Public Service Alliance of Canada Submissions on the Employment Equity Act Review TO THE Taskforce on Employment Equity Act Review APRIL 2022

Table of Contents

Summary of Recommendations 2 Introduction 6 Internal Survey 6 Analysis and Recommendations 8 1. Terminology 8 2. Disaggregated Data for Designated Equity Subgroups and Intersectionality 8 3. Inclusion of LGBTQ2+ Community 11 4. Labour Market Availability (LMA) / Workforce Availability Rates (WFA) 11 5. Tensions between the Employment Equity Act (EEA), Public Service Employment Act (and the Financial Administration Act (FAA) 13 6. Complaint Processes 15 i. Federal Public Service Labour Relations and Employment Board (FPSLREB)15 ii. Canadian Human Rights Commission (Complaint Process) 17 iii.

Canadian Human Rights Commission (Employment Equity Audit process) 18 iv. Employment Equity Review Tribunal (EERT) Canadian Human Rights Tribunal 20 7. Accessible Canada Act 22 8. Strengthening the role of bargaining agents 23 9. Federal Contractors Program 25 10. Pay transparency 28 Conclusion 29 ANNEX A PSAC Employment Equity Survey Report 31 ANNEX B PSAC Submission on Staffing in the Federal Public Service 48 ANNEX C PSAC Report on the PSMA Five Year Legislative Review 62

Summary of Recommendations The following are PSAC’s recommendations for amendments to the Employment Equity Act and related legislation that impacts employment equity initiatives in the workplace: 1. Terminology Outdated terminology (i.e. “Aboriginal Peoples”, “visible minorities”, etc.) in the Employment Equity Act must be updated to reflect the language and terminologies currently used by those communities. 2. Disaggregated Data for Designated Equity Subgroups and Intersectionality The Employment Equity Act must be amended to collect and analyze disaggregated data for every designated equity group.

By so doing, representation rates and barriers faced by distinct groups within designated equity groups can be examined and addressed more appropriately. Each specific designated employment equity group should be broken down (e.g. Black, South Asian, Chinese, Arab, etc.) so that barriers for specific communities can be identified and addressed. Data should also be collected in a manner that allows for intersectional analysis. 3.

Inclusion of LGBTQ2+ Community The Employment Equity Act must be amended to include the LGBTQ2+ community as a designated group and the necessary data (census data) must be collected like other designated groups. Data collected must be disaggregated and allow for an intersectional analysis since the LGBTQ2+ community is not homogenous and does not experience workplace discrimination in the same manner.

3 4. Labour Market Availability / Workforce Availability Rate The Employment Equity Act must be amended to ensure accurate and current labour market availability and workforce availability rates that are reflective of each designated equity group. The labour market availability and workforce availability rates must be regularly updated between censuses to reflect the changes in Canada’s population (e.g. recent newcomers/immigrants who have international experience, non -Canadian Citizens). 5.

Tensions between the Employment Equity Act, Public Service Employment Act and the Financial Administration Act There be a thorough review and amendments made to the Public Service Employment Act and the Financial Administration Act to eliminate systemic barriers faced by equity-seeking groups. The review must include strengthening the role of central agencies, exam ining any provisions that hinder the objectives of the Employment Equity Act , and increasing the accountability of departments and agencies.

Furthermore, in situations of legislative conflict, the Employment Equity Act should supersede the Public Service Employment Act and the Financial Administration Act. The recommendations in the Final Report of the Joint Management -Union Taskforce on Diversity and Inclusion should also be implemented. 6.

Complaint Processes The Taskforce must review all employment equity related complaint processes, including the Federal Public Service Labour Relations and Employment Board and Canadian Human Rights Commission processes carefully to determine the systemic barriers for equity groups in these processes, including removing provisions that prohibit employment equity related complaints. If there is no meaningful mechanism for recourses, then compliance requirements under the Employment Equity Act are meaningless.

The Employment Equity Review Tribunal should be replaced with an Employment Equity Commissioner with similar duties, functions and

4 processes as the Pay Equity Commissioner recently established at the Canadian Human Rights Commission. The historical underfunding of the Canadian H uman Rights Commission must be addressed. The Canadian Human Rights Commission must be properly resourced not only to meet its current mandate but also further resourced to include an Employment Equity Commissioner. In addition, bargaining agents must be able to bring forward employment equity complaints under the Employment Equity Act and trigger an audit, including when they have not been properly consulted.

Consultations and Collaboration should be clearly defined in the Employment Equity Act and if it does not occur, bargaining agents should be able to make a complaint. All audit reports should be made public subject to provisions stipulated in Access to Information and Privacy laws. 7. Accessible Canada Act The Taskforce examine the concurrent jurisdiction between the Employment Equity Act and the Accessible Canada Act to ensure that each legislation supports and re-enforces the other rather than overlapping each other and leaving gaps in the legislation. 8.

Strengthening the role of bargaining agents The role of bargaining agents must be strengthened in the Employment Equity Act. The Employment Equity Act should clearly outline the obligation for joint national and regional employment equity committees that meet regularly for meaningful consultation and collaboration. Meaningful consultations and collaboration must be defined in the Employment Equity Act to ensure that employers do not try to circumvent their obligations by minimizing their “consultation and collaboration” process.

To ensure compliance of consultation and collaboration, bargaining agents should be able to make a complaint if they believe that the employer failed this requirement. Furthermore, if employers are found to have failed to properly consult and collaborate, then there must be a consequence for them that would compel them to meet this requirement.

5 The following elements should be in the definition:

a) Establishing joint employment equity committees;

b) Employers and bargaining agents jointly review, prepare and develop, implement and revise together the employment equity plans; and

c) Employers and bargaining agents actively participate in all stages of the employment equity process from the start, to continuous reviewing and monitoring progress. Bargaining agents should be able to negotiate provisions in the collective agreement that would go above and beyond the provisions in the Employment Equity Act. The Employment Equity Act should be the floor and not the ceiling for employment equity initiatives. 9.

Federal Contractors Program Contractors under the Federal Contractors Program must have the same requirements as other employers under the Employment Equity Act, including statutory requirements and reporting requirements s o that the Minister of Labour cannot make changes arbitrarily. The 2012 amendments to the Employment Equity Act must be reversed to decrease the threshold requirement to be under the Federal Contractors Program. Furthermore, in order to ensure consistency, ESDC should either work with the Canadian Human Rights Commission, or the auditing function should be done solely by one body.

Again, this requires the Canadian Human Rights Commission to be adequately resourced. 10. Pay Transparency The Employment Equity Act must be amended to ensure wage gaps are addressed throughout the employment equity process and become part of employment equity plans. In addition, any audit or compliance processes must also take into consideration wage gaps in deter mining if compliant. If wage gaps aren’t addressed in plans, then there should be a mechanism to make a complaint.

The pay transparency provisions should apply to both federally regulated private and public sectors, as well as Federal Contractors Program.

6 Introduction The Public Service Alliance of Canada (PSAC) is pleased that the taskforce is mandated to thoroughly review the Employment Equity Act (EEA). The PSAC represents approximately two hundred and fifteen thousand workers. Our members work for federal government departments and agencies, separate employers, federal crown corporations and agencies, territorial governments, universities and a variety of other public and private sector employers. Our members fall both under federal public service and the federal contractors’ program.

The PSAC views the EEA as a critical tool in combatting workplace discrimination. We understand that employment equity will not in itself eradicate all forms of discrimination, or harassment, from our members’ workplaces - but proactive and preventative measures have clear advantages to addressing systemic employment discrimination over reactive processes. When direct and systemic employment barriers are removed, then all workers feel valued, included, and recognized for their abilities and contributions rather than be judged based on intangible and inherent characteristics.

At the outset, it must be noted that unions play an important role because they bring perspectives of workers who may otherwise not have a voice in the development, implementation, monitoring and review of employment equity processes and plans in their workplaces. As such, the PSAC takes its role seriously in critiquing the effectiveness of the current legislation. We reaffirm the need for a comprehensive legislative process to bring equity into the workplaces of all members we represent.

Internal Survey In preparation for this review the PSAC consulted our members at large and union activists engaged in employment equity work through two internal surveys – one for the membership and another for union activists. Because of the importance of employment equity in workplaces, there were over 5300 responses to our on-line membership survey. Members’ and

7 activists’ input, and our many years of experience with the Employment Equity Act, shaped our recommendations. The following are some highlights from the survey: Only 17.6% of participants said they had joint workplace committees that examined employment equity, 66.55% of respondents indicated that they were unaware or not sure of any employment equity initiatives. Only 33.5% said they were aware of equity initiatives in their workplace. Many participants did not think their workplaces were representative of equity groups. Figure 1-Q11.

Do you believe your workplace is representative of the equity groups covered under the EEA, specifically? As shown above, only 33.6%, 34.1%, 52%, 79% believe that their workplaces are representative of Indigenous workers, workers with disabilities, racialized workers, and women respectively.

Some findings include: • 48% believed their workplaces are representative of LGBTQ2+ workers and 30.1% believed their workplaces to be representative of religious minorities. • Participants believe there are barriers in recruitment, hiring, training, promotion, and retention, varying from 24.8% to 37.6% in each of these areas. People with disabilities 29.41% 36.50% 34.09% Racialized people 19.27% 29.08% 51.65% Indigenous peoples 25.84% 40.57% 33.59% Don't know No Yes Women 10.84% 10.42% 78.74% 0.00% 10.00% 20.00% 30.00% 40.00% 50.00% 60.00% 70.00% 80.00% 90.00%

8 • Only 24.8% to 39.3% of participants believe their employer has done something to reduce or eliminate the barriers in each of these areas. • 38.5% believe the role of the bargaining agent could be strengthened under the EEA, while 9.3% said it could not and 52.2% were unsure. • 42.3% believe that the accountability and enforcement under the EEA could be strengthened, while 8.6% said it could not and 49% were unsure. The report on the PSAC internal survey can be found in Annex A. Analysis and Recommendations 1. Terminology The language in the EEA must be updated.

As our understanding of human rights continues to evolve, so does the language used to discuss it. Terms such as “Aboriginal” and “visible minority” are outdated and offensive terms. Consultations with the appropriate communities must be undertaken in examining new terminology. For example, Indigenous communities are using “Indigenous Peoples” in replacement of “Aboriginal Peoples”. However, there is no consensus on the terminology to replace “visible minority”. It should be amended to reflect more appropriate terminology used to describe this community such as racialized, people of colour, etc.

Recommendation 1: Outdated terminology (i.e. “Aboriginal Peoples”, “visible minorities”, etc.) in the Employment Equity Act must be updated to reflect the language and terminologies currently used by those communities. 2. Disaggregated Data for Designated Equity Subgroups and Intersectionality Disaggregated data for Designated Equity Subgroups and Intersectionality should be collected for every designated equity group. No equity group is homogenous and, as such, people within designated equity groups experience workplace discrimination and barriers differently.

For example, in the 2021 Public Service Commission’s Audit of Employment Equity

9 Representation in Recruitment report, Black federal public service workers had a lower job appointment rate than their job application rate.1 The federal public service must further analyze any gaps that may exist in the hiring and promotion of Black employees. Just last year, Black federal public service workers mobilized to file the Black Class Action lawsuit. It specifically is seeking long -term solutions to permanently address systemic racism and discrimination in the Public Service.

