EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
ONTARIO COUNCIL OF AGENCIES SERVING IMMIGRANTS
PAY EQUITY ADVOCACY AND LEGAL SERVICES
CANADIAN FEDERATION OF INDEPENDENT BUSINESS
ONTARIO PSYCHOLOGICAL ASSOCIATION
DISABLED WOMEN'S
NETWORK (DAWN)
TORONTO DISABLED WOMEN'S NETWORK (DAWN) ONTARIO
WOMEN'S COALITION FOR EMPLOYMENT EQUITY
CONTENTS
Tuesday 31 August 1993
Employment Equity Act, 1993, Bill 79
Ontario Council of Agencies Serving Immigrants
Kay Blair, vice-chair
Paula Maciulis, program coordinator
Norman Mohamid, executive director
Pay Equity Advocacy and Legal Services
Katerina Makovec, community organizer
Carol Salmon, board member
Gordon McGlone
Canadian Federation of Independent Business
Catherine Swift, senior vice-president
Judith Andrew, director, provincial policy
Ontario Psychological Association
Dr Beth Mitchell, president-elect and chair, legislation committee
Dr Brian Usher, member
Mary Cornish
Disabled Women's Network (DAWN) Toronto
Judy Koch, board member
Disabled Women's Network (DAWN) Ontario
Rafia Haniff, board member
Women's Coalition for Employment Equity
Fleurette Osborne, co-chair, legislative subcommittee
Sonia Greckol, member
Avvy Go, co-chair, legislative subcommittee
Towers Perrin
Belinda Morin, principal and partner
Lynne Sullivan, senior consultant
Council of Ontario Universities, committee on employment and educational equity
Dr Peter George, president, COU
Bill Wilkinson, committee member
Keith Allen, committee member
Ontario University Employment and Educational Equity Network
Janet Kaufman, member
Janet Mays, member
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)
*Akande, Zanana L. (St Andrew-St Patrick ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
Duignan, Noel (Halton North/-Nord ND)
Harnick, Charles (Willowdale PC)
*Malkowski, Gary (York East/-Est ND)
*Mills, Gordon (Durham East/-Est ND)
*Murphy, Tim (St George-St David L)
Tilson, David (Dufferin-Peel PC)
Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Carter, Jenny (Peterborough ND) for Ms Harrington
Fletcher, Derek (Guelph ND) for Mr Duignan
Hansen, Ron (Lincoln ND) for Mr Mills
Jackson, Cameron (Burlington South/-Sud PC) for Mr Tilson
Miclash, Frank (Kenora L) for Mr Chiarelli
Perruzza, Anthony (Downsview ND) for Mr Winninger
Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Harnick
Also taking part / Autres participants et participantes:
Arnott, Ted (Wellington PC)
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 1004 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.
Mr Tim Murphy (St George-St David): Mr Chair, if I may, just before we begin, my colleague yesterday moved a motion to ask certain people to come and make a presentation and the government voted against that motion perhaps because it was too broad. I'd like to narrow it slightly and move a motion that we ask both the Human Rights Commissioner and the Employment Equity Commissioner to come before the committee to make a presentation on their view of this bill, to give us some insight into it. I think it would be a valuable and important thing, so I would like to move that motion.
The Chair (Mr Rosario Marchese): Can I ask you, Mr Murphy, what is the difference between the motion you moved yesterday and the motion you're moving at this moment?
Mr Murphy: The motion does not include the Ombudsman.
The Chair: And you think in so doing, that will make it different today?
Mr Murphy: I would hope so.
The Chair: Any discussion on the motion?
Ms Jenny Carter (Peterborough): Can we defer that until after the session?
The Chair: You can call for a recess, if you like.
Mr Murphy: Well, seeing no discussion, I think we should put the question, Mr Chair.
Mr Alvin Curling (Scarborough North): Yesterday you didn't -- it's funny how you --
The Chair: No questions? Mr Malkowski.
Mr Gary Malkowski (York East): Actually, if we can have a recess, I would move for that.
The Chair: We'll postpone this then for a 20-minute recess.
The committee recessed from 1005 to 1018.
The Chair: This committee resumes. There was a motion moved by Mr Murphy to have the Human Rights Commissioner and the Employment Equity Commissioner come before this committee to speak to these matters. We're ready for that motion to be dealt with.
Mr Cameron Jackson (Burlington South): A recorded vote.
The Chair: All in favour of that motion.
Mr Murphy: Can there be any debate?
The Chair: You want to speak to this again, Mr Murphy?
Mr Murphy: Yes. Again? I'd like to speak to it for the first time, if I could.
The Chair: Okay, go ahead.
Mr Murphy: I think I'd like just to say that we've heard quite a bit in the committee to date about the confusion between the Employment Equity Commission, the Human Rights Commission, about the possibility of being bounced back and forth from the two, about the efficiencies that might be gained by putting the two together. As well, there's a lot of experience in employment equity and human rights issues in both the Human Rights Commissioner and the Employment Equity Commissioner.
I think we could have, you know, quite an education from having them come here and present to us and give us an opportunity to ask them questions about the particulars of the bill and about their involvement in it. So I think it would be a very helpful thing if we have an opportunity to discuss Bill 79 with them. That's the reason I'm moving it. I hope the government will see fit to assist us in helping to make this a better bill.
The Chair: Further debate?
Mr Curling: Yes. It's also my understanding that the Employment Equity Commissioner had a lot to do with helping to draft the regulations. As my colleague said, where confusion exists, I think she could be extremely helpful in assisting us in defining some of the complex and some of the vague regulations we see there.
She could also, I feel, help us to understand many of the questions which have been asked: Why regulation, not legislation? I think that having her here would be helpful. The Human Rights Commissioner -- with the fact, too, that there are changes that are happening right now, as we speak, in the Human Rights Commission about the structure of the directors -- we would like to know what impact itself it would have on the employment equity legislation, Bill 79.
So I would look forward to having them both. I know that my colleagues on the government side will support that.
The Chair: Further discussion? Any other members? Okay. All in favour of the motion? On a recorded vote. We'll read out the names.
Ayes
Curling, Jackson, Miclash, Murphy, Witmer.
The Chair: Opposed?
Nays
Akande, Carter, Fletcher, Hansen, Malkowski, Perruzza.
The Chair: The motion loses.
Mrs Elizabeth Witmer (Waterloo North): I have put before you another motion which indicates: Given that the Minister of Citizenship has indicated the desire to consult as widely as possible; and given that it is essential that sufficient time be given to this committee to fully analyse the written and oral presentations that have been submitted during the public hearings in order to prepare possible amendments; therefore, this committee agrees to postpone clause-by-clause consideration of Bill 79 until after the Legislature resumes its sittings on September 27.
The Chair: Can I ask you a question? Do you want to deal with this matter at this time, or would you prefer, given that we have a delegation that has already been delayed, to deal with this matter at the end of the hearings -- this morning, I mean?
Mrs Witmer: Since we have given the time to the other motion, I do believe that we need to discuss this right now.
The Chair: Very well. A motion has been placed by Ms Witmer. Discussion on this motion?
Mrs Witmer: Yes, the reasons that I'm giving -- we've had now or we will be having three weeks of public oral input. We also have been given many written submissions regarding employment equity. I can tell you, although I work on this information that I've been given -- and I've been here since 7 this morning and I work late at night, in order to properly prepare ourselves, we will need more than the Labour Day weekend.
In fact, it's obvious that the staff of this committee are having some problems because we have only received, up until this time, the first week of recommendations. We've not received what happened last week. We don't get the Hansard copies. There's no way that we can go back and check. So I'm very concerned that there is not ample time.
The minister has always indicated that she wants to consult as widely as possible. The debate on the regulations will not be complete until the end of October. There have been many people who have indicated they've been denied an opportunity to participate in this hearing. I think we need to allow them at least to get their written representation ready for us.
I would argue, if we want the best possible bill for the people in this province, we need to give ample time in order to allow the government and the opposition parties time to prepare the appropriate amendments. I can tell you, there is not time within the time line that has been given to us.
The Chair: Further debate?
Mr Anthony Perruzza (Downsview): Mrs Witmer knows that MPPs -- we don't collect overtime. It doesn't matter what time you start or what time you end; the reality is that there's never enough time to deal with these very complex issues. The longer you procrastinate and the longer you drag them out, the longer you wait for any action to actually happen. So I would support just getting on with it.
The Chair: Further debate?
Mr Curling: Yes. I support this motion that the Conservatives put forward because I, too, have heard of many people who would like to come forward to make their presentations. The time frame has been extremely short. It's one of the most important pieces of legislation, I would say, that has been put through. It's been stated by the government side and also by us that we need very effective legislation, and for us to do so, we need to hear from all sectors of society on a consultative basis. I think they have been denied that. I think the government, which praises itself for consulting all --
Mr Perruzza: The only people who denied that are the people who refused to tour the province and listen to people, and you're the people who did that.
The Chair: Order, please.
Mr Curling: Those people who would have liked to come forward here seem to have been limited in doing so. The government has praised itself and stroked itself for being a government of consultation. We feel this is an opportunity and we should not deny those to --
Mr Perruzza: You refused to consult. You refused to tour the province to listen to people. You limited it.
The Chair: Order. Mr Perruzza, please.
Mr Curling: Mr Perruzza seems to be having an attack that we cannot define.
Mr Jackson: His brain's working overtime, Alvin.
Mr Perruzza: I'm not having an attack.
Mr Jackson: Your brain's working overtime. You're burning yourself out.
Mr Curling: I cannot even get an opportunity to speak on the point we're talking about, those people who are coming here to have their presentations made. As I said, I would strongly support that an extension of time be given for those people to be heard.
Mr Derek Fletcher (Guelph): Recognizing what the opposition has said, they do realize and they're quite cognizant of the fact that during the development of this bill there was substantial consultation that went on with numerous groups, business organizations, labour organizations, people from the designated groups. There was a lot of consultation that went on just in the development of this bill, and so far we've heard many, many presenters throughout the last couple of weeks. We have some who are waiting this morning to be heard, some of them have taken time off work, and we're wasting the people's time in trying to get something through that doesn't work.
As far as the time and effort that have gone into this bill already, I think we owe it to the people of Ontario to start moving on it.
The Chair: Any further discussion on this motion?
Mr Murphy: Yes, if I may, briefly. Let me say I support this motion. I think we've heard consistently in front of this committee presenter after presenter talking about the need for amendment to this bill, providing in many cases extensive analyses of the bill and suggestions for changes. We have piles of them here, literally a foot of documents. Requesting a little time to consider that, to put it in a package, to make a set of amendments that are sensible, that can help improve this bill, is only the height of common sense, it seems to me.
Mind you, it would be the same height of common sense that would allow us to have the employment equity and human rights commissioners here, but the government voted against that and I have every expectation it'll vote against this. They have no interest in hearing what people have to say about improving this bill; they just want to go ahead with their agenda and public input be damned.
I want to support this and I hope the government will, but I won't be surprised if it votes against it.
Mr Curling: Not at all.
Ms Zanana L. Akande (St Andrew-St Patrick): I really do want to emphasize Mr Fletcher's comments about the extensive consultation that went on in the development of this bill. I also want to emphasize the fact that it was our feeling that the consultation would have been much more effective had we had the opportunity to travel about the province, to make sure that these consultations were accessible to all who wanted to present to them. Failing the opposition's and the third party's agreement to that type of situation, we are here, and we have listened and continue to listen to the remarks and the comments of all who come here before us.
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The education process towards employment equity started in this government in 1960. It is 1993. People who were born in 1961 are now 32 and we are still waiting for equity. While we realize that it will be necessary for us to work very late at night and indeed very early in the morning in order to accommodate the kinds of alterations or changes that might have to be made to the bill, because we are listening to the people, we also realize that action is necessary and it is necessary now, because if I can coin a phrase, almost a cliché, a life is a very, very terrible thing to waste, and we are wasting people's ability and lives --
Mr Murphy: You can't pass the bill till the House comes back anyway.
Ms Akande: -- while we discuss and pause and discuss again, since 1961.
Mr Jackson: I've only been on this committee for the commencement of this week, but it strikes me that we've heard from two deputants who were involved with the consultation process with this government. They expressed serious reservations about this government's ability to listen to concerns raised by previous deputants. So if consultation to this government is simply a process, then in fact there's no sense in passing this motion or any other motion, because this government has a fixed agenda; it has a fixed mind.
But frankly, the people who are coming forward to this committee are expressing some common threads, and those common threads are -- and I might hasten to add that we are dealing with a substantive issue here. This is an unprecedented move, when a government suspends the human rights of one sector of its population to benefit another sector of its population These are very serious and substantive matters. If this were to occur in certain other countries around the face of this earth, there would be all hell to pay. There would be United Nations interventions. There would be all sorts of activities. The truth of the matter is, this is a very sensitive issue and one which requires the necessary consultation. The fact that this government would embargo --
Mr Perruzza: He's keeping a straight face when he's saying this too.
Mr Jackson: -- the advice of its own Employment Equity Commissioner, it would embargo a Human Rights Commissioner from coming before this committee, are serious and substantive concerns.
On the issue of time, Ms Akande tried to indicate the importance of time, and of course as she campaigned on this issue over three years ago, I understand the government's urgency in defining its priorities in four- and five-year terms. But the truth of the matter is that nothing can be passed until this House comes back, that we are operating with a blind spot here because we do not have the regs. The government has embargoed an opportunity for us to talk to the draftspersons who are developing those regulations. and the truth of the matter is that we as a committee cannot participate in the process. If true, meaningful consultation is to occur, then we as representatives of the people in ridings that are represented by all three political parties should amend the bill so that we come up with a better bill.
It's arrogant in the extreme that this government can commence a consultation process, not take that advice, then go into a very expensive process of this committee's activities -- and I might hasten to add, there wasn't a great need for us to travel if, as I understand, the Windsor and District Labour Council had all its expenses paid yesterday to come here, fly in, stay and then fly back. So the concern about travelling, it is less expensive to fly these people in than it is for the entourage before this committee to travel all over Ontario.
So we've accommodated that process of public consultation, but if we're truly listening to those people, then in fact we should be given sufficient time, as set out in my colleague Ms Witmer's motion, in order that we can present our amendments cogently and fairly, I submit to you, Mr Chairman, and that this will be completed in a timely fashion.
If the House leader for the government is having that much difficulty ordering up his agenda for the fall, then that is a matter which should not be of concern to this committee. This committee's responsibilities are solely to come up with a good bill, a good bill on employment equity for this province, and not to come up with a hastily prepared, haphazard bill, which, as I remind members, does contain within its body an unprecedented move to suspend human rights for a sector of our population. We must proceed judiciously and fairly, and that's why this recommendation and motion of my colleague has merit. I ask the other members to consider it fairly.
Mr Malkowski: I recognize the members from the opposition, both from the PCs and the Liberals, and their intention to try hard to slow down our process regarding employment equity legislation. They're obviously opposed to it. Their intention is clear; the evidence is before us. I would just ask that they stop using rhetoric, playing games with the language, taking advantage of people and their lives, continuing to let people suffer. Please be clear in the language you use. Let's listen to the presenters who are before us today who are waiting to come and present. Let's just continue with these issues. I ask that we call this question for a vote and that we vote on this and continue with the process.
The Chair: Are there further speakers to this? Ms Witmer.
Mrs Witmer: I'll speak last. I thought there were no other speakers.
Ms Carter: I just want to move that the question be put.
Mr Perruzza: Well done.
The Chair: Given that that is the motion, I would rather hear Ms Witmer, and then we'll get back to that. All right?
Mr Perruzza: She passed up the floor, Mr Chair.
Mrs Witmer: I thought she was going to speak.
The Chair: Go ahead, Ms Witmer.
Mr Perruzza: Can we have the Hansard on the first speech? I just want to check for the most repetition.
The Chair: Mr Perruzza, please, let's finish this. The deputant's here. Ms Witmer, go ahead, please.
Mrs Witmer: I resent the implication that the attempt is to slow down the bill, because, as you know, the House is not reconvening until September and nothing is going to happen with what's happening here today. We have no Hansard copies of delegations that are appearing before us that do not give us anything in writing. We have no Hansard copies of the question-and-answer dialogue that we have engaged in.
In order for us to do any justice to the individuals who are appearing before us on a daily basis and who really think we're going to make a change to the legislation -- they have serious concerns. I can't remember what all those groups said every day, even though I try to take notes. For example, Catherine Leitch yesterday was totally verbal. We will not get a transcript of her remarks until we're finished the clause-by-clause. I'm really disappointed that the government is not willing to take the time for us to get the written documentation.
Our staff haven't even given us the recommendations from last week. I've had no amendments from the government. There was an indication that we would get those changes as quickly as possible. I assure you, this is a sincere attempt to give as much possible consideration of what's been put before us. I'm very frustrated that we just don't have that opportunity to thoroughly analyse what's been given to us. There's a lot of information there, and these people are counting on us to do the best job possible.
Mr Jackson: The disabled community is especially upset.
The Chair: Ms Carter has moved that the question be put. All in favour of that motion that the question be put? Any opposed? The motion carries.
To Ms Witmer's motion: I don't think it needs to be re-read, given that you have read the motion already. All in favour of Ms Witmer's motion?
Mr Jackson: Recorded vote.
The Chair: All in favour?
Ayes
Curling, Jackson, Miclash, Murphy, Witmer.
The Chair: Opposed?
Nays
Akande, Carter, Fletcher, Hansen, Malkowski, Perruzza.
The Chair: The motion is defeated.
Mrs Witmer: Can I move another motion that the committee resume its sittings on September 8? That would allow us at least one day that hopefully the Hansard could be made available to us, and all of the resolutions.
The Chair: Okay, Ms Witmer has moved a different motion. Any discussion?
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Mr Perruzza: Can we have a brief explanation?
Mrs Witmer: What's happening is that on the Thursday of this week, we will cease to hear further representation from delegations. Then there is the Labour Day weekend, and obviously somebody is going to need to put together the recommendations from this past week as well as the Hansards. That would allow for us to receive that information on Tuesday. It would only give us Tuesday to get ready for Wednesday, but I guess it would give us some time; otherwise, as I said to you, I will never, ever see in print the presentation made by Catherine Leitch and many others and have the input of the discussions that took place.
Mr Perruzza: So you're asking to sit on the 8th?
Mrs Witmer: We would start on the 8th instead of the 7th.
The Chair: Further debate?
Mr Fletcher: I just want to make sure I'm getting this. You want to meet for one day on September 8.
Mrs Witmer: No. I'm saying we're to sit next week, all week. Is that not right, Mr Fletcher?
Mr Fletcher: Yes.
Mrs Witmer: Okay. I would say we postpone the deliberation until the 8th, as opposed to starting on the 7th. Hopefully, that would give one day for us to get all the information from the staff regarding the amendments, the suggestions, the Hansards, and at least we'd have it all. As I say, it would only give us one day, but at least it's better than not having it at all.
Interjections.
The Chair: Mr Fletcher, she's explaining --
Mr Fletcher: That's right. I'm just trying to understand. Thank you. That's all I want to know.
The Chair: Any further discussion? All in favour of the motion? On a recorded vote?
Interjection: Yes.
Ayes
Curling, Jackson, Miclash, Murphy, Witmer.
The Chair: Opposed?
Nays
Akande, Carter, Fletcher, Hansen, Malkowski, Perruzza.
The Chair: The motion is defeated.
We'll resume the deputations.
Interjections.
The Chair: I'm sorry. I would like to intervene here. There are deputants here who want to speak. It's been delayed by 40 minutes. I'd rather move on.
ONTARIO COUNCIL OF AGENCIES SERVING IMMIGRANTS
The Chair: I would call upon the Ontario Council of Agencies Serving Immigrants. Welcome to these committee hearings. We apologize for the delay. You have half an hour for your presentation, and within that time we'd like to leave as much time as possible for questions and answers from the different members.
Ms Kay Blair: Thank you, Mr Chairman. My name is Kay Blair and I'm the vice-chairperson for the Ontario Council of Agencies Serving Immigrants. To my left is Paulina Maciulis, who is our program coordinator, and to my right is Norman Mohamid, our executive director. We would like to thank the committee for inviting us here today to speak to the standing committee on administration of justice re Bill 79, an act which seeks to establish employment equity.
The Ontario Council of Agencies Serving Immigrants, OCASI, is a provincial organization consisting of over 135 community-based service organizations. These agencies are located throughout the province of Ontario and play a significant role in the delivery of essential community and social services to immigrants and racial minority and refugee communities.
The mandate of OCASI is supporting and providing advocacy to its member agencies. We firmly believe that immigrants contribute to and enrich the economic, social and cultural life of Canada. Immigrants to Canada, and in particular immigrants to Ontario, bring a wealth of skills, professional training, talents and abilities. We are an important source for job creation, therefore a contributing factors within the growth of the economy. However, the lack of recognition by Canadian institutions and employers in recognizing our previous work experience, our education and training are many barriers that impede our possibilities of actually maximizing our economic contribution.
It's important also to understand that this is consistently identified by OCASI member agencies as posing a significant systemic barrier to full participation in the Ontario labour market. These discriminatory practices quite often result in loss of technical expertise and underemployment, and ultimately inhibit productivity and growth.
OCASI, like many community organizations, has long pushed for the implementation of mandatory employment equity legislation. While we support the implementation of employment equity legislation, it is important to understand that a law which is short on requirements and enforcement can only lead to uneven and inadequate changes in employment practices, as we currently see them in our society today.
Therefore, we strongly recommend that employment equity legislation include stronger enforcement mechanisms which will ensure employment systems reviews and equity implementation and also a capacity that covers all workers and workforces in Ontario. What we're trying to say here is that we firmly believe these critical areas should not be restricted to the regulations only because we as immigrants, as racial minorities, have trusted for a very long time. We have used good faith, but we understand very clearly that good faith cannot be legislated.
Quite often we are told that employment equity and its implementation would not be good for this society and, in particular, will have a negative impact on the citizens of Ontario. I came with a prepared presentation but I just want to include a quotation that I sat and listened to today. The member, Cam Jackson, indicated that we are dealing with serious issues, issues whereby we're looking at suspending the human rights of one sector of the population to benefit another.
What we say as racial minorities is that the sector of the society that has been penalized and has been kept on the fringes has been clearly identified in the designated group, and we're saying it's time for a change. Given that, we are quite aware of the circumstances that are facing most Ontarians today -- we're dealing with the consequences of a depressed economy -- and quite aware also of the problems of entering a reduced workforce, one which we know, given the changes in the job-generating areas, will no longer exist. We believe, however, that as members of society, if we are committed towards a just and equitable workforce, we cannot continue to accept that the designated groups must carry a larger share of the economic difficulties because discriminatory institutional and systemic practices currently exist in our society.
What we know very clearly is that social and labour harmony in this province have been seriously jeopardized by society and government failures to address and deal with the infringement of basic human and employment rights. We believe, as community advocates and a large population of people that are on the fringes of this society, that employment equity is a positive step. We believe it is a process by which changes can be achieved.
OCASI comes before this committee today. We ask you to consider the recommendations that we have highlighted in our very detailed brief. By doing so, we hope that it will ensure changes to Bill 79, making it an effective piece of legislation which we believe will be a positive step. It is result-oriented and will surely ensure access to all Ontarians.
Ontario needs a competitive edge. We are not the problem, and I say "we" as the designated groups. We are not the problem; we are part of the solution. Therefore, I think the time has come for us to end the waste of skills and talents that immigrants, racial minorities and refugee peoples have brought to this country.
We thank you for listening to us and will entertain your questions.
The Chair: Thank you. We'll begin with the government members, Ms Carter to begin. Five minutes.
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Ms Carter: Thank you for your presentation. You've suggested that, if anything, this legislation should be strengthened, and as it now reads, employers are required to show reasonable progress on the achievement of the numerical goals that they set in their plans. Do you have any suggestions as to how that could be made a little more definite; how the standards could be defined or how the wording could be strengthened to make sure that progress is made?
Ms Blair: I think it should be stronger in the sense that it should not be indicated that employers should show "reasonable," because "reasonable" to us is quite vague. There should be equity plans that are put in place, open to all. It should be visible to all employees and it should be monitored and enforced by an independent body. That's the only way I think we can guarantee that things will happen and things will change when there is a public visibility and participation and some enforcement to make sure it actually happens.
