Chapter 5: Reactivating the meaningful consultation pillar

Official title:  A Transformative Framework to Achieve and Sustain Employment Equity - Report of the Employment Equity Act Review Task Force: Chapter 5

Author: Professor Adelle Blackett, FRSC, Ad E, Task Force Chair

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Introduction – Making consultations meaningful

Consultations should not be about informing unions and workers, but involving these actors in the processes… The consultation should result in a profound dialogue.

Canadian Union of Professional Employees, Presentation to the EEART, 10 May 2022

Meaningful consultations have, in practice, been the weak pillar in the process of sustaining employment equity in workplaces in Canada. This must change. The active, structured participation of those most concerned with the outcomes need to be part of workplace transformations. Otherwise, we can expect no transformation.

[The] Employment Equity Act needs to deal with a delicate balance: you do not want to tell employers how to run their business but, on the other hand, you want them to incorporate into their businesses collective values and create an opportunity to do well.

Canadian Race Relations Foundation, Presentation to the EEART, 3 June 2022

Throughout our engagements, task force members heard two things that might seem contradictory.

The focus, of course, was on the nature of the consultations: consultations needed to be meaningful, with a view to enabling change. We heard that formal consultations with workers, including concerned equity groups, are foundational.Footnote 1

At some level, this seems to be broadly understood. It is repeated. The Canadian Human Rights Commission (CHRC) calls engagement with a variety of stakeholders a central priority, especially those who the policy will affect the most. The CHRC even anticipates that if no members of the employment equity group are in the organization, or if they are not willing to participate, the employer will need to engage with individuals and groups beyond the organization.Footnote 2

Bargaining agents need to be part of the movement.

Yazmine Laroche, former Deputy Minister Champion for Federal Employees with Disabilities, Presentation to the EEART, 14 June 2022.

Not a top-down exercise

Employment equity should not be thought of as a top-down form of workplace control. Not only are top-down workplace governance models increasingly considered to be outdated; employment equity is premised on fostering workplace inclusion for equity groups. It recognizes and seeks to respect a key feature of trauma-informed approaches: that collaboration with historically excluded groups constitutes a crucial way to avoid re-traumatization.Footnote 3 Meaningful consultations also strengthen the attempt to correct a reliance on purely quantitative data. Workers’ participation is necessary to be able to identify and remove barriers. Studies also underscore the importance of unions to promoting and fostering compliance with employment law, including by multinational enterprises located in Canada.Footnote 4 Mechanisms that enable meaningful consultations should therefore be at the heart of employment equity.

The Employment Equity Act contains several key provisions requiring consultations. But as we discuss in this chapter, in many workplaces, those consultations seem minimal at best, and the provisions to ensure compliance seem not to be audited systematically.

Hiring is a management responsibility, and the Employment Equity Act framework respects the delicate balance. And as we have stressed throughout this report, employment equity is not only about hiring, and it is certainly not only about the numbers.

Procedures and processes that ensure fairness can and have been implemented in Canadian workplaces, and the federally regulated workplaces covered by the Employment Equity Act already have experience that can guide ongoing implementation.

Making employment equity consultations meaningful is part of the crucial recalibration for achieving employment equity.

Participation is at the heart of substantive equality and the processes that secure it.Footnote 5 For all workers to be able to bring their authentic selves to the workplace, much needs to be done to move beyond the poles of disaffected disengagement and heavily litigious individual complaints of discrimination. Mechanisms that give workers a voice in the workplace are not a panacea, but they can help.

In the meantime, the notion of meaningful consultation has developed both in international law and in Canadian law. This is particularly true in relation to Indigenous rights. It is also the case in labour law. These insights should help to move the employment equity framework beyond loose calls for “diverse voices” to be heard, toward more carefully structured consultation rights that benefit all.

Meaningful consultations are especially important because they encourage the kind of supportive and sustainable environment we need to make employment equity a reality in Canadian workplaces.

Workers who speak out or become active in equity work may find themselves exposed to reprisals rather than thanked for their investment in making their workplace more equitable. Taking meaningful consultations seriously in the Employment Equity Act framework can help to create structures where workers who invest their time and energy are better recognized, remunerated and protected against reprisals.

To have the necessary “courageous conversations” requires structured processes with reliable information and meaningful protections against retaliations.

Many constituents from a broad range of equity groups, unions and employers recommended that consultations should be formalized through joint employment equity committees. The Canadian Human Rights Commission made a similar recommendation to the task force, and has provided the following guidance:

When developing a special program or special measure, engagement with those affected is crucial. Many organizations incorporate “consultation” into their policy-development process, generally by inviting comments on a policy or program that has been developed. Engagement is different because it involves the impacted group for the duration of the project, from initial brainstorming to drafting to implementation and beyond, in whatever capacity they are comfortable. This ongoing process allows the organization to develop lasting and meaningful relationships with the individuals who are most impacted by the initiative.

Canadian Human Rights Commission, Levelling the Field: Developing a Special Program or Special Measure under the Canadian Human Rights Act or the Employment Equity Act, January 2022.

In this chapter, our task force recommends that joint employment equity committees be mandated. They should be built on existing models for pay equity and occupational safety and health.

We were rightly cautioned that the committees should not simply be established as talk shops; their mandate should be clearly defined and play a key role in reporting obligations and ensuring accountability.Footnote 6

Our task force was fortunate, too, to have a number of unions and employers explain how the collective bargaining process allows them to arrive at agreements that foster equitable inclusion.

We came away with a clear insight: employment equity will not be achieved unless we pay attention to supporting and sustaining the quality of the workplace relationships. Equity groups need to be heard through fair and equitably inclusive processes. Nothing about us, without us.

The EEA task force should consider an enhanced ‘employee voice’ proposal as part of its review of the Federal Employment Equity Act framework… EEA objectives and goals can only be fruitfully realized by allowing all workers – especially those historically marginalised and disadvantaged – to bring their lived experiences and knowledge to the table.

Rafael Gomez, Ensuring Compliance and Progress with the Employment Equity Act: A Review of Worker Voice Mechanisms in the Federally Regulated Private Sector, unpublished paper prepared for the EEART, 31 October 2022

Canada’s international commitments to meaningful consultations

Meaningful consultations are an important part of Canada’s international commitments. In Chapter 3 we explained the significance of Canada’s commitments under the United Nations Declaration on the Rights of Indigenous Peoples, alongside Canadian cases on Aboriginal and treaty rights.

Canada’s commitment to meaningful consultations encompasses the freedom of association and equality.Footnote 7 The ILO’s Committee of Experts on the Application of Conventions and Recommendations has stressed the importance of meaningful consultations in proactive measures to achieve equality:

The Committee also wishes to stress the importance of consulting with the social partners and the interested groups on the design, monitoring, implementation and evaluation of the measures and plans adopted with a view to ensuring their relevance, raising awareness about their existence, promoting their wider acceptance and ownership and enhancing their effectiveness.

The Committee recalls the important role that employers’ and workers’ organizations play in promoting understanding, acceptance and realization of the principles of the Convention which set out broad requirements of active cooperation with employers’ and workers’ organizations with respect to the effective implementation of the national equality policy required under the Convention. The Committee also underlines the importance of collective agreements in applying the national equality policy and advancing equality of opportunity and treatment for all workers, irrespective of race, colour or national extraction.

ILO Committee of Experts on the Application of Conventions and Recommendations, General Observation on Discrimination based on Race, Colour and National Extraction, 2019.

