EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
CANADIAN MANUFACTURERS' ASSOCIATION, ONTARIO DIVISION
TORONTO EMPLOYMENT EQUITY PRACTITIONERS' ASSOCIATION
REXDALE COMMUNITY MICROSKILLS DEVELOPMENT CENTRE
ANTI-RACIST MULTICULTURAL EDUCATORS' NETWORK OF ONTARIO
COALITION OF VISIBLE
MINORITY WOMEN (ONTARIO) INC
CONGRESS OF BLACK WOMEN OF CANADA -- TORONTO
BLACK BUSINESS AND PROFESSIONAL ASSOCIATION
RACE RELATIONS COMMITTEE OF KITCHENER-WATERLOO
ONTARIO ADVISORY COUNCIL ON DISABILITY ISSUES
CONTENTS
Wednesday 25 August 1993
Employment Equity Act, 1993, Bill 79
Canadian Manufacturers' Association, Ontario division
Janis Wade, chair, human resources committee
Ian Howcroft, employee relations policy adviser
Linda Bishop, employment equity coordinator, Dofasco Inc
Toronto Employment Equity Practitioners' Association
Mary Dauphinee, chair, legislative subcommittee
Jane Garthson, consultant
Mary Woo Sims, representative
Lynn Bevan, representative
Rexdale Community MicroSkills Development Centre
Huda Abuzeid, trainee
Patricia Hitchcock, president, board of directors
Anti-Racist Multicultural Educators' Network of Ontario
Dr Ahmed Ijaz, president
Beverly Saskoley, member
Jacqueline Jean-Baptiste, member
Coalition of Visible Minority Women (Ontario) Inc; Congress of Black Women of Canada--Toronto
Fleurette Osborne, co-chair, Coalition of Visible Minority Women
Joan De Peza, co-chair, Coalition of Visible Minority Women
Kyle Rae
Black Business and Professional Association
Michael Lecky, representative
Joyce Burpee, representative
Canadian Bankers Association
Joanne De Laurentis, vice-president, domestic banking and public affairs
Fresia Pérez, vice-chair, employment equity standing committee
National Grocers Co Ltd
David Williams, president
Robert Rochon, manager
Race Relations Committee of Kitchener-Waterloo
Philip J. Fernandez, associate member
Ontario Advisory Council on Disability Issues
Dr Shirley Van Hoof, chair
Partap Grewal, member
Pat Hatt, vice-chair
Continued overleaf
Continued from overleaf
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
*Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
*Acting Chair / Président suppléant: Fletcher, Derek (Guelph 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:
Callahan, Robert V. (Brampton South/-Sud L) for Mr Chiarelli
Carter, Jenny (Peterborough ND) for Mr Malkowski
Fletcher, Derek (Guelph ND) for Mr Duignan
Sterling, Norman W. (Carleton PC) for Mr Tilson
Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Harnick
Also taking part / Autres participants et participantes:
Bromm, Scott, policy adviser, Ministry of Citizenship
Clerk pro tem / Greffière par intérim: Bryce, Donna
Staff / Personnel:
Campbell, Elaine, research officer, Legislative Research Service
Kaye, Philip, research officer, Legislative Research Service
The committee met at 1001 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.
CANADIAN MANUFACTURERS' ASSOCIATION, ONTARIO DIVISION
The Chair (Mr Rosario Marchese): I welcome the representatives of the Canadian Manufacturers' Association and point out that you have half an hour for your presentation. A number of people have been using a lot of the half-hour for their presentation, leaving very little time for questions. If you can make your presentation up to 15 minutes, that would allow five minutes for each caucus to ask you questions. Please begin at any time and introduce your colleagues from left to right.
Ms Janis Wade: Thank you very much and good morning. My name is Janis Wade and I'm the vice-president of human resources at CCL Industries Inc. I'm also the chair of CMA's human resources committee. With me are Linda Bishop, Dofasco's employment equity coordinator, and Ian Howcroft, CMA's employee relations policy adviser.
The Canadian Manufacturers' Association, Ontario division, appreciates the opportunity to provide the standing committee on administration of justice with its comments on Bill 79. The CMA has been very involved with this important issue and has made numerous submissions and representations regarding employment equity over the last several years.
As most of you are probably aware, CMA is a voluntary organization which represents manufacturers of all sizes, from all sectors and from all regions of the province and the country. Our members produce approximately 75% of the province's and the country's manufactured output. In Ontario, approximately 847,000 workers are directly employed in the manufacturing sector, and another 700,000 jobs in the service sector are dependent on manufacturing.
To start out, before we comment on Bill 79 specifically, we'd like to make very general comments with regard to employment equity. CMA has always supported the intent, concept and goals of employment equity: the removal of overt and systemic discrimination and barriers from entrance to or promotion in the workplace. We argued that employment equity could best be achieved through non-legislative means rather than a mandatory legislative approach.
It is important to highlight the work that CMA has accomplished and is continuing to accomplish in the area of employment equity. For example, CMA has dedicated resources to ensure that the employer perspective in general, and the manufacturing perspective specifically, were provided to the government in developing its initiative. We were represented on the regulations development advisory group during the initial stages of the regulation development process, and we continue to be represented on the minister's technical advisory committee to ensure that the minister is kept appraised and advised of our concerns on the issue.
CMA is also developing an employment equity manual that will assist manufacturers, and hopefully any interested employer, to understand and implement employment equity. This is not a new role for us, as we have developed other related manuals such as Employment Equity for Women: How Does Your Company Measure Up? (which was a joint venture with the Ontario women's directorate) and the CMA Pay Equity Manual.
The office of the Employment Equity Commissioner is currently updating the How Does Your Company Measure Up? manual to take all four designated groups into account. CMA has also held numerous seminars and events on employment equity to ensure that our members understand what is required of them and how they can best implement and achieve the desired goals of employment equity. In fact, we have a full-day conference on employment equity scheduled for September 24, at which both the minister and the commissioner will be speaking.
CMA would like to commend the Minister of Citizenship, the deputy minister, the Employment Equity Commissioner and their respective staff for the extensive consultations they conducted and for the accessibility they have afforded CMA and other groups. However, there is still a need for some significant changes to the bill and to the regulation to ensure that employment equity can be implemented in a reasonable, workable and pragmatic manner.
The government must recognize that employment equity is a multifaceted and complicated issue. There are no easy answers or quick-fix solutions. It could take years before significant quantitative changes will be realized. This is especially true as we are experiencing one of the worst recessions in decades. Employment equity would be an extremely difficult process to implement in the best or most robust of times. These dire economic circumstances only make things more difficult.
Manufacturers in Ontario, and in fact all employers, are challenged on a daily basis with the economy and with other government initiatives, legislation and regulations. The government must do all it can to improve and enhance the province's competitive position. We are a small part of a larger global economy, and the government must eliminate unnecessary burdens and assist employers to become more competitive. Consequently, all government initiatives must take the economic realities into account.
CMA has always felt that employment equity could best be implemented if the government provided a leadership role vis-à-vis education, communications, training, and developing assistive materials. It is also essential to recognize that changes will have to be made to our education and training systems, as an integral component of employment equity is ensuring that there is a qualified labour pool which employers can draw on.
It is also essential that there be flexibility in the system, as each employer will face different problems and situations. There is no one right way to achieve employment equity, therefore it would be detrimental to the goal of achieving employment equity if an employer's options are limited. The legislation and the regulation must ensure this flexibility and avoid undue rigidity. We therefore suggest that the legislation be redrafted to incorporate and allow for the necessary flexibility and to remove some of the prescriptive sections which would force employers to take actions that would not be successful at their workplaces.
Today we will try to focus our main concerns on the bill. However, we may find it necessary to comment on some specifics that were left to the regulation. CMA will also be providing the ministry with a submission on the regulation prior to the October 29, 1993, deadline.
One of the major issues that CMA raised with the ministry was the need for harmonization with other governments' employment equity initiatives. The government has acknowledged the benefit and need for harmonization and has taken steps to try to ensure that harmonization does occur. It would not make economic sense to require a company to expend resources to comply with different bureaucratic requirements. We were therefore pleased to see that the regulation under Bill 79 will recognize an existing survey and employment systems review if certain requirements are met. Although there are some differences with the definitions of the designated groups in the federal government's employment equity initiative, we are hopeful that true harmonization will occur.
The government has recognized that with limited resources they must be used as productively and effectively as possible. We encourage the government to continue to work with the federal and other governments to ensure continued harmonization. If a company is in compliance with one government's initiative, it should be recognized by the other governments.
I'm going to pass the presentation over to Ian to continue now.
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Mr Ian Howcroft: CMA is extremely concerned with Bill 79's requirements, and the regulation's requirements, with regard to the joint development of an employment equity plan with a trade union. CMA recognizes that employee participation and involvement are important. In fact, they're essential to implementing a successful employment equity initiative. However, we do not feel that the bargaining or negotiating of an employment equity plan is appropriate. CMA feels that employment equity is of such import that it should not become a "bargainable issue." Rather, the legislation and the regulation should set out the requirement that an employer consult with its trade union and with its employees if they're not in a trade union. Therefore, the sections requiring joint development or joint responsibility should be deleted.
To retain the requirement of joint responsibility could cause delays in implementation, create an adversarial relationship with the union or other employees, fragment the workplace, add unnecessary complications and result in more issues being referred to the commission and/or the tribunal for ultimate resolution.
Each employer should be able to determine the best consultative vehicle for its own purposes. It is impossible to codify or set out in the regulations the best approach for every company. As it is in the employer's best interests to ensure the successful implementation of its employment equity initiative and its employment equity plan, there's a great incentive to ensure that employee participation takes place properly and that the necessary information is solicited.
Furthermore, it's unfair to have "joint responsibility" when only the employer is held accountable. Therefore, the "joint responsibility" aspects of the bill must be deleted and replaced with a productive consultative mechanism. The commission should develop guidelines outlining various consultation methods and models that could be used by employers to determine what's the best consultation vehicle for their purposes. This is a major area where amendments could be made to help add flexibility to the government's initiative.
Another related issue pertains to seniority rights. CMA objects to the protection of seniority, given that there is no corresponding defence for employers if seniority hampers them from implementing or reaching their employment equity targets or goals. This section should be deleted or employers should, at a minimum, be given the same protection. Seniority can be a barrier to achieving or furthering one's employment equity initiative.
Another issue of significant concern pertains to the requirement for self-identification in the survey. Given that employment equity under Bill 79 is still a numbers-driven process, it is essential that the data be as reliable as possible. Using only self-identification will be fraught with problems and it lends itself to possible abuse, underreporting and unreliable data. We therefore suggest that self-identification be used as a starting point, and in most cases this is probably entirely sufficient. However, there must be an alternative mechanism to ensure that the data is correct and reliable.
For example, under Bill 79 and the regulation, an employer would be forced to use the data as per the survey results even if the employer could demonstrate through other data or surveys that the results were ludicrous and not a true reflection of its workforce. An example that one employee member cited concerned a decision made by a significant number of its employees to not complete the employment equity survey. This decision was made for reasons unrelated to employment equity. The misuse of the survey would result in a situation of underreporting, which we find unfair and inequitable. In situations of intentional abuse, there is currently no mechanism to prevent or correct this.
Another example where using only voluntary self-identification could pose a problem is where a company has expended resources to accommodate a person with a disability but, because of this accommodation, he or she does not feel disadvantaged and hence does not self-identify. If an employer has expended resources, then it should be able to have the person identified for employment equity purposes. Again, in a numbers-driven system, an employer must be able to demonstrate the positive results and successes that stem from its efforts.
We therefore recommend that the issue of self-identification be revisited, and we would suggest that a combined or alternative mechanism be provided for in the legislation. Once everyone is familiar with employment equity and its intent, people will feel more comfortable with self-identification. For the last 10 or 15 years people have been told, "You can't ask certain questions on application forms," so they have a mindset that, "We shouldn't be asked this; we're not going to answer it," so you have to get over that hurdle. Once we've reached that, it will be a different situation, but until then we need to have some type of alternative mechanism to correct data that are wrong and can be demonstrated as such.
I'll now let Linda Bishop finish our formal presentation.
Ms Linda Bishop: We'd also like to express concern with regard to the requirement in the regulation to resurvey after nine years, which could prove to be a needless waste of limited resources. If an employer has a process or processes in place to ensure that its survey data is updated on a proper and continual basis, there's no need to require resurveying. Resurveying should be left open as an option for companies that feel it is necessary in furthering their employment equity initiatives. However, resurveying should not be a mandatory requirement if a company can demonstrate that it has valid, up-to-date data.
Confidential information is another area we're extremely concerned about. There have to be limits on the information that an employer would be required to provide or make accessible to the employees or the trade union. Any information of a strategic nature that pertains to its future plans, that concerns the viability of the company or the company's financial position should not be released. To release such information could negatively impact the company and weaken its competitive position. Employers must ensure that they can protect themselves and this requires maintaining certain information as confidential.
Companies also have confidential information about their employees that employees would not want released. Therefore, employers are in a position of trust and have certain fiduciary responsibilities vis-à-vis this information. These rights and responsibilities must not be abrogated by the legislation. The rights of the individual employee must be recognized and protected.
The legislation and the regulation must ensure that fishing expeditions will not be permitted. To release certain information could be damaging to the economic viability of the company and it could result in lost jobs which would be the advantage of nobody. Therefore, it's essential that employers be allowed to protect confidential information.
We were pleased to see that the government made changes with regard to goal setting in the regulation from what was initially contemplated. For example, we were happy to see that the requirements for goal setting are in relation to opportunities for change. This makes much more sense and will be far less onerous than what had previously been discussed, such as setting specific numbers as goals. However, even with these improvements in the regulation, we'd like to see changes made in the bill that would codify the merit principle.
Employees must have the requisite skills and abilities to do the job. In a competitive marketplace, qualifications cannot be sacrificed and this should be recognized in the legislation itself. The minister and other ministry officials have stated that the merit principle will not be sacrificed in the pursuit of employment equity and therefore it shouldn't be difficult to include that kind of language in the legislation itself.
It's also important to stress that an employer's workforce must only be compared to the qualified and available labour pool. We would therefore suggest that this also be included in the legislation. We are concerned with the regulation referring to the working-age population in certain circumstances. The working-age population would include many individuals who are not interested in working or not available for work or who are not able to work. To compare an employer to this group is unfair, inappropriate and non-productive.
CMA has concerns with regard to the duty to accommodate. There is currently a duty to accommodate under the Ontario Human Rights Code and there may be conflicting or differing duties to accommodate depending on which piece of legislation we use. It's essential that in determining what type of accommodation should be required, the reasonableness test or standard be used. One should only be required to expend resources or take action that would be reasonable in the circumstances. It is hoped this is the interpretation that will be used and followed by the Employment Equity Commission or Employment Equity Tribunal.
In conclusion, we recommend that the best way to realize a successful employment equity initiative is to have the necessary buy-in from the employer community. This can best be achieved by ensuring that the legislation and the regulation are themselves reasonable and will not result in an onerous, bureaucratic, regulatory nightmare. If employers can have confidence in the system, they'll be much more likely to accept the government's initiative and be receptive to the government's approach to employment equity.
Approximately 80% of new workforce entrants will be members of the designated groups. It would therefore not make good economic or business sense to exclude the majority of the potential new workforce from consideration. However, for the foreseeable future, there will not be a lot of hiring. In fact, the trend is still to downsize and streamline operations. There will not be radical changes to hiring trends over the next three to five years. This is the unfortunate economic reality with which we must deal.
The most beneficial and productive use of resources for the ministry and the Employment Equity Commission will be in the area of education, training and communication. They should work with the employer community, the worker community, designated groups and other interested parties to make sure that appropriate and useful materials are developed. If this is done, it'll go a long way to ensuring the proper implementation of employment equity. CMA will continue to work with the minister, her officials and the office of the Employment Equity Commissioner to ensure that a productive and workable employment equity initiative is realized.
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Finally, CMA would again like to express its support for the intent, concept and goals of employment equity. The legislation and the regulation should set out the framework from which one must work, but there must also be enough flexibility for each employer to take its own unique circumstances, workforce and conditions into account. It's impossible to develop legislation and a regulation which will encompass every situation and be applicable or appropriate to every employer. Consequently, the legislation and the regulations should not attempt to do this. This type of information would best be left for guidelines and other assistive materials that the ministry, and particularly the Employment Equity Commission, should develop and promote.
Of course, in order to address the whole issue, there are other factors the government must be cognizant of and address. These include such things as education, training, societal values, demographics and culture, to name but a few. Only if all these dimensions of the issue are addressed will the entire situation improve. It must also be recognized that change will take time; 10 years is not a long period in evaluating the success of an employment equity initiative. We hope we've been productive in our comments and we welcome any questions. We apologize for taking a little bit more time than we should have.
The Chair: We'll begin with the third party. There are three minutes per caucus.
Mrs Elizabeth Witmer (Waterloo North): I want to congratulate you. I think it's a very constructive response to the government's initiative and I think you've certainly made some excellent suggestions. I see that the key to your presentation really is the need for the employment equity bill and the legislation to be as flexible as possible to accommodate the needs that the individual employers have, whether they're large or small, or where they're located. Yesterday we had the municipal sector in and certainly they have unique needs as well.
I'd like to focus on self-identification. It has certainly been indicated to us, as you have, that this could be an area where we're going to have some problems, and you've suggested that some people might not wish to self-identify in the appropriate way. You're suggesting there be a combined or alternative mechanism provided. How would you see that worded or what type of alternative would you see?
Mr Howcroft: What we were envisioning was to have self-identification as a starting point and, as we said, in many cases that would be sufficient. There wouldn't be any problems. But where an employer knew that the survey data was inaccurate or not correct or not truly reflective of his workplace, they have some type of fallback position to say: "No, this is the true situation we have. We had conducted a survey earlier. We have other information that would show that we have better representation than what the results show," whether there's a problem, someone was abusing the survey, and the results just are not reflective. There has to be some safety mechanism there to allow for that type of information to come forward.
Mrs Witmer: Then there needs to be an amendment worded in some way that would accommodate that?
Mr Howcroft: Yes, in the legislation itself.
Mrs Witmer: You mention that there's a possibility there might be some confusion between the Human Rights Commission and employment equity. Do you want to expand on that further? What difficulties can you foresee in it?
Mr Howcroft: We see in other areas where you have one piece of legislation referring to another piece of legislation, you have different standards. In one piece of legislation an employer might be found not to have been in violation, in another you are, so we'd just like to see some consistency. We stress that when you're looking at accommodation, there has to be a reasonableness test or a reasonable standard. We just want to assure, as best we can in the legislation, that goal is realized.
The Chair: Thank you. Sorry, there's no more time.
Mr David Winninger (London South): Thank you for your presentation. A number of presenters, both individuals and groups, have suggested that there be no modifications or exemptions for smaller companies -- for example, under 50 or under 100 -- and that the provisions of the Employment Equity Act should be extended uniformly to smaller companies. One presenter suggested yesterday it was enough to have two employees to attract the provisions of the act.
Could you comment on that, given your stated preference for flexibility in the operation of this act?
Ms Bishop: One of the things we need to keep in mind is that all employers' circumstances aren't the same, particularly if you're dealing with a larger organization and a smaller one. There will be different resources allocated to human resources in a larger company versus a smaller company. If you're looking at having all organizations comply with the bill, then you really have to be flexible because what, let's say, Dofasco will be able to do with our resources might not be the same that a smaller organization can do with its budget and its resources. Indeed, we shouldn't be looking for the same kind of compliance with smaller and larger companies.
Mr Winninger: Thank you. Secondly, some companies, particularly larger corporations, have suggested, to ensure flexibility for their corporations with many workplaces, that they be allowed to develop employment equity plans for several specific workplaces as opposed to a company-wide or, in some cases, a province-wide plan. Do you have any response to that?
Ms Wade: Certainly from our standpoint at CCL, we have a number of different locations within the province of Ontario. They are totally different businesses, totally different workforces and I think certainly any plan that they create, for it to be effective, would have to be specific to that location. A company-wide plan would not be nearly as effective as the individual workplaces because there are so many differences.
Mr Winninger: So you would adopt that approach?
Mr Howcroft: I think it gets back to flexibility. Certain companies, it might be appropriate; others, it wouldn't be appropriate. You have that flexibility to allow companies to take the steps that best promote employment equity and best allow them to realize those goals. You can't compartmentalize everyone into one situation because the differences are so varied.
Mr Alvin Curling (Scarborough North): Thank you for your presentation. I think you've made some excellent points here in your presentation. I also see quite a few contradictions, too, in your presentation. The fact is that one of the things that caught my eye strongly was, you said: "Approximately 80% of new workforce entrants will be members of the designated groups. It would therefore not make good economic or business sense to exclude the majority of the potential new workforce from consideration."
The reason the law is being put in place is because we have found that the designated groups are being excluded and we have heard the words here all the time, that it makes good economic sense to have employment equity, but it was never done. So I've seen somehow there is a support for employment equity; however, it's a bad time to do it. Maybe I'm picking up wrong from your presentation but --
Mr Howcroft: I don't think that's the point we're trying to make there. What we're trying to say is that if the economy improves and companies start recruiting in large numbers again, 80% of the people are going to be members of the designated groups into the workforce. What we want to ensure is that companies can get the best people from all sectors, all the designated groups and to do that you look at the qualifications and that's why we want to codify the qualification or the merit principle in the legislation itself.
Mr Curling: But this is the whole entrenched thinking, that the people who are coming in are not qualified. That's why we want the government to entrench in the legislation that the merit principle is there. People are qualified coming into the workplace. They have been shut out. Those who get in are not moved up because of the contradiction of the unions which have worked out some deal somehow that seniority must be protected. Even if they get in -- you see, there is trouble coming in, access; and there's trouble going up. The fact is that it must be treated fairly on that basis. People are qualified.
The other aspect you're talking about, training and education, is also extremely important, not only from inside the workforce but also outside of the workforce, that people have access to the professions they want to get into. I see a lot of contradiction when I see a presentation that's saying it makes good economic sense; however, the economic time doesn't tell us to do that. So educate me a bit.
Mr Howcroft: That's not the presentation we were trying to make or the position we were trying to give. What we're trying to say is that the qualifications are essential. We recognize that there have been systemic barriers. That's why we're here, to support the concept and intent of employment equity. We just want to make sure it is workable and that we have a piece of legislation that's not going to be process-oriented but rather is results-oriented.
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Mr Robert V. Callahan (Brampton South): I have concerns. You've talked about the self-identification aspect of it and I think you've dealt with it in terms of the employers being able to show that they have satisfied the goals that they're required to do.
I want to come at it from another standpoint. I want to come at it from the standpoint of the people who are disabled specifically -- let's say a person with a learning disability, not a dramatic one like the one where they write backwards or something, something like attention-deficit, which is a very prevalent learning-disabled thing, or a person who's an epileptic not identifying themselves or not being aware that this is going to get them a leg up by identifying themselves, and therefore being denied any benefits from this act whatsoever.
It would be better to spell out in the definitions what "disabled" means. Would you agree with that?
Mr Howcroft: I'm not sure I understand the question. I'm sorry.
Mr Callahan: You've done it from the standpoint of wanting self-identification of a person who's disabled so that you can say, "We've met the test of employment equity." That's the way I understand your brief.
I'm coming at it from the other side of the coin. If this is to help people, particularly disabled people, just as an example, and these people happen to have a disability which they don't consider to be a disability that's within the framework of the legislation so they don't record it and they get treated just like anybody else and they get no benefit from this act whatsoever, would it not be better to have it spelled out more specifically in the legislation what disabled is, what it includes, if it is just a person who's clearly disabled -- a blind person, a person who is unable to walk -- or if it includes these other aspects of learning disabled and so on?
Mr Howcroft: Our concern comes down to ensuring that the data the employer has are as reliable and as accurate as possible. What we want to have is the data reflect accurately the workplace composition, and self-identification can't do that on its own. We want to have a fallback or safety mechanism that an employer can use to make sure that the data is reliable, since that's what it's going to be held accountable to and compared to. That's our intent and those are our concerns with regard to self-identification.
Mr Callahan: I knew that --
The Chair: I realize, but we just have no more time. I thank the Canadian Manufacturers' Association for this presentation and participating in these hearings.
TORONTO EMPLOYMENT EQUITY PRACTITIONERS' ASSOCIATION
The Chair: Toronto Employment Equity Practitioners' Association: I would like to welcome all of you. Ms Dauphinee is the spokesperson. If you could you introduce the members on either side.