Ms Carter: So to you, it is making the plan public that would solve that problem, if you like, as to how reasonable progress is to be measured.
Ms Blair: Exactly, because it will have public access to the employers. There will also be a system of accountability, because once it's public, it will have to be reviewed and monitored to make sure the practices are equitable.
Ms Carter: There's also been a lot of suggestions made to us that we should have stronger requirements for smaller employers who now have modified requirements. On the other hand, people have suggested that this would be burdensome for smaller employers who would not have the human resources staff, for example, that a larger firm might have and that this might lay an expensive burden on these employers, and that it would require the release of sensitive information about what people were earning and so on. Do you have any suggestions as to how that problem could be overcome?
Ms Blair: I think, even in the first place, the reference to small employers should actually be deleted from section 21 of the regulations. In fact, what we're asking for is that the act in itself should cover all employers because, as you understand, the majority of the employers in Ontario are not large employers. Therefore, if we are going to look at making changes, it should be one that is still to be inclusive that will allow for all participation.
Ms Carter: Okay, thank you.
The Chair: Mr Malkowski, there are less than two minutes left.
Ms Blair: Another member for OCASI wanted to comment on this point.
Ms Paulina Maciulis: Yes. We believe that the Employment Equity Commission and other bodies of the government should let you provide the resources for the businesses that may find some difficulty. I think if enough information and regulation structures are given and information is in their hands, it shouldn't be a burden, as many other areas of the work in a small business should be taken into account as part of the business delivery. I think this would be one more.
Mr Malkowski: I'd just like to say for the record, congratulations to the Ontario Council of Agencies Servicing Immigrants for the valuable presentation and the information that was so comprehensively presented.
I was reviewing your presentation and there was one point that I would ask you to clarify. Your recommendation where you're talking about free access for advocacy services related to employment equity -- is it to the workers only, to disabled workers, or would it be any applicant? If you could clarify or expand what you mean by that. Would it be for just the current workers or for future applicants as well?
Mr Norman Mohamid: Yes. Norm Mohamid. Certainly, it would be for future workers as well, not just for current workers. We would want this as open and accessible -- basically an open-door policy in terms of access to equity and employment rights.
Mr Curling: Thank you for an excellent presentation. I do apologize too that you had to wait a bit for this, but it was worthwhile. Because of the short time, I just want to make one comment, a question maybe, and ask my colleague who needs to follow with some other questions.
One of the things you said is of great concern to you is many of the immigrants who have come here and are qualified to some extent seem to be shut out and denied access to proper professional work in their own professions. It seems to me from your report, you are quite familiar with the Task Force on Access to Professions and Trades in Ontario that has been sitting on the desk gathering dust on the government side. The fact is that they have somehow moved the cover and said that they have set up some pilot project in order to somehow open the window a little bit -- not even a door -- so I'm hoping it will work.
Do you have any recommendation to the government using this task force report and the recommendations therein that the access to trades and professions recommendation therein could be fully implemented?
Ms Maciulis: We did a presentation on the issue of employment equity in February 1992, and there were submissions to the Honourable Elaine Ziemba, at that time Minister of Citizenship, on employment equity for Ontario. We did mention we'd have stronger recommendations regarding the access to trades and professions, what we feel is very much a fundamental requirement for employment equity, like a base to move on areas of employment equity. So we did have a strong requirement for employment equity implementation, the implementation of the task force on professions and trades.
Mr Mohamid: Specifically to this legislation, we feel that regulatory implementation of access to professions and trades goals could be found in our recommendations on designated groups being defined in the legislation and including, therefore, linguistic minorities as this really speaks to a large number of the immigrant-refugee constituencies and populations makeup.
It is in that section that we recommended designated groups be defined in the act and that linguistic minorities be added to racial minorities as linguistic and racial minorities, and that the definition of linguistic and racial minorities include identification of major subgroups to enable linguistic and racial minorities to better identify themselves in the workforce survey.
Mr Murphy: Thank you very much for your presentation. I do apologize for the delay that you had to experience, but what we are trying to do is get some time so we can have the transcript of the exchange we're having right now so we could consider them in amendments.
You've got 13 amendments over three pages, very detailed amendments, on which we'd like to ask a series of questions. Unfortunately, because we won't be able to get the Hansard and the government hasn't agreed to give us that time, we won't be able to have that in order to make amendments. But I'm going to ask you a couple of questions in the hope that we may be able to convince them otherwise.
One of them is: Under the second page of your summary of recommendations, you talk about the practices and policies that should be looked at and you have a series of things you think are the kinds of things that should be looked at -- on page 11 -- and one of them is the provision of child care.
I had asked the deputy minister when she was before the committee about that issue and whether that could be one thing the Employment Equity Tribunal could order as an accommodation or a reasonable effort device to encourage designated groups to make up a larger part of the workforce. I'm wondering if you too see that employers, as part of the accommodation -- are you saying that child care should be one of the things employers should be doing to encourage a higher proportion of designated-group employment?
Ms Maciulis: What we are saying is, that should be one of the issues that employers shall examine in their practices and policies affecting current and potential employees. So it's one of the issues employers systems should examine when they are doing their employment review.
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Mr Murphy: Yes, I understand that. I guess my question then is: Having examined the series of things here, including that -- presumably you want something done with the results of that examination. If child care is one of the issues to be looked at, what are you then espousing should be done with the information gathered as a result of the analysis of the child care services in the workplace?
Ms Blair: I think for us the whole purpose around this kind of legislation and the need for it is that current practices are quite inequitable, and what we're saying is that there's no true access and there's no fair access. If child care is a barrier to a woman participating in the labour force, then there should be accommodation and provisions put in place to create access for her to participate, whether it be a situation where there could be subsidies put in place by an employer to facilitate that person's participation in the workforce.
So, yes, we're saying that employers need to review current practice and look at all aspects of barriers and look towards strategies that are going to remove those barriers to allow for participation.
Mr Murphy: Mr Chair, am I out of time?
The Chair: Oh, yes. Ms Witmer.
Mrs Witmer: Thank you very much for your presentation. I regret the time might have inconvenienced you in any way, but I do believe it's absolutely essential that I have some access to the discussion that's taking place here in order that we can get some clarification on some of the points you've put forward.
You indicate here in your introduction, and I certainly would not dispute the fact, that there are many barriers that impede immigrants from maximizing their economic contribution and certainly I think that's been demonstrated to be quite true. You've also indicated here that a large number of immigrants are often marginalized in low-paying jobs etc. Again, certainly that is a fact.
Those are the issues that we do need to deal with. I guess those are the issues too that have been raised for us in the committee during the past two and a half weeks and it's been a very informative discussion.
I want to focus on the "designated" group definition. You've indicated that it be defined in the act and not in the regulations. Are you satisfied with the definitions of the designated groups as they presently exist?
Ms Blair: We're asking, as you can see from, I think it's page 3, when we talk about a definition -- is it 3?
Mrs Witmer: Yes, it is.
Ms Blair: Yes, the designated groups, when we indicate that -- if you'll turn to page 4 -- "linguistic minorities" be added to "racial minorities" and for that to be read as "linguistic and racial minorities."
Your further question indicated that if we're truly satisfied with the --
Mrs Witmer: The four definitions for the --
Ms Blair: -- the definitions as they are for racial minorities. I just want to say to you that the definition that is stated in the act around racial minorities is not totally clear. We have been in communication with the Ministry of Citizenship around the actual definition of racial minorities and how the racial minorities in particular want to be defined. That process is still being worked on in terms of coming up with a definition, one that is quite clear and inclusive.
Mrs Witmer: And there's been a lot of discussion actually around the definitions, the need for some further clarity. This morning that was one of the issues I was dealing with as I was cross-referencing the different presentations, and there seemed to be some conflict. I guess that's one of the difficulties I'm having. In attempting to draft some amendments, I'm not sure what it is, what consensus there seems to be on some of those definitions. There seems to be some agreement that they should be within the body of the bill as opposed to the regulations.
Ms Maciulis: I may suggest that if there will be a definition of subgroups it may be more inclusive and we may be dealing with different language on this issue, and I think that language is kind of evolving and discussions stop evolving here. That's why we believe that, if we can include identification of the major subgroups, it will possibly be more inclusive.
I didn't follow very much your question at the beginning. When you said if we were satisfied, you meant satisfied with this part of racial minority; you didn't talk about the others.
Mrs Witmer: With the definition of racial minorities.
Ms Maciulis: You didn't deal with the other designated groups, because we haven't gone in to say we should have more designated groups or not. We just dealt with this area that has to do with our area of interest.
Mrs Witmer: You've indicated that linguistic minorities be added and that's been an issue that hasn't been widely recommended by others. What linguistic minorities do you perceive as being included within the legislation?
Ms Maciulis: In the same way as we ask for major subgroups, we would like to have included the major language spoken, in the same way we're dealing with the other racial minorities.
Mrs Witmer: Can you give me some examples of what language groups?
Ms Maciulis: Some examples that have been brought to us by our members in maybe some of the groups who are not identified by racial minorities. I just want to mention one, but that doesn't mean we haven't heard from other ones. Let's say the Portuguese community. They truly believe that there has been a lot of stereotyping and discrimination. They are not represented in as many layers of the workforce as their capacity and their skills deserve. That was very much the base of some areas of stereotyping regarding their capacity, and they would like to be represented. Like that, many other groups who don't fit in the racial minority but as immigrants have been discriminated against or stereotyped.
The Chair: I'm sorry, Ms Witmer, we've run out of time. I want to again thank you for waiting and thank you for the contribution you've made to these hearings today.
PAY EQUITY ADVOCACY AND LEGAL SERVICES
The Chair: I'd like to call upon Pay Equity Advocacy and Legal Services to come forward. Welcome, Katerina Makovec and Carol Salmon. You have half an hour for your presentation. You've seen how it works. Leave as much time as you possibly can for questions and answers. Begin any time you're ready.
Mrs Witmer: Do we have a written presentation?
The Chair: Yes, we do, actually. It should be there on the desk, and another one.
Interjection: It's on your desk.
Mrs Witmer: Yes, I've got it.
The Chair: Go ahead, please.
Ms Katerina Makovec: Pay Equity Advocacy and Legal Services, or PEALS, is a community legal clinic with a feminist perspective. Our mandate includes both an advocacy and a legal role.
Our focus is on women who do not have a union to represent them. This, in reality, is 80% of working women. We represent women in front of the pay equity office and the Pay Equity Hearings Tribunal as well as in front of company directors or lawyers. We also work with communities to provide education and empowerment to women regarding pay equity. We find that to educate women about pay equity, we must also provide information regarding systemic discrimination, historical injustices and devaluation of women's work.
It is a pleasure to be in front of this committee for the second time this year to present views on behalf of a seriously disadvantaged group of Ontarians, namely, women. In January, we presented on pay equity and Bill 102, which by now is legislation. In the pay equity public hearings, PEALS and the community raised more than 40 serious issues that were needed to improve the manner in which the legislation fulfils its intent. Only four suggestions were consequently incorporated into the statutes. With employment equity, we hope this committee will listen more carefully to the voices of the community and will prove themselves as true democratic politicians who stand up for those who vote for them.
There are commonalities among pay equity and employment equity. These include systemic discrimination as the focal point and the fact that the benefit of the initiative is directed to the disadvantaged groups. Employment equity is a much broader concept than pay equity, however. Pay equity addressed only one historical injustice or barrier to equality, namely, wage discrimination, for only one group, women. Employment equity aims to identify and eliminate many more barriers for more groups.
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Since PEALS has been dealing with one equality issue for almost two years and since both pay equity and employment equity are statutory regimes premised on a self-managed, voluntary process, we believe that we can provide this committee with insight as to the impact of some of the flaws of the current draft of the legislation. Due to the staff shortage in our clinic, we are not aiming to critique the bill in an exhaustive manner and will only focus on some areas that must be strengthened to change the current Bill 79 into a meaningful legislation. We hope that this time the standing committee will act to improve many more areas than you did in the case of pay equity.
The four areas that must be strengthened are goals and timetables, the role of non-union employees, enforcement and the role of advocacy groups. Now I will ask Carol to talk about goals and timetables.
Ms Carol Salmon: The single most important issue to strengthen the bill is to provide for strong and effective goals and timetables, with qualitative and quantitative goals. Currently, it is not so.
Goals: The bill does not include minimum standards to guide the employer in setting up the goals to achieve employment equity. Further, the regulations address only opportunities of entry and completely omit the achievement of employment equity; for example, numerical goals for composition of the workforce.
While the bill talks about timetables only in general terms, there is no reference to them in the regulations at all. Consequently, as with the goals, there are no minimum-standard guidelines for the employers anywhere to be found.
Therefore, the bill must include numerical targets that would be derived from the Employment Equity Commission's research findings on statistical information about designated groups.
It should be legislated that the commission updates it research findings every three years to account for any changes and to reflect the true composition of the geographic areas.
Each employer must be requested to maintain employment equity. To maintain employment equity, it must be legislated that every employer shall amend its employment equity plan based on the new research finding of the commission.
Timetables also need to be developed for measuring the progress. It would be difficult to settle a complaint and very expensive to litigate with the term "reasonable efforts" as the only guidance.
The qualitative, positive and supportive measures are also subject to the timetables in the bill. However, no more guidelines are introduced in the regulations. This is not sufficient to guide employers and satisfy employees.
Ms Makovec: Non-union employees: Employee participation in non-union workplaces is of special concern to our clinic since it is non-union women whom we deal with daily. Unfortunately, Bill 79 does not provide for the empowerment of the designated-group members.
In our work with women who were denied pay equity by their employers, we have verified that one of the most important preparatory steps towards the achievement of equity is proper education. Education on the concepts of systemic discrimination, historical injustices, issues around challenging the status quo and the plight of the designated groups are only a few areas. Both the employer and employees must be targeted.
Therefore, the legislation must provide for thorough education of employees and employers on systemic discrimination and the benefits of employment equity. Education on the concepts is equally important as, if not more than, the implementation of the technical steps. Only in this way will the purpose of the bill affect the social attitudes of our society.
The lack of specifics in the requirement to consult non-union employees in the bill and to establish an effective process that includes members of designated groups for consultations in the regulations creates serious difficulties for the success of employment equity. Non-union employees are vulnerable working people, and the majority of designated group members happen to work in non-unionized workplaces. The legislation must include more detailed expectations as to minimum standards for an acceptable role of the designated groups in creation of the employment equity plan.
The establishment of a joint employer-employee committee to develop an employment equity plan should be legislated. Employees on the joint committee would receive education from the commission and be given special powers to access information. Designated group members should create the large majority of the committee.
Posting of the employment equity plan should be done in English, as well as in the language that most of the employees speak. Such a requirement already exists for some pay equity postings.
The employment equity plan should not only be posted, as required by the bill, but also a copy should be given to all employees or employee agents who request it. Having the plan readily accessible, as required by the regulations, is not enough.
Paid time should be allotted to discuss the posted plan among all the workers, and both individual and anonymous feedback permitted.
Now Carol will talk about the enforcement.
Ms Salmon: The legislation is only as strong as its enforcement mechanisms. We all know that the Ontario Human Rights Commission is not bringing desired outcomes for equity in this province. Further, the OHRC focuses on direct discrimination, while the employment equity bill targets systemic discrimination.
The bill requests the employers to monitor themselves. As with pay equity, everything is assumed to be going well unless somebody complains. This complaint-based idea may work for empowered, educated members of designated groups, but it is disadvantageous to the most vulnerable within the vulnerable groups.
It should be the role of the commission to monitor the progress towards achieving employment equity, as well as to monitor the maintenance of pay equity. To be able to monitor the efforts to achieve employment equity, the commission must receive annual reports that would include the goals, timetables and progress to date. Random audits would also serve well to enhance compliance with the act. Random audits are, for example, done and accepted in British Columbia for employment standards. Employers with good employment equity plans and progress could then pride themselves on their good record.
Penalties: For equity legislation to be effective, there must be some mechanism to deter people from non-compliance. The bill provides only for a fine of $50,000 if the order is contravened.
The Pay Equity Act also provides for fines of the same amount. Till now, however, no fine has been ordered against an employer. If we consider this an indication of the trend with equity legislation, then we have to conclude that the penalty system need not to be a worry for an employer. From our experience, we also know that $50,000 is a sizeable amount for smaller employers but not enough of a deterrent for big employers.
Furthermore, we have heard from many clients that their employers expressed to them that they are willing to spend an almost unlimited amount of money to litigate because, as a matter of principle, they are not going to pay women the same as men. Clearly, money is not always an issue for employers.
Given the importance of this initiative, we propose the establishment of fines that are equivalent to those of the Occupational Health and Safety Act, being a maximum fine of $500,000 for the employer.
We believe that the protection in section 37 from intimidation, coercion, penalty or discrimination is vital to this legislation. However, experience with the Pay Equity Act has shown that this protection is virtually impossible to enforce without a reversal of the onus of proof. That is, we submit that the bill must be amended to include a provision that the person accused of a violation of this section must prove that he did not violate it. This reversal of the onus of proof was added to the Pay Equity Act in the recent amendment.
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Ms Makovec: The bill does not recognize and provide for a special role of advocacy groups that advocate on behalf of the disadvantaged groups. The designated group members are among the most vulnerable citizens of this province. Often, they do not have the means to represent themselves either individually or collectively. Therefore, regular consultations with designated-group advocacy organizations should be established.
Further, several community legal clinics should be specially mandated to represent designated group members in front of the commission. The special mandate would allow the clinics to drop the stringent means test to qualify for receipt of clinic services in recognition of the fact that systemic discrimination is a historical injustice against certain collectives, and that society and not the individual is responsible to remedy it.
Access to free legal services is a key element to the success of the bill. Our experience with pay equity has shown that legal fees to enforce equity rights are astronomical and outside the realistic means of most workers, even those with relatively good salaries. The personal financial situation of the members of designated groups should not be the basis for the decision to pursue or not to pursue equity rights.
As we monitor the progress of this public hearing, we keep hearing the same questions from the members of the committee. Now, we wish to comment on the issue of merit.
I would like to tell you about one of our clients, a visible-minority woman, who called me yesterday. She was planning to attend this presentation with us so that you could hear from her directly, but after discovering that it is broadcast on television, she changed her mind since she is still employed and her employer has rather racist and discriminatory attitudes.
Our client is working for a medium-sized private company. She performs a number of responsible duties, makes decisions and assumes responsibility for them. She was given extra work since one of her colleagues was let go, because she happened to go on maternity leave, so she is putting in extra time to cope with the situation. When she asked for overtime pay, she received it at first but later was denied it.
In fact, she performs a managerial job but does not have a job title that reflects the managerial position. If merit was really the only criterion recognized by employers for promotion, then she would have to have the right job title, recognition and pay. Instead, our client is left bitter, humiliated, overworked, undervalued and underpaid.
Her comments on the questions of preserving merit as the main hiring criterion are as follows: "Merit, dedication and hard work gets you nowhere. That is what I found."
Now Carol will have some concluding remarks.
Ms Salmon: There are many other issues that need attention and strengthening in the bill and regulations. The Women's Coalition for Employment Equity and the Alliance for Employment Equity are presenting more detailed views, and we fully endorse them.
Further, there are other related issues to employment equity that require attention to make the employment equity legislation work well, such as the recognition of foreign-trained professionals and trades workers.
In summary, the bill needs a greater ability to enforce its purpose and to ensure that the social policy that it reflects is implemented. Our experience with pay equity has revealed that without mandatory goals and timetables which carry with them a penalty if they are not met, employers will not be motivated to comply with the act.
Further, constant evaluation and re-evaluation of the demographics is necessary to ensure that the act continues to reflect the makeup of our ever-changing society.
Finally, it is imperative that workers have the ability to raise in a very loud voice their concerns on their own, through established advocacy groups and with the assistance of free legal advisers. Without a place for the voice of workers, we are concerned that this act will be found in a dusty place on a shelf.
It was a pleasure to talk to you today, and now we welcome your questions and comments.
The Chair: Thank you. Three minutes per caucus. Mr Curling.
Mr Curling: Thank you, Ms Makovec and Ms Salmon, for an excellent presentation. Of course, with the limited time, maybe I'll just make some comments, because I think you have it all here, some of your grave concerns.
First, I will comment on the pay equity aspect of things. I'm one of those who are kind of disappointed in the way pay equity went, because I know it was targeted to equal pay for work of equal value and it became a gender-specific bill. My feeling is sure, it attacked and tried to rectify one of the designated groups that had been more exploited than any other in regard to pay that was not being given for proper work or for good work that was being underpaid.
I notice you mention here that in your consultation process with pay equity, you had down about 40 recommendations and the government seemed somehow to not listen and you had only gotten just about four suggestions there, and it is your hope that this government listens to some of the recommendations. Some excellent recommendations were placed here.
I'll just focus on two comments here. The role of the non-union employees concerned me tremendously, because you represent and you have seen many of those groups come within your -- if you want to call it -- fold or your organization. In the regulations, it says those people will be consulted. As vague and ineffective as many parts of the regulations are, I'm not confident what "consultation" means, and I hope they listen to you, as you have highlighted rather specifically that these are groups of people who have been shut out, people who don't really have the type of people to represent them properly and feel that they could be attacked or be not represented properly and their views not heard properly.
The other part that you mentioned is enforcement. You made a rather interesting comment. You talked about the Occupational Health and Safety Act somewhere in here, that the maximum fine to the employer for violation was $500,000. Of course, any kind of acts that would have been done there, mishaps, could destroy lives. I also feel that way about people's lives that have been destroyed because they don't have proper access to work, their dignity destroyed, their family destroyed. In this, we look at a $50,000 to $500,000 fine. We have to get our priorities right. Are people more important? It is a matter of fact that both are important, violation of the Occupational Health and Safety Act and also employment equity. I just wanted to make those comments because of the short time that I had.
Ms Makovec: I was very pleased to hear your comments, because the non-union employees need more protection in the legislation. Again, from our experience, the best thing is if they have enough information right at the beginning. Let's say if there are established pay equity or employment equity committees, we would like to see mandatory training for the designated group members of that committee so they know what they are talking about, so they know what their rights are and so they know what they can afford to do and what the recourse is. That's of utmost importance, because the majority of people are non-unionized.
The Chair: Thank you. Ms Witmer.
Mrs Witmer: Thank you very much for your presentation. Certainly you've indicated here that you were disappointed with the pay equity process and you hope this committee will listen more carefully to what you've said. I think you heard my comments earlier. I'm concerned, because obviously I personally don't feel we can do justice to presentations such as yours because we'll never see the written Hansard of what's going on here today.
You've indicated there are areas where you would like to see some changes made. I guess the one thing that is happening is that at least there's some consistency.
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I think you've made some good points regarding the non-unionized employee. Certainly, within this legislation, that individual does not receive the same ability to participate in the process and obviously there needs to be an amendment made.
You've pointed out the need for the advocacy group and I think you've made a good point here, the reason for that as well. We certainly need to take a look at that.
Then you point out that we need to focus on recognizing foreign-trained professionals and trades workers. Again, that's an issue that I think a great majority of presenters -- I've pointed out myself that it's an issue I deal with constantly in my own community, where people are well trained and they simply cannot access the professions and trades.
I thank you for your presentation. We certainly shall endeavour to give it the attention it deserves.
Ms Makovec: I welcome your comments, Ms Witmer, not only about the Hansard, but I was here when employment equity was introduced and I heard your comments especially about hesitating or questioning the time allowed for this committee to study the submissions before you go to the clause-by-clause discussion. I think it's only the long weekend, which I think is very, very short and it concerns me as well.
Mr Fletcher: Thank you for your presentation. You advocate very strongly in your presentation for the need of a strong Employment Equity Commission, yet we've heard from other groups, from the opposition, that we don't need an Employment Equity Commission, that what we need is just the Human Rights Commission and it can handle everything. Can you comment further on this?
Ms Makovec: Definitely we need -- because as we said, the employment equity bill seems right now to be voluntary legislation, by which we mean it's a self-managed process that's expected to go well, with only complaints as the only recourse. So if people want to complain, or have some strength or support in having their concerns heard, definitely there has to be an independent body that will attend to their needs, that will have the powers to decide or to settle a complaint, settle a disagreement. Definitely, we need a strong Employment Equity Commission.
