|
|
|
|
|
|
|
|
|
|
|
|
| Compliance
audits
|
22. (1) The Commission is responsible for
the enforcement of the obligations imposed on
employers by sections 5, 9 to 15 and 17.
|
|
| Guiding
policy
|
(2) The Commission shall, in discharging
its responsibility under subsection (1), be
guided by the policy that, wherever possible,
cases of non-compliance be resolved through
persuasion and the negotiation of written
undertakings pursuant to subsection 25(1) and
that directions be issued under subsection
25(2) or (3) and applications for orders be
made under subsection 27(2) only as a last
resort.
|
|
| Compliance
officers
designated
|
(3) The Commission may designate any
person or category of persons as employment
equity compliance review officers for the
purposes of conducting compliance audits of
employers.
|
|
| Where
compliance
officer may
not act
|
(4) No person who has been designated as
an investigator under section 43 of the
Canadian Human Rights Act to investigate a
complaint under that Act in respect of an
employer may, during the investigation,
conduct a compliance audit of that employer.
|
|
| Delegation by
Commission
|
(5) The Commission may authorize any
officer or employee of the Commission whom
the Commission considers appropriate to
exercise any power and perform any duty or
function of the Commission under this Act and
any power so exercised and any duty or
function so performed shall be deemed to have
been exercised or performed by the
Commission.
|
|
| Powers of
compliance
officers
|
23. (1) For the purposes of ensuring
compliance with the provisions referred to in
subsection 22(1), a compliance officer may
conduct a compliance audit of an employer
and, for that purpose, may
|
|
|
|
(a) at any reasonable time, enter any place
in which the officer believes on reasonable
grounds there is any thing relevant to the
enforcement of any of those provisions; and
|
|
|
|
(b) require any person to produce for
examination or copying any record, book of
account or other document that the officer
believes on reasonable grounds contains
information that is relevant to the
enforcement of any of those provisions.
|
|
| Data
processing
systems and
copying
equipment
|
(2) In conducting a compliance audit, a
compliance officer may
|
|
|
|
(a) reproduce or cause to be reproduced any
record from a data processing system in the
form of a print-out or other intelligible
output and remove the print-out or other
output for examination and copying; and
|
|
|
|
(b) use or cause to be used any copying
equipment at the place to make copies of
any record, book of account or other
document.
|
|
| Certificate to
be produced
|
(3) Compliance officers shall be furnished
with certificates in a form established by the
Commission certifying their designation as
compliance officers and, on entering a place
under paragraph (1)(a), a compliance officer
shall show the certificate to the person in
charge of the place if the person requests proof
of the officer's designation.
|
|
| Assistance to
compliance
officers
|
(4) The person in charge of a place entered
pursuant to paragraph (1)(a) and every person
found in the place shall
|
|
|
|
(a) give the compliance officer all
reasonable assistance to enable the officer
to exercise the powers conferred on
compliance officers by this section; and
|
|
|
|
(b) provide the officer with any information
relevant to the enforcement of this Act that
the officer may reasonably require.
|
|
| Security
requirements
|
24. Every compliance officer or any other
person acting on behalf of or under the
direction of the Commission who receives or
obtains information relating to a compliance
audit under this Act shall, with respect to
access to and use of that information by that
compliance officer or person, satisfy any
security requirements applicable to, and take
any oath of secrecy required to be taken by,
persons who normally have access to and use
of that information.
|
|
|
|
|
|
| Employer
undertaking
|
25. (1) Where a compliance officer is of the
opinion that an employer
|
|
|
|
(a) has not collected information or
conducted an analysis referred to in
paragraph 9(1)(a) or conducted a review
referred to in paragraph 9(1)(b),
|
|
|
|
(b) has not prepared an employment equity
plan referred to in section 10,
|
|
|
|
(c) has prepared an employment equity plan
that does not meet the requirements of
sections 10 and 11,
|
|
|
|
(d) has not made all reasonable efforts to
implement its employment equity plan in
accordance with section 12,
|
|
|
|
(e) has failed to review and revise its
employment equity plan in accordance with
section 13,
|
|
|
|
(f) has failed to provide information to its
employees in accordance with section 14,
|
|
|
|
(g) has failed to consult with its employees'
representatives in accordance with section
15, or
|
|
|
|
(h) has failed to establish and maintain
employment equity records as required by
section 17,
|
|
|
|
the compliance officer shall inform the
employer of the non-compliance and shall
attempt to negotiate a written undertaking
from the employer to take specified measures
to remedy the non-compliance.