Anti-Black racism is pervasive throughout society and is witnessed through the treatment of the Black community in policy, heal thcare, education and other public institution; but we strongly believe the public service should be making a concerted effort to make its' workplaces safe and inclusive. The Public Service Commission’s report also demonstrates that Chinese federal public service workers were found to have the lowest application rates among the four largest racialized sub -groups. It is unclear how anti - Asian hate is impacting employment opportunities for the Asian community.

There also may be under -representation of racialized sub -groups in the federal public service, but to really understand this, further analysis with disaggregated data must be undertaken2. Clearly, discrepancies in representation, and experiences and barriers within designated equity groups, are not exposed when all racialized groups are categorized into one equity group. As another example taken from the survey, we can see that depending on their identities, members answer questions differently.

For question 10, members were asked if there is clear support for employment equity in the workplace, answers from Indigenous mem bers and members belonging to the LGBTQ2+ community were different. 39% of LGBTQ2+ members think the support exist while that number is at 33.7% for the Indigenous members. While the difference is not huge, it is still notable. As a disclaimer, we also have to keep in mind that for some members those two identities intersect. Similarly, disaggregated data for Indigenous peoples should include First Nations, Inuit and Métis people.

The Call to Actions in the Truth and Reconciliation Commission’s Report and the recent discoveries of unmarked graves at residential school territory show that there is much to do in order to achieve reconciliation with Indigenous communities as a result of 1 https://www.canada.ca/en/public-service-commission/services/publications/audit-of-employment-equity- representation-in-recruitment.html#3_8 2 https://www.canada.ca/content/dam/tbs-sct/documents/employment-equity-report/20210406-eng.pdf

10 colonialization and cultural genocide. Therefore, in the spirit of reconciliation, it is important to understand that Indigenous communities are not all homogenous and that First Nations, Metis and Inuit have their own distinct experiences of anti-Indigenous racism. Disaggregated data for people with disabilities should be based on the Canadian Survey on Disabilities subgroups used to collect census data3. The 2016 census revealed that persons with severe disabilities had higher unemployment and lower accommodation rates.

Similarly, people with disabilities are also not a homogenous community, with varying severity and types of disabilities. Disaggregated data also needs to consider the various intersectional identities of women such as women with physical disabilities, learning disabilities, First Nations women, Black women, South Asian women, etc. Finally, when the LGBTQ2+ community is included in the EEA then disaggregated data for that community should also be provided. The PSAC submits that the disaggregated data must be collected in a way that allows for cross -references and an intersectional analysis.

As equity analysis has evolved over the last two decades so has our understanding that multiple identities create unique experiences for individuals. For example, systemic barriers faced by Indigenous women with disabilities will be uniquely different than those faced by non-Indigenous women with disabilities. Indigenous communities have distinct lived experiences (e.g. residential schools, inter -generational trauma, stereotypes of Indigenous women, etc.). We note specifically the tragic deaths of Indigenous people in the health care system, policing and other institutions.

Recommendation 2: The Employment Equity Act must be amended to collect and analyze disaggregated data for every designated equity group. By so doing, representation rates and barriers faced by distinct groups within designated equity groups can be examined and addressed more appropriately. Each specific designated employment equity group should be broken down or be distinct employment equity groups (e.g. Black, South Asian, Chinese, Arab, 3 https://www150.statcan.gc.ca/n1/pub/89-654-x/89-654-x2018002-eng.htm

11 etc.) so that barriers for specific communities can be identified and addressed pursuant to the Employment Equity Act. The data should also be collected in a manner that allows for intersectional analysis. 3. Inclusion of LGBTQ2+ Community There is growing evidence that the LGBTQ2+ community experiences systemic workplace barriers and discrimination. The 2016 LGBT Purge class action lawsuit also demonstrated the discrimination in employment faced by former federal public service workers 4.

The most recent Public Service Employee Survey results demonstrate that LGBTQ2+ workers continue to face harassment and discrimination in the Federal Public Service. Given this continued systemic problem, LGBTQ2+ workers must be included as a designated group in the EEA. Furthermore, collection of data that adequately reflects the representation rates of these workers through census data or other data collection is required to determine labour market availability and workforce availability rates and representation gaps.

Recommendation 3: The Employment Equity Act must be amended to include the LGBTQ2+ community as a designated group and the necessary data (census data) be collected like other designated groups. Data collected must be disaggregated and allow for an intersectional analysis since the LGBTQ2+ community is not homogenous and do not experience workplace discrimination in the same manner. 4. Labour Market Availability (LMA) / Workforce Availability Rates (WFA) The process in how the labour market availability and workforc e rates are calculated for the purposes of the EEA must be changed.

Currently, it is based on census data that is collected every five years. By the time Employment and Social Development Canada (ESDC) and Treasury Board Secretariat (TBS) calculate their respective rates, these rates are already 4 https://lgbtpurgefund.com/about/#the-purge

12 outdated since it takes them a few years after the census to calculate the LMA and WFA rates, respectively. We note that some of the data is unreliable. For example, there is a perception that census data on Indigenous workforce is not accurate because the census does not fully collect the representation of Indigenous communities.

Kate McBride observes that: The lack of involvement of communities in the development and use of data, and the drive for data collection from outside authorities, has led to a situation where Indigenous communities do not trust the data collection process and are often resistant to sharing their information (Royal Commission on Aboriginal Peoples, 1997). “This approach has created a situation in which there is a lack of trust, ‘buy -in,’ and participation on the part of Indigenous communities – inevitably affecting the overall quality of the data” (Steffler, 2016, p. 151).5 The changing nature and increased precarity of work – who is included in the employment equity data and who is not – is also of concern.

For example, the federal government hires workers through temporary agencies who do the same work as indeterminate workers but may not be counted in workforce. Also, of concern is the lack of recognition of international work experience and educational credentials of newcomers / immigrants who come to Canada for better employment opportunities. As a result, the census may not accurately reflect the workforce availability (set by TBS) for racialized groups because they are unjustly ineligible for careers in their profession due to the lack of recognition of their experience and credentials.

A further issue was the exclusion of non-Canadian citizens in TBS’s workforce availability rates for the federal public service. This was the result of a barrier embedded in the Public Service Employment Act (PSEA) which had given preference to hiring Canadian citizens over others. Recently the PSEA was amended to expand this preference to include permanent residents.

However, for many years, this requirement under the PSEA prevented non-Canadian citizens from being included in the workforce availability rates and thus leading to an under-representation of racialized 5 McBride, Kate, Document Review and Position Paper: Data Resources and Challenges for First Nations Communities prepared for the Alberta First Nations Information Governance Centre at page 6.

13 workers in the labour force. It is yet to be determined whether TBS will adjust the WFA accordingly. Recommendation 4: The Employment Equity Act must be amended to ensure accurate and current labour market availability and workforce availability rates that are reflective of each designated equity group. The labour market availability and workforce availability rates must be regularly updated between censuses to reflect the changes in Canada’s population (e.g. recent newcomers / immigrants who have international experience, non-Canadian Citizens, etc.). 5.

Tensions between the Employment Equity Act (EEA), Public Service Employment Act (and the Financial Administration Act (FAA) The EEA aims to achieve “equality in the workplace” for equity-seeking groups who should not be “denied employment opportunities or benefits for reasons unrelated to ability”. Unfortunately, the important goals of the EEA will not be achievable until there are changes made to other co-existing legislation that currently impede these objectives. In the federal public service, staffing and human resource framework fall under the PSEA and the FAA.

These legislations create the Public Service Commission (PSC), the body responsible for all appointments to, and within, the federal public service and, gives Treasury Board (TB) general human resources management authority for the federal public service. The PSEA also outlines staffing criteria including the principle of merit.

Section 4(4) of the EEA outlines the responsibilities of TB and the PSC, specifically stating that they are the “employer” for the purposes of the EEA “as within their scope of powers, duties and functions” under the PSEA and the FAA.

Section 4(7) of the EEA allows for TB and PSC to delegate their obligations under the EEA to chief executive officers or deputy heads. It is often argued that the provisions of the PSEA, such as the merit principle and delegated authority to the lowest level of management within departments, are not in conflict with the EEA. However, employment equity groups have consistently perceived these as barriers to their career progress in the federal public service. Currently, any employment equity

14 initiative under the EEA must not be inconsistent with the PSEA and the FAA. Furthermore, equity groups perceive that hiring managers make decisions on staffing processes without much accountability. Accord ing to both TBS and PSC, they are unable to hold departments and agencies accountable because they only have an “enabling” role under the PSEA and the FAA. It should be noted that the PSC has an audit and investigation role in limited circumstances.

Although TBS and PSC have issued policies or directives, neither can mandate departments to take corrective actions related to employment equity because of the delegated authority. In fact, it is uncertain if either TBS or the PSC receive detailed information about employment equity initiatives from the departments other than the minimum requirements for TBS’s Annual Report on Employment Equity that is tabled at Parliament.

It is noteworthy that this issue was raised in the Employment Review undertaken by the House of Common’s Standing Committee on Human Resources Development and the Status of Persons with Disabilities6 in 2002. The Standing Committee felt it was an important issue and required Treasury Board to develop an action plan: As the public service employer, Treasury Board remain accountable for all policies, programs and actions within the federal department and agencies with regards to the Employment Equity Act.

Where it has delegated authority under the Employment Equity Act to departments and agencies … Treasury Board should put in place effective measures to ensure that employment equity policies and programs are in place in the departments.

Treasury Board should submit to this Committee an action plan by April 1, 2003 outlining the measures that have been put in place and the ways that these will be monitored.”7 6 https://www.ourcommons.ca/Content/Committee/371/HUMA/Reports/RP1032138/humarp09/humarp09 - e.pdf 7 Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities, Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act,

(2002) 15 Lastly, there have been recent amendments to the PSEA to remove barriers for equity-seeking groups. However, despite the recent changes, systemic barriers continue to exist. During the PSEA Review in 2021, PSAC m ade submissions on the barriers in staffing for equity groups. (These submissions are in Annex B). In 2018, the Joint Management-Union Taskforce on Diversity and Inclusion8 examined systemic barriers in staffing in great depth.

These barriers were not fully addressed by the PSEA amendments. (For this submission, the PSAC fully endorses the observations, findings and recommendations of the Taskforce related to central agencies, staffing, and people management). Recommendation 5: There be a thorough review and amendments made to the Public Service Employment Act and the Financial Administration Act to eliminate systemic barriers faced by equity-seeking groups.

The review must include strengthening the role of central agencies, examining any provisions that hinder the objectives of the Employment Equity Act, and increasing the accountability of departments and agencies. Furthermore, in situations of legislative conflict, the Employment Equity Act should supersede the Public Service Employment Act and the Financial Administration Act. The recommendations in the Final Report of the Joint Management -Union Taskforce on Diversity and Inclusion should also be implemented. 6. Complaint Processes i.

Federal Public Service Labour Relations and Employment Board (FPSLREB) Since the sweeping changes to the Public Service Employment Act under Public Service Modernization Act (PSMA) in 2003, many PSAC members, including equity members, feel that the recourse processes and remedies p.65. https://www.ourcommons.ca/Content/Committee/371/HUMA/Reports/RP1032138/humarp09/humarp09 - e.pdf. 8 https://www.canada.ca/en/government/publicservice/wellness-inclusion-diversity-public-service/diversity- inclusion-public-service/task-force-diversity-inclusion.html

16 are completely ineffective in addressing systemic and individual barriers in staffing processes. In order to hold employers accountable for promoting and implementing employment equity initiatives, the staffing complaint process must be changed – specifically, meaningful recourses must be made available in cases of discriminatory staffing. In 2011, the PSAC made detailed submissions on the impact of the Public Service Modernization Act on staffing and other areas in 2011 as part of the five-year legislative review of that Act.