Mr Fletcher: One other quick question: As far as education is concerned, and I agree with you that education is important, how do we go about ensuring through legislation that education is going to take place in the workplace? Do we force employers?
Ms Makovec: Yes. I would ask for the employment equity committees, which would be a composition of the employer and the workers, that all the people receive mandatory training that would be delivered by the commission. There may be a workplace of 150 employees. They will create an employment equity committee and then the members will be sent for one-day training to the Employment Equity Commission.
They will also have some powers, as I said, accessing information. This is a very big issue in pay equity, for example, accessing information. Sooner or later, the employer will have to give us the information. It's much better to have it right at the beginning, rather than going to the tribunal and getting it through the tribunal. It just costs money and time and makes no difference in the end, because we have the information at the end if we need to have it.
The Chair: I want to say that you've offered some useful insights for this committee and I want to thank you for taking part in these discussions.
GORDON MCGLONE
The Chair: I would like to call upon Mr Gordon McGlone. He's on his way up, so we can just wait for two minutes.
I'd like to welcome you here to these hearings. You have half an hour for your presentation and we urge the deputants to leave as much time as possible for questions and answers.
Mr Gordon McGlone: I'd like to start out this morning to see if all members received my brief that I supplied yesterday.
The Chair: Yes, we did.
Mr McGlone: Thank you for providing me with the opportunity to speak today on Bill 79. I come as a private citizen with a disability. I wish to direct my comments towards this group, and in particular towards the subgroup of acquired brain injury, to which I belong. I have firsthand knowledge of the struggles involved in recovery and rehabilitation and in the problems of obtaining appropriate accommodations along the way.
I have had a severe brain injury as the result of a motor vehicle accident in which I was a passenger five years ago.
Though I graduated from university this year with an honours BA, I want you to know that the problems with accommodations were horrendous. Now I should have the choice of post-graduate education or entry into the workforce. Unfortunately, neither option is readily available. In fact, because of my cognitive and psychosocial disabilities, I'm not sure that these options are even open. Consideration must be given to greater assistance and support for those with severe disabilities so that they are not swept under the rug.
In its 1987 report, the Ontario Ministry of Health acquired brain damage committee estimated that between 12,500 and 20,000 people were admitted to Ontario hospitals with traumatic brain injury. Of these, between 741 and 1,240 were severe injuries requiring long-term treatment and rehabilitation, between 198 and 320 were estimated to be permanently disabled and between 23 and 37 required behavioral management rehabilitation. In 1993, this province is still without adequate specialized treatment and rehabilitation services for these survivors.
Because of better medical care, more persons with severe head injuries are surviving. Many of these have no obvious physical impairment but suffer cognitive and psychosocial changes. These are the silent walking wounded who are not recognized for their deficits. They are the injured who find it most difficult to regain a meaningful lifestyle.
Many problems make this population less desirable, both as students and as workers. Many are slow in their ability to perform tasks and tire easily. Some are emotionally labile and find it difficult to function smoothly under stress. Educators cannot afford time for the extra effort needed to meet their needs. They may take the easy way out by not accepting those with such disabilities or by discouraging them and advising them to lower their goals. Similarly, employers are not inclined to favour hiring persons who may be slower, or fatigue, or are less productive and problematic and may require absences for ongoing medical care. I look to my future and I wonder if I have one.
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The application of the proposed legislation seems relatively easy for the designated groups of aboriginal people, members of racial minorities and women. It is perhaps a little bit more difficult for those with disabilities. I fear that those who are less appealing because of their severe disabilities will fall between the cracks because the goals of the legislation will have been met by these other groups.
It seems unreasonable to me that the provincial government, through this legislation, should expect employers to hire persons who may be less productive, even though they may be equally qualified or otherwise of equal merit. For this group then, I recommend that incentives are needed. Perhaps financial assistance should be provided at the outset to encourage employers to hire these people. Another possibility would be the provision of a provincial tax credit for each disabled person hired from this subgroup. I would recommend that a safety net be made available to assist those disabled persons having employment problems. By "safety net," I mean counselling, supported education and assistance from qualified job coaches. The support staff must be flexible and understanding in their management of the problems that arise within this subgroup.
Legislation is already in place dealing with education of persons with disabilities under the Ontario Human Rights Code of 1981. This legislation provides for the right of the handicapped to attend regular school classes and the workplace. Unfortunately, the spirit of the law and keeping the law are two different things. Many of you from the Legislature will have seen me at Queen's Park before, lobbying for the rights that have repeatedly been denied to me these last few years. Without the extra help and services given to me by some of your colleagues, I would not today be a university graduate. I want to thank this committee for arranging with the parliamentary constabulary to permit my attendance for this presentation.
The smooth transition of the disabled from school to the workplace is supposed to be facilitated by the vocational rehabilitation services, the VRS, which is a branch of the Ministry of Community and Social Services, Comsoc. Though the VRS has experience with some disabilities, particularly physical, it lacks the expertise to deal with problems of a cognitive and psychological nature such as one sees in acquired brain injury. Unless this deficiency is addressed, others who are less vocal and persistent will find it very difficult entering the workforce. The proposed legislation, Bill 79, is lacking in that it does not address the problem of transition at all, so that it leaves this subgroup unable to benefit. This group must have appropriate advocacy, something that is not presently available because the staff are not trained in this area and therefore are not able to voice appropriate concerns.
Another point that should be made is that there should be no delay between the time education is completed and the time work is commenced. Skills are very hard won and could deteriorate very quickly. Cooperative education would be an ideal springboard into the workforce.
So far as appeals are concerned, I have had occasion to appeal to the Ontario Human Rights Commission. Their backlog of cases is greater than two years, making them ineffective as an appeals mechanism. My concern is that the Employment Equity Tribunal will soon be overwhelmed and have a similar track record to that of the Human Rights Commission. The act must therefore be very exact so that the appeals will be rendered clear-cut. The term "reasonable length of time" used in the act is not satisfactory. A three- to six-month time limit would seem more than appropriate.
Finally, the education of the public at large must include detailed information on types of disabilities that one might encounter. Through this education only will the acceptance of brain-injured individuals and individuals within these minority groups be achieved.
The Chair: We begin with the third party, four minutes per caucus.
Mrs Witmer: Thank you very much, Gordon, for your presentation. I found it personally very informative and it gave me a better understanding of the difficulties that you face.
I think you've made a very key point in your last paragraph. You refer to the need for education. I think that's what we're hearing. If we really are going to have fairness and equity in this province, there's a big job that needs to be done with the public, with the employer community and with employees, and certainly someone needs to assume responsibility for that.
You indicated that cooperative education would be an ideal springboard into the workforce. I would certainly concur with that. Do you have any ideas as how that might be developed?
Mr McGlone: Yes, I have several ideas on how that could be developed. There are very few cooperative education university programs and college programs in place in Ontario at the present time.
A former roommate of mine in Toronto was a cooperative student at the University of Waterloo studying mathematics. He went off to work, and then he went back to university. That seemed to be excellent, because he got to work with employers, he got to know the skills the employer was looking for. Employers were able to assess what skills are known by this individual and they get a great rapport with each other. I don't know the exact number, but maybe 70%, 80% of these people who go through a cooperative education program end up working with their final co-op employer.
I think that at the university I attended, York University, a cooperative education program for individuals within these subgroups, particularly traumatic brain injury, is definitely needed, because as I stated, the skills that are learned by head-injured individuals, depending on the type, what area of the brain is damaged, are hard to retain without constant repeated efforts etc. I feel that extra funding being provided to allow cooperative education programs for such individuals -- and specifically this subgroup because of, I think, the greater difficulties they will have entering the workforce -- would definitely assist.
Mrs Witmer: I don't know if you're aware or not, but the Waterloo board, and I guess you're from the region of Waterloo, does have a program that it put in place regarding co-op education at the secondary school level for students such as yourself who would have had special needs. It's been very positive because it's allowed the employer community to become familiar with the special needs and the barriers they need to eliminate.
It's also allowed the employee group an opportunity to become more comfortable and be very accepting. But I know it does require a lot of additional resources. Obviously this is a step, I think, that the government could be looking at in introducing this into the university community more widely. I hope they give very serious consideration to that.
You've talked about the reality of the fact that if employers are to hire individuals who may be less productive, there's a need for some financial assistance. You've suggested a provincial tax credit. Have you discussed that with anybody at all?
Mr McGlone: No, I haven't. I've been just trying to brainstorm for some ideas on how to kickstart these employers and companies to want to hire and take the risk of hiring individuals in the minority group and with disabilities etc. I feel that if we're able to get into the workplace, get that opening, if the door is opened just so we can get in there, we can do it. I think they'll see from that point, in that we are able to work and we are able to do things and maybe some of the things that they hear are a mess, it can turn into a very profitable experience, because one of the things that's very obvious right now within the province of Ontario is that everyone is upset about taxes. If we're offering a tax credit, employers will say: "Hey, this might be an opportunity. We might be able to do something with this. We'll give him an opportunity." What I'm scared about is the fact that if something's not done to help out this employment equity, more employers are just going to leave the province of Ontario and then there will be no jobs. That's what I'm scared about.
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Mrs Witmer: I thank you and I wish you well, Gordon.
Mr McGlone: Thank you.
Mr Malkowski: Thank you for your presentation. I think it helped us to become more aware of people's circumstance with acquired brain injury. I'd like to ask your opinion, specifically on the self-identification process and the data that are collected. There are some groups that have presented that say they would prefer self-identification and they say that's the only acceptable method. Could you comment?
Mr McGlone: I'm not sure I heard the question. I only have one ear, and it's hard for me to hear.
Mr Malkowski: My question is, do you feel that the only acceptable method is self-identification so that you would identify yourself as a person with acquired brain injury? When you're talking about identification, do you feel self-identification is the only acceptable method?
Mr McGlone: With regard to self-identification, I have some great concerns about it. From the way I appear today, I can get by without being seen as an individual with a disability. The fact is, once it became known to individuals such as employers and the schooling individuals, it became very difficult. Bare minimum marks is what I was receiving, when I was a straight A student prior to my becoming traumatically brain-injured.
The idea about self-identification is very close to my heart in the fact that once you are identified, employers find you a risk. They do not want you in their workplace. They're scared their Workers' Compensation Board claims are going to escalate. They're scared that someone may get hurt on the job and they're going to have to pay out for it, and once you become named, as I am -- I self-identified myself as traumatically brain-injured, and one of the things that has resulted is that I'm banned from this premises. I'm not allowed in Queen's Park premises, and when I am in here, as I am today, I have to have the OPP with me, and it's just ridiculous. The fact is, the reason why I'm down here is because I self-identified and the services are not available for the traumatically brain-injured and I feel for other individuals, other minority groups too, like the blind and the hard-of-hearing. They do not have the supports out there either, and self-identification, if it is not under very stringent controls, can be very dangerous for the individual. I don't know if it answered your question.
Mr Malkowski: Can I just have a brief follow-up?
The Chair: Very briefly, because we ran out of time.
Mr Malkowski: Then what would you recommend as an alternative to self-identification?
Mr McGlone: Once again, we're getting back to my very last point, education. Maybe with appropriate education, with the workplace, with workers and with both the private and the broader public sector, it may make self-identification less of a deterrent than it is now. I believe that if we get the education out there, it can work. That's my answer to that.
Mr Frank Miclash (Kenora): Gordon, I too would like to thank you for your presentation. I have certainly learned a lot more about people with your disability, and I think you're an excellent spokesperson on their behalf. Again, I thank you for the presentation.
As a former educator, I'm always interested in what people have to say about cooperative education. I think Ms Witmer has indicated that it is a very important aspect of education, and I think your suggestion is an excellent one. I do hope that you carry that forth to both the Ministry of Education and the Ministry of Community and Social Services, because I can see some very valid points you bring forth.
Gordon, I'm interested in some of the areas where you may have applied for work and what the response of those possible employers has been, say, since you've graduated.
Mr McGlone: Since I have graduated, I have not applied for work. Due to the severity and some of the psychosocial and behaviour problems and the fact that we do not have adequate rehabilitation, as I mentioned earlier in my paper, for traumatically brain-injured individuals, I've gone off to the United States for further education and to a head injury facility within the United States. It became very disastrous for me, because I ran into the same problems down in the United States as I have had here at university and entering into the school and the workforce.
I would wish the opportunity for me to use my skills was available to me, but I don't see it as available, because right now I have not much to go on. I have a university education, very hard fought, and some of you in this Legislature know how hard it was for me to get a university education. The fact is the employment opportunities are not there. I face the situation that if I do go look for employment, I'm deemed to be perfectly all right, I don't have any more disabilities that I'm suffering from, and in fact a lot of the benefits that I fought for would be discontinued from me. That is very hard for me also.
Getting back to your first thing about cooperative education, and I guess it's to Ms Witmer's thing about the Waterloo County Board of Education with its cooperative education program, I was involved in that at KCI. I did my cooperative education in accounting and it worked out very well. The grades went up and the atmosphere was more relaxed. It was great. It really works out well if we can do that.
The Chair: Thank you, Mr McGlone, for sharing your personal history with us. We found it very useful.
Mr McGlone: Thank you.
CANADIAN FEDERATION OF INDEPENDENT BUSINESS
The Chair: I would like to invite the Canadian Federation of Independent Business to come forward. Judith Andrew and Catherine Swift, welcome to this committee. You're probably very used to these committee hearings. Half an hour for your presentation and leave as much time as you can for questions.
Ms Catherine Swift: We only have two today, actually.
The Chair: That's all?
Ms Swift: Two appearances before committees. But this is our first.
My name is Catherine Swift and I'm senior vice-president with the Canadian Federation of Independent Business. I'd like to also introduce my colleague Judith Andrew, who's our director of provincial policy.
As I believe you've got our brief, we just want to touch very lightly on a few of the points in it and try to leave as much time as possible for questions.
We very much appreciate the opportunity to appear before you here today. As you may know, our federation represents about 40,000 small- and medium-sized firms in Ontario right now and about 83,000 across Canada. Our member firms are Canadian-owned and owner-operated businesses and they can be found in every sector of the economy and every region of the province. Generally speaking, our membership mirrors the small business population at large in terms of sector and so on, and as you may also know, the small- and medium-sized business sector is responsible for the vast majority of job creation, has been for about the last 10 years or so, and we expect it to be the case in the future as well.
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Something we've been very concerned about is that I think policies like employment equity have to be taken within the context of an environment in Ontario in which small business is already very heavily regulated. Many of these programs are directed at employees, and we have found that, regrettably, over time we now have what many economists have been referring to as a jobless recovery. When we look at the burden of both in terms of things like payroll taxes and administrative burden, which is also a cost, although perhaps less quantifiable in terms of heavily legislated programs as well, we find that our members are unfortunately increasingly loath to take on more staff simply because the cost of it is increasingly high.
I'd now like to have Judith carry on.
Ms Judith Andrew: I just would like to say at the outset that CFIB supports the principle of employment equity but we do oppose legislation governing employment equity. We believe that the job of changing attitudes in society will happen mainly through educating on issues, goals and approaches for fair employment practices. This will demand considerable effort on everyone's part as well as, we would think, some certain amount of time, patience and sensitivity.
In our view, legislating employment equity carries a considerable risk, which is that attitudes will be hardened rather than changed. This would be particularly true if the implementation of the legislation imposed onerous or unrealistic requirements on business firms. We're concerned about the push from some quarters for heavy-handed enforcement of a quota-based system. We feel this is unhelpful if we want to build a fair and productive society in Ontario.
We also believe that the solutions to discrimination in society must be as multifaceted as the problems, and they must involve all groups in society in a balanced way.
In earlier submissions to the government on the subject of employment equity, CFIB outlined some major guiding principles which we believe apply to employment equity in smaller firms. I'll just list them very shortly for you.
The first is that government must take a positive, forward-looking approach to encouraging change rather than a punitive approach. There really is no purpose to be achieved by assigning blame, and assigning blame would work out to be not only alienating but also incorrect in virtually all the cases.
The second principle is that the purpose of the legislation should be to promote unbiased employment practices and policies so the workforce actually represents the wide variety of talent and aptitude available in the whole of society. The focus has to be on the rights of the individual, so that when those individual rights are summed and those individual fair decisions happen, you result in a fair mix of the target group representation across the range of jobs in the labour market.
The third principle is that the small business compliance burden must be minimized. The compliance burden and the measures to advance employment equity must be suited and sensitive to the smaller enterprises in this province and great care must be taken to preserve and enhance the opportunities for small business growth and development generally.
Our surveys show that already government regulation, red tape and paper burden is the second-ranked problem facing small business, second only to total tax burden. Employment equity has to take account of the fewer resources available to smaller firms to deal with personnel issues and the streamlined or less formal human resources policies which are characteristic of the small business setting.
Our fourth principle, and perhaps the most important, is that education and support should be the thrust. Employment equity will be advanced in the province's smaller enterprises mainly through educating and supporting owner-managers on the issues, goals and possible approaches to fair employment practices. Education of the target groups is important, also education of the general public is important, but our point here is that government resources should be focused on supportive activities rather than on regulatory initiatives.
For example, and this is with reference to the presenter who appeared before us, we believe that businesses could benefit from practical advice on accommodating people with disabilities, and for the very smallest businesses some financial assistance in respect of expensive accommodations would probably do more to advance employment equity in the province than any laws or regulations ever could.
I'd like to list now several concerns we have with Bill 79 provisions.
First of all, we're concerned about the negative tone in the bill. It's quite accusatory in the preamble and many of the provisions of the bill are highly prescriptive and punitive. This is counter to the need to inspire and motivate employers to positive employment equity initiatives.
We recommend replacing the current negative-sounding preamble with the principles contained in section 2 and we would delete principle 2 in section 2, which suggests a quota-driven approach based on population data.
We are aware that both the minister and the commissioner have publicly confirmed that they do not support and do not intend a quota system. Both have also affirmed that businesses will conduct their goal setting with reference to realistic data. It is only fair that an employer's workforce be compared to the qualified and available labour pool in the vicinity of the business according to clear and consistent definitions. The language of the legislation and the regulations must clearly enunciate these points, and there are several areas where they do not currently do that.
The subsection 8(1) obligation must be amended to clarify that employers must make reasonable efforts. This would make it consistent with section 12. The section should also indicate that terminating or demoting existing employees is not contemplated and that employers have the right to hire and promote on the basis of qualifications.
Again, both the minister and the commissioner have affirmed this is what is intended, so it shouldn't be difficult to include language to this effect. Frankly, this would eliminate unnecessary anxiety in the business sector and at the same time clarify matters for those who must use and interpret the legislation in the future.
On the issue of paper burden and regulation, CFIB is concerned that onerous regulatory paperwork requirements will touch businesses as small as 50 employees where the capacity to handle personnel matters is generally very limited. Our federation has recommended a small business exemption at the level of 100 employees, which is consistent with federal employment equity legislation and many standard definitions of small business. While we recognize and appreciate that the government has made some efforts to streamline the Bill 79 requirements, additional modifications are necessary to ease the burden in Ontario's smaller businesses.
We would also point out for anyone below these thresholds, the regulatory regime in this matter, in fact any other matter in Ontario, should not dissuade owner-managers from growing their businesses past the 50-employee mark, past the 100-employee mark to make them medium- and large-size businesses creating employment growth and opportunity and prosperity for Ontarians.
CFIB recommends, accordingly, that the section 10 requirement to review employment policies and practices be amended to omit reference to the very detailed proposed regulations. Instead, this should be the subject matter for educational materials from the commission -- and we envision checklists, sample reviews, guidelines, helpful materials -- that would allow the businesses the flexibility to undertake their own employment systems review in the manner most appropriate to their circumstances.
We would also argue there is no need to codify in regulation under section 11 the specific contents of the employment equity plan. The systems review should produce a barrier diagnosis and the plan should be the prescription for eliminating the barriers. This is another area where support materials from the commission can really assist in tailoring the employment equity plan to the unique circumstances at the firm, and frankly we believe the employment equity plan should be primarily a management tool and it should be tailored to the unique circumstances.
We are concerned by the enormous new government bureaucracy implied in the subsection 11(2) requirement for each covered firm to file a certificate respecting the employment equity plan in a form approved by the commission. Here I will mention more specifically the draft regulation, although I understand you're not examining that at this time. The draft regulation under subsection 11(2) specifies that the employer's first certificate must also provide data on the representation of designated-group members in the employer's workforce and that subsequent certificates must contain updates to this information. This is a matter of reporting; it's not a matter of certifying that the various employment equity steps are done.
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We believe subsection 11(2) requires an amendment to specify the contents of the certificate, which would exclude reporting, and the reason for this is that the clear implication of reporting this information suggests that the commission intends to build its own statistical database, which would be a duplication of the federal census and other data sources.
Instead of working with the other levels of government to rationalize efforts, it seems certain that Ontario will be expanding its bureaucracy at a time when the province can ill afford the bureaucracy we have now. Small business, and we would suspect most taxpayers, cannot condone such a frightful misdirection of resources. We continue to recommend that the employment equity authority be housed as a small unit within the Ministry of Citizenship and staffed from existing government resources, and under no circumstances should the authority divert limited resources to building a statistical database.
On the issue of workers' participation, section 14 requirements pertain to joint development by the employer and the union of the employment equity plan. We believe it's inappropriate to bargain treatment of the designated groups. The various steps are required in the legislation and, in our view, these are not negotiable.
We recommend that the section 14 provisions requiring joint development be deleted. Instead, the legislation should provide for consultation with the trade union on methods of recruiting and promoting members of the designated groups. Here, of course, this would contemplate discussion of how modifications to seniority provisions and other barriers are addressed in the context of the individual company.
This section 14 amendment, of course, would negate the requirement to furnish extensive information to the trade union. In any event, we believe the information requirement must be scaled back to protect information of a future, strategic or confidential nature, the release of which would be prejudicial to the business.
On the point of emphasizing education rather than enforcement, we believe the government must avoid an adversarial or litigious approach. This can only backfire by alienating the very people who can most assist with the program. It's vital to gain the support and the cooperation of employers by establishing reasonable requirements bolstered by supportive education and information and by refraining from heavy-handed methods of enforcement.
Under section 22, for example, we recommend that arrangements be made with the employer for carrying out these audits. We would submit that the object is not to catch employers by surprise, with employment equity audits, to find things undone. Rather it is to promote positive employment equity initiatives in the company.
We're also concerned about the extensive powers of the commission, which put the employer at a disadvantage under section 23 settlements. In fact, it's inappropriate, in our view, that in addition to its main support and education role, the commission has the power to investigate an employer, attempt to effect a settlement, issue an order against an employer and file and prosecute a complaint against an employer before the tribunal. Clearly, the support and education functions should be separate from enforcement, and the same body which attempts to settle complaints should also not investigate and prosecute complaints.
We would also note in this context that the subsection 1(1) reference to the Human Rights Commission suggests that there will be some confusion over where a complaint should be laid, and this could create the situation of forum shopping. We feel that the structures really have to work and be seen as fair and the functions have to be separate, although we're not advocating a big bureaucracy in this regard.
The section 26 provision which allows third parties to file complaints against an employer suggests double or more jeopardy, and we strongly recommend that this provision be removed. Similarly, the section 32 provision allowing the tribunal to grant standing to outside individuals, such as human rights lobby groups, must be omitted on the basis that it is sufficient for the employer to answer to the government under the law.
I'll just conclude by saying that small businesses, by virtue of their size and resources, are often the victims of discrimination. Accordingly, they oppose discrimination in the broadest sense. We would hope that you would carefully consider our recommendations so that the goals of employment equity are reached without perpetrating unnecessary damage on the sector which offers employment and opportunity to so many Ontarians.
The Chair: Thank you. We'll begin with questions from the government side. Mr Fletcher, if you could begin. There's Mr Mills as well afterwards.
Mr Fletcher: Thank you for your presentation. We've heard many presentations, and I understand you're saying that legislation is not the way to go; education is. I agree that education is very important in this. But we've heard a lot of groups say that this legislation isn't strong enough; it doesn't go far enough. In fact, the critic for the official opposition is saying that it's not strong enough, that it doesn't force the business community to comply with employment equity. Also, the official opposition is saying that the fines should be $500,000 if you don't comply, rather than the $50,000. So I'm wondering --
Mr Murphy: I've never seen a transcript where that occurred.
