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Section II: Analysis of Program Activity by Strategic Outcome
Strategic Outcome: Resolution of Labour Relations Issues in Sectors Regulated by the Canada Labour Code in a Timely, Fair and Consistent Manner
When the Board receives an application or complaint, it is usually because there is some form of unresolved conflict or problem in the workplace that the parties involved have been incapable of resolving on their own. Through mediation or by issuing a decision, the Board effectively and directly contributes to its sole strategic outcome namely, the resolution of labour relations issues. The impact of the work of the Board can be both broad-ranging and significant. The Board's decisions and mediation efforts often affect, in very tangible ways, the working lives of thousands of Canadians, the economic position of leading Canadian corporations, and the general well-being of the Canadian public.
The Board also contributes, in an indirect but no less effective manner, to effective industrial relations in the federal jurisdiction. Each time it issues a decision, the Board adds to its growing jurisprudence, which is widely disseminated to the industrial relations community. Clear and consistent jurisprudence provides an environment where potential litigants are more likely to resolve matters on their own, rather than to bring the matter before the Board. It is, however, difficult to ascribe a quantitative measure to this contribution to the labour-management relationship.
Program Activity by Strategic Outcome
| Expected Results |
Performance Indicators |
Targets | Performance Status |
Performance Summary |
|---|---|---|---|---|
| Labour relations issues are resolved in a timely, fair and consistent manner | Number of applications/complaints resolved as a percentage of applications/complaints received Average case processing time Average decision-making time Percentage of CIRB decisions upheld in Federal Court |
100% 50 days or less for certification applications that do not require a vote 90 days or less 100% |
Exceeded Mostly met Mostly met Mostly met |
The number of applications/complaints resolved as a percentage of applications/complaints received represents 122% 59% of certification applications that do not require a vote are disposed of in 50 days or less More than 73% of matters had a decision making time of 90 days or less. Excluding DFR complaints, which are lower priority cases, the percentage increases to almost 84% Of the 19 applications made to the Federal Court of Appeal for judicial review of Board decisions, only one of the applications was granted |
Benefits for Canadians
The CIRB has only one program activity. Through this program, the CIRB resolves labour relations issues by exercising its statutory powers relating to the application and interpretation of Part I (Industrial Relations), and certain provisions of Part II (Occupational Health and Safety), of the Code. Activities include the granting, modification and termination of bargaining rights; the investigation, mediation and adjudication of complaints alleging violation of Part I of the Code; the determination of levels of services required to be maintained during a work stoppage; the exercise of cease and desist powers in cases of unlawful strikes or lockouts; the settlement of the terms of a first collective agreement; and the provision of administrative services to support these activities.
By carrying out this program activity, the Board fulfills its mandate of contributing to and promoting a harmonious industrial relations climate in the federally regulated sector through the impartial, effective and appropriate administration of the rules of conduct that govern labour and management in their representational and bargaining activities. In achieving this mandate, the Board provides effective industrial relations solutions for the Canadian labour relations community in a fair and timely manner.
Performance Analysis
In its 2008–09 Report on Plans and Priorities, the CIRB identified six main priorities for immediate attention. These were to deliver on the Board's statutory mandate under the Code, to accelerate the reduction in the number of backlog cases, to reduce average case disposition time, to review and fine-tune the DFR complaint process, to review the Board's Performance Measurement Framework, and to continue client consultations.
Reducing the backlog of pending cases and improving average case disposition time are to a certain extent, related and highly dependent on various initiatives that were introduced to improve the processing of cases. Over the years, the CIRB has implemented various case specific and/or administrative measures to attain this goal. As recently as last year, the Board was reporting on the improvements related to the new procedures for processing certification applications. This year, it is the changes in the processing of DFR complaints and a focused effort to reduce the backlog of pending cases that characterizes the Board's successful performance.
Volume of Matters
After an initial spike in caseload levels in the years following the 1999 amendments to the Code, the number of applications/complaints received has generally declined over the last five fiscal years. In the first five years following the 1999 amendments to the Code, the CIRB received an average of 924 applications/complaints per year, compared to 688 over the last five years.