Much of the criticism of the changes to the Public Service Employee Act remain. (The 2011 submissions are in the Annex C). Since 2014, the Public Service Staffing Tribunal no longer exists. It has been replaced by the Federal Public Service Labour Relations and Employment Board (FPSLREB).

Thus, the FPSLREB is responsible not only for dealing with collective agreement related grievances but also staffing complaints pursuant to the PSEA related to internal appointments, appointment revocations and layoffs in the federal public service. 9 More recently the FPSLREB will hear grievances and complaints under the Accessible Canada Act (ACA). The ability to address staffing complaints is limited. For example, sta ffing complaints can only be made once a final notification of an internal appointment or proposed appointment has been issued.

The grounds for a complaint are limited to three areas: abuse of authority in the application of merit; abuse of authority in choice of process (advertised or non-advertised); and failure to access the complainant in the language of their choice. It is asserted that very f ew cases go forward successfully that deal with discrimination under the grounds of abuse of authority, for a variety of reasons including, the fact that evidence required to demonstrate individual or systemic barriers are very high and, often in the control of the employer.

It is very difficult for a complainant to be able to access information needed to demonstrate discrimination. In addition, although the FPSLREB is authorized to award damages pursuant to the Canadian Human Rights Act (e.g. $20,000 for pain and 9 See https://pslreb-crtefp.gc.ca/en/resources/guides/staffing-complaints-guide.html#a12

17 suffering and $20,000 for reckless behaviour ), other r emedies are limited. The FPSLREB states that: In relation to appointment related complaints, the Board cannot order that a complainant be appointed or that a new appointment process be conducted [s. 82 of the PSEA].

However, the Board has the power, amongst other things, to order the revocation of an appointment, make a declaration of abuse of authority, order the complainant to be assessed or make any recommendation that it sees fit given the circumstances of the case.10 It will be important for the taskforce to closely examine whether the FPSLREB provides a meaningful recourse for equity-seeking complainants to address individual or systemic barriers in the staffing processes, whether the process needs to be overhauled or, whether a completely different process is needed. ii.

Canadian Human Rights Commission (Complaint Process) The Canadian Human Rights Act (CHRA) provides another recourse process to federal public service workers. The Canadian Human Rights Commission’s (CHRC) role is to screen whether complaints warrant an inquiry and then be referred to the Canadian Human Rights Tribunal. However, there are provisions in the CHRA that prevent the CHRC from fully addressing employment equity related complaints.

Currently, the CHRC cannot deal with any allegations that could be, or have been, addressed through the grievance procedure, staffing complaint processes or other processes available under another Act11. Furthermore, changes made to the CHRA in 1995 now prevent employment equity related complaints to be adequately addressed through the complaint process. This is important because there have been very few successful cases dealing with systemic employment barriers since the changes. It essentially eliminated the success of the precedent -setting case National Capital Alliance on Race Relations (NCARR) v.

Canada (Department of Health and Welfare)12. At the time, this case was important because it 10 https://www.fpslreb-crtespf.gc.ca/en/resources/guides/staffing-complaints-guide.html#a12 11 Canadian Human Rights Act,

section 41(1)(a), (b), and (d) 12 1997 CANLII 1433 (CHRT)

18 highlighted systemic racial discrimination and employment equity in the human rights complaint process and examin ed the barriers for racialized workers in obtaining senior management positions. Note that this case was filed in 1992, prior to the 1995 amendments. Also,

Section 41(2) of the CHRA prevents the CHRC from dealing with complaints that have been “adequately addressed by an employment equity plan prepared pursuant to

section 10 of the Employment Equity Act”. Nor can complaints be made based solely on statistical information that shows a designated group is underrepresented by employers’ workforce d ata under

section 40.1 of the CHRA. Lastly,

Section 54.1(1) of the CHRA limits the Canadian Human Rights Tribunal’s ability to offer an employment equity remedy. The Tribunal cannot order an employer to adopt a special program, plan or arrangement containing positive policies and practices to increase representation of designated groups or goals and timetables for achieving that increased representation. In sum, employment equity related complaints are likely to encounter barriers through the CHRC’s complaint process.

Even if a complainant was able to overcome these barriers (e.g. demonstrate that it does not fall within the provisions mentioned above), the evidence required to demonstrate systemic employment discrimination is high and again, most likely in the control of the employer. iii. Canadian Human Rights Commission (Employment Equity Audit process) The CHRC conducts employment equity compliance audits of federally regulated employers, Crown corporations and federal public sector employers. The nine legislative requirements for employers under the EEA consist of: 1. Collection of workforce information; 2.

Workforce analysis; 3. Employment Systems Review (ESR); 4. Employment Equity plan (EE plan); 5. Implementation and monitoring of EE plan; 6. Periodic review and revision of EE plan;

19 7. Communication and Information about employment equity; 8. Consultation & collaboration with bargaining agents/employee representatives; and 9. Employment equity records. Once conducting robust audits, the CHRC’s audit function has shifted over the years – it is now less proactive and conducts less frequent individual audits. The CHRC now focuses on examining trends of a specific equity group within a sector. This shift is partially due to necessity given the ongoing underfunding and inadequate resourcing of the CHRC. Lack of resources is not a new issue for the CHRC.

In the 2002 EEA Review, it was recommended that the CHRC be provided with sufficient resources to conduct compliance audits so that they could conduct follow-up audits more quickly and facilitate employers in fulfilling their obligations under the EEA.13 Sadly, two decades later, this continues to be an issue. While specific employer audits can be time consuming and, given the large number of employers within the CHRC’s jurisdiction to audit, some employers may not be audited at all or for leng thy periods of time.

It is, however, critical that proper compliance audits are undertaken on a regular basis to ensure that employers are meeting the requirements under the EEA. Currently, bargaining agents are unable to request a compliance audit even if they have relevant information that should trigger an audit. This is very frustrating, especially as employers are getting away with actions or behaviours that may be contrary to employment equity objectives.

When there is evidence of (or even an appearance of) an employer’s failure to meet its obligations under the EEA, bargaining agents must be able to request a compliance audit by the CHRC. Bargaining agents often have informat ion that would not be provided by the employer because of their representative role and access to their membership. Even when the CHRC does undertake an audit, the CHRC bargaining agents’ representatives have limited involvement.

During a meeting with bargaining agents, the CHRC indicated that any unionized worker or any union representative in the workplace can be consulted regardless of 13 2002 Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities, Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act, p.57.

20 whether the bargaining agent assigned them to that role or not. However, even when the proper representatives are consulted, their input into the audit is limited. During that meeting, the CHRC indicated that the employer can meet its obligation under

section 15 by the simple act of providing bargaining agents the documents for input and nothing more. This is further supported by the PSAC internal survey of union activists where 83.9% said that they had not been involved in employment equity audits conducted by the CHRC, while 12.9% said they had been contacted and 2.2% didn’t know. It is important to note that bargaining agents have not always been sidelined in the process. The Consultation and Collaboration between Departments Under

Section 15 of the Employment Equity Act , a document by Public Service Human Resources Management Agency of Canada (PSHRMAC) (now the Office of the Chief Human Resources Officer – OCHRO) sets out the consultation and collaboration process that is no longer followed. Lastly, audit results are not public. It is difficult for bargaining agents or individuals from particular departments to examine or challenge the audits. Therefore, summaries of compliance audits should be made public in a manner that is consistent with Access to Information and Privacy laws. This was also recommended in the 2002 EEA Review.14 iv.

Employment Equity Review Tribunal (EERT) Canadian Human Rights Tribunal The EEA outlines the types of employment equity “complaints’ that can be addressed through the Employment Equity Act Tribunal. Either the Commission or an employer can apply to the Chairperson of the CHRT to establish an EERT. For example, the Commission can request an EERT be established if an employer has not complied with its direction.

An employer can request an EERT, if it does not agree with a direction of the CHRT15. 14 2002 Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities, Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act, p.59. 15 See CHRT website: https://www.chrt-tcdp.gc.ca/procedures/employment-equity-review-tribunal-en.html for an overview of the EERT role and responsibilities

21 It is important to note that there a re very few publicly reported EERT cases from the last two decades. 16 While it is possible that there have been applications made by parties that were not made public, the fact is that the lack of public cases is demonstrative of the ineffectiveness of thi s recourse mechanism. It may be argued that the Commission is directed by a “guiding policy” under

section 22(2) of the EEA. The “guiding policy” states that the Commission shall discharge its responsibilities in cases of non-compliance through persuasion and negotiation of written undertakings and that directions or applications for orders should only be a last resort. To that end, one can assume that applying for an order is a recourse that should rarely be used. It does not appear that there are many public decisions of the EERT. Obviously, persuading employers to comply with the EEA is a logical first step. However, it should not be the only step.

If there are few to no consequences for non -compliance, there is no incentive for employers to comply with the EEA. It will be important for the Taskforce to carefully examine what role the EERT has played over the last two decades and whether there is a better alternative to this forum. It is asserted that, with the recent addition of an Accessibility Commissioner and a Pay Equity Commissioner, that it is time to establish an Employment Equity Commissioner who would be responsible for enforcing and ensuring compliance of the EEA and eliminate the EERT.

Like the “Pay Equity Unit” under the CHRA, an “Employment Equity Unit” would support the Employment Equity Commissioner in the exercise of their powers and performance of their duties and functions. Again, like the “Pay Equity Division”, the “Employment Equity Division” could receive complaints dealing with employment equity.

The Employment Equity Commissioner would exercise the powers and duties and functions under the EEA, again similar to the Pay Equity Commissioner. 16 The few public cases available dealt with applications made alleging reasonable apprehension of bias of a tribunal or challenging the direction of the Commission. See: Laurentian Bank of Canada v. Canadian Human Rights Commission, 2001 CanLII 38294 (CHRT), retrieved on 2021-10-26) and Canada (Environment Canada) v. Canada (Canadian Human Rights Commission), 2000 CanLII 28878 (CHRT).

22 Recommendation 6: The Taskforce must review all employment equity related complaint processes, including the Federal Public Service Labour Relations and Employment Board and Canadian Human Rights Commission processes carefully to determine the systemic barriers for equity groups in these processes, including removing provisions that prohibit employment equity related complaints. If there is no meaningful mechanism for recourses, then compliance requirements under the Employment Equity Act are meaningless.

The Employment Equity Review Tribunal should be replaced with an Employment Equity Commissioner with similar duties, functions and processes as the Pay Equity Commissioner recently established at the CHRC. The historical underfunding of the Canadian Human Rights Commission must be addressed. The Canadian Human Rights Commission must be properly resourced to both meet its current mandate and further resourced to include an Employment Equity Commissioner.

In addition, bargaining agents must be able to bring forward employment equity complaints under the Employment Equity Act and trigger an audit, including when they have not been properly consulted. Consultations and Collaboration should be clearly defined in the Employment Equity Act and if it does not occur, bargaining agents should be able to make a complaint. All audit reports should be made public subject to provisions stipulated in Access to Information and Privacy laws. 7.