Mr Fletcher: When people are saying that it isn't strong enough and you're saying that education is the way to go -- and I asked this of the previous person -- how do we go about education in the workplace as far as getting people on side with employment equity? Do we put mounds of money into education, from the government? Do we allow the employers to educate? It doesn't seem that it's been working over the years, as far as employment equity is concerned.
Ms Andrew: Our recommendation here is to make the thrust of this legislation primarily an educational and supportive one. To err on the side of rigorous enforcement will in fact backfire. Frankly, small businesses have so many problems to contend with these days, with the tax burden that we face in this province and the regulatory and administrative burdens that come from other government initiatives, that the only way to go on this is to try a positive approach to changing attitudes rather than a negative one. We're not recommending a massive public education campaign with big dollars, if that's what you're suggesting.
I would also say, in respect of the fine, the fine we regard as quite significant; $50,000 can be for every offence and for every violation of an order. I have personally heard the commissioner suggest that in fact it could be multiples of that $50,000, depending on the situation. That is a big penalty and very onerous. Particularly for a small business, that would be an enormous penalty.
Ms Swift: I think too, if I can just add, we're speaking from the perspective of small business and hopefully with the understanding of how a small business operates and will react. We have seen instances of many other types of legislation which were punitive, which were onerous. Presumably, the goal we all have is to promote employment equity, and so I doubt very much those recommendations that it doesn't go far enough etc came from people knowledgeable about small business.
Mr Fletcher: You do see employment equity as a boon to business? I mean, we've heard from other business organizations that, "This is going to help our business and we're getting into the global area as far as business is concerned and these are our clientele."
Ms Andrew: There's no question that businesses for the future will have to make good use of all the resources available to them. Frankly, we feel that small businesses tend to do that anyway. According to some of our surveys and official statistics, they tend to hire more than their proportionate share of seniors, also of younger employees --
Ms Swift: Women as well.
Ms Andrew: Women as well. So they haven't got the luxury of being capricious about who they hire, generally speaking.
The Chair: Mr Mills, one question.
Mr Gordon Mills (Durham East): Thank you for coming here this morning. I read in your brief that you support the elimination of discrimination and equality of opportunity in the broadest sense, but you disagree, that mandatory employment equity is not the best way to address this. Then you go on to say on page 2 that you genuinely want to build a fair and productive society in Ontario.
We've had dozens and dozens of people appear before this committee over the past three weeks who say that isn't working; it doesn't work. We had a presenter here this morning who had a woman who wanted to come here to give her point of view and when she found out that for goodness' sake, it was on television, she didn't come because she said, "I'm still employed, I want to keep my job, and my employer is racist and discriminatory in his attitudes in the workplace." Now you are asking me as a legislator to think that we want to build a fair and lovely society. It hasn't worked yet; it hasn't worked for the last 30 or 40 years, as my colleague said this morning. What is suddenly going to change? It ain't there.
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Mr Jackson: Bring in whistle-blowing legislation like you promised.
Mr Mills: We'll get to that.
Mr Jackson: When?
Mr Mills: You wait. That's another one. I want to know what's changing in society. I don't see that.
Interjections.
The Chair: Order. Please answer his question.
Ms Andrew: The complexion of our society has changed rather dramatically and the present mix in many firms is the result of several years of hiring.
Mr Mills: It isn't working.
Ms Swift: The notion that legislation can solve every individual's problem all the time is just so unrealistic.
Mr Mills: Mr Nice Guy doesn't work. We know it doesn't work and you know it.
Ms Swift: Overlegislating and punitive legislation doesn't work either. We have seen repeated instances that it doesn't work.
The Chair: Thank you very much.
Ms Andrew: The individual you spoke of --
The Chair: No, we don't have time for that; sorry, we ran out of time. We'll move on to Mr Curling.
Mr Curling: I hope I can bring some sanity to all this, and Mr Mills's outbursts of how it's so confusing.
Thank you very much for your presentation. There's one part you mentioned, and presenters have made mention of this quite often, and that's the preamble, saying it is so attacking and accusatory in its approach, an adversarial situation, that immediately as you open the bill you see an adversarial situation.
I personally agree with an approach that says we want employment equity legislation that's seen to be fair to all. As a matter of fact, this employment equity bill is not for a visible minority; it talks about a designated group that has been shut out and that we will try to bring them into the fold. I think the government must get the message that this legislation is for all. I do agree with you on that.
There's a part I'd like you to expand a little more on. I don't have any statistics to back up my comment on this, but I've heard it from presenters. You say that small businesses that have 100 or less employees should be exempt. I've heard presenters stating that that's where those designated groups are really being victimized and not given the good opportunity to be promoted, to be recruited and have access to the workforce. While this one cuts off at 50, you're recommending 100. I said I have no statistical proof to see if the cluster is there. I strongly believe that what is good for the goose, which is the government, would be good for the gander, the private sector; that it should be all, because everyone wants to get the best and break down those barriers. Do you have any comments on that?
Ms Andrew: There is a very practical reason for the cutoffs at the level of 50 and 100 employees. From a statistical point of view, you need a cell of at least 50 to have any meaning at all, otherwise it's random. In a five-employee firm or whatever, if you happen to have one person who is a person with disabilities, that's not indicative of anything one way or the other. You have to have a pool in order for there to be any statistical validity. I think at least that was recognized here in terms of the goal setting and how that would work.
We believe that for consistency with the federal legislation, a cutoff of 100 employees would be a reasonable one. We believe that the best work in employment equity can probably be done through the helpful initiatives; for example, a voucher system that would assist a person with a disability to apply for a job, knowing they have a voucher to help pay for an expensive accommodation. We think there are all sorts of creative things the government could be doing to advance employment equity in those firms which do not rest on legislation and regulation in a punitive way, and this is our argument.
Mr Curling: You made a comment on one other aspect I'd like you to enlighten me on. You made passing comment about a larger bureaucracy and duplication. You didn't use that term; you said your office continues to recommend that employment equity authority be housed as a small unit within the Ministry of Citizenship.
I said there's a lot of equity commissions out there: the Pay Equity Commission and the Employment Equity Commission, and the Human Rights Commission has dealt with certain parts. I see Human Rights having its role, but there is a lot of equity commissions out there. Do you feel that having one equity commission dealing with things like pay equity and employment equity would be much more be effective? If legislation is not effective and enforceable, we'd be better off not having it at all, and if we don't have a bureaucracy that can attend to the issues, as you mentioned, about having clear, defined, definitions in here so that employers understand what they are doing and employees understand it. Do you want to make any comment about the large bureaucracy that may be created without being effective?
Ms Andrew: Our concern is mainly on the subsection 11(2) requirement for each covered firm to file a certificate, and then we read in the regulations that the form required by the commission will include an element of reporting in terms of the representation of designated group members. We think that implies that the commission will build its own statistical database or, the alternative, it could use that for ordering its enforcement agenda.
In either regard, we believe it unnecessary for the Ontario government to be tracking statistics separately. We have a federal statistical bureau, and there are other surveys which will show progress over time as to how the legislation is working. We think it's incumbent on our governments now to work together to economize on resources. If the census, for example, doesn't cover the kinds of information Ontario wants, there should be an effort to work that out, to get the kind of breakdowns Ontario needs. It's simply unacceptable now for governments to set up their own separate bureaucracies for these kinds of things.
As for your suggestion that there be one equity place where people can approach no matter what their complaint, this is something we have not yet put to our members; we have a democratic process where we put policy issues forward to our members for their vote. Once that particular proposal gets a little more developed -- and this isn't the first time I've heard it -- perhaps it could be considered.
I would say that given the confusion over the role of the commission and what it's supposed to be doing, whether it's educating, laying orders, laying a complaint before the tribunal, all of that would suggest that there is some real serious thinking to be done on the structures for this sort of thing.
But we would be loath to recommend, for example, that it all be housed under the current Pay Equity Commission because our members have significant problems with the way that legislation and that particular body are operating at the present time.
Maybe the idea of having an equity place is an appropriate one, but it would certainly have to be seen to be a balanced place where employers also could feel they had a fair hearing and fair chance to explain their side of the story. It couldn't be a place that was without regard for small employers particularly, zealously pursuing certain objectives.
Mrs Witmer: I would concur with your indication that it's absolutely essential that the government take a positive, forward-looking approach and that the focus needs to be on the positive, needs to be on encouraging, needs to be on providing incentives rather than the punitive. It's time to get on with that particular job.
What type of opportunities are there going to be within the individual business community that you represent in terms of employment? Have you done any surveys to indicate what type of new hiring there will be in the next number of years? The one concern I have, listening to the individuals who have come before this committee, is that there really is the expectation that there will be tremendous change that occurs. What I'm hearing is that we're not going to see much change in the employment community because there are no new jobs being created and there's really not a lot of movement. I don't know if you've done any surveys.
Ms Swift: We haven't recently. Actually, we're just about to do one, so about three months from now we'll have some more up-to-date data. But it is obviously a concern generally, for firms of any size. Unfortunately, however, when we look at the last 10 years, say, and we look at job creation retrospectively, here in Ontario it was quite significant relative to other countries and relative to other provinces, and yet if we look at the legislation-regulation costs that were successively imposed on business over that decade we now find a real reticence on the part of our members, who are the job creators if anybody's going to be, to hire: "Gee, if I hire a person at x dollars, whatever it may happen to be, I can add another 30% in costs, payroll taxes etc" It's not all provincial -- some of it's federal and some of it's provincial -- but the cumulative cost factor is so high now. This is a major problem.
The whole notion, looking at it in context, and looking at all these issues in context is very important, the more we lay on employers in terms of costs, the less job creation we're going to have. It's an overall consideration of real seriousness.
Mrs Witmer: What was your opinion of the individual who was here before, who suggested that there be a provincial tax credit provided to assist someone like himself in accessing employment?
Ms Swift: Actually, he sounded very practical and sensible, and I think probably had some knowledge of business from what he was saying. As Judith mentioned, we've had members who had to spend quite large amounts of money to accommodate someone in a wheelchair, for example, or something. It's not unlikely that that's going to happen -- it's certainly happened in enough large work places -- but that can be punitively costly for a very small employer. The notion of a tax credit is a very strong motivator. He was quite right in saying that taxes are a big hot button; they certainly are among our members. Again, in terms of the stick versus the carrot approach, carrots win every time. The notion that to keep hammering people is really going to be successful in changing their hearts and minds usually doesn't wash very well.
Ms Andrew: I would just add that there is a proposal floating around and some discussion of the concept of a levy-grant scheme to assist with accommodating people with disabilities. Again, levy-grant schemes as they impact on small business are very punitive. It tends to be that the large firms get the grants because they know how to work the system and the small firms get the dubious pleasure of paying all the levies, so we don't believe that something like that should be a self-financing scheme with a levy arrangement.
Ms Swift: The tax credits are much more equitable. Everybody complies with the tax system in one way or another, so it's much less restricted in terms of access to a tax credit type of approach.
Mrs Witmer: So it would be a fairer scheme.
Ms Swift: A refundable tax credit kind of situation? Yes. We actually recommend those in many instances.
The Chair: You have 30 seconds left, Ms Witmer.
Mrs Witmer: I'm just going to summarize. You indicate there's a real need for education, and I think we hear that from everybody. If this bill is going to encourage support and cooperation from all people in this province there's a real job that needs to be done, and that's in the area of education. So thank you very much.
Ms Swift: I'd just add briefly that people say nothing's happened to date or that so far it hasn't worked, but we would argue that, first, quite a bit has happened to date, but also we don't think we've seen the kind of practical education. We as an association do and I'm sure other associations do a fair bit of it with their members. If people are led to practical solutions we find they will take the opportunity, and I have seen very little material out of the Ontario government or any other government that was really practical at the small business level directed towards employment equity. I think a lot more of that is definitely in order.
The Chair: Thank you for the submission you made, and thank you for participating in these hearings.
This committee is adjourned until 1:30.
The committee recessed from 1234 to 1339.
ONTARIO PSYCHOLOGICAL ASSOCIATION
The Chair: I call the meeting to order. I call upon the Ontario Psychological Association to step forward.
Mr Mills: I've decided not to ask any questions.
The Chair: That'll help. We'll keep on time then.
Ms Akande: Is that a promise? Get it in writing.
Dr Beth Mitchell: Mr Chairman and members of the committee, I am Dr Beth Mitchell, president-elect of the Ontario Psychological Association and chair of its legislation committee. With me is Dr Brian Usher, an industrial-organizational psychologist and managing director of Saville and Holdsworth Ltd, which specializes in professional human resources assessment products and services.
The Ontario Psychological Association is the voluntary organization representing the profession of psychology in Ontario. Our membership of approximately 1,400 includes psychologists, psychometrists and graduate students in psychology.
The Ontario Psychological Association welcomes this opportunity to comment on Bill 79 and the proposed employment equity legislation. We wish to emphasize that we strongly endorse the concept of employment equity and fairness in all areas of human resources management.
Dr Brian Usher: As a little bit of background, in preparing the presentation, we have solicited input from a number of our professional colleagues. These individuals, from both academic and consulting organizations, serve a range of clients in both private and public sectors. In particular, Sue Tench, past president of the OPA's section on industrial-organizational psychology, has been quite instrumental in gather the various data that we've used in compiling the brief.
Having reviewed the proposed employment equity legislation and the draft regulation, we feel that it would first be helpful to bring to the committee's attention some of the areas where we think further clarification and definition may be required. These concerns pertain mainly to the statistics that will be used in determining the composition of Ontario's population, the logistics for implementing employment equity and the definitions of target group membership.
Some of these points have clearly been addressed in previous presentations and, in mentioning them today, we just feel we'd like to reinforce the issues. Later, we'd like to make some specific comments and recommendations as relates to the current and future practices of employee selection and promotion based on merit. We feel that this issue has not been adequately addressed and does require some consideration.
(1) Population statistics: It is our understanding that the 1991 Canada Census figures will be used for determining the percentages of working-age, target-group members among the Ontario population. There is ample evidence that the demographics of Ontario and the workplace are changing dramatically, and given the present reported levels of immigration to Ontario, it is felt that 1991 Canada Census data are outdated and would not provide an accurate picture of the composition of the population.
Recommendation: Perhaps the Canada Census figures could be augmented or updated with information from other sources, such as organizations representing the various target groups. I believe this need has been addressed in your discussions and several recommendations made along these lines.
(2) Implementation logistics: In discussions with HR professionals, there has been a great deal of concern about the administrative aspects. The hiring of target-group members may represent an extremely difficult task because in each employee selection and hiring decision, in addition to job-related selection criteria, at least four demographic factors have to be considered: the target group member's geographical representation in the employer's community; the occupational group within the employer's workforce; the salary levels within the occupational group; the person's gender.
Furthermore, these same considerations would apply to all types of positions, whether full-time, part-time or seasonal.
Recommendations: It might facilitate matters if these multiple hiring requirements were phased in over time and not introduced all at once. It has also been suggested that a central registry of target group members who are available for employment arranged by registrants' geographical area and job skills and interests would be of assistance to employers.
(3) Target-group membership: The workforce survey, which is to serve as the foundation for an employer's employment equity program, presents some concerns, as has been highlighted by several of the previous presentations to this committee.
In particular, the use of self-identification may be problematic, particularly in view of the definitions for "racial minority" and "persons with a disability," which contain subjective elements. Whether people include themselves in a target group depends to a large extent on their perception of not only their status but the world around them and how they perceive other people's reaction to them. An analysis of an employer's workforce, solely based on self-identification of employees, could therefore easily result in a distorted profile, either exaggerating or minimizing the presence of target-group members within the workforce.
Recommendations: We feel that this problem needs to be addressed in order to find a way to correct at least the most glaring discrepancies between statistics derived from self-identification and more objective measures. For instance, a member of the Employment Equity Commission could visit the employer's premises and serve as an impartial observer.
It has also been pointed out by other groups that the success of self-identification seems to hinge a lot on the education and communication programs, so this seems to be a fairly important element, particularly given that the resurveying, as you discussed yesterday, is quite costly.
Now to the issue of merit and employment equity: Our main point, as psychologists, is that employment equity, in order to be fair to all concerned, must offer the same employment opportunities to all people of working age in accordance with their abilities and job qualifications. It has been stressed that the concept of merit is implicit within the legislation and therefore has not been referenced in any specific detail.
As well, many organizations have suggested that their current practices of hiring and promotion are based on the merit principle, and they support employment equity in this context. It raises the question, do we really know what we mean by merit? What procedures do employers currently use to identify merit and talent? As Judy Rebick stated yesterday, if merit were really used, would we have a problem at all?
In our professional context, and this position is supported by decisions by the Canadian Human Rights Commission, we feel that the matching of people to jobs, that is, selection and promotion, on the basis of merit and talent can only be done accurately, objectively and fairly when the employer has properly conducted a job analysis which documents the skills, knowledge and abilities which are critical to the successful performance of a job in the context of a particular organization. It is important that we not lose sight of the job side of the equation. Without making objective and comprehensive information about the job itself available, the ability to make well-informed and fair selection decisions based on merit will be seriously compromised.
Systematic, rigorous and documented job analysis is therefore of central importance to the issues of organizational productivity and employment equity. It plays a central role in the development of a fair, objective and merit-based approach to all human resource management functions from recruitment through to training, career planning, job design, team building, performance appraisal and the compensation.
Unfortunately, a recent small exploratory study that we've conducted of 38 Toronto employers revealed that only 5.3%, two employers, were basing their assessment and selection methods on any form of systematic and documented job analysis. This kind of data supports the view presented in the preamble to Bill 79. Clearly, a number of organizations have a long way to go to develop legally defensible, bias-free hiring and recruitment practices.
Recommendations: I'm not sure whether this is with regard to the bill or to the regulations, but we think there would be clear advantage with respect to policies and practices on hiring, promotion, training, termination and compensation to have some form of guidelines on employee selection, perhaps along those as developed in the US, such as the Uniform Guidelines on Employee Selection. We would take the view that employers do need education, and that has been cited in various presentations.
Guidelines would highlight the importance of job analysis procedures in addressing the full range of human resource management functions, as well as the importance of valid and reliable selection measures such as structured interviews, tests, work samples etc. While not necessarily legally binding, such guidelines could serve as a primary reference for decisions by the Employment Equity Commission and Tribunal. Such guidelines could also assist employers in reviewing the adequacy of these current practices they cite with regard to merit.
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The Ontario Psychological Association believes that industrial psychologists, working in concert with human resource professionals and legislators, can make a significant contribution in developing such guidelines and ensuring the successful implementation of employment equity. Some organizations may decry the need for further government regulations and cite the negative impact on competitiveness and productivity. However, we believe there is a clear business case to be made for improved selection based on more accurate, objective and fair matching of people to jobs.
Additionally, in terms of matching people to jobs, psychologists, along with professionals specializing in rehabilitation and ergonomics, could be of assistance in job redesign and the accommodations and training of persons with disabilities.
In summary, the Ontario Psychological Association feels that industrial psychologists have a valuable contribution to make in terms of implementing employment equity in such a way that all parties to employment equity -- target group members, existing employees and employers -- feel that the human resources policies and practices are fair and non-discriminatory.
The Chair: Five minutes per caucus. The official opposition, Mr Curling.
Mr Curling: I was going through your presentation here rather slowly because I felt there were certain comments made, and I think I was getting some notion of the fact that to open up and to allow these designated groups that are seen to be, or the statistics have shown have been shut out of workplaces because of some bias of some sort or some systemic discrimination -- I got a feeling here, although I haven't gone into details about your recommendations, that it implied a notion that if you do that, somehow the employer will be compromising the situation of merit.
I take a different position. I take the position that there are many qualified people who are shut out because of systemic discrimination, and to remove those barriers, as a matter of fact, the employers would not be subjecting themselves in any way to compromising merit or ability. As a matter of fact, it's quite possible they'll be getting better merit, if you want to call it that, or better performance. Did I get that kind of drift in here? Maybe I didn't finish it. I get it somehow that they feel they are compromising their situation seriously, should they open it up, so we have to be extremely certain that we look at all the job descriptions carefully and educate the people properly to know what they're coming into. I'm saying there are qualified people out there who have been shut out systemically. Did I get that drift?
Dr Usher: Let me try to answer, and then you can see if I'm on the same track. I think the whole area of job descriptions needs improving. There's been previous comment about the job descriptions being inflated. In terms of our work with organizations, there's clearly a lack of understanding about the qualities that are required to perform in certain jobs. The notion that certain height requirements or weight requirements might be required or that a certain educational degree might be required, employers are still having difficulty in translating that into the necessary knowledge. They're focusing more on the certification side of it.
I think it would ease the circumstances for the various target groups if the employers in fact had a better understanding of what it is they're looking for to fit the job, and currently they don't. I think there is a major area. We're talking about systemic discrimination where the lack of information about the job itself contributes to all sorts of discrimination. I don't know if I'm on track with you.
Mr Curling: It helped a bit. But some of the presenters who are on the business side will come and make their first statement, "It makes good economic sense to have employment equity." In other words, it makes good economic sense to allow those who have been shut out, those designated groups, inside, because they can produce. They've got talent, and whatever the "merit" definition, the fact is, it translates into profit, so good enough economic sense. But yet it is not done. I presume that's where you're talking about the education.
Therefore we have to have legislation that is very clear and precise. If violated, would you say we should penalize, in other words, should there be some strict fine that should be put there to say you cannot do this? There is some resistance here, that fines should not be very heavy because if it's too much of a big stick -- so I ask the question: Legislation has to be quite defined not in regulations where we kind of have to pull it out to find out what's the right definition, and the fining system should be such that it would tell one, "If you should do that, you shall be fined severely."
Dr Usher: Yes, I think, in terms of behaviour modification, it makes very good sense that you specify exactly the behaviour you're looking for and what the punitive elements will be specifically to that behaviour. Broad-brush statements such as, "Thou shalt not discriminate," don't necessarily achieve that. I'll come back to it: I think there's an education problem in that the employers and all of the agents along the lines of, say, the human resource departments do not have a clear linkage between the job and the people. If we can help them have a clearer understanding of what should be required in a job description -- documentation is important -- what are the kinds of human attributes and requirements that link objectively to jobs, we could go a long way in helping them make the right kinds of matching.
Mr Curling: Are you saying the legislation put too much emphasis --
The Chair: We've run out of time, Mr Curling. Sorry.
Mr Jackson: I find the brief very concise. I have no questions if Mr Curling would like to use up some of my time just to complete his line of questioning.
Mr Curling: Thank you very much, Mr Jackson. Do you feel that the legislation put too much emphasis on the employer and there is much more that the government can do to bridge that access? Because there are a lot things to be done in order for those who need that support to come into the workforce. In other words, we talk about day care, we talk about transportation for the disabled and many things like that, putting the burden on the employer. On reading the bill, did you see that as a hindrance somehow, or resistance that we place in the armpit of the employer?
Dr Usher: Not really. What I think is the need for greater specificity; it has to go further. The "further" is not to say increase the fines or decrease the fines or whatever that might be. That's certainly outside my realm in terms of commenting. I think it's clear guidelines as to what is expected in the issue of selection and that it not be just captured in some vague term such as the merit principle. Various groups have come here and been quite incensed that we talk about this merit principle. I don't think anybody really knows what the merit principle is in actual practice.
You call for an examination of the practices that organizations are using in selection. I think we should have some criterion for judging what are effective selection practices. Hence, we highlight the tremendous importance of job analysis procedures as the documented record for explaining to all concerned that these are indeed valid criteria for selection.
Mr Curling: Going back to the merit, you said it's not good enough to say merit is implicit here; it's understood. We thought that fair play was also implicit --
Dr Usher: Exactly.
Mr Curling: -- and somehow it didn't happen.
Dr Usher: Right.
Mr Curling: So, in other words, to put it clearly in there. There seemed to be some resistance on the government side to say: "Come on, we love you all. You know we love you and we know that this will happen." But we want to say that "implicit" means to be written inside.
Dr Usher: Okay, with a condition. I think people have come forward and said: "Let's acknowledge it in policy. Let's acknowledge merit as a policy." I'm saying let's specify it as a practice. There's a big difference between policy and practice. Having worked in this sector, I know what the differences can be. I'm saying there could be a strong argument for specifying the practices and what would be expected at that level.
The Chair: Ms Carter and then Ms Akande.
