Chapter 7: Technical regulatory implications of employment equity coverage

Official title: A Transformative Framework to Achieve and Sustain Employment Equity - Report of the Employment Equity Act Review Task Force: Chapter 7

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

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Introduction: Why comprehensive coverage matters

In Chapter 1, this report offered a close look at who is covered, and who should be covered, under the Employment Equity Act framework in the changing world of work. We were particularly attentive to ensuring that employment equity coverage allowed us to get a full picture of employment practices in federally regulated workplaces. We cannot afford to leave members of employment equity groups behind. The goal is to foster equitable inclusion in decent work, for all workers.

We recall that employment equity cannot achieve this goal alone. But employment equity is an important piece in the overall puzzle. Equitable employment practices, including pay transparency, challenge occupational segregation. Through pay equity, those practices also help us to identify and value the skills that women – who are also members of all the other employment equity groups - bring to the job.

Precarious work poses a particular challenge to achieving equitable inclusion. The task force presented data indicating, for example, that disabled workers have been overrepresented among temporary employees. The trend was in part linked to the pandemic and the urgent need to staff quickly. The task force’s attention was also drawn to disabled workers’ potentially reduced access to health and disability benefits under work arrangements that are not permanent. Researchers have noted that employment equity gains for women occurred more frequently in part time, temporary work than in full time, permanent employment.Footnote 1 This is a particular concern: if employment equity for workers in historically underrepresented groups means admission into work that is precarious, have we really fostered substantive equality?

This chapter recognizes that while the broad principle of equitable inclusion is clear, details really matter.

This chapter is therefore rather technical, with purpose. Our task force seeks to leave no one behind. This chapter also reflects something that task force members repeated: employment equity should be understood as an opportunity to draw in talent that has been overlooked, and to make our workplaces – and our pluralist society – stronger for all of us.

We recognize as well that labour market conditions are constructed in part in response to regulatory frameworks. There is a delicate balance to be achieved, to ensure that a revised Employment Equity Act framework does not contribute to an increase in precarious work. We need to avoid creating a framework that can easily be avoided when the employment relationship is avoided. In this report our task force thought about how to build an inclusive approach to employment equity, to cover a broader range of workplaces and ensure that barriers to equity are being removed there, too.

This leads to three implications and recommendations for the Employment Equity Act framework:

Implication No. 1: We need to know what is happening to Canadian workplaces

To do employment equity justice, we need to be able to take a cold, hard look at what is happening to Canadian workplaces. We need to understand the barriers faced by discouraged workers and ensure that our measurement tools – notably labour market availability – do not embed disadvantage. We need to understand the overrepresentation of employment equity groups in precarious work and the barriers to their equitable inclusion in decent work, into stable, sustainable, supportive employment. We need to be alive to the economic factors – canvassed in Chapter 1 – that pull work toward greater precariousness, as well as the holistic approach required to preserve decent work and economic growth.

None of this means that stable, sustainable and supportive employment will not change over time. There is a fine balance. Models of work and workplace norms need also to be transformed by how employment equity groups themselves understand workplace lifecycles, and call attention to the fundamental character of care, for ourselves and for our environment.Footnote 2

Concretely this means that labour law and human rights law, including the Employment Equity Act framework, is intended to apply broadly and to foster equitable inclusion and sustainable economic growth, full and productive employment, and decent work for all.

An example of the broad reach is in the definition of employment under the Canadian Human Rights Act, which “includes a contractual relationship with an individual for the provision of services personally by the individual.” All covered workplaces must prevent and remedy systemic discrimination and ensure substantive equality.

This was the reasoning adopted in the Bilson report on pay equity:

The corollary of [concluding that equal pay for work of equal value is a human right], in our view, is that any pay equity legislation should include as many workers as possible within its scope, rather than excluding them simply because the nature of their employment relationship or the organization of their work does not fall easily into a traditional paradigm. We think this inclusive orientation is all the more important in the current economic environment.

Pay Equity: A New Approach to a Fundamental Right, at 181.

We agree. We also recognize that the Employment Equity Act framework seeks to ensure that employment equity groups are equitably represented across the employment spectrum and specifically that they are not overrepresented in precarious work. The focus is rightly, therefore, on ensuring that employment equity groups have equitable opportunities to gain access to decent, stable, and sustainable and supportive employment.

Temporary and part-Time employees under the Employment Equity Act framework

The current Employment Equity Act framework already provides an important window into what is happening in workplaces under federal jurisdiction, by calling for balanced reporting on temporary employees and part time employees:

Definitions of “employee” in the Employment Equity Regulations

permanent full-time employee means a person who is employed for an indeterminate period by a private sector employer to regularly work the standard number of hours fixed by the employer for employees in the occupational group in which the person is employed.

permanent part-time employee means a person who is employed for an indeterminate period by a private sector employer to regularly work fewer than the standard number of hours fixed by the employer for employees in the occupational group in which the person is employed.

temporary employee means a person who is employed on a temporary basis by a private sector employer for any number of hours within a fixed period or periods totalling 12 weeks or more during a calendar year, but does not include a person in full-time attendance at a secondary or post-secondary educational institution who is employed during a school break.

For the purposes of the Act,

For the purposes of the Act, employee, in respect of

  1. a private sector employer, means a person who is employed by the employer, but does not include a person employed on a temporary or casual basis for fewer than 12 weeks in a calendar year;
  2. a portion of the federal public administration referred to in paragraph 4(1)(b) or (c) of the Act to which the Public Service Employment Act applies, means a person who has been appointed or deployed to that portion pursuant to that Act, but does not include
    1. a person appointed as a casual worker under subsection 50(1) of that Act, or
    2. a person appointed for a period of less than three months; and
  3. a portion of the federal public administration referred to in paragraph 4(1)(b) or (c) of the Act to which the Public Service Employment Act does not apply, means a person appointed to that portion in accordance with the enactment establishing that portion, but does not include a person employed on a temporary or casual basis for a period of less than three months.

(The employment of a casual employee under the Public Service Employment Act (Section 50(2)) may not exceed 90 working days in one calendar year; the casual employee is not covered by the PSEA and is not eligible for any internal appointment processes.)

The 1986 Employment Equity Regulations contained a reporting requirement for workplaces where the number of temporary employees comprised 20% or more of the total number of employees of the employer (Form 3). Employers were required to indicate all temporary employees, based on the date in the calendar year on which the number of temporary employees was the greatest (Forms 1-3).

These requirements remain largely the same in the current regulations. Form 2 requires reporting on “all employees of the employer in Canada” comprising permanent full-time employees, permanent part-time employees, and “temporary employees where the number of temporary employees at any time during the reporting period constitutes 20% or more of the employer’s workforce.”