Accessible Canada Act The Accessible Canada Act (ACA), enacted in 2019, aims to make Canada barrier-free by 2040 by identifying, removing and preventing barriers for people with disabilities in federal jurisdiction in priority areas including employment. One key component of the ACA is the requirement for employers to have an accessibility plan. Although the requirements for an accessibility plan is not as detailed as for an employment equity plan under the EEA, there will be overlap between the two legislative requirements. The ACA does not reconcile the overlapping jurisdiction. It is also important to

23 note that the recourse process for most unionized federal public service workers’ allegations of ACA violations will be dealt with by the FPSLREB through the grievance process. Federally regulated workers who do not fall within the FPSLREB jurisdiction will have access to a complaint process via the Accessibility Commissioner. The ACA is new legislation that hasn’t fully taken into effect and employers are in the process of developing accessibility plans. It is vital that the taskforce examine how the EEA can support the requirements under the ACA rather than become competing priorities or plans.

Recommendation 7: The Taskforce examine the concurrent jurisdiction between the Employment Equity Act and the Accessible Canada Act to ensure that each legislation supports and re-enforces the other rather than overlapping each other and leaving gaps in the legislation. 8. Strengthening the role of bargaining agents Currently, bargaining agents play an important role under the EEA. They are specifically mentioned in sections 3 and

Section 3 defines who is a representative, which includes bargaining agents in unionized workplaces.

Section 15 requires employers to consult and collaborate with bargaining agents on the preparation, implementation and revision of their employment equity plans. While consultation and collaboration are not explicitly defined, ss. 15(4) requires that the consultation cannot be a form of co-management. Bargaining agents play a unique and important role pursuant to the EEA.

Historically, national and departmental joint employment equity committees were created where employers and bargaining agents collaborated on developing self-ID surveys, conducting workforce analyses, participating in employment systems reviews, developing employment equity plans and then monitoring and revising plans. However, over time, employers consulted less and less with bargaining agents to the point where employment equity committees no longer exist in many departments. If there are joint departmental committees, their mandates have changed to “diversity and inclusion committees” and some

24 no longer are involved in the “technical work” that employment equity committees used to do. Results of the PSAC internal survey for members indicate that 90.7% of the respondents either think that the role of the bargaining agent could be strengthened under the EEA or were unsure. This means more work needs to be done for members to be fully aware of the role and the importance of bargaining agents. In addition, where bargaining against were once invited to collaborate and consult, bargaining agents are now reduced to simply providing “feedback” on already developed initiatives. In the PSAC internal survey for union activists, the following question was asked:

Section 15 of the EEA requires the employer to consult and collaborate with bargaining agents during the employment equity process.

Does the employer consult and collaborate with you on the following: YES NO DON’T KNOW Voluntary self-identification survey 41.94% 41.94% 16.13% Employment systems review of formal and informal policies and practices 16.13% 38.71% 45.16% Development of employment equity plan/initiatives 12.90% 51.61% 35.48% Monitoring the employment equity plan 22.58% 45.16% 32.26% Providing information to employees about employment equity 3.23% 63.52% 32.26% Voluntary self-identification survey 16.13% 48.39% 35.48% Employment systems review of formal and informal policies and practices 32.26% 35.48% 32.26% The EEA must be amended to ensure that joint employment equity committees with a clear mandate are established and receive training on employment equity processes and their role.

Furthermore, regular and meaningful well-defined consultations and collaborations must take place As well, it is submitted that national and regional committees be implemented for larger organizations. It is also posited that additional provisions should be negotiable and included in workplace collective agreements if required to meet the needs their workplaces that may not be covered by the EEA. It is not uncommon for health and safety provisions to be negotiated that go beyond the required

25 legislation because workplaces may have unique considerations that are not covered by the legislation. Recommendation 8: The role of bargaining agents must be strengthened in the Employment Equity Act. The Employment Equity Act should clearly outline the obligation for joint national and regional employment equity committees that meet regularly for meaningful consultation and collaboration. Meaningful consultations and collaboration must be defined in the Employment Equity Act to ensure that employers do not try to circumvent their obligations by minimizing their “consultation and collaboration” process.

To ensure compliance of consultation and collaboration, bargaining agents should be able to make a complaint if they believe that the employer failed this requirement. Furthermore, if employers are found to have failed to properly consult and collaborate, then there must be a consequence for them that would compel them to meet this requirement.

The following elements should be in the definition: • establishing joint employment equity committees; • employers and bargaining agents jointly review, prepare and develop, implement and revise together the employment equity plans; and • employers and bargaining agents actively participate in all the stages of employment equity process from the beginning to continuous reviews and monitoring. Bargaining agents should be able to negotiate provisions in the collective agreement that would go above and beyond the provisions in the Employment Equity Act.

The Employment Equity Act should be the floor and not the ceiling for employment equity initiatives. 9. Federal Contractors Program The Federal Contractors’ Program (FCP) provision must be strengthened in the EEA. Under

section 42(2) of the EEA, the Minister of Labour is responsible for the administration of the FCP. This is the only reference in

26 the EEA to the FCP. It is asserted that it does not provide enough direction to the Minister to properly govern the FCP and allows for arbitrary policy and process changes such as threshold requirements. Currently, the FCP applies to provincially regulated employers with a combined workforce of 100 or more permanent full time and part time employees in Canada, and who have received an initial federal goods and services contract valued at $1 million or more. ESDC – Labour Program is mandated to conduct compliance assessment of all federally regulated employers that fall under the FCP.

As stated on its website, ESDC: conducts compliance assessments to ensure that organizations fulfill the terms of their Agreement to Implement Employment Equity (AIEE). This includes meeting the requirements of the FCP by implementing employment equity in their workplace.17 It is important to note that a significant amendment was made to the EEA in 2012 which removed the requirement for the Minister to ensure that contractors are subject to the “equivalent ... requirements with respect to the implementation of employment equity by an employer” under the EEA.

With the removal of this provision, the FCP is no longer required to meet the same criteria as other employers. The amendment allowed the Minister to reduce the threshold requirement without much rationale. Prior to the 2012 amendment, the FCP applied to employees with a contract valued at $200,000. After the amendments, the requirement went up to $1 million. As a result, the number of employers under the FCP dropped significantly.

It was estimated that pre-amendment, there were 1,000 workplaces (which included over one million wor kers) that were required to have employment equity plans under the FCP.18 In ESDC’s Employment 17 https://www.canada.ca/en/employment-social- development/corporate/portfolio/labour/programs/employment -equity/federal-contractors/compliance- assessment.html, 18 https://ipolitics.ca/2013/06/28/harper-government-reduces-employment-equity-requirements-for- contractors/ .

Also see HRSDC’s Employment Equity Annual Report 2010 for breakdown of employer prior to the amendment: https://publications.gc.ca/collections/collection_2012/rhdcc-hrsdc/HS21-1-2010- eng.pdf.

27 Equity Act: Annual Report 2020, as of December 2019, there were only 350 employers covered under the FCP19. It is noteworthy that the Standing Committee reviewing the 2002 EEA Review had recommended that the Minister of Labour examine the FCP with a view to re-structuring it to ensure that the employment equity obligations of federal contractors are the same as the obligations of federally regulated employers20. It was further recommended that the Minister of Labour also examine the feasibility of covering employers who had less than 100 employees and contracts less than $200,000.

The number of staff dealing with employment equity, particularly with compliance assessments, was significantly reduced during the last major federal workforce adjustment both nationally and regionally. It is as serted that the requirements for compliance assessment were changed to accommodate the loss of staff. Also noteworthy is the change in how many employers were found in non - compliance pre-amendments.

For example, in 2010, there were 130 employers who were ineligible to receive contracts due to non-compliance.21 The 2020 Employment Equity Annual Report from ESDC contains insufficient information regarding the specific designated groups and does not even provide a list of employers under the FCP. Furthermore, according to ESDC’s on Federal Contractors Program Compliance Assessment Policy, very few contractors failed to comply with the requirements22. With little public information available on FCP, there is no easy way to access information about specific contractors or to challenge the findings of ESDC.

If contractors provide services or goods to the federal public service, then there must be public accountability of their progress.

It is noteworthy that the Standing Committee for the 2002 EEA Review recommended that the Minister of Labour table an annual report to 19 Employment Equity Act: Annual Report 2020 (ESDC): https://www.canada.ca/en/employment-social- development/corporate/portfolio/labour/programs/employment-equity/reports/2020-annual.html#h2.6.1. 20 https://www.ourcommons.ca/Content/Committee/371/HUMA/Reports/RP1032138/humarp09/humarp09 - e.pdf 21 https://publications.gc.ca/collections/collection_2012/rhdcc-hrsdc/HS21-1-2010-eng.pdf 22 https://www.canada.ca/en/employment-social- development/corporate/portfolio/labour/programs/employment -equity/federal-contractors/compliance- assessment.html

28 Parliament on the operations of the FCP similar to the annual report tabled for federally regulated employers.23 Lastly, the CHRC audit process and the ESDC compliance processes are different. It is unclear why there is a need to have different processes and why two different organizations are needed for these roles. There should be consistency in the application of employment equity requirements.

Recommendation 9: Contractors under the Federal Contractors Program must have the same requirements as other employers under the Employment Equity Act, including statutory requirements and reporting requirements so that th e Minister of Labour cannot make changes arbitrarily. The 2012 amendments to the Employment Equity Act must be reversed to decrease the threshold requirement to be under the Federal Contractors Program. Furthermore, in order to ensure consistency, ESDC should either work with the Canadian Human Rights Commission, or the auditing function should be done solely by one body.

Aga in, this requires the Canadian Human Rights Commission be adequately resourced. 10. Pay transparency The Employment Equity Act Regulations were amended in 2020 to measure pay transparency in federally regulated private-sector workplaces subject to the EEA. Under the regulations, employers are required to report new salary data for the designated employment equity groups in their annual reporting. These measures, which came into force on January 1, 2021, requires employers to provide information on wages, bonuses, and overtime gaps in the workplaces.

Employers will be required to report the new salary data in their 2021 annual employment equity reports which needs to be submi tted by June 2022. 23 2002 Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities, Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act, p.63.

29 This is a good first step to address pay inequities for designated groups beyond women. However, the regulations merely require employers to report on wage gaps. The new regulations may raise awarene ss and prompt employers to act, but there is insufficient incentive that these measures will result in any reduction of wage gaps for designated employment equity groups in a significant way. The information required under the regulations should be includ ed in the employment equity process like other information under the EEA.

Wage gap information should be incorporated into the employment equity process and plans. In addition, there must be a mechanism for oversight and compliance to ensure that employers address any and all wage gaps. Lastly, these requirements must also apply to the federal public service and the FCP. As the EEA covers federal and private and public sectors, as well as applicable employers under the FCP, pay transparency provis ions must apply to all these employers.

Recommendation 10: The Employment Equity Act must be amended to ensure wage gaps are addressed throughout the employment equity process and become part of employment equity plans. In addition, any audit or compliance processes must also take into consideration wage gaps in determining if compliant. If wage gaps aren’t addressed in plans, then there should be a mechanism to make a complaint. The pay transparency provisions should apply to both federally regulated private and public sectors, as well as Federal Contractors Program.