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Ms Carter: Thank you very much. I'm really glad that you have focused on the merit principle in this way. Other groups have told us that merit has not been practised in the past. I think we all really know that. There have been all kinds of other criteria whereby people have been hired. It's been suggested that like tends to hire like. In other words, whatever group of people is doing the employing is likely to hire the people who most resemble it regardless of whether it is more or less capable of doing the job.
I think in a sense it's implicit in the bill that if people are being discouraged from using irrelevant criteria, which is what membership of these groups is, to that extent they will be forced into looking at what are more relevant criteria. I think you're absolutely right that this whole question will have to be looked at. I think this bill is going to encourage employers to do that, because they're going to say: "You know, we have to look at something more solid, more real now, so what is it? We have to find that out."
Certainly, being on this committee has been a great education in how you can't judge people by their appearance, by the sort of superficial things. I want to link that up to what you said earlier on, that you were afraid that hiring is going to be very complex because people are going to have to take so many criteria into account. I put it to you that if you've got a good job description and you then assess each applicant for the job on the basis of that and hire the best one, according to the law of averages or chance or something, you're going to end up with a fair mix of the people who are presenting.
I don't envisage that people would be looking at their little list of who they've got and who they needed to get in every case. I think, if they just kept employment equity in mind and the general direction in which they wished to go and then hired the best person for the job in every case, all they'd need to do would be just to see how they were progressing every so often and maybe compensate a little if they were diverging. I don't see that as a problem. I wonder what you would say about that.
Dr Usher: I can't really disagree. What we were trying to do is represent a spectrum of views that had been presented by our membership. On that particular point, I go back to the original assumption which you stated: if the job description is accurate. I think we have to hone that up, otherwise we can be focusing on this kind of issue and it can be all over the map. But as you stated it, I wouldn't find any fault with it at all.
Ms Carter: If you've eliminated irrelevant criteria --
Dr Usher: Exactly.
Ms Carter: -- then one would expect, if you believe, as I do, that all these groups are equally meritorious, then you should end up with a fair representation. I think what we're really looking at is not a slavish adherence to some formula but a change in attitude.
Dr Usher: Yes. To carry it a bit further, I think if one has a better understanding of the job and what that job requires, one can in fact attract a larger pool of qualified candidates because the communication of what's required can be expanded.
Ms Carter: Yes.
Dr Usher: That's what we believe, that greater accuracy -- you get away from these advertisements that are so vague and it looks like God himself could not do the job.
Ms Carter: Hopefully, the qualified people from all sectors of the community would come forward so that there would be a bigger qualified pool.
Dr Usher: I apologize for that gender-specific reference in terms of a deity, okay?
Ms Carter: Okay. Thank you.
The Chair: I'm sorry, we've run out of time.
Ms Akande: You've run out of time?
The Chair: Yes. My light is on.
Thanks very much for the submission you made and thanks for the psychological perspective that you brought to these hearings.
Dr Usher: Thank you.
MARY CORNISH
The Chair: I would call on Mary Cornish. Welcome, Ms Cornish. You have a half an hour for your submission. I see it's rather lengthy, so you'll have to assess what you want to cover or at least summarize in order to be able to leave questions and answers to the members.
Ms Mary Cornish: I gather I should be speak about 15 minutes. Is that fair?
The Chair: I would recommend that.
Ms Cornish: All right. I'm a lawyer who has been working in the field of labour law and human rights for approximately 18 years. I also chaired the Ontario Human Rights Code Review Task Force which reported on ways to effectively enforce human rights in Ontario. I was also the cofounder and principal lobbyist for the Equal Pay Coalition which lobbied for pay equity legislation, and I've been involved in litigating some of the major cases under the Pay Equity Act. So I hope to bring a variety of those perspectives to what I have to say today.
It's my view that mandatory employment equity legislation in Ontario is urgently needed and long overdue. In my experience in 18 years in the field, calls for such legislation have been made consistently over that period of time. I have also seen and heard firsthand the experiences of workers who consistently face widespread and deep-rooted discrimination. Discrimination against aboriginal peoples, against racial minorities, persons with disabilities and women, in my experience in terms of dealing with these issues, is entrenched in workplaces. As well, because of the experiences our firm has had involved in issues dealing with lesbian women and gay men, we're also aware that discrimination with respect to people whose sexual orientation is put at issue is another area that has to be addressed in legislation. So there is a variety of reasons why I believe the legislation must be brought in.
What I'd like to bring are a number of different perspectives to this.
The first perspective that I'm quite concerned about is that in my experience as a labour lawyer and in terms of a lobbyist, I'm very concerned about attempts to weaken the bill. When I've had the practice of attempting to actually implement bills that had been put forward, in my experience, unless they're fairly clearly worded and strong, it is difficult to do so. So I urge you to reject arguments by employers either that there shouldn't be any legislation at all or that they should be left with many powers themselves to determine how to do it. In my experience, when they're left with that kind of discretion, employers use it to their advantage and do not use it to the advantage of discriminated-against groups.
An experience I can indicate in that respect is that when we were lobbying for pay equity legislation -- we spent a good long period of time doing it -- over that period of time, employers consistently said that there either shouldn't be any legislation because they were going to do it voluntarily, or, if there were legislation, it had to leave them to manage the process. Over all that period of time, the wage gap widened while we argued about whether there should or shouldn't be legislation and what it should contain. Even when we got the legislation, the legislation was weakened in a number of respects, both in terms of coverage and in terms of what employers were required to do. To the extent that it was clear, many women benefited from it because finally they were actually directed to do something, but because of coverage issues, many women, particularly those with disabilities, racial-minority women -- a number of women who were excluded from coverage didn't get access.
We have the time here to make this piece of legislation both inclusive and effective from the start, and I urge you to do that.
The other arguments that I urge you to reject as you're dealing with submissions are ones which say that actually the bill is draconian and the kinds of things you're being asked to pass are in fact unheard of. In terms of my perspective as a counsel in the courts, I can tell you that what's in this act is something that the Supreme Court of Canada in its rulings has been calling upon employers to do for years. So I've included in the materials a series of decisions which make that clear. I think it's very important to understand this, because I'm sure people come here and say, "Gee, this is just amazing, to have to have any form of restraint on our employment practices."
You'll see, for example, that the Supreme Court of Canada, in a case called Action travail des femmes v CN, in 1987 ordered a mandatory hiring program of quotas. It ordered that against CN because it found in that case that they had systematically excluded women from certain labouring positions and trades positions within the CN yard in Montreal. In that decision, it is quite eloquently argued, all of the arguments people make about employment equity, and it argues in favour of them. This is the highest court in the land talking about why it is actually necessary to take specific steps, which may be different treatment than other people, but are the only way that in fact women, for example, in that situation were actually going to be able to be effectively employed in CN. I'm not going to go through and detail that reasoning, but it's contained in the materials. I think you'll find it useful, because employers, even apart from whether you pass the Employment Equity Act, have these obligations. Unions have these obligations.
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What the Employment Equity Act does is in fact prevent all the individual employees who suffer discrimination within workplaces and all the people outside of workplaces who can't get in from having to individually litigate whether they're being discriminated against each and every time, and all of them litigating. That's what the Employment Equity Act does. It recognizes that systemic discrimination exists and it then requires employers to be the ones who take the initiative and do something, as opposed to leaving all these individuals out there, like the women at CN spending years and years attempting to litigate that they actually were discriminated against. So I think that's an important context to look at this issue in and to understand that these kinds of obligations are ones that are being imposed in order to achieve some fairness and are consistent with the rule of law in the country.
The next issue I'd like to address is an issue that came from the task force report, which is legislating for one equality rights tribunal. The task force recommended that a single tribunal be set up which would be composed of the Pay Equity Hearings Tribunal, the Employment Equity Tribunal and the Boards of Inquiry office under the Human Rights Code. I've attached to this submission the excerpts from the report that deal in detail with how those interrelated tribunals could work in one tribunal. Although a year has passed and I certainly haven't heard anything of whether or not the task force recommendations are going to be implemented, I can say that we still appear to have an Employment Equity Act that is calling for a single tribunal. It's my view that a tribunal that was composed of all three would be more effective in all of the areas, but particularly also would be more effective in the employment equity area in terms of actually achieving both a better result and also a more cost-effective result.
There are a number of reasons for that. The first is that a variety of the equity issues actually overlap. The second one is that both employers and the persons who have been discriminated against would then have actually one body to have access to. It would also avoid confusion and duplication. I've spoken a little later, and I'll refer to it right now, that one of the other issues that's dealt with in the Employment Equity Act is the issue of the interrelationship between the Human Rights Code and the Employment Equity Act. My recommendation with respect to that is that it has to be amended to make it clearer that people's current equality rights under the code are not going to be diminished by the Employment Equity Act. I'm concerned that the current wording in fact may well diminish it.
If, for example, now somebody files a complaint under the Human Rights Code and an employer alleges that it has a plan which covers it, under the current provisions, the complaint is immediately referred to the Employment Equity Commission. One of the defences that can then be used at that point is that the employer is making reasonable efforts to work on the issue, whereas if you proceeded with the complaint under the code, reasonable efforts are not sufficient. The test, for example, under the code with respect to disabilities is whether or not there has been accommodation to the point of undue hardship. So I have a grave concern that the rights of people under the code are going to be diminished, and you need to address that by making it clear in the act that they're not.
The other issue is that that's a very good example of how a joint tribunal could work. If you in fact did have that problem and somebody files a complaint under the Human Rights Code, in my view what should happen first is that an adjudicator in this joint tribunal would determine whether the person's equality rights under the code had been infringed. At that point, if the employer says, "They may have been, but look, I've got an employment equity plan that's going to deal with it in year 10," let's say, and the person says, "I'm sorry, I need access in that workplace in year 1; I can't wait till year 10 for this," you may then have a potential conflict between individual rights under the code and collective rights of people for employment equity within the workplace. If you had a single adjudicator who had experience in both human rights and employment equity issues dealing with that complaint, you could have them adjudicate both entitlements under both the code and the Employment Equity Act. That would not leave the parties in the position where they had to have, potentially, different tribunals involved in adjudicating the issue. That's just a particular example, but I think it is a potential example which could cause some difficulties unless it's dealt with.
The other issue I'd like to deal with is coverage and timing. In my view, there is ample evidence of the discrimination. The discrimination occurs in all Ontario workplaces. The Ontario Human Rights Code provides no exemption to the number of employees in the workplace. I had grave concern when the Pay Equity Act started to make these exemptions based on how many employees you have.
Discrimination does not work in that way. It doesn't say, "I'm gonna land in a place that has 100 and more employees and I'm not gonna go under 100." That just isn't how it works. In fact, it probably works in the reverse, that there is more discrimination in smaller workplaces than there may be in larger workplaces. There may be less exposure to better ways of managing in smaller workplaces. I also believe that those kinds of pieces of legislation which discriminate based on the number of employees offend the charter and offend international human rights obligations, which never refer to the number of employees in a workplace.
Secondly, the Ontario Human Rights Code covers all employees, including lesbian women and gay men, and doesn't make an exclusion for them. Under the Human Rights Code, you could currently order an employment equity plan that would cover lesbian women and gay men. So there seems to be no reason for its exclusion under this act.
The next issue is consultation with designated groups. My experience in terms of consultation -- and I think in the last while, we've all been consulted -- is that you can't merely say you're going to consult. The legislation has to say that you're actually going to address the concerns of the people you consult with. It's not enough to just say you're going to consult, because otherwise we can have elaborate consultants telling employers how to actually consult with the employees in their workplace without it actually ever coming down to the need for the employer to take the input and actually do something with it. In my view, employers ought to be accountable for providing some idea of, "This was the input we got and this is why we either rejected it or didn't," or how they particularly addressed the concerns.
The next is in terms of disclosure of information. I had experience at the Pay Equity Hearings Tribunal in terms of spending a lot of time attempting to get employers to disclose information. Currently, non-organized employees under the act are given only very specific, and I would regard as quite minimal, information in order to carry out their consultative role. Employers are extremely cautious about handing over anything more than what they're specifically told to do.
In my view, just as the union section says they get all necessary information, non-organized employees ought to also be entitled to the necessary information they need to have this consultation. Otherwise, the consultation may well be meaningless.
The next issue I'd like to deal with is enforcement. I'm very concerned that the current penalty is in fact only the $50,000. That's similar to the $50,000 in the Pay Equity Act. The task force recommendations called for an amendment to the Human Rights Code to increase it to $200,000. Environmental protection legislation has similar amounts of fines at that level. In my view, human rights legislation should attract no less a penalty than what would attach to harm to the environment.
I've already dealt with the issue of the relationship between the code and the Human Rights Code.
Again, in conclusion, I would just urge you as you listen to submissions -- I know you'll have heard many of them, but listen most closely to those from members of the designated groups and those from the unions that they represent. They've fought long and they've fought hard to get the legislation, and you'll have to be concerned and, in my view, quite sceptical at this point as to what employers may tell you about their inability to carry out their obligations under the act.
The Chair: Thank you. Mr Jackson, five minutes.
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Mr Jackson: Ms Cornish, your works are well known to this committee, and I want to ask you to go back to your task force report. Did you ever receive a formal response to your report and its recommendations?
Ms Cornish: No.
Mr Jackson: Did you ever have an opportunity to meet with the minister or ministers of government to discuss your recommendations directly?
Ms Cornish: I had a brief meeting with the minister last August, but we did not discuss the report in detail, no.
Mr Jackson: In your view, those elements of your report which address employment equity, to what degree were they listened to in the final product of Bill 79 as it is before us?
Ms Cornish: The only part of the report that really dealt with employment equity directly called for the tribunal to be a joint tribunal, and the current sections in the act, as you can probably see, have a fairly barebones tribunal, right? It doesn't really say much about what it does. I don't know whether maybe they were hoping later they could amend it to include a joint tribunal, but as it stands it doesn't respond.
Although I had some input with respect to the current section that deals with the interrelationship with the code -- I identified that as a problem at the time. I can't remember; the section is at the end of the act. But I don't think the current wording of the section addresses it sufficiently, and I think it's quite an enormous problem.
Mr Jackson: I get a strong sense of that in reading your brief and then listening to you present it as well. Did you have an opportunity to pursue that element of the joint tribunal with the minister in your meetings with her? It was not raised?
Ms Cornish: No, the meeting was not dealing with that, and I'm still waiting for them to get back to me, I think it's fair to say.
Mr Jackson: Earlier today my colleagues in the official opposition wished to speak to people like yourself who bring with them a wealth of expertise in this area, and perhaps now we're seeing why some of the recommendations that are emanating from these organizations have not found their way into this bill.
I'm not speaking for my caucus, but I personally happen to believe that your recommendation has strong merit and resonates well with taxpayers, and as an MPP of nine years' standing, the number of similarities and the complaints that are emerging, to have a woman constituent who has multiple appeals occurring in various places in government is an absurdity of the first order.
I just wish to commend you for bringing some obvious thought into it, bringing it in the form of a clear recommendation to the government. It's unfortunate that we won't have the facility to amend this bill nor the opportunity to ask the government why it has chosen not to pick up on it. It's not just saving taxpayers' money. You've set that out as just one of six reasons, as I read in your recommendations.
Ms Cornish: That's right.
Mr Jackson: I think it should really be pursued, and I appreciate very much your presentation today.
The Chair: Ms Witmer, do you have a question? There is time for one question.
Mrs Witmer: No, I'll pass.
The Chair: Very well. Mr Malkowski.
Mr Malkowski: Thank you, presenter, for your excellent presentation and for sharing this expert experience with us. I have a question related to the Human Rights Code itself where it talks about reasonable accommodation. Do you feel that this wording would help improve the employment equity bill? You mentioned employment equity, the legislation, and what it says there. How do you feel the wording in the Human Rights Code could apply to the employment equity bill so that there is a similar standard between the two? How could that be done?
Ms Cornish: I think the term "reasonable accommodation" could be used in the Employment Equity Act, but as I say, I think that what first needs to be done is that you address the equality right under the code. You would then determine, for example in the case of a claim for a disability, whether or not the equality right was infringed and you would determine that using the test of undue hardship.
It may well be that there may be conflicting interests as a result of other equality needs that are arising under the employment equity plan, and at that point you could have an adjudicator who could then weigh those two policy objectives and determine what is the appropriate way to meet the equality rights of all the people within that particular workplace. But I think the processes have to be separated and then brought together so that you're clear on what you are doing with respect to somebody's particular right.
Mr Malkowski: Just to follow up on that, a person who would use an interpreter, for example: Would that be under the Human Rights Code where it would deal with individual situations, or would it be partly reflected under systemic discrimination? Would the employment equity code be able to appropriately identify that type of discrimination?
Ms Cornish: For example, let's assume that an employee requires an interpreter in order to properly work within a workplace. An employee could in fact file a complaint under the Human Rights Code that the failure to provide the interpreter was a failure to appropriately accommodate that person in the workplace, and if the employer was found to be able to pay for that with the exception of it driving them into bankruptcy, then they would be required to do so. Under the Employment Equity Act as well, the lack of interpreters for individuals may be also considered to be a barrier under the Employment Equity Act. So it is potential that you may have an issue being raised both under the code and under the Employment Equity Act.
Because there is a complaint procedure under the code, you may well have people bringing that up before any requirement is on employers to actually take action under the Employment Equity Act. Right? I think that's where you get into the potential conflict between the two acts and where the employer may say, "I'm making reasonable efforts and I'm getting two interpreters in year five of my plan," and the person who's there says, "Well, I'm in the workplace in year 1 and year 5 isn't good enough."
Mr Malkowski: Just a final follow-up, if I may, do you have any suggestions to deal with that type of situation?
Ms Cornish: As I say, I think in that type of situation, if the person files a complaint under the code, an adjudicator in this new equality rights tribunal would determine whether their equality rights were currently being infringed. If they were, an order should be made, subject to an employer coming forward and actually saying there was some problem with meeting that accommodation need because of their obligations with respect to the rest of the employment equity plan.
Maybe I could put it into some better perspective. Let's assume that the needs of aboriginal peoples, the needs of women, the needs of racial minorities in that workplace may also require the employer in that particular year to expend a significant amount of money, and the employer says, "I can't do it all at once." I assume that may well be the argument that is made. The adjudicator then has to determine what action is required to be taken by the employer at that particular point, and it may possibly have to weigh the interests of both the person who requires the interpreter and the co-existing equality needs of other people in the workplace.
Mr Curling: Ms Cornish, we really appreciate your coming in today, I can't tell you how much, because yesterday afternoon when we attempted to get some enlightening views on this, when we made a motion to get the Human Rights Commissioner and the Employment Equity Commissioner here, and the Ombudsman, it was rejected by the government.
Mr Perruzza: Don't pre-empt her by playing politics. Come on.
Mr Curling: Also, we tried again to get maybe just the Employment Equity Commissioner, who actually I understand was supposed to have helped to write the regulations, here to enlighten us about some of the definitions, but that was turned down. Therefore, I'm not saying you are the next best thing, but you're just almost, the fact that you could answer some of those questions that troubled our minds.
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Ms Cornish: I'm actually happy to be back in private life.
Mr Curling: I know. An excellent piece of work you've done on the Cornish report. Mine doesn't have dust on it.
In my speech I did ask the minister if she could just comment on some of those recommendations. I think there are excellent recommendations there.
You have articulated very well and expressed better than I could have, because I have mentioned the fact about the tribunal that you have recommended, one tribunal system, having all these commissions all over the place and to get them under one umbrella. I think it will be much more effective, but I'm not quite sure that they will accommodate it in their amendments.
Seeing that Bill 79, the legislation itself which you speak about, is a bit weak or needs to be strengthened to be more effective, and the regulations attempt somehow to put some definition on it, do you have any comment about how we could have got some of the regulations' definitions or powers inside the legislation? Do you have any comments on that, where we would see better the regulations' specifications inside the legislation, in Bill 79?
Ms Cornish: I would certainly prefer for more of it to be in the legislation, because I always have a fear that when you have a regulation, the regulation can be changed without the proper accountability process that's involved in changing legislation. So I have a lot of concerns about so much of the actual direction being found in the regulations as opposed to being in the act. I would much prefer it to be in the act.
Mr Curling: I'm not quite sure if you're aware -- I'll be very short; my colleague wants a question -- that the Human Rights Commission is now attempting to make some changes -- that's what I understand from the commissioner -- almost adhering to some of your recommendations. It may be unnecessary for us to bring it forward again because they are now making some changes, the Human Rights Commission, changing the directorship and what have you, hoping to become more effective itself.
I don't know if they shared that with you or if you have followed it up, since you have such great interest now. There's no way we'd let you go, because of some of the recommendations you have given in your Cornish report. Do you feel that any of those changes will in any way assist the Employment Equity Commissioner? If you're aware of those changes, they are changing from I think a directorship of seven to a directorship of four.
Ms Cornish: I'm not familiar with the change. Nobody from the commission has spoken to me about this.
Mr Curling: I'm just hoping that some of these changes will assist in this very weak legislation to make the Employment Equity Commission more effective.
I'll bow to my colleague.
Ms Cornish: I'm afraid I can't help you with that.
The Chair: There's about a minute and 20 seconds left.
Mr Murphy: I'll use it all up then.
I have a question related to the conflict, I think, between the Human Rights Code and the Employment Equity Act, specifically around the different definitions of undue hardship and reasonable effort. The way the provisions in the latter part of the bill are drafted, it seems to me that if the bill is passed as currently written, it's possible for there to be a less onerous obligation on an employer to accommodate a disabled person in the sense that what the Human Rights Code requires is the undue hardship test and an obligation to accommodate up to that level.
The way the government is proposing it, it says, "If you're coming in with a discrimination that could be a plan issue, bump it straight over to the employment equity." They determine whether it's a reasonable effort. They have the plan, and if they determine it's a reasonable effort --
Ms Cornish: That's it.
Mr Murphy: -- that's it, it stops. It seems to me that "reasonable effort" is a standard that's much less onerous than "undue hardship." Do you agree with that?
Ms Cornish: Yes, and the other problem -- there are several problems. The individual person doesn't necessarily get the redress, the back pay, a variety of things. What's another interesting kind of thing in it is that if you have a plan, you get to have that as a defence. Let's say you're an employer under 100. If you don't have a plan or your plan isn't in effect yet, then you're still in the undue hardship test, because you don't have the plan as a defence. The larger employer gets the plan as a defence. It makes no sense.
Mr Murphy: I agree with you and I've raised that point a number of times.
The Chair: Mr Murphy, sorry. We ran out of time.
Mr Murphy: Oh, what a shame. Please come back.
The Chair: Ms Cornish, I want to thank you for the expertise, experience and knowledge that you've brought to these committee hearings. Thank you.
Ms Cornish: Thank you.
Mr Murphy: Bring the Employment Equity Commissioner and the Human Rights Commissioner with you.
DISABLED WOMEN'S NETWORK (DAWN)
TORONTO DISABLED WOMEN'S NETWORK (DAWN) ONTARIO
The Chair: The Disabled Women's Network. Welcome to this committee. You have half an hour for your presentation. I think you've seen how it works. Please use as much time as you need and leave as much time as possible for questions, and could you introduce yourselves for our benefit.
Ms Judy Koch: My name is Judy Koch. I'm on the board of directors of Disabled Women's Network Toronto. Presenting with me is Rafia Haniff. Rafia is on the board of directors for DAWN Ontario. On behalf of the Disabled Women's Network, we thank you for giving us this opportunity to present to this committee.
This is a joint presentation, DAWN Toronto and DAWN Ontario. Due to the tight deadlines, DAWN Ontario was not on the list to make a deputation to this committee. We are very concerned about the limited legislative consultative process regarding Bill 79. There are a number of community groups who wanted to make a deputation but were not allowed. Therefore, we hope that this committee will take this into consideration before making any recommendations.
Disabled Women's Network Ontario is a strong feminist voice of disabled women across Ontario. We firmly believe in and promote the principles of equality and self-determination for all women with disabilities. We are a cross-disability organization. DAWN advocates for the right of its members to ensure full participation in society. One of our fundamental purposes is to ensure equal access to employment opportunities for all women with disabilities. In addition, we work in coalition with other women's groups and disability groups. DAWN Toronto operates at the local level and shares the same philosophy.