Meaningful consultations on employment equity need to include representatives of employment equity groups, a principle that several UN treaty bodies have reaffirmed.Footnote 8 The UN Guiding Principle 31 on Business and Human Rights includes engagement and dialogue with the stakeholder groups for whose use the mechanisms are intended. The engagement and dialogue cover the design of the mechanisms, their performance, and how to address and solve grievances.

Meaningful consultations in canadian labour law

Meaningful consultations have also been at the heart of collective labour relations law in Canada. The Supreme Court of Canada has increasingly defined the importance of a meaningful labour relations process through cases on the freedom of association and collective bargaining rights, and therefore outside of the context of the specific labour relations scheme.Footnote 9 There is a constitutional duty under Section 2(d) of the Canadian Charter of Rights and Freedoms to consult with trade unions, in good faith. This “meaningful dialogue” is to be understood in context, and entails “engaging in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground.”Footnote 10

Although employment standards covering non-unionized workers have traditionally been recognized as the arena of direct state enforcement, with a growing enforcement gap we are seeing increased experimentation with ways to ensure that mechanisms can provide worker voice.

Employment equity spans both contexts where collective bargaining agreements are in place and workplaces without union representation. It focuses on groups that have been historically excluded, so much needs to be learned about barriers to equitable inclusion. Meaningful consultations are crucial both to learning what is needed, and ensuring that employment equity groups feel heard.

For employment equity to be transformative in result, it must be transformative in process. It must draw bargaining agents and employment equity groups in to arrive at the change we need.

Canadian case law already recognizes that both employers and unions have a duty to accommodate to the point of undue hardship, and the provisions of a collective agreement cannot absolve them of this duty.Footnote 11

It is settled law that unions can be held legally responsible for causing or contributing to discriminatory effects in the workplace, and that unions as well as employers bear a duty to accommodate if the union is a party to the discrimination.Footnote 12 A union may be a party to discrimination in one of two ways, and the application varies depending on how it arose, namely by:

  1. “participating in the formulation of the work rule that has the discriminatory effect,” which might be in the collective agreement, and
  2. failing to accommodate even if it did not participate in formulating the discriminatory rule or practice – that is, by impeding reasonable employer efforts to accommodate: “if reasonable accommodation is only possible with the union’s cooperation and the union blocks the efforts to remove or alleviate the discriminatory effect, it becomes a party to the discrimination.”Footnote 13

The Supreme Court of Canada added that “[a]ny significant interference with the rights of others will ordinarily justify the union in refusing to consent to a measure which would have this effect”. It also underscored that while “well-grounded concerns that [other employees’] rights will be affected must be considered … objections based on attitudes inconsistent with human rights are an irrelevant consideration.”Footnote 14

With the recommendation of complaints procedures under the Employment Equity Act, we should expect similar careful parsing of responsibilities to be undertaken. However, the basic principle remains and is consistent with existing jurisprudence: discrimination in the workplace is everybody’s business.Footnote 15

There have also been some particularly interesting processes made possible through collective bargaining, such as the following on Indigenous languages. It is the Joint Committee on the Use of Indigenous Languages in the Public Service, which is co-chaired by OCHRO and the Public Service Alliance of Canada. This initiative emerged out of a collective bargaining agreement:

Collective Bargaining and Indigenous languages:

Given that:

The parties agree to establish a joint committee, co-chaired by a representative from each party, to review the use of Indigenous languages in the public service, examine Indigenous language skills in the performance of employee duties and consider the advantages that Indigenous language speakers bring to the public service.

Agreement between the Treasury Board and Public Service Alliance of Canada, Program and Administrative Services, Appendix P, Expiry 20 June 2021.

We keep in mind Professor Lizzie Barmes’ research from the UK context. It finds that there is more potential to accommodate equality rights and build on them in workplaces that are embedded with trade unionism and employee participation than in workplaces where employers deal with employees one by one, even when those employees are able to present concerns as a group claim.Footnote 16 This finding was echoed by many of the experts on employment equity who engaged with our task force.

In other words, unionization is not a prerequisite for meaningful consultations. However, unionization helps. In the federal public service and the federally regulated private sector as presented in Chapter 1, coverage is relatively high. The federal public sector, with its strong unionization rates and large organizational structures, has tremendous potential to lead by example on meaningful consultations on equity generally, and employment equity in particular.

Some bargaining units also wanted us to clarify that the Employment Equity Act framework encourages rather than restricts collective bargaining more generally:

The Employment Equity Act should represent the minimum for employment equity initiatives. Currently Bargaining Agents cannot negotiate staffing or classification of their members under the current legislative framework. This should be eliminated as the Employer’s unilateral ability to determine the policies regarding staffing, and limited classification grievance rights have contributed to a lack of progress on Employment Equity.

Canadian Union of Public Employees, Submission to the EEART, 28 April 2022

While the task force does not consider this to be a necessary interpretation of the Employment Equity Act framework, we acknowledge that it is how the framework has been presented to workplace actors in some circumstances. We should be clear: the Employment Equity Act framework is not meant as a limit to collective bargaining that deepens equitable inclusion. Consistent with Canada’s international and constitutional obligations, the Employment Equity Act framework should be drawn upon to encourage collective bargaining to promote equitable inclusion in federally regulated workplaces. Given the room for confusion in interpretation, it would be important to ensure that the Employment Equity Act clarifies its relationship to and effects on collective agreements.

Recommendation 5.1: The Employment Equity Act should clarify that the obligation to make reasonable progress to achieve employment equity, and to sustain employment equity once it has been achieved:

  • is incorporated into collective agreements governing employees of covered employers, and
  • encourages, rather than limits, collective bargaining that deepens equitable inclusion, notably on staffing or classification

Consultation under the current Employment Equity Act framework

The task force was told that the consultation provisions in the Employment Equity Act left too much room for ambiguity over the nature of the consultations. Unions and employees were left with little to rely upon. The practice has tended to be that workers are left out of employment equity processes of identifying and eliminating barriers, or setting employment equity plans.Footnote 17

The Employment Equity Act framework refers to consultations between the employer and its employees’ representatives in several respects. In none of these respects does it specify that the consultations need to be with members of equity groups themselves.

The main provision is Section 15 of the Employment Equity Act, which provides for consultation:

Section 15(1) Every employer shall consult with its employees’ representatives by inviting the representatives to provide their views concerning

  1. the assistance that the representatives could provide to the employer to facilitate the implementation of employment equity in its workplace and the communication to its employees of matters relating to employment equity; and
  2. the preparation, implementation and revision of the employer’s employment equity plan.

Where employees represented by bargaining agents

(2) Where employees are represented by a bargaining agent, the bargaining agent shall participate in a consultation under subsection (1).

Collaboration

(3) Every employer and its employees’ representatives shall collaborate in the preparation, implementation and revision of the employer’s employment equity plan.

Rule of interpretation

(4) Consultation under subsection (1) and collaboration under subsection (3) are not forms of co-management.

According to Section 22(1) of the Employment Equity Act, the Canadian Human Rights Commission has a specific responsibility to enforce employers’ consultation requirement in its compliance audits.

We heard many calls by employment equity groups and subgroups for “more seats at the decision-making table” through a meaningful approach to consultation under Section 15.Footnote 18

Meaningful consultations and seniority

“There are various models of blended approaches which balance the need to recognize workers’ service to the organization and the need to remove barriers for equity-seeking groups. The Act should support employers and workers in developing promising practices and focus on complementarity between bargaining processes and measures to advance employment equity.”

Canadian Labour Congress, Submission to the EEART, April 2022.