Conclusion Thank you for providing the opportunity to provide submissions on this very important review. As shown in our submissions, the Employment Equity Act requires a major overhaul and not just tinkering with a few sections. Our extensive experience with the Employment Equity Act gives us a unique perspective on the progress of employment equity initiatives. It must be acknowledged that some gains were made through the Employment Equity Act, but progress has stagnated due to the lack of strong accountability, oversight and recourse mechanisms. If progress is to

30 continue so that we have an inclusive workplace that values the abilities, skills, experience and knowledge of everyone, then an extensive overhaul of the Employment Equity Act is imperative. We look forward to further discussing our recommendations.

31 ANNEX A PSAC Employment Equity Survey Report BACKGROUND It was not until the seminal report by Justice Rosie Abella, Equality in Employment: A Royal Commission Report in 1984 that the federal government examined the idea of creating specific employment equity legislation to address representation of equity groups in the Federal Public Service (FPS). The report concluded that a systemic approach and remedies are required to address the past and ongoing systemic discrimination in the workplace to prevent future discrimination and barriers.

The report included recommendations to address the historical disadvantages in employment for women, Indigenous peoples, racialized people and people with disabilities. The Report led the federal government to enact the Employment Equity Act (EEA) in 1986 to ensure that workers would not be denied employment opportunities or benefits for reasons unrelated to ability. The inten tion was that the EEA would help identify systemic barriers and remove them for designated groups.

Although the 1986 EEA did not apply to the federal government, The Treasury Board Secretariat (TBS) issued a Policy on Employment Equity (EE) that applied to the federal public service and the Public Service Commission (PSC) integrated EE into its staffing initiatives. PSAC took the position that this was insufficient and during the first five-year review of the EEA, the union advocated that the Act be applied to the federal public service.

In 1996, the EEA was amended to include the federal government workers and the Canadian Human Rights Commission (CHRC) was given the mandate to ensure that employers complied with their obligations. The Public Service Alliance of Canada (PSAC) has played an active role in providing recommendations to the federal government on ways in which the EEA could be improved whenever the government has initiated a review.

Many of the recommendations provided by PSAC over the years has been as a result of the input provided by union activists who are directly involved in employment equity in their workplaces, as well as members of the equity groups in attendance at the PSAC national or regional conferences, the

32 National Human Rights Committee and other avenues of engagement. PSAC members have continued to be consistent in their feedback: that the EEA needs to be updated and “has no teeth”, meaning that there is little enforcement to ensure employment equity is being applied consistently in the workplace or that recourse processes in relation to staffing initiatives are effective. Over time, departmental joint employment equity committees have become nothing more than a “checkbox” for the employer to minimally comply with the requirements to consult and collaborate with bargaining agents.

Although employers may “pass” the Canadian Human Rights Commis sion audits, feedback from members consistently highlight issues of discrimination in staffing processes in those workplaces. In the past, PSAC worked in coalition with like -minded workplace networks such as the National Canadian Council of Visible Minorit ies in the early 2000’s. However, it was dismantled by the federal government. Most recently, PSAC has been working with the Federal Black Employees Caucus, which has advocated for examining racism in staffing processes involving Black federal workers.

As well as the Black Class Action, which has advocated against the governments discriminatory hiring and promotion practices and the exclusion of federal Black public service workers. INTRODUCTION The Public Service Alliance of Canada (PSAC) continues to play a vital role in the conversation around Employment Equity. The Employment Equity Act is a critical tool in combatting workplace discrimination in federally regulated workplaces.

The aim of the EEA is to remove systemic barriers for individuals in the four designated groups under the Act: • Women • Indigenous peoples • Persons with disabilities, and • Racialized people These systemic barriers exist in the recruitment, promotion and retention of individuals in the four designated groups.

33 The EEA imposes a mandatory review of an employers’ labour force and provides for measures to ensure better representation of these groups. PSAC has been calling for a review of the Act for the last two decades. In July 2021, the federal government struck the Task Force on the Employment Equity Act Review (The Task Force) with a mandate to study the Act and consult with stakeholders, communities, and Canadians on issues related to employment equity. It has been over 20 years since the EEA has been reviewed, and much has changed since that time.

The T ask Force is tasked with submitting a final report for consideration by the Minister of Labour that will include: • results of their research and key findings; • recommendations based on their own expertise (as well as from engagement session participants and written submissions) and; • recommendations to modernize and improve the employment equity framework in the federal jurisdiction in Canada. PSAC has been invited by the Task Force as one of the stakeholder organizations and will provide recommendations to The Task Force on how best to improve the Employment Equity Act.

PSAC’s recommendations are reflective of the current reality faced by marginalized workers that have been, and continue to be, excluded and/or discriminated against in the workplace. In order to prepare PSAC’s submission to the Task Force, a survey was sent to component leaders and members. PSAC also conducted virtual consultations with union activists directly involved in employment equity in their workplaces, as well as members of PSAC’s National Human Rights Committee in order to gather qualitative data. More information regarding survey methodology can be found in A ppendix A.

More information regarding virtual consultations can be found in Appendix B. WHAT WE HEARD AWARENESS and ACCOUNTABILITY Results of the PSAC membership survey on employment equity indicate that there is a real lack of awareness of what initiatives the employer has in place

34 to promote employment equity in the workplace. More than 70% of the respondents to PSAC’s survey were unsure of whether their workplaces had joint workplace committees on employment equity. This indicates that either the employer has these committees in place and employees are unaware, or that the committees don’t even exist. When asked, only 33.5% of respondents to the member survey were aware of employment equity initiatives in their workplace while almost 25% are not sure if those initiatives exist. A dismal 3.1% of respondents said that they belonged to a joint workplace committee.

Of the respondents who were aware of employment equity initiatives and/or committees, 29.8% indicated that they felt there was no clear support for employment equity in their workplace. In contrast, 45.2% of union activists said that there was no clear support for employment equity in their workplaces. Additionally, 42% of union activists indicated that they do not have joint workplace committees that examine employment equity, while 35.5% identified as a member of such a committee.

It is evident that a lac k of awareness on employment equity would yield a higher than anticipated number of respondents (42.35%) indicating that accountability and enforcement of the EEA ought to be strengthened. Furthermore, respondents overwhelmingly shared that the roles of Treasury Board and the Public Service Commission ought to be strengthened in relation to accountability, oversight and monitoring of the EEA.

REPRESENTATION OF EQUITY GROUPS For years, the federal public service has experienced significant challenges in representation of equity groups in the workforce more generally, but especially in executive positions. 24 Since 2014-2015, the representation of women and racialized employees has increased,

whereas the number of Indigenous employees remains the same, and employees with disabilities are further underrepresented. 24 TBS

(2019) Employment Equity in the Pubic Service of Canada: 2018-2019

35 The following graphs depict responses to PSAC’s membership survey on employment equity, specifically regarding representation of equity groups from the perspective of PSAC members. Figure 1.Q11. Do you believe your workplace is representative of the equity groups covered under the EEA, specifically? Figure 2.Q12. Do you believe your workplace is representative of other equity groups, such as: religious minorities, LGBTQ2+ PSAC survey respondents indicated that their workplaces have a higher representation of women (78.74%) and racialized people (51.65%), which

36 follows the statistics gathered in TBS’s report, Employment Equity in the Public Service of Canada: 2017 -2018. However, only 41.3% of racialized respondents to the PSAC survey felt that their workplaces were representative of racialized workers. Respondents indicated that Indigenous peoples (33.59%) had the least level of representation in their workplace and that persons with disabilities (34.09%) also were not represented appropriately. The LGBTQ2+ community is currently not included in the Employment Equity Act.

This is troublesome as we have continued to hear from LGBTQ2+ members that they are underrepresented and that they face discrimination in the workplace. PSAC’s survey results demonstrate that only 48.05% of respondents felt that the LGBTQ2+ community were adequately represented. This is why PSAC’s recommendations inc ludes a push for the inclusion of the LGBTQ2+ community in the Employment Equity Act as an equity group.

RECRUITMENT, HIRING, TRAINING, PROMOTIONS & RETENTION The figure below demonstrates that many of the respondents to PSAC’s Employment Equity Act Review survey felt that equity groups continue to face barriers in relation to recruitment, hiring, training, promotions and retention. Figure 3.Q13. Are there barriers for equity-seeking groups in the following?

37 The top three barriers identified by respondents for equity-seeking groups in the workplace were promotions (37.6%), hiring (33.33%) and recruitment (31.66%). Most respondents are unaware of whether the employer has taken any initiatives to reduce or eliminate barriers. Furthermore, racialized respondents demonstrated that they experienced barriers at a higher percentage than all other participants. STRENGTHS AND WEAKNESSES OF THE Employment Equity Act Respondents were consulted on the strengths and weaknesses of the Employment Equity Act.

There was an acknowledgement by the membership that there has been increased representation under the EEA, but there is much more work left to be done. There was an overwhelmingly higher amount of weaknesses versus strengths associated with the Employment Equity Act, including: • the exclusion of the LGBTQ2+ community; • the lack of requirements for disaggregated data for specific equity groups; • the lack of accountability; • the lack of consistent monitoring.

Union activists indicated that: • the effects of employment equity were not visible; • there was little progress / advancement; • there is lack of accountability and enforcement; • there is inadequate funding for employment equity initiatives; • there is need for more oversight, education, and information sharing; and • there is a need to update terminology in the Act and the need to include the LGBTQ2+ community. ROLE OF THE UNION Union activists indicated that there is a significant need for employers to include bargaining agents in the development of policies impacting

38 employment equity, as well as analysis and evaluation. Furthermore, 38.5% of respondents to PSAC’s survey agreed that the role of PSAC and other bargaining agents should be strengthened under the Employment Equity Act. The following table demonstrates responses from union activists on consultations and collaboration initiatives by the employer: The employer must make significant improvements in the way that employment equity plans are monitored. When asked, only 3.2% of respondents indicated that they’ve been consulted on the monitoring of employment equity plans.

This is troublesome as our activists are on the ground and are often in direct contact with workers regarding issues that matter to them in the workplace, such as employment equity. Although, 22.58% indicated that they have been consulted on the development of these plans, it remains insufficient and demonstrates a significant gap in bargaining agent input when looking at consultation in monitoring vs development. Finally, when employment equity audits are performed in workplaces, the employer must ensure that the Canadian Human Rights Commission is adequately consulting with bargaining agents.

Union activists overwhelmingly responded that they are not consulted when employment equity audits are taking place (83.8%).

39 CONCLUSION Employment equity is pivotal in garnering a workplace that is inclusive and allows workers to feel valued and respected. The Employment Equity Act is a vehicle to ensure that workers receive equal opportunities and are treated fairly by their employers. It is a law that provides protection from unfair treatment and discrimination. For the last twenty years PSAC has been urging the federal government to review the Employment Equity Act , and they now have an opportunity to revolutionize the EEA and create real change in the workplace.

The PSAC’s Employment Equity Act Review survey wil l prove to be instrumental in identifying the significant gaps that remain in the Act, and the ways in which they can be addressed. PSAC is optimistic that the Task Force will consider our recommendations to improve the EEA.

40 RECOMMENDATIONS SUBMITTED TO TASK FORCE ON THE EMPLOYMENT EQUITY ACT REVIEW The following are PSAC’s recommendations for amendments to the Employment Equity Act and related legislation that impact employment equity initiatives in the workplace: 1. Terminology Outdated terminology (i.e. “Aboriginal Peoples”, “visible minorities”, etc.) in the Employment Equity Act must be updated to reflect the language and terminologies currently used by those communities. 2.

