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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 Canadian labour relations environment has undergone significant developments and has faced many challenges in recent years. On the international front, the globalization of markets has resulted in heightened competition, corporate mergers and technological change, and has led employers to seek productivity improvements, including the redefinition of bargaining units in some instances, in order to remain competitive. These pressures have recently increased with the strong appreciation of the Canadian dollar against its U.S. counterpart and concerns over a potential recession in the U.S. On the national front, a relatively tight labour market, with unemployment rates at their lowest levels in thirty years, and the impending retirement of sizeable proportion of the workforce may put pressure on both sides of the bargaining table. These forces have all had an effect on Canadian employers, employees and the union-management relationship, and are expected to continue to have an impact on them in the foreseeable future.

Those pressures are 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. Also, many services that were once provided by the federal government, such as security and boarding at airports, have been commercialized. 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 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 ensure 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;
• the prompt consideration of situations in which illegal work stoppages are alleged; and
• the need to assist companies and unions in resolving the labour relations implications of corporate mergers and take-overs—including the determination of bargaining unit structures and representation rights.

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 industrial relations, labour law and administrative law in diverse contexts. The stable economic environment over the past few years has been reflected in a modest decrease in cases coming before the Board, but current uncertainty is expected to produce increased demand for the Board’s services. Furthermore, the commitment of the Board to promote the joint resolution of issues by the parties, wherever possible, 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 will continue to place emphasis on augmenting both its skill and resource levels to meet the needs of its clients.

2.1.1 Volume of Matters

In the five 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, averaging 924 matters per fiscal year over the 1999–00 to 2003–04 period, compared to 740 in the five years preceding the Code amendments. Since then, however, the number of applications/complaints has dropped steadily to less than 700 in the last two fiscal years (see Chart 1).

The reasons for this decline are numerous, and would certainly include the solid 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 factor in the decline of incoming matters may be the state of the economy, which has been doing quite well in recent years. The rate of growth has been relatively robust and the level of unemployment has dropped to 5.9% in December 2007, a more than thirty-year low. Historically, when the economy is doing well, there are fewer frictions on the industrial relations front. This can be seen by a lower incidence of strikes and lockouts, a trend to longer-term collective agreements, and also by fewer applications/complaints to the Board.

This appears to be borne out by the CIRB’s statistics. Unfair labour practice (ULP) complaints, which represent approximately 40% or more of incoming matters in any given year, and are an indicator of the labour relations climate, are down by almost 40% on average in the last two fiscal years (representing 96 fewer complaints per year) compared to the previous five years. Excluding duty of fair representation (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 would be much more pronounced at 90%. There were also significantly fewer applications for reconsiderations (-68%).

With respect to the disposition of matters, while 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—its rate of disposition is expected to decline to 684 matters in 2007–08 (see Chart 1).

Notwithstanding the lower level of matter disposition, the number of pending matters is projected to fall to 611 by the end of 2007–08 (see Chart 1), the lowest level since 1997–98.

2.1.2 Complex Cases

The CIRB’s workload continues to be largely affected by the greater incidence of more complex matters as a result of the changes to the Code. Complex cases, which typically involve numerous sections of the Code as well as Charter issues, are both lengthier to process and require more of the Board’s resources for their disposition. Table 1 indicates that complex cases have generally accounted for 90 or more matters disposed a year over the last five fiscal years, and are expected to represent 94 matters in 2007–08 or close to 14% of all disposed cases.

Table 1–Number of Complex Matters Disposed

	2003–2004	2004–2005	2005–2006	2006–2007	2007–2008*
Review of Bargaining Unit Structure	17	21	19	9	24
Single Employer	12	20	20	13	18
Sale of Business	33	34	34	25	38
Maintenance of Activities	28	19	23	16	14
Total	90	94	96	63	94

* Projection based on the first eight months (April to November 2007).

2.1.3 Expedited Matters

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 unfair labour practice complaints alleging the use of replacement workers or dismissals 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. Scheduling pressures, consequent upon the volume and priority setting, can make very lengthy or complex matters—the kind of matters that are now typically scheduled for oral hearing at the Board—difficult to resolve expeditiously.

Chart 2 sets out the volume of expedited matters and certifications from 2003–04 to 2007–08.

2.1.4 Written Decisions

Another factor affecting the CIRB’s adjudicative output has been the increased emphasis on providing detailed written Reasons for decision. Uncertainties resulting from the new legislative provisions introduced in 1999, and the lack of jurisprudence in interpreting and applying them, have resulted in a situation where parties have been more prone to litigate many contentious matters. Furthermore, the disposition of more complex cases, which have increased as noted earlier, also frequently require more detailed decisions given their nature¹.

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, thereby 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 Board jurisprudence. These decisions serve both to resolve the issues relevant to complex circumstances and to clarify the way the Code will apply in evolving circumstances. In this respect, the Board strives to provide timely, good, consistent and legally sound decisions in order to establish strong and clear jurisprudence, which in turn should reduce the likelihood of demands for reconsideration, as well as reducing the likelihood of applications to the Federal Court of Appeal for judicial review.

The Board’s experience in issuing Reasons for decision and letter decisions in the last five fiscal years is reflected in Chart 3. On average, the CIRB has issued 37 of the more detailed Reasons for decision each year over the last five years, and 190 letter decisions, for a total of 226 written decisions on average. In 2007–08, the Board is expected to produce 196 letter decisions and 23 Reasons for decision. The balance of matters are either settled, withdrawn or disposed of by orders.

