CAW Submission on the Review of the Employment Equity Act: February 19, 2002

February 19, 2002


Brief To The Standing Committee On Human Resources Development And The Status Of Persons With Disabilities On The Review Of The Employment Equity Act

Introduction

The Canadian Auto Workers (CAW) Union appreciates this opportunity to present our views to the Parliamentary Standing Committee on Human Resources Development and the Status of Persons with Disabilities responsible for reviewing the Federal Employment Equity Act. We commend the Federal Government for conducting a review of the Employment Equity Act ("Act"). We believe this review is necessary to improve the status of the designated groups so that it may be a more effective instrument, allowing for fair access to the workplace.

As the largest private sector union in the country, the CAW is committed to diversity. We are an organization of 250,000 members across the country, employed in a broad range of sectors of our economy, including manufacturing, transportation, services, mining, fisheries, and other sectors.

The CAW's Commitment to Equity

The fundamental premise of a union's existence is to ensure fair and equal working conditions for workers. The CAW is striving for equality in the workplace and we believe federal employment equity legislation can be an important instrument to achieve it. At many of our workplaces, we have been able to negotiate joint workplace training which allow us to address equity issues in the workplace. We have worked tirelessly on health and safety issues to prevent workplace injury and disease, and we have demanded that our workers who do become sick or disabled maintain their workplace rights, dignity, and access to employment.

We have won awards, jointly with employers, for our efforts to create discrimination free practices, through our negotiated employment equity plans in the auto sector. In order to continue to move forward with our employment equity actions and initiatives, we need a stronger Act to assist us with our efforts.

Our Experience with the Federal Legislation

The strength and effectiveness of the federal Employment Equity Act is important to the CAW as a large portion of our membership falls within its jurisdiction such as road and marine transportation services, airlines, railways, telecommunications, mining, and fisheries. Thousands of our members also work for employers who are required to comply with the federal contractors program, i.e. aerospace and auto assembly employers. We have been negotiating employment equity provisions in our collective agreements for many years. In addition, we initiated joint union-management employment equity committees at DaimlerChrysler, Ford, GM and CP Rail, working towards creating an equal and barrier free workplace.

Social and Economic Framework

The first Employment Equity Act in 1986 was based on the concept of fairness through education not compliance. In 1996 the Act was expanded to include the federal public service and to provide a compliance role for the Canadian Human Rights Commission. It is encouraging that recent HRDC/Labour review consultations have reiterated the need for continuation of the Act. During the consultation process, many have called for stronger enforcement and a more active educational and leadership role for the HRDC/ Labour. The Employment Equity Act Review has shown important links between social, economic issues and employment equity. It is about time that we should examine employment equity in an economic and social context. Studies ...show "a dramatic cost to Canadian GDP in terms of lost productivity due to the under-utilization of designated group members" {The Employment Act Review, Human Resources Development Canada, December 2001}.

Strengthening the Act

The Canadian Human Rights Review Panel in its 2000 report, Promoting Equality: A New Vision, made employment equity related recommendations. Included in these recommendations are: enhancing the powers of the Canadian Human Rights Commission or Tribunal under the existing Employment Equity Act , community groups' input into the Commission's implementation responsibilities. It is critical that this Standing Committee review the report for the purpose of implementing the Panel recommendations.

We have serious concerns about the progress of people with disabilities and aboriginal peoples under the Act. It is also time that this Act addresses the discrimination faced by gays and lesbians, by including education on homophobia and gay and lesbian human rights as part of an employment equity educational program.

1. Joint Responsibility

Section 15 of the Act requires that employers consult with "employee representatives" regarding the preparation, implementation, and/or amendments of the Employment Equity Plan, and the general facilitation of employment equity in the workplace. Guideline 3 explicitly states that the only enforceable duty under the Act is the duty to consult with employee representatives, not the duty to jointly act. Employers have interpreted their duty to consult as requiring no more than the solicitation of information from an employee representative.

As part of our mandate, the work of unions is to identify and remedy barriers, which may exist in the workplace. Our commitment to and our experience on the matter has led us to negotiate a number of equity provisions in our collective agreements. As a result, union representatives would be well suited to play a strong role alongside the employer in the design and implementation of employment equity proposals.

The existing legislation must be strengthened to ensure that unions have a real and concrete role in the preparation, implementation and revision of the employment equity plan. The Act should be strengthened to make co-management of the employment equity plan between the employer and employee representative obligatory and enforceable. It is critical that any existing and future obligations to collaborate be clearly defined to ensure that participation by employee representatives is meaningful and is not easily ignored.