Consultations are also specifically foreseen in respect of the particularly sensitive issue of employee seniority rights. Seniority rights are carefully framed in Section 8(1) as not constituting employment barriers in respect to a layoff or recall under a collective agreement or established employer practice. Section 8(2) addresses other seniority rights and considers them similarly not to be employment barriers unless they are found to constitute a discriminatory practice under the Canadian Human Rights Act. However, Section 8(3) clarifies that seniority practices are not exempted from analysis and review pursuant to Section 9(1)(b) of the Employment Equity Act. That provision requires an employer to “conduct a review of the employer’s employment systems, policies and practices, in accordance with the regulations, in order to identify employment barriers against persons in employment equity groups that result from those systems, policies and practices.”

According to Section 8(3),

Notwithstanding subsections (1) and (2), where, after a review under paragraph 9(1)(b), it appears that a right referred to in either of those subsections that is provided for under a collective agreement may have an adverse impact on the employment opportunities of persons in designated groups, the employer and its employees’ representatives shall consult with each other concerning measures that may be taken to minimize the adverse impact.Footnote 19

Both employers and bargaining units sought greater latitude to engage in meaningful consultations in the context of employment equity. One might have imagined this would entail sustained critique of seniority. But we received very little, and considered an individual example brought to our attention could have benefitted precisely from the ability for parties to seek advice from the Employment Equity Commissioner, and support on collective bargaining practice. Our task force received very few representations on seniority rights. The Canadian Labour Congress expressly called for the provisions to be left as is.Footnote 20 On seniority, we think it is reasonable to say that the Canadian employment equity landscape has largely settled on the balance established under the current Employment Equity Act framework.

One employer did call for reflection on the relationship between seniority and the United Nations Declaration on the Rights of Indigenous Peoples, including the latitude for employers to act unilaterally and bypass seniority if parties are unable to come to agreement.Footnote 21 The impact of the United Nations Declaration on the Rights of Indigenous Peoples has permeated the entire reflection on the Employment Equity Act framework. We have considered how to rethink the relationship toward one that supports self-determination and nation-to-nation relationships. Our approach to meaningful consultations is meant to underscore the need for Indigenous peoples and nations to be at the forefront on matters that affect them.

The Canadian model respects the balance established internationally. Article 7(c) of the International Covenant on Economic, Social and Cultural Rights, ratified by Canada since 1976, provides an equal opportunity for everyone to be promoted in their employment. It is understood that employment equity might be required to accelerate achieving equality. This right is subject only to seniority and competence, and workers’ right to be promoted should be protected against reprisals for trade union or political activity.Footnote 22

The task force agrees that the Employment Equity Act’s provisions on seniority, encompassed as they are in an approach focused on meaningful consultations, strike the right balance. The provisions respect the importance of recognizing and valuing workers’ service, while ensuring that barriers can be addressed. There is a strong focus on ensuring that the balance is struck through meaningful consultations.

Reporting on consultations and consultations on reporting

Where the provisions need work is in reporting on consultations. They also need work on how to consult on reporting. Our recommendations work to address these challenges.

The federal public service is specifically required to report on its consultations. Under Section 21(2)(c) of the Employment Equity Act, the Treasury Board’s report is required to contain “a description of the consultations between the Treasury Board and its employees’ representatives during the reporting period concerning the implementation of employment equity”.

Interpretation, Policy and Guideline (IPG) 115 under the Employment Equity Regulations on Communication, Consultation, Collaboration seems to translate the employer responsibility into largely an “information” requirement. Employers are also informed that they must invite employee representatives and bargaining units to “provide their views” on how employment equity can be implemented and in communicating to employees, while requiring collaboration on the “preparation, implementation and revision” of the plan.

Employers must inform their employees about:

  • the purpose of employment equity
  • the measures undertaken or planned to implement employment equity
  • the progress made in implementing employment equity

Employers must invite employees’ representatives, including bargaining agents where applicable, to provide their views on:

  • the assistance that the representatives can provide in implementing employment equity and in communicating to employees on related matters
  • the preparation, implementation and revision of the employment equity plan

Employers and employees’ representatives must collaborate in the preparation, implementation and revision of the employment equity plan.

Employers must establish and maintain records of the activities undertaken to inform employees and the information provided to them.

Interpretation, Policy and Guideline (IPG) 115 under the Employment Equity Regulations

The specific nature of “consultation” is rather diffuse in this framing:

Employers should communicate, consult and collaborate frequently with employees and their representatives when they are conducting their employment equity activities (see recommended activities related in the Employment Equity Task - Meet your Communication, Consultation, and Recordkeeping Requirements). Otherwise, employers should do so at least once per year.

Employers should ensure to take the views of members of designated groups into account in the consultations.

Employers should invite bargaining agents to participate in the consultations and encourage their collaboration, or designate someone to participate on their behalf. Consultation and collaboration are not forms of co-management.

When employees’ representatives or bargaining agents do not collaborate, employers should record their attempts to engage them and reasons given for non-participation.

Interpretation, Policy and Guideline (IPG) 115 under the Employment Equity Regulations

In linked online explanatory information to LEEP employers, communication, consultation and record-keeping requirements are framed as an “ongoing task”.

The least one can say is that the guidance almost anticipates a minimalist role and leans toward direct voice mechanisms rather than sustained collaboration. Regrettably, it anticipates non-participation by unions rather than measures to ensure their meaningful participation.

The meaningful consultation pillar is weak, and so are the results.

Meaningful consultations in the federal public service:

In the federal public service, however, there is a joint employment equity committee that is actively involved in “co-development” of directives and policies:

The Joint Employment Equity Committee (JEEC), an ongoing advisory national forum within the National Joint Council (NJC). The NJC’s process is one of “co-development of directives and policies.” The JEEC is the vehicle through which employment equity, diversity and inclusion policies and programs are discussed. It includes the Treasury Board Secretariat (TBS), the Public Service Commission (PSC), bargaining agents and departmental representatives. It may invite others to collaborate with it. Its mandate is to:

To achieve its mandate, the JEEC relies on:

However, we found it surprising that the JEEC was barely referenced in consultations with our task force.

Our task force was told that unions were consulted throughout the co-development of TBS OCHRO’s strategy and its implementation. JEEC was mentioned in the 2019-20 annual report of the Treasury Board Secretariat as participating in discussions about harassment and violence prevention, as well as recruitment and staffing.Footnote 23 Its meetings were mentioned in some prior reports as well, including the 2009-10, 2011-12, and 2015-16 annual reports. However, there are no references to JEEC in the 2020-2021 or 2021-2022 annual reports. We were left to wonder about the systematic follow through of planned initiatives.

The Directive on Employment Equity, Diversity and Inclusion of 1 April 2020 requires “engaging, consulting and collaborating” with employees who are members of designated groups under the Employment Equity Act, in addition to “consulting and collaborating with employee representatives, including bargaining agents,” to conduct amongst other things the employment systems review and the identification and elimination of barriers. It does not appear to have been a product of the JEEC process.

Unions responded to the Government of Canada’s expressed willingness to address gaps in staffing, working collaboratively with Treasury Board officials on the Joint Union/ Management Task Force on Diversity and Inclusion. The final report, Building a Diverse and Inclusive Public Service, contains 44 recommendations that have been important to this task force’s work, including Recommendation 36:

Joint Union-Management Task Force on Diversity and Inclusion, Building a Diverse and Inclusive Public Service: Final Report, 2017’s Recommendation 36:

“each department establish a joint union-management consultation committee on employment equity, diversity and inclusion that is co-led by unions and management, with agendas and minutes published on departmental intranet sites.”

