Reports

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EVALUATION OF THE EMPLOYMENT EQUITY COMPLIANCE PROGRAM
by Consulting and Audit Canada (CAC)
CAC CONCLUSIONS
CHRC MANAGEMENT RESPONSE AND ACTION PLAN
October 9, 2003

ISSUE 1: What role should the CHRC play in promotion and education in relation to the EE Act?

CAC Recommendation 1.1

In the short term, the CHRC, HRDC, TBS and PSC need to resolve the roles that each plays in promotion and education of EE and in providing advice.

CHRC Management Response: Agree

• While the Report does not identify options on how this could best be accomplished, the auditors conclude that the role of education and promotion has been under-resourced by HRDC and that the Commission has filled in this gap to some extent. The Commission cannot be held accountable for the actions of the other organizations involved. Nevertheless, the Commission has taken the lead in clarifying this issue by proposing that current program priorities, including the role of each organization, be clarified in a Memorandum of Understanding (MOU).
• Accordingly, an MOU has been negotiated between the Commission and HRDC. A second MOU existing between the Commission and the Treasury Board Secretariat is being revised and will include the Public Service Commission as a signatory.
• These memoranda will also provide a useful tool in responding to recommendations 2.4 under Issue # 2, 4.2 and 4.3 under Issue # 4 and 5.1 under Issue #5

CAC Recommendation 1.2:

In the long term, a revision to the EE Act could clearly define the roles with respect to promotion and education.

CHRC Management Response: Agree

• The Commission proposed in its Report to the Parliamentary Committee reviewing the legislation that the Act be revised to clearly define respective roles.
• While acknowledging the fact that both HRDC and CHRC have a distinct role to play in terms of education, the Committee did not recommend a revision to the Act.

ISSUE 2: Are the audit requirements demanded by the CHRC and its auditors consistent with the mandate provided to them under the EE Act?

CAC Recommendation 2.1:

The audit demands that employers are subjected to, should be resolved (the CHRC has made recommendations to the Parliamentary Committee conducting the EE legislative review). If those recommendations are rejected by the Parliamentary Committee, then the CHRC should discontinue making those demands.

CHRC Management Response: Disagree

• This recommendation confuses the roles of the Parliamentary Committee and of Parliament. While the Parliamentary Committee makes recommendations, Parliament itself has the ultimate decision-making power as to whether the Act or the Regulations are to be revised.
• The Commission believes that the auditor has misinterpreted the Act. The Commission has identified twelve statutory requirements which are integral to the legislation, and established assessment factors to determine compliance, based both on concepts explicitly stated in the legislation as well as standards which it is reasonable to assume must be met if the intent of the legislation is to be achieved.
• The CHRC assessment factors are supported by HRDC’s guidelines to employers and, as the Evaluation Report acknowledges, the CHRC provided considerable evidence of consultation between it and HRDC and TBS relating to the development of the requirements surrounding the audit process.
• Although there were minor areas of disagreement with the TBS at the initial stages of the compliance mandate, federal government departments, including the Treasury Board itself, have complied with the requirements of the audits.
• Notwithstanding, the Commission recognizes that these requirements and standards are not clearly articulated in the legislation and recommended to the Parliamentary Committee reviewing the Act that these should be clarified. The Committee largely agreed with the Commission, and identified the necessity to clarify obligations of employers as one of three priorities. Ultimately, if areas of disagreement arise in the demands made by the CHRC, Parliament or the Courts should have the final say.
• Areas for further study will be reviewed by an interdepartmental committee of which the Commission is a member.

CAC Recommendation 2.2:

Should those demands be accepted by the Parliamentary Committee, the audit requirements should then be broadly publicised and specified in the Regulations.

CHRC Management Response: Agree in part

• As specified in 2.1 above, it is the responsibility of Parliament to revise the Act and the Regulations. The Parliamentary Committee can only make recommendations.
• If the Act is revised, the Commission will, of course, amend and publicize its Framework for Compliance Audits, Chapter 8 of the Process Manual dealing with the statutory requirements, as well as all other relevant documentation. The same applies if reviews being undertaken by interdepartmental committees result in changes to current processes.

CAC Recommendation 2.3:

If the CHRC produces guidelines or advice (i.e, as described in section 42(1)(d) of the EE Act) relating to the implementation of EE, then it should do so in consultation with HRDC which has a clear mandate to do so.

CHRC Management Response: Unfounded

• The conclusions drawn in the Evaluation Report are based on comments made which indicated differences of opinion amongst HRDC and TBS which the study itself verified through a file review and found to be ungrounded.
• This recommendation presumes that the CHRC produces guidelines on the implementation of employment equity, which is a responsibility of HRDC. The Commission’s responsibility lies not in the provision of advice on implementation, but in the production of compliance measurement standards for employers.
• Section 42(1)(d) of the EE Act states, “the Minister (of Labour) is responsible for publishing and dissemination of information, issuing guidelines and providing advice to private sector employers and employee representatives regarding the implementation of employment equity.” Accordingly, CHRC does not engage in this type of information dissemination.
• The CHRC’s mandate under the Act requires it to state its audit standards clearly. That is the role of any responsible regulator and does not infringe on HRDC’s role of providing advice to employers. The CHRC and HRDC consult on an ongoing basis, and HRDC recognizes the Commission’s role by promoting the Commission’s material on its own website.

CAC Recommendation 2.4:

The CHRC, HRDC and TBS should continue to ensure that audit requirements and interpretations are shared in a systematic fashion to ensure consistent advice is provided to employers.

CHRC Management Response: Agree

• The CHRC will continue to consult with HRDC and TBS, but should not be held accountable for the advice provided to employers by these departments’ officers.
• The Memoranda of Understanding proposed by the Commission in recommendation 1.1 will provide a formal framework for sharing this information.

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