It is our position that unions should be engaged from the very beginning. Unions should be involved with employers in examining and reviewing the different aspects of the workplace that affect hiring, promotion, training, job postings qualifications etc., with a view of identifying and removing systemic barriers that might exist. Since many of these categories may fall within the confines of a collective agreement, it only makes sense to have union involvement from the very beginning. Any participation must equally occur throughout the development, implementation and monitoring stages of the Employment Equity Plan.

The successful development and effective implementation of an employment equity plan depends on the support of the workers and the employer. Workers through their union must participate on the employment equity committee to ensure that the rights of all workers are protected if not enhanced. Workers will actively support employment equity plans when they know the plan was developed with respect for the rights of workers in the workplace as well the rights of those who have been excluded from the workplace. The participation of unions allows for a collective assessment of what may be most appropriate in the particular workplace.

2. Joint Union/Employer Workplace Committees

We recommend the establishment of joint union-management committees, similar to those in the Health and Safety committee system. These committees should be compulsory and structured to reflect equal representation by union and management to make the collaboration process effective. While this is presently a suggestion under Guideline 3, it is not enforceable and in our experience is rarely followed. We feel the guidelines are not effective and therefore this provision should be obligatory.

The CAW has some experience in the area of workplace employment equity committees because we have negotiated the establishment of such committees with major employers. Specifically, the CAW DaimlerChrysler collective agreement establishes a local employment equity committee in each workplace. The collective agreement also establishes a master employment equity committee consisting of four union representatives and four employer representatives. The committee has joint responsibility for:

a) Developing and implementing a joint employment equity plan;

b) Developing a communication strategy to educate and update employees on equity issues;

c) Participating in community and/or school career awareness programs to inform people about potential employment opportunities;

d) Developing information to encourage designated group members to apply for technical and skilled positions;

Similar language can be found in our collective agreement language with Ford Motor Company of Canada and General Motors of Canada.

3. Education

The creation of an employment equity program is not enough; educating the general public and the workforce on the need and importance of employment equity is equally as important as its implementation. Education will assist in alleviating myths and misconceptions that are synonymous with employment equity. The existence of these myths undermines and harms the employment equity process.

The workplace must reflect a commitment to the plan and foster an environment where it is encouraged. It is imperative that throughout the entire equity process, workers receive education and communication about any employment equity initiatives, their purpose and their effect. The Act is presently silent on any such requirement. It is our position that an employer should be obliged to provide education and that it should be jointly developed and delivered with employee representatives. Educational initiatives will demonstrate the employer's commitment to the plan.

Education and training need to be directed at both employees and managers. While senior management may accept employment equity initiatives, front line management are often unaware of the benefits and are apprehensive and reluctant to implement the plan. What we find extremely problematic is that employers are not even required to have Employment Equity plans accessible, a simple step that would begin the education process.

Educating the general public is equally as important as educating those in the workplace. Along with anti-discrimination education, it is important to provide education about the principles of employment equity. Awareness must be raised as to what the legislation entails - what employers are required to do and why it is beneficial to society.

As mentioned previously, the joint employment equity committees at DaimlerChrysler, Ford and GM have had considerable success in educating workers and doing outreach in the schools and communities.

4. Increased Employer Obligation

In many situations senior management's commitment to employment equity is limited to lip-service. This is then reflected in the inaction of front-line managers who are either unaware of the need to implement the employment equity plan or they understand senior management's lacklustre commitment.

The Act should add specific provisions to hold employers accountable for their employment equity activities. Employers should be required to allocate proper resources to ensure proper implementation of the plan. This could include designating personnel to co-ordinate employment equity activities, providing workers and frontline management with training, ensuring manager accountability through performance reviews for hiring, retention, promotion and implementation of positive polices and practices in employment plans.

Reporting is an essential part of accountability. The fact that a law is required to ensure that the principles of employment equity are implemented indicates that employers are not making these changes voluntarily. This is why stronger reporting measures are necessary. The reporting requirements need to be more detailed to allow information to be collected on specific communities, including women with disabilities and visible minority women. The category of women is not sufficient enough to determine if all communities are benefiting from the employment equity initiatives.

5. Enforcement

Legislation can only be effective when there are clear measurable goals and consequences for failing to achieve these goals. One of the most damaging features of the Act is that it lacks any substantial enforceability mechanisms.

The inability of third parties to lodge complaints means that employees and/or unions cannot hold employers accountable. As a result, the Canadian Human Rights Commission is responsible for auditing, monitoring and lodging complaints to the Tribunal. The Commission is unable to effectively monitor compliance. The Commission lacks the necessary tools and resources to enforce accountability on employers and as a result, there is little consistency among the enforcement actions taken by the Commission.