Disaggregated Data for Designated Equity Subgroups and Intersectionality The Employment Equity Act must be amended to collect and analyze disaggregated data for every designated equity group. By so doing, representation rates and barriers faced by distinct groups within designated equity groups can be examined and addressed more appropriately. Each specific designated employment equity group should be broken down (e.g. Black, South Asian, Chinese, Arab, etc.) so that barriers for specific communities can be identified and addressed.

Data should also be collected in a manner that allows for intersectional analysis. 3. Inclusion of LGBTQ2+ Community The Employment Equity Act must be amended to include the LGBTQ2+ community as a designated group and the necessary data (census data) must be collected like other designated groups. Data collected must be disaggregated and allow for an intersectional analysis since the LGBTQ2+ community is not homogenous and does not experience workplace discrimination in the same manner. 4.

Labour Market Availability / Workforce Availability Rate The Employment Equity Act must be amended to ensure accurate and current la bour market availability and workforce availability rates that are reflective of each designated equity group. The labour market availability and workforce availability rates must be regularly updated between censuses to

41 reflect the changes in Canada’s population (e.g. recent newcomers/immigrants who have international experience, non -Canadian Citizens). 5. Tensions between the Employment Equity Act, Public Service Employment Act and the Financial Administration Act There must be a thorough review, as well as amendments made to the Public Service Employment Act (PSEA) and the Financial Administration Act to eliminate systemic barriers faced by equity-seeking groups.

The review must include strengthening the role of central agencies, examining any provisions that hinder the objectives of the Employment Equity Act, and increasing the accountability of departments and agencies. Furthermore, in situations of legislative conflict, the Employment Equity Act should supersede the Public Service Employment Act and the Financial Administration Act. The recommendations in the Final Report of the Joint Management -Union Taskforce on Diversity and Inclusion should also be implemented. 6.

Complaint Processes The Taskforce must review all employment equity related complaint processes, including the Federal Public Service Labour Relations and Employment Board and Canadian Human Rights Commission processes carefully to determine the systemic barriers for equity groups in these processes, including removing provisions that prohibit employment equity related complaints. If there is no meaningful mechanism for recourses, then compliance requirements under the Employment Equity Act are meaningless.

The Employment Equity Review Tribunal should be replaced with an Employment Equity Commissioner with similar duties, functions and processes as the Pay Equity Commissioner recently established at the Canadian Human Rights Commission. The historical underfunding of the Canadian Human Rights Commission must be addressed. The Canadian Human Rights Commission must be properly resourced not only to meet its current mandate but also further resourced to include an Employment Equity Commissioner.

42 In addition, bargaining agents must be able to bring forward employment equity complaints under the Employment Equity Act and trigger an audit, including when they have not been properly consulted. Consultations and Collaboration should be clearly defined in the Employment Equity Act and if it does not occur, bargaining agents should be able to make a complaint. All audit reports should be made public subject to provisions stipulated in Access to Information and Privacy laws. 7.

Accessible Canada Act The Taskforce examine the concurrent jurisdiction between the Employment Equity Act and the Accessible Canada Act to ensure that each legislation supports and re-enforces the other rather than overlapping each other and leaving gaps in the legislation. 8. Strengthening the role of bargaining agents The role of bargaining agents must be strengthened in the Employment Equity Act. The Employment Equity Act should clearly outline the obligation for joint national and regional employment equity committees that meet regularly for meaningful consultation and collaboration.

Meaningful consultations and collaboration must be defined in the Employment Equity Act to ensure that employers do not try to circumvent their obligations by minimizing their “consultation and collaboration” process. To ensure compliance of consultation and collaboration, bargaining agents should be able to make a complaint if they believe that the employer failed this requirement. Furthermore, if employers are found to have failed to properly consult and collaborate, then there must be a consequence for them that would compel them to meet this requirement.

The following elements should be in the definition: 1) establishing joint employment equity committees; 2) employers and bargaining agents jointly review, prepare and develop, implement and revise together the employment equity plans; and 3) employers and bargaining agents actively participate in all stages of the employment equity process from the start, to continuous reviewing and monitoring progress.

43 Bargaining agents should be able to negotiate provisions in the collective agreement that would go above and beyond the provisions in the Employment Equity Act. The Employment Equity Act should be the floor and not the ceiling for employment equity initiatives. 9. Federal Contractors Program Contractors under the Federal Contractors Program must have the same requirements as other employers under the Employment Equity Act, including statutory requirements and reporting requirements so that the Minister of Labour cannot make changes arbitrarily.

The 2012 amendments to the Employment Equity Act must be reversed to decrease the threshold requirement to be under the Federal Contractors Program. Furthermore, in order to ensure consistency, ESDC should either work with the Canadian Human Rights Commission, or the auditing function should be done solely by one body. Again, this requires the Canadian Human Rights Commission to be adequately resourced. 10. Pay Transparency The Employment Equity Act must be amended to ensure wage gaps are addressed throughout the employment equity process and become part of employment equity plans.

In addition, any audit or compliance processes must also take into consideration wage gaps in determining if compliant. I f wage gaps aren’t addressed in plans, then there should be a mechanism to make a complaint. The pay transparency provisions should apply to both federally regulated private and public sectors, as well as Federal Contractors Program.

44 Appendix A: Survey Methodology An online bilingual member survey was released on PSAC’s national website on August 26, 2021, and members were given until September 9, 2021 to complete the survey. The survey was promoted through mass e -mails and social media posts. The survey garnered the response of 5,386 people. The survey consisted of 22 closed -ended questions with the possibility of leaving comments and four open-ended questions.

Questions were focused on learning more about the identities of the respondents and their affiliation to the union; their awareness around EEA measures in their workplace; the barriers equity-seeking groups face, accountability and the roles of employers and union; the strengths and weaknesses of the EEA, as well as ways to enforce it. PSAC ensured that the survey provided respondents with the option to self-identify, which further allows for analysis by equity group.

The following is a breakdown by self-identification: • 60.8% of respondents identify as women • 31.89% of respondents identify as men • 6.7% of respondents identify as non-binary • 0.61% of respondents chose the option “other” • 60.8% of respondents identified as racially visible • 21% of the respondents identified as a person with a disability • 11.45% of the respondents identified as being a part of the LGBTQ2+ community • 9.7% of the respondents identified as Indigenous Component Participation The following graph depicts member participation by component:

45 Regional Participation The following graph depicts member participation by region: Out of all the respondents, 62.9% are subject to the EEA and 30.8% were not sure, and 6.3% were not covered by the Act. 49.8% of respondents said they were part of the “Core Public Service (Treasury Board and Public Service Commission as the employer)”, wh ile 24.1% said they were part of a separate agency or organization in the federal public service (not under

46 TBS). Less than 1% said they were either part of the private federally regulated or part of the Federal Contractors Program. 26.5% were unsure which employer category they fell under. Appendix B: Virtual Consultations Virtual consultations took place with union activists involved in employment equity in the workplaces and with the PSAC Nation Human Rights Committee on Sept 8 & 9, 2021. Participants were asked the following three questions: 1. What is working under the EEA? 2. What is not working under the EEA? 3. What are possible solutions and recommendations to improve the EEA?

The virtual consultations confirmed many of the findings of the survey: • lack of adequate staffing recourse processes • lack of meaningful joint consultations throughout employment equity process (e.g. self-ID, workforce analysis, employment systems review, developing an employment equity plan or monitoring it • employees have rarely been contacted by the CHRC during an audit to get their input on whether the employer was meeting their obligations under the EEA • there is little accountability on employment equity, despite the Management Accountability Framework Recommendations from virtual consultations include: • requirement for public reporting of data • update to terminology • mandatory EE committees • updating the Employment Equity Act to include LGBTQ2+ as an equity group • having subgroups of the various equity groups • conduct and implement an intersectional analysis • clearly define “consult and collaboration of bargaining agents” • funding and training for mandatory joint committees

47 • changes to the PSEA and the Federal Public Sector Labour Relations Act to have meaningful recourses • stronger language on accountability • adequate funding for the CHRC • the ability to have bargaining agents involved in the audit and make a complaint

48 ANNEX B PSAC Submission on Staffing in the Federal Public Service In preparation for this consultation, the Public Service Alliance of Canada (PSAC) compiled input received at conferences and events as well as input received directly from the membership. The following are PSAC’s written submissions that were, in part, presented at the session on staffing with the Treasury Board Secretariat (TBS) /Office of the Chief Human Resources Officer (OCHRO) on January 28, 2021.

Introduction o The issue of staffing is very important for all PSAC members and especially for our equity group members. o Every employee is impacted by staffing, both new and seasoned workers, as well as indeterminate, term and precarious workers. o Staffing issues are consistently raised at conferences held for racially visible members and other equity conferences.

There are many stories about members experiencing racism, sexism, and ableism within the staffing process with few effective recourses. o From the Public Service Employee Surveys (PSES) it is known that many federal public service employees are afraid to file grievances and/or complaints. This is even more so for members who identify in an equity group. There is an understandable fear of retaliation, harassment, discrimination, or limits to members’ career aspirations. o Members are losing motivation, commitment, and morale.

Employees who feel this way do not stay in the workplace. o The impact of racism and discrimination experienced in the staffing process has impacted the mental health of many Black, racialized and Indigenous employees. o Federal public service employees do not have confidence in the staffing process. They do not believe the process is fair or transparent. Rather, many employees believe managers are able

49 to use the system to hire whomever they want. o As directed by the Prime Minister’s recent supplementary mandate letter to the TBS, the recognition that the Public Service Employment Act (PSEA) must be more inclusive is welcomed.

The PSAC looks forward to actively participating in the review process. o In addition, we believe that the Privy Clerk’s recent “Call to Action on Anti-Racism, Equity and Inclusion in the Federal Public Service” demands major changes to both the staffing process and to the legislation. o The recent announcement this past Tuesday, confirming that the TBS will look at the framework for recruitment in the FPS is to be commended.

Specifically, the PSAC supports amendments to the PSEA and a review of the Employment Equity Act, as outlined by the Minister of Labour. o Such an important issue cannot be dealt with within a few weeks and one consultation. It is thus the PSAC’s expectation that there will be further meaningful consultation and collaboration with bargaining agents.

This current consultation process with such short deadlines was very inadequate to bring forward the full experience of our members. o The 2017 Taskforce on Diversity and Inclusion in the Public Service highlighted some key problems and barriers with staffing processes. The PSAC submits that the findings and recommendations in that report be implemented without further delay.

Furthermore, we believe that the devolution of staffing authority from central agencies (TBS and the Public Service Commission (PSC)) to departments (stemming from the changes to the PSEA and Public Service Labour Relations Act (PSLRA) under the Public Service Modernization Act (PSMA) in 2003) played a key role in the barriers that currently exist. Specific barriers include systemic racism, ableism, sexism and discrimination in the staffing process.

50 o The PSAC provided submissions on this issue when a review of the PSMA was launched in 2009. These submissions are still relevant today and are attached. The following three questions were posed: 1. Have your members experienced barriers in relation to the educational, professional certification, or other requirements of a position? If so, what was the requirement and how was it an issue? 2. Have your members been negatively impacted by the method used to assess them for a position (e.g. written test, interview, reference check)? If so, what was the method and how was it an issue?

What practices have they seen that facilitate good assessments? 3. Have your members encountered other issues in selection processes? Please be as specific as possible. What practices have they seen that facilitate good selection processes? If your members have had issues with a selection process, did they pursue recourse (complaint, investigation, informal discussion)? If not, why? If so, were they satisfied with the result? The PSAC’s responses to these questions are divided by issue in the paragraphs to follow.