|
|
| Information re
under-represe
ntation
|
(1.1) Where
|
|
|
|
(a) an employer has been informed of a
non-compliance by a compliance officer
under subsection (1) and the finding of
non-compliance is based, in whole or in
part, on the apparent under-representation
of aboriginal peoples, members of visible
minorities or persons with disabilities in the
employer's work force, as reflected in the
employer's work force analysis conducted
pursuant to paragraph 9(1)(a), and
|
|
|
|
(b) the employer believes that the apparent
under-representation is attributable to the
decision of employees who may be
members of the designated groups
concerned not to identify themselves as
such or not to agree to be identified by the
employer as such under subsection 9(2),
|
|
|
|
the employer may inform the compliance
officer of such belief.
|
|
| Reason for
under-represe
ntation to be
considered
|
(1.2) Where the employer satisfies the
compliance officer that the finding of
non-compliance is attributable, in whole or in
part, to the reason described in paragraph
(1.1)(b) and that the employer has made all
reasonable efforts to implement employment
equity, the compliance officer shall take the
reason into account in exercising any powers
under this section.
|
|
| No employer
identification
of individual
employees
|
(1.3) In satisfying the compliance officer
under subsection (1.2) that the finding of
non-compliance is attributable, in whole or in
part, to the reason mentioned in paragraph
(1.1)(b), the employer must do so by means
other than the identification of individual
employees in its work force that the employer
believes are members of designated groups
who have not identified themselves as such, or
agreed to be identified by the employer as
such, under subsection 9(2).
|
|
| Direction
|
(2) Where a compliance officer fails to
obtain a written undertaking that, in the
opinion of the compliance officer, would be
sufficient to remedy the non-compliance, the
compliance officer shall notify the
Commission of the non-compliance and the
Commission may issue and send, by
registered mail, a direction to the employer
|
|
|
|
(a) setting out the facts on which the
officer's finding of non-compliance is
based; and
|
|
|
|
(b) requiring the employer to take such
actions as are specified in the direction to
remedy the non-compliance.
|
|
| Breach of
undertaking
|
(3) Where a compliance officer obtains a
written undertaking and the compliance
officer is of the opinion that the employer has
breached the undertaking, the compliance
officer shall notify the Commission of the
non-compliance and the Commission may
issue and send, by registered mail, a direction
to the employer requiring the employer to take
such actions as are specified in the direction to
remedy the non-compliance.
|
|
| Amendment
of direction
|
(4) The Commission may rescind or amend
a direction issued by the Commission
pursuant to subsection (2) or (3) on the
presentation of new facts or on being satisfied
that the direction was issued without
knowledge of, or was based on a mistake as to,
a material fact.
|
|
| Direction of
Commission
|
26. (1) Where a compliance officer is of the
opinion that an employer has failed to give
reasonable assistance or to provide
information as required by subsection 23(4),
the compliance officer shall notify the
Commission of the non-compliance and the
Commission may issue and send, by
registered mail, a direction to the employer
|
|
|
|
(a) setting out the facts on which the
officer's finding of non-compliance is
based; and
|
|
|
|
(b) requiring the employer to take such
actions as are specified in the direction to
remedy the non-compliance.
|
|
| Amendment
of direction
|
(2) The Commission may rescind or amend
a direction issued pursuant to subsection (1)
on the presentation of new facts or on being
satisfied that the direction was issued without
knowledge of, or was based on a mistake as to,
a material fact.
|
|
|
|
|
|
| Employer's
request for
review
|
27. (1) An employer to whom a direction is
issued pursuant to subsection 25(2) or (3) or
26(1) may make a request to the President of
the Panel for a review of the direction
|
|
|
|
(a) in the case of a direction issued pursuant
to subsection 25(2) or (3), within sixty days
after the day on which it is issued; and
|
|
|
|
(b) in the case of a direction issued pursuant
to subsection 26(1), within thirty days after
the day on which it is issued.
|
|
| Commission
may apply
|
(2) Where the Commission is of the opinion
that an employer has failed to comply with a
direction issued by the Commission, the
Commission may apply to the President of the
Panel for an order confirming the direction.
|
|
| Limitation
|
(3) No application may be made pursuant to
subsection (2) where the employer has
requested a review in accordance with
subsection (1).
|
|
|
|
|
|
| Establishment
of Tribunals
|
28. (1) Where an employer makes a request
under subsection 27(1) or the Commission
makes an application under subsection 27(2),
the President of the Panel shall establish an
Employment Equity Review Tribunal to
consider the request or application.
|
|
| Composition
|
(2) The President of the Panel shall appoint
a Tribunal consisting of one member of the
Panel, but the President of the Panel may
appoint a Tribunal of three members if the
President considers that the complexity or
precedential significance of the request or
application requires a Tribunal of three
members.
