Q. Why hasn't the Commission taken the opportunity this legislation gives to strengthen the goals of the Employment Equity Act (EEA) through the development of more policy requirements?
A. It is important to remember that the Commission is not responsible for the government's overall Employment Equity (EE) Policy. This responsibility rests with the Office of the Chief Human Resources Officer (OCHRO). Our policy deals strictly with the issue of employment equity within the appointment process and is consistent with the Commission's clearly defined appointment mandate.
The legislation itself has demonstrated strong support for employment equity by embedding directly into the legislation certain new opportunities, and opportunities currently found in the previous Public Service Employment Regulations (PSER), such as:
- the authority to restrict the area of selection to members of designated groups;
- the authority to expand the area of selection for members of designated groups.
Deputy heads may also establish employment equity objectives as an organizational need, one of the merit criteria that can be established to make an appointment.
Q. Is an employment equity program required in order to restrict the area of selection to one or more designated groups?
A. No. There is nothing in the Public Service Employment Act (PSEA), section 34, that states that an employment equity program must be in place before an organization can use this provision and the Commission is not planning on making it mandatory.
However, one of the policy requirements in the Policy on EE in the Appointment Process requires deputy heads to be able to demonstrate that this decision is consistent with the organization's EE Plan.
Additionally, a requirement of the Policy on Area of Selection states that organizations must develop their own organizational policy on area of selection. Organizations may include information regarding employment equity in those policies, for example, when it would be appropriate to restrict areas of selection to designated group members and whether this can be done for both external and internal appointments processes, acting appointments, etc.
Q. Can organizations develop employment equity programs?
A. Yes, as long as the programs conform with the requirements of the EEA and the Canadian Human Rights Act. If there is a need for regulations to accomplish this, the PSEA section 22(2)(d) gives the Commission the authority to develop regulations to facilitate the implementation of employment equity programs developed by an employer or a deputy head. A regulation has been developed to exclude appointments within EE programs from the consideration of priorities unless the priority person is a member of the designated group to which the EE program applies.
Q. What is an Employment Equity program?
A. For the purposes of the Public Service Employment Regulations(PSER), and based on Paragraph 22(2)(d) of the Public Service Employment Act and Subsection 10(1) of the Employment Equity Act, the PSC has defined the term "Employment Equity Program" in the Guidance Series document on "Integrating Employment Equity in the Appointment Process", as follows:
"An EE program refers to positive policies, practices, or elements of an EE plan designed to address disadvantages and under-representation of a designated group."
The Guidance Series document also includes a model for EE programs, that is, guiding principles and elements in designing and implementing EE programs.
Q. Do the Public Service Employment Regulations (PSER) require a department to have an EE program?
A. An EE program is required if the department plans on using the PSER section 3 and section 4 to appoint a member of a designated group without considering statutory or regulatory priority persons, unless those persons are from the designated group to which an EE program applies.
The appointment must be made in accordance with an EE program developed by the Employer or a deputy head. As there is no requirement in the PSER for approval of the EE program by the PSC, an organization can determine the size, scope, and coverage, as well as the elements of the organization's EE program to which the PSER will apply.
Q. An advertised appointment process has been established with an area of selection of "Members of a visible minority within Canada." Can persons who apply be asked to self-declare, for the purposes of selection decisions, at the beginning of the process?
A. Yes. The decision has already been made that everyone selected for appointment from this process will have to meet this merit criterion, so it is appropriate to ask persons to self-declare when they apply.
Q. Is there a requirement for organizations to have an employment equity plan? Are deputy heads responsible for determining under-representation and conducting surveys?
A. This requirement, which comes from the EEA, has not changed. Deputy Heads are responsible for determining under-representation by conducting surveys and doing work force analysis. They are also responsible for developing an EE plan, either stand-alone or as part of the organizational human resources plan in order to overcome any gaps in representation that have been identified.
Q. Are parts of the EEA being affected by the PSEA?
A. No. There are no changes to the EEA. The section in the previous PSEA that gave the PSC the authority to implement EE programs on behalf of the employer or deputy heads was removed. Under the current legislative framework, deputy heads have the authority to do this on their own.