Ms Mary Dauphinee: I will during my presentation.
The Chair: We have half an hour. Leave plenty of time, if you can, for questions and answers.
Ms Dauphinee: Chair and members of the standing committee, I am Mary Dauphinee, past president of the Toronto Employment Equity Practitioners' Association and current chair of the legislative subcommittee. Nan Weiner, our current president, sends her regrets, but she is out of town.
On behalf of TEEPA, I am pleased to have this opportunity to comment on Bill 79 and to offer you our recommendations for amendment, which are outlined in more detail in the brief which we sent to you on Monday.
TEEPA is an active non-profit organization made up of over 300 employment equity practitioners. While we have members from across the province, most of our membership is located in the greater Toronto area. Our members are employment equity practitioners working for both the private and public sectors as well as unions, private consultants and trainers, and members of advocacy groups. Most of our members belong to one or more of the designated groups.
I have several colleagues here with me today who will help me answer any specific questions you may have about our submission: Jane Garthson, a private consultant; Jeroo Irani, who works in the public sector; Carol Mouland from the private sector; Lynn Bevan, a lawyer and author of a new book on employment equity implementation; and Mary Woo Sims from the broader public sector.
We are here to strongly support the passage of employment equity legislation in Ontario. Since we were formed in 1987 we have worked diligently towards this end. We are committed to legislation that is fair to all parties concerned and effective in achieving equity in the workplace within a reasonable period of time.
We are also practical people. Most of us work in the employment equity field and have firsthand experience with what does and does not work. We want legislation that is simple, practical, workable and oriented towards getting results.
We believe that our recommendations will strengthen the legislation, help defuse unnecessary opposition and better protect the rights of employees and employers.
While we support the passage of Bill 79 without delay, we believe that, in its present form, it will be difficult to implement for small employers. There are also some elements of unfairness to employees that we believe will cause unnecessary conflict in the workplace.
These difficulties, if not addressed, will, in our opinion, work against our mutual goal of fair treatment of all persons in the workplace.
Today, I will highlight six key areas of concern that we have with Bill 79 as it now stands and some general issues. These are all presented in greater detail in our brief. These include surveys, employee participation, seniority, administration and reporting, enforcement and definitions. I'll start with surveys.
TEEPA agrees with the legislation that self-identification is the most appropriate method of identification for employee surveys. However, our experience shows that if left as the sole method for collecting data, it can lead to inaccuracies and badly skewed data. For a number of reasons, employees intentionally or unintentionally provide inaccurate information or refuse altogether to participate in employment equity surveys. In fairness to the purpose of the survey and the employer who is being held responsible, there is a need to include a clause that allows employers to maintain the integrity of the data. The TEEPA brief outlines circumstances in which resurveying and one-on-one communication could be appropriate where the employer believes the integrity of the data is in doubt.
TEEPA also recommends that there be guidelines for data storage and access to reassure employees of confidentiality. Such assurance is necessary if employees are to be successfully encouraged to participate. Otherwise, the rate of accurate returns could be very low.
Further, in support of proactive hiring, TEEPA recommends that employers receive the explicit right to collect pre-employment data on designated group membership, so long as such requests are clearly earmarked for employment equity purposes.
Finally, to ensure that time and resources are not spent in unnecessary resurveying, we recommend that employers have the right to use existing surveys where results would likely be substantially similar.
Employee participation is another area of concern for TEEPA. We are concerned not only with fairness to all employees but the appearance of fairness to all. The legislation appears to depart from this principle in its approach to the differential requirements regarding the participation of union and non-union employees. We also suggest enforcement provisions for employee representatives who obstruct the implementation of employment equity.
We were pleased to see the government discuss seniority in the legislation. We find the current wording of subsection 5(2) to be confusing. It appears to allow seniority to override employment equity in layoff and recall, without clarifying that this is an exception to employment equity principles. It also leaves other applications of the seniority principle unclear and in question.
TEEPA does not believe that basic human rights can or should be the subject for a negotiation or bargaining. Therefore, TEEPA recommends that subsection 5(2) be deleted. If this is not acceptable, we propose that at least the principle be stated that employment equity overrides seniority except in these specific situations and only when other options have been explored and not found feasible. We believe that this reference to seniority must be amended to make it absolutely clear that where seniority is identified as a barrier in any circumstance, the employer and the employee representatives must find solutions that do not take away from human rights.
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In the administration and the reporting sections, TEEPA is concerned about delays in implementing employment equity if undue administrative burdens are placed on employers. TEEPA recommends making the Employment Equity Commission formally responsible for providing support to employers in areas such as external workforce data and software. TEEPA further asks that no administrative or reporting requirements be imposed on employers except those necessary for the employer's internal evaluation and plan development and commission monitoring.
TEEPA is very concerned with the enforcement section of the legislation, especially with the proliferation of tribunals related to equity and human rights. The processes of enforcement should be simplified and streamlined wherever possible. A single-window approach is recommended for laying complaints and hearing appeals. Employees should not have to have their complaints bounced from one organization to another. Again, employers' workforce actions should be perceived as part of an overall system of strategies and practices, not seen in isolation from one another.
TEEPA recommends an expansion in the operation of the Human Rights Commission to allow for employment equity-related discrimination complaints and systemic audit. The Employment Equity Commission's role would be administration, communication, support, monitoring and compliance auditing. In addition, there would be no Employment Equity Tribunal and the human rights board of inquiry system would include employment equity hearings. We believe that these changes are essential as they would reinforce the supremacy of the Human Rights Code, which we feel the current wording in section 51 jeopardizes.
TEEPA suggests revising some of the definitions in the legislation. We recommend that the definition of "employer" should be consistent with other Ontario labour laws and should ensure its application to related employers in light of the difficulty with pay equity legislation in this regard. Employers should not be able to form artificially smaller entities in order to avoid levels of compliance with the legislation. We also recommend that the act provide clear definitions for "positive measures" and "accommodation," since how these are interpreted is crucial to the success of the legislation.
TEEPA supports leaving the definitions of designated groups out of the act so long as Bill 79 does not restrict the government's future ability to issue regulations that define and deal with subgroups such as persons with severe disabilities.
Many TEEPA members are very concerned about the opposition to the legislation. The main arguing point has been that employers will be forced to hire unqualified people. TEEPA members know that hiring and promotion in the past was often not based on qualifications or merit. Employers often had not even determined bona fide job requirements or made efforts to obtain applications from the total potential workforce. Many of those voicing opposition to Bill 79 know this also. But employers who have less time to become familiar with the issues and the act may believe the rhetoric.
TEEPA sees no inconsistency between hiring and promotion based on qualifications and this act. Some employers need to improve their ability to recognize the talents that exist within members of designated groups and to utilize that talent to the maximum.
TEEPA notes that even employers committed to employment equity have difficulty achieving a fully representative workforce due to aspects beyond their control such as inequities in education, transportation, child care and training provisions within society as a whole. The act should acknowledge that employment equity in the workplace must be part of a larger program to ensure fairness and equity in our society.
Finally, TEEPA recommends that the long-term goal of employment equity be added; that is, that throughout all workplaces and in all employment-related practices, every individual receive fair treatment. Perhaps some day there will no longer be a need to identify and count people by their group membership.
In closing, I hope you will recognize that TEEPA is a strong supporter of Bill 79. Our amendments are not in conflict with the goals or the principles of this act. I urge you to give serious consideration to our concerns and recommendations and once again I thank you for this hearing. My colleagues and I will be pleased to answer any of your questions.
The Chair: Thank you very much. We'll begin with the government members. Ms Carter to begin. Five minutes.
Ms Jenny Carter (Peterborough): Thank you for your very thoughtful presentation. I wanted to ask you a little about your ideas on self-identification. You're suggesting that since data might not be accurate, an employer should have the right to discuss the survey response with any individual. But I wonder whether you see any possible downsides to this, whether this might put undue pressure on employees or detract from the principle of self-identification.
Ms Jane Garthson: We'll acknowledge that there's a possibility some employers could use coercion, but there should be provision to complain about such inappropriate application of employment equity. In an organization large enough to have an employment equity coordinator who is other than the manager, our wording recommends that that person do the one-on-one communication. We're also saying it's only to give the employee a chance to reconsider their response; we're not going to change it for them. Only they know whether they are disabled or a member of a group.
The other part of our proposal is to simply keep resurveying. We think the commission should set some minimum percentage of return, and if it's below that, it's just not good enough to base your workforce data on. So there would be another round of general communication first about why an accurate survey response is important, and then an opportunity for those who hadn't returned the survey the first time to try again.
Ms Carter: Well, we are envisaging a process whereby employees would be very thoroughly informed as to why they're filling in this survey and that it will not detract from their position in any way. So I think we feel that once that has been done, we can expect a reasonable level of reliable self-identification.
Ms Mary Woo Sims: Our experience has been that no matter how well you educate or how well you inform, there will be a segment of people, employees in your workforce, who for a variety of reasons, whether they see themselves not benefiting from employment equity measures or those who have experienced discrimination in the past and don't believe that this is going to be helpful -- for a variety of reasons, no matter how well the communication or education program goes, we won't have a return rate that might be adequate for employment equity planning.
So a means of follow-up with employees is really essential in our view, as practitioners, to enable us to do appropriate planning. Short of that, we believe that a 100% response rate is not necessary to do the planning, and maybe a commission-set standard of a minimum response rate upon which you could start your planning would be helpful for us.
Ms Carter: But a question was raised, I think by the previous presenters, that when an employer had accommodated for somebody with disabilities, that person might no longer feel disabled and therefore might not declare himself or herself as disabled. But it would be perfectly legitimate, under what we're putting forward, for the employer to state the fact that so much had been spent on accommodation, so that that would be taken into account.
Ms Lynn Bevan: I'd like to address two aspects of that comment. The first one is you're quite right that the question of self-identification combined with the right for all designated groups except women to do it as a subjective test means that it is perfectly open to disabled persons to identify themselves or not. I'm now skipping into the regulation, but we are going to be using a subjective test. So that is quite right.
I believe the question really is: What is the purpose of the survey? It's to provide for planning. For someone in Ms Sims's organization, as large an organization as a major public sector organization, that is more realistic to say 100% return is not necessary. It is less of an option for someone who has 100 employees. If we continue to believe the projections that most employment opportunities are going to arise in smaller, private sector organizations, then I think that this act must work equally well for the smaller organization as for the larger organization that can afford to have the employment equity coordinator or some other designated person.
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One way I have found in my work with this area, and it goes back a long time, is that the most important thing is communication. That will take employees a long way. Ms Sims is quite right; it won't take them the whole distance. But supplemented by very strict rules and confidentiality, that seems to be the best way to ensure that employees will have the confidence to participate fully. And there are to be consequences for failing to maintain that. But I do really support this position very strongly that if you're trying to get an adequate database for planning, you must take into account smaller organizations where anything less than a very high percentage return will be inadequate for planning purposes.
Mr Curling: I am just curious. It's quite a large delegation and they are all women. Is that by accident?
Ms Dauphinee: It's interesting that you should ask that question because several of the people here presenting asked the same question. As I said before, a lot of our members are male. But I guess my question to you, Mr Curling, is, would the deputation be any better if there were males here?
Mr Curling: Quite possible. Because what I am saying is employment equity, as we know, is about the designated groups. Optics is an important thing, as a matter of fact. I just wanted to bring it on the table. Maybe it would never have been better from -- the presentation's all written, but I would say that the concerns and the feeling -- and I don't want to get into that. I just was rather curious.
Ms Dauphinee: I'd be glad to that have debate with you, but I think we should have it outside this room.
Mr Curling: I would be happy to.
I think you have raised some rather excellent points of view in your presentation. As you said, you are a strong supporter of employment equity, just like myself, but I am not a strong supporter of this bill. I think you have said the same thing of the weakness that you identify in here: things like the seniority, the administration reporting procedures. You talked about especially one of the things I am extremely concerned about, that employees will be bouncing from one organization to the other one, and where their concerns will be redressed, whether it's at Human Rights, whether it's the courts, whether the Employment Equity Commission.
Now, having said all of that, Ms Dauphinee, you've made some recommendation of how maybe the Human Rights Commission could take over some of the concerns or some of the duties that will be addressed by the commission. If this bill goes through as is, without any amendments, would you feel the same way, as strongly, about the bill? I know your concerned about employment equity, you're stand there. Your commitment is very strong about employment equity, but would you feel very strongly about supporting this bill as is?
Ms Bevan: That's a two-part question. I will start. In terms of the enforcement, I would like to express my very strong disapproval of the bill as it is structured on a litigation model. The problem is that you set up, first of all, an old-style confrontational model for employee participation and reinforce that by a litigation model, saying that those who come in to audit also have the right to order, and if that doesn't work, it then goes to a tribunal. That's irrespective of other concerns that would exist about coexisting rights to go to Human Rights arbitrations or any other models. So the primary problem with the bill is the structure. It is based on a confrontational model and then reinforced by a litigation enforcement model.
Experience with other jurisdictions, of which I am sure you are aware, including the United States, which has had a model in place over 50 years, is that contract compliance has a very high percentage of participation by employers because they know that those bodies cannot go in at the end of the day and put a black mask on and make an order against them. They really are from the government and there to help them.
It's very difficult, when you have a model that's based on the pay equity model, and we've seen what has happened there. There's a great resistance to full participation in mediation and settlement when that very same officer has the right to make a binding order at the end. The model that's set up here in fact is a pay equity model. It sets up a commission with investigating officers who have the right to make orders. It also has a tribunal.
I'm answering the question slightly differently from the way you've framed it. I think there's a structural problem there which goes beyond the question of whether it's the Employment Equity Tribunal or the Human Rights Commission which enforces that.
I think Ms Dauphinee has something to add on the question of whether or not we would support the bill if it went in in its current way.
Ms Dauphinee: Yes. People will support the bill if it goes in in its current way and will do the best we can to implement it under the circumstances.
Mrs Witmer: Thank you for your presentation. I thoroughly enjoyed it, and I have to tell you that I'm quite pleased to see six females here. I think it's interesting that the question would even be raised as to why. We've had men here who are the presenters and the question is never raised.
Ms Margaret H. Harrington (Niagara Falls): It never came up.
Mrs Witmer: That's right.
Mr Curling: Well, straight honesty.
Mrs Witmer: That's true, Mr Curling; it is honesty.
Anyway, I think you've made a very valid point. It's a concern that I've had and certainly it's a concern we've seen in some of the other labour legislation that has been initiated by the government, the fact that this really does continue to promote and encourage the old-style adversarial, confrontational labour relations. It's certainly, I think, one of the biggest flaws and drawbacks of the bill.
What about the preamble? Do you believe the statement in the preamble should be changed? Because I think that's probably where the confrontation style starts. There is some blame there levied, I think, in paragraph 3. You didn't comment on the preamble, but I guess I personally always believed that it should be a much more positive preamble.
Ms Bevan: Since I'm the designated lawyer, if you're talking about the preamble that refers to other legislation -- or are you talking about the employment equity principle?
Mrs Witmer: The one that refers to systemic discrimination and the fact that that's recognized.
Ms Garthson: I'm Jane Garthson. In part we were trying to deal with that by asking that the bill acknowledge that employment equity is only one part of a joint effort for fair treatment throughout our society, and we would see that change as taking place within the preamble wording.
Ms Bevan: I'm sorry. It's in paragraph 2 in here; that's why I was reading the other one. It's a fair question. Even if it is correct, it's a question of tone. Is that what you're saying?
Mrs Witmer: Yes, that's what I'm saying.
Ms Bevan: Our position in the brief is quite clear. We look at employment equity as a cooperative, employee-driven model, and so what will make that work is the question. Even if that is correct, does it add anything, and how will it influence an adjudicator or others in making their determination? May I just say that if this were to go into the Human Rights Commission, for example, that would be their frame of reference, "systemic and intentional discrimination," so it's a very good point that you raise that if we are trying to get away from that model altogether, we have to even reconsider what would be the impact of moving it into the Human Rights Commission, because their frame of reference, by statute, is discrimination.
Mrs Witmer: You mentioned the confidentiality, and that's been mentioned by many other individuals, the fact that we really do need to protect the individual's rights. That's been a big concern. Can you expand on that further? What problems do you see regarding the legislation, as it's presently structured, for employees?
Ms Garthson: One part that we addressed in the brief that we didn't take time for in the oral presentation was that this bill covers public sector organizations that are also covered by the freedom of information and protection of privacy law, and we're not sure that the current bill isn't in conflict.
Getting back to our concerns about having only accurate personal data within the workforce survey results, that's a requirement by law of the provincial and the municipal freedom of information acts.
Generally, from my experience in the workplace, if employees can't trust the employer, almost no initiative will succeed. If the basis for --
Ms Harrington: On a point of order, Mr Chair: Would it be possible to get ministry staff to answer that particular point so we could have a clarification on whether or not they're in conflict?
Mrs Witmer: That's probably good that we would have that issue resolved. I think there are several places in the bill where there's the potential for conflict with other legislation, and I think that's the concern that's being stressed by so many individuals.
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The Chair: Ms Witmer, I apologize, but we won't have time. I'd ask Mr Bromm to come forward and attempt an answer.
Mr Scott Bromm: As far as we know, at the present time there isn't a conflict between the freedom of information act and this act, but I can undertake to provide more detail in that area, because I know that is something that is being examined now. The application of the act is a particular issue for, of course, the public sector and the broader public sector. But again, it's being looked at.
The Chair: Thank you. We've run out of time. We found your presentation very informative and we thank you for taking the time to participate in these hearings.
REXDALE COMMUNITY MICROSKILLS DEVELOPMENT CENTRE
The Chair: I invite Rexdale MicroSkills to come forward. Welcome. You have half an hour for the presentation. Please leave as much time as you can for questions from the members.
Ms Huda Abuzeid: Thank you. Good morning, Mr Chairman, members of the committee, ladies and gentlemen. I want to thank you for the opportunity to present this briefing on behalf of Rexdale MicroSkills. We apologize for the fact that you did not receive the brief earlier. However, you have it in hand now, and you will notice on the first page a summary of our key points, which we'll be elaborating on later.
My name is Huda Abuzeid. I'm a trainee at Rexdale Microskills. To my left is Patricia Hitchcock, president, Rexdale MicroSkills board of directors.
Rexdale MicroSkills is a community-based training centre providing employment-related skills training to immigrants and racial minority women since 1984.
While we are a successful vehicle for immigrants and racial minority women to gain access to the labour force, our purpose would be invalid if currently there were access to and equity in labour force representation. Therefore, it is on this premise that our organization welcomes the pending legislation, Bill 79, an act which seeks to correct some injustice in the labour force.
As a community-based organization whose primary objective is to enhance the employability of marginalized members of our society, it is our belief that employment equity is a positive step for the designated groups and ultimately the peoples of Ontario. It is a commitment, with positive results, towards eliminating systemic barriers and all forms of discrimination in employment, therefore resulting in an improved quality of life for all Ontarians.
On the Ontario Training and Adjustment Board, training and employment equity, recently legislation was enacted to establish the OTAB, with responsibilities for the coordination, development and delivery of training programs and services on behalf of the provincial government. We believe, as providers, deliverers of training, that such a board cannot be effective unless the employment equity legislation is also enacted and includes all employers' participation. It must be understood that practices in employment equity are both social and economic assets to Ontario.
The point is that training must be meaningful: It must be tied to employment. However, our experience has proven that social barriers are severe deterrents to designated groups in realizing their full potential, as they are not given equal access to the same opportunities experienced by non-designated members of society.
It is clear that specific measures must be implemented to increase the employment opportunities for members of designated groups. If this cannot be done, we are relegated to a society which openly practises inequality of opportunities in employment.
In response to reverse discrimination and merit principle, many non-designated group members make reference to employment equity as "reverse discrimination" and the use of "merit principle" as the basis by which to operate. We say reverse discrimination does not exist when designated groups have no power, no access and no political voice.
What employment equity is intended to do is to allow for correction of a generation of wrongs. It must be understood that designated group members do not currently compete on a level playing field. This is exemplified by the current underrepresentation of designated group members in the workforce. We believe employment equity is the source by which attempts can be made to achieve a level playing field as it seeks to achieve equity in employment.
When we as immigrants and racial minorities are told that the merit principle is practical and good, our response is that if this principle were effective, we would not require employment equity. There would be more representation of designated groups in the workforce. Immigrants and minority peoples would not be relegated to inequality in wages and poor job retention. It must be recognized that the faces of Ontario are changing and will continue to change. We cannot just continue to do things the way we have always done them. Employment equity therefore is a positive tool by which all employers can begin to utilize a pool of potential employees, who for the most part have been denied access to the workforce.
Finally, what members of racial minority groups are saying is that we have tried good faith, which has not worked. We also understand that good faith cannot be legislated. Therefore, we anxiously await the enactment of the employment equity legislation, which we believe is result-oriented and a positive approach for all Ontarians. Thank you very much.
Ms Patricia Hitchcock: I'd like to follow with some specific concerns and recommendations.
Rexdale MicroSkills fully supports the principles of employment equity and the Employment Equity Act. However, a law which is short on requirements and enforcements will lead to uneven and inadequate changes in employment practices.
There should be a strong statement in the act on the positive effects of employment equity on Ontario's mainstream population. Members of designated groups should not be perceived as being done a favour by the government, because in truth and in fact this is not the case. Due to the obvious opposition which would emanate from enactment of this bill, mainstream Ontario needs to be reminded at every level of this process how it too would benefit from this initiative.
Subsections 1(2) and (3) address this entitlement of members of designated groups "to be considered for employment, hired, treated and promoted in accordance with employment equity principles." The words "considered for employment" should be eliminated from these subsections. That members of designated groups should be considered for employment, then hired, treated and promoted in accordance with employment equity principles, only continues to afford unsupportive employers more opportunity to continue using biased methods. Any employer can very easily say that members of a designated group are being considered for employment. The act needs to force employers to give up arbitrary practices and to actively implement change. This is the true meaning of employment equity.
That the act requires that employers implement and maintain employment equity is a future-oriented design, if all things are equal. The uniquely positive aspect of implementation and maintenance of the act is that employment equity is everybody's business and everyone in the workforce has an opportunity to be a part of the process at all levels.
However, employers and all employees need to be constantly reminded of the importance and seriousness of this act. With this in mind, the following recommendation is made: The employer, in partnership with the bargaining agents and employees, shall develop a policy statement with respect to the employer's commitment to employment equity. This statement, along with the rationale for it, shall be clearly posted in the employers' workplaces, in full view of persons at the employers' workplaces and those who might visit there from time to time. An ever-present reminder such as this, coupled with actions which exemplify it, will serve to acclimatize, as well as reduce the apprehension of, employers as well as potential employees.
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Granted that collection of data is a major part of the employer's obligation, the act needs to address the potential for an employer and/or employees to use such data to work against implementation of employment equity. Consequently, a clause with the following message should be included in the act: Every employer shall, in accordance with the regulations, continue to collect data and workforce information for the advancement of employment equity in the workforce. This way an employer would be discouraged from using data collected for workforce analysis to sabotage implementation of employment equity.
One can foresee the need for employers to exercise a review of employment equity policies and practices. This system of internal checks and evaluations will serve to keep employers and employees current with the progress of their plans and better able to make adjustments when and where necessary.
That the employer is required to prepare an equity plan puts control of the process in the hands of the employer with respect to what goals and timetables can be attained based on workforce information collected. More stringent and direct guidelines should be developed in this area to ensure implementation of the act.
The regulation which governs this act should contain more specific directives for employers. With the existing "We trust that you will do your best" type of approach, it is like we are leaving the fox to guard the chickens, to use a colloquial expression. If we are to see any shift from the status quo, the regulations need to be more directive and precise. Employers need to know that positive results are expected and not just hoped for.
Section 11 prescribes employment equity as being good personnel planning, a tempting idea for most employers. However, subsection (3) states that, "The commission may require the employer to file a copy of the plan." Leaving this step open to being a possibility does not lend credence to the goals of this program.
The commission should routinely receive a copy of the employer's employment equity plan. This would eliminate the possibility of an employer operating without a plan. Then, if that employer is identified as not being able to attain employment equity, the employer would not be able to develop a plan designed to fit the failure.
Section 12 states, "Every employer shall make all reasonable efforts to implement the employer's employment equity plan..." etc. This clause should read, "Every employer shall ensure the implementation of the employment equity plan." The proposed wording is arbitrary and whimsical and further allows the employer comfort in perpetuating systemic discrimination in recruitment, hiring and promotion of the designated groups.
