ARCHIVED - RPP 2007-2008
Canada Industrial Relations Board

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SECTION II – CIRB OPERATING ENVIRONMENT AND PLANS AND PRIORITIES (Analysis of Program Activities by Strategic Outcome)

2.1 Operating Environment

The last few years have witnessed significant developments and challenges in the sphere of labour relations in Canada and thus for the CIRB. Heightened competition, resulting from the globalization of markets, technological change, the volatility of national and international economies, and corporate mergers have all had an effect on employers, employees and their mutual relationship in Canada.

This is particularly evident in the federally regulated sector where the degree and rate of change has been largely unprecedented. Many of the industries, such as telecommunications and air transport to name but two, have gone from highly regulated monopolistic or semi-monopolistic structures to a form that is more unregulated and competitive. This has resulted, for example, in an essentially regional company like BCTel to become TELUS, one of Canada’s leading telecommunication companies in a relatively few short years. Also, many services that were once provided by the federal government, such as security and boarding at airports, have been commercialized and or privatized. These profound changes associated with a workforce that is largely unionized have led to a situation where the Board is being increasingly called upon to resolve high profile and complex issues between bargaining parties, with substantial economic and social implications for the broader Canadian public.

Typical issues of continuing concern to the Board include:

• the need for assistance to be provided to companies and unions in resolving the labour relations implications of corporate mergers and take-overs — including the determination of bargaining unit structures, representation rights and the merger of collective agreements and seniority rights — notably in the airline and telecommunications industries;
• the acquisition and exercise of free collective bargaining rights, and the promotion of sound labour-management relations in a fair and transparent manner;
• the need to assure that collective bargaining between employers and unions is conducted fairly and in good faith;
• the scope of the duty of fair representation in respect of minority groups of employees;
• the determination of the levels of services required to be maintained during a work stoppage to ensure the protection of the health and safety of the Canadian public, particularly in such enterprises as airports, atomic energy production, and the air navigation system; and
• the prompt consideration of situations in which illegal work stoppages or lockouts are alleged.

The complexity and implication of the issues facing federally regulated employers and unions require the Board to apply a wide range of knowledge and skills judiciously in industrial relations and administrative law in diverse contexts. The demand for adjudicative services has thus been historically high, although declining to a more sustainable level over the last two years. Furthermore, the commitment of the Board to promote, wherever possible, the joint resolution of issues by the parties — along with clients’ demands for the Board’s assistance in mediating unresolved issues as an alternative to litigation — entails increasing demands on the Board’s resources. Accordingly, the Board continues to place considerable emphasis in augmenting both its skill and resource levels to meet the needs of its clients.

2.1.1 Volume of Matters

In the four years following the 1999 amendments to the Code, which widened the scope of matters the CIRB could hear, the number of applications/complaints received by the Board rose considerably, ranging from a low of 822 to a high of 1,154. In the five years preceding the Code amendments, the number of incoming matters averaged less than 740 per fiscal year. Over the last three fiscal years however, the number of applications/complaints has dropped significantly. This is particularly evident in 2006-07, as the number of incoming matters is expected to fall to its lowest level since the early 1990s at 631 (see Chart 1).

The reasons for this decline are numerous, and would certainly include the sound jurisprudence that the Board has established since its inception. The Board has always maintained that the larger number of applications/complaints received by the CIRB in the years following the 1999 amendments to the Code were in part due to the lack of jurisprudence on the new Code provisions, since parties were more likely to litigate given the uncertain interpretation of the new Code provisions. However, the most important factors in the decline of incoming matters are the state of the economy and the relative stability of the industrial relations environment. The Canadian economy has been doing quite well in recent years. The rate of growth has been relatively robust and the level of unemployment dropped to a thirty-year low of 6.1% in December 2006. Generally, when the economy is doing well, there is less friction in industrial relations e.g. a lower incidence of strikes and lockouts, collective agreements with longer terms, and fewer applications/complaints to the Board.

This is borne out by the CIRB’s statistics. Unfair labour practice (ULP) complaints, which usually represent 40% or more of incoming matters in any given year, and are an indicator of the labour relations climate, are down by 21% in 2006-07. Excluding duty of fair representation 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 would be much more pronounced in 2006-07 at 35%. There were also significantly fewer applications for review in 2006-07 (-29%), particularly applications for reconsideration (-49%), and for certification ( 31%), although the decline in certification applications represents a return to more usual levels after having received an above average number of applications in the previous fiscal year.