In this manner, temporary employees are reasonably captured in the required Employment Equity Act reporting for private sector workforces. No representations were made to us in our extensive consultations that this should be changed. The coverage is appropriately balanced and we do not recommend changes at this time.

Implication No. 2: Covered employers should report on their entire workforce

The second implication is that covered employers should report on their entire workforce, including dependent contractors as defined in Section 3(1) of the Canada Labour Code. The reason is simple: we want to have a meaningful portrait of who is doing work in their workplace. We need to know what their opportunities for advancement are within it in accordance with employment equity principles. We need to be able to see whether workers who are designated group members are disproportionately finding themselves working as dependent contractors, without the opportunity to advance within the workplace.

Including dependent contractors is an important feature of the harmonization that simplifies reporting across proactive schemes. We note that the Pay Equity Act includes dependent contractor, ensuring further harmonization with the Canada Labour Code, Part I.

Recommendation 7.1: Reporting under the Employment Equity Act should include dependent contractors, consistent with the Pay Equity Act and the Canada Labour Code.

Implication No. 3: Supportive, sustainable coverage for LEEP, federal employers abroad, and the FCP

The final implication is that almost 40 years later, we need to ensure that the coverage of the Legislated Employment Equity Program (LEEP) for federally regulated private sector employers (FRPS), federal employers abroad, and the Federal Contractors Program (FCP) is optimal. We suggest minimal change to LEEP, mostly to harmonize it with the changes that we propose for FCP. In making proposals, we have continued our focus in Chapter 6 to harmonize with other proactive legislation – the Pay Equity Act and the Accessible Canada Act. Our goal is to broaden coverage while reducing administrative burdens on employers.

The bottom line is this: change will not come with a stroke of a pen. These changes can only be sustainable if the commitment to support employers is present. We must put our money where our principles are on employment equity.

Harmonizing LEEP

In successful organizations, diversity and inclusion are not optional. The case for diversity and inclusion extends beyond treating employees fairly and equitably. Diversity and inclusion enable the public service to leverage the range of perspectives of our country’s people to help address today’s complex challenges.

Building a Diverse and Inclusive Public Service: Final Report of the Joint Union/Management Task Force on Equity and Inclusion, 2017.

Both labour law and human rights law are comprehensive frameworks: the starting point is inclusion.

Exclusions need compelling justifications. There are a lot of small employers within federal jurisdiction, as Figures 7.1 and 7.2 below indicate. They are likely to require particular support and adaptations. That said, full exclusion is hard to continue to justify in the Canada of 2023. We were heartened by the employers who met with us. They repeated: we have buy in. What they want to know is that we are paying attention to the special challenges that smaller employers may have, and ensuring that they have the support they need.Footnote 3

Proactive pay equity legislation, one of the most technically complex areas in human rights law, establishes a 10+ cut off for what are essentially practical reasons given the small number of jobs. We heard from major employers that the real challenge is to simplify or harmonize legislative frameworks.Footnote 4

Currently the Employment Equity Act has beyond the federal public service focused on larger workplaces, that is private sector employers that are federally regulated with over 100 employees. The related Federal Contractors Program similarly covers contractors with 100 employees if the contract value is over 1 million dollars.

The portrait of the federally regulated private sector (FRPS) could not be more revelatory – the vast majority of employers are not covered by the Employment Equity Act. Yet 87% of employees in the federally regulated private sector work for the 4% of employers who have over 100 employees.

Figure 7.1: Distribution of employees in the FRPS by company size, 2021
TEXT
Text description of figure 7.1
Company size Distribution of employees
(percentage)
1 to 5 employees 2%
6 to 19 employees 3%
20 to 99 employees 8%
More than 100 employees 87%
  • Sources: Federal Jurisdiction Workplace Survey, 2015; Survey of Payroll Hours and Employment, November 2015 & November 2021; Employer Annual Hazardous Occurrence Report Database, 2019; Industrial Relations Information System, 2022; Labour Program calculations.
Figure 7.2: Distribution of employers in the FRPS by company size, 2021
TEXT
Text description of figure 7.2
Company size Distribution of employers
(percentage)
1 to 5 employees 66%
6 to 19 employees 19%
20 to 99 employees 11%
More than 100 employees 4%
  • Sources: Federal Jurisdiction Workplace Survey, 2015; Canadian Business Counts, December 2021; Employer Annual Hazardous Occurrence Report Database, 2019; Labour Program calculations

Most of the small companies with 1 – 5 employees are in the road transportation sector. Most of the large companies with 100 + employees are also in the road transportation sector (289 companies with 63,790 employees), although the single largest number of employees who work in companies with over 100 employees is in the banking sector (53 companies with 252,086 employees).

The task force received a range of recommendations from consulted groups and academic experts proposing that the number of employees required to be covered under LEEP be reduced.

We note the following:

On the one hand, to do so would mean that a significant number of employers would be added, although some of them are likely to be covered if as we recommend larger employers would report on their dependent contractors, likely including some of those situated in the 1 – 10 employee range.

Inclusion under the Employment Equity Act framework makes sense only if it provides a composite picture of the enterprise, including from the perspective of its networks of integration, and the prospects for employee mobility within it. Supporting large employers so they can report on their dependent contractors fosters transparency and offers the ability to understand what is actually happening with respect to employment equity groups in the workplace.

There is an important symbolic value to ensuring that a broad range of workplaces understand that they contribute to achieving substantive equality at work. And pragmatically, it is the medium-sized employers that should be encouraged and supported to report.

On the other hand, and this is fundamental: for inclusion of this nature to be remotely sustainable, there must be a commitment to robust support to employers. They need support for reporting to be sustainable. Our task force consulted extensively with leading experts in the field. We were reassured that a key to extending employment equity to small to medium sized enterprises is to ensure access to support and training.

Equitable inclusion will not happen by a stroke of the legislative pen; there must be a commitment to supportive, sustainable measures so that the legislative inclusion can meaningfully translate into equitable inclusion.

Perhaps most importantly, we heard from some small employers themselves. What we heard was a commitment to equity, and a request for latitude, harmonization of requirements across equity frameworks like pay equity and accessibility, and support for implementation:

We are small enough that we are not yet subject to the EEA, however we are growing. We care about diversity and inclusion (D&I) and making employees feel more included. If the threshold changes, could there be a window where reporting might be voluntary and where we can start working through the changes? Perhaps the government could make resources available. That would be very helpful for a company of our size.

A small federally-regulated employer, EEART Consultations, 7 April 2022.

The federal Pay Equity Act applies to employers that have 10 or more employees. The responsibilities vary depending on the size of the employer. Notably, every covered employer must establish a pay equity plan (Section 13). The pay equity committee is mostly optional for employers with 10-99 employees (Section 16), while employers with 100+ employees or a group of employers that has 10 – 99 employees where one employer in the group has unionized employees when they became subject to the Pay Equity Act is required to establish a pay equity committee (Section 17).