With respect to subsection 13(3) of the bill, as is the case in section 11, if a new plan is filed, a copy should routinely go to the commission. Subsection 13(3) should read, "The commission will require the employer to file a copy of the revised plan."
Section 14 addresses the joint responsibilities of employer and bargaining agents. It acknowledges that both parties have a vested interest in employment equity and therefore should work together for the common good of the workplace. The employer needs to be abreast of all developments on employment equity as they occur. Also, relevant information should be passed on to employees with the intent to educate and inform.
Good faith cannot be legislated. However, since the parties engage in other bargaining processes, this can be useful in coming together in the formation of a policy and a plan in employment equity. Consultation with employees by employers is necessary and should proceed as outlined in the regulations. Development, implementation, review and revision of the employment equity plan should be part of the flow of information between employers and employees.
Maintenance of employment equity records and submission to the commission are a continuous process and need to be well streamlined for continued success of the program.
Section 19, as it applies to exemptions, is consistent with the implementation rules of section 20.
To ensure the efficient operation of an employer's employment equity plan, there must be a rigorous mechanism by which an employer's fulfilment of obligations is monitored. A process which actively checks and evaluates an employer's plan implementation is therefore necessary. In our view, it is imperative that the Employment Equity Commission conduct random audits of employers to determine whether or not obligations are being followed.
Section 22 needs to contain a clause which would indicate scheduling of audits, how often and why they would be undertaken. Is it that the commission would conduct an audit if there were suspicion that an employer was not complying with part III or if there were evidence that the employer was not complying with part II or if the employer had not submitted a plan? Would audits be conducted randomly? Also, would it be possible for an employer to be audited more than once in one decade? More clarification is needed in this area.
Since employers shall develop their own employment equity plan, setting their own goals and timetables, we make the following recommendation: The act should contain some incentives for employers which would encourage them to implement this change.
That the only incentives for employers to implement employment equity are to avoid punitive measures sets a naturally hostile environment for implementation. Employers need to be encouraged with some benefits, such as tax breaks, for example.
That the commission may endeavour to settle with the employer such that compliance is ensured is appropriate, since the goal is compliance, not punishment. If it can be attained without much resistance, then that is the path that should be taken.
Section 24 indicates that the commission has the authority to confront and act on the offensive if an employer is not seen to be moving ahead with implementation of employment equity.
Missing is a clause addressing consequences if an employer fails to pay the penalty and if an employer is repeatedly delinquent in complying with section 35, 36 or 37.
Though the draft regulations address many technicalities which are not detailed in the act itself, there is still much room for improvement of the structural design of this document. Some of the wording in the regulations is very weak. For example, subsection 14(3) reads, "The employer may identify the employer's employment policies and practices." We propose the clause should read, "The employer shall identify the employer's employment policies and practices." Such a major part of the process of elimination of systemic discrimination should not be left to the employer's discretion.
Regulations should give more room for the commission to be able to enforce equity plans and penalties given to those who do not comply with the act. As they stand, the regulations make it almost impossible for the commission to efficiently and effectively enforce penalties. If fairness continues to be left to the initiative of the employer, we have no hope that employment equity legislation would be meaningful.
Amendments to the Human Rights Code such that the Employment Equity Act shall be deemed to be a special program fortifies the act. The amendments strengthen the argument that the Employment Equity Act does not duplicate the Human Rights Code but extends beyond the reaches of the code. Whereas the code does not direct an employer to look at the employer's process in recruitment, hiring and promotion, the Employment Equity Act will ensure that this does take place.
In closing, I'd like to call your attention to the fact that for 10 years Rexdale MicroSkills and similar training programs have successfully developed and maintained relationships with hundreds of employers. For many of these employers, their involvement with the training programs mandated to train and find employment for equity groups has been an educational process which ultimately leads them to view the hiring of equity groups as a positive experience which benefits the companies.
Since we do not apparently have the luxury of engaging in a 10-year educational process with all employers, we strongly recommend revisions which would hasten the process of attaining employment equity through a bill with more specific directive wording. Drop the "shoulds," please, and make them "we wills" instead.
Mr Curling: Thank you for your presentation. I know how difficult it is to put a presentation together on such short notice, as you said, but it is here and it is quite precise.
I just want to focus a bit on your recommendation 5, because I seem to agree with you and other people have come and agreed with you. I'll just maybe take a second or so to tell you my concern.
The legislation which was introduced was considered to be rather weak and vague. Therefore, the government of the day decided to put a regulation in place to define some of those gaps that it has obviously seen. I don't know if it was intentional to make regulation be the one that supports the legislation. That's what regulation is all about.
My concern about regulations, though, is that if you put a case to court and the judge is going to make a decision, he makes a decision on the legislation, not on the regulation.
Do you then see that, even though the regulation, which is not debatable in here, as the government would want us not to do that -- would you not see that most of what is in the regulation of the one-shot -- maybe the bureaucrats didn't get it right the first time, the legislation. What they got right or so forth, what is in the regulation, should have been in the legislation. Would you feel more comfortable with this bill if most of what's in the regulations would be in the legislation?
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Ms Hitchcock: I think what we're trying to focus on here is the context that the legislation would be used within. Regulations are the context, right? Those are the things that set the tone, and that's what we're asking for primarily, that a very strong position be taken, that we don't focus so much on what would be nice in the best of all possible worlds but that we say very strongly to the employers what's expected of them.
Mr Curling: But the regulations specifically define who is an employer and define who is a visible minority.
Ms Hitchcock: What's expected, yes.
Mr Curling: It's not very much so in the legislation. I'm saying that we want a very strong employment equity, that people have no confusion about the direction of where employment equity will be going in regard to employees and employers and even the government in support of that cause. Do you have concerns? If you had a chance, an opportunity, to read the regulation, wherein some of those things -- my question is that --
Ms Hitchcock: How specific they are.
Mr Curling: Yes. Would you like those specific things that are in the regulations to be in the legislation?
Ms Hitchcock: I believe it would be more effective if it was very clearly defined. I find that from a bottom level up, the more specifically things are defined, the more clearly understood they are and the easier it is for people to implement them. I know there can be some backlash from that. I'm concerned about that.
Mr Curling: The last point you made about the Ontario Human Rights Commission, I have a bit of concern about that. I would like to see the Human Rights Commission as being one of the strongest laws we have in this country so that when human rights have been violated it can be redressed there. As a matter of fact, in the courts it supersedes even the law of the day. The Human Rights Code is the one in which guidance is done, within the code, if one comes to the Human Rights Commission to have a concern redressed. You ask here, and do you want to make some comment, that the Employment Equity Commission law supersede that. Are you saying it's stronger than the Human Rights Commission?
Ms Hitchcock: No, our understanding is that the Employment Equity Act is a special program that fortifies the act. It deals with a specific thing. It doesn't supersede it. We feel that it would help to make the Human Rights Code more effective.
Mrs Witmer: Thank you very much for your presentation. It obviously reflects the personal experiences that your members have had and raises some very good issues. You mention the fact that there needs to be some change, I think, to the preamble, and you mention the fact that there should be a statement about the positive effects of employment equity on Ontario's population. What type of statement? Have you given any thought to the wording of that at all?
Ms Hitchcock: Not specifically. Lynn and I were talking outside before we came in, and it goes along with our experience within the training program, that given that within a very short period of time 50% of the population in Toronto is expected to be immigrants, we believe that if employers are forced to experience the positive effects of not ignoring 50% of the potential workforce, they'll begin to automatically look to this 50% for the labour that they require and to consider this 50% as potentially trainable, potentially promotable.
No, we haven't thought about specific wording.
Mrs Witmer: You mention the 50%, and certainly the figure we're hearing is that eventually 80% of the people coming into the workforce will be from those four designated groups. So there are certainly going to be some changes that take place.
You make reference here to mainstream Ontario. Again, who are you referring to? I asked someone that yesterday, because I'm never quite sure who mainstream Ontario is.
Ms Hitchcock: I suppose persons of privilege. Speaking from a personal perspective, if we're suffering from systemic discrimination as women or as physically challenged people or as visible minorities, it's because the system is designed around a particular model. There are particular people who work well within that model and other people who don't. So the people who work well within the existing model who benefit from it.
Mrs Witmer: All right. Are you concerned at all about the issue of confidentiality of the individual and their protection? There has been some concern expressed that because of the survey and the fact that the results will be made available to not only the employer but the union and what have you, there is information perhaps that an individual doesn't want to be released any further. Have you discussed that at all?
Ms Hitchcock: It's something that as a training program we've been struggling with for years, because we are required to report similar statistics, and it's something we fought against on a person-by-person basis. If it's a matter of collection of data, self-disclosure is very difficult. It's something we've dealt with appropriately and we've dealt with inappropriately as a training program. If it's a matter of non-specific identification of a person, we believe strongly in the issue of confidentiality, but as a training program we've been put in the position of having to counsel people to disclose for the sake of data collection, to make it more truthful, to make it most effective, to reflect the reality. I think that's something employers are going to have to be trained to do.
Ms Harrington: Thank you very much for all the work you have put in. It's quite amazing, the amount of hours you must have put in on this.
First of all, I would like to say that you're right on with some of the statements you've made, in the introduction especially here, saying that it's not just employers, it's our whole society. You use the phrase "social barriers" that we face.
I don't know if you were here a few minutes before your presentation. The previous group made this statement, "TEEPA members know that hiring and promotion in the past was often not based on qualifications or merit," when they were addressing that question that has been raised throughout the last two weeks about the merit principle. They go further to say that they see "no inconsistency between hiring and promotion based on qualifications and this act." I hope you would agree with that as well, and I think you did say that.
You did say something very profound here, "Reverse discrimination does not exist when designated groups have no power, no access and no political voice." I think that really says it all.
You talked about in your experience with many employers in the past while, over 10 years, this is a very positive experience for them. I'm presuming that most, or at least some, of those employers are small employers with 100 or less or 50 or less employees.
Ms Hitchcock: Many, many of them.
Ms Harrington: Would you feel that they should be subjected to this act and that it is only fair that in some way this policy affect all employers and employees?
Ms Hitchcock: This is something we've talked about a lot. It's got to be a graduated process. It's going to be an awful lot harder for a company with five employees to follow the same time lines as a larger company. It's a process of education, and I believe that it has to be done, and just because it's a company with five employees doesn't mean that they're not going to practise inequitable hiring practices or inequitable promotion practices. The same regulations and legislation ultimately have to apply to everyone.
Ms Harrington: So they will actually see probably the benefits to other companies and then it will become part of their process.
Ms Hitchcock: I think that in practice, though, it's been my experience that smaller companies probably change their attitudes faster. If, for example, a company's got five employees and they do break some barriers and happen to hire women who they didn't hire before or visibly challenged people who they didn't hire before or people from a particular group --
Ms Harrington: So there's more openness.
Ms Hitchcock: -- the employer changes their attitude much more quickly, because that's 50% of their workforce.
Ms Harrington: We've heard one group this morning talk about seniority as a barrier. Do you see that as a barrier?
Ms Hitchcock: I think that's something, in the employment equity consultation that I was involved in last year, that's a real concern for the groups that are going to benefit most from employment equity. They don't want to see people losing their jobs or being sidestepped for promotion to their benefit because they know they're the ones who are going to suffer the backlash.
The Chair: I want to thank you both for coming today and participating in these hearings.
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ANTI-RACIST MULTICULTURAL EDUCATORS' NETWORK OF ONTARIO
The Chair: The next presentation, Anti-Racist Multicultural Educators' Network of Ontario. Welcome to all of you. Dr Ijaz, are you the spokesperson?
Dr Ahmed Ijaz: I will make the presentation and we'll all be available for answering the questions.
The Chair: Fine. You have half an hour for the presentation. Please leave as much time as you possibly can for questions.
Dr Ijaz: My name is Ahmed Ijaz and I'm the president of the Anti-Racist Multicultural Educators' Network of Ontario. On my extreme right and on your left is Dr Ken Ramphal, next to Dr Ramphal is Beverley Saskoley, on my right here is Anise Waljee and on my left is Jacqueline Jean-Baptiste. We thank for this opportunity to appear before you as a group.
The Anti-Racist Multicultural Educators' Network of Ontario is an organization committed to the implementation of anti-racist education in all education systems throughout Ontario.
We are proud of our advisory role with the Ministry of Education and within the broader community on issues critical to the continuing development of Ontario as a province where equal rights and justice are truly meaningful concepts that play themselves out in people's daily lives.
In February last year, in our initial brief on Working Towards Equality, we congratulated the government for the introduction of Bill 79. As educators, we are acutely aware of the need for significant change in the workforce in Ontario's school systems, and the educational system as a whole, if they are to be more representative of the diversity of our province's population and are to serve the needs of the society as a whole.
We believe it will be necessary for the government to strengthen a number of the provisions of the draft bill and its regulations in order for it to be truly meaningful and an effective law. We also believe that the government must implement the recommendations of the Task Force on Access to Professions and Trades as a critical accompaniment to the employment equity legislation.
In general, we believe that it is critical that many provisions outlined in the regulations be part of Bill 79. Goals and timetables need to be in the act itself, as should barrier removal and positive measures and plan content requirements.
The related legislation to Bill 79 is Bill 21, and I won't give you details on that. That legislation very sketchily covers the requirements for school boards to implement anti-racist education policies and an employment equity action plan for designated groups.
We believe that school boards must immediately be given clear direction as to how the requirements of Bill 21 will be woven into those of Bill 79 and its regulations. As we sit here today, we understand that the Ministry of Education and Training is waiting for direction and holding back legislation in abeyance as Bill 79 proceeds through the House.
We are concerned that the "small employer" definition excludes many private sector employees. In the province where racial minorities are concentrated, this will lead to disparity in application. We believe that the "small private sector" designation should be removed and there should be no exemptions for any employers. We don't feel that there's any need for government to identify any broader public sector employers as small employers and subject them to less stringent employment criteria. It is critical, we believe, that government illustrates that equity legislation applies equally to all of its related bodies.
It's also our position that subsection 13(1) of the draft regulation requirement that workforces be surveyed within nine years is inadequate to track progress. We recommend that this provision be amended to require a new workforce survey within three years, and that's because our workforce is rapidly changing.
Subsection 14(2) needs to be revised to omit the exemption from re-examination of specific employment practices for small employers.
Part IV of the regulations we believe is fraught with language slippage. We question the use of the term "reasonable progress" in subsection 19(1) and recommend the deletion of the words "that constitute reasonable progress," so that the employers' minds are concentrated on employment equity plans with measurable results.
We also question clause 19(1)(b) and the intent of the phrase "to the greatest extent possible," and would recommend its deletion. Concepts like "greatest extent possible" only provide a vehicle for excuses and delays. As educators for equity, we are all too aware that there will be tremendous resistance to Bill 79 and its regulations, and to Bill 21. Passing legislation which contains vague language will serve to encourage those employers who would resist the law or the intent of the law.
We also believe that there needs to be consistent use of terminology between the bill and its regulations and we support the term "positive measures."
The achievement of goals and timetables needs to be there to ensure accountability. There should be no exemption for small employers. These would encompass an action plan which includes dates for barrier removal and dates for implementation of positive measures as well as timed monitoring mechanisms towards the achievement of goals. There need to be specified goals for recruitment, entry and internal movement. The whole section 24 needs to be revised to make clear the understanding of database requirements for goal-setting and to clarify the commission's role in providing data.
The provisions of both the draft bill and the regulations are deficit in their approach to information-sharing. We believe that the consultation process for unrepresented employees must be more clearly outlined and strengthened in the regulations. Section 36 needs to be reworked, since the wording as presently constituted makes unrepresented employees vulnerable since it requires them to seek information about the consultation process and the plan components themselves. We are alarmed to see the lack of provisions regarding the rights of individuals and groups to launch complaints about the plan. This needs to be rectified.
There's a need for restitution of salary disclosure to apply to some employees only. This is regulation subsection 42(2) and it's also under sections 46 and 47. We recommend that this section be amended to read "all public and broader public sector as well as private sector employers." There's a need for concrete information about salary levels to reflect a true picture of where designated groups are positioned in the salary structure of an employer. We have good reason to believe most are concentrated at the lower end.
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The exemptions contemplated in section 19 of Bill 79 need to be struck from the act. No employer, public sector or private, should be given credence in attempts to avoid responsibility for the achievement of a diverse workforce.
In terms of implementation, the time lines outlined in section 20 of the act are far too long. We believe no employer should have longer than two years to post a first employment equity plan.
Audit and enforcement by the commission: This section of the act must be strengthened. The commission should regularly conduct audits of a variety of employers as one of its prime enforcement duties.
The act and its regulations should give more specific direction in the need for employment equity plans to address those employees who experience a double or triple disadvantage by virtue of being, for example, female, a racial minority and disabled. Special measures should be outlined which will assist in finding remedies to address the enhanced inequities experienced by these employees.
We also support the concept of including lesbians and gay men in the preamble to the legislation and its barrier elimination and positive measures proposals.
The concept of complaints about discrimination by individuals cannot be compromised by employment equity legislation. There must be amendments to allow individuals to make complaints about discrimination both under the Ontario Human Rights Code and the Employment Equity Act.
We believe that, through Bill 79 and Bill 21, Ontario is poised to become one of the most forward-looking locations around the world in addressing workplace inequities for its own wellbeing and the wellbeing of all its residents.
However, this will only be accomplished through the strengthening of many provisions of the act and its regulations. Clearly outlined and enforceable requirements are necessary to give the legislation a breath of life and many designated group members a spark of hope. To do less will make this initiative a travesty.
The Vice-Chair (Ms Margaret H. Harrington): Thank you. Each party will have approximately six minutes, and we'll start with the third party.
Mrs Witmer: I see here that you represent 30 boards of education, the teachers' federation, so you're quite a wide umbrella group.
Dr Ijaz: Our membership comes from 30 different school boards and the other institutions listed. We do not represent the boards themselves but our membership is affiliated with the boards. We don't speak on behalf of the boards but we do speak as a body.
Mr Norman W. Sterling (Carleton): How many members are you?
Dr Ijaz: About 130-plus right now.
Mrs Witmer: So it's a voluntary association.
Dr Ijaz: Yes. It's an association of educators who work in the area of anti-racist education within the school boards or institutions.
Mrs Witmer: When did you come into being? When were you organized?
Dr Ijaz: In the fall of 1987, I believe.
Mrs Witmer: I was involved in education and I wasn't that aware of the organization, so I appreciate your comments. Many of your comments are based on personal experiences that you and your members have had. You've indicated that the bill "be revised to include provisions that would allow for individuals and groups to launch complaints about employment equity plans." How would you like to see that changed specifically? That's your number 8 recommendation. How do you feel this bill is lacking at the present time in prohibiting individuals? I thought there was some avenue there for that to happen.
Ms Beverley Saskoley: I'll respond on behalf of the group. We think it's more a lack of language that makes it very clear that individuals do have the right. There is not clear enough direction that says if a designated group member is opposed to the employment equity plan that has been set up in their workplace, they will have a clear right to follow up on a complaint about that plan. We don't think it's specific enough to suggest that the individuals have that right, or groups.
Mrs Witmer: There seems to be a bit of a conflict. Yesterday we had the Ontario Secondary School Teachers' Federation here and it was somewhat concerned that individuals would have the right to launch an appeal as opposed to the union. What is your feeling? I think they felt the union should be the one that had the opportunity and not the individual.
Dr Ijaz: Historically, there may be a little conflict between what unions want and the rights of the individuals who believe that individuals should be allowed to make that appeal, should be able to complain, because unions don't always speak on behalf of that discriminated individual.
Mrs Witmer: We actually had two experiences yesterday of teachers here where that indeed did happen, that they didn't feel they were well represented and wished to represent themselves.
You've made a good point here. The Task Force on Access to Professions and Trades in Ontario is a document that has excellent recommendations contained within it and certainly the government should be giving very serious consideration. I know within my own community there are many people who are simply not able to access the professions and trades because there are many barriers at the present time. Something certainly needs to be done.
You indicate that Bill 21 needs to be woven into Bill 79 and its regulations and that school boards really are waiting. What do you see happening there? I think school boards do have a very important role to play and much more needs to be done.
Dr Ijaz: Our position has been, with the Ministry of Education and Training, that they didn't really need to wait for Bill 79 to become law because the precedents within the Ministry of Education were the school boards were required to implement employment equity, or what are called affirmative action plans, for women only. Since the legislation was changed last year and got royal assent in July 1992, the minister had sufficient power to move ahead and broaden that base to ask school boards to implement holistic employment equity plans.
In a way, Bill 79 has been an impediment in terms of achievement of the goal because the Ministry of Education is waiting because it doesn't want to do anything which may be in conflict with Bill 79. But we believe it can be done without being in conflict with Bill 79, because people don't really want to wait.
Mrs Witmer: Okay. You've indicated there should be no exemptions for any employers. Are you suggesting that someone who employs only one employee -- what exactly is your definition there? Somehow it seems unreal to suggest that someone with a workforce of one or two -- it would be really difficult to --
Dr Ijaz: We can go to ridiculous extremes, but you have a provision in terms of less than 50. That's going to leave out a lot of people and that will become a critical mass in itself: 50, 50, 50 multiplied a number of times. I think that needs to be reconsidered.
The Vice-Chair: We'll move on to the government party.
Mr Derek Fletcher (Guelph): It was a very interesting presentation, one that certainly will be looked at. One of the things I look at during these consultations is that this is rather unique. This is one of the first times a government has ever attempted to do anything about employment equity and to introduce legislation, and along the way there are certain things that we have to hear from the groups that are presenting, and then we make amendments to the legislation as we go along. That's where we are right now. Your recommendations are very good and I think they would go a long way to strengthening the Employment Equity Act.
On the linkages between Bill 21 and Bill 79, can you expand on what you mean as far as the linkages are concerned, so I can understand it somewhat?
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Dr Ijaz: Okay. We don't know what kind of linkages the Minister of Education and Training is awaiting right now, because Bill 21 gives the Minister of Education and Training sufficient power to mandate employment equity within school boards. Without any clear direction to the Minister of Education -- I don't know whether he has sought that from the Minister of Citizenship or not; he probably has -- but just to sit there waiting for Bill 79 we don't think is satisfactory. If there needs to be some collaboration between the two, or some direction given to the Minister of Education and Training so they can proceed without having to wait for Bill 79 -- sort of paving the way for Bill 79 to come along. That's what we mean.
Mr Fletcher: I think what we're looking at also is that parts of Bill 21 could overlap or duplicate what Bill 79 is doing. I agree with you, there has to be a meshing and they do have to link together so they provide a better system.
Mr Fletcher: One other thing I would like to touch on is that a lot of people talk about hiring on merit. When I hear it -- and I don't think it's intentional that people who are bringing this up mean it the way I hear it. It's that with this act, when people are hiring, they're not going to hire from the designated groups because the people in the designated groups don't have the qualifications and for some reason this legislation is going to force people to hire unqualified people for positions of responsibility. We've seen what's happened in the teaching professions when it comes to principals, positions of responsibility, who are getting these positions and yet merit for some reason is being touted as being jeopardized because of employment equity. Is that a view held by your group?
Dr Ijaz: It's interesting, because those folks who are all of a sudden trying to bring to life the whole notion of merit pay don't realize that unwittingly they're subscribing to the theory which one of our professors in this province -- I won't mention the name; you probably all know -- has been propounding, the superiority of one race. What has happened is that we have given attention to only one section of our population and only one gender. So if you fall into that trap -- that group has deserved merit, so therefore that group is superior -- we don't believe that is the case. Yes, we do believe in merit and merit is spread all around.
Mr Fletcher: That's right, regardless of race or anything else.
Ms Zanana L. Akande (St Andrew-St Patrick): I'm most supportive of your recommendations. I want, however, to ask you if you could reflect on the position of the legislation in relation to promotion. Many of us have talked a great deal about what this legislation means in terms of people coming new into a position or doors being opened, but we haven't reflected a great deal on what this legislation will mean for those who are already in the organization and want to move along.
I'm wondering if AMENO has had any particular thoughts on the application of this legislation for that particular population.
Ms Saskoley: When we prepared our brief, we tried to indicate in it that there needs to be great attention paid to internal movement, as much as to entry, and that any employment equity plan that does not address internal movement -- and by that it might be lateral movement which will enhance promotion possibilities -- there will be failures in the employment equity plans unless they address promotion and unless the workforce that's presently constituted or that becomes constituted over time has a great deal of internal shifting so the designated group members become the managers and supervisors in the proportions that they are rightly entitled to be.