It became painfully clear from our own task force consultations that the powers and enforcement responsibilities for meaningful consultations under the Employment Equity Act were not used as much as might have been expected.

One example speaks volumes. Task force members were told by Treasury Board’s deputy minister that public sector workers were deeply distressed by the limited timeframe for the consultations undertaken by the Treasury Board. While this frustration was framed as a critique of the government-mandated accelerated time frame for the task force’s review, we began to realize that the advent of the task force was not really an opportunity to consolidate feedback from years of past and ongoing meaningful consultations with employee representatives including the networks. Instead, employees seemed to perceive it as an all too rare opportunity to share their views with their employer. Their employer had a rare glimpse into the insight that can be gleaned when meaningful consultations are in fact undertaken in a comprehensive, collaborative manner.

TBS-OCHRO ultimately reported to the task force on feedback from employee networks that many provided through Deputy Minister champions or through the networks directly, rather than providing recommendations on the directions that employment equity accountability should take. We thought TBS-OCHRO might share their own experience as a joint employer alongside the Public Service Commission. It is our sincere hope that the task force process provided not only a fresh look at the work on employment equity but also the momentum to recognize just how deeply workplace actors want and are able to contribute meaningfully to achieving employment equity when given the chance.

Our task force is hopeful that the experience will rekindle support for a deepened and systematic approach to consultations, like Recommendation 36 formulated by unions and management in the 2017 joint report and quoted above. It is entirely consistent with our own task force recommendation.

There is a real opportunity to make co-development a reality throughout the employment equity process, both within and beyond the federal public service. This would entail not only reporting on consultations, but ensuring that reports are prepared through consultative processes.

Voice models

Meaningful consultation with workers benefits both employers and workers. There are two types of workplace models that enable worker voice to be heard: direct and representative.

Direct voice models

Direct voice models tend to be management led, and may include surveys, town hall meetings, even the occasional, often ad hoc, informal convening of meetings and working groups. Versions of these direct voice models have been adopted in a panoply of EDI strategies. For example, town halls can allow employers to share information and hear some questions. However, they are not really designed as a forum through which workers can provide sustained feedback, and certainly not over time.

Below is a table of the different direct voice models, with some of their generalized advantages and disadvantages:

Table 5.1: Direct Voice Models
Employee voice model Advantages Disadvantages
Employee surveys - designed to gauge employees’ experiences and views of aspects of work.
  • Can provide some good data and information on workplace issues
  • Easy to set-up and manage. Less administratively burdensome for employers than more formalized representative models (e.g., joint management/staff committees)
  • Challenge of getting staff to complete surveys and garnering representative sample.
  • More passive engagement of staff than representative models.
  • Doesn’t produce broader HR benefits inherent in more representative approaches
Suggestion schemes - under which employees (as individuals or as part of self-managed teams) put ideas to management, who then reward those whose ideas are implemented.
  • Can encourage creative thinking and generate innovative ideas.
  • Easy to set-up and manage. Less administratively burdensome for employers than more formalized representative models (e.g., joint management/staff committees)
  • Challenge of motivating staff to participate in these schemes.
  • More passive engagement of staff than representative models.
  • Doesn’t produce broader HR benefits inherent in more representative approaches
Digital media - seeking and discussing questions or ideas via electronic means. Increasingly, social media is being used in this way through enterprise social networks (ESNs).
  • Younger tech savvy workers more likely to engage through these platforms
  • Accommodates staff working from home or at different sites.
  • May not be suitable engagement approach for all workplaces. More suited to office type work than blue collar.
  • Requires enhanced IT infrastructure/programming costs
Working groups and self-managed teams - employees brought together on a regular or ad hoc basis to discuss specific organisational issues. No formalized structure or terms of reference for these groups.
  • Engages staff more directly with management.
  • Relatively easy to organize and establish
  • Can provide some good data and information on workplace issues
  • Lack of formalized mandate and structure could impact ability to achieve concrete results
  • Challenge of getting staff to volunteer to participate in these groups.
One-on-one meetings with staff - face-to-face discussions between managers and staff for whom they have responsibility, for example, through regular meetings every few weeks.
  • Builds on existing structures, no need to create new system
  • Easy to garner input directly from staff through this approach.
  • Challenge of getting staff and management to discuss specific EE issues through this process
  • Need for monitoring and reporting mechanisms
  • Could be seen as additional HR burden for management, along with performance evaluation etc. reporting.

An example: The Canadian Human Rights Commission’s own consultations

The current requirements in the Employment Equity Act are mandatory.

The Canadian Human Rights Commission (CHRC)’s report on its own workplace provides insight into how the body that audits others including on their meaningful consultations understands the consultation requirement outlined in the Employment Equity Act.

While the CHRC showed that some consultation had taken place, they noted that “voluntary” consultations yielded participation by 15% of the total workforce through a direct voice mechanism.

Some of those consulted expressed concern that they really did not have a choice but to participate, and called for greater sensitivity in the approach to consultations by the CHRC as well as meaningful time or compensation to carry out the activities in a workforce already characterized as having an “unrelenting pace”.

The process did not exclusively adopt a direct voice approach. The representative voice structure, through an Employment Equity Advisory Group convened through the CHRC’s Decolonization and Anti-Racism Consultation Committee (DACC), includes union representation.Footnote 24 A separate consultation also took place with union representatives. What participants said about the process is telling:

“[e]mployees are disaffected, they feel they have been endlessly interviewed but nothing has changed. They don’t see real change, but that is what they need.”

Public Service Alliance of Canada (PSAC), Canadian Association of Professional Employees (CAPE) and Association of Justice Counsel (AJC), comments to the Canadian Human Rights Commission, Final Report – Employment Equity: Employment Systems Review, 8 November 2022.

Are interview and feedback fatigue a necessary result of meaningful consultations?

These direct voice models have apparently been used a lot but their one-way focus is insufficient and possibly counter-productive, as the quote above suggests. In other words, “[o]ne-way communications in the form of employee surveys, suggestion boxes or town halls (with no opportunity for two-way dialogue) are not considered forms of meaningful consultation or voice.”Footnote 25 How can we bring workers more fully into meaningful consultations under the Employment Equity Act framework?

Representative voice models

The second kind of voice model is a representative voice model. Below are three broad types:

Table 5.2: Representative Voice Models
Employee voice model Advantages Disadvantages
Formalized Partnership- employee representatives and employers emphasize mutual gains and tackling issues in a spirit of co-operation, rather than through adversarial relationships. This includes a commitment to information sharing and joint decision-making on certain matters
  • Ensures high-degree of buy-in and participation from both staff and management.
  • Produces broader HR benefits for organization in terms of productivity and employee well-being.
  • Creates platform for addressing issues/concerns on proactive basis.
  • Not viable for many workplaces, especially non-union, without a tradition or culture of joint decision-making.
  • Increased training requirements for staff participating in partnerships
  • Greater time and resource requirements than more direct approaches of engagement.
Joint consultation committees- to consider issues that are deemed to be of common interest or of key importance to the parties, at non-union as well as unionized workplaces.
  • Ensures high-degree of buy-in and participation from both staff and management.
  • Well-recognized and established structure with a positive track record of success (Joint-Health and Safety committees)
  • Creates platform for addressing issues/concerns on proactive basis
  • Additional administrative burden in the organizing of and reporting on committee work.
  • Increased training requirements for staff participating in committees
Employee forums/Citizen Assemblies – Larger groups of non-union or mixed groups of union/non-union employees meeting on a periodic basis with management for consultation and information sharing. Can take place in a convention or congress type setting, either virtual or in-person and/or combining elements of both.
  • Potentially a good method of engagement for sectors where work is not routinely conducted in “one location” – (e.g., commercial or passenger transportation sectors like trucking, bus, rail, maritime and air travel, arts, film, television).
  • Well-recognized and established structure with a positive track record of success outside of labour relations context (e.g., citizen assemblies)
  • Would present logistical and organizational challenges such as convening and facilitating.
  • Not typically an approach for used for on-going engagement with employees.