In Quebec, the Pay Equity Act applies to all employers. Each is required to submit a report on the implementation of the Act in their enterprises (Section 4). Employers with between 10 and 49 employees have the responsibility for determining and making adjustments to “afford the same remuneration, for work of equal value” (Section 34). The responsibility to create a pay equity plan falls to all employers with between 50 and 99 employees. Large employers, with 100 or more employees, must establish a pay equity committee that includes representation from their employees (Section 16).

Comparatively, reporting requirements apply to employers with 20 or more employees in France based on La loi du 11 février 2005 pour l’égalité des droits et des chances, la participation et la citoyenneté des personnes handicapées in France, to employers with 100 or more employees in Australia under the Equal Employment Opportunity (Commonwealth Authorities) Act 1987, to companies with 50 or more employees in South Africa under the Employment Equity Act and the Broad-based Black Economic Empowerment Act. In Northern Ireland, all employers with 11 or more employees have employment equity monitoring responsibilities under the Fair Employment Act.

In light of this comparative experience and to encourage harmonization across equity schemes federally, our task force recommends the following:

Recommendation 7.2: The Employment Equity Act should apply to separate employer organizations in the federal public sector with 10 or more employees, listed in Schedule V of the Financial Administration Act (separate agencies), and other public-sector employer organizations with 10 or more employees, including the Canadian Forces (officers and non-commissioned members in the Regular and Reserve Forces) and the Royal Canadian Mounted Police (regular and civilian members, excluding federal public service employees).

Recommendation 7.3: The Employment Equity Act should apply to employers with 10 or more employees in the federally regulated private sector.

Recommendation 7.4: Employers with between 10 and 49 employees should be required to achieve reasonable progress on attaining representation of employment equity groups consistent with labour market availability. They should be provided with meaningful access to training and support.

Recommendation 7.5: Employers with 50 or more employees and all covered employers in the federal public service should be required to achieve reasonable progress on attaining representation of employment equity groups consistent with labour market availability. They should also be required to assume the existing employer obligations under the current Employment Equity Act, with an appropriate transition window for reporting. They should be provided with meaningful access to training and support.

Recommendation 7.6: The Employment Equity Regulations should carefully specify the transition periods for when an employer is considered to become subject to the Employment Equity Act in a manner that harmonizes them with the Pay Equity Act, and facilitates training and reporting by employers.

Federally regulated employers’ operations abroad

The focus of the Employment Equity Act has tended to be on employees of private sector employers based “in Canada”. Yet much has changed in available technologies for reporting and in our sense of Canada in the world.

Initiatives on business and human rights focus on how Canadian employers abroad treat workers along their global supply or value chains. Canadian initiatives to implement the UN Guiding Principles on Business and Human Rights are emerging. In addition to the recent Canadian Ombudsperson for Responsible Enterprise, there are calls for Canada to introduce robust due diligence legislation and to move forward on proposed Modern Slavery bills. Many of these initiatives, like the Employment Equity Act framework, focus on reporting requirements. The Supreme Court of Canada in Nevsun Resources Ltd. v Araya,Footnote 5has opened the door to the prosecution of violations of customary international law in Canada by Canadian companies operating abroad. Most recently, the Special Rapporteur on the Rights of Indigenous Peoples, José Francisco Calí-Tzay, in his visit to Canada from 1 – 10 March 2023, “expressed concern that Indigenous Peoples around the world are suffering negative, sometimes devastating consequences from Canadian extractive industries, mainly mining operations” and called on Canada to ensure that Canadian transnational companies are held accountable for human rights violations committed abroad.Footnote 6

Our task force held consultations with the International Development Research Centre (IDRC), a federal agency with local offices in five countries: India, Jordan, Kenya, Senegal and Uruguay. Some of the workforce comprises “expatriates” from Canada while in most cases local directors are nationals of the countries where IDRC is located. We were told that employees recruited in Canada and posted overseas, who rotate in and out of Canada after 5 to 10-year postings abroad, are not typically included in employment equity calculations.Footnote 7

We have also considered the Canadian Armed Forces, and draw inspiration from the fact that on inclusion under the Employment Equity Act framework, specific employment equity regulations were developed in 2002 following appropriate consultations, to adapt provisions to their specific context and safeguard their operational effectiveness.Footnote 8

Global Affairs Canada has a workforce of 13, 106 employees comprising, as of March 2022, 7723 Canada-Based Staff (CBS) and 5383 Locally Engaged Staff (LES). Of the total number, 6443 staff were based in Canada, while 6669, or 51%, were based in 178 missions abroad.

Its employment equity reporting covers CBS, whether located in Canada or on mission abroad (rotational and non-rotational staff). Based on 2021 data, attainment gaps persist for disabled workers across the board and for women and Black employees at the diplomatic level. Heads of mission were 47% women and 12% visible minority.Footnote 9

Global Affairs Canada wrote the following about employment issues for its LES in its Departmental Plan for 2021-2022 in addition to its commitment to worker safety abroad and during the pandemic:

Global Affairs Canada is committed to further improving and innovating services for Government of Canada employees at missions through ongoing engagement with both Locally Engaged Staff (LES) and Canada-Based Staff (CBS). The LES workforce comprising over 5,400 members provides critical program delivery, information technology, administrative, consular and other services at missions in support of both Global Affairs Canada and other Canadian government programs. Consultations with LES and with key partners have led to new milestones in the reform of how this important workforce is managed. In 2021-22, this will include improvements to policies supporting compensation, employment and staffing, labour relations, and pension and insurance benefits for LES. The department recognizes that there is still significant work to be done to address the ongoing viability of the LES benefits program and to improve how this workforce is treated compared to other workforces of the Government of Canada.

Global Affairs Canada, Departmental Plan 2021-2022

The example of the inclusion of Global Affairs Canada, located in 178 missions around the world, in the Employment Equity Act is important. Other covered workplaces with staff recruited in Canada should be covered within the Employment Equity Act framework.

Reporting on Canadian public service and private sector hiring practices abroad for employers covered under the Employment Equity Act framework would support the effective implementation of employment equity. It would provide a comprehensive portrait of recruitment and promotion opportunities for Canadian citizens and permanent residents abroad, including any barriers they may face in returning to Canada in employment commensurable with their skills. We note that these promotion practices are particularly important for those workers – Canadians and permanent residents of Canada – who return to Canada either with their employer or with other Canadian employers.

Recommendation 7.7: All covered public service employers and federally regulated private sector employers should be required to include Canadians or permanent residents of Canada working abroad in their workplace implementation and reporting responsibilities under the Employment Equity Act framework.