Ms Akande: Though I agree with your response, one of the things that concerns me is, not many people who have come to this place to make their presentations have focused on the possibilities for promotion and support for that within the legislation, and I'm wondering if you think that, as it's written, it is adequately written to address that particular area.
Dr Ijaz: We don't think it's adequate as it is now.
Mr Curling: Let me give you an opportunity to expand on that then, because Mrs Akande's question is quite pertinent. Let me talk about the words. "Tenure" is to be the word then. The word "tenure" somehow is about seniority. Would that in any way conflict with the principle of employment equity in promotion?
Dr Ijaz: Traditionally, to make a blanket statement, not every employer has gone out to promote people because somebody is senior. The whole notion of merit is not only based on seniority, but the ability to do the job is the one which we believe needs to be looked at rather than just going by seniority, although we do respect the seniority provision. But that cannot always be the only criterion to promote people within an organization or without an organization.
Mr Curling: I don't want to take it in isolation. Let us take the concept that all those who will be promoted are qualified, and that's all. The merit is out of the way. It is enshrined in the legislation that that will be considered. Merit is in. It's all the people who want to come in and all those who want to go up are qualified people, but within the organization what we see is a strata of people who have tenure or seniority. The only problem is that they are the same age that I am so therefore I have to wait on them to either leave, die or whatever access they want to go. Therefore, it is placed as an encumbrance in moving up. I don't want to only believe that. I want to see if you have examined that and see that as a hindrance to or in conflict with the principles of employment equity in promotion. Do you see that?
Dr Ijaz: It's only a hindrance if you take that into consideration, and it's a matter of how much rating one is going to allow to what factor when you're considering people for promotion. Longevity itself does not make someone more able to do something, because there are other criteria which need to be looked at. Yes, longevity in the place may be one factor. I think, personally, perhaps some rating could be attached to that, but that cannot be the only criterion.
Mr Curling: I fully agree. You said sexual orientation should be included in the legislation. Do you see francophones as another group that should be included?
Dr Ijaz: No, I don't, because looking at even the current government structure -- I don't have any statistics available and I believe there are -- my personal information is, looking at the Ministry of Education and Training, for example, the francophones are there in twice the numbers compared to what the main numbers would warrant if the merit principle was in place. However, that is not represented in terms of racial minorities and other designated groups. This is personal information. I don't have any data to base that on.
Mrs Jacqueline Jean-Baptiste: If I take the example of the Ministry of Education, we see that francophones are represented federally in the Constitution to protect them and they have a ministry of francophone affairs here. However, they are the white francophones everywhere; so if you are francophone and you are double of another minority you have to put yourself in that group to get a voice, because when they're talking of francophones they don't see people with that double minority. At the Ministry of Education now, I think there is one francophone who is not white. This summer, they're trying to get one. They get one.
Mr Curling: So there is a problem in terms of the --
Mrs Jean-Baptiste: A major problem.
The Vice-Chair: Our time is up. Thank you for coming. The committee will adjourn until 1:30.
The committee recessed from 1201 to 1333.
COALITION OF VISIBLE MINORITY WOMEN (ONTARIO)
INC
CONGRESS OF BLACK WOMEN OF CANADA -- TORONTO
The Chair: I invite the Coalition of Visible Minority Women to come forward and make its presentation.
Ms Joan De Peza: Do you want all of us up here?
The Chair: Yes, there is just fine.
Ms De Peza: We're not used to such protocol.
The Chair: That's all right; we're informal as well.
Ms Fleurette Osborne: Joan and I are presenting this paper on behalf of the coalition and the Congress of Black Women of Canada, specifically the Toronto chapter, which is one of 23 chapters across the country.
The congress was founded in 1980 as a national organization, but before that there were some ad hoc organizations. The purpose of the organization was, and still is, to improve the welfare of black women and their families in their local communities and nationally and to clarify and bring due recognition to the role of black women in Canadian society. We have been lobbying for equality rights. That's really the thrust of our business.
Similarly, the coalition, founded in 1983, serves the population of immigrant black women as well.
Both organizations have been involved in the fight and the struggle for equality rights and against racism and sexism in this province.
Many of the people whom we represent are people who experience very high unemployment rates and underemployment as well. Although there seems to be an assumption, when one uses the term "employment equity," that everybody out there who is non-white is unqualified, most of us are qualified but are operating below our skill levels and our knowledge levels.
It then becomes apparent why we're interested in this legislation, which we see as very significant for the groups we represent. We see it as significant because the purpose of employment equity is to eliminate the barriers of discrimination and to provide a climate and workforces where there is equity and where people can work according to their abilities and be promoted according to their abilities.
We must apologize that we did not submit our papers before. Unfortunately, circumstances beyond our control prevented that. Anyway, they are available now.
We are really concerned and very disappointed with the proposed legislation. We think it is very weak and will not achieve its purpose and intent, which is to ameliorate the conditions in employment for the designated groups, which, as I said, suffer high unemployment and underemployment. We feel therefore that the bill should, and it is imperative that it does, include stronger enforcement mechanisms, clear definitions as to the designated groups, requirements to establish mandatory quantitative and qualitative goals and timetables, and broader coverage.
We will emphasize those aspects of the act that concern the people whom we represent.
Ms De Peza: First of all, we'd like to deal with the definitions. We submit that designated groups must be defined in the act and not in the regulations.
We believe that the definition of racial minorities must include identification of the major subgroups to enable minorities to better identify themselves in the workforce survey. Subgroup identification is essential so that when goals and timetables are established all subgroups will be accurately identified and considered. For example, the definition of blacks should specify Africans, Canadians, Americans and Caribbean persons, and southeast Asians should specify Burmese, Laotians, Malaysians, Thais and Vietnamese. This removes the possibility of any one group being ignored. It is important in achieving an equitable working environment for all racial subgroups to be eventually fairly represented. This is the essence of employment equity.
Persons with disabilities should be defined to include persons who are severely disabled or who have work limitations.
The definition of "employer" should be expanded to include related employers as determined under the Labour Relations Act.
Coverage: Excluded employers: We note that some small businesses are not covered by the legislation and that others will be allowed certain modifications, for example, with regard to setting numerical goals and timetables -- and some would only have to complete certain aspects of the employment systems review. We have serious concerns about this. At least 60% of the people we represent are presently employed by small businesses. It is therefore important that they be covered, especially women who will otherwise continue to face systemic racism and sexism.
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Although employers with 10 or fewer employees may find it problematic to develop numerical goals and timetables, more so than would larger employers, we believe that all employers should ensure that systemic discrimination is eliminated from the workplace. Accordingly, we recommend that all employers with 10 or more employees be covered by the legislation.
Workforce surveys: These surveys provide indicators on the status of designated group employees and non-designated group employees to identify problems in the workforce, particularly with regard to representation. It identifies whether there is underrepresentation, underutilization or concentration, and where these are located the workforce survey will provide the data to establish goals and timetables for an employment equity program.
The act requires the employer to complete the workforce survey in accordance with the regulations. We believe and submit that the requirements for this audit should be included in the act, as this is an essential element of the employment equity program. We contend that there should be a high degree of consistency in the information required in both the audit and the survey and that the commission should specify these requirements for further evaluation and monitoring.
We therefore recommend that the commission specify the requirements for the workforce audit and that these be included in the legislation; for example, things like salaries, occupational levels, hires, promotions, transfers, termination and training.
Similarly, we recognize that some employers have voluntarily, or through the federal contractors' program, completed workforce surveys. I guess the question remains whether or not they should be required to resurvey and reaudit or look at their audits again. We believe they must do so to ensure consistency and compliance with the employment equity legislation of Ontario. The commission should provide guidelines so that employers can determine whether they need to, or how they may, reconcile their former surveys and audits. These guidelines should be no less stringent than those required in the federal legislation.
We recommend that the commission provide a set of guidelines for those employers who have already completed their surveys and audits to ensure compliance with the Employment Equity Act of Ontario.
Ms Osborne: We will now talk about the mandatory goals and timetables. For the past two decades at least, there have been attempts to implement employment equity in Ontario, including in the public service. We have found from studies or reviews of this process that the progress has been dismal, especially for aboriginal people, persons with disabilities and racial minorities.
As the legislation stands, although it says that there should be goals and timetables, the standards are not included in the legislation and the requirements that would lead to these mandatory goals and timetables are not included in the legislation. We see that as a great fault in the legislation, because if the goal setting is left to the discretion of the employers or to their reasonable efforts, then what we have is exactly what we've had for the last 20 years, and that has done nothing to enhance the situation of the most disadvantaged designated groups in this province.
Therefore, we are suggesting that the standards be set by the commission and that they be included in the legislation so that they can be benchmarks for measurement. That's one point.
The other point is that in order for consistency, and also for monitoring and evaluation eventually, the commission should also provide the baseline percentages on which the goals should be set. I'm not saying it sets the goals for the employers, but it provides the baseline information on which they can set their goals.
So we are recommending that the goals be both quantitative and qualitative -- at least we are reinforcing that -- and that the percentages be provided by the commission, and also that the formula for determining the goals be provided by the commission.
Along with the workforce survey and audit, the employment systems review is another essential part. In fact, what we are saying is that all of the essential elements which go into the employment equity process and developing an employment equity plan should be in the legislation and not, as they now are, provided for in the regulations.
Similarly, with the employment systems review, that is also a very essential element of the employment equity process, and we are suggesting that again the requirements, even if it's just a checklist, be indicated in the act. We must realize there are some employers, even some of the more sophisticated ones, who keep telling us they don't know what the employment systems are. So we need to identify them in the legislation. As a result of the employment systems review, we reiterate that there should be positive measures which would be required to remedy whatever the problems are that are identified when the reviews are done. There's a list in the text of the kinds of systems that we think should be included.
That brings us to the next process, which is the employment equity plan. We're also saying that identified in the legislation should be those elements which go to make up an employment equity plan, so that everybody knows and everybody follows them and that they be not relegated to the regulations.
We are also saying that we do not agree that a certificate is enough to ensure that the employer has done what he or she should do. In fact, what we are saying is that the plan should be submitted to the commission and that in fact the commission should issue the certificate indicating that the plan meets the requirements and therefore the employer can proceed.
The act makes provision for joint responsibilities and refers to the bargaining agent and management. We're suggesting that this is not enough, that there should be employment equity committees set up by every employer. These employment equity committees, though they include management and labour, should also include members of the designated groups. Rather than have their concerns filtered through a third person, they should be there to articulate their concerns themselves.
In the case of non-unionized workplaces, we are suggesting that there should also be committees, and these committees should be selected representatives of the various job levels or occupational groups. The nominations should come from the employees themselves, and this group should work with management on the implementation of the employment equity program.
Ms De Peza: The next item I want to deal with is enforcement. We think it's imperative that there be strong enforcement measures to ensure compliance with the legislation. The commission must therefore be given the adequate financial and human resources to be able to monitor and evaluate the progress of the employment equity strategy of Ontario on a regular and routine basis. The monitoring may be staggered so that there is some balance to the workload. In addition, we believe that advocacy groups must play a major role in monitoring the progress of the program as well as serving as third parties in complaints brought before the commission.
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The Chair: There are 10 minutes left; three minutes per caucus. I leave it to you to decide what to do.
Ms Osborne: There are only a couple of other things and we can say them very briefly.
In regard to the advisory councils, we are recommending that the advisory councils be representative of the designated groups as well as labour and the employers.
In terms of the commission, we are also suggesting that instead of saying that "one or more" members may be appointed, a specific number of members of the commission should be identified. An example, say, is the OTAB legislation, where it sets out the number of members for that board as well as the breakdown of representation.
We also are recommending that there be a vice-chair to the commission.
We are also recommending that the commission be represented as well as the tribunal.
There is one concern which we have listed under addendum, and that is our concern of the impact of the social contract bill on the proposed employment equity legislation. We understand that section 44 gives primacy to the Social Contract Act. It excludes the Ontario Human Rights Code and the pay equity legislation.
We see employment equity as a right and not a privilege, and as an extension of human rights as somewhat defined by the code, moving from the individual to group rights. Since this is how we see it, we are suggesting that the same primacy be given to the proposed employment equity legislation -- or the exception, whatever you want to call it, but we're saying primacy -- as the Ontario Human Rights Code and the pay equity legislation.
Ms De Peza: In concluding, aboriginal people, persons with disabilities, racial minorities and women continue to be disadvantaged in society because of traditional attitudes and systemic discrimination towards these groups. Simply put, it is because of who we are. Throughout the debates and deliberations regarding employment equity, these remain the underlying issues of resistance to the proposed legislation. For this legislation to be realized, all essential elements of employment equity must be taken out of the regulations and placed in the act.
The Chair: Thank you. I will allow one question per caucus, because that's all we will have time for.
Ms Carter: Thank you for your very strong presentation. I'm interested to see on page 6 of your document you state that subgroup identification is essential. This has been mentioned by a few groups. I'm just wondering how you would come up with the numerical goals on this basis, especially since some employers are small and you are also emphasizing that small employers should be included in this legislation. Also, there are some areas where visible minority people are, in total, quite a small percentage of the population. So I'm just wondering how this would be implemented.
Also, I think that what we're trying to do in this bill is to bring about a change in attitude and that the four designated groups are really a tool for doing that. Obviously, people are discriminated against for other reasons. So I'm just wondering how this would work out if we did in fact identify subgroups.
Ms Osborne: The identification of the subgroups serves several purposes. We do recognize that certain numerical goals may be problematic because the cells may be very small: you may end up with half a person, and you can't have a goal for half a person.
Ms Carter: Or a fraction.
Ms Osborne: But that's not the only aspect of employment equity. One of the ideas is that there is better identification, better self-identification of the individual so that people know who is meant by "racial minority," so that, say, southern Italians or Europeans or whatever may not see themselves as part of a racial minority simply because they may be darker than the northern.
The other reason is that in the workplace itself, and this is our experience, there is a tendency to exclude some of the groups, whereas you include some other groups. We're saying that this is not fair, this should not have happened, and therefore, if they are identified, then if it's feasible to set goals, you can set goals on a much broader basis. So those are some of the reasons.
Mr Curling: I think you are one of the first groups that has identified that the social contract may have an impact on employment equity. I'll give you an example. The Police Association of Ontario has just been denied a certain transfer of funds from the government which was so committed to employment equity, therefore disallowing the Police Association of Ontario to carry out some of its changes and put things in place. I want to say to you too that when employment legislation is in place, the government and the opposition must be committed to that kind of a change, especially so the government, which is going to flow that money; especially so the government which is in charge of the funds to make these things happen. You cannot demand of an association which is funded by you and then not demand the same thing of the private sector. So they've got to be consistent, and I want to commend you for making that observation.
Ms Osborne: I don't want to get into a political debate.
Mr Curling: You don't?
Mr Callahan: Feel free.
Mr Curling: Go ahead. It's what it's all about.
Ms Osborne: There is an impact. It was also brought to our attention that there has been, as part of some negotiations -- I won't say which group -- exemptions or an opting out from the employment equity program, and we think that's really disastrous.
Mrs Witmer: You indicated here that it's because of who you are that you have certainly not been able to access some of the opportunities that should have been made available to you.
Just to follow up, we read yesterday in the newspaper, for example, that in the teaching profession no new teachers are going to be hired for the next three years. So obviously any attempt to implement employment equity in the school system, which is absolutely essential, is not going to take place as quickly as had been perceived it might.
You indicate that the commission must provide the percentages and the formula for determining the goals. How do you envision the percentages being arrived at?
Ms Osborne: That's an exercise that the commission will have to carry out with Statistics Canada and a whole lot of other institutions in order to arrive at some reasonable percentage for each of the designated groups.
Mrs Witmer: Okay. So you hadn't discussed that at all within your organization?
Ms De Peza: It is quite easy to even imagine that the commission can extrapolate from the Ministry of Consumer and Corporate Affairs a list of all employers and, based on the statistics like Statistics Canada, come up with some kind of formula for a geographical area. It's based on demographics; it's based on the immediate population. Employment equity is to meet the needs of various communities across Ontario, and I don't see that this is too much of a problem. We have statistics and research of all kinds going on which could give us that information. I have no difficulty with imagining that the commission, through some order in council, might get some assistance from other ministries that can provide that kind of information. So that's really not an issue.
The Chair: Thank you for the presentation and for participating in these hearings.
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KYLE RAE
The Chair: Welcome, Kyle Rae. You have half an hour for your presentation. I hope you will leave plenty of time for questions and answers. We are noticing that people are spending more time in their presentation, leaving very little time for questions.
Mr Kyle Rae: I will do the opposite.
As you may know, I'm a city of Toronto councillor, and I'm not here in that capacity. Before I became a city councillor, I was employed at the city of Toronto, so I've been quite familiar with the employment equity program at the city, which was implemented in 1985. I began working in 1986 for the city, as an employee, and I became a manager at the 519 Church Street Community Centre, where I had to implement employment equity. Now at city council I'm a policymaker and we continue to work on our employment equity program.
I collected the information to implement employment equity at the workplace where I was. I reported this information to the city so they could construct the numerical information. I've negotiated with unions and hired and fired and advertised and disciplined under employment equity guidelines.
I congratulate the government in moving forward with this legislation. There may be those who feel it doesn't go far enough, but it is so similar to what the city of Toronto started to do in 1985 that I think this is an excellent starting-off point, and there will be ample time, I believe, to make adjustments to it to make it a better piece of legislation.
But I'm not really here to look at the way in which it's implemented in terms of numerical or those kinds of implementation issues. I just want to make it very clear that in my experience in working with employment equity, it is a painless process. It does not disrupt the workplace if you inform the workplace of why you're gathering this information. The staff work with you, because they understand the issues are important. The concept of merit is not eroded or does not evaporate when you bring in employment equity. It enhances a workplace. It does not erode merit.
I can't imagine an employer hiring someone because of employment equity. You hire them because of their skills, and you look at those other issues and try and change your workplace to make it representative, but when you have a job description in front of you and you're trying to hire someone to fit the needs of that job description, that is what you're primarily looking for.
I would like to support the groups which are found in the legislation as being groups that are being designated as requiring the protection of employment equity. We know that there is a long history of discrimination in Ontario and in Canada, that there are groups that have been discriminated against in employment and in services, and I think the Ontario Human Rights Code is an excellent example of the government seeing this as a problem and reacting to it.
But I believe there is a group that has been excluded from the bill, Bill 79, and I just want to note that in the preamble it says, "The people of Ontario also recognize that people in these" protected "groups experience more discrimination than other people in finding employment, in retaining employment and in being promoted."
I believe that the government would be remiss if it did not include sexual orientation, that is, gays and lesbians, in this legislation.
We know that gay men and lesbians are discriminated in the workplace. We know that because we're in the Ontario Human Rights Code. If we are protected in the Human Rights Code, why would you not include us in this piece of legislation in terms of employment equity?
We know that the problem the architects of this legislation have been grappling with is the numerical goals. There's a fear that gay men and lesbians will not come out, will not be counted, will not disclose. Well, we know that in terms of disabilities, disclosure is up to the individual. Someone who's got HIV or AIDS, someone who's got epilepsy, someone who's got dyslexia, someone who's alcoholic need not disclose if they do not wish to that they are in fact a disabled person on those grounds. They are grounds of disability, but it's up to them to disclose it. The employer can't say: "I know he's dyslexic. I'm going to check that off on the box." It's self-disclosure.
If you include gays and lesbians in your list, there will be people who will fill that out. There will be others who will not, who will not feel comfortable about it. But at least you begin the process of recognizing that there is a group that has been discriminated against, that there is a glass ceiling for people who are gay and lesbian and that you need to start counting us. I know it's the federal government that really does the counting, but somebody is going to have to start to count us in in your statistics or else you'll never know the proportion that we make up of the population.
If you choose not to go that route because you fear the numerical goals cannot be achieved through a failure to disclose, there are qualitative measures that could be taken. I think if you do not include us in the collection of data, then you must in the preamble recognize that gay men and lesbians have been discriminated in the past, that they have employment issues and that the workplace should be a safe place for gay men and lesbians to work and be promoted and to be represented.
Some of the ways that can be achieved is, the government has promised that in the fall it will bring in legislation on same-sex spousal benefits -- there's a clear example of making the workplace an equitable workplace -- posting non-discrimination policies that include us in the workplace, anti-homophobia workshops and training of employees -- I've been working on that in the Metro police force, going in and doing workshops, and that's making a difference; some sectors of that police force have never been so supportive and understanding of the people they are policing, and there have been changes there -- and support and inclusion of gays and lesbians in employee assistance programs so that we can then begin to acknowledge that we do have relationships, that we are people outside the workplace.
If you fail to do this, what you do is replicate a grievous error that was made when the Human Rights Code was changed in 1986, and that was in regard to the harassment section in the Human Rights Code, subsection 4(2), and excluded gays and lesbians from the harassment clause in the Human Rights Code, which is quite bizarre. You can get into a workplace, but once you're there, you can be sworn at, you can be discriminated against and you have no recourse that your employer or your colleagues have been harassing you. There's no other group in society that's been afforded that peculiar dignity of being able to work and continue to be harassed. I believe the government is interested in changing that, and I note Tim Murphy has introduced his private member's bill which addresses that issue too.
The government of Ontario has a responsibility to make employment accessible and safe for all Ontarians. There are some Ontarians who do not enjoy these protective employment principles. You as a government may find it difficult to quantify and therefore integrate gays and lesbians into the legislation, but your failure to collect this data or your fear that you won't be able to collect this data cannot be used as a justification to exclude us when you know we are victims of unfair labour practices, human rights practices and employment practices. I would ask you to think hard and include us in this legislation.
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Mr Curling: Mr Rae, thank you for making that oral presentation. Maybe you could help me clarify some foggy thoughts in my head of what went wrong on the way to bringing employment equity about, since you have worked on it as a councillor and also you're pretty close to the NDP and their thinking in that way. When they developed their private member's bill and Bob Rae presented his private member's bill, it was something that people said had teeth in it. Then we have this employment equity bill. What do you feel went wrong on the road from the private member's bill to now?
Interjection.
Mr Curling: Oh, you'd like to answer?
Mr Winninger: You've got a great opening.
Mr Curling: They want to answer over there. You see, they know what went wrong and can tell me.
Mr Kyle Rae: Now, now, now. Come on.
When you start looking at legislation and implementing policy, you often come to terms with, how do you implement and how effective can it be? The city of Toronto's employment equity program, in terms of timetable and goals, is voluntary, and for the most part, for 80% of that workplace, it's been an excellent process. I think earlier this year or last year, you might recall, we had some problems with one of our departments, the fire department, in looking at employment equity goals. That is the only department that we feel fell short of those goals and timetables, but every other sector in that workplace was able to look for its own goals and timetables, set their own, not be coerced, not be told what they had to do, and many of them reached their goals and timetables. They will be reassessed by the city. But it was largely a very successful voluntary program within the city and it worked. You may be referring to whether or not it should be voluntary or --
Mr Curling: No, just referring to the fact that the private member's bill seemed to be right on target of what employment equity is about. What I'm referring to is that this one is not. It's vague. It is not precise. It has used regulation in order to define a very weak legislation. That one would have required far less regulation to define the intent. That's what I meant.
Mr Kyle Rae: I would have preferred that the private member's bill had been successful back when -- I'm not sure when he introduced it. It was 1988?
Mr Curling: In May 1990.
Mr Kyle Rae: I would have preferred to support it then.
Mr Callahan: It was probably an election platform.
Mr Curling: It's important. I think you have clarified. You answered my question. You said it was then and now it is now, and as you said, when the reality comes of governing, then we have a different view of things. All I'm saying is that employment equity is quite a very delicate bill to put through, and no one can claim that they've done the greatest thing ever. The Conservatives and the Liberals and the NDP have different views about that.
Mr Kyle Rae: My experience is that getting into government there is a great deal of difference being on one side of the table and the other and being able to implement employment equity and deal with the issues. There are some constraining elements that you have to deal with. But this legislation goes a lot further than this province has gone before. It's taken us into a way of thinking that this province in many sectors doesn't want to go. This is the way to go, though, I think.
Mr Curling: You said gays and lesbians are excluded. Do you feel francophones should also be included in this?
Mr Kyle Rae: I'm not aware if they have been here to depute. I know the minister, when she was here introducing the --
Mr Curling: She doesn't attend to these things any more.