The decline is even more apparent in the last three fiscal years (see Chart 1), as the number of incoming matters dropped to 636 in 2006–07 and 633 in 2007–08 before increasing moderately to 669 in 2008–09.
The decline in the number of matters received over the last three fiscal years is largely equivalent, proportion wise, across the various types of applications/complaints. Notable exceptions, however, include the larger proportional decrease in applications for certification in 2008–09, and the relative increase in the number of applications for reconsideration of Board decisions and for revocation of certification.
Unfair labour practice (ULP) complaints, which represent approximately 40% of incoming matters in any given year, and are an indicator of the labour relations climate, are down almost 25% on average, in the 2006–07 to 2008–09 period (representing 85 fewer complaints per year), compared to the previous five fiscal years. Excluding DFR complaints, which are complaints by union members against their union, and which are less sensitive to the state of the economy, the decline in ULP complaints is more pronounced, at more than 41% (representing 71 fewer complaints per year). It should be noted that the rate of incoming matters increased somewhat in the third and fourth quarters of 2008–09 as the recession took hold.
With respect to the disposition of matters, the Board was able to improve its rate of matter disposition in the years following the 1999 amendments—it disposed of 855 matters per year on average over the five fiscal year period of 2001–02 to 2005–06, compared to an average of only 756 matters in the previous five fiscal years. And while the number of matters disposed of by the Board declined in 2006–07 and 2007–08, similarly to incoming matters, the CIRB took a number of measures to raise its disposition rate to levels akin to those of the early 2000s, and resolved 817 matters in 2008–09, which represents 142 more matters disposed of than the 675 in the previous fiscal year (see Chart 1). As a result, the number of pending cases dropped to 442 at the end of March 2009, or 142 fewer than the previous year (see Chart 1), and now stands at the lowest level since 1996–97.
The CIRB's workload and disposition rate continues to be affected by the relative large number of more complex matters, which typically involve lengthy hearings and numerous provisions of the Code. Such cases are both longer to process and require more of the Board's resources for their disposition. Complex cases have generally accounted for 85 or more of the number of matters disposed of per year over the last five fiscal years, representing more than 10% of all disposed cases. Applications involving a sale of business are usually particularly complex and represent 40 of the 85 complex matters resolved in 2008–09, significantly more than in previous years.
In addition to more complex cases, the Canada Industrial Relations Board Regulations, 2001 (the Regulations) stipulate that certain types of matters require priority attention. These cases include requests for an interim order/decision, requests to file Board orders in Court, referrals to the Board by the Minister of Labour relating to the maintenance of activities during a legal work stoppage, applications alleging an invalid strike or lockout vote, applications for a declaration of unlawful strike or lockout, and ULP complaints alleging the use of replacement workers or dismissal for union activities. Such matters are scheduled, heard and decided in priority to other elements in the Board's caseload. Priority is also given to the processing and consideration of applications for certification, and to any other matter in which there appears to be a significant potential for adverse industrial relations consequences if there is a delay in its resolution.
The setting of priorities inevitably results in the deferral of less urgent matters. Consequently, scheduling pressures can make very lengthy or complex matters—the kind of matters that are now typically scheduled for oral hearing by a panel of the Board—difficult to resolve expeditiously. In fiscal year 2008–09, the Board received 55 applications for matters that required priority attention and 112 applications for certification, and disposed of 68 expedited matters and 123 certifications.
Written Reasons for Decision
The Board issues detailed Reasons for decision in matters of broader national significance and/or significant precedential importance. In other matters, concise letter decisions help expedite the decision-making process, thereby providing more timely industrial relations outcomes for the parties involved. The Board strives to provide timely and legally sound decisions that are also consistent across similar matters in order to establish strong and clear jurisprudence.
The CIRB issued an average of 35 detailed Reasons for decision each year over the last five years, and 209 letter decisions, for a total of 244 written decisions per year, on average. This output increased significantly in 2008–09, as the Board produced 40 Reasons for decision and 303 letter decisions, for a total of 343 written decisions.
Examples of significant Board decisions rendered in 2008–09 can be found at: http://www.cirb-ccri.gc.ca/publications/report-rapport_eng.asp.