Recommendation 7.8: Specific Employment Equity Regulations should be adopted as necessary to ensure the effective inclusion of Canadians or permanent residents of Canada working abroad, with due regard to operational effectiveness.

Recommendation 7.9: Specific guidance and training should be developed by the Employment Equity Commissioner to support the effective implementation of the recommendations to covered workers abroad.

Reviving the Federal Contractors Program

The Government of Canada is the largest purchaser of goods and services in Canada. It spends approximately $22 billion per year, purchasing goods and services, including construction services.Footnote 10 Although a thorough analysis of procurements practices is beyond the scope of this report, there are a few recommendations that warrant attention.

The Federal Contractors Program is a tangible way through which the Canadian government literally can continue to put its money where its human rights commitments are: it requires those who provide goods and services to it to achieve substantive equality in their workplaces. But like much in the Employment Equity Act framework, it has become bureaucratized and its raison d’être has gotten lost. The starting principle, which is part of the applicable law, is that employers who contract with the federal government must respect substantive equality in the workplace.

But the Federal Contractors Program is not as it used to be. Adopted in 1986 and evaluated to be a unique program supporting social justice aims by extending the reach of the federal employment equity framework offering leadership by the federal government,Footnote 11 it is now a dim reflection of its earlier institutionalization and its longstanding objectives. It currently covers contractors who employed 100 employees or more who bid on contracts above the $1 million threshold. At its peak coverage prior to the change in 2013, it applied to contractors with 100 employees or more who bid on contracts worth $200 000 dollars. The decreased impact is stark:

Table 7.1: Federal Contractors Program coverage
Year Number of employers Number of universities and colleges Number of employees
2013 1,045 59 1,233,766
2022 410 26 609,658

The initial program

The Federal Contractors Program had been a program that was functionally “equivalent” to the Employment Equity Act, but through the link to government contracts or procurements:

The Minister is responsible for the administration of the Federal Contractors Program for Employment Equity and shall, in discharging that responsibility, ensure that the requirements of that Program with respect to the implementation of employment equity by contractors to whom the Program applies are equivalent to the requirements with respect to the implementation of employment equity by an employer under the Act.

Former Section 42(2) Employment Equity Act, 1995 ch. 44, 42-43-44 Eliz. II., 15 December 1995

The initial FCP had eleven criteria:

  1. Communication of employment equity policy to employees.
  2. Assignment of a senior official to be responsible for Employment Equity.
  3. Collection/maintenance of workforce information on designated group and non-designated group employees by occupation and salary level (i.e., workforce survey).
  4. Analysis of company workforce data to compare designated group representation within the organization to their availability in the supply of qualified workers from which the contractor may reasonably be expected to recruit employees.
  5. Elimination of systemic discrimination by reviewing, where an under-representation exists, formal and informal employment systems.
  6. Establishment of goals and timetables for hiring, training and promotion of designated group members where there is an under-representation.
  7. Establishment of an employment equity work plan for reaching goals and timetables.
  8. Adoption of special measures and accommodation where necessary to ensure that goals are achieved, including the provision of reasonable accommodation.
  9. Establishment of a favourable climate for the successful integration of designated group members within the organization.
  10. Adoption of monitoring procedures for the employers to assess the progress and results achieved in implementing employment equity.
  11. Providing authorization to enter premises thus allowing Human Resources Development Canada (HRDC) representatives to access records noted in 3 above.

The reports on changes to the program over time reveal frustration: the FCP had significant potential to make a difference, but its ability to do so was clearly getting lost:

It is not difficult to pick up a sense of frustration, of an opportunity not taken advantage of, particularly given the key finding of the evaluation that there was clear evidence that FCP had the capacity to impact in a substantial way on employers.

Professor Christopher McCrudden, Buying Social Justice: Equality, Government Procurement, & Legal Change (Oxford University Press, 2007) at 605

After all, a comprehensive report found that only 10% of FCP employers had fully implemented FCP requirements. Yet 90% of FCP employers indicated that they were only involved in any employment equity activities at all because of the FCP. This finding was a considerable improvement over the results of the 1992 evaluation.

The final report evaluating the FCP in 2002 underlined the dramatic cut in funding to the program and program decentralization, reasons cited for the “challenges” created to the administration of the program. The report concluded that despite the value and need for the program, it could not be implemented under the existing conditions.Footnote 12 The findings were accepted by management.Footnote 13 At the time, the program covered 845 large scale employers with a cumulative total of over 800,000 employees. However, coverage outside of Quebec and Ontario was small, particularly in the Atlantic region.Footnote 14

At that time, representatives of designated groups and in particular Indigenous representatives called for the contract value to be reduced to $50,000 or $100,000, and for the numerical threshold limit to be reduced to include employers of 50 – 99 workers.Footnote 15 They noted the small and decreasing size of the Canadian workforce.

Currently, the equivalent of the contractors’ program in Quebec applies to employers with 100 employees or more who apply for contracts of $100,000 or more.Footnote 16

Our task force takes seriously the fact that in 2017, the United Nation’s Committee on the Elimination of Racial Discrimination called on Canada to “[i]mprove the mandatory contractor compliance mechanism’s labour rights approach conditions in the federal employment equity regulation.”Footnote 17

Our task force was informed that a new iteration of the Federal Contractors Program is expected to be launched in 2024-25 to include requirements based both on the Accessible Canada Act and the Pay Equity Act.

In light of the canvassed considerations and examples, as well as the results of the consultations, we recommend equivalency with employer implementation under the Employment Equity Act and a change to the threshold. We also recommend a different approach to include colleges and universities that apply for federal research grants. Finally, we recommend that some existing exclusions of legal service contracts, grants and contributions, international cooperation and construction contracts should be rethought.

Equivalency with employer implementation under the Employment Equity Act

The reference to equivalency is no longer a part of Section 42(2) of the Employment Equity Act, which currently indicates only that “the Minister is responsible for the administration of the Federal Contractors Program for Employment Equity.” As it turns out, the notion of equivalency in the legislative requirement did not stop some quite significant differences from being operationalized. While the Legislated Employment Equity Program (LEEP), which remains an integral part of the Employment Equity Act, has been interpreted to include casual employees, the FCP was understood to exclude them. Consultations with unions were considered only to be recommended under FCP, although they are mandatory in the legislation as applied both to the federal public service and to federally regulated employers under LEEP. FCP employers were similarly interpreted not to have reporting requirements, unlike the clear reporting requirements in the legislation as applied to private sector employers, and despite overwhelming support for reporting by employers as a way to assess progress on achieving employment equity. Finally, the CHRC’s auditing responsibilities did not include the FCP.Footnote 18

Several groups that consulted with our task force or that submitted written briefs recommended that we return to the standard of substantive equivalency. The Canadian Association of University Teachers provided a detailed assessment of the kind of commitments that it considered should apply to federal contractors:

  • That the federal contractor "commitment" include the obligation to provide annual reports including comprehensive workplace surveys: and,
    • That the workplace surveys and reports of the contractors be publicly accessible, subject to reasonable protection of personal information;
    • That the workplace surveys provide data on the number of employees in the designated groups by occupation, and/or sub-occupation where practicable;
    • That the workplace surveys further collect and display data by occupational status full-time, part time, continuing, contract, and other relevant status. For academic staff, additional classifications would include the following: assistant, associate, and full professor; tenure track, non-tenure- track and tenured;
    • That the workplace surveys collect and display data to reveal any potential employment inequity in salary level attainment by designated group, i.e., where do the members of the designated group fall in the salary grid of the establishment’s occupational group.
Canadian Association of University Teachers, Submission to the EEART, April 2022

Recommendation 7.10: The implementation requirements for employment equity by contractors to whom the Federal Contractors Program applies should be equivalent to the implementation requirements for employers covered under the Employment Equity Act.

Threshold

We have taken into account the existing limited coverage of the FCP and the many recommendations to return to pre-2013 levels or below, and have been guided by the levels established in other jurisdictions, including other jurisdictions in Canada. We considered in particular that with a view to fostering equitable inclusion and sending an important message on the value of harmonizing legislative schemes across Canada, the threshold would appropriately be set to be consistent with the Québec contractors program (Programme d’obligation contractuelle - OBC/POC) at $100,000.

The takeaway is that the current levels are too high given the nature of the program, to ensure that contractors with whom the federal government is entering into relationship are actually fostering substantive equality in hiring.

We were also concerned to avoid a situation in which firms could cumulate several contracts of $90,000 with the federal government without meeting the threshold. We make a further recommendation on the cumulative amount for qualifying under the Federal Contractors Program.

Recommendation 7.11: The monetary threshold for the inclusion of contractors under the Federal Contractors Program should be established at close to pre-2013 levels, and with a view to broader harmonization with existing contractors programs across Canada, at $100,000.

Recommendation 7.12: The monetary threshold should be assessed in terms of the cumulative contract value. No contractor should be able to cumulate contracts that total more than $200,000 without subscribing to the Federal Contractors Program.

Recommendation 7.13: The threshold for the number of workers should be equivalent to the threshold established for employers under the Employment Equity Act.

The Federal Contractors Programs and the higher education sector

Education is what got us here, and education is what will get us out.

Honourable Senator Murray Sinclair, Chancellor, Queen’s University

There has been significant movement on equity in higher education. This sector, under provincial jurisdiction, is crucial to redressing core barriers to equitable workplace inclusion. We address these barriers in Chapter 4. Barriers persist for those who work in higher education too. They include wage disparities, unconscious or implicit biases in the evaluation of curriculum vitae, accent biases, biases in the manner in which reference letters are written and the terms used to describe equity group members such as women or racialized minorities, gender biases in citation practices and peer review, biases in teaching evaluations, and the “equity tax” leading to disproportionately high and unacknowledged workloads for members of underrepresented equity groups.Footnote 19

Federal tri-agency funding bodies receive significant research support from the federal government. The Advisory Panel on the Federal Research Support System recommended an increase of 10% annually for five years to the granting councils’ base budget, in addition to other investments.Footnote 20 The Canadian Alliance of Student Associations acknowledged that universities and colleges receive federal funding and considered it important to be able to review the equity outcomes and consider models that support equity.Footnote 21 The Canadian Association of University Teachers considered that there were improvements in universities covered by the FCP, and recommended the following:

CAUT recommends a return to the original threshold for federal contractors of $200,000 and an eventual expansion of the program to include:

  1. Contractors with fewer than 100 employees but more than 50 including contract employees;
  2. Casual or contract employees of the federal contractor; and
  3. Contracts over $100,000, as opposed to contracts over $200,000.

We recommend that the definition of federal contracts under the FCP be expanded to capture federal research grants.

Canadian Association of University Teachers, Submission to the EEART, April 2022

Queen’s University, itself a federal contractor, has also called for the threshold for employers to be widened:

The Government of Canada should widen the threshold for employers to apply for federal funding annually. As a Federal Contractor, Queen’s must-have an Employment Equity program. In fulfilling this obligation, Queen’s collects workforce Information, completes a workforce analysis, establishes short-term and long-term numerical goals, and makes reasonable progress and efforts to achieve those goals. Therefore, we believe that mandating Employment Equity programs to apply for federal funding is a tremendous employment equity incentive that should be extended to more participants through different programs/initiatives.

Queen’s University, Human Rights and Equity Office, 19 April 2022

We welcome these recommendations, and initially considered including research grants as part of the determination of the threshold for coverage under the Federal Contractors Program. However, given the lower recommended thresholds and magnitude of grants, we consider that it is preferable to make a willingness to comply with the Federal Contractors Program a pre-condition for colleges and universities in the higher education sector, including their researchers, to apply for federal research grant funding and to participate in the work of the federal research granting councils and including the Canadian Knowledge and Science Foundation proposed by the Advisory Panel on the Federal Research Support System chaired by Dr. Frédéric Bouchard.Footnote 22 The timing is apposite, given their report’s emphasis on the importance of equitable inclusion.Footnote 23 Our recommendation is designed to foster clarity, consistency and transparency, as researchers themselves will know that their employer is part of the Federal Contractors Program and committed to equitable inclusion through the Employment Equity Act framework:

Recommendation 7.14: Colleges and universities should be required to agree to participate in the Federal Contractors Program to be eligible to apply for federal research grants and other federal research funding and to participate in federal research granting councils, including the proposed Canadian Knowledge and Science Foundation.

Legal services providers

Federal contracts for legal services providers range from the use of external law firms to provide advice to government, to contracts with online legal database providers or publishers. There seems little reason not to cover a major publisher of legal databases, with contracts valued at over a million dollars, when a range of small firms are included under the FCP.

In addition, professional, scientific, and technical services constitute one of the primary areas of employment in Canada according to the 2021 Census data; legal services are an important part of that employment.

Many large law firms have embraced EDI initiatives and have productive relationships with faculties of law that have sought to expand their representation of members of equity groups. Participation by these employers in the FCP program should be understood as a positive feature of bringing them into a community of learning that should benefit the legal profession and beyond.

It should be noted that contracts for the performance of legal services may be entered into only under the authority of the Minister of Justice. There is, however, a schedule of contracting authorities that are exempted from this rule. They include various commissioners, including the Auditor General and the Privacy Commissioner.Footnote 24

Our task force was informed that legal service providers are excluded from the Federal Contractors Program, for reasons linked to solicitor-client privilege.