Mr Kyle Rae: She did mention that, I believe, and there may well be a case if there is in fact a record in this province of failing to hire, to have proper representation, to promote Franco-Ontarians. I'm not aware of that, but there may well be a case for it, and if they feel that there is a case, they should be here before you and making that case.
Mr Callahan: I'd like to follow up on that. You've spoken of the bill being enlarged to include gays and lesbians. It's always been a sort of a conundrum for me, because it seems to me that if you're for something, you're against something. That's in a sense what you've got here.
What about the 40-year-old or the 45-year-old or the 50-year-old who, particularly in our economic climate today, has lost his job and goes out to the workplace to try to get another job and they look at him and they say, "Well, you're overqualified." Really what they're telling him is: "You're too old. We've got a pension plan we don't want you to get involved in. We don't want to have to get rid of you to let the young people get up the ladder." Shouldn't they also be included, particularly in the economic environment we've got now where these people are out of work? They're supporting families and can't get jobs, can't get back into the workforce.
Mr Kyle Rae: That's not an employment equity issue. I recall, when I came back to Canada in 1981 from studying overseas, I got the same word, I'm overqualified, and I didn't have to be 45 years old to hear that. That's not the issue.
Mr Callahan: Maybe I shouldn't have said overqualified. That's what they tell them, but really what they're telling them is, "You're too old; we haven't got a job for you." I would be willing to bet if you did a study of it you'd find an awful lot of them out there. I know, I get them through my constituency office where they in fact can't get employment in this tough economy because they've reached that age and their job has either disappeared, which is a common practice in the province of Ontario -- jobs disappear like crazy. Those people are also being discriminated against and they're not being included in this bill, so why should they not also be added?
Mr Kyle Rae: I think your issue, Mr Callahan, is not employment equity. It's about job retraining and about employment. What we're talking about here is groups that have been traditionally excluded from equity hiring and promotion and that's not, I don't think, what you're addressing in this question.
Mr Callahan: I think men who have reached an age where their job is lost or disappeared and go out and try to get a job have been discriminated against for a long time, not just in Ontario but probably throughout the workforce in the civilized world.
Mr Curling: He meant women too.
Mr Sterling: I'm interested in your concept of asking for the designation. The bill requires employers to reflect the community in the representation in their workforce. If it's a self-determination as to whether you fall within the designated group, I think you have said that some would and some wouldn't include themselves in that group. If the community -- any particular community -- was determined to have 5% of your designated group and only 2.5% -- half -- said they were gay or lesbian, then how would the legislation possibly work, in that the employer would be required to have 5% and only 2.5% would be part of the self-determination process of saying, "I am gay or lesbian"?
Mr Kyle Rae: I think the example I gave earlier was similar and that is the disabled. In that case, men and women who are disabled do not necessarily have to disclose that they are disabled, but they are part of your workplace. There is an assumption they're in your workplace. I would think it would work in a very similar way. You may believe there's 5% of the population or 10% of the population that is gay and lesbian and that you work towards these goals.
As I said, they're goals, they're targets. You work towards achieving them and as this legislation matures and as workplaces deal with it and as other legislation comes through from the federal and provincial governments which makes it more comfortable for gay men and lesbians to self-disclose, then maybe by the turn of the century we'll have a more accurate and a more -- a program that fits the population and the workplace. But you have to allow for that change.
Mr Sterling: I guess it's not being fair, in my view, to employers who want to live within the intent of the law and fulfil their obligation in terms of saying, "We will have a proper representation."
We heard the Canadian Manufacturers' Association say this morning that it would like the opportunity for some kind of mechanism to clarify what in fact it had in its employment force if there was a reason for part of the workforce to say they were or were not part of a designated group. The problem with your suggestion is that, I don't know, when you have sanctions against an employer, you have accountability on the employer but you're not suggesting any way to solve the problem of including your group as a designated group. You're talking about nice, non-enforceable kind of legislation. That's not what this is about.
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Mr Kyle Rae: No. I think what it is if you can allow for the latitude of employers and employees to be able to work through this legislation, and it's not a one-off deal. This will continue to be part of the workplace in Ontario and as it becomes more familiar, more comfortable, as other legislation comes forward, there will become a better fit between the workplace and the knowledge that you have about our role in the workplaces of Ontario.
I think you can allow employers to set goals but, in the case of gays and lesbians, acknowledge that, given the issue of disclosure, you may not reach them, but in the end I think you will. It's a matter of time.
What I'm trying to suggest is give the workplace the latitude to stretch and finally settle into the issue. As I say, it's going to happen with people who are having to disclose whether or not they're disabled. They will have that same concern.
Mr Sterling: I think that was raised by the Canadian Manufacturers' Association in terms of somebody who did not want to consider themselves handicapped, but I think its point was that if the employer made an accommodation in order to utilize that individual or employ that individual, then he would be able to count that in, regardless of the way the person self-determined whether they were handicapped or weren't handicapped.
Mr Kyle Rae: I would go back to the statements I made at the beginning, that if you know there are groups in society who are being discriminated against in terms of employment equity, you can't fail to include them or protect them because the mechanisms you're using are numerical. You need to find a way of guaranteeing employment protection and hiring practices and promotion practices and I suggest the government, if it is intent on maintaining a numerical, that it needs to include us then in the preamble saying employers are exhorted to, are compelled to, ensure that the workplace is safe and accessible to gay men and lesbians.
The Chair: Thank you, Mr Rae. We'll move on. There are three members who would like to speak, just as a reminder.
Ms Carter: So I should be brief. Of course, when the minister gave her presentation to this committee, she did state that two groups which are not included as designated groups had been carefully considered. One was gays and lesbians and the other was francophones. The reasons were pretty much as you have said, that there's little statistical evidence, the numbers, and also there's considerable doubt as to whether most would be willing to declare on the form.
Also, is the problem at the point of hiring? It seems to me that harassment in the workplace is maybe more relevant to the problems that particular group has, and you did mention that is not taken care of, that Tim Murphy's bill did that. The government has said it is very willing to take that route and that in fact Tim Murphy's bill doesn't go far enough. I just put it to you: Is that not a more realistic way of tackling this particular problem?
Mr Kyle Rae: The Human Rights Commission -- if that subsection 4(2) is changed, that will be of great assistance, but it isn't in terms of hiring. Getting in the door can be a problem for gay men and lesbians. There are job ghettos that gay men and lesbians find themselves in. It's very difficult to get promotion. If you're not married with kids, there's an assumption -- and you're not going to become a vice-president of a bank if you don't have the requisite prevailing heterosexual lifestyle. These things are taken into account, unfortunately, and the merit of the individual is not.
Ms Carter: Which should be.
Mr Kyle Rae: And it should be. I think there is ample evidence. My office gets called often about people who are discriminated against, either in hiring or once they're in a workplace, whether they're gay or lesbian, whether they are HIV positive or have AIDS. The Human Rights Commission is quite effective in dealing with the HIV or having AIDS, but when it comes to gays and lesbians, you're out of luck. We need this legislation to say to employers that you cannot discriminate against gay men and lesbians.
Mr Winninger: Have you had any experience with the Freedom of Information and Protection of Privacy Act as it affects requests for employment equity plans or reports?
Mr Kyle Rae: In my experience with the city of Toronto the information was gathered by using a number to identify and only I, as the manager, knew who the number referred to. That did not go forward to the city, so the city could not then release for freedom of information purposes. I don't believe that information would have been made available.
Mr Winninger: I just wondered what your position might be on bargaining agents having access to workforce data, particularly in regard to the designated group an individual might fall under, given that they have joint responsibility for developing employment equity plans, unionized --
Mr Kyle Rae: I wasn't going to get into that, but that was one worry that I have. I have been a member of a union and I've had to bargain with a union on a collective agreement and I'm not sure to what extent the unions should be involved in hiring practices. I'm concerned about that now that I'm at the city of Toronto, and dealing with the social contract has been a learning process in itself trying to deal with significant conflicting interests. But I believe this information should be collected and not be disclosed, except to those who are putting together the numerical information or the profiles and not to bargaining agents. I would not make it available. It is personal information.
The Chair: One last question, Ms Akande.
Ms Akande: Concerning the unions' involvement in hiring practices or omission from it, as you have recommended, it has particular significance when you're talking about promotion, rather than just access because, of course, the unions are those groups which monitor how seniority is being treated etc. In the event that sexual orientation was a part of this act, as it is not, then how would you expect unions to monitor what was not disclosed about an exceptionality that in fact would not be obvious?
Mr Kyle Rae: Again, it falls into the same category as the disabled. If they don't disclose, then the unions would not have that information. One of my major concerns is how the unions will balance their ancient dependence and focus on seniority and deal with employment equity. I think it's something the union movement and locals -- it's a lot of work that I think the locals have to do in educating about this issue. It's going to be a struggle.
The Chair: Mr Rae, we ran out of time. Thank you for coming and participating in these hearings.
Mr Kyle Rae: It was a pleasure to be here.
1430
BLACK BUSINESS AND PROFESSIONAL ASSOCIATION
The Chair: The next presenter, Black Business and Professional Association, Mr Lecky. Welcome, Mr Lecky. You have half an hour for the presentation. I hope you will leave at least 15 minutes for questions and answers.
Mr Michael Lecky: I certainly hope so. Actually, I'm hoping Joyce Burpee will arrive shortly because she's the main one doing the presentation. I don't know if we can switch around the times or if you can put another group first.
The Chair: Let me ask to see if the Canadian Bankers Association is here. Any representative from the Canadian Bankers Association? What about National Grocers?
Interjection: We're not ready yet.
Mr Lecky: If that's the case, I'll try to muddle on.
The Chair: Let's hold on one second. The clerk will check to see whether the next delegates are be outside. We'll check; one second.
What about the Race Relations Committee of Kitchener-Waterloo? No. Mr Lecky, unfortunately not, so you will do what you can.
Mr Lecky: I'm it; terrific. Okay, I'll try to address the issues as best I can. I know Joyce had some material that she wanted to hand out.
The Black Business and Professional Association has, for many years, been an important part of the debate on employment equity. We support the employment equity legislation but would like to see the regulations strengthened and more of the key points included.
Mr Callahan: I think your right hand is here.
Mr Lecky: Good. Hi, Joyce. I'll just finish my comments since I've started. I'll give her time to catch her breath.
Employment equity will have a positive ripple effect in the economy, as it makes good economic sense. By strengthening the legislation, the entire community will be strengthened, and in turn business will be strengthened and the Canadian economy will be strengthened.
It costs us, the country, millions, if not billions, of dollars to keep people on welfare. These same people are crying out for jobs and an end to discrimination and, consequently, an end to the privileges granted to people of a particular race.
In the United States, the employers have come to support affirmative action, believing that it enhances their human resource systems and business practices. Large American firms such as Mobil Oil, the former AT&T, believe that affirmative action delivered real benefits. It facilitated the movement of employees into new and often non-traditional jobs, expanded the pool of available staff and helped to reduce turnover.
Ontario faces the challenges of a global economy, where exports take on an added significance. Ethnic minorities can be an important link in international trade, as we have the expertise here that can advise our large corporations on cultural differences and methods of doing business with various countries. Ethnic minorities also help to foster understanding between countries, which can lead to less conflict and increased trade.
For the past 20 years, members of the BBPA have been acutely aware of the systemic barriers that exist in the workplace. Our members and supporters have complained over the years about the problems they face on a daily basis in the workplace. We have heard of instances where a new white employee is trained by an experienced black employee. The white employee is then given the promotion to which the black employee should have been entitled by virtue of his qualifications and experience. Many of these cases have been referred to the Human Rights Commission. It is clear to us that the time has come for the introduction of employment equity legislation so that the systemic barriers to employment can be removed.
Even though blacks have a long and important history in Canada, we have been largely excluded from the Canadian mainstream. We have been here since 1603, when Samuel de Champlain sailed up the St Lawrence. His interpreter was a black man by the name of Mathieu de Coste.
United Empire Loyalists came to the Maritimes in the years following the Revolutionary War of 1775 to 1783. They included black free people who had fought for the British. They were given land and other grants by the British colonial government. Those are the roots of the long-established black communities in Nova Scotia and New Brunswick. The difference is that blacks got marginal land while whites got bigger and better plots. Many blacks also came to Canada through the Underground Railroad run by white and black abolitionists.
Generally, people are of the belief that blacks in Canada are recent arrivals like myself. This is not true. This belief ignores the early pioneers and focuses only on recent immigrants from the Caribbean and the United States. Black Canadians alive today played pioneering roles in breaking down barriers. We have two people here, Zanana Akande and Alvin Curling. In the late 1950s in southwestern Ontario, blacks held sit-ins at restaurants and movie theatres which excluded them. Individuals and organizations carried on the same struggle across the country while building strong community structures. Their efforts had far-reaching effects, including pressure on Ottawa to remove discriminatory barriers in immigration policy.
Our struggle continues today in our support of the employment equity legislation. We feel, however, that the black people have to be clearly defined as a target group in the legislation, as blacks have found that they have been lost in the definition of "visible minority" while other ethnic groups have been promoted and allowed access to jobs under the visible minority definition. We have heard of stories of Chinese and Indians and other people of different races being promoted but that blacks have largely been ignored, that in fact unemployment is highest among blacks. Consequently, we would like to see a clear definition of the target groups.
I'll pass this on to my colleague Joyce Burpee.
Ms Joyce Burpee: Thank you, Michael. I too am going to start with a little bit of history, out of a couple of reasons. We would like, one, to bring a black perspective to this discussion, we would like to underscore the fact that we support this legislation wholeheartedly and we'd like to offer a few comments that we think might make the legislation stronger and more effective.
Michael touched on some of the work that various members of the black and African Canadian community have done in the realm of employment legislation. I would like to go over that a little bit, because at the very end I heard Michael speak about broadening the definitions and ensuring that the definitions of groups are such that they include quite clearly a definition of "black." That is because we've had the sense that even though there's been a long history of work and some of the pioneers and leaders in our community are still around, the stories are well known and they're very well documented and some of you know them well.
Bromley Armstrong and Donald Moore and several people of that sort were the people who brought in fair employment legislation and fair housing legislation. They went out and they did what were called tests in that they sent out people in pairs, sent out a black person and a white person, matched in every qualification except race, and found invariably that employers and potential landlords discriminated. That's not new. The fact is, however -- this was in the 1940s and the 1950s when the signs that were around the place were "No Jews and Dogs Allowed." The people who have benefited from the human rights legislation that has since been developed are not black, because in the mid-1980s and up to last year we became aware again that anti-black racism still is very much rampant.
We have, as a community, advocated for equity, advocated for legislation, made delegations to this administration and, to our personal knowledge, to all the administrations that have existed over the past 20 years, and we're really gratified to see that this thing has finally come to the table and we thank those responsible very much for that.
The first thing, then, that we'd like to recommend, of course, is that the legislation be passed and be passed swiftly so that the schedule that it's now on, to be passed this fall into third reading -- we would like very much to see that happen.
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We believe, however, that a great deal of the strength of the legislation has been put into the regulations. We, along with other people that we know have appeared before you, would support removing some of those sections from the regulations and putting them into the body of the statute itself. There is no particular trick around that. It's because we fought so long and so hard that we know that not necessarily everybody supports us in this. This is the third administration that we've been to, and this is the first time that this legislation is on board. So we know that there's not necessarily as much support as we would like. We know that it's easy to change when whims and fancies change, and we recognize also that to change a regulation takes a stroke of a bureaucratic pen, whereas to change legislation you have to go back to the public. So we would like the body of the strength of the legislation to be in the legislation itself, probably because it's harder to change; not that it won't ever change, but that at least they'll have to consult with us and the rest of the public to do so.
I come to the recommendation that Michael spoke of right at the end of his deliberation, and that has to do with the definition of the subgroups. We would like to see legislation that works in such a way that people defined as black or people who call themselves black can see themselves clearly identified and addressed within this legislation. So we would like to see the definition in the legislation as well. Again, there are enough people around who can help with the definition if there is a problem around that.
Our second recommendation had to do with taking various components of employment equity out of the regulations; that is, all of the issues around definition of designated groups. We moved to specifically the definition around the subgroups within visible minorities as a third recommendation, but the data collection criteria, the employment systems review, how goals are set, the reporting mechanisms and the employment equity plan itself we would like to see in the body of the statute.
While we're arguing for the strongest possible legislation, we understand that the people who work day to day together in a company are the people who are in the best position to determine what their priorities are and should be. So we would support a notion that the employer, the union, the employee representatives and the designated group members, who together comprise a company, set their own goals. However, along with that, we would like to see a strong Employment Equity Commission that has powers to monitor and that has powers to monitor by doing spot checks.
In that, I do not believe that, sitting outside of a company, I am qualified to tell a company how to run its business. At the same time, if they're going to show good faith, they have to be willing to submit those reports to somebody and have somebody look at them in order to verify what they're doing. Again, it goes back to our history. At this point, we're not necessarily that trusting. If someone says they're going to do something, we'd like to be able to prove that they are doing it.
So the next recommendations are in relation to the strength and power of the commission: that the commission be empowered, through the legislation itself again, to conduct proactive monitoring of companies, that the employers be required to prepare the plans annually and submit them to the commission routinely and that there be some short-term goals. I think within both the legislation and the regulations, somewhere up to a period of nine years there's a potential for nothing really happening. We would like to see that gap closed a little bit so that short-term goals be set as well as long-term goals, so that a company might, say within five or even a longer period, have some overall objectives to serve. We'd also like to see within one year and within two years, so that if there are any shifts and changes those can be accommodated.
We would like to see a strong commission, but we'd also like to see a commission that is adequately resourced. This work is not going to get done by simply saying it's going to get done. I think we need specialists, and however they are put, whether they're put as a part of an existing body or they're put as a new body, it is not going to make a difference in how much is spent on this. So if you need someone who can consult with business, who can work with business to develop their plans and to increase the profile of different groups within their workforce, that person is not a human rights investigator, that person is not a person who goes by individual case work to find out if an individual has discriminated against another individual; that person is a person who will understand how to develop a business plan, who will understand how to implement and monitor change and how to introduce change within a large or small organization and to help the company manage that.
The commission will also need, I think, to speak of employment equity and not speak of goals and timetables. We're not speaking of the same issue. I think it's clear, in order that any company set goals and timetables, it needs to have correct, accurate and usable data and that doesn't exist now. For the longest time, various groups, community organizations, equity-seeking groups have been asking the federal government to have a simple question on race on the census. They've done a whole number of things.
Right now the employment equity data that has to do with visible minorities comes from a composite of religion, ethnicity, place of birth and a whole number of things, and together the people at Statistics Canada extrapolate that into race. It would have been quite easy for someone to simply ask, "What is your race?" but somehow that is not considered to be a proper thing to do. In any event, we would like to see the commission advocate on behalf of this issue with the federal government and with other data users so that the kind of data that employers are going to use to compare their workforce against can be as accurate as possible.
There are a lot of other functions that were mentioned in the regulations and that we agree with. The ones that we've highlighted here are the ones that we think are not quite as adequately dealt with as we'd like to see.
The last recommendation has to do with something I alluded to before, and that is the ability of the commission to do spot checks. Again, it needs staff to be able to do that, it needs resources and it needs expertise to be able to do that, but what we're looking for is something that, without a complaint being lodged, the commission can on its own decide to audit a company or a bunch of companies.
In conclusion, I would like to draw attention to one particular point. In a sense, I think we -- the public sector and the broader public sector and the people who have a greater relationship to our tax dollars than others -- we hold them to a higher order. In the last few years we've been hearing of nothing but downsizing and cutbacks among various companies and of course the public sector as well. What has been happening is that the gains or the small gains that have been made in relation to employment equity over the past few years have been eroded through those cutbacks. We would like to see a situation where some action is taken to protect those gains, so we would like to see within the public and broader public sector some consideration so that the game is not always uphill.
Within the discussion of employment equity, within the federal government, there are federal government exclusion orders and set-asides. I don't see very many of those things mentioned in our potential legislation, but I would like to see that considered as well. Even though it's not a recommendation, I would like to see it considered.
Thank you for this opportunity, and we're available for questions.
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Mrs Witmer: Thank you very much for an excellent presentation. You've made some excellent recommendations here. I'd just like you to expand on your very last statement concerning the set-aside for designated groups. What are you proposing here?
Ms Burpee: When I worked for the federal government, it had a set of whatever, things they called exclusion orders, which meant that it could, for whatever reason it determined, step aside from the Public Service Act and recruit and hire people. I'm saying I'd like that considered because in a situation where we have seen, from our membership within the BBPA, that the cutbacks are disproportionately affecting black people, and I would imagine other designated groups who were probably recently hired, that some consideration be made, if after some analysis is done they see that they are in fact disproportionately affected, that another consideration be made to set aside positions so that they can maintain the same balance.
Mrs Witmer: That's true. I had taken a look at the statistics for the disabled and I know the same thing has happened to the gains they've made. They've certainly lost those gains within the public service.
You talk here about the collection of the data, and I think you've made an excellent suggestion here, that certainly there needs to be some work done to ensure that appropriate data is available to the employers.
If you had one request of the government, what would you ask it to do as far as this legislation is concerned? Is there one area you are most concerned about that is not being appropriately addressed in order to ensure there is fairness and equity in the hiring process and promotion? It's difficult; we have only three minutes and there's so much I'd like to ask you.
Mr Lecky: I think there are probably two areas. One is strengthening the legislation, taking it out of the regulations so that we can enshrine it so that successive governments can't come along and just change it at a whim. Secondly, I think goals and timetables are critical. We want to see some action sooner than later.
Mr Fletcher: I thank you for your presentation. I'm just wondering about the Employment Equity Commission and its powers and what it uses. The opposition has been saying there is no need for a commission because the Ontario Human Rights Commission can handle all of the complaints. Do you subscribe to that?
Ms Burpee: No. Quite simply, no. The Human Rights Commission has been in existence since 1962 and started on a severe backlog maybe five or six years or so ago. The backlog I think is due to lack of funding. Quite clearly, the Human Rights Commission is a very good body, a very good, solid body of people. If we now decide to saddle it with another set of issues, I think that would simply deny employment equity.
Ms Akande: Given the great deal of attention to employment equity legislation in terms of the designated groups gaining access to the workplace, do you feel that the legislation adequately addresses the area of promotion or safeguards or makes it more possible or more safe for designated groups to move up once they're in the workplace?
Interjection.
Ms Akande: Even taking into consideration your situation.
Ms Burpee: Given that somewhere in this brief we spoke about our cynicism and lack of faith in things that exist, for instance, the seniority clause, if promotion is dependent to a great extent on seniority, no, I don't think it's well addressed.
I think the legislation is probably not what all of us have ever wanted in a legislation, but I think it's a good start and I think some of it is left to employer will. If this legislation were passed, I believe we'd be better off. I think we'd be better off in terms of access at the first level, that is entry, recruitment, access in promotions, but I don't think it's as good as it could be and I don't know that it could ever be as good as that. I'm not sure how to answer that, Zanana.
Ms Akande: Okay. My concern, if I may just get --
The Chair: Mr Curling.
Ms Akande: One statement, Mr Chair --
Mr Curling: It's my turn.
Ms Akande: My concern is that many of the members of the designated groups may in fact gain access and remain at the bottom of the list, in the same positions in which they entered, so this legislation should perhaps do more to make promotion more possible. Having said that --
Ms Burpee: Are you referring to a specific section?
Ms Akande: No. I'm talking about distribution.
Ms Burpee: That is the status quo, that whatever level the position is -- sometimes they are quite high, technical-level positions that in recruitment you could find only a certain group of people who had those qualifications -- but regardless of how high that is, and I mean some of the engineering positions, they have remained at those positions. That is the status quo. I believe that the legislation will affect that positively but I don't think it's as positive as it could be. I think it could be a lot better.
The Chair: Mr Curling.
Ms Akande: More frequent --
The Chair: Ms Akande, sorry. Mr Curling.
Mr Curling: Having reached there, I want to thank you two for an excellent presentation. I see in my job as a legislator people who have struggled and brought things to this point, that many of the advocacy groups that have come before us somehow feel tired. "I'm tired and I want it over with quickly." My job is to say to you, and as you have emphasized, that the legislation is vague, it's weak and the bureaucrats try to catch up with making the regulations a little more defined, and you ask, rightly so, that this regulation that seemed to put a little more definition to the legislation, the failed legislation, to make it look a little bit better. You rightly identify that it could be subject to change by the whim and fancy of others who come in.
I don't want you to be tired. I want to continue to say that this employment equity legislation is going to be one of the strongest regardless of who brings it in and to advocate for that kind of strength that we want in it.