Q. What can we expect from the changes to the PSEA?
A. Besides the authority to expand the area of selection for members of designated groups, there are other opportunities. Deputy heads have the authority to:
- restrict the area of selection to members of designated groups only and
- establish employment equity objectives as a merit criterion for selection purpose (current or future organizational needs which may include the needs of the public service as a whole).
Under the previous legislation, the Commission approved the implementation of departmental EE programs; however departments were not required to provide special reports on EE provisions. With the increased delegation of appointment authorities under the current PSEA, Deputy Heads are responsible for developing their own employment equity programs. The PSC will monitor how departments use the employment equity opportunities to make progress in achieving a representative public service, as the Act encourages delegation of appointment authorities for external and executive resourcing.
With the emphasis on oversight and reporting, the values of access and representativeness will be closely monitored by the Commission if it is identified as a risk area.
Q. Managers want to hire visible minorities members but HR does not move fast enough. Where do the responsibility and accountability lie?
A. For managers to make effective use of the opportunities in the PSEA, they need to do effective HR planning. This is necessary to determine current and future needs of the organization as a whole as well as for their specific area of responsibility. Planning also identifies any gaps in representation that can be addressed through hiring activities. Deputy heads are responsible for identifying gaps in the organization and taking action to correct them.
Q. Does the PSC have questions and answers on the implementation of the PSEA and its implications for EE on their website?
A. Yes. Besides the questions and answers posted in this section, EE-related answers can also be found in other sections, such as Delegation, Area of Selection, Assessment, Accountability, etc.
Q. Has the PSC assessed the potential negative impact on employment equity group members of the removal of the requirement to select the best qualified candidate in a selection process?
A. While "best qualified" is no longer required as the standard for appointments, there is a requirement for managers to justify their decisions based on the right fit for the job, and all applicants must, at a minimum, meet the essential merit criteria. Because of additional opportunities in areas of selection and merit definitions, the process for hiring designated group members is simpler.
Q. What are the implications for deputy heads of non-compliance of the department in relation to EE representation and in relation to the requirements of the PSEA?
A. Departments have to comply with the PSC Policy on Employment Equity in the Appointment Process. Moreover, the PSC has established the following condition of delegation dealing with employment equity within the process to facilitate progress in achieving a representative public service:
- Deputy heads must consider and balance business needs, employment equity and HRM goals, the interests of the public service, and the career aspirations of employees when developing and applying appointment policies and practices.
Information on how well departments are ensuring that employment equity considerations are incorporated in appointment processes will also be captured through the SMAF and the corresponding accountability reports to the Commission.
The PSC has not identified specific sanctions for non-compliance with appointment or appointment related authorities. The PSC's Delegation Instrument states that when the PSC finds that there has been abuse of delegated or sub-delegated authorities, remedial measures will be taken. These can include the imposition of additional conditions, more detailed reporting to the PSC, conducting an audit or investigation or the withdrawal of certain delegated authorities.
Departments also have to comply with the government's overall EE policy, for which OCHRO is responsible. The Policy states that deputy heads will be held accountable by integrating implementation of employment equity objectives into the input provided for departmental management assessments. For more information on this policy, visit the OCHRO Web site.
Q. Is there a requirement for managers to be trained on and to familiarize themselves with the EE provisions in the PSEA prior to being sub-delegated?
Deputy Heads must sign the ADAI, which requires that managers respect among other things, the PSC Policy on Employment Equity in the Appointment Process.
In order for the deputy head to sub-delegate the Commission's authorities, certain conditions must be met:
- Managers must have ready access to the departmental ADAI and a clear description of the roles and responsibilities of managers.
- Managers must have access to a human resources advisor whose expertise on the PSEA has been validated by the Public Service Commission.
- Managers must have access to training on the PSEA and the PSC Appointment Framework.
Training on the PSEA and appointment policies is offered by the Canada School of Public Service. Many departments are also developing or modifying existing training packages for managers on staffing.
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