The state of the law in Canada is that solicitor-client privilege can be rebutted to allow for the global amount of legal fees that could be disclosed, if there is no reasonable possibility that disclosing the global amount would reveal solicitor-client communications.Footnote 25 It is noted that the amount of contracts for some legal services, notably with legal database providers, is already made publicly available by the Government of Canada pursuant to open government practices.

The reasons offered for continuing to exempt legal service providers from coverage under the Federal Contractors Program would seem no longer to apply. In particular, if the legal service providers are included in the Open Canada online directory, they should be eligible to be included under the FCP if the other conditions have been met.

Recommendation 7.15: Legal services providers eligible to be included in the Open Government Canada online directory with individual contracts of $100,000 or cumulative contracts that total more than $200,000 in any given fiscal year should be included in the Federal Contractors Program.

Grants and contributions

The Grants and Contributions (G & C) programs of the federal government fund activities touching all sectors of Canadian society. The federal G & C programs have been reviewed by the Auditor-General of Canada.Footnote 26 The Treasury Board has undertaken reforms to simplify processes, reduce administrative and reporting burdens on recipients, and better engage stakeholders in the design of programs.

The Comptroller General of Canada reported that there is clear evidence of improved access to information on G & C opportunities. The simplified and standardized application processes, tangible reduction in reporting requirements, greater consistency in funding practices within and across departments and movement from a culture of risk aversion to risk management have all helped to improve the functioning of G & C programs.Footnote 27

At first blush, to consider including G & C program recipients under the Employment Equity Act framework through the FCP might seem contrary to the goal of simplifying the program. Yet the concerns to simplify have focused on requirements that were considered to be excessive and even redundant prior to the recent reforms. The Treasury Board notes that since 2013 and again since 2017, these have been reduced by almost 50%, with a “tell us once” approach that has reduced duplicate requests to recipients. The online application process streamlines matters and is apparently preferred by recipients. Simplification also means there is an increased use of single agreements, consolidated reporting, and single payments, challenges that may have existed in the past for inclusion seem less obvious now. The Treasury Board notes that there is a centralized website that provides “one-stop access” to apply for funding opportunities.Footnote 28 Recipients can report digitally.

Auditing processes are already in place under the G & C program, and on-site audits have been reduced by 87% since 2008; the Treasury Board of Canada secretariat reports the focus is one of risk management rather than risk aversion, with auditing centred on the relative level of risk.

Employment equity would therefore not be a redundant add on. On the contrary, simplification could allow the G & C program to support core government objectives, like employment equity. Simplification should enhance the ability of incentives-based programs covering a wide array of governmental priority areas to reflect the face of Canada.

It is however clear that the G & C programs are so vast that a wide range of employers included in them should not be covered under the FCP. These include most obviously provincial governments and municipalities, who would rightly claim jurisdictional overreach.

Yet G & C programs also cover a range of incentives mechanisms, for example the reimbursements that the federal government provides to automotive companies and dealers as incentives for consumers to purchase electronic vehicles. These grants and contributions could total over $100 million.

The recent improvements and simplification pave the way for streamlining of a government program that fosters inclusion across Canada. It is anticipated that inclusion of some of these employers will enable the employment equity framework to shed a spotlight on sources of real ingenuity and inclusion, for example, in the NGO sector.

Recommendation 7.16: An analysis should be undertaken of the aspects of the grants and contributions program that could appropriately be made subject to the Employment Equity Act framework, with a threshold comparable to the thresholds proposed for Federal Contractors Program employers.

The international cooperation sector and Canada in the world

Grants and contributions are in particular a key manner through which some non-governmental organizations are funded. The sector itself is vast, but one dimension warrants particular attention for the purposes of employment equity coverage: non-governmental organizations that represent Canada in the world. Their autonomy is key; so too is the vision that they reflect of Canada to the rest of the world.

Recently, one of the world’s leading international development organizations, Médecins Sans Frontières/ Doctors Without Borders, spoke out to pledge to change the vision that international development organizations like themselves have unfortunately perpetuated, citing the ways in which they unwittingly perpetuated racist stereotypes of “white saviours”. International aid organizations are particularly well placed to contribute to revisiting the image of Canada in the world to one that reflects an inclusive understanding of our country’s workers and their potential to lead in a broad range of employment worldwide.

In a recent letter to Finance Minister Chrystia Freeland, 77 international development organizations sought increases in funding, from the $8.15 billion pledged in the past budget to $10 billion in 2025. The aid organizations said it well: “Foreign aid is not a handout. It is an investment in the type of world we all want to see.”Footnote 29 We consider this to include the perspective of equity. Many have started their own reflection on these issues – do they portray an exclusionary vision of Canadians, or do they show the extent to which Canada represents the world through its demographics?Footnote 30 There is a tremendous opportunity here, one that Canadian development and human rights organizations should be encouraged to take seriously through adherence to employment equity principles. The task force was struck by one reflection made by a task force participant, suggesting that Canadians of the same origin as the host country were posted in those locations. We would suggest that Canada should be leading the charge to showcase equitable inclusion in all its diversity throughout operations abroad. NGOs should receive support from the proposed Employment Equity Commissioner to be able to foster equitable inclusion in international cooperation organizations.

Recommendation 7.17: Canada’s international cooperation sector should be expressly included within the ambit of the Federal Contractors Program.

Recommendation 7.18: Workers in international cooperation organizations recruited in Canada, whether based in Canada or posted abroad, should be included in the calculation of the applicable numerical threshold under the Employment Equity Act framework, alongside the total amount of the contributions agreements with the Government of Canada.

The construction industry

Currently the Federal Contractors Program excludes construction. Construction does not include architecture or engineering contracts, which are included in the FCP.Footnote 31 In Canada, the construction industry is one in which unionization rates have remained relatively high, but the representation of employment equity group members has reportedly been low. This is an area to which the FCP could apply, but does not. The main reason shared with the task force is that it is characterized by subcontracting.

In Quebec, the 2006 Task Force on the Full Participation of Black Communities in Quebec Society called for “the Minister of Labour to request that the Commission de la construction du Québec create a position within its organization to oversee the interests and fair representation of Quebecers from visible minorities in construction trades.”Footnote 32 The magnitude of the challenge of achieving equitable representation on the basis of gender, as required by law,Footnote 33 in an industry that has been recognized as almost entirely male has been analyzed by the Commission itself.Footnote 34

From existing procurements arrangements involving setbacks, in particular for First Nations, Métis and Inuit peoples, the federal government already has experience ensuring that sub-contractors contractually agree to report the relevant demographic data to the bidding contractor. Auditing procedures are already in place. The size of these contracts is significant in already heavily regulated trades that have had histories of under inclusion. The potential to help to move the needle on achieving and maintaining employment equity in this sector should not be underestimated.