Would you say then that having taken the step of the regulation, most of what is in the regulation should be defined in the legislation? I'd just say one quick thing. The problem we have here is, if you take it to court the judges will rule on the legislation, not on the regulation. Do you want to comment on that?
Ms Burpee: I think we've commented on that. We would like to see from someone, as you know, who has implemented employment programs over the years -- the fundamental components of employment are as listed: data collection, employment systems review and so on and so on. Those things we would like to see in the legislation itself, in this body of the statute, not in the regulations, so that those things would be protected.
We are looking for a strong legislation, but I think, Alvin, in all fairness, many of us are planning to come back at this many years from now until it does get to be perfect. I think this is a good start and we are gratified. If Michael hasn't offered the services of the BBPA to do continuing work on this, we certainly are prepared.
Mr Curling: I could have visited that again, but I won't. The other question I have for you --
The Chair: One last one.
Mr Curling: It is the last, not really the last one, the last one here.
You spoke about the gains that you have lost in the process, and the government has contributed to some of that lost progress. The fact that the Police Association of Ontario today is complaining that it has cutbacks and that the gains it made in employment equity today will be lost. Are you concerned about -- and I think you addressed that a bit -- those lost gains? Because having struggled and having come this far, somehow this legislation which is before us will appease them. In the meantime, having to go back to find out what you ask of the public sector, I hope you make sure that the public sector funding will not make any regressive move towards employment equity, what you're asking of the private sector, like the Police Association of Ontario.
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Ms Burpee: I don't think this is appeasement legislation, Alvin; I think this is ground-breaking legislation. No one in the country has done it quite like this, in the first place. But yes, we would like very much to see whatever gains that have been had so far protected. That is what we're about in this. We know of very many people who are very vulnerable at this time, not only in the public sector, but also in the private sector. But I mention the public sector because we have more give, we have more influence -- "we" meaning you as the government -- to talk to them about what they're doing and to talk to them about including employment equity as they consider cutting back and downsizing.
The Chair: Ms Burpee and Mr Lecky, thank you very much for coming and taking part in these hearings.
CANADIAN BANKERS ASSOCIATION
The Chair: The Canadian Bankers Association. Welcome, Ms De Laurentiis and Ms Pérez. You have half an hour. Please leave plenty of time for questions and answers at the end, if you can. Please begin.
Ms Joanne De Laurentiis: We will. Thank you very much. The Canadian Bankers Association is very pleased to have the opportunity to appear before your committee as you review Bill 79. My name is Joanne De Laurentiis and I am vice-president, domestic banking and public affairs, with the Canadian Bankers Association. With me is Fresia Pérez, who is senior manager for workforce diversity and employment at the Bank of Nova Scotia. Ms Pérez is also vice-chair of CBA's employment equity standing committee.
As you know, CBA represents the banking industry, which falls under the jurisdiction of the federal government in labour matters. The banks have been complying with Canada's Employment Equity Act since it came into effect in 1986. The six major banks are strongly committed to employment equity and have made their commitment known both internally, to their employees, and externally, to their shareholders, customers and the public at large, through their annual reports, speeches and statements to the media.
Regarding Bill 79, we are not clear regarding the federal employers' status under section 49, the contract compliance provision of the bill, and so our first and most important reason for appearing before you today is to request clarification of our status. We have discussed this with government officials and they have indicated to us that because federally regulated industries are covered under the federal employment equity law, they are not to be captured by section 49. We strongly support this approach and we're here to urge the committee to add clarity to the legislation by amending the section to that effect.
We have two other concerns arising out of the legislation that we'd like to table with you. These arise on the basis of the banks' experience working under the federal act, and we present them to you with a view to making your legislation more effective and workable.
The first issue is one of harmonization of federal and provincial requirements. The banks and other federally regulated employers do business in all provinces and territories of Canada, and it's of great concern to us that regulatory requirements, especially in matters where the objectives are the same, should be harmonized. Different employment equity laws can capture employers across multiple jurisdictions because of the way contract compliance provisions can be applied, and the banks contract their financial services to most governments.
We have been encouraged by very clear indications of achieving a harmonized approach. We know for example that the federal government has seconded an individual to Ontario to work on the issue. There are some specific changes that have been made to regulations which speak to harmonization. But there are a couple that remain unaddressed and we would like to mention them to you.
The first is that the employment equity plans, as envisaged under the bill, must include the analysis of availability data, the setting of numerical targets and reporting for each geographical area within the province in which the business operates. Businesses that have multi-locations, such as the banks where the branches are located throughout the province, will find this a problem because they are at the moment reporting on the census metropolitan area of Toronto and the rest of the province as one entity for the federal government.
The other area where there is disharmony between the federal and provincial law is the requirement to make information available to employees throughout consultation or posting. The provisions in your act go far beyond the requirements for consultation in the federal act and would cause difficulty for our industry.
This then leads to the second major issue which we'd like to table before you, and that is the issue of confidentiality of business information. The nature and the amount of information that is made available to employees for both consultation and posting purposes -- these are set out in sections 15 and 16 of the act -- are excessive, we believe. We certainly agree that consultation with employees and the provision of information is important in the employment equity process, and under the federal law each bank has developed its own method of achieving that process.
Sections 15 and 16 in your legislation, however, leave a great deal of discretion to regulation. The sections of the draft regulation which give effect to sections 15 and 16 require employers to make available information which is critical to business strategies and business competitiveness and which should -- in fact, we believe must -- remain confidential with the management of the company.
Our chief concern is in the regulations, and these are specifically sections. 21, 41 and 46. The effect of these would be to make available to all employees the employer's plans for a three-year period for job openings at all levels of the organization and in all regions, with precise indications of positions targeted for designated group individuals. Such human resource planning is a fundamental part of an organization's business strategy. To make it available we believe has some fairly serious negative implications for competitiveness and for human resource management for both large and small business. We believe that enough information can be provided to employees without going to the extent of compromising confidential business strategies. We urge you to ensure that more reasonable limits are placed on the information requirements of the act and certainly that confidentiality provisions are introduced.
There is also section 22 of the act, which deals with access to plans by the Employment Equity Commission, the audit function and so on. We would recommend that you look at a confidentiality provision in that section as well, because there is no mention of that.
That concludes our comments. Ms Pérez and I would be delighted to answer your questions.
Mr Fletcher: Thank you for your presentation. Really what I'd like to do is ask if we could have the ministry staff clarify where the banks are as far as the federal versus the provincial jurisdiction and employment equity are concerned. If we could just get a clarification on that, that would be nice.
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Mr Bromm: In section 49 of the act, which is the contract compliance section, the intention is to exclude federally regulated employers. They're excluded by the last statement in section 49, which says that the contract compliance provision only applies to the extent that the party has obligations under part III of the act. As federally regulated employers, banks are excluded from the act and so you wouldn't have contract compliance provisions either.
Mr Fletcher: Does that make it clear for you?
Ms De Laurentiis: That makes it very easy, if that's the case. The legislation doesn't appear to read that way, but if that's the intent, then we're delighted.
Mr Sterling: What would clarify it for you?
The Chair: We're getting around to you. Mr Fletcher, that's it?
Mr Fletcher: That's it.
Mr Gordon Mills (Durham East): Thank you very much for your presentation here this afternoon. I know from the papers I've read that you've had lots of experience in employment equity practices, so that leads me to ask you, based on that experience, what could you recommend for this committee to be a must or a key issue in this legislation? How do you see that?
Ms De Laurentiis: As a very general comment, as we review the legislation, the one thing that strikes us is that your legislation tries to codify every practice. Our experience with employment equity is that it is very much an evolutionary experience, as it were. There's a lot of learning that goes on, both on the part of the employer and on the part of the employee population. There is a certain amount of flexibility that is needed in order to allow that evolution to happen in a productive way. As a general comment, we would have to say that you've tried to codify too many things and it's going to lead to some problems of implementation and certainly may aggravate the relationship between employer and employee, rather than smooth it out.
Mr Callahan: There was a letter that accompanied our handout. It's a letter dated January 27, addressed to the deputy minister. Do you have a copy of that?
Ms De Laurentiis: Yes.
Mr Callahan: On page 3, the final paragraph says: "We believe employment equity laws should be positive and encouraging, providing firm direction for addressing economic and social policy objectives. The thrust should not be to create a second-generation human right, as Ontario's new legislation appears to do." What do you mean by that?
Ms De Laurentiis: If you go to the preamble of the legislation, it appears to assume that discrimination exists and that there is a certain right -- I'll look for the exact words here, but it really refers to the preamble. It's unusual to have a preamble like this in pieces of legislation.
Mr Callahan: An indictment.
Ms De Laurentiis: That's right. It presumes guilt and it presumes --
Mr Callahan: It immediately sets off an adversarial approach rather than an approach of trying to work together. Would that be a fair --
Ms De Laurentiis: It's a very negative message.
Mr Callahan: The second thing I'd like to get, if I could, is from staff. Sorry to keep bringing you back and forth. Since you now find that you're not governed by this, I can use my time to get a little information from this gentleman, and maybe it will help you and others. Under section 34(1) and (2), where the tribunal is given "exclusive jurisdiction to hear and determine any proceedings before it and to determine all questions of law or fact that arise in a proceeding," is that constitutional or is that a section 94 judge? And how does the province appoint section 94 judges?
Mr Bromm: No, it doesn't try to create the court as a section 94 court. It just grants the tribunal the jurisdiction to answer any matters that are brought before it under the legislation. It's a common section; it occurs in many pieces of legislation. It is constitutional. It doesn't attempt to oust the jurisdiction of any other court; it simply creates jurisdiction for the tribunal.
Mr Callahan: I appreciate that, but you've got laypeople -- I assume they're going to be laypeople, not judges -- who are determining questions of law and fact and there is a whole line of assessment cases that I recall where it was felt that Ontario could not do that. They have the power to appoint provincial court judges but not people who can make decisions of law and fact.
Mr Bromm: I think really we're getting out of a territory that I have any authority to comment on, but if you would like a legal opinion on this type of section, then I can certainly get you one.
Mr Callahan: I would like you to look at that, because that's the guts of this whole thing. If it turns out that it doesn't have any meaning, then the whole act is -- section 34(1) and (2).
The Chair: We'll get additional information on that.
Interjection: Section 34(1) and (2)?
Mr Callahan: Yes, law and fact.
Mr Winninger: We'll look at that.
Mr Callahan: Let's get an answer anyway.
You've now been told that this legislation does not affect you as banks because they're federal jurisdiction. You commented on the question of being required to make this information available in such a way that it might affect confidentiality and your whole business operation. Is that required by the federal act?
Ms De Laurentiis: The federal act addresses the confidentiality issue, yes.
Mr Callahan: I can understand the importance of that if you have to make it known to the bargaining agent. I get the feeling the reason people are objecting to that -- not people who are looking for these rights, but people who are coming here from business -- is that they don't want to give the bargaining units any more information to use in negotiating collective agreements or even, for that matter, getting into the operation as a union. I may be mistaken, but I don't think banks are yet unionized, are they? To a large extent, the employees of banks are women. Would that be right?
Ms De Laurentiis: Seventy-three per cent.
Mr Callahan: Is there anything to this as that being part of the reason that you wouldn't want this information to get to the bargaining agents would be to avoid perhaps giving them a leg up in the next collective agreement or allowing them to unionize if you're not yet unionized?
Ms De Laurentiis: No, it's exclusively to do with giving notice on strategic plans that would go beyond the company -- that information would go to competitors. The regulations require that an employment equity plan be for a three-year term. I'll give you an example.
If you are in the process -- let's take a bank -- of expanding in a particular business area or adding to it -- as a result of Bank Act changes just in the last little while, banks are now able to buy trust companies and so on, so they are making plans over the next three years about what business elements to add or to delete, and it's that kind of information that there is concern about sharing in a public way. The way the provisions are written, in essence, the information is very public. Anyone could know it is intended to add x employees for x purposes. So it's really strictly to do with guarding competitive information. That's what it's all about.
Mrs Witmer: Since you have had some experience with this type of legislation, I want to focus on the definitions and the self-identification. There have been some concerns raised about the fact that there will be some difficulties involved in self-identification, and I just wonder if you have any comments to make and any suggestions that could be helpful to the government.
Ms De Laurentiis: We're very supportive of the self-identification process and we certainly had -- this is referring back to Mr Mills's question that we evolved our position, as it were, as we experienced reality. Self-identification is really the only rational way to go. If you try to do it any other way, it's quite difficult.
It isn't without its problems, because we have experienced underidentification -- individuals who have been accommodated, for example. The question is, do you feel disadvantaged, and if you've been accommodated, you may not feel disadvantaged. So there is a problem with the data quality, no question. But self-identification is still the best way to go, and as Fresia has more hands-on experience than I do, she can elaborate on that, but I'm sure she agrees with the point.
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Ms Fresia Pérez: I support that, yes, completely. I don't know if you have any other specific questions.
Mrs Witmer: No, there's just been the indication that sometimes there is underidentification, and I think you've indicated that to be true and you've raised the same types of concerns that some of the other individuals have as well. There's been a suggestion that perhaps there needs to be another mechanism available if people don't self-identify. I don't think anybody specifically told us how that could be achieved, but that the employer have recourse to some further action in order that the survey would accurately -- you know.
Ms Pérez: In my experience in my years in employment equity, I have not come across any mechanism other than forcing people to identify, which is something that we would certainly not support. We do believe, as Joanne said, that there are challenges with it. However, we've been very successful, perhaps not the first time but the second time, and the lessons are that self-identification is the only way and that it helps us just to understand even the climate and employees' understanding of employment equity when we have better participation rates.
Mrs Witmer: So the challenges are not insurmountable; they can be dealt with. What about the definition? We've had, particularly the two groups, the visible minorities and the disabled, indicate they'd like to see some subgroupings within the definitions. Do you see that as something that would be beneficial? In fact, we had the Black Business and Professional Association here who indicated they would like to see that happen, just a few minutes before you appeared.
Ms Pérez: I guess my comment there would be that it all depends perhaps on what one is trying to do with employment equity. We certainly believe that we want to create and establish a diverse workforce when we don't have it, and I would certainly include any group and certainly subgroups. We are mindful of the fact that the representation in our areas is better or worse depending on some of the groups, but our plans certainly allow for that at the moment, so where we see that there's an absence of a specific subgroup, if you want, this is where we focus our efforts at the moment without necessarily a requirement to count how many people we have in those subcategories.
Mrs Witmer: So that's something you're doing at the present time.
Ms De Laurentiis: If I may add, the one problem with segmenting the data too much is that you really then lose control; the numbers can become meaningless. Going back to your question of self-identification, is there another way, the related issue there is the availability of the census data that one uses to measure the workforce against. If you're reasonably confident that you've got good data there and you deal with that and make sure you are comparing apples and oranges, the broad categories work. When you start segmenting, you get into a real data quality problem.
Mrs Witmer: Thank you very much for your presentation.
The Chair: Thank you both for the presentation you made and for coming here today.
Mrs Witmer: I wonder if our legislative research people could take a look at the survey that was done for the Employment Equity Commission, in order that we could see the breakdown and I wonder if that information could be made available for us, and also done for the Human Rights Commission, so that we can see the composition of the workforce within those two.
Mr Curling: Could I make a quick suggestion in the meantime too, that the 25% of those businesses that are exempted, under 50, if we have any statistics to show how many of those designated groups are within that 50 and under. Do we have any statistics on that? If you have it, fine; if you don't --
Mrs Witmer: I'd also like to receive at the same time the data for the census metropolitan area of Toronto so that we can take a look at the relationship there.
The Chair: I think we can get that as well.
NATIONAL GROCERS CO LTD
The Chair: Welcome, Mr Williams and M. Rochon. You have half an hour for your presentation. We have, from time to time, spent a great deal of time on the presentation and left very little for questions and answers, so please try to do that in your presentation.
Mr David Williams: I'll try to do that for you. I appreciate the opportunity of being here and to represent our company's view on what we consider to be one of the most important issues that both society and the business community, as I can speak for, are going to face in the 1990s.
For us employment equity has been a large part of our ongoing business and strategic planning. It's very obvious to us that for anybody, particularly those in the retail business sector but for all businesses, things have changed. They are changing more rapidly than anyone can expect, and the demographic profile of this province has changed to the point that if you want to be successful in the 1990s, you must change with it.
That says that you want an organization that reflects the community in which you serve, particularly as retailers, and that you want to draw from the largest talent pool that could help you reflect the community that you market to, and that your organization should reflect that so that we should not have to go outside of our business to find out the concerns and interests of the exact community we're trying to serve.
Our interest in being here today is hopefully to give a balanced, responsible approach into how to deal with the question of elimination of discrimination in whatever form it takes in the workplace and, hopefully, through that experience, in society in general.
I'm sure you're going to hear from many people in the business community about how we should all be left alone to our own devices and the law of supply and demand will take care of itself and this problem will go away. That is not a responsible approach and that is not one that we support. We do believe that the issue of employment equity can only be addressed, and addressed in the time frame that hopefully the Canadian society will accept, by a kickstart, and I believe this legislation does that.
On the other hand, we believe that you'll get a lot of very responsible individuals from advocacy groups who will suggest that because of the nature of this issue and because of its seriousness, it should be addressed immediately and overnight. I suggest to you that that will also fail for the very same reason: This is an issue of attitude. Discrimination is an attitude and that cannot be legislated.
What must be legislated and what governments have responsibility for is to legislate behaviour that's acceptable or unacceptable. I believe business leaders have the same responsibility for their workplaces.
If we legislate what behaviour is acceptable or not, in time that will change the environment in which people work, and out of that environment will come a more positive attitude change and a more permanent one.
So rather than quota systems that have been tried and failed elsewhere, I'd like to suggest that we have a Canadian solution, and one that's built on understanding, tolerance, sensitivity and ultimately compromise, because both of these extremes will not meet the needs of Ontario workers, particularly in environment. I can say to you that for our workplace, we know that we have to engage our employees in understanding and discussing this issue. It's a sensitive one. It's not easy to talk about, but we must create an environment where people talk about this as easy as they talk about sex and religion. And when they can, and they can talk about the concerns they have -- and that's the people in the non-target groups, "What about me?" -- and when you can create that kind of environment and get them to embrace the fact that there is a problem, and if you accept the problem you must accept that there are some solutions and have them be part of that solution, you will create an opportunity to be successful in what are very admirable objectives in the bill.
But they are only objectives, and it's in the real workplace that those objectives have to come to life and meaning and take a life in a form of their own.
I suggest to you that the changes we have tried to recommend here are not to try to make it easier on any employer but to try to create an environment where I and my company can engage and embrace our employees in accepting the changes that must take place and having them support them so that we will be successful, not just for a year or a particular goal and timetable, but for life. With that, you have the recommended changes we have suggested and we'd be happy to discuss any of those or any other questions you have.
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Mr Curling: Maybe I'll just go straight to some of your recommendations here. I think on dot 3 you say, "Amend Bill 79 so that the coordinating committee in multiunion companies can have an equal number of representatives from both the employer and the bargaining agents, thereby making it consistent with the intent of the regulations."
The regulation talks about people in the bargaining unit and the employer, and then it talks about those that are not in the union will just be consulted. What is your feeling about those who are not in the union being a part of that committee you talk about?
Mr Williams: Again, I think it has a commitment that, for those employees who are not represented by bargaining units, there must be a committee formed to discuss that. I can tell you that for our organization we have one in place right now. Any organization that tries to implement this program without the involvement and support of its people will fail. So if it's not in the legislation -- I thought it is in the legislation.
Mr Curling: It's in the legislation that talks about a regulation. Where it is, I don't recall now.
Mr Williams: I get confused between those.
Mr Curling: It states only that they will be consulted. I don't know what "consulted" means. I presume you catch them in the washroom and say: "What about what we are doing? Is it okay?" If they say no, you say: "Okay, it's fine. I have consulted."
The other part says you sit at a table and you work out an employment equity plan because you belong to the bargaining unit. You know you are more privileged than those who don't, but it also affects those. Would you like to see that amended to say, even for those who are non-union, that someone be appointed to sit at the table to draft the employment equity plan?
Mr Robert Rochon: That's an idea. As an organization we have a very active group that has representatives not only from each of the designated groups but from every operating division of our organization. We meet on a monthly basis and are actively involved in an employment systems review right now, looking at things like job-posting policies and workplace harassment policies. It's working very well for us. If that is a potential recommendation coming out, that it be included as a provision in the regulations, we certainly wouldn't take issue with that.
Mr Curling: I think the government is listening now to say, "It worked in your organization, I presume it can work in the others."
The second to last one on that page, you mention about amending Bill 79 and you talk about not proceeding with complaints that are frivolous or vexatious. Who would you suggest is to judge whether a complaint is frivolous or vexatious?
Mr Williams: It obviously can't be the employer, so we have to have a third party. I don't mind if it's even the commission itself. All I want to do is have somebody who doesn't say I'm bound to have to take this thing forward and incur lots of legal costs if there is an obvious malicious nature, ie, every person who is let go from an organization sees this as an opportunity to either continue to be employed while the protest -- sorry.
Mr Curling: While the complaint is under consideration.
Mr Williams: -- the complaint is being considered or for any other reason that could be malicious in nature. I have no objection if it's the commission, if that's felt to be fair. I don't think it has to be a third-party lawyer or anything like that. I don't want to get into big costs. I want to get through and make sure we don't spend all our time on the wrong issues, that we get to making this thing successful in the workplace but take away any incentive for someone in the workplace to misuse what it was intended for.
Mr Curling: You mentioned the word "cost." There's a concern, I presume, that we all have in government, opposition and government itself, that if we're setting up a bureaucracy it must be effective. Some people mentioned earlier on that maybe Human Rights needs more money to make it effective. I don't believe in that. Sometimes money makes it worse, as a matter of fact. Do you have any concern at all, as you read this, that the bureaucracy that will be created will be effective? There's a concern of the person who will be complaining, whether or not the complaint be presented to human rights, or presented to the commission itself. Did you see any confusion of where they would go to have their case addressed?
Mr Williams: Again, I'm not an expert and certainly law is not my profession. I would ask that there be consideration to making sure there is an expedient process by which issues that are brought to the commission are dealt with. If that is in a single body or a multiple body -- I don't know enough, to be honest with you, about the Human Rights Commission and its role. I think it may be that the issues we're dealing with may have to be dealt with in a more expedient manner than has been dealt with in the past. If that's the case, and a separate body is needed for that, all I would ask is that anything the government does it consider to do in a more efficient and effective manner than in the past.
Mr Curling: It does have an impact on your company, you see, that the time it takes to deal with a complaint is lost time and lost money and, as a matter of fact, the confusion and the animosity that develops --
Mr Williams: Very much so. What we're asking for is in support of the legislation -- we're supporting the principles that are involved. It's automatic that we say, "Please do that in a very efficient, effective manner that allows the legislation to be successful." You know, again, this is like costing the business. We don't see employment equity as a cost of business, we see it as an investment. If you have costs, you try to reduce them. If you have investments, you put the right amount of money in based on the return. We see a great return in making sure our company reflects the diversity of the marketplace that we serve and we want to get the largest talent pool possible. That's an investment in our people that we're going to get a return on. I'm not suggesting that's the way anybody else looks at it, but we don't see it as costs. We see it as investment and we're going to put the right level of investment to get the right return.
Mr Curling: While we all welcome employment equity legislation, which I do -- I don't really welcome this one as much as I would love to have welcomed it because I find it rather weak in the process. Do you have any problems at all -- I don't know if you had an opportunity to look at the regulation and look at the legislation and to say to yourself, "I just sort of hope" -- because you seem to have no problem with employment equity -- to say, "If only this was in the legislation, it would have made things so clear and you can determine the direction the government and all of us in Ontario would like to go."
Mr Williams: Again, I would come back to the issue that our organization believes in the rights of individuals of all of these target groups. If there has been discrimination in the past in our organization or in the workplace in Ontario, we wish to see it eliminated and we wish to see it eliminated in a fairer, more sensitive and caring way than it was put in place. That means no overnight solutions, no reverse discrimination, and that's why we're a strong supporter of the merit principle. We believe that in doing that you can gain the support of others, and when we eliminate the discriminatory barriers in posting and training and hiring, I believe we'll have a workplace -- and if there's to be any discrimination of any kind, then it should be in education and training and development. If there's an excess put into those areas, I believe I can get people in the non-target groups to support it because that's addressing the issues that created the situation in the first place.
