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Bill C-64

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PART II

COMPLIANCE

Compliance Audits

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.

Undertakings and Directions

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.

Requests for Review or Order

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).

Employment Equity Review Tribunals

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.

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