We believe that employees and/or unions should be allowed to bring complaints forward. Within the present system, a complaint to the Commission would trigger an investigation by a Compliance Officer. In the alternative, a more effective means of enforcement would be the creation of a permanent tribunal of adjudicators. These adjudicators would have requisite expertise and training in the area of equity and would be permitted to hear complaints arising from non-compliance of the Act. The establishment of a specialized tribunal would result in the most efficient resolution of grievances.

Furthermore, any right of review afforded to employers should also be granted to employees and the union. For example, under the present regime only employers have the right to request a review of any of the Compliance Officer's direction to the Employment Equity Tribunal.

6. Establishment of Permanent Employment Equity Commission

It is our belief that the establishment of a permanent Employment Equity Commission to administer the Act would be more effective than the present structure. The division of responsibilities between various government departments means the administration of the Act is vulnerable to neglect as these departments face resource cuts. By bringing the administration under one permanent body, there will likely be more consistency in the implementation of the Act and the ability of this organization to make linkages between sections of the Act that are presently separated.

7. Federal Contractors Program

Employers under the Federal Contractors Program should be covered by the same employment equity rules and regulation as the federally regulated sectors. We believe that employment equity rules and regulations should equally apply to the Federal Contractors Programs, thereby being subject to the Canadian Human Rights Commission compliance and audit requirements.

Specific Language

In addition to the comments above, we would like to make several specific recommendations to the language of the Act.

1. Section 6, 33 (1), AND 33 (2) Should be Eliminated From The Act.

In our submission to this Committee in 1995, we asked Section 6 be eliminated from the Act because it presents an unnecessary defensive tone to the Act. We are repeating our request.

Advancing human rights protection in the workplace should be considered positive and the federal government should be proud of the employment equity legislation, but Section 6, 33 (1) and 33 (2) do not reflect this sentiment. The purpose of government legislation is not to tell people or institutions what they do not have to do. These sections actually perpetuate the myths associated with employment equity and therefore should be removed.

2. Section 3 Should be Amended.

The definition of visible minority is extremely problematic as it directly compares all people with the Caucasian race and white colour. Defining a group's status by contrasting their race/colour with that of dominant society explicitly sets out what is the norm. Identifying people of colour as "non-Caucasian" or "non-white" is offensive.

Therefore the definition of "visible minority" in Section 3 should be re-written to remove any reference to "non-Caucasian" or "non-white".

3. Section 5 (B) Should be Amended.

The human rights test is accommodation to the point of undue hardship, not "reasonable accommodation". Furthermore, this section is too vague. The measure of progress should be quantifiable and objective (see also section 10(1)(a)).

4. Section 9 (2)

The goal is self-identification. No one should need to "agree to be identified".

5. Section 16

Two years is too long for new employers to comply with workplace legislation.

6. Section 18 (8) Needs to be Clarified.

In this section employers are afforded with a fairly ambiguous exemption. What are the "special circumstances"? Why is this application made in secret? This needs to be better defined and limited to exceptional circumstances. The union must have the right to intervene with the onus on the employer to demonstrate why they should not comply with the law.

7. Section 19

While we strongly agree that the reports should be made public, we still believe that the union must be provided with a copy. Again, "special circumstance" needs to be defined. (Section 19 (2))

8. Section 36

In light of the lengthy complaint and appeal process, the two-year period in which a Minister can issue a monetary penalty may not be enough time to assess the situation. In regard to section 36 (3), the test to be applied should not be "wilfulness or intent". Employment Equity is aimed largely at adverse effects discrimination which does rely on intent - it is the effect that matters.

Conclusion

As we examine the demographics of this country and look at the potential workforce of tomorrow, we must conclude that employment equity is fair and just. Effective employment equity legislation is a crucial step towards achieving fairness for all working people.

Mandatory targets and timetables which take into account specific local demographic characteristics  is essential to making any real progress. In addition, any data collection or categorical approaches must take into account the multi-forms of oppression that exist. Therefore, simple formulas or presumptions will not address the issue of multiple barriers.

It is only in rare occasions that legislators have the opportunity to create or amend laws in a way that can significantly affect people's lives. Key provisions such as joint development of the equity process by unions and employers, education and communication programs, measurable goals and timetables, and effective compliance mechanisms, must be included in order to make this legislation effective.

During tough economic times, it is tempting and easy to bow to right wing pressures to oppose social justice measures. We urge this Committee and the Government to do the fair and just thing.


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