|
|
| Qualifications
of members
|
(3) The President of the Panel shall, in
appointing members of the Tribunal, take into
consideration their knowledge and experience
in employment equity matters.
|
|
| Presiding
|
(4) Where a Tribunal consists of more than
one member, the President of the Panel shall
designate one of the members to preside over
the hearings of the Tribunal.
|
|
| Remuneration
|
(5) The members of a Tribunal shall be paid
such remuneration as may be fixed by the
Governor in Council.
|
|
| Travel
expenses
|
(6) Members are entitled to be paid travel
and living expenses incurred in carrying out
duties as members of the Tribunal while
absent from their places of residence, but the
expenses must not exceed the maximum
limits authorized by Treasury Board directive
for employees of the Government of Canada.
|
|
| Technical
experts
|
(7) The President of the Panel may engage
and, subject to the approval of the Treasury
Board, fix the remuneration of persons having
technical or special knowledge to assist or
advise a Tribunal in any matter.
|
|
| Government
services and
facilities
|
(8) In performing its duties and functions, a
Tribunal shall, where available, make use of
the services and facilities of departments,
boards and agencies of the Government of
Canada.
|
|
| Rules
|
(9) The President of the Panel may make
rules governing the practice and procedure of
Tribunals.
|
|
| Security
requirements
|
(10) Every member or other person acting
on behalf of or under the direction of a
Tribunal who receives or obtains information
relating to a request or application referred to
in subsection (1) shall, with respect to access
to and use of that information by that member
or other person, satisfy any security
requirements applicable to, and take any oath
of secrecy required to be taken by, persons
who normally have access to and use of that
information.
|
|
| Powers of
Tribunal
|
29. (1) A Tribunal may
|
|
|
|
(a) in the same manner and to the same
extent as a superior court of record,
summon and enforce the attendance of
witnesses and compel them to give oral and
written evidence on oath and to produce
such documents and things as the Tribunal
considers necessary for a full review;
|
|
|
|
(b) administer oaths; and
|
|
|
|
(c) receive and accept such evidence and
other information, whether on oath or by
affidavit or otherwise, as the Tribunal sees
fit, whether or not that evidence or
information would be admissible in a court
of law.
|
|
| How matters
to be dealt
with
|
(2) A Tribunal shall conduct any matter that
comes before it as informally and
expeditiously as the circumstances and
considerations of fairness and natural justice
permit.
|
|
| Hearings to be
public
|
(3) Subject to subsection (4), a hearing
before a Tribunal shall be conducted in public.
|
|
| Hearings may
be in camera
|
(4) A hearing before a Tribunal may, on the
request of an employer, be held in camera if
the employer establishes to the satisfaction of
the Tribunal that the circumstances of the case
so require.
|
|
| Reasons for
decision
|
(5) A Tribunal shall provide the parties to a
proceeding before the Tribunal with written
reasons for its decision.
|
|
| Reasons for
decision
|
(6) A Tribunal shall, on request by any
person, provide the person with a copy of any
decision of the Tribunal, including a decision
under subsection (4) to hold a hearing in
camera, together with the written reasons for
the decision.
|
|
| Decision of
Tribunal
|
30. (1) A Tribunal may, after hearing a
request made under subsection 27(1) or an
application made under subsection 27(2),
|
|
|
|
(a) by order, confirm, vary or rescind the
Commission's direction; and
|
|
|
|
(b) make any other order it considers
appropriate and reasonable in the
circumstances to remedy the
non-compliance.
|
|
| Board may
vary or
rescind
|
(2) A Tribunal may vary or rescind any
order made by it.
|
|
| Orders are
final
|
(3) An order of a Tribunal is final and,
except for judicial review under the Federal
Court Act, is not subject to appeal or review by
any court.
|
|
| Enforcement
of orders
|
31. (1) Any order of a Tribunal made under
section 30 may, for the purposes of its
enforcement, be made an order of the Federal
Court and is enforceable in the same manner
as an order of that Court.
|
|
| Procedure
|
(2) To make an order of a Tribunal an order
of the Federal Court, the usual practice and
procedure of the Court may be followed or a
certified copy of the order may be filed with
the registrar of the Court, and from the time of
filing the order becomes an order of the Court.
|
|
| Report of
activities of
Human Rights
Commission
|
32. The Commission shall include in its
annual report referred to in section 61 of the
Canadian Human Rights Act a report of its
activities, including an assessment of their
effectiveness, under this Act during the year.
|
|