Marginal note: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.
Marginal note:Information re underrepresentation
(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 underrepresentation 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 underrepresentation 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.
Marginal note:Reason for underrepresentation 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.
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
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