On equity matters in the workplace, representative models tend to be preferred. This is the model in our Pay Equity Act framework. It is also the model in the Canada Labour Code for occupational health and safety committees.

The more our task force listened and the more we researched, the more we came to appreciate that employment equity will not be supportive and sustainable if it is a purely top-down exercise. Employment equity calls for some workplace norms to be changed to foster equitable inclusion. This work takes all of us.

Representative voice models require leadership within the workplace, that is an active commitment from the top. They also require meaningful worker involvement, systematic and regular two-way communication, and trust in the quality and nature of the commitment to address equity proactively and collaboratively.Footnote 26 For unions seeking to enhance workplace democracy, the opportunity presented for active participation in achieving and sustaining employment equity could hardly be clearer.Footnote 27

Past representative voice proposals

In 2000, the Canadian Human Rights Act Review Panel recommended that “[a] process be established to ensure that community groups have a way of giving input into the Commission’s implementation of its responsibilities under the EEA.”Footnote 28 The panel noted that input could be sought even without amending the Canadian Human Rights Act, such as publishing a list of employers that are due for audits and inviting input from interested organizations that they might consider as they conduct the audit. They could list the audits that are completed, and publish limited information in public form, notably undertakings or directions.Footnote 29

The Labour Program in consultation with the Canadian Human Rights Commission issued a guideline on Consultation and Collaboration for compliance with the Employment Equity Act. It suggested that joint labour management employment equity committees could usefully be established voluntarily, and in 2000 recommended to the Canadian Human Rights Act Review Panel that they be legislatively required.Footnote 30 The Canadian Human Rights Act Review Panel acknowledged that a committee dedicated broadly to human rights issues in the workplace – including policy, training and complaint resolution – could provide an important focal point, supporting a systemic approach to addressing the issues. It received examples from a range of employers and unions on the contributions of joint committees in select federal workplaces.

At the time, the Review Panel reported that some employers might see this as an additional burden, but considered that “the cost of creating and operating the internal responsibility mechanism should be offset by the cost of the litigation it could avoid and the benefits of greater workplace harmony.”Footnote 31 On balance, they considered that employers would be better off with an internal responsibility mechanism and recommended that a joint committee structure be mandated by law. In 2000, the Review Panel needed to address the employer concern that jumping from no internal responsibility on equity to a legislated one at the time might be challenging.

With the introduction of pay equity committees, and with accessibility issues addressed as part of the Occupational Safety and Health Committee mandate, internal responsibility on equity has been embraced. The key now, in 2023, is harmonization. Issues of harmonization are addressed in detail in Chapter 6.

As mentioned above, in 2017 the Joint Union/Management Task Force on Diversity and Inclusion in the Public Service recommended department-level joint employment equity committees. They were concerned that when oversight got focused on system-wide problems within the federal public service, oversight within departments was reduced. They wanted to ensure that greater information would be available about the reasonable progress being achieved within departments to ensure equitable inclusion.

Past studies show that calls for consultation were also made regarding the Federal Contractors Program.Footnote 32 Some of these requests were repeated in consultations before our task force, especially in sectors where the FCP was shown to have made a major difference, like universities and colleges:

It is critical that staff associations and unions be part of the contractor’s implementation of the program and that Joint Employment Equity Committees be properly resourced and trained. Academic staff associations should be involved in all aspects of implementation, including: questionnaire design, setting short- and long-term goals, evaluation and revision of the employment equity plan; and should have access to the relevant equity data gathered.
Canadian Association of University Teachers, Submission to the EEART, April 2022

Our task force has come to the conclusion that we need a statutory mechanism and framework with clear accountabilities to ensure that the meaningful consultations pillar is strengthened. How? We need to adopt a representative or enhanced employee voice mechanism.

Enhancing employee voice in a modernized Employment Equity Act framework

We have worked on how to support the Employment Equity Act framework to encourage employers and workers to engage in dialogue about key features. The goal is to ensure that employment equity really is the kind of comprehensive approach to barrier removal that our workplaces require.

The task force canvassed the prospect of models of representative voice that are available in other jurisdictions, such as the works councils model that originated in Germany and that has taken on distinct forms within the European Union. Generally, the model applies to large firms – fewer than 10% of German workplaces – and builds the right for workers to co-determine a number of areas of work, excluding issues that are subject to collective bargaining like wages and pensions. Works councils at minimum enable information sharing and consultation on workplace issues; in Germany they also include the right to veto certain employer decisions. They are credited with several advantages, including drawing employees and employers into a relationship of heightened trust, and fostering employee retention by enabling working conditions to be addressed and changed. The literature also shows that works councils have functioned best in contexts where cultural norms on workplace cooperation run deep.Footnote 33

Under Section 28(2)(4) of the Integrated Accessibility Standards Regulation (IASR) of the Accessibility for Ontarians with Disabilities Act (AODA), a union representative, or worker representative when not represented by a union, can be called upon to help to develop an individual employment plan.

Our task force thought the best option was to stick to examples that are already in place in the federal jurisdiction. We also recognized that there is an important opportunity for meaningful consultations on equity matters within the federal public service in relation to the Accessible Canada Act, and as woven into the development of the Public Service Accessibility Strategy.Footnote 34

Federally, we already have two important examples of joint committees that are both consultative and oversight enhancing, notably on health and safety and pay equity. These mechanisms are legislated. They provide opportunities to promote a further goal: harmonization.

Table 5.3: Occupational health and safety and pay equity committees comparison
Committee requirements Occupational health and safety committees Pay equity committees
Basic requirement 20 + employees in the workplace Employer or group of employers with 100+ employees or 10 -99 employees if some or all are unionized
Composition Half management and half labour, co-chaired by management and employees; employee representatives selected by fellow workers Minimum 3 people;
50% of whom must be women; comprising 2/3 employees to whom the pay equity plan relates; and at least 1 employer representative;
Representation proportional to the number of bargaining agents where employees are unionized;
Where there are non-unionized employees, at least one person must be selected by those employees to represent them
(if employer unable to establish the committee, employer must apply to the Pay Equity Commissioner to authorize different requirements)
Vote  N/A One vote, as a group, for members representing employers and one vote, as a group, for members representing employees
Meetings Meet 9 times per year (between monthly and every 3 months) Plan is developed over a 3-year period
Responsibilities - Consider and expeditiously dispose of health and safety complaints;
- Participate in all of the inquiries, investigations, studies and inspections pertaining to employee health and safety;
- Participate in the implementation and monitoring of a program for the provision of personal protective equipment, clothing, devices, or materials, and, if there is no policy committee, participate in the development of the program;
- Participate in the implementation of changes that may affect occupational health and safety, including work processes and procedures, and, if there is no policy committee, participate in the planning of the implementation of those changes; and
- Inspect all or part of the workplace each month, so that every part of the workplace is inspected at least once a year.
Participate in developing a pay equity plan for the workplace, and serve as a joint decision-making forum for employee and union involvement in pay equity
Information requirements Committee may request from employer information it considers necessary to identify existing or potential hazards with respect to materials, processes, equipment, or activities. Employer to provide any information considered necessary by the pay equity committee members to establish and update the plan
Employer obligations Committee shall have full access to employer (and government) reports, studies and tests relating to the health and safety of the employees, or to the parts of those reports, studies and tests that relate to the health and safety of employees. Employers must support the work of the PE committees, provide information about training opportunities and facilitate members’ participation in the training

The recommendation to establish a joint employment equity committee reflects some existing practice. The Canadian Human Rights Commission has recommended committee-based consultations to develop employment equity plans. Its 2019 horizontal audit reveals that in the banking and financial industry alone, which is not highly unionized, employment equity committees are present in 82.9% of employers surveyed.Footnote 35

The proposals below incorporate some of the thresholds recommended in Chapter 7:

Recommendation 5.2: All covered public service employers, alongside federally regulated private sector employers with 100+ workers and FCP employers with 100+ workers should be required to establish a joint employment equity committee, as appropriate with sub-committees notably for departments or specific trades.