Recommendation 7.19: Construction industry contractors who meet the threshold requirements should be included under the Federal Contractors Program.

Recommendation 7.20: The threshold number of employees should be assessed by combining the total number of workers across the main bidding contractor and its subcontractors, with due regard for anticipated variations over the lifecycle of the contract.

Supporting equity goups as employers in government procurements and preserving policy space in trade agreements

There is a related aspect to procurements that many stakeholders from employment equity groups mentioned, directly or indirectly. That is, beyond their inclusion in employment equity programs as workers, many were interested in seeing greater opportunities for entrepreneurship supporting employment equity group members.

International human rights law calls for it.Footnote 35

It is also a feature of the United States efforts to promote “diverse business enterprises” (DBE) that have had to rely on participation goals, tied to contract value, rather than other incentives. Our task force was informed of the many familiar limits and differences.

Currently, a mandatory set-aside program is in place for procurements designed for an area, community or group in which First Nations, Métis or Inuit peoples constitute at least 51% of the population and where Indigenous populations are recipients of the goods, services or construction. The bidder must certify that at least 33% of the value of the work performed under the contract is to be performed by an Indigenous business. Subcontractors are required to provide the requisite information to enable compliance to be substantiated. A previously applied requirement for Indigenous businesses to have at least 33% First Nations, Métis or Inuit employees is no longer applied to those businesses subject to the 2021 eligibility criteria.

As discussed in Chapter 3, procurements policies offer an important opportunity to move beyond the more limited framework currently captured in Section 7 of the Employment Equity Act and better reflect principles of Indigenous self-determination reflected in the United Nations Declaration on the Rights of Indigenous Peoples Act, and Canada’s commitment to truth and reconciliation.

More generally, Public Services and Procurement Canada has acknowledged the importance of supplier diversity, recognizing that entrepreneurs from equity groups have been historically under-represented in federal procurements. While it has indicated that “Procurement Assistance Canada is making a significant effort to reduce barriers and provide targeted support for businesses run by women, Indigenous Peoples, Black and racialized Canadians, persons with disabilities, and lesbian, gay, bisexual, queer, transgender, transsexual and two-spirited (LGBTQ2+) Canadians”Footnote 36 the initiatives seem tied to summits and similar initiatives to encourage applications.

There has, moreover, been progress within trade agreements, with the inclusion of chapter specific reservations and exceptions relating to Indigenous peoples and Indigenous businesses. The Canada-United States-Mexico Agreement (CUSMA) contains a general exception, which clarifies that the Canadian government can adopt or maintain measures necessary to fulfil its legal obligations to Indigenous peoples, with specific reference to Section 35 Aboriginal Rights as recognized and affirmed in the Constitution Act, 1982, as well as self-government agreements.

The trade dimension is important more broadly, for its impact on who it might have excluded from the operation of the FCP. For example, UNIFOR noted that the automotive sector used to be heavily covered by the FCP before it was revised. It included employers who hired internationally. UNIFOR recalled the important relationship between trade agreements and employment equity.Footnote 37

We note that some of Canada’s recent trade agreements include provisions on the respect of fundamental principles and rights at work as defined by the International Labour Organization, notably in Chapter 23 of CUSMA and Chapter 23 of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA). Recent trade agreements include equality rights and place attention on adopting and maintaining the “effective elimination of discrimination in respect of employment and occupation” and sanction the “sustained or recurring” failure to enforce labour standards. For example, Article 23:4 of CUSMA contains a non-derogation clause,

Article 23:4 of CUSMA offers a similar requirement to uphold levels of protection.

These provisions constitute an important step in the direction of recognizing the interface between trade, labour and human rights standards. They underscore a message reinforced throughout this report: the Employment Equity Act framework is meant to be enforced.

Procurement policies should be interpreted in keeping with these provisions. These provisions may also be understood to ensure the policy space necessary – at least with the trading partners in the covered agreements – to add clauses to procurements agreements that support employment equity goals.

Contractors programs comparatively

United States

The employment equity mechanism that has most influenced the Canadian FCP has been in the United States. Executive Order 11246 of 24 September 1965 on Equal Employment Opportunity is the core of U.S. affirmative action measures. It is a federal contractors program. Its coverage is broad and includes the construction industry. Federal contractors are required to undertake affirmative action measures to ensure non-discrimination in employment on the basis of race, colour, national origin, religion, gender and sexual orientation/ gender identity, and maintain records of their hiring and employment practices if they have contracts of $10,000 or more. For employers with 50 or more employees and contracts in excess of $50,000, they are required to have a written plan. In the case of disability, the measures apply and a plan is required with 50 employees and contracts of $15,000; the amount is 50 employees and $150,000 in the case of veterans.Footnote 38

In the United States, the Office of Federal Contract Compliance Programs (OFCCP) is responsible for administration and enforcement. For large contracts of over $10 million, it undertakes pre-award reviews, with a list of “in compliance” federal contractors made available through a pre-award registry.Footnote 39 The registry allows federal agency contracting offers to request pre-award clearance from OFCCP.

The OFCCP also conducts compliance audits and complaint investigations under Section 206 of the Executive Order. In 2021, 1, 125 compliance audits were conducted, which resulted in 135 conciliation/ settlement agreements. The OFCCP also receives complaints “by employees or prospective employees of a Government contractor or subcontractor which allege discrimination contrary to the contractual provisions specified in Section 202 of this Order”– 1,531 in 2021 alone. It investigated and resolved only 114 complaints; however, referring most of the complaints to the Equal Employment Opportunity Commission (EEOC) for investigation and resolution whenever it has reason to believe that the practices violate Title VI or Title VII of the Civil Rights Act of 1964.Footnote 40 Professor Stacy Hawkins also reports that the possibility that federal contractors who are in severe or continued non-compliance may be debarred is a rarely used tool.Footnote 41

European Union

In contrast, the 2014 EU Directive on Public Procurements preserves significant space for EU Members to determine what will be covered by the agreement, and permits contract performance conditions to favour the measures that promote equality between men and women for work, increase participation of women in the labour market and the reconciliation of work and private life, alongside compliance “in substance” with fundamental International Labour Organization (ILO) Conventions. It also allows “more disadvantaged persons than are required under national legislation” to be recruited.Footnote 42 In implementing this Directive, Spain requires bidders to show that the workplace already meets a representational target to benefit from the preference. Creatively, Spain foresees that in deciding who to award the contract on a plurality of considerations that go beyond the price dimensions, it may seek reports from unions or human rights organizations (and other organizations related to some of the other social justice concerns including environmental justice concerns) to verify the social and environmental considerations.Footnote 43

One important early observation in the research should be kept in mind, however. Professor Christopher McCrudden notes that some states adopt legislation but have little activity actually linking procurements with equality. Other states use the policy latitude they have to act, and link equality with procurements in practice, without much legislative fanfare.Footnote 44

South Africa

South Africa’s program for broad based Black Economic Empowerment, drawing on the post-apartheid constitutional mandate for positive action to remedy the effects of racial segregation and exclusion. The Black Economic Empowerment Act as amended in 2014Footnote 45 includes a broad range of measures including employment equity generally and for these purposes, preferential procurement from enterprises that are owned and managed by Black people. “Black people” is a generic term in South Africa that is defined to include “Africans, Coloureds, and Indians” and incorporates a pre-27 April 1994 citizenship or citizenship eligibility requirement. Amendments to the South African Employment Equity Amendment Act, 2022, signed into law on 14 April 2023 and entering into force on 1 September 2023, expressly link eligibility for government procurement contracts to compliance with employment equity requirements and non-discrimination.