2.1.5 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, improved internal audit and evaluation functions, and the Management, Resources and Results Structure 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 undertake and develop initiatives. Consequently, resources that are directed towards these initiatives are usually taken from existing operational budgets, thereby reducing capacity to meet service delivery pressures.

2.2 Plans and Priorities

The Canada Industrial Relations Board has one key program activity—to administer and interpret Part I (Industrial Relations) and certain provisions of Part II (Occupational Health and Safety) of the Canada Labour Code.

By carrying out this activity, the Board fulfills its sole strategic outcome which, as stated in section 1.6, 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.

2.2.1 Program Priorities

The Board’s foremost priority remains the efficient and effective delivery of its statutory mandate as set out in the Canada Labour Code, while being both transparent and accountable in its decision-making process. All other priorities are discretionary and dependent on whether it has the necessary resources to carry them out.

Within this context, however, the main priority for the Board in the upcoming years continues to be the improvement of the timeliness of its decisions, and in particular, the significant reduction of 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, the operational and case management processes used in delivering its services. The aim of these reviews will be 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 exact nature of these reviews remains to be determined with the newly appointed Chairperson and with the yet to be appointed Executive Director (the two most senior positions at the Board).

Duty of Fair Representation Complaints
One of the reviews that has been undertaken in the last two years, following consultations with stakeholders, concerns its case processing practices with respect to duty of fair representation complaints (DFR). These are complaints made by a member alleging that his/her union has acted in manner that is arbitrary, discriminatory or in bad faith. Because DFR complaints are not usually the type of matters that require urgent attention, they are often deferred in favour of other more important matters. However, the number of DFR complaints is significant and they thus have an important impact on the Board’s overall processing performance and backlog of cases. Indeed, DFR complaints represent almost 23% of all applications/complaints received in the last five fiscal years, and since they are more likely to be deferred, they represent only 20% of disposed matters. As a result, the number of pending DFR complaints has steadily grown in the last five years and represents 244 (40%) of the 611 pending matters that are expected to remain unresolved at the end of 2007–08.

A new more expeditious process for handling DFR complaints was developed and implemented in early 2006. Subsequent experience revealed issues that needed to be reconsidered, and additional refinements will be made in early 2008. However, DFR complaints continue to absorb a significant proportion of the Board’s resources.

Client Consultations
Formal and informal consultations with clients continue to be important for the CIRB. A client consultation committee is in place and has been particularly helpful in recent years. In particular, these client consultations have contributed to the identification of specific case management process reviews that have been undertaken in the last two to three years. The structure and mandate of the client consultation committee will be reviewed by the Chairperson and Executive Director in early 2008–09.

2.2.2 Management Priorities

Modern Management Agenda
The Board is committed to continually improving its management framework and infrastructure in order to effectively support its legislative mandate, ensure accountability and set out a shared vision of expected results.

At the top of the list of priorities related to management initiatives in the new fiscal year is the review of the Board’s Management, Resources and Results Structure (MRRS), and in particular, its performance measurement framework. Although the Board currently tracks many operational performance indicators, which are reported upon in the Board’s annual Departmental Performance Report (DPR), the MRRS policy requires a performance measurement framework that clearly links resources to expected results, outputs and the Board’s strategic outcome. Although the Board already possesses all of the elements required to meet this requirement, it needs to consolidate them in a tightly knitted framework that meets the new MRRS policy.

The Board’s modern management agenda for the upcoming year also includes the continued improvement of its revamped strategic and operational planning cycle, including the integration of human resources planning into the cycle. The latter will identify key risks, challenges, and key actions to be taken in this area, and will address the human resources needs and capacity of the CIRB to deliver on its plans and priorities. Together, these elements should foster an improved mutual understanding of the CIRB’s direction between its staff, management and Board members.

Human Resources
The CIRB has a number of strategic priorities with regard to human resources. As mentioned above, these include continuing the development and implementation of the human resources plan, of a Performance Planning and Review Framework, of a Learning Framework and of a Succession Planning Framework.

The Board is also continuing to fine tune 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. Succession planning and employee retention are at the heart of the action plan, 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.

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 locale for some time, due to non-renewal of the lease. Some details still need to be worked out but, barring unforeseen circumstances, the move will be completed in 2008–09. Public Works has advised the Board that leases for its Headquarters office in Ottawa 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, the latter in mid 2008–09, and the former possibly in 2009–10.

Information Technology
Our plans and efforts are to continue the implementation of the MITS initiative introduced by Treasury Board, which aims at ensuring the security of information and information technology at the CIRB, and to improve the overall effectiveness of the Board’s information technology apparatus. In this respect, the Board continues with its internal initiatives to improve the way it manages and shares information, and to communicate more effectively in order to better serve its clients.

The main elements of this initiative are:

• The continued enhancement of the Case Management System, the Board’s core business system, particularly with respect to reporting;
• The implementation of secure remote access (SRA) 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 discussions with major client groups was agreement on the development and dissemination of information circulars and 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. Practice notes and 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 encourage pre-hearing procedures that reduce the 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 and practice notes will be an ongoing process.

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