DAWN fully supports and endorses the presentation to this committee by Disabled People for Employment Equity, DPEE. We are part of their coalition. We will be reiterating some of the points they mentioned, at the same time giving our perspective as women with disabilities.
Women with disabilities have historically been excluded from participating in the workforce. According to the 1991 health and activity living survey, HALS, in the disabled labour force, men are more likely than women to be involved, 59.8% compared to 39.5% for women. This is true for all age categories.
It has also been found that women with disabilities have a higher rate of unemployment compared with men with disabilities: 11.7% of men compared to 15.8% of women.
Women who are native and members of racial minority groups face a triple disadvantage in employment when they have a disability. It is not that women with disabilities do not want to work, it is the insurmountable barriers we face in employment, whether they are systemic, physical or attitudinal.
Women with disabilities face the same barriers that their non-disabled counterparts face: sexual harassment in the workplace, low wages and clerical ghettos. Women with disabilities also face the same barriers that all people with disabilities face: inaccessibility of the work site, low wages, gaps in support services for those who wish to work and misconceptions about the capabilities of people with disabilities. Therefore, being a woman and a person with a disability, we are further disadvantaged.
Ms Rafia Haniff: Women with disabilities are often steered into stereotyped occupations at an early stage in their lives, especially through the school system. Young girls with disabilities have lower-level educational expectations imposed on them. They are often told what they cannot do. The emphasis is on their disabilities, not on their potentials or abilities. They develop a lack of confidence in their abilities, low levels of self-esteem and assertiveness. There is also growing evidence that women with disabilities have lower literacy rates than other equity-seeking groups. Women living in rural communities, where resources are limited, may not be able to attend secondary school as the building may not be accessible or there is no accessible transportation.
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Disabled mothers are forced to stay out of the workforce because there are few accessible day care centres. Women with disabilities usually live on fixed incomes and would not be able to afford private child care.
Home working seems to be the new trend for people with disabilities. Home working is when companies hire people at home to work on a commission basis or a piecework basis. A lot of women with disabilities are trapped in this sort of employment because they see it as an easy solution to an accessible workplace, because now their homes become their workplaces, alleviating the problems of attendant care, child care and transportation. We see it as further isolation of women with disabilities, cut off from society, not given an opportunity to develop interpersonal and social skills as they would have in the workplace.
Society has a responsibility to hire us so that we can make a meaningful contribution to all. People with disabilities have fought hard for integration into mainstream society. What we need is strong employment equity legislation that would enable us to do this.
Some of the positive features laid out in Bill 79 are: The principles of employment equity, section 2, are well set out; workable compromise on seniority rights; self-identification for designated groups; and the establishment of the Employment Equity Commission and Tribunal. However, we can only give support to Bill 79 if a number of changes are introduced to make the legislation more effective.
The amendments to Bill 79:
(1) Definition of "disability": We agree with the definition of "disability." This is the definition used by the federal Employment Equity Act. It makes sense to use a definition that has been used in other jurisdictions. We recommend that the definition be moved from the regulation into the bill itself.
(2) Persons with severe disabilities: It has been recognized that Bill 79, in its present form, will not do much for that part of our community that has a severe disability or disadvantage. This is a major concern to women with disabilities and I underline: a major concern to women with disabilities. According to the health and activity living survey, among persons with severe disabilities, 22% of males were employed, compared to 15% of women with severe disabilities in 1991. Therefore, women with severe disabilities need more protection with this legislation.
When I talk about severe disabilities, I look at multiple disabilities, whether they fall into more than one designated group, issues surrounding the stigma that is attached to disability. For example, you might have a woman with a facial disability who has the brains of an engineer but, because of her facial disability and what society determines as beauty, would not be able to advance her career or get into a job like that because of all the systemic discrimination, attitudinal discrimination. So it really concerns us when we talk about severe disadvantage and severe disabilities.
We ask the question: How can we have employment equity legislation that does not cover the most disadvantaged people in our community? How can we justify denying women with severe disabilities employment, when their primary concern in life is to get a job and to avoid a life of poverty that is imposed on them in society?
A study done by the Neil Squire Foundation in August 1992 showed that the cost savings to government, when people with disabilities find employment, is over $350,000 per person every 21 years. Therefore, it makes good economic sense to have people with disabilities in the workforce.
There are several reasons why people with severe disabilities will not be helped with this draft legislation:
(a) Persons who have accommodation costs will find themselves at a disadvantage, especially for smaller employers who may claim undue hardship as a result of accommodating the person's need.
(b) If a person's productive capacity, even with accommodation, is not up to that of the average worker, an employer is not obliged to hire this person according to subsection 5(1) of Bill 79.
(c) Employers can meet the requirements of the legislation -- and this is extremely interesting -- and not have to hire one person with a severe disability. They may hire persons with a disability but they're not obliged to hire one person with a severe disability and that really, really concerns us.
In order for Bill 79 to cover all persons with disabilities as a designated group, it is absolutely essential that subsection 5(1) be amended to put an obligation on employers to hire persons with severe disabilities and people with severe disadvantages if the necessary supports are available in the community. Also, the need for special provisions for persons with severe disabilities should be acknowledged in the preamble of Bill 79.
Mandatory goals and timetables: Goals and timetables have been one of the most contentious issues surrounding employment equity. For many years employers have been implementing voluntary employment equity programs. Statistics show that women with disabilities not only have high unemployment rates but they are underemployed. These voluntary programs have not worked effectively for our community. Look at the OPS; people with disabilities lost 12% of jobs between 1989 and 1992. This is before the social contract and it was during a period of time that the OPS had in place an accelerated employment equity program.
Given these realities, the employment equity legislation must provide for mandatory quantitative and qualitative goals and timetables and, additionally, that there should also be standards. These standards will provide a benchmark to measure the effectiveness of the planning, evaluating and implementing of employment equity programs by the employer, while at the same time enabling the commission to objectively and effectively monitor an employer's progress and enforce compliance if necessary.
Furthermore, employers should be told clearly what the rules are or what formula to apply to set numerical goals and timetables. They must be told what they are obligated to do. To leave this to the discretion of "reasonable efforts" of the employer is to maintain the status quo. There will be no results for our community for many generations to come.
Enforcement: It is imperative that there be strong enforcement measures to ensure compliance with this legislation. The commission must therefore be given the financial and human resources to be able to monitor and evaluate the progress of employment equity programs on a regular basis.
On the issue of accommodations for people with disabilities, it must be clarified in the legislation. We will not go deeply into this issue because it was covered very extensively by the deputation made by Disabled People for Employment Equity.
The commission and tribunal shall be made up of a majority of designated group members. All designated groups should be equally represented. The same should be done for the commission's office.
Bill 79 and the Human Rights Code: The interaction between Bill 79 and the Human Rights Code is at this point very confusing and needs clarification. The Employment Equity Commission should address systemic problems in employment. The Human Rights Commission is better equipped to deal with individual complaints.
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It is the responsibility of government and employers to initiate change and to remove barriers that are keeping women with disabilities and other equity-seeking groups out of the workforce. No individual should be burdened with such a task.
Disabled Women's Network recommends that the Employment Equity Commission be responsible for addressing systemic employment issues and that the Human Rights Commission deal with individual complaints. We also recommend that there is cooperation between the Human Rights Commission and the Employment Equity Commission, because individual complaints may arise out of systemic issues.
Disabled Women's Network believes that employment equity legislation must be mandatory if we want to see the demographics reflected in the workplace. Employment equity is the key to independence. Meaningful work is an essential part of our lives, not only providing us the means for physical survival but also giving us feelings of self-worth, purpose and belonging. It provides us with a social environment and gives us value by demonstrating that we are productive, contributing members of society.
We hope that you take our concerns about Bill 79 and our recommendations seriously. We represent a community that cannot afford to wait much longer for equal opportunity in the workplace. We look forward to an effective, results-oriented piece of legislation.
Before we end this presentation today, Judy would like to share with you her personal experience in finding employment.
Ms Koch: I am learning-disabled and psychiatrically disabled. I was at Queen Street Mental Health Centre a few times. I'm also a diabetic. I have a BA in history, and also I graduated three years ago from George Brown College in community work with an honours certificate. I have done extensive volunteer work going back many years. I recently joined the board of DAWN Toronto. I'm also on the executive for DPEE, Disabled People for Employment Equity, and I'm a volunteer reporter for CKLN. I have done much volunteer work in the past, hoping to get a job through that, but I never was able to get a job even though I did a lot of volunteer work for different organizations.
I am 46 years old. For the past 25 years I have been looking for work. I was placed in a few sheltered workshops doing light factory work, but I can't get a decent job for decent pay. My skills and talents have not been used. I believe we need strong employment equity legislation now for people like me who are pushed aside by society.
The Chair: Thank you. Mr Malkowski, four minutes, and if there's time, Mr Mills after that.
Mr Malkowski: Thank you for your presentation to the committee. You mentioned the definition of "disability," and your concern was that it was not included in the legislation but under regulation. Looking at persons with disability who need accommodation versus those who do not need accommodation, do you think inclusion of the definition of "disability" would be helpful if it's included in the legislation rather than under the regulation?
Ms Haniff: Definitely. I think it should be in the legislation itself because it's very important. The regulations could be very easily changed with no accountability. That's why we need a strong definition. The definition should be included in the legislation.
Mr Malkowski: Just as a follow-up, could you tell me the difference, what you feel the benefits are of being in legislation rather than regulation.
Ms Haniff: The benefit of being in the legislation is that it's there, it's defined, it's law. If it's in the regulations, it's subject to change, and who knows what it would include.
Mr Mills: Thank you for coming here; it's not easy. I appreciate Judy sharing with us the 25 years of what must be an awful, frustrating period in her life.
It's my understanding that the cost of accommodating people with disabilities is not very high. I just want to know if you can share with us any experiences that you've had with that. Is that true, or am I up the wrong tree? Not having worked for 25 years, I guess it's not a very good question to ask you, but with your knowledge as a volunteer, have you heard?
Ms Koch: Once, before the legislation was passed, I wanted to get into a library technician course and they said I couldn't get into it because I wasn't quick enough with a typewriter. That was before computers. If I require a computer or something, it should be available. Most of the time, accommodation is very simple. If a person requires disks instead of reading material, they should be able to have them.
Ms Haniff: To follow up on that, in my situation raising the height of the desk was all the accommodation I needed. It didn't cost a lot of money, just some blocks under my desk to make it accessible for my wheelchair.
When we look at cost of accommodation, it's not only people with disabilities who benefit from accommodation; it's society in general. Indeed it is a cost saving to all in society when we look at the cost of accommodation.
Mr Mills: Thank you for coming.
Mr Curling: I want to thank you for your presentation. As you said, with the short notice, you'd hoped that DAWN Ontario would be here with you to present with you.
Ms Haniff: Actually, it's a joint presentation with Toronto and --
Mr Curling: Yes. One of the concerns you raised here is a concern we also raised earlier today, about the limited time for the consultative process in terms of this bill. We regard this as a very, very important bill and it's extremely important that we hear from all sectors. Some members on the other side feel that enough consultation has been done and let's get on with it. We are saying that there are lots more people to be heard, but we are being denied that; people are being denied that consultative process. Has the government extended any invitation to you for any consultation before this? There were consultations happening before. Were you consulted before?
Ms Haniff: Yes, we were consulted before. We worked very closely with the Employment Equity Commissioner's office in giving our feedback to the draft legislation. We are very concerned about the limited time and the rush, rush, rush that was done in terms of getting community groups to come forward to have their say as to what they feel about the draft legislation.
Ms Koch: DPEE and the Alliance for Employment Equity were involved of all stages of making this legislation, yet it still isn't strong enough. A lot of the regulations should be put into the bill itself to make it stronger.
Mr Curling: Am I hearing from you that although you have been consulted they have not listened? What about the recommendations you put forward? Do you feel they were sufficiently accepted and they listened to you? That's what consultation is all about. Mary Cornish came in, and she said it's nice to do all this consultation but it has to be more effective and has to be carried further, that it has to be listened to and acted upon one way or the other. Do you feel the recommendations you put forward were acted upon?
Ms Haniff: As I said in our brief, we hope that the recommendations we put forward today are taken seriously. In order for us to have effective employment equity legislation, I think it's very important that our voice is being heard. It's important that we have employment equity legislation that would not create a backlash. We want it to be strong enough so that the equity-seeking groups can benefit from the legislation. If it's not strong enough, then there might be problems with the legislation.
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Mr Curling: You mentioned something in your brief that was rather interesting. You said to go to reasonable effort is to maintain the status quo. Do I understand you to mean that if you ask the employers to say, "Here's what I will do," that things will not change? Therefore, are you asking for more defined features in the regulations and the legislation to know what "reasonable effort" really means?
Ms Haniff: Yes, we are. Who determines reasonable effort? Those standards must be in place and we have to have a standard before we can work with better legislation.
Ms Koch: If an employer doesn't have the money to make accommodations -- sometimes they don't -- they should be able to get money from the government to compensate for this. Undue hardship should not be used as a barrier, to say, "I can't accommodate because it's undue hardship."
Mrs Witmer: Thank you very much for your presentation. You've certainly demonstrated the obstacles that you have faced over and over again.
You've indicated that you have some concern about the fact that there hasn't been enough consultation taking place. Is that simply the number of groups that were not able to come forward?
Ms Haniff: Yes.
Mrs Witmer: I had expressed a concern this morning about what I perceive to be the impossible task to trying to take into consideration the three weeks of oral presentations as well as the numerous written presentations that we have received. Somehow, on Tuesday of next week, we are to come before this committee again with amendments for change. Personally, I don't believe it's possible and I'm very disappointed that the government, which has indicated to us time and time again that this has been a very thoughtful, extensive consultation, now seems to be imposing some very tight deadlines and time lines on this committee. We will never have an opportunity to see our discussion here today in print before those amendments come to us.
Do you want to just tell us briefly what type of backlash you anticipate if people don't listen to the concerns you've expressed today?
Ms Haniff: Employment equity is meant to employ people from the designated groups into the workforce. It is meant to give them an opportunity to express their skills, their abilities, that we can do the job. It's also to remove systemic barriers within the workplace. It's not only employment but is also training and promotion of the designated-group employee within the workforce. We can have members from the designated groups coming into the workforce, but if the employment systems review is not conducted, then what about the whole issue of the retention of people from the designated groups within the workforce? It's a major issue. In terms of getting people into the workforce, a strong employment equity bill must be in place with strong enforcement, with qualitative and quantitative goals, numeric goals and timetables.
Mrs Witmer: Let's take a look at the fact that, obviously, if this bill is going to be passed by the government and have any reasonable hope of success, there is a need for tremendous education: public education, employer education, employee education. What thought have you given to how that might occur? Who should have some responsibility?
Ms Haniff: I think the government should have some responsibility in terms of involving all members of society: the designated groups themselves, to educate them about issues of employment equity, because a lot of them don't even understand the concept itself; unions; people in the workforce; the general public itself, because I think it's a very important aspect. The whole education aspect is extremely important and conducive to an employment equity environment.
The Chair: Thank you.
Ms Koch: As far as education goes, there are other bills that have been passed, like pay equity. I mean, the fact is that the bill could be passed first before the public is educated and then you can go round trying to educate the public like you have on pay equity, for example.
The Chair: Thank you. We ran out of time. We appreciate very much your submission and we thank you for sharing your personal history with us today.
Ms Haniff: Thank you.
WOMEN'S COALITION FOR EMPLOYMENT EQUITY
The Chair: We call Women's Coalition for Employment Equity. We would like to welcome you. Some of you have been here before. You've seen the proceedings, Avvy Go. I don't know who's the spokesperson, but you might introduce the other people of your panel and leave as much time as you can for your presentation. You know there's a half an hour.
Ms Fleurette Osborne: Yes, we learned that lesson.
Here I am again, wearing the same hat but still a different hat. I'll say a little bit about the women's coalition. Before I do that I'd like to introduce Avvy Go, who is sitting on my right, and Sonja Greckol, who is sitting on my left. They will share the presentation.
The women's coalition is really not very old. Women from several groups got themselves together some months ago and decided that not enough was known or understood about employment equity. The bill consultations were coming up and we thought we should do some work, some education work, and have a broader discussion of Bill 79.
This was done in a conference at the end of May, and approximately 200 women attended that conference. Coming out of that conference was a very strong resolution from the women's coalition, and it was at that conference that they decided they would be the Women's Coalition for Employment Equity. The resolution very strongly supported the promotion of a strong, mandatory employment equity piece of legislation, a bill that would really address the inequities that the various designated groups share. That's a bit of a history of the women's coalition.
You have the brief, and we're not going to go into a whole lot of detail, but before we get into the content, there are a couple of issues that we would like to emphasize. The first one, and several other people have said this, is the consultation process. There has been a lot of consultation around this whole issue of employment equity, but we are a bit disturbed in a way that there hasn't been more time for more consultation around the amendments to the legislation.
You know, we look at a thing like the bill that has to do with the casino. They're moving into three or four places to give many more people the opportunity to say what they want to say about that bill. But with this one, as important as it is supposed to be, that hasn't been the process.
The other issue we'd like to emphasize is this whole issue of merit. Some of us who have sat around this room for the last week or so have heard bandied about the whole idea of merit. We see merit as very subjective, to begin with, because I don't know that there's a legal definition for merit. We also see it as a sort of an insult that people will say to us -- so many of us have gone through the same educational institutions, have come out with the same kinds of diplomas and certificates and degrees, then we're told, "You're not qualified." But who is qualified?
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The standards around merit are always very subjective. Yesterday we heard the firemen talk about the standards that they have for selecting people into the firefighters. We heard him say that, yeah, they screen out the majority of persons from the various designated groups. Then he went on to talk about merit, you know, his standards, and applying his standards to the merit principle. Now that seemed a bit ludicrous to us.
A couple of questions we'd like to pose: Is the merit principle prevailing, for instance, when job descriptions are tailored because someone wants to hire a specific person? Is the merit principle being applied when there are two or three competitions for the same position simply because the person who somebody wants for that position doesn't qualify for the position? Are we applying the merit principle when we use such terms as "somebody fitting into," "somebody being compatible," and this other term that gives me a lot of trouble, this whole thing of "collegiality"?
For us, employment equity does not erode the merit principle; in fact it enhances it, and if there were true merit applied, even if you just look at the law of probabilities, then the workforce would be altogether different from what it is.
We talk about standards and we are also recommending that there be very strong standards set by the commission. These are tied into the whole idea of merit, because to allow people to continue to choose whom they will hire, when they would hire and on what basis they would hire, with no guidelines, no standards, then, as some of the people have said, the status quo remains.
The other issue that has been raised repeatedly through these hearings is the one about systemic discrimination, and Sonja will address that.
Ms Sonja Greckol: Systemic discrimination is that discrimination that is the result of seemingly neutral practices which disadvantage designated groups very clearly. Those must remain the issue, centrally, in the legislation. It is the cumulative effects of these practices which result in people who are qualified not being hired.
Bertha Wilson's recent report on women in the legal profession has shown that even among very highly trained women, they are seriously disadvantaged professionally. These observations can be extended to other designated groups and would show even greater disadvantage if extended to women of colour or women with disabilities.
Judge Rosie Abella pointed out in her 1984 report that the playing field is not level for women, and certainly not for minority women or disabled women or aboriginal women in the Canadian workforce. NAC pointed out that in the Bank of Montreal, where women make up 75% of the workforce and have higher qualifications in general, they still occupy the lowest occupational ranks.
It is the cumulative practices of employers who maintain systems which discriminate systemically which result in widespread employment disadvantage and thus make individual acts of discrimination largely unnecessary. While the Human Rights Commission must continue to address individual acts of discrimination, mandatory employment equity must redress the effects of systemic discrimination.
Ms Osborne: Avvy will now very briefly summarize some of the contents of our brief.
Ms Avvy Go: You have heard Fleurette talk about the fact that people with merit are not being hired, and Sonja talk about the reason why, that is, there is systemic discrimination in the workforce in Ontario that constitutes barriers for a lot of designated-group members to get into employment opportunity, either hiring, promotion, transfer or training and so on and so forth.
That is why we're here today to urge this government -- well, I guess, all parties -- to work towards a strong, mandatory employment equity legislation. We do not believe that Bill 79 provides that kind of strong employment equity legislation framework. What constitutes strong employment equity requires a strong accountability and enforcement framework, which is by and large absent in Bill 79.
Before I go into the detail of the recommendations, I just want to make a very general observation. Although, yes, employment equity legislation is kind of new in Ontario, this is not the first time we talked about employment laws in Ontario. We have all kinds of employment laws. We have the Employment Standards Act. We have the Labour Relations Act. We have the Occupational Health and Safety Act. All point to the fact that in the circumstances, many times employers are unable to live up to the standards and therefore workers may either be shortchanged in terms of less than minimum wage or be forced to work in an unsafe environment.
Now employment equity is here to address another occupational hazard, which is discrimination at work, and, more specifically, systemic discrimination. Therefore, it is just an extension of all the other employment laws that have already been enacted in Ontario, but it will this time address some of the issues that have never been addressed before.
We believe that there are a number of things that can make this particular employment equity legislation even stronger and many of them are included in our presentation and in the report itself. I'm going just to highlight some of the key points.
First of all, we believe that a lot of the provisions that are under the regulations currently should be moved to the legislation. As DAWN has pointed out, for example, the definition of "designated groups" should be moved to the legislation as opposed to being included in the regulations.
There are many other components of employment equity law that are currently included in the regulations such as the content of goals and timetables, the standards that are being set up to set goals and timetables, the content of employment systems review and the qualitative measures the employer should adopt. All the details are being included in the regulations, and we believe that they should all be moved to the legislation to make it stronger and more enforceable.
In terms of specific concerns, we are very concerned that goals and timetables, as it stands now, are being set up by the employers as opposed to the commission. We believe that to make employment equity truly enforceable and workable in Ontario, the Employment Equity Commission should be able to set up standards that must be followed by all employers in Ontario and that includes not only qualitative goals and timetables but also quantitative goals and timetables. We do not believe in allowing employers to use reasonable effort or even reasonable progress as an exit from meeting the obligation of meeting employment equity responsibility.
As I mentioned earlier, we have all kinds of employment laws. We never heard about allowing the employer to use reasonable effort to get out of minimum wage or use reasonable effort to get out of occupational health and safety requirements, so there's no reason why designated groups should be forced to live with a less than acceptable standard when it comes to elimination of discrimination.
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We also believe that the employment systems review should apply to all employers. More specifically, there are a number of practices that Sonja talked about that could constitute systemic discrimination, and many of these practices should be reviewed by the employers and in the end be included as minimum standards as they set their qualitative goals. Qualitative measures, positive measures, all these things must be clearly specified in the legislation. Some of the practices that have been accepted may have to be reviewed again and not limited. They may include, for example, seniority, which sometimes has adverse impact on designated groups, because we are usually the last to be hired and first to be fired.
We also believe that in order to make the employment equity legislation work, the commission should be empowered to have that kind of force to ensure that employers meet the standards that are being set up by the commission. We do not see a very clear role being given to the commission right now and we are not sure what kind of power the commission is being given. We want the commission to have a clear role in terms of ensuring accountability and the enforcement of employment equity legislation.
Finally, we believe that there should be stronger protection and empowerment of all these designated- group employees within the workforce, for example, to make information truly accessible to all the designated- group employees so that they know whether or not the employers are doing their best to ensure employment equity in the workplace.
All these are just some of the recommendations. If you want the details, they are all included in our report.
The Chair: Thank you. Mr Murphy, three minutes.
Mr Murphy: Thank you very much. I appreciate your presentation. You talked a bit in the written brief you've submitted, which is quite lengthy, and I appreciate that, about the consultation process. You made reference to it briefly. I'm wondering if you were involved in the consultation process leading up to what we have at this point.
Ms Osborne: Yes, I think we all have been involved in a number of consultations going back to 1992 leading up to this point. We do say that we're in a sense a bit sorry that there's not more participation. In fact the committee isn't moving itself around out of Toronto, for instance. But we've also been involved before this government with consultations about employment equity. Those consultations were numerous and amounted to nothing. So although we are saying that we would have liked this consultation to be much more widely based than it is, that's not to say that we are not cognizant of the fact that there have been consultations around this, and a lot of consultation around it.