Do I have issues? I don't have issues with employment equity. I'm a big supporter of it. It's hard not to. If you're asking me if there are things we'd like to see different to make sure it's a success, through our eyes, the ones we propose are those.
You're going to hear 7,800 of them, so I'm not professing that we know everything there is. We have had experience with it. We're getting a very positive response because we're doing it, I believe, in a proper, appropriate manner and not forcing it down everybody's throat and saying, "Tomorrow morning your life changes." But we are getting everyone to believe that life cannot go on in the same manner as it went on in the past if you wish this society to be the kind of society you want to live in and the kind of workplace you'd be proud to work in. Things have to change. We're only talking about how to make it happen. That's why I don't like the two extreme positions of Archie Bunker and Mother Teresa, if you like. I want to come in the middle somewhere.
Mrs Witmer: You've indicated here that you support the principles of the bill and that they are the ones you have introduced in the employment equity program throughout your business. I wonder if you could just give me some additional information as to what you have done in the form of introducing this program into your workplaces.
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Mr Rochon: With a workforce of approximately 20,000 employees, you can appreciate the magnitude of the task we have ahead of us. We are about 60% to 70% of the way through a workforce survey, where we've asked people to self-identify. That was part of an educational seminar we put together that helped to communicate the reasons behind an employment equity plan and communicated it for the right reasons, not that it was going to be reverse discrimination but it was the right thing to do. It really helped to educate our employees. That was the first step.
From there, pretty much on a weekly basis, we've been conducting managing diversity sessions with our employees, particularly with our opinion leaders within the business, to help them get familiar with the issues and how the demographics of the province are going to necessitate change in the way we do business.
We have also, as I mentioned to Mr Curling, been conducting a human resource advisory group, where we have representatives from the various groups. We are conducting a job evaluation review as we speak.
It's an ongoing process in terms of all the regulation requirements. We're really well down that road. We certainly have a long way to go, but we're very proud of the things we've done so far to help achieve the objectives of the employment equity bill.
Mr Williams: The only thing I'd add to that is the danger, in that when you say you're doing something, everybody thinks you have the solutions. We don't. When people try to embarrass us by saying, "Tell me how many people you've got who are black in senior management," I say, "More than we had when we started and less than we'll have when we're finished."
Don't try to embarrass people. Don't make people feel individually guilty about this issue. Make it a collective guilt. We all share the blame for the situation we have today. When you get employees to understand, or even managers, senior executives, unions or anybody -- nobody went about to do this purposely, but there is a situation. When you ask them if there's discrimination in Canada, Ontario, the food industry and our company, and "Yes, yes, yes, yes," you just get down to the point of saying: "Okay, we now agree we've got a problem. What can we do about it?" Engage people in that. That's where the real success of our program will be, engaging people in accepting it and embracing it.
If you're asking me, will I be able to get all 20,000 people to sign off, no, but we will have such a large percentage, a majority, that the will of the minorities will win out. Those who feel uncomfortable in our organization because of the approach we're taking will leave. Well, good riddance.
Mrs Witmer: When did you start your program?
Mr Williams: About two and a half years ago we met with the first group, the women's committee, to try to understand their issues. When they brought their issues out, we realized that this was not a women's issue, this was an issue for all employees and it got formed into a full employment equity initiative on our part.
It is very difficult. In some of the recommendations we're making, please allow us not to have to compete with 42 different jurisdictions and part-time and full-time. What we would like is the opportunity to come back to the commission and say: "May we put this together in a different form?" -- not to try to go around the legislation but to make the cost issues that you mentioned, Mr Curling -- "Would it be easier if we could separate these into four?" What we'd like the act to say is, "You have the right to come back to the commission to get that kind of" -- and then let the commission decide if we're trying to divert the intent of the law or just to make it more practical and implementable, because we're going to have a nightmare administratively if we have to do 32 of these with 92 unions and part-time/full-time. We won't get on the real issue, which is making change in the workplace happen and getting our employees to see the necessity for embracing what is a moral, ethical and business issue.
Mrs Witmer: I guess we're hearing that quite often from the employer community, the need for flexibility.
Mr Rochon: Definitely.
Mrs Witmer: Obviously each workplace is different. We have heard from the municipal sector. They have unique problems and what have you. I hope that is one message the government will take to heart, the need to take that into very, very serious consideration.
I think you've done a very admirable job. It's taken you some time and I think that's a message that needs to go out as well. Unfortunately, it's not going to happen overnight. I guess if you work cooperatively and everybody does, you need to encourage people to buy into the process.
Mr Williams: I think your point on the timing is why we would ask that goals and timetables be allowed to be set by the employer, because Algoma Steel is going to have a lot tougher issue than I'm going to have, and someone else who's growing at 200% a year has a lot better opportunity than me. If you allow the employer to set those goals -- however, at the same time I accept that you can't allow everybody to say, "Do your own thing" but use the stick when you have to. If the employers submit their goals and timetables and the commission feels that that's not appropriate, then use the big stick, but only on the 10% or 20% who are trying to not follow the objectives and the commitments made in the act. But don't bring in rules to control the 10% that make for my inability and our company's inability to make it successful in the other 90%.
I just don't think any government or any bureaucrat or anybody can play God in the workplaces of every single facility in Ontario and know what's best in that business. But they do have the right to challenge -- if I say I can move this much in this period of time, I think it's quite appropriate for the government to say, "We'd like to sit down and challenge you on that," and if we can't come to a compromise, somebody has to have the ultimate authority. I accept that.
Mr Fletcher: I think you hit a good point when you said that first you have to realize that there's a situation that needs correcting, and once you hit that realization, it's, "Okay, how do we do it?" and then its the solution part. I agree with you wholeheartedly on that.
I know your organization has considerable experience in employment equity, and I'd like to make sure that everyone knows that. I'm just wondering, during the setup phase of your employment equity plans or programs, can you enlighten us a little bit on some of the problem areas or some of the bumps and roadblocks that got in the way?
Mr Williams: Is this True Confessions?
There's no question that when you first hit this issue, I think it's just the sensitivity and nature of the issue. If you're not in the target groups, it says, "Boy, my life is going to change; I have no future," and if you're in the target groups, it says, "Wow, I'm going to get promoted tomorrow."
What you're trying to do is engage people. The toughest thing we had was engaging people to understand. We really actually went through the process of, "Do you believe there's discrimination in Canada?" Everybody says, yes. "What about Ontario? Is it any different?" "No." "Is our industry any different?" And then, "Is our company?" When you've got them back down to saying, "You know what? There is a problem in our company," then it's getting people through the psychological barrier of rather ignoring the issue than facing it. If you think facing an issue is a problem, you try to avoid it.
The things we learned were in how you engage people in a discussion they really don't want to have. The thing is you have to keep going at it. You can't give up because the first time Archie Bunker gets up and says, "Leave me alone; I know what's best." You have to keep saying: "Hold on, now. Think about our future. Think about the kind of demographics. Look at the immigration of the country. Look at the kind of markets we want to succeed. We're successful today, but will we be tomorrow?" As you get people to start to see, you know what? This isn't just a moral, social issue. This is a damned good business issue, because those retailers or those industries that face up to it and change their organization -- if my competitors don't, then customers are going to want to shop in my stores and they're going to want to come and work for me. That's a great position to be in. I only hope the others don't come to this forum and are not interested.
Mr Fletcher: Something else you hit on was, let's do it overnight. Some groups have appeared before us and they don't trust the business community to be able to handle this, whether that's something that's built up over years or not, and they're saying that this legislation is too weak; it doesn't go far enough. In fact, Mr Curling has also said that this does not go far enough, that it's too weak.
In other words, are we saying -- and I hope not, because I think there's a partnership that can be built here with the business community, with community groups, with labour organizations, with employers -- to carry a big stick and to force the business community to do it overnight? It hurts me that Mr Curling would suggest that you should be forced overnight to change your practices that have gone on for years.
Isn't it the wrong approach as far as trying to do too much too soon, too fast, that we could put in jeopardy the whole process of employment equity if we don't do it on a more equitable, more cooperative basis?
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Mr Williams: I would use the words "tolerant," "sensitive" and "understanding." Understand the community; understand the economics of what's going on. But at the same time, how can I win over the advocacy groups if they don't -- do they have reason not to trust us? I'm sure they do.
The question is, if we're going to do the Canadian solution to this, it's a compromise. We're going to have to be given the trust, because unless we create the right environment, with all the will in the world you can tell me to make 28 changes in my organization, but if you've got 19,800 other people who are now against this, those 28 people are not going to feel very good in their new positions.
We want to create an environment where people move up. Why? Because of their talents that haven't been seen fully in the past. So it takes time to establish that, and the education process is what has to come in.
Too bad we hadn't this three years ago. We'd be having a different discussion today. But, yes, it needs time, and all I'm saying is that if the advocacy groups or anybody else says, "But we can't give you that much time," then what you have to say is, "Then the stick that the government uses is your time schedule." You've set timetables, I think, whatever it is: a three-year plan. At the end of that time frame, if we haven't done the job, the business community better realize the government is going to do something a lot worse.
So if you want to get behind it, get behind it and make this thing work, because then you won't have Big Brother coming back in, or Big Sister, saying that you've got to make more changes. We have an opportunity to prove that we can manage this, but it has nothing to do with meeting your goals. It has to do with running my business and treating our employees the way we believe they should be treated. I don't want anyone else to tell us how we should treat our employees. We damn well know and we've got a good reputation with our employees. I don't want someone mucking that up.
Ms Akande: Recognizing your position on the need for flexibility and good intent, the importance of good intent in this, and recognizing too, as I know you do, that not all employers are as forward-thinking or as accepting --
Mr Williams: We're not all created equal.
Ms Akande: -- do you see a need for, in the reporting process, some process or some method of employee tracking?
Mr Williams: How do you define employee tracking?
Ms Akande: Employee tracking, whereby an employer would be asked to provide information to demonstrate or to show that employees who were hired at level x had moved, or that some had moved, to levels beyond that.
Mr Rochon: Is that not a requirement of the regulations, though, that we will have to be able to do that?
Ms Akande: But what I'm asking, since this is around the legislation, is whether you think it would be much more binding or necessary or effective to have it in the legislation rather than in the regulations.
Mr Rochon: I don't personally see it as a necessity. I had a meeting with our systems representative this morning and he wished that that provision itself would go away because it's going to be a nightmare for him to do the programming required to do that.
Mr Williams: That's for a large organization. Small businesses will have a bigger issue with that.
Mr Rochon: It's something that we will obviously want to demonstrate based on the commission's audit powers that might come into force.
The Chair: Mr Williams, M. Rochon, thanks for the contribution you've made to us today in these hearings.
RACE RELATIONS COMMITTEE OF KITCHENER-WATERLOO
The Chair: The next group is the Race Relations Committee of Kitchener-Waterloo.
Mr Philip J. Fernandez: Chair and members of the standing committee on administration of justice, my name is Philip J. Fernandez. On behalf of the Race Relations Committee of Kitchener-Waterloo, I'm here to present our vision of inclusion as it relates to Bill 79, An Act to provide for Employment Equity.
The Race Relations Committee of Kitchener-Waterloo is a group of concerned volunteers who work together to encourage good race relations in our community. In our view, "good race relations" means that all members of our community, no matter what their racial, cultural or religious background, are treated equally and with dignity and respect.
Our vision of inclusion based on the equal treatment of each community member means that with regard to employment, each individual is entitled to be evaluated on criteria that bear a demonstrable relationship to successful performance of the jobs for which they were used.
Our vision of inclusion is based upon a belief that each employer considers the following to be a privilege and an obligation: to be able to recruit and promote from an inclusive pool of human talent, a talent that is based upon criteria -- and I repeat -- that bear a demonstrable relationship to successful performance of the jobs for which they are used.
In the region of Waterloo, there is an annual recognition of the many businesses that have been innovative leaders, adopting employment equity into their business practice. In the opinion of our committee, these employers provide the region of Waterloo the quality of life that people tend to associate with our part of the Canadian technology triangle. Without the leadership of these visionary businesses, the burden imposed upon the persons in designated groups and on our communities would have been far higher than what it is today.
We welcome the government's initiative with Bill 79, the proposed Employment Equity Act, because in our experience there are far too many employers who continue to exclude in their recruitment and promotion policies and practices. We welcome the public consultation process that will provide the people of the province the opportunity to improve and strengthen this government's initiative.
The Race Relations Committee of Kitchener-Waterloo is concerned that the province of Ontario is simply putting up smoke and mirrors by enacting an employment equity law as submitted to this committee. There already exists a federal law. We do not need more of the same. If this bill is to be a sincere effort to alleviate the burden experienced by the designated groups and the community they live in, there must be changes to this bill.
We believe in the protection and maintenance of what we as a community value by enacting laws in a democratic expression of the common good. The entitlement of each individual to have access to the opportunity of demonstrating full potential is one such community value that needs to be protected and maintained by the proposed employment equity law.
The proposed Bill 79 before you needs to be transformed to blend together what is necessary, what is fair, and what is workable. Without transformation, this bill is in danger of fulfilling the predictions of those who echo the fears of quotas, of those who speak the myths of lower standards and of those who speak the lies of higher employer financial burdens. Our province deserves better.
Sections 19 and 50 of the bill address the powers to set exemptions and to make regulations by orders in council. This will allow the government of the day wide-ranging powers to amend the substance of the Employment Equity Act, with no checks and balances.
Is this bill going to mean real change or more of the same? By "more of the same," I'm referring to the federal bill. This section, for example, will give the government of the day the power to decide that the Employment Equity Act may be adapted -- "less stringent" are the exact words used -- for an employer it wants to favour.
We strongly endorse the principle that all employers formulate their own employment equity plans and submit them for approval to a monitoring agency prior to plan implementation. Sections 19 and 50 will allow for the government of the day to set up different rules, exemptions included. This is not equal treatment, and we are asking for sections 19 and 50 to be changed. We recommend that sections 19 and 50 must be limited to the maintenance of the Employment Equity Act. Any and all powers to adapt the bill must remain with the Legislature alone.
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Section 1, on entitlements, speaks inadequately about individual entitlement. Also, it creates a dangerous notion of a hierarchy to group entitlement in subsections 1(2) and (3).
Equal treatment in employment, according to the Human Rights Code, is not adequate. Part I, and specifically this section of the act, makes up the essence of the legislation. It must be clear and of substance. It must always express the value of seeking fairness for all. It fails to do so. We fear that the absence of a clear statement of these values will work against this government's initiative that was titled in a consultation paper, Working Towards Equality.
We believe that today, the notion of a hierarchy amongst the designated groups is divisive and may lead to a competition for group entitlements. We recommend that subsection 1(1) be strengthened to ensure that no individual will be denied employment opportunities or benefits for reasons unrelated to ability. We also recommend that the hierarchy implicit in subsections (2) and (3), where aboriginal is specified separately from other designated groups, be removed.
Section 8, on obligations: This section speaks to the obligations of the employer and uses the words "employment equity" quite extensively. Employers in this province have, time and again, expressed confusion as to what is being asked of them. We are concerned that employers will get on the bandwagon of tokenism by ignoring the individual and concentrating on race, gender, able body etc.
We recommend that this act include, as an obligation in principle, for every employer to use criteria in recruitment or promotion that are shown to bear a demonstrable relationship to successful performance of the jobs for which they are used.
In our discussions with the community in Kitchener-Waterloo, we have heard on numerous occasions about the barrier imposed by seniority rights. For example, when the two city hospitals streamlined their services, many nurses who transferred from one hospital to the other lost their seniority rights. This is a barrier in employment, unrelated to performance or ability. At the local school board, when there was a need to reduce the supervisory staff, that determination was based on seniority and not ability of the individuals.
We believe that an Employment Systems Review is the place of determination if systemic barriers exist in the workplace. We recommend that the determination of systemic barriers remain the concern of the employment systems review and the exemption stated in subsection 5(2) be removed entirely. This will serve to strengthen the collective bargaining process as expressed in subsection 14(2).
We view the commission, this is the proposed employment equity commission, as having two distinct roles to play, both of which are separate from the role of the proposed tribunal. The first role we see for the commission is as a proactive, strategic player in the province promoting employment equity with a vision of inclusion. The second role is to assist people, and in specific situations be an initiator of employment equity claims. We see the commission as a partner with community on a regional basis.
We recommend for the commission a proactive, strategic role, including the role of auditor; receiving and approving of employer-submitted plans; developing policy and guidelines; recommending regulations for enforcement, education about requirements and the necessary measures to ensure compliance; provider of support to potential claimants; and a partner on a regional basis with the community.
We also recommend that section 24, regarding commission powers to order compliance, under certain circumstances be transferred to the tribunal.
The role of the tribunal: The tribunal powers are vague and confusing. Some claimants may be passed back and forth between the tribunal and the Human Rights Commission. Claims regarding human rights or employment should be centrally screened and the claim channelled to the appropriate body.
We recommend the following for the tribunal: to include the hearing of claims regarding non-approval of a plan by the commission, non-compliance to an approved employment equity plan; to provide a choice, to the parties to a claim, of mediation or adjudication, as the circumstances warrant (where there is an unsuccessful mediation, the adjudication must proceed right away); to reconsider when appealed by the parties to a claim; to permit a narrow review by courts or the Ombudsman of its decisions.
On behalf of our committee, and at very short notice, I have attempted to convey our very serious concerns regarding Bill 79. We have made specific recommendations and we ask that this standing committee on justice give them every consideration.
As a group advocating for this legislation, we feel very strongly that this bill must not end up being more of the same. It should signify real change, not because it is a popular fad or the giving in to special-interest groups, but it must mean that the province of Ontario values the diversity in human talent it has available and that this talent is entitled to every opportunity or benefit for reasons based on ability.
Mrs Witmer: Thank you very much, Philip, for your excellent presentation. You have certainly accurately conveyed the views of many people in the Kitchener-Waterloo community. I know how you have worked so hard on behalf of this committee.
You've suggested some very specific recommendations, which I personally do appreciate, and you certainly supported them by first discussing your concerns.
You indicated here on page 5 that you were concerned there could be some problems with the employment equity plan and you indicate, "We strongly endorse the principle that all employers formulate their own employment equity plan and submit them for approval to a monitoring agency prior to plan implementation." According to what you've indicated, you're really concerned that sections 19 and 50 would allow the government of the day to set up different rules and exemptions.
Mr Fernandez: That's right.
Mrs Witmer: Okay. I would like to ask the staff, is that indeed what could happen without any changes?
Mr Bromm: The sections you're referring to do allow the regulatory authority to exempt certain sectors or apply modified requirements to those sectors. It would have to be done through regulation.
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Mrs Witmer: That being the case, are there certain sections within the regulations that you would definitely like to see contained within the bill?
Mr Fernandez: I think the powers to amend the substance of the bill. I mean, regulations are meant to provide for maintenance, making sure that the law does not lose its significance between legislative sessions. This is the forum in which the public can come and deliberate, not some government commission passing regulations without having the proper role of providing input and the checks and balances. I can come and talk to my local MPP, discuss the concerns and address the issues that arise from that. Having a commission pass regulations I think is unfair. In fact, it's inviting a lot of employers and any other group to lobby the commission to change regulations willy-nilly, and that's unfair. The focus should be on providing people the opportunity based on ability alone, and that should be the prime focus of the efforts in employment equity.
Mrs Witmer: Certainly, I think if we don't make some changes to the bill and include some of the regulations at least, if not all of them, there's going to be a feeling of uncertainty, because at any time the rules of the game could change for employees or employers.
Mr Fernandez: I'll just correct you about using the word "game," because for a lot of people it's a breadand-butter situation, and for them, they've struggled. You've heard people here, and I'm sure you didn't mean it that way, but that's exactly the point we're trying to make, that it's serious enough that people should not have to find today it's one thing and tomorrow it's another.
One of the prime things employers are being asked to do is to make sure that everyone has an equal opportunity, so that word-of-mouth hiring, for example, does not continue to exist. Word-of-mouth hiring provides the opportunity to one person and not to the other. This works to the detriment of everyone, to employers and to potential employees. Draft regulations could be enacted, passed over, and people would suffer for that. I know from experience in the city of Kitchener. We've had numerous occasions where things have backfired, and what it has done, is to raise the issue that employment equity is quotas, and it is not quotas. We've struggled very hard to put the impression on that it's based on ability alone. There is not one member of any of the designated groups who's ever said: "I do not want to have fair play. I want to have some special privilege." I am quite concerned about this section and I think there are quite a few people and quite a few groups that have shared this concern.
Mrs Witmer: I'm not sure what you're saying. Are you indicating that you want to see some reference to the fact that the merit principle would be present at all times, or what are you saying? I know the one situation that you're referring to. People honestly believed that they were behaving appropriately, but it turned out that it wasn't in accordance with the employment equity regulations.
Mr Fernandez: You see, the entitlement section, section 1, which speaks to the essence of the bill -- I will not use the word "merit," because people have used that to their means and devices. I specifically said that basically I would like to make sure no individual will be denied employment opportunities or benefits for reasons unrelated to ability. That is the entitlement of every individual, whereas right now the way section 1 states is based on the Human Rights Code. So you're asking for people to read the essence of the bill through another bill, and it's misleading. It is the preamble. It's sort of an introductory, giving the principles of the bill, and that should be stated very clearly.
Ms Harrington: Thank you for your presentation. You had a very interesting conversation with Ms Witmer, and I hope she will carry the message forward to her caucus, what you just said to her, that this is not quotas, and hopefully they will all support this bill. She may have a lot of explaining to do to them.
I really enjoyed you mentioning here that the question is, is this real change or more of the same? From my point of view, this has to be real change. This is why I got involved in politics. This is why our government is here, to make real change for social justice for the people of Ontario, and this bill is a very important part of our social justice agenda. Everyone knows that.
You mentioned here a quote, and I would like to use this more often when I talk about this bill because I think you have put it extremely well. When you're speaking about merit, you say here, "Each individual is entitled to be evaluated on criteria that bear a demonstrable relationship to successful performance on the job." That message has to get out there, and that is what we are talking about, and that is not what has been done in the past.
Mr Fernandez: I agree with you. Our committee and I personally have sat on a review of the city of Kitchener's firefighter hiring, and that did create its share of controversy, the point being that they did use criteria that they could not demonstrate had any relation to the success of the job. But yet the principle was used down there.
So that is why I'm going to play with words down here. Let's get down to real definitions and use that, because we are talking about drafting a bill. Every member around here in this committee has said they support employment equity. So now that we've established that, let's go and work on the exact wording so that it's satisfactory and it means real change.
Ms Harrington: Can I ask you two questions or comment on two things? We have had various people before this committee who are part of the designated groups who believe that seniority will in fact help them to be dealt with equitably once they are hired.
Secondly, there's a certain timetable laid out for the process in terms of 18 months or two years etc, and also the number of employees in a company, the size of the company. Would you have any comments about those aspects of the bill?
Mr Fernandez: The most important one is about seniority rights. I'd like to see our recommendations in a package. We've talked about entitlements, and we've talked about entitlements based on ability.
What has happened locally in the twin cities -- we had a seminar on September 30 in Kitchener, and we had a nurse stand up who was transferred, for no reasons of her own but streamlining of services, from St Mary's hospital to Kitchener-Waterloo Hospital, and she lost her seniority rights. Willy-nilly, she suddenly lost all the service she had provided.
Transference between one school board to the other and also within the supervisory position in one of the school boards, people were let go because of cost-cutting. That's fine; I'm not complaining about that. But the method used in selecting the people was not based on ability. The point made was: "Well, that's how it's done. This person is more senior."
So while some designated groups have said that, this is the public forum, and it brings me to the point about draft regulations. Here you can hear one designated group, another employer, myself, people from the community, coming and telling you different things, and you on balance have to go and pass this act. So I still strongly uphold my view, despite what others might say about seniority rights. But I say this because I bring it up front here to the Legislature, hoping you all will bring this out in balance. It's the common good that we're looking forward to.
Mr Winninger: I'd like to explore with you your recommendation that some of the powers which would be enjoyed by the commission to order compliance with the act might be transferred to the tribunal. I'd like to know your reasons for that. I'd also like to pose a potential problem to you in that if you vest in the tribunal the right to order compliance, you're, in a sense, creating something of a one-tier system, and where do you go once the tribunal's made its order? Well, you probably have to go to the courts, which are already quite busy and backed up as it is.