With respect to the disposition of matters, the Board has generally augmented its rate of matter disposition in recent years. It disposed of 855 matters per year on average over the five fiscal year period of 2001-02 to 2005-06, compared to only 756 matters in the previous five fiscal years. This rate, however, is expected to decline to 679 in 2006-07 (see Chart 1), the lowest level since 1998-99. The decline in the Board’s rate of matter disposition is the result of a diminished adjudicative capacity in 2006-07, a situation that also affected the Board in 2004-05. Delays encountered in the appointment or reappointment of Board Members made it difficult to assemble panel to hear cases in many circumstances, and put the onus for decision-making squarely on single member panels. With the term of one Vice-Chair ending on December 31, 2006, the Board is operating with four full-time Vice-Chairs instead of five. Moreover, new cases are not assigned to members whose term is ending, so that they can close the files they have before leaving. The result is that the Board has effectively been operating with four Vice Chairs for most of 2006-07. This situation is likely to get much worse in 2007-08, as the term of three of the four remaining full-time Vice-Chairs, as well as the term of the Chairperson, will be ending on or before December 2007.

Another reason for the lower adjudicative output in 2006-07 is that the Board invested in the long term by undertaking a policy review of the handling of cases that deal with certification applications, duty of fair representation complaints and, more recently, applications for reconsideration. The goal of these policy reviews is to reduce the effort and/or time required to process these types of cases. Each of these three reviews is presided by a Vice-Chair, which required considerable time and planning and reduced the amount of time available to them to adjudicate cases. Nevertheless, given the decline in incoming matters, the Board felt that this would be an appropriate time to undertake these reviews, which would reap future efficiencies.

Notwithstanding the lower level of matter disposition, the number of pending matters is projected to fall to 606 by the end of 2006-07 (see Chart 1), the lowest level since 1997-98.

2.1.2 Written Decisions

Another factor affecting the CIRB’s adjudicative output has been the increased need for more detailed written decisions, which require more time and effort to produce. The disposition of more complex cases requires more detailed decisions given their nature ¹, and although the absolute number of complex matters disposed by the Board in 2006-07 was lower than in previous years, they involved cases of significant importance, which demanded far more effort to adjudicate than is usual for complex matters. These cases include such notable matters as the Cairns, TELUS, NAV CANADA and Aliant Telecom cases. Also, uncertainties resulting from the new legislative provisions introduced in 1999, and the lack of jurisprudence in applying them have resulted in a situation where parties have been more prone to litigate many contentious matters requiring written decisions.

¹ The Board issues detailed Reasons for decision in matters of broader national significance and/or significant precedential importance. In other matters, more concise letter decisions help expedite the decision-making process, therein providing more timely industrial relations outcomes for parties.

Together, these two factors have led to an increase in the need for the Board to interpret and apply the Code in matters involving provisions that were revised and/or added, which, in turn, is reflected in a significant increase in the Board’s body of jurisprudence. These decisions serve both to resolve the issues relevant to complex circumstances and to clarify the way the Code, including the new Code provisions, will apply in evolving circumstances. In this respect, the Board strives to provide timely, good and legally sound decisions that are also consistent across similar matters in order to establish strong and clear jurisprudence, which in turn should reduce the likelihood of a demand for reconsideration, as well as reducing the likelihood of applications to the Federal Court of Appeal for a judicial review.

The Board’s experience of issuing Reasons for decision and letter decisions in the last five fiscal years is reflected in Chart 2. On average, the CIRB has issued more than 40 of the more detailed Reasons for decision each year over the last five years, and close to 195 letter decisions, for a total of 235 written decisions on average. In 2006-07 the Board expects to produce 206 letter decisions and 31 Reasons for decision. The balance of matters were either withdrawn or disposed of by orders. In the five fiscal years prior to the Code amendments, the Board issued an average of 37 Reasons for decision per year and 128 letter decisions.

2.1.3 General Government Environment

Other than the business operational pressures described above, the Government of Canada has adopted a number of resource management initiatives and reviews that require serious attention from all departments and agencies. Initiatives such as the Public Service Renewal, Management Accountability Framework, Modern Comptrollership and improved internal audit and evaluation functions require an increasing amount of both human and financial resources to implement and complete.

Unlike larger departments, small agencies like the CIRB have negligible non-discretionary financial resources that can be reallocated to the additional activities, and often do not have sufficient in-house expertise to conduct and implement initiatives. Consequently, resources that are directed towards these initiatives are usually taken from existing operational budgets, thereby adding to the service delivery pressures.

2.2 Plans and Priorities

2.2.1 Summary

The sole strategic outcome of the Board, as stated in section 1.3, is to contribute to and promote 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 strategic outcome, the CIRB provides effective industrial relations solutions for the Canadian labour relations community in a fair and timely manner.

Public transparency of and accountability for decision-making has always been a priority of the Board in attaining its goal, and will remain so. However, the foremost priority for the Board in the upcoming years will be to improve upon the timeliness of its decisions, and in particular, to significantly reduce the number of backlog cases that has persisted over the last few years.