Ms Go: I guess just to add to that, the issues right now are twofold. First of all, there is a split between consultation on the regulations and the legislation. As we pointed out, we believe many of the things that are in the regulations should be moved to the legislation and they should be given the same kind of consultation, open and very public, as the legislation is getting that kind of attention.
But, more importantly, because the consultation that has happened so far really just includes to some extent the ruling government and at this point this is the first time all parties are getting together to really study this bill, I think the other two parties should also really take a very serious look into the legislation, of course with the interests of the designated groups in mind, so that our viewpoints can really get across.
Mr Murphy: Absolutely. I couldn't agree with you more, and I think that's one of the reasons we've been asking for more time to consider them and to come forward with recommendations. I don't know if you were here earlier. We tried to get more time, another week or two, in order to be able consider your report and the recommendations and many others in this last week, because we won't even have a written record of this in time to consider. We don't even have the government's amendments yet.
Mr Perruzza: I've heard enough. Point of order, Mr Chair.
Mr Murphy: We've got the regulations --
The Chair: Mr Murphy, there's a point of order.
Mr Perruzza: Mr Chairman, I'd really like a clarification from you. It's my understanding that the subcommittee determined the length of the hearings, how many people we were going to listen to --
Mr Mills: Right on.
Mr Perruzza: -- where we were going to travel, where we were going to stay, and I understand that the opposition, both the Liberals and Conservatives, have a majority on the subcommittee. I've heard it over and over and over and over again today, and I think that misleads people into thinking that somehow we're --
The Chair: Mr Perruzza, I'm sorry. It's not a point of order.
Mr Perruzza: I'd like to know from you because you sat in on it.
The Chair: That's not a point of order. That's different information that other people might touch on from time to time. But, Mr Murphy, we ran out of time in fact.
Mr Murphy: No, I'd rather take that out of the NDP's time.
The Chair: Actually, we had run out of time when you were speaking.
Mr Murphy: And I'll continue, if I may.
The Chair: If you want to complete that thought, please do so, so they can answer the question.
Mr Murphy: I thank you for that. The other thing that I wanted to follow up on, and that's the regulation point, I think it's unfortunate that we aren't able to deal with them. I couldn't agree with you more that regulation issues should really be in the act. I think the principle of leaving important things like the definition of who designated groups are in regulations or anything like that is very unfortunate. I'm wondering, are those the kind of things you'd like to see in the act as well, like the definition sections and others?
Ms Osborne: Yes, I think that's our recommendation, that the definitions be included in the body of the legislation, and that in the case of the racial minorities also the major subgroups be defined and included in the legislation.
Ms Go: I just certainly hope that the fact we're not dealing with the regulations will not preclude this committee making recommendations to amend the legislation so that some of the issues we talk about today will be included in the end.
Mr Murphy: Well, if we get enough time, we'll do our best.
Mr Ted Arnott (Wellington): I'm not going to join this debate as to whether or not there's been enough consultation, but I have a question. We were talking about the merit principle, and I think the concept of merit is one of the key questions in the whole debate. My feeling is that the employer should use the merit principle as the primary consideration in hiring a person for a job, and I'm just not sure if you totally agree with that statement or if you partially agree with it or totally disagree with it.
Ms Osborne: The statement I made was that employment equity does not erode the merit principle, it enhances it. I also went on to say that if in fact the merit principle was really followed, then according to the law of probabilities we would see different representation in the workforce. I think what that says to you is that I am not saying I don't agree with the merit principle, whatever that is, but what I'm saying is that it has to be applied objectively. From my experience, it is not being applied objectively, and people who have come to this community and have raised the merit principle are not raising it because they want a true merit principle; they are raising it because in their minds members of the designated groups are not qualified, so we don't want to hire them, we want to hire by merit. That is their argument, and I totally refute that argument.
Mr Arnott: Okay. How does this employment equity bill enhance the merit principle?
Ms Osborne: Because what it says is that you hire the people who are qualified to do the job, and what that means is that you don't do word-of-mouth recruitment, you don't sort of bring people in the back door, you do not tailor job descriptions for people who are to go into a competition. In fact you go out and you make it open so that all those people who have the qualifications, regardless of who they are, have the opportunity to acquire. On that basis, then I think you can make your determination on the way they behave and the way they perform during the selection process. But I think you know and I know what happens in selecting people in the majority of cases, and that does not define merit in the way in which we say employment equity enhances merit.
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Ms Carter: Thank you all for your presentation. Just as a quick matter of clarification, this committee is not travelling, although we would very much have liked to do so, because the subcommittee, which consists of a majority of opposition members, ruled against it. We regret that we lost that opportunity.
I'd like to pursue the question of seniority. We have had other groups commenting on that in different ways, and some have suggested that if seniority rights are upheld, this leads to greater overall fairness in the workplace, and in particular, over the long term as the designated groups move up in the workplace, they will share in the benefits that seniority rights give. It was pointed out that there are some people already in this position who would lose if seniority rights were weakened.
You say that you want seniority to be "consistent with the principles of employment equity" and we should "aim at alleviating any adverse impact on the designated groups." That's on page 12 of your submission. Could you elaborate on this recommendation and just how you see this working out?
Ms Go: For example, in some cases there are people who are readily qualifiable, people who are trainable, and they may not be promoted or hired to a certain position because of a lack of seniority. As I pointed out earlier, and also because of the fact of systemic discrimination, designated group members have been historically underrepresented in all levels and especially in the higher level. So we tend to have less seniority. So although seniority in and of itself is a very neutral concept, because of the systemic discrimination we have faced, it may then create an adverse impact on people who never have the same kind of seniority as the others.
I think that there are creative ways of keeping seniority as a concept, which is a very valid concept, but to make it consistent with other measures that employment equity can introduce, for example, positive measures in other hiring and training kinds of opportunities.
What we are saying is that we have to look at it from a viewpoint that we want to minimize the adverse impact on designated groups.
The Chair: We ran out of time. I want to thank all of you for your presentation and participating in these committee hearings.
TOWERS PERRIN
The Chair: I would like to invite Towers Perrin. Welcome to this committee.
Ms Belinda Morin: Thank you. Good afternoon. My name is Belinda Morin. I'm a principal and partner in Towers Perrin, and Lynne Sullivan, my colleague, is a senior consultant with Towers Perrin. We're going to be extremely brief.
Just to tell you who we are, we are an international global firm of management consultants who specialize only in human resources. We're doing extensive work right now with the major Fortune 500 companies in North America on workforce diversity and here in Canada on employment equity, and we'd just like to tell you that we've been doing this long before it became the subject of legislation. We have clients who view it as a competitive edge to be globally competitive, and we have clients who view it as a compliance exercise.
We'd just like to touch on the aspects of the draft regulation here that are of primary concern, in our opinion. There are positive aspects, and one might wonder about that, listening to some of the views.
We do believe that there has been extensive consultation. I personally sat and listened to submissions to the commissioner before the regulation was even passed or before the bill was introduced. I did that because I was the ombudsman for the disabled for Metropolitan Toronto for a long period of time and I was interested to see what had changed.
The reporting requirements are rightly minimized. We are going to save the trees in this province and maybe in other places.
We do believe the regulation and bill is much more specific, and we speak from experience in working with our clients in the federal contractors program. It's much more comprehensive.
The requirement in the legislation to involve the employees in the process is probably the key defining distinction. In fact, if that process which is in the regulation is audited and enforced, that will help distinguish between the quality employers in the province and the non-quality, because one of the concerns has been the rather random standards of employers who've had to be judged for purposes of employment equity. We do believe, however, that all groups need to be included in the process and there needs to be more emphasis on that.
The eight issues that we are going to address -- I'm just going to address the first four very briefly -- you have in front of you. Lynne Sullivan is going to spend some time on the scope of numerical goal setting, because while there's been much talk about the concept, not much illumination of the technical aspects of this and some of the more serious implications, and we'd like to dwell on enforcement.
You've heard from many that the preamble might be less of a diatribe against the sins of the past, so we are also recommending that you delete the first two paragraphs and use the third as the purpose clause and really not dwell on the sins, but rather focus on the future in the global competitiveness of the province.
Under the designated-group coverage, we do believe that the designated group should be based on unfavourable socioeconomic status. Not all the designated groups experience the same degree of adverse impact, and there have been studies that you could rely on, but the most important thing that we want to recommend here is that you designate those racial-minority groups experiencing unfavourable socio-economic status as potential beneficiaries under employment equity, that is for example the black population. The way the racial minority is lumped into suggesting it's a homogeneous group of equally disadvantaged persons is not correct. Some are distinctly more disadvantaged than others, and if you want to go in that direction, we suggest that's something to consider.
In terms of employees covered, the modified requirements for the very small broader public sector and the private sector employer definition for "small" is really far too small for both. They're not going to be able, as Lynne will discuss, to do any really useful numerical representation, and the kinds of reports you're asking for are meaningless, to just state their percentage. Percentage relative to what? So why ask them to do it at all?
We'd recommend that the threshold for "small" be 100 and that you eliminate totally the reporting requirements for the "smaller" and establish a higher threshold for the setting of numerical goals to at least 500 or more employees. We base this on the fact that we are a firm that has an employee research capability. We do have experience with this. We have a great deal of experience with our United States clients, and Lynne is going to address that issue.
On the self-identification survey, you've heard a great deal about that. The self-identification is problematic but it is the best, but we would ask that employers be allowed to note what they believe to be underrepresentation or inaccurate reporting.
You've also heard about the gender question being problematic. It certainly is. Either ask it inclusively of males and females or don't ask it all. Most employers do know the sex of their employees and it's frankly not necessary to ask it in the first place, but we do have problems with surveys that a significant majority of employees will not be able to fill out at all, and that is the white males.
This isn't in our written, but you have a requirement to resurvey in nine years. But if you're requiring employers to keep it current, why would they have to resurvey? If they're keeping it current, that's a redundant provision and should be something you might easily address.
Now I'm going to turn this over to Lynne to discuss the numerical goal-setting requirements.
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Ms Lynne Sullivan: For those of you who are following, I'm on page 10, number 5.
I want to discuss the numerical goal-setting requirements in the bill and regulation and I want to talk about, first of all, why we think it's important to have numerical goals and then how we believe they would be most effective.
First of all, you probably have had people telling you employers shouldn't have numerical goals at all. We don't really think that's valid. Setting goals is a reasonable way business proceeds, and it provides business with a way of measuring progress against a reference standard, which is to say, who's out there in the labour force who's qualified for your jobs and who do you have internally who could be promoted or trained for those jobs.
Neither is setting goals at odds with the merit principle, nor is employment equity at odds with the merit principle. We can all do things well or poorly and when you don't have an effective merit principle operating in your company, then you're going to find out that your representation isn't going to be in sync with availability. That's true for many organizations in this country, because organizations tend to make the assumption that they hire and promote based on merit without really questioning that assumption or giving themselves a report card. Giving themselves an honest report card is what employers are going to be required to do under this legislation, and so, by the way, are bargaining agents.
So we have no problem with the idea of setting numerical goals, but have some suggestions about the most useful ways to set them. The first one is that the bill and regulations as they're currently set out require very small employers to set numerical goals that they will be accountable for achieving. Now, let's think about that for a moment. If you have a private sector employer with as few as 100 employees, they are to divide their workforce into up to 14 occupational categories that are prescribed, but realistically, probably anything from five to eight, and then further divide it temporarily into able-bodied white males in the four designated groups, and then achieve proportional representation in all those categories and at all those levels.
The lottery corporation couldn't produce the numbers to get this right. Small employers simply will be forced to set goals that it would be a miracle if they could achieve. So our suggestion would be that if you're going to have employers set goals for which they will be accountable, to raise the threshold at which they'll be required to do that.
Secondly, the bill and draft regulations talk about setting and achieving goals in relation to the working-age population. But the working-age population is really never the right group of people that you choose skilled employees from. Let's think about that. If you think about the working-age population in Metropolitan Toronto and think about the category of visible minorities, that category includes a lot of people who are highly qualified and have a lot of skills. Those people aren't any more interested than anybody else in having an unskilled job which they can learn to do in three hours or three days or three weeks. They ought to be considered in relation to their qualifications.
So rather than focusing on the working-age population, it's vital to tie representation goals into the availability of skills in the groups and to set the goals in relation to people who are already employed or qualified for the occupations for which you're recruiting.
We've also made some other sort of more arcane points, which I will probably not have time to comment on, but if you wish to ask me about them, then I will.
In terms of the employment equity plan requirements, you will notice that we were going to talk about accommodation standards. I understand that Mary Cornish talked in some detail at 2 o'clock today about accommodation standards, and she's certainly an expert on that subject. I guess the point we would like to make is that it's going to require a coordination between what the Human Rights Code says and what the Employment Equity Act says in terms of requirements for accommodation, and that it should be clear to employers what accommodation standard they're going to be held to.
Just right at the moment, the Ontario Human Rights Code itself doesn't contain a clear accommodation standard; it only has a guideline which sets out quite an onerous accommodation standard. I think you're going to require a more credible accommodation standard and consistency between the statutes.
Our seventh point was the union-management consultation form. I know others have spoken about this. The draft regulation would require one committee to be established with all bargaining agents represented on the same committee, but the reality is that the bargaining agents don't all have the same interests in the matter of employment equity; they don't share a community of interests. The requirement to have one committee may delay the process, may pit bargaining agents against each other, inhibit natural alliances which may exist between bargaining agents and simply be unrealistic by virtue of factors such as geography or the bargaining units involved.
For instance, if I represent six security guards and Belinda represents 10,000 bus drivers, do you really think I should have the same representation as she and her members do on the very same committee? I would suggest that the unions are right in the submissions they have made in saying that employers and bargaining agents should have more flexibility to determine how to best work to achieve the goals of the bill.
Finally, I'd like to say a few words on enforcement. The bill and draft regulations are proposing enforcement by audits and also by complaints. We think it's a very good idea to have audits as long as the audits are credible. The worst thing you could do is to have enforcement by audits and have the audit being more of an annoyance than anything that's credible with the employer. When organizations are audited with respect to their financials every year and have to have some certification, the auditor is bound to look at enough data that they can reasonably express an opinion on, on the subject matter, and I think that if the government has audits, it should have very credible audits.
We're recommending against individual complaints on a couple of grounds. One ground is that experience under Ontario pay equity has been nothing short of disastrous on that score in terms of holding things up. Another ground is that there are other avenues for people who honestly believe they have a complaint of discrimination, namely, through the Human Rights Commission.
Finally, we're really recommending against accepting third-party complaints, largely based on experience in other jurisdictions, where third-party complaints have allowed people with little interest in the outcome to tie up regulatory agencies and employers for years at a time in matters that they have little interest in.
That's all of our formal comments. We'd be pleased to answer your questions.
The Chair: Five minutes per caucus.
Mrs Witmer: Thank you very much for your presentation. It's very easy to read and you've managed to clarify most of the points you've made.
You've indicated here in your final recommendation on page 13 to not accept complaints under this bill. You indicate that the OHRC is there for the complaints of discrimination. Would you expand on the reasons as to why?
Ms Belinda Morin: We think that first of all, this is based on the understanding that the audit process is going to be comprehensive, that there will be standards, that the employers will know the rules and that there will be trained persons, because this is critical. Our experience with the Pay Equity Act was that you had regulators with no business experience, no organizational understanding, limited backgrounds to deal with the complex issues. That brought some discredit to the process.
This is a bill addressing organizational-systemic-institutional problems. You do not want to take a fly swatter out for one fly. It's not an effective use of resources of the province from a fiscally accountable standard. We think you would want to have something that would get results. If you have a due process, a fair one, well-understood rules and a high standard of accountability with employers, who in most part would welcome that, then we think it won't be necessary to take those complaints.
That's largely based on our own experience with other legislation. Both of us work in the area of human rights and both of us did a number of pay equity plans. We worked with union and employer committees, so we're not speaking from the perspective of one or the other. We're speaking strictly from experience.
Mrs Witmer: Then what do you see the role of the Employment Equity Commission being?
Ms Lynne Sullivan: Auditing. Informing people what the legislation is, setting out the guidelines, informing people what it means and doing the audits.
Mrs Witmer: And obviously you feel very strongly that this should be the --
Ms Lynne Sullivan: If you have complaints, then you're going to have the commission ground to a halt dealing with individual complaints. That's the experience under pay equity; that's the experience under the Human Rights Commission. The Human Rights Code already exists. Someone who feels they have an individual or group complaint of discrimination already has a remedy under the Human Rights Code. But I want to reiterate that we're only making that recommendation based on the fact that you have a serious audit process. This can't be like being nibbled to death like ducks, which is frankly what the audit process in some other jurisdictions is like. If it's like that, then the bill won't have any credibility.
Ms Belinda Morin: If we can just give you an example of what we mean by auditing, the bill does require and the draft regulation makes it clear that employees are to be involved in this process. We don't see it working any other way. In fact, the regulation requires that the target groups, and we would say the non-target groups, should be consulted extensively. One of the best audits you could do of any employment equity program would be to go in and audit employee opinion and actually, statistically, numerically and qualitatively, assess what had been done in the workplace. That's an audit done from the employee perspective with those results. But that's sort of hit and miss in our experience in what we know and observe in the federal contractors program, where sometimes the regulator comes in and sometimes employees will speak to the bargaining agent and sometimes will not; and will sometimes interview the CEO and sometimes does not.
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This should not be a beat-the-regulators kind of legislation. We know that the Pay Equity Act, for example, is the law; it's not being obeyed by employers. If there were a reputable audit system, that would prove very interesting, in our opinion. It seems the fairest way to treat all employers similarly and by the same standard.
The Chair: I'm sorry, we've run out of time.
Mrs Witmer: I just wanted to talk about the accommodation costs. Thank you.
The Chair: Mr Fletcher, and Ms Carter if there's time.
Mr Fletcher: Thank you for your presentation. I tend to agree with you about the preamble not being forward-looking and not stating the positive aspects of employment equity and where we can go as far as employment equity is concerned. I think everyone agrees, and we've heard from many business groups and many other groups, that it is very positive for the business community and very positive for the people of Ontario. I tend to agree with you, as far as the preamble is concerned, that it should be changed in some way to be more positive.
In terms of the self-identification, one note you have is that "Employers should be able to note underreporting/inaccurate reporting when they have reasonable grounds to believe it has occurred." I don't want to cast a shadow of a doubt on employers, but is there a possibility that as an employer I could possibly say that because you have grey hair or because you have glasses --
Ms Lynne Sullivan: You've got me on two counts.
Mr Fletcher: I was looking at Jenny -- that because of these factors there is a disability, that you are in one of the designated groups? I know that under the federal plan there were some banks that were getting around it, saying that the wearing of eyeglasses was a disability. That is a possibility.
Ms Lynne Sullivan: There's an inherent problem in self-identification, but it's like democracy: It's a bad system except by comparison with all the others. In self-identification, you're asking people to make an assessment themselves whether they have a disability according to criteria that you give them.
You will find a couple of things. One is that if I have a disability and I have a job, my propensity to identify myself as someone with a disability is less than if the census calls me for the post-census survey on disability and interviews me and says, "Well, Ms Sullivan, taking into account all of this, do you think you have a disability?" Because I don't have a job, I'm more likely to say I do.
There's an amount of subjectivity involved in self-identification, but as long as the employees themselves are saying whether or not they have a disability and it's not the employer telling them.
Now, an employer could of course provide communication material which enticed people to say they had a disability. However, I would point out that a lot of time has gone past since the initial problems arose under the federal jurisdiction, and some of the problems federally had to do with warring definitions between the Canadian Human Rights Act and the contractors program. If they'd started out with a cleaner slate, they probably wouldn't have run into some of those problems, and I wouldn't expect that Ontario would.
The Chair: Ms Carter, one last question.
Ms Carter: Still on the self-identification, you suggest that the resurvey isn't necessary every nine years if the employer is keeping up to date. I'm not quite sure what means the employer would use to do this, but I think the point of having the resurvey is that some employees might not wish originally to self-identify, but as time went on and they got used to the idea they might then be willing to step forward and it's a good idea to give them another opportunity to do this. How does that grab you?
Ms Belinda Morin: If you're going to collect this information in the first place, you're going to keep it current from the day you collect it or otherwise you'd have to resurvey again and again. Employers are not that anxious to create work. If they're going to do the survey, they're going to have to use it, they're going to have to collect on their new hires, they're going to have to track over time. If they're going to comply with the law, then it's a redundant requirement to resurvey. Why would they go back and do it again?
Employers may from time to time, and we don't see this being a problem, ask employees to reconfirm, "We're checking our records; we want to reconfirm what we have," because the good employer will make sure the employee knows what designation is on their record.
But the notion that they're never going to use this information -- it's not anonymous data; it's confidential. The use to which it is put is to advance employment equity. It's not supposed to be in a drawer or on a list that you just pull out occasionally. It's meant to be real, live data used by an employer.
Ms Carter: But an individual wouldn't want to step forward if they'd suddenly become willing to self-identify. They'd need to be somehow involved in a group, so maybe the existing group could be --
Ms Lynne Sullivan: Employers who know what they're doing and have experience in this area typically have in place programs where they not only update their database on an ongoing basis but where they provide opportunities for people who didn't initially self-identify to reconsider and decide to count themselves in at a later date. I believe that's the question you were asking. There's no bar in the current act and regulations to an employer doing that, and that's something they should be encouraged to do. For instance, an employer who went around the first time and got, say, an 85% response rate wouldn't give up on those other 15% of people. You don't badger people to self-identify, but you certainly give them every opportunity to come forward.
Mr Curling: Thanks very much. It's an excellent presentation and easy to identify some things I would like to ask you to comment on. With the short time, I will just go right to it.
On page 8, you say, "Raise the threshold for small to 100 employees or more in Ontario." I don't have any statistics -- I mentioned that in the previous presentation -- to say where those designated groups are clustered. What I'm hearing from presenters is that quite a few of those designated groups are in companies that are small. If we raise that and exempt or exclude those, the purpose of the employment equity bill then would not be targeted to those we want to address.
Ms Lynne Sullivan: You have a number of options. We've said a couple of things in here. One is that there's nothing different about being small if you're in the broader public sector than in the private sector. Why a small employer in the broader public sector is smaller than in the private sector completely escapes me, so the first thing is that we think you should use the same threshold.
The second thing is that we've recommended increasing it to 100 for both those kinds of employees, and you've raised the point, which is valid, that not only a lot of designated-group employees but a lot of people in general work for small employers. That being the case, there's a number of things to consider.
One is leverage; as soon as you hit the large and medium-sized employers of this province, you've really got quite a spillover effect to employers in general. Secondly, all employers are currently covered by the Human Rights Code, although some of them may be more aware of that than others, and if an employer has abided by the requirements of the Ontario Human Rights Code, they go a long way to meeting the goals of employment equity without having all kinds of programs and bells and whistles in place.
The alternative the government would have to our suggestion would be to have modified requirements for all small employers under 100 that didn't require things like filing a report, for instance, or setting numerical goals, and then simply leave those employers at more of a good-faith effort, because you're not going to be able to audit equally a company with 56 employees and somebody who's got 15,000 in Ontario. It wouldn't even make any sense.
I personally think you should raise your threshold to 100 and cover everybody above 100. If you decide not to do that, then look at the requirements you're going to impose. Realistically, recognize you're not going to do too much enforcement below that level because you're just not going to be able to.
Ms Belinda Morin: I think the issue here is, why not do something really well and make a high-quality effort that will have the largest impact with the greatest critical mass, which is your employer group over 100, and do that job consistently? This is the experience with the Pay Equity Act: a whole bunch of small employers getting a huge amount of regulations flowing over their desks when some very large employers have, frankly, ignored their obligation under the act.
Mr Curling: Just a comment, because I want to give my colleague a chance to say something: You are just bordering on saying that the Human Rights Commission is there to enforce anti-discrimination and if it is being effective we may not need employment equity to this extent. And you're saying cover them all, but the public-sector small employers are not covered; what is good for the goose, it seems, is not good for the gander. My colleague wants to jump in.
Ms Lynne Sullivan: If I could just make a comment on what Belinda had to say, I think the point we're both trying to make is that if you're going to try to do something effectively, it's just as well not to try to boil the ocean because you're not going to succeed. You have to decide where you're going to get most leverage, and we would argue that that's with your larger employers.