Issue: Non advertised appointments/positions o The key staffing issue for PSAC members is the unacceptably high number of non-advertised processes. o Sub-delegation and use of discretionary authority by managers are misused and contrary to employment equity/diversity and inclusion goals.

They are used in a manner that often excludes equity identified staff and allows hiring managers to appoint their preferred candidates. o In situations where positions were not posted, it is often the case that candidates external to the section, branch or department were appointed thus excluding internal employees with more experience and qualifications.

51 o Furthermore, insufficient notice is frequently provided in situations of unadvertised staffing processes, providing little time and opportunity to appeal within the timeframe. o The overuse of unadvertised appointments results in low morale and anger among staff. As noted above, employees are afraid of retaliation and reprisals and thus fail to speak out regarding their concerns about staffing processes. Examples include: o Unadvertised appointments are made to fill acting terms.

The term is then extended repeatedly without any additional staffing process. o Non-advertised positions are used to place a preferred candidate in a four month less a day acting assignment to give that candidate experience. The same candidate is then appointed into the exact same position in a subsequent non - advertised selection process. Other staff do not have meaningful recourse rights. The acting assignment ends and therefore challenging the acting assignment becomes moot. In other cases, there is so little confidence in the available recourse options that they are not pursued.

It is frequently the case that “personal suitability” is the deciding factor in staffing competitions. Thus, a process that should be objective is decided by a subjective determinant. When the qualifications and experience of a candidate meet the criteria, “personal suitability” is claimed. Clearly, it is difficult to challenge such decisions given the subjectivity of the deciding factor. This gives rise to favoritism, nepotism and the hand selecting of candidates and perpetuates the lack of diversity of thinking, values, approaches.

People tend to hire those who think, look and act like themselves – be it consciously or unconsciously. o A racialized employee was told that “the job is not for you” when inquiring about acting opportunities. There are no repercussions to the employer, even if a complaint is made, because the manager used her/his hiring discretion. The racialized staff was asked to train the new hire from outside of the section.

52 o It is a frequent experience that, staff with less experience exte rnal to the section/branch/department are provided acting experience instead of internal employees. For example, someone with 22 years experience and knowledge cannot progress in her career while someone who has been in the department for less than a year gets promoted quickly. o Managers often cite “time constraints” and “immediate operational requirements” as excuses to use unadvertised appointments.

The reality is that, in most situations, the need was present for many months and the manager was awar e of the need for a long period of time. o Finally, it is known that unadvertised positions are used to hire family members. Conflict of interests are not declared. Staff do not complain as they fear retribution. Issue: “Best Fit” criteria o Another key issue is the requirement of “best fit”.

Even when there are representation gaps, mangers are still not hiring equity groups because they do not have to, especially for acting positions, due to “best fit” criteria. “Best fit” is a subjective criterion when considering an applicant’s ability to succeed in the workplace. o The “Best fit” criteria perpetuates the ability of hiring managers to hire people like themselves. o Negative stereotypes of Indigenous peoples are significant barriers in the career progression of Indigenous workers in the Federal Public Service. o Often, the composition of selection board members reflects the hiring manager’s way of thinking resulting in a board that is not diverse.

Furthermore, board members may be chosen because they are unlikely to challenge the hiring manager. o Unconscious bias/implicit bias plays a role in hiring decisions. Hiring Managers want to hire people who think like them and with whom they feel “comfortable”. The use of “best fit” or “personal suitability”

53 are reasons used to exclude Black, racialized, Indigenous candidates including those who meet all the qualifications and who have the necessary experience. Examples include: o An employee was told to manage as a racialized person by his manager. By attempting to address this comment, the employee was seen as not creating a positive environment for staff.

Eventually, he lost job opportunities. o An employee, who self -identified as an equity member, was outright informed by a manager that his previous supervisory experience in the private sector had no value when applying for a management job in the Federal Public Service. Issue: Performance appraisal (PAs)/Performance management (PMAs) o Another key issue that came up was the use of PAs.

Candidates are frequently asked to provide PAs during staffing competitions. o Due to the subjectivity of PAs, equity staff may have been evaluated with a discriminatory lens by managers (consciously or unconsciously, intentionally or unintentionally). Examples include: o The top two grades are given to preferred staff intentionally who will then be given a non -advertised position and put un der talent management plan. The perception is that the preferred staff needed higher PAs because they would not have otherwise qualified (e.g. someone who had been there only a short period of time).

Issue: Staffing complaint process o The staffing complaint process is seen as ineffective, non- transparent, and unfair. There are only three grounds to contest a competition. These grounds, which include abuse of authority, are too limiting to successfully prove incidents of racism, sexism, ableism and other forms of discrimination.

54 o It is near impossible to show abuse of authority for non -advertised positions. o Due to the discretion of hiring managers, complainants cannot successfully argue that the choice of staffing process itself was an abuse of authority under the staffing complaint process. o Filing staffing complaints to address favouritism, nepotism and bad- faith tactics have, for the most part, been unsuccessful and as a result of having filed a complaint, the complainant may experience reprisals in the workplace. o “Abuse of authority” requires the complainant to prove that the sub- delegated authority committed some intentional oversight in their assessment of a candidate.

This is very difficult to prove. o “Less than four months” competitions are difficult to appeal. However, these appointments are often extended repeatedly with no subsequent hiring process. Thus, by the time a complaint is filed and dealt with, the person who was initially appointed obtains the

55 required essential qualifications. o Frequently, staff choose not to file complaints for acting positions because the process can take longer the actual appointment. o During mediation sessions, a member was told that staffing was a managerial choice even after they were able to demonstrate that they had greater experience and qualifications for that position. o There is a lack of effective remedies. Adjudicators may ask for a reassessment but cannot revoke the appointment.

Furthermore, adjudicators cannot award remedies under the Canadian Human Rights Act (CHRA) (e.g. appointing the person into that position). o Fear of being labelled a troublemaker and the semi-judicial process scare many members away from filing complaints. o The complaint process is far too lengthy, and the standard of proof is high. Thus, the process drags for months/years with little to no chance of success.

Issue: Assessment process can be arbitrary or discriminatory o Assessment tools are meant to be transparent and treat all candidates equally, but this can be contrary to diversity and inclusion principles which require that the employer provide a level playing field through equity initiatives. However, the onus is on the applicant to fit into the job description and absolve the selection board from assessing whether barrie rs have been created (e.g. unconscious bias, lack of cultural awareness, accent bias, etc.). o There is a lack of consistency in the tools and/or processes used for assessments.

Managers can make up their own assessment processes before, during, and after t he assessment. There are situations where the tools and processes utilized fail to adequately measure a candidate’s qualifications or experiences. Examples include: o One process for a position was seven hours long with a short break and no lunch while another process for the same level of

56 position was simply an application form. o During a written test, a candidate was accidently provided the answers. When the candidate brought it to the attention of the assessors, the candidate was told that he was holding up the staffing process. The assessors changed the assessment process due to this error but did not advise the candidate of the change.

When he complained that candidates had not been informed of the change and therefore the assessment process was flawed, the assessors did not change the process. o A candidate had technical problems with the written exam, but the assessor did nothing about it (e.g. restart computer, provide additional support). o A test is administered that had nothing to do with the job and that seemed arbitrary (e.g. assessment using shapes and patterns). People who may have been already doing the job were unable to do that test. Managers are supposed to hire from pools when they are staffing.

However, managers may choose an employee for promotion from outside of an existing pool because of their discretionary authority. Even when they are told of an existing pool, managers often find a reason not to select from that pool (e.g. pools were not being used for short term opportunities). o If a manager does not wish to use employees in a pool, they will fill positions through non-advertised processes. o Standardized testing is used to assess candidates but when the test is challenged, managers refuse to provide the methodology and test material to the candidates.

Therefore, it becomes difficult to challenge it effectively. Candidates feel that some of the tests are discriminatory for candidates with learning disabilities and from the perspective of cultural biases. o There is a perception that written tests and interviews are subjective to enable managers to hire their preferred candidates regardless of qualifications and experience.

57 Examples include: o It is not clear to candidates how answers are “weighted”, since not all components are scored the same. Neither t he method nor the answers are made clear to the applicant. Scoring can be "customizable" by regional hiring boards to "target" the selection of specific candidates. o Testing methods favor internal applicants that are already familiar with the work, the work units, and the hiring manager. o Written testing is biased against First Nations’ traditional ways of conveying thoughts and information.

There is little consideration given to alternative ways of testing that are culturally more appropriate. The cultures, teachings, and traditions of applicants must be considered as factors when assessing the answers provided. o Candidates with disabilities feel discriminated against due to lack of or delays in accommodation. Examples include: o Unclear information is sometimes provided by human resources when accommodations have been requested. o Assessment processes during COVID -19 were modified with little consideration of the impact on persons with disabilities and accommodation requi rements.

For example: A test over the internet was used to evaluate applicants. An applicant with a diagnosed learning disability and ADHD felt disadvantaged during the exam. The candidates’ disability affected their test performance on cognitive processin g questions (i.e. shapes and patterns). In addition, he could not solve the questions in the allotted time even with an accommodation for extra time. Consequently, the candidate did poorly on the test. This same candidate had previously succeeded very well on a similar test without the processing questions.

58 Issue: Screening process o Screening processes are used to eliminate candidates who then have little recourse. The only recourse provided is an informal discussion. This process does not change the outcome and has little effect.

During informal discussions, candidates cannot provide additional information, even if there were barriers face d by equity groups (e.g. cultural, disability). o Examples include: o Members screened out for words dropped during an assessment to meet word counts, and boards not willing to allow additional information as it will disadvantage other candidates. o Members screened out for not using “I’ statements. Issue: Self assessment tools o Despite the existence of a guidance document on inclusion, it would appear as though the tools provided in the document are rarely followed or monitored in staffing processes.

This document identifies Indigenous people as disadvantaged by self-assessed experience questions. However, job posters use self-assessed experience as the primary tool.

Most boards do not allow additional information during informal discussions which could mitigated the barriers for equity groups. (See PSC Public Service Hiring Guide: https://www.canada.ca/en/public-service- commission/services/public-service-hiring-guides/Fair- assessment-diverse-workplace/removing-barriers-part-5.html). o Employees are not allowed to bring additional evidence at informal discussions (such as reference checks and performance appraisals which could validate competencies that can mitigate bias).

Issue: Education o Degree or qualification requirements are tailored to a preferred candidate or meant to exclude certain candidates.

59 o There are inconsistent requirements or qualifications needed for different level of jobs. For example, qualifications for a lower -level job may be higher than for some higher -level jobs in the same department. o Asset qualifications can exceed TBS requireme nts for positions which create barriers. For example, a position required a B.A. but a candidate was screened out because they did not have a Masters’ degree. o Educational requirements change for the same position.

This is particularly difficult for older workers who want to progress in their career but came into the federal public service with different educational background that met the requirements at that time. o No access to meaningful educational leave support for employees who want to upgrade their certifications to meet educational requirement for further career opportunities. Too often, employees are denied leave because the training they seek is not required for their current job and/or “operational requirements” do not allow for the approval of non-job-related training.

Issue: International credentials and experiences are not accepted o The public service commission must develop a way to evaluate international credentials. o There is often an assumption that an applicant will not succeed in a particular job because they lack Canadian experience. o There may be requirements to have prior Canadian work experience to be eligible for a particular job. o International work experience is weighed less than Canadian work experience; thus, creating a disadvantage to the applicants with foreign work experience.