To deliver on this priority, the Board will continue to focus its efforts on reviewing the broad issues of current organizational effectiveness, and in particular, its operational processes, in delivering its services. The aim of these reviews is to simplify and/or shorten case processing measures in order to increase the number of matters that can be disposed of with a given adjudicative capacity.

The activities that the CIRB will undertake in the next few years in support of its strategic outcome and to meet its priority are varied.

2.2.2 Program Priorities

A number of process review activities have been undertaken to assess whether the CIRB’s internal case management procedures are as efficient as they can be, and to uncover any improvements that can be adopted with the goal of reducing the total processing time of cases. Processing time is essentially composed of two parts: the time it takes the Board’s staff to open, investigate, mediate and prepare a file to be given to a Vice-Chairperson or panel for decision; and the time it takes the Vice-Chairperson or panel to render a decision.

The Board has completed the restructuring of the Case Management Secretariat that began in the previous year, which has provided improvements in operational efficiencies, but which will require further monitoring and adjustments. More importantly, the Board will concentrate its efforts on improving the processing of three types of cases: duty of fair representation complaints, applications for reconsideration and applications for certification. The reason these particular types of cases were selected for review is that they represent a large portion of the CIRB’s incoming workload — more than 40% on average in the last five years.

Duty of Fair Representation Complaints
Duty of fair representation (DFR) complaints — complaints by union members against their union, or its representatives, for neglecting to properly represent them with respect to their rights under the collective agreement — continue to comprise a significant percentage of the CIRB’s caseload. More than one quarter of the applications/complaints received by the Board in 2006-07 were related to this type of case, a proportion that is slightly higher than the average of the previous five fiscal years.

In addition to comprising a significant percentage of the CIRB’s workload, DFR complaints are also among the lengthiest to process. Not because they take so much time to process per se, but because they are usually deferred in favour of more urgent matters, unless they involve serious disciplinary measures against the complainant. Any measure that would reduce the effort and processing time to treat these matters would not only be welcomed by the client, but would also have a significant impact on the CIRB’s overall performance. Furthermore, since DFR complaints are more likely to be deferred than other types of matters, they represent an ever-increasing percentage of backlog cases — from 18.7% in 2000-01 to 42.1% in 2006-07.

As a result, the CIRB created a DFR Process Review Committee in 2005-06, which looked at various best practices used by provincial labour tribunals as well as other measures that could simplify and reduce the paper burden associated with these complaints, which in turn should shorten the length of their disposition. Recommendations and new processing procedures were discussed with the Client Consultation Committee. The new measures were put into place in January 2006, but the CIRB needs to closely monitor the progress and the effectiveness of the new measures and to make adjustments where warranted.

Reconsiderations
While the Code provides that all orders or decisions of the Board are final, it also gives the Board jurisdiction to review its decisions. Applications for reconsideration of Board decisions represent another significant portion of the CIRB’s workload. More than 6% of its average caseload over the last five fiscal years involves this type of application, and regrettably, the Board is even receiving an increasing number of applications for the reconsideration of matters that have already been reconsidered. Although, the Canada Industrial Relations Board Regulations, 2001 (the Regulations) clearly specify the factors upon which the Board will review a decision, many of the applications simply seek to appeal a decision, without providing any new facts or different grounds to support a review (average number of reconsideration applications granted 15%). In addition to adding to the Board’s case load, it can create delays in the implementation of the Board’s original decisions. The CIRB needs to find ways to quickly dismiss applications that do not meet some minimum conditions, or that are clearly without merit. Towards this end, the Board initiated a review process of reconsideration applications and their disposition in mid-2006. Recommendations on possible improvements will be provided to, and reviewed by, CIRB management in 2006-07, and implementation will follow in late 2006-07 or early 2007-08.

Applications for Certification
Following consultations with major client groups and stakeholders, the CIRB established a committee in 2004-05 to review its case processing practices with respect to certification applications and to recommend ways in which the Board could expedite the disposition of these matters. New procedures were developed and tested as a pilot project in late 2004-05, and the new procedures were refined and adopted in early 2005-06. The main objective of the new procedures is to process and dispose standard certification applications (those that do not include abnormal situations involving complex issues of law or jurisdiction, and/or that do not require a vote) in 50 days. By comparison, the processing time for certification applications received for the five fiscal years preceding the new procedures averaged 179 days.

The CIRB is continuing to monitoring the effectiveness of the new measures and looking at making any final adjustments where required in order to meet the objective and/or to improve on the results obtained so far. To date, the results are encouraging, as the processing time of applications (including non-standard applications) received and disposed since the new measures have been adopted has dropped by 106 days to 73 days on average.

