time soon. This committee is adjourned.

The committee adjourned at 1704.