Mr Fernandez: And I've said that there should be only a narrow review by the courts and the Ombudsman. I do recognize that. I thought about this very seriously, and I think one of the key features we realize with employment equity is that we have to develop partnerships, and the partnerships right throughout the province of Ontario would naturally lie in the Employment Equity Commission. But if that same commission is going to be passing orders or ordering compliance with any potential employer or any person that it's dealing with, it will be then excluding them.
Now, in regard to making the tribunal a non-review body: We have our federal court, for example. People who have a patent law abuse, they go to the federal court. If it's heard by a single judge, it's subject to a review by a senior panel consisting of three more judges.
If you've followed even the human rights task force, the recommendation down there has been very clear. It has tried to separate the punitive actions so that's considered separate so that we can actually proceed on with the job with a much more streamlined, friendly Employment Equity Commission, and not just friendly to designated groups; friendlier to everyone. It should stem from a vision of inclusion which includes employers and every group, because we do not want to see barriers being put up for others so that five years from now we're talking about another designated group. I mean, God forbid if that ever happens. We should not be having those passed back and forth.
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Mr Curling: Thank you very much for a very good presentation. It's rather thought-provoking. As a matter of fact, when Ms Witmer talked about goals and timetables, as you said, here's the arena for debate, to get the definition out clearly, to know that we have a time frame and we have goals, and those goals really mean quotas, because later down the road we don't want that to be defined in the courts, and that is what it's all about. So we hope that could clarify it.
I want to go back a little bit to see if I understood you properly. Did I understand you to say that seniority rights is a barrier to employment and it's really unrelated, as you said in your brief here, to performance or ability? Did I understand that properly?
Mr Fernandez: Yes, it's very clear. Seniority rights, especially in the situation where people are being transferred from one hospital to another when there are staff reductions to be made, if it's based on seniority alone and not on ability, it flies very much in the face of the spirit and the essence of employment equity.
Mr Curling: Very precise, because as I listened to Ms Harrington, I was wondering where that was leading. I wanted to be very clear about that because of course if someone has seniority within a company and they are properly trained, they don't need to talk about seniority. If the employer or the environment created training, the ability will completely exceed the seniority. I presume we use it as a protection at times, and we hope that the unions don't do that. I was surprised that it was placed inside the legislation itself.
On page 10 you spoke of the role of the tribunal and you said, "Claims regarding human rights or employment should be centrally screened...." Maybe you did answer that, but I'm not quite sure. Would that be another bureaucracy we're talking about, say that we put it somewhere else, that it could be screened before we can deal with it?
Mr Fernandez: I wouldn't want to get into bureaucracy-bashing, because they are individuals just like you and me and they work very hard. So it does not really matter. What I'm really concerned about is a person who has a claim, whether it's an employer or an employee, that they get a timely treatment on the case that they have.
Now, if they have to go first to the Human Rights Commission, get transferred to employment equity and they determine that, no, this is not an employment equity concern and it gets transferred back, or vice versa, if it goes to employment equity first and then Human Rights and back -- there is a lot of time delay involved in that. And clearly, the reason why employment equity has come in is because it's specific to employment. It enshrines the values that the province of Ontario believes should be put in place and protected and maintained in its laws. The Human Rights Code is far more extensive and it's not specifically related to employment.
Mr Curling: I want to be crystal clear. It has nothing to do with bashing bureaucracy; it has to do with exactly what you said. An individual complainant has a case and what that person would like to know is: "Will my case be addressed as quickly as possible? If my justice is delayed, it will be justice denied." And you know many cases in Human Rights that take a long time. It's not a matter of bashing the bureaucracy. The end product is, it took too long and the person has been destroyed mentally, physically, sometimes financially in that process.
Employment equity, which I think is needed -- and I think there's a commissioner needed also for the Employment Equity Commission. What is not clear is, did you in your research and assessment of this legislation find that, if there's something more that could be done -- in other words, we have the Cornish report out there that is saying that we need restructuring of the Human Rights Commission; then we have the Employment Equity Commissioner; then we have the Pay Equity Commissioner. Do you see a tribunal putting together equity commissioners in one area rather than having all these commissions out there? There'd be no confusion really about where someone should go to have the redress. Do you see a coming together of those equity commissions?
Mr Fernandez: That's one possibility, but be aware that you might end up confusing the matter. Employment equity, pay equity, are all very specific concerns. The use of the tribunal, in my judgement, once employment equity plans are put in place by employers, it would be only in cases of disagreement. I mean, I'm talking about mediation and adjudication. So the tribunal will be playing two roles. I'm not sure if pay equity, human rights and whatever other commission or tribunal we might have down there has the same roles. That's something that this committee can go and examine.
But the key point is to remember, do not shuffle people back and forth, whether they are employers or employees. I think that's the key objective to keep in mind on this.
The Chair: We ran out of time; I'm sorry. Mr Fernandez, thanks for the contribution you have made today to this committee.
ONTARIO ADVISORY COUNCIL ON DISABILITY ISSUES
The Chair: The Ontario Advisory Council on Disability Issues. Welcome. You have half an hour for the presentation and I would ask that you leave as much time as you can for questions at the end.
Dr Shirley Van Hoof: Okay. I'm Dr Shirley Van Hoof, chairman of the committee. I have Pat Hatt, Partap Grewal and Shaunna Kennedy as listed on the front of the presentation here as well. They will be able to answer questions.
In the interest of time, during my presentation I will be reading basically from it but will bypass some of the paragraphs and hope that you will have time to review the entire brief. I'll try to indicate where I am so I don't lose people if they're following.
On behalf of the Ontario Advisory Council on Disability Issues, I appreciate the opportunity to speak to you today. As noted by previous presentations, the negative attitudes towards the abilities of persons with disabilities are still out there. Therefore, the premise of employment equity is a good one. In general, council supports the employment equity legislation.
Employers must be educated to see that the hiring of a person with a disability is not a charitable act. Only through legislation can this be reinforced. The legislation is already a year overdue according to the government's own timetable. Council therefore encourages the passing of Bill 79 as soon as possible.
The Ontario Advisory Council on Disability Issues was established in 1975 to advise the government of Ontario on matters of concern to persons with disabilities. Council provides its advice to the Minister of Citizenship, the Honourable Elaine Ziemba, who in turn brings those concerns to the attention of the government. Council members come from different parts of the province, different backgrounds and have different disabilities or advocate for persons with a disability.
I would like to discuss several topics: the act itself, the definition of disability, persons with a severe disability and education.
The act itself: Members of council believe everyone of working age in Ontario has an equal right to job opportunities and full realization of their employment potential. Paid employment improves a person's sense of self-worth, creates an avenue for socialization and allows support networks to develop outside the family. Work provides a challenge and a purpose in life and allows people to be financially independent. Work gives a person on social assistance programs a means of becoming independent.
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Many persons with disabilities are still not able to find work, and those who do are often underemployed in low-paying jobs. Council's report Workable, which you have received, contains a list of barriers to employment, including systemic barriers that work against the recruitment and employment of persons with disabilities, such as lack of accessibility to information regarding opportunities for employment, which the previous speaker spoke about.
Other barriers are inadequate education and training for persons with disabilities; lack of coordinated placement services; obstacles in the workplace, including lack of physical access, reliable transportation, independent living assistance, assistive devices and reluctance to make workplace and job modifications.
Other barriers are government policies which discourage persons with disabilities from pursuing employment opportunities and attitudinal barriers which assume inability rather than abilities. Many employers, educators, union officials and placement and community agencies have little awareness or understanding of programs and policies which would assist a person with disabilities to secure employment.
For employment equity to work for persons with disabilities, these barriers must be eliminated. In this regard, council believes that the Employment Equity Act is strong. The act focuses on the education of employers. Many barriers to recruitment, hiring, training and promotion can be eliminated by making each workforce review employment policies and practices. The Employment Equity Commission should insist that each workplace develop a plan to eliminate such barriers.
While council believes that a strength of the act is that it does not enforce quotas, as quotas do not take into account that different regions have different labour pools, council does believe that standards must be developed and that these must be strict. Council has little faith in guidelines set up by employers or voluntary employment equity programs. The federal government's employment equity plan for Treasury Board found that voluntary employment equity produced only a 0.6% hiring rate of persons with disabilities.
Council believes that the bill gives too much power to employers to set their own goals. Council contends that employment equity plans should be submitted to government for review and approval in order to ensure that they conform to standards set down by the Employment Equity Commission. Numerical goals must include the hiring of persons who fit into more than one category, such as a woman with a disability. Employment for women with disabilities has increased by only 0.2% during the late 1980s. Numerical goals should reflect these doubly disadvantaged groups.
Council recommends that standards be developed. Employers developing their own employment equity plans must follow these standards. This act seems to rely too much on the goodwill of the employers. While the employers are expected to comply by setting their own numerical goals and timetables, these plans are then registered and filed. Reports are to be developed every three years, but in the meantime companies are not monitored and their progress not reviewed unless a problem is brought to the attention of the Employment Equity Commission. Council recommends that employment equity reports be submitted once a year. Council believes that the legislation should have stronger time frames.
Council recommends that 5- and 10-year goals should be established for each of the geographic areas to reflect a representation rate of 8% for persons with disabilities within 10 years. The 8% rate reflects the current representation of persons with disabilities of working age in Ontario.
Penalties: Strict enforcement measures should be in place to monitor the goals and targets set by employers. If employers are found to be in flagrant violation of the employment equity plans, then penalties should be imposed. Revenue from fines should go to support a fund for employment accommodation devices. Past experience has shown that countries that do use harsh penalties have much greater success, such as Germany's grant levy system and Sweden's employment equity system. Employment equity in Quebec has been unsuccessful because employers are only liable to monetary fines and no employers to date have been fined, to our knowledge.
Sanctions must be of sufficient size to act as an effective deterrent against further non-compliance or employers may choose to pay financial penalties and not bother to comply with the legislation. Council recommends that sanctions be imposed in relation to a company's payroll or gross revenue.
As far as the collection of data goes, council supports the self-identification of disability. Open communication and education about employment equity and rights of the employee will ensure accurate data collection.
Data for part-time, contract, casual and full-time work should be kept separately since employers may try to augment their results by hiring persons with disabilities for part-time positions. Also, positions and promotions of employees with disabilities should be listed to ensure that persons with disabilities are not segregated at the lower end of the scale.
Council feels the definition of disability used by the federal government is too broad. Council is encouraged by work being done by a subcommittee of the commission's working group on employment of persons with severe disabilities regarding a definition of disability.
Skipping to the next page, council recommends that a strict definition of disability be developed and a guide be issued to employers to assist in its interpretation.
Severe disabilities: In 1991, Statistics Canada's health and activity limitation survey, HALS, reported that the unemployment rate for Canadians with disabilities was 14 per cent in 1991 compared to 15 per cent in 1986, a decrease of only 1%. But what's been happening between 1986 and 1991 is that more people are reporting mild disabilities. Of the increase in employment, about 82% is due to people with mild disabilities. The rates of employment for people with severe disabilities haven't improved. Council recommends that special measures be incorporated into the Employment Equity Act to encourage employers to hire persons with severe disabilities.
For instance, employers should negotiate the right to bypass certain requirements such as union regulations, eliminate many of the systemic barriers such as health qualification for health insurance, allow part-time work for a full-time position so that someone with a disability could job-share. Barriers in contracts must be eliminated.
Going to page 9, the employment equity office should work with the Ontario Training and Adjustment Board to ensure that reasonable accommodations exist for persons with disabilities and that training programs are accessible.
Council commends the Employment Equity Commission for looking at systemic barriers for persons with severe disabilities and recommends that the Minister of Citizenship liaise with the Minister of Community and Social Services and the Minister of Education and Training to ensure appropriate education of teachers and social services staff about disability issues.
In education, many of the disadvantages faced by persons with disabilities in obtaining employment stem from deficiencies in their education and skills training. The 1986 HALS data supports this conclusion.
Council believes that students with disabilities may need more resources and encouragement to get an education. Council recommended in its report Workable that the Ministry of Education, in conjunction with persons with disabilities, parents, educators and school boards, should conduct an extensive review of the implementation of Bill 82 and evaluate its impact on students and school boards. Such a review should assess the funding and resources provided by the Ministry of Education and school boards and measure the competency of children leaving the school system.
Need for transferable skills: Literacy and numeracy programs should be available and accessible to persons of all abilities. There is an urgent need for better training of teachers and guidance counsellors regarding students with disabilities and available opportunities. Council has a report on this subject at the printing stage.
At the bottom of the page, council recommends that cooperative education programs be made accessible and that funding be provided to cover the cost of necessary personal services including readers and interpretative services for students during work placements.
Council recommends that the Ministry of Education and Training implement and fund apprenticeship programs that specifically target students with disabilities and ensure that such programs are accessible.
School-to-work transition planning for all students should begin as soon as they enter secondary school. Career options should be explored and students made aware of course requirements.
Council recommends that admission policies and requirements of universities and colleges be reviewed and that any barriers faced by qualified students with disabilities be removed.
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Council recommends that goals and timetables be established in order to make all universities and colleges in the province accessible to persons with disabilities.
Supported employment programs were developed in many areas because of dissatisfaction with sheltered employment programs. Supported employment is the preferred alternative to sheltered workshops because it trains in a real community work setting. Most supported employment projects are currently targeted at those with developmental disabilities. There is a need to expand and modify these programs so that persons with physical and psychiatric disabilities can participate.
Council would like to see more funding towards community employment projects such as Project Work, a supported employment program, while existing funding to sheltered employment is maintained.
Council recommends that training programs be developed for professionals to break down attitudinal barriers and increase knowledge of technical devices, modifications and services available.
In conclusion, council has a great concern regarding the current fiscal climate. Hiring, promotions and wage increases in the broader public service are virtually at a standstill. Some persons with disabilities were hired under affirmative action programs and now find their jobs in jeopardy due to the recent reductions in the workforce.
Council recognizes that employment equity legislation is an important step in the employment of persons with disabilities. However, at present there are virtually no services or resources out there for persons with disabilities. The Ministry of Citizenship's consultation paper, the Report of the Interministerial Working Group on Learning Disabilities, attests to the lack of resources for persons with learning disabilities. Council contends that without these resources Bill 79 will not be successful in achieving its stated goal.
Persons with disabilities have waited too long for fair access to education, training and employment. Finally, with the introduction of this employment equity legislation, they should have the same opportunities as all other citizens.
Council supports this employment equity legislation, with the aforementioned alterations, and eagerly awaits its passage and implementation. I thank you for the opportunity to speak today.
Ms Carter: I'd certainly like to welcome you all very warmly here. I think I've met several of you before and I always remember Pat's keynote speech at the Learning Disabilities Association of Ontario convention, which was very moving. I certainly learned a lot from that. I think you've expressed yourself so well in this report that it almost removes the necessity of asking any questions, because you have explained things so well.
But I'd just like to draw you out a little bit more on the question of specific measures for people with severe disabilities, because obviously this could be a problem, that people with milder disabilities would tend to displace people with severe disabilities. I understand Dr Van Hoof is actually chairing the committee that's examining issues of persons with disabilities. I wonder if you'd tell us a little bit more about the kind of issues that you're addressing and the kind of recommendations that you might come up with.
Dr Van Hoof: We're actually in the middle of the fray of that. I'm co-chairing with Juanita Westmoreland-Traoré. We're just in the middle of getting to the point of making recommendations on modifications to the bill that might be made to include persons with severe disabilities. We hired a consultant. We've not had our first meeting with them yet as to what we can do, but certainly that's an important part of it, to bring the severely disabled into the workforce as well.
Ms Carter: How would you change the definition?
Dr Van Hoof: We have a special subcommittee working on the definition, because that is very important. In the past it hit the newspapers that banks were using glasses as a disability to pad the number of persons they had hired etc. The other thing that happens sometimes is that they will hire someone who has a disability on a six-month contract, then let them go and hire someone else with a disability. That counts as two for the year whom they've hired. So it looks like they've hired them for a full year and they have not. They've found means of padding the books, basically.
We heard a comment earlier about distrust of employers. It's with good reason. There are responsible employers out there, certainly, and we recognize that, but there are 1% or 2% who really make a bad name for everyone when they do these kinds of things.
Ms Carter: That leads into the one other point I wanted quickly to raise. We have just been told by a previous presenter that most companies will want to comply with employment equity and they suggest we keep the big stick, the sanctions, for the few who don't, whereas you seem to be recommending stronger sanctions all around.
Dr Van Hoof: Again, the stronger sanctions would be for those who abuse the system. Hopefully, there will be few, but we want those sanctions to really hurt when it comes out, especially for repeat offenders. I think it's important they know that if they get caught once with the hand in the cookie jar, as they say, they get it slapped. The second time they may lose the hand sort of thing. That's the type of thing we would like to see.
Mr Partap Grewal: I'd like to take the example of Germany and Sweden, where they really slap the wrist hard by taking into account the gross income or the total salary. That really hurts. That's an example of using both the carrot and the stick. The good will go along, but some will have to be reminded.
Ms Pat Hatt: Another issue would be if the penalties or the poor press is strong enough, especially the penalties, that internal measures can be taken. I know a large corporation -- was it Via Rail? -- made substantial changes when it was suggested it wasn't an equity employer. They did enormous changes in a time of restraint. I also know that an organization like the federal government is using it in its management appraisal system, so that directors and managers have to show their progress in order for them to meet their targets. That is because of the fear, one would hope, of a bad press.
Mr Curling: Thank you very much for your presentation. It was long awaited. Quite a few of the disabled groups came to see me and expressed their concern that the bill itself fails really to address the needs of those who are severely disabled, and I was looking forward very much to hearing that input here.
As you said, the rate of employment for persons with severe disabilities really hasn't improved. I was concerned, though, and maybe you can help me through part of that recommendation on page 2 where you say:
"Council recommends that 5- and 10-year goals should be established for each of the geographic areas" -- I have no problem with that -- "to reflect a representation rate of 8% for persons with disabilities within 10 years." The other part I was wondering about is how resistant the group would be or how practical it would be that, "The 8% rate reflects the current representation of persons with disabilities of working age in Ontario."
Because it's taken in geographic areas and some areas may not reflect 8% severely disabled individuals, for that to be reflected in the workplace, do you see any problem with that?
Dr Van Hoof: Again, I think flexibility comes into this. When we ask for goals and timetables rather than -- anyway, we've said that different regions will have different representation in the workforce, so I think there has to be flexibility. Certainly, in some areas, there is more than that, such as in London, Ontario, because of the medical community that is there. We have rehabilitation for persons with head injuries and such. Also, our city is more accessible than the neighbouring towns, so there is an influx of persons with disabilities into the city. The representation of persons of working age who have disabilities is far greater than 8%. I think the workforce has to be reflective of the community and therefore the flexibility should be there.
Mr Curling: So the approval of the plan concerned the fact, as you say, that 8% of the workforce would be severe-disabled.
Dr Van Hoof: Not severe-disabled; 8% of any disabilities.
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Mr Curling: Other groups have spoken about subgroups, and most of them were talking about racial groups. Do you see yourself in the disability designation being looked at as subgroups?
Dr Van Hoof: The working group is attacking that right now in trying to decide. We don't think we want subgroups, but we do want special measures, perhaps, to be attached to the employment equity group. We certainly don't want to be outside the Employment Equity Act, because anyone who is outside usually gets marginalized and it usually does them a disservice and that is true in any group. Once you separate them, even in, say, social assistance -- they were trying to separate disability group in social assistance. They wanted them as a special group, they called them. Any time there's a special group there's usually a downside to that. So we would sooner be in the mainstream attached in some way to the act itself, with severe disabilities. We want to be attached to the main group. Whether we offer the employers special dispensation in some way, such as in the grant levy system in Germany -- they have special measures that if they employ people with severe disabilities they get tax credits or whatever it is; I think it is, yes. We would like some kind of bonus for employers who will do that, but I think it's important that they be maintained within the act itself and not be outside it.
Mr Curling: Yes. Doctor, more than any other group, your group requires a proper coordination of other factors of the ministry's support. In other words, as you talk about the ministry of skills or ministry of training, or whatever designation it is, Community and Social Services, and whatever other group that, as a ministry, would have to coordinate that, do you think it would be helpful, before the regulation and the legislation be completed, to have a presentation by those ministries talking about the support given to this group -- so that we understand, when we write the employment equity plan, when companies or the public sector are writing their employment equity plan, that they know there is support there? When you speak about education, the other groups normally have to get over certain barriers, but beyond those barriers let's say, if you have a woman who is black and physically disabled that -- oh, another barrier there. Would you think it would be very helpful if the ministries that are associated in helping this disability access to employment equity make a presentation, come openly and say, "Here is the support we give in order for our employment equity to be more effective for the disabled?" Would that be helpful to us?
Ms Hatt: I think that might be helpful. I think in the long range what we have to do is consider the continued role of the Employment Equity Commission in looking at and finding new barriers, especially in the area of education. Certainly, we're aware of many of them now, but there will be more and more uncovered as we look more and more at why employers are saying, "We cannot find people to be hired." While I think it's a good idea, obviously, for them to communicate now, I'd like them to continue to communicate and I'd like to see a means whereby the Employment Equity Commission could continue to communicate with them if, in fact, it's seen as a problem for employers or employees.
Mrs Witmer: Thank you very much for an excellent presentation. I appreciate your getting the information to us before today. I had a chance to review it. You've indicated here that there needs to be a strict definition of "disability." Did you give us a definition? Do you have a definition?
Dr Van Hoof: No, we do not. The working group of the Employment Equity Commission, working with employment of severe disabilities, they are still working on a definition that will be acceptable, because the federal definition is too lax, I believe, and other definitions that we've heard are too restrictive and they're working very hard. There's a subgroup working on that alone. We look forward to that completion. That should wrap up within the next month and, hopefully, we can get that to you at some point.
Mrs Witmer: Okay. Obviously it's absolutely critical that there be agreement on the definition.
Dr Van Hoof: And it's one that we want all governments to accept, the federal and the provincial, for their employment equity legislation.
Mrs Witmer: Yes, and I think it's important too that there would be that harmonization and it would be a consistent definition. You mentioned education and I've been involved in that system for a long time. I can remember Bill 82 and the changes that were made to the system, although I know there's still a long way to go. You talked about the need for cooperative education and, personally, I've certainly seen the benefits but I would agree with what you're saying. There are very few of those programs available at the present time to the disabled community. I know we had hired an individual who dealt exclusively with that because it's a big job to convince employers that they need to become involved. But, I'll tell you, it was a very successful program and certainly, once employers were involved, it was amazing, they were asking for additional students as well.
There's a lot of education, I guess, involved with this bill and everything else that's going to happen, so I think your recommendation here regarding some of the educational changes is excellent.
I guess that brings me to another topic: This bill is not going to achieve fairness and equity in the hiring and promotion practices without a lot of other things happening as well. I know in the meetings I've had with the disabled community, that's what I keep hearing: "Elizabeth, there are other things that need to happen as well." Could you expand on what is absolutely critical?
Dr Van Hoof: We need a skilled choreographer to produce this dance, because I think it has to involve education, the Ontario Training and Adjustment Board, employers. There's so many stakeholders in this that you really have to have everyone involved.
Transportation is one of the main things that's involved in this, because we don't have reliable transportation either to get to school or to get to work. That too has to be involved, because no employer is going to put up with you coming in late. Certainly, classes start without you, they just go on. Your work may wait for you but your classes don't, so that is vital.
Ms Hatt: Obviously the coordination is enormous: personal support systems that people may need, the availability, the portability of them, the portability of their assistive devices. If you are an employer and you hire somebody, it could be an obvious burden for a small segment of people who may require extra, additional materials. It would be nice if assistive devices were portable.
There are all kinds of portability issues. If you move from employer to employer, you don't have to start all over again to have the kind of accommodation that you need if some of the equipment could be taken with you. Maybe something could be on lend-lease from the Employment Equity Commission.
Obviously there's an enormous need in the area of training to ensure that there are programs that understand that people with learning disabilities and other disabilities may learn differently and that they cannot take the same kinds of programs.
I really liked your comments about co-op education and that sort of thing but almost exclusively, from what I can see, it's only students with developmental disabilities who have an opportunity to do co-op. Students with other disabilities often, because of their timetable and because of the fact that it's difficult to bus them to a location, have to find accessible locations.
These are all obstacles that should not be there. A good counsellor, who understands that all the students of the school should have access to co-op, should be putting those things in place. There is a tremendous amount of need.
The Chair: Thank you very much. We've run out of time. We found your contribution very helpful and informative and we thank you for coming today.
The committee is adjourned until 10 o'clock tomorrow morning.
The committee adjourned at 1659.