Examples include: o Employees with educational certifications (high school, college, and university) from overseas often accept lower positions that

60 don’t require their education simply to get their feet in the door. o Employees apply for positions which require a high school or university degree but are turned down b ecause they do not have “Canadian” equivalencies, even if they have been acting in those positions. o To have one’s credentials evaluated by a provincial body is a lengthy and cumbersome process. o Candidates from lessor developed countries often give up trying to have their credentials accepted as it can be near impossible to validate these international credentials.

Issue: Language barriers o Employees are not given language training for careers designated with language requirements. Managers may require “bilingual or unilingual” solely depending on their preferred candidate’s profile. Bilingual qualifications may be required for positions that really operate solely unilingually either in English or French. This may be a barrier for some equity groups. Issue: Geography o Geographical requirements can limit the “area of selection” for competitions.

Therefore, staff can be excluded when applying to internal jobs/ pools and positions even though they have the full capacity to work out of a sub-office or telework. This is a significant problem if an office has closed and people are losing their jobs. Issue: Reference Checks o Hiring managers add references that were not provided by the candidate. o Employees who file complaints are not given good references for future opportunities. o References can be biased/subjective because managers give good references to their preferred candidate.

61 Issue: Notices o In the past, notice of interest was sent prior to making an appointment, especially for an acting position. Unfortunately, this practice has changed. Currently, there is no, or little notice provided. For example, a notice of appointment may be posted just before a long weekend, thus providing little time to apply but also little time to appeal. Conclusion It is clear, given the examples and situations outlined above, that the staffing process requires a full review and evaluation.

Employees of the federal public service, not to mention the general public, expect the TBS to offer a bias and discriminatory free staffing process. The PSAC welcomes the opportunity to continue discussions and dialogue to ensure that the necessary changes are made. The TBS must represent the diversity of the communities it serves at all levels and in all capacities

ANNEX C PSAC Report on the PSMA Five Year Legislative Review

(2011) OVERVIEW Enacted in 2003, the PSMA has changed the way unions bargain within the federal public service as well as the recourses available to employees involved in labour disputes. In 2005, two components of the PSMA came into force, effecting significant changes to the labour relations framework of the federal public service; they are the Public Service Employment Act (“PSEA”) and the Public Service Labour Relations Act (“PSLRA”). Both pieces of legislation contain clauses providing for a five (5) year legislative review.

The review was launched in 2009 when “the Prime Minister appointed Susan Cartwright, Senior Advisor to the Privy Council Office, to lead the process for both Acts, and prepare a report for the President of the Treasury Board to be tabled in Parliament in early 2011.”1 We do not believe that the employer’s process will provide for proper institutional independence nor that PSAC’s concerns on key change will be properly communicated to Parliament in the Treasury Board’s final report. Although PSAC has provided some input into the review conducted by Ms.

Cartwright’s office, PSAC has prepared its own report on the PSMA. We do not believe that the employer’s process will provide for proper institutional independence nor that PSAC’s concerns on key changes will be properly communicated to Parliament in the Treasury Board’s final report.

The following provides PSAC’s views on the five (5) years under the new legislative framework and will include submissions on both Acts, including submissions on staffing, political activity in the public service, bargaining rights and recourse mechanisms. 1 Treasury Board of Canada, retrieved from http://www.tbs-sct.gc.ca/psma-lmfp/index-eng.asp.

63 SCOPE AND METHODOLOGY The scope of the report is limited to the substantive changes that the PSMA has enacted within the two pieces of legislation. There are areas in both Acts that have not changed, and which continue to be of concern to PSAC. However, for the purpose of this exercise these are not discussed in the report. As far as methodology is concerned, in preparing t his report we have gathered information from PSAC Components who in turn consulted with their staff and members working at the forefront of the new legislations.

PSAC’s subject matter experts have assisted in all areas with their technical expertise on topics such as managerial exclusions, essential services, grievance arbitrations, compensation, consultation and co -development as well as alternative dispute resolution mechanism. PSAC’s in-house counsel also provided input on the PSEA including an outline of our concerns over the new definition of merit and the application of the Act by the employer and the Public Service Staffing Tribunal (PSST).

Finally, we have reviewed the input from other stakeholders such as the Public Service Labour Re lations Board (PSLRB) and the Public Service Commission (PSC). 1. PUBLIC SERVICE EMPLOYMENT ACT (PSEA) 1.1 Introduction The PSMA made sweeping changes to the PSEA, the stated objectives of which were to allow for flexibility, while preserving the values of merit, non -partisanship, excellence, integrity, diversity, accountability, fairness, transparency and respect; all of which are expressly cited in the

preamble of the new Act. Under the prior Act, staffing accountability had largely been ensured via a statutorily established process of appeals. These appeals were overseen by the Public Service Commission (“PSC” or “Commission”) and were heard and decided by neutral third parties. They were informal and more often than not, the representatives of both parties were not lawyers.

64 Appeal Board chairs considered allegations as to whether appointments had been made in accordance with merit. The merit principle was not defined in the Act. However, a considerable body of jurisprudence developed as to what represented an appointment in accordance with the merit principle, some of which was at the Supreme Court level.2 In addition, the Commission was empowered to conduct investigations.

Sections 33(1) & (2) of the former Act gave the PSC authority over the political activities of publ ic service workers, but large portions of these provisions were struck down as unconstitutional by the 1991 Supreme Court decision in Osborne.3 1.2 Staffing Recourses Under the New Act The new PSEA provides for the following mechanisms for staffing accountability: 1) Informal discussion (s. 47) 2) Investigations by deputy heads or the PSC (ss. 15(3), 66 & 67) 3) Audits by the PSC (ss. 17 – 19) 4) PSC investigations of political influence or fraud (ss. 68 & 69) 5) Complaints to the Public Service Staffing Tribunal (ss. 65, 74, 77 & 83) While it may appear that more avenues of recourse are provided under the new legislative scheme than previously existed, in reality this is far from the case.

The rights of public service workers to seek staffing recourse have been considerably reduced. 2 See, for example, Evans v. Canada (Public Service Commission Appeal Board), [1983] 1 S.C.R. 582; Doré v. Canada, [1987] 2 S.C.R. 503; Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489. 3 Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69.

65 The reasons for this are complex and overlapping, but a central issue has been the new definition of merit which has been introduced in the new PSEA, which is discussed in more detail below. Our members have expressed profound frustration with the current regime of staffing accountability and recourse. While the old system of appeal boards was far from perfect, it did provide for an independent third party to consider the effect of errors, irregularities and omissions in the selection process, and it was informal and easily accessible. These characteristics are absent from the current regime.

Under the new Act, far fewer staffing irregularities are being identified. The Public Service Staffing Tribunal (“PSST”) has decided that it is not responsible for “mere” errors and omissions 4, and these matters rarely come before the PSC or deputy heads. The Commission now only has exclusive authority over allegations of political interference and fraud. 5 PSC investigations into other matters can only occur where the investigation is requested by the deputy head, or where the Commission itself has conducted the staffing process6, which is relatively rare.

As for Deputy Heads, they refuse the majority of requests for investigations which are made of them. Although organizations under the PSEA conducted over 120,000 hiring and staffing activities in 2009-2010,7 the PSC conducted only 60 investigations into appointments, in the face of 305 requests. Only 32 of these were determined to be founded.8 No requests were made with regard to appointments tainted by political influence, and only thirteen (13) were alleged to have been affected by fraud (of which 4 were determined to be founded).

In the last six (6) years, the PSST has found fewer than twenty cases where it has determined that there has been an abuse of authority. 4 Tibbs v. National Defence 2006 PSST 0008 para. 65. 5 Public Service Employment Act, S.C. 2003, c. C-22, ss. 68 and 69. 6 Ibid., s. 67. 7 Public Service Commission Annual Report 2009-2010, Appendix 2, Table 36, retrieved from http://www.psc-cfp.gc.ca/arp-rpa/2010/appendice2-annexe2-eng.htm#app2-2 8 Ibid., p. 108.

66 While recognizing that many cases are settled through the informal processes, these facts clearly point to a decrease in the staffing accountability within the public service. When investigations are conducted by a deputy head, there is often no formalized process. Investigations have been out -sourced to private investigative firms, with little uniformity of process or result. Fundamentally, such an investigation, even when performed by a contractor, is not conducted by an independent third party, as in the former third party, as in the former appeal process.

While it is possible to have a fair outcome in such circumstances, the possibility of compounding the original problem is increased. Our members have expressed profound frustration with the current regime of staffing accountability and recourse. While the old system of appeal boards was far from perfect, it did provide for an independent third party to consider the effect of errors, irregularities and omissions in the selection process, and it was informal and easily accessible.

Further, the PSC has identified that deputy heads have assumed responsibility for investigation processes even where they themselves are personally implicated.9 Issues have also arisen with compliance with procedural fairness and assessment of merit criteria where these concepts have been imperfectly understood by deputy heads. 1.3 A New Definition of Merit The definition of merit has been a core problem in the new Act. The Act defines merit at s. 30(2) as follows:

(2) An appointment is made on the basis of merit when: (

a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency. […] 9 Public Service Commission Annual Report 2009-2010, Appendix 2, Table 36, retrieved from http://www.psc-cfp.gc.ca/arp-rpa/2010/appendice2-annexe2-eng.htm#app2-2. p. 114

67 This is at odds with what most Canadians would understand a merit - based process to be, especially as there is no longer a requirement to consider more than one candidate ( PSEA s. 30(4)). The problem is further compounded by the fact that the Act, at s. 30(3), expressly allows the criteria through which merit will be determined to include present and future needs. This inclusion creates tremendous latitude to establish criteria for selection for which there can be no accountability, as future needs are entirely speculative.

The employer has absolute authority to set qualification standards under the PSEA s. 31(1).10 The current definition of when an appointment is made according to merit11 does not even require a selection committee to hire the highest ranked candidate in a competitive process. It is interesting that, even given this flexibility, many managers use the results of competitive processes to guide their hiring decisions, having found that this is, for them, the best way to comply with the PSEA’s core values. The definition of an appointment according to merit in the current Act contradicts standard dictionary

definitions of the word (i.e. a claim to respect and praise; excellence; worth). Under the PSEA, any person who meets the present or future qualifications of a job, even in the barest or most minimal sense, has merit. The former concept of merit as being the most qualified candidate amongst a pool of qualified individuals no longer exists. This new definition also sits oddly with the references to excellence and accountability in the PSEA

preamble. 1.4 The Role of the Public Service Commission The greatly reduced role of the Commission also stands at odds with a climate of transparency and accountability. The substantial jurisprudence which previously existed, as developed by the appeal 10Op. cit., note 7, PSEA s. 31.

(1) The employer may establish qualification standards, in relation to education, knowledge, experience, occupational certification, language or other qualifications, that the employer considers necessary or desirable having regard to the nature of the work to be performed and the present and future needs of the public service. 11 Ibid., s. 30 (2).

68 board chairs pursuant to s. 21 of the former Act, provided considerable guidance, not just for other chairs, but also for hiring managers and selection committees. The PSC now must provide guidance in other ways. It has attempted to champion what it describes as a “values-based” culture,12 in which stakeholders, committed to the values which should inform the staffing process, respect these values even in the abs