Client Consultations
Formal and informal consultations with clients continue to be important for the CIRB. A client consultation workgroup, which was formed in 2004-05 to develop a more structured, regular and broader approach to consulting with our client base, has been particularly useful in recent years. In particular, these client consultations have contributed to the determination of specific case management process reviews previously mentioned (reconsiderations, duty of fair representation complaints and certification applications) and led to the production of a set of recommendations on Board Member appointment procedures. The Client Consultation Committee will continue to look at other possibilities to meet the Board’s priority of reducing the number of backlog cases and will provide options in the new fiscal year.

2.2.3 Other Supporting Activities

In addition to the main activities highlighted above, the CIRB is, or will be, involved in a number of other activities in support of its mandate.

Office Relocation
The Board has been planning and negotiating the move of its Vancouver office to a new local. Some details still need to be worked out but, barring extraneous circumstances, the move will take place in 2007-08. The preparation for a move is extremely time consuming and requires that many details be worked out, and endless negotiations between the Board, the Department of Public Works (Public Works) and the owners of the sought after space. One move is sufficiently demanding, but to make matters worse, Public Works has advised the Board that leases for its Headquarters office as well as its Montréal office will not be renewed. As a result, the Board will need to plan for the relocation of both these offices for a move sometime in 2008.

Information Technology
Our plans and efforts to improve overall effectiveness and to meet the goals of the Government On-Line initiative include improvements to the Board’s information technology apparatus. In this respect, the Board continues with its internal initiative to improve the way we manage and share information, and to communicate more effectively in order to better serve our clients.

The main elements of this initiative are:

• The completion of the Case Management System, the Board’s core business system, particularly with respect to reporting;
• The implementation of secure remote access to Board systems and databases, thereby allowing Board Members to continue working during extensive periods of travel;
• The continued development of the Board’s Internet site, in order to provide clients with an increasing range of pertinent information and online services.

Information Circulars/Practice Notes
One of the major outcomes of previous discussions with major client groups was a broad agreement on the development of information circulars or practice notes. The purpose of practice notes and information circulars is to help communicate to its clients and to the public the Board’s procedures and practices in relation to the Code and the Regulations adopted by the Board in December of 2001. In essence, practice notes or information circulars are meant to increase the accessibility and transparency of Board processes by providing common language instructions respecting the interpretation and application of the Code and Regulations. It is expected that these will make the Board’s processes easier for clients to understand and manage, and ensure that the substance of matters can be more easily and quickly addressed. They are also expected to allow pre-hearing procedures to continue to reduce the actual time required in the hearing process by ensuring that pre-hearing information discovery processes are as effective as possible and that preparation for all matters scheduled for hearing is as complete as possible. The development of information circulars or practice notes will be an ongoing process.

Videoconferencing
The Board installed videoconferencing facilities in all of its offices across Canada in late 2002 03, and continues to look at ways to expand its use with regard to external proceedings, thereby making the Board more accessible to its clients while at the same time expediting Board processes, reducing time lost in travel and its associated costs, and allowing time-sensitive matters to be more rapidly scheduled and heard. More recently, the CIRB has even extended the use of its videoconferencing facilities to the Public Service Labour Relations Board (PSLRB) for their use in external proceedings.

2.2.4 Management Priorities

Modern Management Agenda
The Board has actively embarked on a number of modern management initiatives, sponsored by the Treasury Board, in order to ensure that it applies the best possible management practices and governance to its operations. Assessment activities have been conducted in recent years under the auspices of the Modern Comptrollership, Internal Audit and Management Accountability Framework initiatives. Resulting action plans have been developed, and all of the planned activities noted above fit within, and are an integral part of, the Board’s Management Accountability Framework strategy.

Another modern management activity that the Board will undertake in the upcoming fiscal year is to finalize the implementation of a revamped business and operational planning cycle. The Board has reviewed its strategic plan, and will tightly knit operational plans to the goals of the strategic plan. This should foster an improved mutual understanding of the CIRB’s direction between its staff, management and Board Members.

Also, as a result of Treasury Board’s Management, Resources and Results Structure Policy (MRRS), the Board will be reviewing its program architecture and associated performance measures.

Human Resources
The CIRB has a number of strategic priorities with regard to human resources. These are to develop and implement a human resources planning strategy which will integrate with business planning as well as a Classification Monitoring System in order to meet the requirements of the Management Accountability Framework, and to complete its policy in response to the new Learning Policy produced by the Treasury Board Secretariat that came into effect on January 1, 2006.

The Board is also in the process of completing its action plan following the results of the 2005 Public Service Employee Survey, which were released in the latter half of 2006. Overall, the survey results indicate that the Board generally fares favourably compared to the overall public service, and to a lesser extent, to other small organizations. While the action plan will only be finalized in late 2006-07 or early 2007-08, we know that succession planning will be a priority, as more than 40% of CIRB employees have indicated that they would be leaving the public service in the next five years, most due to retirement. This is significantly higher than the 30% response for the public service in general.

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