Recommendation 5.3: For federally regulated private sector employers (LEEP and FCP) with 50 – 99 workers, the Employment Equity Act framework should support the voluntary establishment of joint employment equity committees. If the covered employers with 50 – 99 workers have at least one bargaining agent, then the joint employment equity committees are required.

Recommendation 5.4: Covered employers should benefit from a reasonable transition window to establish the joint employment equity committees.

Recommendation 5.5: Wherever practicable, terms of service should be harmonized with terms of service of workplace health and safety committees.

The who of meaningful consultations

Without a shift in who is negotiating, and how they negotiate, there may be little change in what is negotiated.

Linda Brisken, Afterward, in David M. Rayside & Gerald Hunt, Equity, diversity, and Canadian Labour, University of Toronto Press, 2007 at page 246.

One of the key features of representative voice mechanisms is that they create the conditions to draw in, in a meaningful manner, those who best know their workplace context and can support the work of identifying and removing barriers. They do not replace the potential support of external equity consultants nor do they replace the oversight role of the state. They emphasize, however, the importance of independent, supported structures that can foster workplace cooperation. Law reform that supports this function in the Employment Equity Act framework will help to bring labour law and workplace equality law into closer conversation.

Workers from historically underrepresented groups need to be included in the joint employment equity committees. The conundrum is what to do when groups are indeed underrepresented in the workplace. The task force heard from representatives of students and youth, who were concerned to ensure that dialogue could be fostered between older and younger workers.Footnote 36

One model emerging from the Los Angeles Black Worker Center is community “oversight tables”. The oversight table brought in constituents from neighbouring communities to support a sectoral hiring initiative in the construction industry. The oversight table reviewed strategies for recruitment and retention, helping the industry to understand some of the hiring challenges. Its members could also make sure some workers did not get “passed over” for employment when they came to the job sites, or find out why they might be quitting.Footnote 37 This innovative model might be experimented with in some sectors, in some workplaces, in some communities. It is not an across-the-board model that the task force would be prepared to recommend for Employment Equity Act inclusion.

Employee resource networks representing employment equity groups can serve a valuable role in allowing workers from employment equity groups to exchange and share strategies. There might be some overlap with the membership of the more structured representative voice mechanism. Membership of workers from employment equity groups is an important way to ensure that the joint employment equity committee is benefitting from on the ground knowledge that workers have about workplace barriers and promising practices.Footnote 38

The point is not to substitute existing workplace actors or replace regulatory oversight. Instead, our task force’s proposal seeks to build on the synergies provided when well-supported workplace actors are in turn able to support and sustain meaningful consultations and ongoing workplace learning and implementation of employment equity. Research encourages us to stress complementarity, paying close attention to a mix of features like expertise, trust, accountability, and ability to teach employers and other workplace actors.Footnote 39

Recommendation 5.6: The Joint Employment Equity Committee should comprise a minimum of 5 members, and at least half of the members should be employees who do not exercise managerial functions.

Recommendation 5.7: The Joint Employment Equity Committee should strive to represent each of the employment equity groups.

Recommendation 5.8: The Joint Employment Equity Committee should strive to represent workers from across the work life cycle.

Recommendation 5.9: In unionized workplaces, representation should be proportional to the number of bargaining agents in the workplace, with sub-committees as appropriate.

Recommendation 5.10: In non-unionized workplaces, elections of worker representatives should be preferred.

Recommendation 5.11: If a workplace is unable to establish a Joint Employment Equity Committee, the employer should apply to the Employment Equity Commissioner to resolve the matter using ADR techniques. The Employment Equity Commissioner should also have the power to authorize modifications to the legislative requirements.

Recommended features of the proposed joint employment equity committees

There are a few features that should be retained, and that are found in the two existing models. Drawing on the model of both the joint health and safety committee and the pay equity committee, the task force recommends that the joint employment equity committee should have the following responsibilities:

Recommendation 5.12: Time spent on a Joint Employment Equity Committee should be considered work time and compensated accordingly.

Recommendation 5.13: Joint Employment Equity Committee members should be provided with training in order to be able to carry out their responsibilities.

Recommendation 5.14: The Joint Employment Equity Committee should be permitted to collect, analyze and review relevant data to assist the employer in the implementation of employment equity. The Joint Employment Equity Committee should have full access to all of the government and employer reports, studies and tests relating to employment equity or parts of those reports, studies and tests that relate to employment equity but shall not have access to the medical records of any person except with the person’s consent.

Recommendation 5.15: Joint Employment Equity Committees should be permitted to conduct exit interviews with departing staff to identify workplace barriers that might be addressed in subsequent employment equity plans.

Recommendation 5.16: Joint Employment Equity Committee members’ liability should be limited to provide protection for good faith acts or omissions under the authority of the Employment Equity Act.

Like pay equity committee members and others exercising their rights under the Pay Equity Act, the Joint Employment Equity Committee members and others exercising their rights under the Employment Equity Act should enjoy comprehensive legislative protection against reprisals:

Recommendation 5.17: The Employment Equity Act should be revised to include comprehensive, detailed protection for Joint Employment Equity Committee members and others exercising their rights under the Employment Equity Act against reprisals by the employer or any person acting on behalf of the employer, or by the bargaining agent or any person acting on behalf of the bargaining agent.

Privacy protections and unions

The Office of the Privacy Commissioner of Canada pointed out the specific situation of trade unions under existing privacy laws:

On the matter of trade unions, we note that these entities are not subject to the Privacy Act. Neither are these entities subject to PIPEDA with respect to their core union activities, because those activities would not be considered commercial activity. By the same token, public sector unions are not typically considered a federal work, undertaking or business (FWUB) under PIPEDA. This means that disclosing any personal information, particularly sensitive personal [information], to a union must be carefully considered … The notice and consent, safeguarding and accountability privacy principles would be of primary concern, as would any use of purportedly de-identified information and risk of re-identification.

Office of the Privacy Commissioner, Submission to the EEART, 14 September 2022

Reforms to federal privacy legislation are currently under debate, notably through an omnibus Digital Charter Implementation Act, Bill C-27 that during our task force passed second reading in the House of Commons and if passed in its entirety would replace the existing Personal Information Protection and Electronic Documents Act (PIPEDA). It will be crucial for legislative reform to ensure an appropriate level and approach to privacy protection to ensure that it does not become a barrier to meaningful consultations with unions. In keeping with a human rights approach to privacy protections, consultation by trade unions needs to be enabled, rather than unduly limited, by privacy protections.