Processing Time
The time required to process a file—the time spent opening, investigating, mediating, hearing, and deciding a case—increased moderately in 2008–09, averaging 313 calendar days, compared to 298 days in 2007–08 and 242 days in 2006–07 (see Chart 2).
The principal reason for the increase in processing time experienced in both 2007–08 and 2008–09 is related to the resolution of numerous pending DFR complaints. Prior to 2007–08, DFR complaints were often set aside when more urgent matters arose. As a result, the CIRB had accumulated a significant backlog of DFR complaints, and their proportion of all pending matters grew from 25.6% in 2002–03 to almost 43% at the end of 2006–07. The CIRB took steps to seriously address this DFR backlog in 2007–08 and 2008–09. Consequently, DFR complaints represent a full third of disposed matters in 2008–09, compared to an average of about 19% in the five years preceding 2007–08. One consequence of this is that the average processing time statistics were adversely impacted, given that many of the complaints were long-standing. However, this is a one-time statistical anomaly, and it is anticipated that average case processing times will show a significant improvement in future years.
Decision-making Time
One component of the overall processing time is the length of time required by a Board panel to prepare and issue a decision following the completion of the hearing of a matter. A panel may decide a case without a hearing on the basis of written and documentary evidence, such as investigation reports and written submissions, or may defer the decision until further evidence and argument is obtained via an oral hearing.
Similar to processing time, and for many of the same reasons, the average decision-making time for matters disposed of in 2008–09 has increased to an average of 124 calendar days from 91 days in 2007–08. However, this level is nevertheless equivalent to levels experienced in the 2002–03 to 2005–06 period. Also, Chart 3 shows that there exists a considerable difference between cases with and without an oral hearing4. Whereas the decision-making time of cases involving an oral hearing declined substantially in the last two fiscal years compared to earlier years, quite the opposite happened with cases that did not involve an oral hearing. The latter is a direct result of the higher incidence of DFR complaints disposed of in 2007–08 and 2008–09, as those are cases which are typically decided on the basis of written submissions.
One approach to evaluating the Board's performance on decision-making time is to use section 14.2(2) of the Code as a benchmark. This section requires that a panel must render its decision and give notice of it to the parties no later than ninety days after the day on which it reserved its decision or within any further period that may be determined by the Chairperson. By this criterion, the Board has been relatively stable in the last three fiscal years when compared to previous years, in spite of the impact of DFR complaints. Chart 4 shows that more than three quarters of decisions were rendered in 90 days or less in 2008–09; excluding DFRs, this proportion rises to almost 84%.
| Decisions rendered in | 2004–05 | 2005–06 | 2006–07 | 2007–08 | 2008–09 |
|---|---|---|---|---|---|
| 90 days or less | 69.6% | 61.5% | 72.6% | 78.9% | 75.3% |
| More than 90 days | 30.4% | 38.5% | 27.4% | 21.1% | 24.7% |
| 90 days or less excluding DFRs | 67.4% | 75.6% | 85.0% | 88.6% | 83.7% |
| More than 90 days excluding DFRs | 32.6% | 24.4% | 15.0% | 11.4% | 16.3% |
| 90 days or less for DFRs | 33.10% | 57.40% | 61.40% | 41.40% | 52.60% |
| More than 90 days for DFRs | 66.90% | 42.60% | 38.60% | 58.60% | 47.40% |
Judicial Reviews
Another measure of the Board's performance, as well as a measure of the quality and soundness of its decisions, is the frequency of applications for judicial review of Board decisions by the Federal Court, and the percentage of decisions upheld as a result of these reviews. In this respect, the Board has performed exceptionally well. With respect to the outcome of the reviews before the Court, the Board's decisions have been upheld in all cases except one in the last five fiscal years (in 2008–09).
Examples of significant judicial reviews in 2008–09 can be found at: http://www.cirb-ccri.gc.ca/publications/report-rapport_eng.asp.