In light of the significance of trade agreements and the need to secure the policy space to include equality in procurements, as well as the importance of the comparative examples, we offer the following recommendations.

Recommendation 7.21: Specific provisions should be made in future negotiations to ensure policy space for setbacks on behalf of employment equity groups under the Employment Equity Act.

Recommendation 7.22: The federal government should use its policy space to include setbacks on behalf of employment equity groups under the Employment Equity Act in awarding procurement contracts to promote the equitable inclusion of entrepreneurs from employment equity groups in the award of federal contracts. Prior government-to-government consultations should take place as concerns First Nations, Métis and Inuit peoples.

Recommendation 7.23: International agreements on procurements negotiated by the Government of Canada should explicitly clarify that Canada retains the ability to adopt or maintain its commitment to substantive equality, including through the Employment Equity Act framework.

Time to include Parliamentary employees

Parliamentary employees are currently not covered under the Employment Equity Act framework, for largely historical reasons. The Supreme Court of Canada recognized in 2005 that the Canadian Human Rights Act applies to them:

Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30:

The employment roster of the House of Commons in 2005 is very different from that of 1867. In the early period, the House of Commons had only 66 permanent staff and 67 sessional employees. At present, according to the Human Resources Section of the House of Commons, there are 2377 employees. These include many departments and services unknown in 1867. The Library of Parliament alone employs 298 people, more than twice the total number of House employees in 1867. The Information Services for the House now has 573 employees. Not all of these greatly expanded services relate directly to the House’s function as a legislative and deliberative body. Parliamentary Precinct Services employs over 800 staff including a locksmith, an interior designer, various curators, five carpenters, a massage therapist, two picture framers, a chief of parking operations and two traffic constables. Parliamentary Corporate Services includes several kitchen chefs, lesser cooks and helpers, three dishwashers/potwashers and other catering support staff. There is no doubt that the House of Commons regards all of its employees as helpful but the question is whether that definition of the scope of the privilege it asserts is too broad. …

The appellants having failed to establish the privilege in the broad and all-inclusive terms asserted, the respondents are entitled to have the appeal disposed of according to the ordinary employment and human rights law that Parliament has enacted with respect to employees within federal legislative jurisdiction. …

There is no indication in the language of s. 2 that the Canadian Human Rights Act was not intended to extend to employees of Parliament. There is no reason to think that Parliament “intended” to impose human rights obligations on every federal employer except itself. …

I conclude therefore that the Canadian Human Rights Act does apply to employees of the Senate and House of Commons. 

Currently the House of Commons has budgeted 1,807 full time equivalent employees, as detailed in the table below, and the Library of Parliament has budgeted 383.52 full time equivalent employees, not including guides, students or interns.Footnote 46

Table 7.2: Budgeted full time equivalent employees
House of Commons offices Number of employees
(full time equivalents)
Office of the Clerk and Secretariat 62
Procedural Services 329
Office of the Law Clerk and Parliamentary Counsel 38
Office of the Deputy Clerk, Administration 52
Parliamentary Precinct Operations 470
Office of the Sergeant-at-Arms and Corporate Security 68
Digital Services and Real Property 441
Human Resources Services 162
Finance Services 186
Total 1,807

Recommendation 7.24: Parliamentary employees should be included within the scope of the Employment Equity Act. This may be accomplished in a manner analogous to the inclusion of Parliamentary employees under the Pay Equity Act framework, through amendments to the Parliamentary Employment and Staff Relations Act.

Successorship

As is the case in much collective bargaining, employment standards across Canada and pay equity legislation in Québec and Ontario, it would be prudent for an Employment Equity Act to anticipate that the alienation of an enterprise or the modification of its legal structure shall have no effect upon employer’s obligations under the Employment Equity Act and covered programs. Adding a provision of this nature in no way takes away from the premise that employees have a right to a workplace that is free from systemic discrimination and harassment.Footnote 47

Of course, this kind of provision would not be expected to grant jurisdiction in the event of the loss of federal jurisdiction. However, it could usefully be clarified, as was the Canada Labour Code following the recommendation of the Task Force chaired by Andrew Sims, Q.C. to review Part I of the Canada Labour Code, that successorship should apply to businesses that move from provincial to federal jurisdiction.Footnote 48 The task force chaired by Professor Bilson considered this recommendation and made an analogous recommendation when it proposed federal pay equity legislation in 2004, and was attentive to ensuring that any existing provincial plans could be considered for their compliance with federal requirements.Footnote 49

Recommendation 7.25: The Employment Equity Act should be amended to provide that successorship provisions should apply to businesses that move from provincial to federal jurisdiction alongside transitional provisions in the Employment Equity Regulations to address reporting requirements.

Other proposals

In a myriad of ways, our task force heard from stakeholders that there is an appetite for ensuring that employment equity is recognized to benefit society as a whole. Many were seeking ways to ensure that its scope was as comprehensive as possible. Employment equity groups, and some employers and unions wanted to go further, to think about how to strengthen entrepreneurship by employment equity groups.

While this report could not consider everything, we have tried to consider and respond carefully to quite a lot. There is necessary detail, but we have kept the focus on the big picture – strengthening the three pillars of implementation through barrier removal, meaningful consultations and regulatory oversight. Coverage is not for its own sake, but to build a sustainable and supportive scheme to foster equitable inclusion for all.

We were buoyed by the fact that stakeholders who came before us were not just viewing employment equity as a constraint but as a competitive advantage, for individual employers, for economic growth, and for Canadian society as a whole. This includes how we represent ourselves in the world.

The recommendations offered in this chapter seek to respect those broader societal aspirations. This report identifies the areas where coverage should and can quite logically be extended. We pay attention to thresholds, and seek to promote communities of learning.

Employment equity is not and cannot be everything to everyone. But it can be true to its own objectives and must be understood as an important part of the holistic approach to labour law and human rights law.

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