Recommendation 5.18: The relevant privacy legislation should be revised following meaningful consultations with representative trade unions to ensure effective trade union participation in the implementation of employment equity.

Workplace training: Building communities of learning

Introduction

Meaningful consultations provide an opportunity to learn.

Teaching and learning opportunities on employment equity are the ground on which this reform stands. The commitment must come from all: we need a “mindset of continuous learning”:

We recommend that the Task Force consider ways to encourage a mindset of continuous learning when it comes to equity and ensure that there are opportunities for assessing how well these frameworks are supporting the objectives of the [Employment Equity Act].

DisAbled Women’s Network, Submission to the EEART, 2 June 2022

And in particular, there must be a clear governmental commitment to ensuring that the training and support are readily available and that the learning is shared. Without it, employment equity can be reformed over and over but it will not be sustainable.

FETCO appreciates that government needs to ensure compliance but feel improvements are needed. Employers feel government could focus less energy on crunching numbers and more on research, best practices, education; more on the positive side and less on the hammer of compliance and enforcement. It is better to focus on the concrete measures employers are putting in place to address diversity, equity and inclusion.

FETCO, Submission to the EEART, 28 April 2022

Our task force heard repeated, sustained requests like these for support to do the real work of employment equity. We have tried to provide a path that values representation but calls for less numbers-crunching.

Employers in particular have been calling for more training and support for decades. In a 2002 study, employers reported dissatisfaction with implementation of the Federal Contractors Program, but cost did not appear to be a major factor as they reported only modest costs to implementation. Rather, they sought the tools and support necessary to implement employment equity.Footnote 40

The messages that employers communicated to our task force were consistent with this early finding. The UN treaty bodies have also stressed how important it is for training and support to be provided to employers to fulfil their responsibilities under employment equity programmes.Footnote 41

It is not enough simply to legislate. It is crucial to ensure that regulatory oversight agencies of government have the human resources, financial resources and administrative latitude to be able to act creatively, immediately and effectively in support of full implementation of employment equity. This could hardly be more important if we recognize that workplace inclusion is pivotal to building and sustaining a robust Canadian democracy and offering a distinctive and meaningful reflection of Canada in and to the world. The task force is persuaded that this cannot be more crucial.

Teaching and Learning in the federal public service

As concerns the federal public service, the task force wished in particular to honour Truth and Reconciliation Commission Call to Action No. 57, which names professional development and training for public service employees:

Call to Action 57: We can upon federal, provincial, territorial, and municipal governments to provide education to public servants on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require kills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

The National Indigenous Economic Strategy’s Call to Economic Prosperity No. 96 would require public servants to receive training on Indigenous businesses and Indigenous procurement mandates. Call to Economic Prosperity No. 98 would link government procurement targets to departmental and personal performance measures. Call to Economic Prosperity No. 100 is a national database of verified Indigenous businesses for government procurements purposes. There are employers and workers organizations across Canada that have long worked to make employment equity a reality in their workplaces. It is time to ensure that their experiences are more broadly acknowledged and shared, across the federal jurisdiction and beyond.

Recommendation 5.19: Employment equity training should prioritize Truth and Reconciliation Commission calls to action on education and support learning about positive initiatives to promote Indigenous economic prosperity.

Recommendations on workplace training have been repeated by past task forces. The following recommendation is adapted from Recommendation 40 of the Joint Union/ Management Task Force on Diversity and Inclusion:

Recommendation 5.20: Leadership training in the federal public service should include training on systemic discrimination including systemic racism, substantive equality and equitable workplace inclusion.

The training we need

The Employment Equity Act framework should be an opportunity to build concrete communities of learning across all federally regulated workplaces.

The challenge of being able to identify workplace barriers should not be underestimated.

Unconscious bias training, while popular, runs the risk of minimizing the work required to take sufficient distance to be able to see and name practices that have been exclusionary. As mentioned in the introduction, the EEOC task force on harassment found, based on the available and limited empirical data, that sensitivity training as it is currently conducted can sometimes be “mildly” positive, other times neutral, and in some instances actually be counterproductive. The disappointing results from US EEOC task force studies of the limits of training lead us to recall: we cannot rely on training fads. We need proven results and we need to create ways to learn from what works. This is part of the redesign of the Workplace Opportunities: Removing Barriers to Equity (WORBE) program that is discussed next.

We stress the training element separately because it can be easily overlooked. But employment equity is a reflexive approach to achieving change. It depends on the understanding and participation of everyone in the workplace. It needs to draw people together rather than tear them apart. That takes teaching and learning.

We stress teaching and learning because we can, indeed must, learn from each other.

The training may come from and through initiatives that are sponsored by unions and employers themselves:

One example of training comes from a union-management agreement:

According to a 2011 report, in the absence of legislation on employment equity in Saskatchewan, the Canadian Union of Public Employees proactively signed Aboriginal Employment Partnership Agreements with a number of employers in health care, between 2002-2006. There was an increase from 1% of Indigenous employees prior to 1995 to 6% in 2008, with a target of 10%. Other partnership agreements were signed with educational institutions and built equity plans in a number of municipalities.

Training was provided, through governmental funding, notably to ensure that non-Indigenous workers understood their responsibility to provide a welcoming and inclusive workplace for Indigenous workers.

CUPE, Creating a Representative Workforce: An Overview of Partnership Agreements and Equity Plans in CUPE Workplaces in Saskatchewan, April 2011; CUPE, Presentation to the EEART, 31 March 2022

Training advisory services

As we will address in Chapter 6, the advice from government on training should be coming from an entity that has oversight on the entire process – the one-stop-shop.

In Quebec, the Commission des droits de la personne et des droits de la jeunesse has offered an Advisory Service on Reasonable Accommodation. Its model of readily accessible support, allowing employers to call in with questions on how to address requests, has been heavily solicited. Requests have increased from an annual total of 24 in 2011 to 144 in 2021.Footnote 42

New Zealand also has an advice line providing support to employers in hiring people with disabilities.Footnote 43

Recommendation 5.21: An advice line under the jurisdiction of the Employment Equity Commissioner should be established to provide effective, efficient support to workplaces – employers and Joint Employment Equity Committees - on employment equity implementation.

Not just teaching, but learning

Government can support this learning and offer training, but it should also be constantly improving what it is able to offer, by taking stock of the innovation that is happening within the workplaces where it is exercising oversight. It should not just be collecting paper.

Employers and the proposed Employment Equity Commissioner will be learning from some of the experts that are engaged to provide the training.

All will be learning that much of the expertise comes from the people who have experienced exclusion and are working to remove workplace barriers to include us all.

There is generally a need for more systematic consultation with LGBTQI2S subject matter experts and employees themselves, particularly within training design and implementation.

LGBT Purge Fund, Emerging from the Purge: Reviewing the State of LGBTQI2S Inclusion in Canada’s Federal Workplaces, May 2021

We therefore encourage the Employment Equity Commissioner, when supporting this teaching and learning through workplace training, to make sure it is studying effectiveness.

Recalling the report of the US EEOC task force referenced in the Introduction, although it called for better data, it did not urge training to be abandoned. On the contrary, it stressed that training – especially compliance training that helps employers meet their legal obligations – should be an important part of an overall support package. It should not be a stand-alone response.Footnote 44

Training is part of a bigger challenge: changing cultures. Holistic approaches to support are critical.