Reviewing and Fine-tuning the DFR Complaint Process
Following consultation with stakeholders, the CIRB established a committee in 2005–06 to review its case processing practices with respect to DFR complaints and to recommend ways in which it could expedite their disposition. Although DFRs are not usually the type of matter that require priority attention—they were often deferred in favour of other more important matters—their relative number is significant and they thus have an important impact on the Board's overall processing performance and backlog of cases. In the last five fiscal years, DFRs represent, on average, more than 23% of all applications/complaints received, and since they were more likely to be deferred, the number of pending DFR complaints steadily grew from 180 in 2002–03 to 270 at the end of 2006–07, representing almost 43% of all pending matters at that time.
Initially, new procedures for processing DFRs were put into place on January 1, 2006, and although they had some success, the improvements did not appear to be lasting or practical from a legal perspective. The Board felt that other changes needed to be made. As a result, further refinements to the treatment of DFR complaints were implemented on March 1, 2008.
The new DFR processes and other operational changes appear to be having a positive effect, as the Board resolved a total of 272 DFR complaints in 2008–09, which is substantially higher than in any previous year. As the backlog of DFR complaints diminishes, the improvements in case processing times and backlog reduction should be more evident.
Review of Performance Measurement Framework
Early in the 2008–09 fiscal year, the Board reviewed its PAA and developed the associated Performance Measurement Framework (PMF) in order to meet the evolving Treasury Board's Management, Resources and Results Structure Policy. This was the CIRB's first attempt at developing the PMF under the new policy, and the Treasury Board has offered some suggestions for improvement, which will be addressed in 2009–10.
Client Consultations
Client consultation continued during fiscal year 2008–09 and valuable input was received with respect to the processing and management of matters before the Board. The Board will continue to engage the labour-management community as it contemplates a full review of its Regulations.
Other Results
In support of its overarching mandate, the CIRB has also undertaken the following activities during the reporting period:
Human Resources (HR)
The CIRB's HR plan was updated and included strategies to address identified gaps. Those strategies included developmental programs to develop a pool of qualified candidates with the requisite competencies and to allow for career progression within the organization. Consistent with the greater emphasis on appropriate resolution of matters coming before the Board, all Board members and professional staff received mediation training during the fiscal year. The CIRB's Integrated HR and Business Plan was recognized by the Public Service Commission as a model for small agencies under the Staffing Management Accountability Framework.
Office Relocation
Two regional offices, one in Montréal and the other in Vancouver, were relocated during the review period due to lease expiry. Funding for these moves, while less than originally projected, exceeded the Board's capacity and assistance was provided by the portfolio department, HRSDC.
Information Technology (IT) / Information Management (IM)
Following the multi-year migration of its mission critical case management tool, the Case Management System, the CIRB continued with the implementation of enhancements to this extremely complex and comprehensive information system. The Board also continued to implement improvements in its document management system and in its IT security in line with Management of Information Technology Security (MITS) standards. With respect to IM, the Board began a thorough review of its program, including a review of policies and procedures and the development of an IM strategy and implementation plan. Work in these areas will continue in fiscal year 2009–10.
Provision of Information
Through its 1-800 information hotline, the CIRB received almost 5,900 information requests in 2008–09, and an additional 775 requests by email. Approximately 30% of these requests concerned a matter relating to another jurisdiction (either a provincial ministry of labour, a provincial labour relations board or HRSDC) and were easily redirected. More than 4,600 inquiries needed a more involved response from the Board, an increase from the 4,100 inquiries received in 2007–08. This includes 223 requests concerning the OC Transpo strike situation alone. Requests for information generally pertain to case hearing dates, documents or decisions on file, Board statistics and other various matters.
Lessons Learned
The complexity and implications of the issues facing federally regulated employers and unions require the Board to judiciously apply a wide range of knowledge and skills in diverse industrial relations, labour law and administrative law contexts. The stable economic environment over the past few years has resulted in a decrease in the number of cases coming before the Board, but the current environment may well change that situation. It is possible that the Board will receive more ULP complaints as a result of difficulties at the bargaining table, as well as more applications related to corporate restructuring or sale of business.
It should be noted that preliminary information indicates that there should be substantial improvements in both the processing and decision-making times in 2009–10 given the reduction of backlog cases for DFRs and the new processes implemented over the last two years.