Ms Belinda Morin: If you want to look at the American experience, the instructive experience of that was AT&T.
The Chair: We're just pushing Mr Murphy out of a question. Mr Murphy, please.
Mr Murphy: If I can, just quickly, I think yours is the first real recommendation related to eliminating complaints under this and I wanted to get one clarification on it. I know you've got an expanded audit system, but how do you envisage enforcement of compliance? What is the trigger event that is going to make that happen?
Ms Lynne Sullivan: The government, as the Pay Equity Commission has, has employers by size. They know the implementation date and they do an audit based on the effective date. When the employers are supposed to have completed those phases, they're audited on a random basis. You could go out and do 20 employers over 500.
What I was so rudely -- excuse me -- interjecting was that in the American experience, the audit of AT&T, which was hundreds of millions of dollars, sent an instructive message to the whole employer community. In terms of being fiscally responsible, we had anticipated the audit self-certification process and we congratulate you on that, because that's a very cost-effective way of achieving your objectives, provided that the enforcement is consistent and the rules are known and fairly applied.
Mr Murphy: And the auditors are trained.
The Chair: Thank you very much for your submission and thank you for taking part in these hearings.
Focus on Equity is next. Is there anyone here representing Focus on Equity? What about Ontario University Employment and Educational Equity Network? Is anyone here from that organization?
Mr Perruzza: I suggest a five-minute recess.
The Chair: I would like to recess for five minutes to see whether others are coming. This committee is recessed for five minutes.
The committee recessed from 1603 to 1626.
COUNCIL OF ONTARIO UNIVERSITIES, COMMITTEE ON
EMPLOYMENT AND EDUCATIONAL EQUITY
ONTARIO UNIVERSITY EMPLOYMENT AND EDUCATIONAL EQUITY NETWORK
The Chair: I call upon Ontario University Employment and Educational Equity Network and the Council of Ontario Universities committee on employment and educational equity. You have a half-hour for your presentation, and please leave as much time as possible for questions. Could the spokesperson introduce all the colleagues left and right.
Dr Peter George: Thank you, Mr Chairman. My name is Peter George and I am president of the Council of Ontario Universities. I am here with other members of my delegation, and let me introduce them to you briefly. To my immediate right is Keith Allen; he's the associate director of the transitional year program at the University of Toronto. To his right is Janet Mays, who is the director of safety, security and harassment prevention at Ryerson Polytechnical University. To my immediate left is Janet Kaufman, the manager of educational and employment equity at the University of Guelph. To her left is Bill Wilkinson, who is the director of equity services at the University of Western Ontario. Behind us, at the back of the room, are Mary Lynne McIntosh, who is employment equity coordinator at the University of Toronto, and Dr Laura Selleck, who is a research associate at the Council of Ontario Universities.
We welcome the opportunity to meet with you to discuss Bill 79, a very important piece of legislation to advance the equity agenda in this province. Members of this delegation represent the Council of Ontario Universities, its committee on employment and educational equity, and the Ontario University Employment and Educational Equity Network, which is an organization of equity practitioners within the Ontario universities.
In recent years, the Ontario universities have had considerable practical experience with employment equity implementation, first through the employment equity incentive program of the Ontario women's directorate, and then as participants in the federal contractors program of Employment and Immigration Canada.
Universities have a dual role in the success of employment equity, as they work first to increase the diversity of their own workforces and, second, to educate future employees for other organizations. A wide range of educational equity initiatives are in place in the universities of Ontario, and this fall COU will begin province-wide collection of student equity data through the Ontario universities' application centre.
Mr Chairman, I want my colleagues to have the bulk of the air time today; they are practitioners in the employment equity agenda. I will ask Janet Kaufman to continue with some of the substantive points from our brief.
Ms Janet Kaufman: Members of our network have given very careful thought to Bill 79 and how it would actually work in our institutions. The 25 recommendations before you in our brief are based on our collective experience as practitioners responsible for facilitating the adoption of employment equity on a daily basis.
Our perspective is not that of senior decision-makers or representatives of advocacy groups, nor do we view ourselves strictly as agents of our respective employers. We are in fact practitioners in very large, decentralized organizations that are highly autonomous and yet have well-established participative decision-making mechanisms which are part of formal systems of governance.
Our recommendations reflect the complexity inherent within universities and argue, on the basis of our experience, for greater flexibility in certain aspects of the legislation and for clarity and specificity at others.
The following points are made in greater detail in the text of our brief, so I'm going to go over these very briefly and leave time for questions.
We are here today, first of all, as strong supporters of the principles of employment equity as expressed in Bill 79. Our comments and recommendations are constructive and practical and are grounded in experience with employment equity planning, implementation and monitoring in complex organizations.
Although the legislation and regulation go some way toward recognizing work that has been done for other equity programs, it would be preferable, from our perspective, if the workforce surveys and employment systems reviews already done for the federal contractors program were deemed to meet Ontario requirements, at least until a second full survey is required in nine years' time.
Our experience has shown that consultation, both internal and external, is extremely important to the success of equity programs. The legislation should allow for some flexibility in the way employee groups are involved in the implementation process and should encourage consultation with the surrounding community to gain the diversity of perspectives that may be lacking in the organization's workforce.
Issues of data confidentiality must be clearly expressed at all relevant points in the legislation. Provision might be made for assignment of administrative responsibility and appropriate resources for employment equity, particularly with regard to control of the equity database.
The workforce survey questions in the regulations, in our opinion, need clarification. They need to be identified as either a minimum requirement or the precise wording that must be used.
We think the requirement for the return of all survey forms will be very difficult to enforce and has the potential to distort data quality. In addition, we think that the inclusion of all part-time and seasonal employees will add to the costs and the time required to complete the survey work.
Based on our experience with the FCP, conducting a workforce survey and analyzing the results takes two years. A further two years are needed for a full review and revision of employment systems.
Employers need data and guidelines from the Employment Equity Commission as soon as possible so that they can begin planning for analysis of the workforce survey and the employment systems review.
The COU equity committee and the university equity practitioners who are here today would be happy to elaborate on these points and any others that you may wish to ask us about in your deliberations on this particular bill. With that, I'd like to conclude my remarks and allow you to ask us questions.
The Chair: Thank you very much. That leaves approximately eight minutes per caucus. We'll start with you, Mr Fletcher.
Mr Fletcher: Thank you for your presentation. Good to see you, Jan. How are you doing? I'm looking at page 10 of your brief: "The question on disability does not provide the level of information that would be needed by an employer actively working to accommodate employees with disabilities." Are you saying that the question should be more direct, with more information given? For example, perhaps just looking at my colleague and friend Mr Malkowski you wouldn't know he had a disability, but for him to self-identify would say that he needed someone to translate for him. Is that what you're looking for, the kind of information, more specific information on disabilities?
Ms Kaufman: I think that's exactly it. Many of us in our own institutions have used survey questions that in fact asked for greater detail on the nature of disability, and that has allowed us to take a careful look at what kinds of accommodations we might need to make for individuals who have disabilities, so we would prefer that that question allow for greater detail. If any of my colleagues want to add to any of my comments, I'd appreciate it if they would.
Mr Fletcher: In the broad concept of a minority person, you are also looking for more information, whether or not a person is from Pakistan, whether a person is from East Asia, whether a person is from South America. Is that for accommodation purposes also?
Mr Bill Wilkinson: I don't think the issue is specifically with regard to citizenship, because the examples you've given are citizenship.
Mr Fletcher: You're right.
Mr Wilkinson: I think we have, at least from our own experience, collectively, by seeking greater detail, learned about the diversity which exists within designated groups as a whole. Sometimes some of the initiatives, be they education, be they specific elimination of barriers, need to be responsive to specific requirements that might be produced by having more specific data with regard to a particular aggregation.
For example, if there are people with particular types of severe disabilities within your workforce which show the exclusion or the failure to provide a barrier-free, accessible ramp for certain facilities in your organization, because most of us have campuses that are several hundred acres and we have limited resources, that does allow us to set some priorities in the planning process. We need to eventually eliminate all of the physical accessibility barriers, but the capturing of that kind of data has allowed us at least to get into a decision-making process, to set priorities and try to be responsive to the needs that exist within the workforce at that time.
Mr Fletcher: What about visible minorities? Is that so the accommodation of visible minorities -- you're not creating an area where you have certain visible minorities, from a certain group?
Mr Wilkinson: Of course, you have to be very careful and one has to be very clear about his intent, but there's no doubt that you would get some information that may lead an employer to draw certain conclusions, which may indicate that in fact the representation of certain racial minorities within a workforce is not as representative as an employer would like it to be. He may need to examine specifically and try to determine why that's occurring.
Even on the basis of some student data that we collected at our own institution seven or eight years ago, we noticed there was a greater representation of certain racial minorities within our student population than others, which then led to the question of determining why that was the case. Was it strictly on the basis of representation or availability, or were there other factors which might be working, either directly or indirectly, to the exclusion of those groups?
Mr Fletcher: Is that why when a student applies to a university he is asked certain questions as to whether or not he has a disability or some questions as to whether or not he is a minority? Is that the reason, for accommodation?
Mr Wilkinson: It's intent is to be proactive and to be responsive. I wouldn't want to try to suggest to you that it isn't without, to this day, debate and concern. It's a fine balance. I think clearly you have to communicate to potential respondents the nature and the purpose of why you would collect that data, that it's not to be used in any way that's exclusive or would be disadvantageous. At the same time, you have to make it very clear that aside from making it highly confidential, it is highly voluntary. It's really a matter of whether that person believes that it's important to give that information to an institution in terms of academic and/or employment accommodations within the institution.
Ms Akande: Thank you very much for your presentation. I'm interested in your request for a more extensive period in which to produce your results in view of the fact that you are already experienced in the field, that you have been responding to the federal contractors program and therefore are not totally new at this position, and also that you have asked for more specific guidelines -- it's a request we have heard before and we recognize -- from the government in order to know exactly what information and to produce that information. Those things together, it would seem to me that you are already well on your way, and yet you have asked for greater time. Why?
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Interjections.
Mr Wilkinson: I think we all probably will be able to speak to this one.
Ms Akande: Everybody wants to answer this one.
Mr Wilkinson: Yes, everybody wants this one.
Ms Kaufman: I'd like to pick up, if I could, not so much on the issue of time but on the issue of wanting more specific guidelines on some of these matters, particularly around the employment systems review and so on. That has to do I think with our concern that we've already, in our institutions, invested considerable time and energy in conducting employment systems review. What we're really wanting is some reassurance around the harmony between provincial requirements and the FCP so that we can be certain that we're on the right track and, if there are things we need to do, that we can begin to address those gaps that may exist.
On the time issue, I'd like to defer to Janet Mays.
Ms Janet Mays: With regard to the timing, all of us in the federal contractors program are constantly having to review our employment systems. It's a never-ending job. This one, for me, speaks to some of the other organizations that have never done this before, for whom this new. I'm afraid they're not going to do a total job on it if they've got such stringent guidelines.
To really get into an employment systems review and understand what it means is not a part-time job. It's something that you have to engage in fully and require the participation of the groups, for us, on campus: the unions and the people who work in HR, human resources, and the recipients of a lot of the programs, from benefits all the way through. That can't be done in six months. To make it work and to be a good employment systems review, you've got to have people who live in the workplace speak to the inadequacies of the workplace.
Ms Akande: Thank you, but some of them will have perhaps a less complicated system than you do with the university and wouldn't have to worry about compliance.
I have a very short question that I'm asking. The Chair is breathing down my neck.
The Chair: I'm not that far.
Ms Akande: You alluded to the fact that you thought it would be appropriate to omit part-time and seasonal employment because it would complicate issues. Yet it has been brought to this committee, and certainly we ourselves feel, that very often the avenue into full-time employment is part-time employment and that if you are going to make a real difference in terms of equity, you have to hire right the first time. What would be your response that would allow us to accommodate that type of practice and yet at the same time be aware of what you were saying about the difficulties of part-time?
Mr Wilkinson: In my opinion, if the legislation were to continue with the inclusion of part-time, casual and seasonal workers, it speaks more clearly than to the issue of time with respect to data collection. Our experience with regard to obtaining a credible response rate among part-time and seasonal employees has been very difficult. We are still exploring ways of trying to substantively improve upon a less than 60% response rate, admittedly on a voluntary basis, from part-time, seasonal employees.
We also would ask for further clarification and specification with regard to the kind of employment relationship that a part-time or seasonal person may have with an institution. If it's for a very limited period of time for a very limited amount of money, then common sense would suggest that that not necessarily be a position that should be included in the employment equity data collection process or the plan. If, however, it is for the criteria that you suggest in that it may be more substantive and lead to a full-time employment opportunity and that an employer can make that kind of determination, then certainly. But in my opinion, and I think in the experience of my fellow practitioners, clearly it's going to require more time if you include part-time and seasonal employees, simply because of the difficulty in getting a credible response rate.
Mr Curling: Thank you for your presentation. I just wanted to follow up on Ms Akande's first question to you, because I too was concerned about the extended time and the desired amount of time that you need to complete this plan. I'm going to go on a practical basis. Are you saying if someone had a case in the sense of it being that they are systematically discriminated against, the case would come, really, for any hearing in about the year 2000?
If we're looking at the situation, 1994 will be the time when the bill will be passed and then we have five more years to get it in place. I just want to make sure that those who are so anxiously waiting for this employment equity bill to come in place to address all of these problems that they're having, that the first case would be about the year 2000.
Mr Wilkinson: I don't mean to undermine the importance or the significance of having legislation and a program that can produce results as soon as possible. We are giving to you our experience as practitioners with respect to actually having to implement the requirements under the federal contractors program and what we interpret currently with the legislation and regulations in getting it done properly, in a way that's inclusive, in a way that's participative, consultative, as the guidelines and as the legislation requires, and the fact that human nature requires that we're going to have to spend an awful lot of time to get by in within our workforce, and still do, even despite all the work that we've done, still do with regard to those who question the merit associated with employment equity and the need to have employment equity adopted in this province in terms of improving employment opportunities.
Perhaps the compromise is to extend the time periods with regard to the administration and coordinate those to some degree with the actual date of implementation and reporting. Perhaps some leeway can be found that way, and that's something I would suggest to you. But again, I would invite my colleagues to perhaps speak to this as well.
Dr George: I think that one thing I would add is that there is a broader perspective on this issue at the institutions. The institutions invariably have sets of grievance procedures that are available to employee groups, whether faculty or staff, and I think that the equity regulations need to be seen as complements to existing grievance procedures. I think the existing grievance procedures allow for much shorter time horizons in seeking rectification of any legitimate grievance. So I think the whole package, from my point of view is extremely important, that you keep that in mind.
Mr Curling: My concern too is -- not only my concern but the presentations that I've been hearing here, not from you but from others -- how ineffective this legislation will be if it isn't properly defined. Can you imagine getting to that road in the year 2000 and having weak legislation, having all the data and statistics in place and the plan is wonderful, and the fact is that the individual is not able to win his case because it's not properly defined? It's a comment I have, and I presume it must be bothering you too in that concern.
Ms Mays: I don't want to leave this committee with the impression that we think that nothing happens between the time you start an employment systems review and the time you finish it, because there's bargaining that happens in the interim and there are committees at work and they're pushing. It doesn't start on day one and then end five years later. It's a process and there are things happening in that process all the time.
Mr Curling: But if your plan is not in place, how can I know that you have made reasonable efforts?
Ms Mays: Your plan to do the review could be cited, your deadlines to do it. You can have interim goals. You can say, "These are the targets over the next four years. In the first year we will have accomplished A, B and C; in the second year we will have accomplished D, E and F etc," and then you have to go back and revisit A, B and C anyway.
Mr Curling: Well, help me then, help me in this. The bill is passed and you're asked to put an employment equity plan in place.
Ms Mays: Correct.
Mr Curling: How long would you want to take to put this plan in place?
Ms Mays: Do you mean the final plan?
Mr Curling: Whatever it is, even if it's a part-time plan.
Mr Wilkinson: We have to plan all the time. Every time we're given an initiative and a directive that's either government-initiated or initiated by the will of the communities that we work within, we have to do plans. It's just like the budgetary planning process. In fact what we try to argue, I think, most of us in our organizations, is that the planning process that's used for equity should be the planning process that's used for many other well-established initiatives that have to be taken within the workplace: the annual budget process, the annual capital planning process. So we're going to have to do planning all the time.
But if you're asking us with respect to our opinion about the outcomes that are suggested and how they're achieved within this legislation, then we do make a differentiation about the time lines, based on our experience as to why we think those should be done. We're saying we think these deadlines should be extended because we think the legislation will be more effective and that it will be a meeting of realities that we've experienced within the workplace.
Ms Akande: What you're talking about is an action plan.
Mr Wilkinson: Yes, that's different from an employment -- yes, that's right. But it's still a plan and the tenets associated with any planning process are not unique, they're not distinct.
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Mr Curling: I'm not at all in doubt that you have a plan in place and what employment equity legislation is saying, why it has to come into the province or into the country, is that many of the plans out there are not working. They don't have access. So therefore -- of course, you've got your plans, and as a matter of fact, even the university -- some access is quite difficult.
Mr Wilkinson: Yes, that's right.
Mr Curling: As a matter of fact, you're even saying that seasonal workers and what have you are difficult to assess.
Mr Wilkinson: We've said that on more than one occasion in our submission.
Mr Curling: However, help me along with the joint responsibility, when you have the unions and the others as a committee sitting together and how it's going to be worked out, because I also have concern to those who are not in the union. How are you going to deal with that? Your unions vary from custodial staff to faculty and administration.
Mr Wilkinson: I think we've been very clear in our submission about that, but please go ahead, Janet.
Ms Kaufman: I was just going to say, in the institution that I come from we have, I think, 11 employee groups. Some of those are certified bargaining groups and others are simply voluntary associations. The split in terms of the numbers of employees who belong to certified bargaining units and who are in that category of "other employees" is, I think roughly 50-50. Slightly more are represented by collective bargaining groups than are in that other category. But our institution has what is now a fairly well established process involving representatives of all of those groups, whether they are from the certified bargaining side of the house or the other groups, in decision-making processes. We've just gone through an exercise around the social contract that actively engaged those groups in our institution quite successfully. So our institution would want the flexibility of in fact allowing for all of those groups to come together in that kind of consultation process, not to simply deal with others as others.
The Chair: Thank you.
Mr Curling: Eight minutes already?
The Chair: Ten seconds.
Dr George: Let me just reply, if I may, to Mr Curling. I'm not a practitioner, but I think it's incumbent on the leadership in these institutions to embrace employment equity as a very high priority and to set a standard of leadership in this area that directs the institution, that leads the institution towards completing employment equity within reasonable time horizons.
Some institutions have already made significant progress under the FCP with workforce censuses and some, I think, already have made a lot of progress in the development of employment systems. I see the time horizons as outer limits or maximum bounds and I think it's entirely possible that many institutions would reach those goals much more quickly.
The Chair: Thank you. You'll probably have an opportunity to answer the question again. There's still eight more minutes. Mrs Witmer.
Mrs Witmer: Thank you very much for your presentation. As a member who represents two universities in Waterloo, I'm particularly interested in the work that's been done thus far. I think it's also very beneficial to hear from individuals such as yourself, who have been actively involved in this experience.
You've made some good points, certainly, and one of the simple things I think the government needs to change is the reordering of the questions and placing the gender first, in order that males are not required to identify negatively. I hope that's a simple change that they will make.
I'd like to focus, though -- there's been a tremendous amount of concern expressed around the self-identification and the fact that there is some concern that employers will not receive, I guess, a high response rate or people might not appropriately identify themselves. I think I heard somebody say that among the seasonal employees you only had a 60% response rate.
You've suggested that some guidelines be established. What would you suggest happen as a result of the experience you've had that will ensure that there be a high response rate and that it will be accurate?
Mr Wilkinson: I think, collectively, our experience in terms of ensuring a high response rate is a tremendous education campaign has to go on within the workplace prior to the administration of the survey and that has to be ongoing at all times. We note that the legislation does make a requirement that all employees return their questionnaires, which in fact can constitute a response. We have said that, in our experience within the university environment, we do see that as problematic, just with the legislation saying an employee will return the questionnaire, without some sort of sanction, because we certainly in our institutions cannot impose any kind of sanction for someone who fails to return the questionnaire. I think that's why we have made that comment within our submission. Other than that, I think that's just the shortest way of saying its education.
Mr Keith Allen: I suppose what we're really saying is that if there is an insistence that all employees must return this, there has to be some kind of legal sanction. Otherwise, if you continually hound people to send these, they could deliberately spoil them or put information which would seriously skew the information you're getting and it would not be a reliable way. So either we should omit that requirement or we'll have to have some kind of legislative sanction to enforce it, and it could hardly be left just for voluntary --
Ms Mays: We clearly don't see that we could enforce it. I want to support what my colleagues just said. Universities aren't in a position where they can begin to penalize people who don't return a voluntary questionnaire. That's automatically a misnomer; it's involuntary then.
Mr Allen: And it is not really part of the university culture.
Ms Akande: Even if they see it as beneficial.
Dr George: That's the point I was going to make, Ms Akande.
Interjection.
The Chair: The question may be something you may want to answer.
Dr George: I was addressing Ms Witmer's question --
Mrs Witmer: You may continue.
Dr George: -- restated by Ms Akande.
Ms Akande: I was just helping Ms Witmer.
Dr George: Yes, of course. I think that very much depends on the incentives to the employees to complete these questionnaires. If the institution is seen to be serious about employment equity, about implementing employment equity and making it effective, then employees will get the message that there is a return, there's an incentive to complete these questionnaires, to take them seriously and to provide that kind of information, and I think the response rate will go up. It'll never be 100% because of the nature of human beings. But I think response rates can certainly increase in response to the clear message that this is an important initiative in the institution and there are clear incentives to employees to fill out the forms.
Ms Kaufman: I would like to add one more thing that no one has mentioned, and that's the very important role that I think employee associations and bargaining units can play in encouraging their members to participate in surveys. I think around the province the universities have some experience with a whole range of bargaining units; we have different ones in our institutions. Some have been more supportive than others around employment equity survey work, in encouraging or discouraging their members to complete surveys. I think that's something else that as practitioners we would all certainly urge, that bargaining units and other employee associations need to be brought on side and need to take a really active role in this.
Mrs Witmer: So cooperation is absolutely essential.
Ms Kaufman: Absolutely.
Mrs Witmer: One final question. You express in number 25 your concern around the third-party complaint and the fact that there needs to be some reasonable limitation on the circumstances under which that will be accepted. Again, that concern has been raised by various presenters. You've indicated here that there should be a test demonstrating disadvantage. Do you want to expand on that? I'm not sure what you mean.
Mr Wilkinson: We put this together rather quickly, like, I would think, many organizations and we would like to have given you more definition and we've not been able to get together collectively to discuss this further, but our concern is that from our perspective -- I do know that you've had some presentations which suggest that third parties will not have access to plans and reports. From my experience, I don't see how that would be the case simply because I think the legislation makes it very clear that the employer has to post a plan and all the requirements. Certainly, within a university, once it uses its internal communication organs, it will be a public document. The question then becomes how sensitive third parties are to the process with regard to, if you've engaged in a true, collective, participative approach, how sensitive they are to those and the inclusion of trying to meet those objectives.
One way to do that a little bit better, in my opinion, which would get back to Mr Curling's question, and also yours, to improve response rates -- and one of the things that's not in the regulations or the legislation is the specific designation for the participation of designated group employees or representatives in the employment equity process, the committee of an organization. Quite frankly, we've had a lot of discussion about that and we find it rather odd that there wouldn't be specific provision for the inclusion of that perspective, of that kind of representation, within the planning process at all stages.
I note within our own organization, because we've had that kind of input, separate from the perspective of the employer and employee groups but rather the perspective of specific designated groups, that has improved the sensitivity and the awareness throughout our entire organization and has assisted in response rates, quite frankly, and in the development of specific initiatives.
Mrs Witmer: I appreciate the experience you have had and the advice you've had to offer.
The Chair: I too as the Chair would like to thank you for the submission you made today and for taking part in these discussions. Thank you.
Dr George: Thank you.
The Chair: This committee is adjourned until 10 o'clock tomorrow morning.
The committee adjourned at 1701.