While training needs to be supported at the highest organizational levels, the US EEOC task force stressed the importance of compliance training for middle managers and first line supervisors, as they are at the heart of identifying and implementing prevention. This resonates with research presented in Chapter 4 about human resource practices on accommodation requests. This training should underscore the relationship between transparency and equity across the board.

Recommendation 5.22: Training support should be geared to different organizational levels in the covered employers, and should be attentive to the needs and expertise of middle managers and first line supervisors, as well as members of the Joint Employment Equity Committee.

The training should be regular and reinforced. It should be conducted by qualified, interactive trainers.Footnote 45

Stakeholders stressed that those offering employment equity training should be representative of the inclusion employment equity seeks to achieve. They should not be expected to give this training for free or at the drop of a hat; if employment equity work is valued, it should be commissioned and remunerated in a manner that respects that value.

While large employers will be able to bring in their own support, this does not replace the importance of having training provided in a comprehensive and accessible manner by those responsible for government oversight. Access to training is especially important if the Employment Equity Act will apply to smaller employers than it has in the past.

Training should include trauma-informed approaches, reinforcing a “first do no harm” approach. This is part of ensuring that employment equity does not lose sight of who matters – the workers themselves.

Workplaces will require readily available guidance tools supporting implementation, including templates that are easily located online and available in accessible formats. It is important to keep in mind that employers themselves – if the entire equity ecosystem is effective – will include employment equity group members too. Guidance must be truly accessible, within the meaning of the Accessible Canada Act.

Training on accessibility

Representatives of accessibility organizations stressed how important it is for a climate to be built that allows questions to be asked, and for people to be able to learn deeply.

One participant in the extended engagements emphasized that there is a need to dispel assumptions that addressing disability issues is necessarily complex.

Our task force considers that we have a responsibility to learn and to teach ourselves. Workplace training supports ongoing learning. It also takes the burden off individuals who may be underrepresented workers themselves.

But the core point is this: it does a disservice to disabled workers not to ask respectful questions with a view to fostering understanding.Footnote 46

There is a need to foster disability confidence by sharing information about promising practices that can be followed by employers to support accessibility. The Canadian Council on Rehabilitation and Work recommended that the federal government establish a central accommodation fund alongside funding for training to contribute to establishing certain workplace transformations that would undercut concerns about ‘undue hardship’.Footnote 47

Incentivizing training through Workplace Opportunities: Removing Barriers to Equity (WORBE)

“Altering the legal incentives that reward a cosmetic approach, however, is necessary but insufficient. Ultimately, an evidence-based approach to compliance requires innovative employers to collaborate with researchers and regulators.”

Susan Bisom-Rapp, “The Role of Law and Myth in Creating a Workplace that ‘Looks Like America’ (2022) 43:2 Berkeley Journal of Employment and Labor Law 251 at 293.

Introduction

There is so much more that can be done to foster employment equity, to ensure that barriers to equity in the workplace are removed, and to change incentive structures. Workplaces require supportive and sustainable initiatives. There is room for creativity both in legislation and through special funds.

The Moran report reviewing the Accessibility for Ontarians with Disabilities Act suggested that tax incentives be provided to incentivize accessibility beyond the legislative minima.Footnote 48

The task force initially thought some of that additional incentivized learning might come from the WORBE program. After all, it was launched in 2014 as a grants and contributions program to support employers covered by the Employment Equity Act to improve representation through partnership and industry-tailored strategies. The program launched with $500,000 but when the Employment Equity Act review task force was launched, of the $6,6 million announced, $2.5 million was earmarked for WORBE expansion.

Some of the WORBE projects funded were hands on initiatives designed to foster local initiatives. Consider, for example, a promotional video about “Le port de Montréal: un port different” produced by the Maritime Employers Association (MEA) to dispel stereotypes.

However, our task force struggled to gain access to some of the research on training commissioned through the program. We could not get some of the studies we needed directly from WORBE, only summaries with links to funded groups’ web pages or annual reports. This limited learning from the projects that were funded.

The takeaway is that the learning was not shared broadly with those most concerned or interested in a comprehensive, readily accessible manner.

This is a pity.

Stakeholders added that currently, WORBE contains no apparent directive on how resources should be allocated.

We need research and project results that we can learn from. A theme throughout this report has been that it is disturbing how little is known about what works in employment equity, despite 37 years. Repeatedly the task force heard from constituents – within and beyond government – who called for comparative studies that could assist in finding out what actually works, and what does not.

FETCO has called for government to ensure an “ongoing iterative process of consultation and collaboration (research).”Footnote 49 They called for learning to be widely shared, so that employers can also learn. This call was echoed by some in the federal public service as well.

Dual focus: Sectors in need of change and emerging workplace issues

WORBE has significant potential to provide us with the data we need about sectors that have stubborn representation gaps, and about sectors or specific employers that are leaders on achieving substantive equality in the workplace. For example, on 28 February 2023, it was announced that WORBE would focus on addressing barriers in the high tech sector.

Canada is a leader in aeronautics and houses the airline industry’s most significant international organizations – International Civil Aviation Organization (ICAO) and International Air Transport Association (IATA), both of which have sought to address the significant underrepresentation of women in the profession of airline pilots. What might be done to galvanize sectoral change?

WORBE also has tremendous potential to be a source of ongoing learning on emerging workplace issues. This report has highlighted two very different emerging issues: the use of non-disclosure agreements and the use of artificial intelligence. Over the life of employment equity in Canada, there will be more. WORBE should be part of a reflexive approach that supports ongoing learning and serious research into workplace practices, guided by the extensive reports prepared in covered workplaces.

In its refocus, WORBE must remain centred on supporting the covered employment equity groups and their representatives.

WORBE has a distinct opportunity to foster a more significant and integrated role for researchers. We were inspired also by the US Equal Employment Opportunities Commission’s 2016 Select Task Force on the Study of Harassment in the Workplace, which offered recommendations that would encourage and in some cases mandate employers to work with researchers to assess the impact of policies, including as part of settlement agreements in the context of dispute settlement.Footnote 50

We recommend that WORBE be well funded, with selections through competitive processes undertaken with the input of the Employment Equity Advisory and Review Panel recommended in Chapter 6. We recommend encouraging the integration of researchers in initiatives to assess the impact of workplace policies to achieve equity, and that links be explored to the federal tri-agency funding councils.

Finally, WORBE can foster a commitment to communities of learning beyond Canada. This report has canvassed some of the interesting developments in other countries. WORBE can be drawn upon to help foster sectoral discussions across selected jurisdictions to promote deeper learning about barrier identification and elimination and promising practices to support equitable inclusion.

Recommendation 5.23: WORBE projects should be selected with the input of the Employment Equity Advisory and Review Panel.

Recommendation 5.24: WORBE should be repurposed to:

  • support sectors in greatest need of closing the representation gap
  • integrate researchers in initiatives to assess the impact of workplace policies to achieve equity, including through links with the federal tri-agency funding councils
  • build and share practical knowledge on emerging workplace issues that may pose barriers and how to address them, and
  • ensure that employment equity groups are at the centre of the knowledge development and sharing

Recommendation 5.25: WORBE-funded projects and learning outcomes should be made publicly available and readily accessible online.

Overall, we were heartened by the depth of commitment to meaningful consultations that we heard throughout the task force’s work. Meaningful consultations are not simply one among many obligations under the Employment Equity Act framework. They are one of the three foundational pillars, necessary to support the Employment Equity Act framework. Meaningful consultations – and the training necessary to support them - embody the spirit of equitable inclusion, by folding “nothing about us without us” into the architecture of equitable inclusion.

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