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

The following section describes the Canada Industrial Relations Board’s primary program activity and identifies its expected results, performance indicators and targets. The section then provides a summary of the Board’s operating environment and concludes with the Board’s planning highlights.

2.1 Strategic Outcome and Program Activity

The Canada Industrial Relations Board has only one key operational program activity—the Adjudication and Dispute Resolution Program. 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 Canada Labour 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 essential services; the exercise of ancillary remedial authority; 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 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.

The second activity of the Board, which would not exist without the first, is simply to provide the internal support required to carry out the Board’s primary program. Information on both activities is provided in the tables below.

Strategic Outcome: Resolution of labour relations issues in sectors regulated by the Canada Labour Code in a timely, fair and consistent manner.

Program Activity 1: Adjudicative and Dispute Resolution Program

Human Resources (FTEs) and Planned Spending ($ thousands)
2009–10		2010–11		2011–12
FTEs	Planned Spending	FTEs	Planned Spending	FTEs	Planned Spending
80	9,188	80	9,188	80	9,188

Program Activity Expected Results	Performance Indicators	Targets
Labour relations issues are resolved in a timely, fair and consistent manner	Average case processing time Average decision-making time Percentage of CIRB decisions upheld in Federal Court Percentage of applications for reconsideration of original CIRB decisions	50 days or less for certification applications that do not require a vote 90 days or less 100% Less than 10%

Program Activity 2: Internal Services

Human Resources (FTEs) and Planned Spending ($ thousands)
2009–10		2010–11		2011–12
FTEs	Planned Spending	FTEs	Planned Spending	FTEs	Planned Spending
30	3,399	30	3,399	30	3,399

2.2 Operating Environment

The Canadian labour relations environment has faced many challenges in recent years, and the current economic environment indicates that it will continue to do so in the foreseeable future. The globalization of markets, corporate mergers and restructuring, and the pace of technological change has resulted in heightened competition, 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 increased considerably since the summer of 2008, as a result of the severe international financial crisis and the ensuing economic recession that has gripped western economies, particularly the United States, Canada’s largest trading partner.

On the national front, although the labour market had been relatively tight, with unemployment rates at their lowest levels in thirty years by early summer 2008, there has since been an increasing number of announced lay-offs and/or plant shutdowns. Statistics Canada reported that the Canadian economy lost 71,000 jobs in November 2008², the steepest slide since 1982, which reinforces the prediction of a noteworthy rise in the unemployment rate in the coming year by many economic forecasters.

² Statistics Canada, Labour Force Survey, November 2008

The anticipated depth of the recession is leading employers to seek aggressive cost cuts and will change union bargaining strategies in the year ahead, with many private sector unions shifting their key focus from wage and benefit growth to saving jobs. This is a significant change from previous years, when good economic times and fears of labour shortages lead to better bargaining outcomes from a worker’s point of view. Nevertheless, while the industrial relations climate is generally expected to be tense in the near future, few expect a significant increase in work stoppages, at least in the private sector.

In the federally regulated sectors, 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 screening at airports, have been commercialized. In particular, the phenomenal volatility in the price of oil is adversely affecting the transportation industry, while the granting of new wireless spectrum by the Canadian Radio-television and Telecommunications Commission, in the summer of 2008, should result in new service providers and increase competition in the wireless industry. 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.

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 unfair labour practice complaints as a result of difficulties at the bargaining table, as well as more applications related to corporate restructuring or sale of business.

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;
• 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.

2.2.1 Volume of Matters

After an initial spike in caseload levels in the years following the 1999 amendments to the Code, which widened the scope of matters that the CIRB could hear, the number of applications/complaints received has steadily declined over the last four 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 678 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 634 in 2006–07, 632 in 2007–08 and 626 in 2008–09—the lowest level in the last twenty-five years.

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. A notable exception, however, is that the number of applications for reconsideration and for revocation of certification are expected to increase in 2008–09 and should reach levels comparable to those seen in the early 2000’s.

The reasons for the decline in the number of applications/complaints received by the Board are undoubtedly 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 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 these provisions. Another contributing factor in the recent decline of incoming matters is, until lately, the state of the economy and of the federally regulated sector. The Canadian economy had been doing quite well in the last few years, with a relatively robust rate of growth and an unemployment rate at a level that had not been seen for thirty or more years. At the federal level, the wave of major consolidations and restructuring of the early 2000’s, particularly in air transport and telecommunications sectors, has subsided. This has translated in fewer frictions on the industrial relations front, which can be seen by a lower incidence of strikes and lockouts and by a trend to longer-term collective agreements and 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% of incoming matters in any given year, and are an indicator of the labour relations climate, are down almost 28% on average, in the 2006–07 to 2008–09 period (representing 97 fewer complaints per year), compared to the previous five fiscal years. 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 at 44% (representing 76 fewer complaints per year).

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 2000’s, and is expected to resolve 843 matters in 2008–09 (see Chart 1). As a result, the number of pending cases is expected to drop to 370 at the end of March 2009, more than 200 fewer than the previous year (see Chart 1), and the lowest level since 1985–86.

* Projection based on the first eight months (April to November 2008)

2.2.2 Complex Matters

The CIRB’s workload and disposition rate continues to be largely 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. Table 1 indicates that complex cases have generally accounted for 90 or more of the number of matters disposed 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 are expected to represent 52 of the 97 complex matters resolved in 2008–09, considerably more than in previous years.

Table 1-Number of Complex Matters Disposed

	2004–2005	2005–2006	2006–2007	2007–2008	2008–2009*
Review of Bargaining Unit Structure	21	19	9	18	18
Single Employer	20	20	13	16	12
Sale of Business	34	34	25	32	52
Maintenance of Activities	19	23	16	41	15
Total	94	96	63	107	97

* Projection based on the first eight months (April to November 2008)

2.2.3 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 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.

Chart 2 sets out the volume of expedited matters and certifications from 2004–05 to 2008–09.

* Projection based on the first eight months (April to November 2008)

2.2.4 Written Decisions

Another factor affecting the CIRB’s adjudicative output has been the need to issue detailed written reasons for its decisions. Uncertainties resulting from the legislative provisions introduced in 1999, and the lack of jurisprudence in applying them, resulted in a situation where parties were more prone to litigate contentious matters. Furthermore, the disposition of complex cases, as noted earlier, also frequently requires more detailed reasons for decision, given their nature.

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 parties. 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, 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 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 34 of the more detailed Reasons for decision each year over the last five years, and 216 letter decisions, for a total of 250 written decisions on average. This output will increase significantly in 2008–09, as the Board is expected to produce 35 Reasons for Decisions and 341 letter decisions, for a total of 376 written decisions. The balance of matters are either resolved, 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.

* Projection based on the first eight months (April to November 2008)

2.2.5 Challenges

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 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.

2.3 Planning Highlights

The Canada Industrial Relations Board has only one key operational program activity—the Adjudication and Dispute Resolution Program. By carrying out this activity, the Board fulfills its sole strategic outcome, which, as stated in section 1.2, is the resolution of labour relations issues in sectors regulated by the Canada Labour Code in a timely, fair and consistent manner. In achieving this strategic outcome, the CIRB provides effective industrial relations solutions for the Canadian labour relations community.

2.3.1 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 having 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 significant reduction of the number of backlog cases that has persisted over the last few years, and improvement in the timeliness of its decisions.

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 and case management processes, 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 limited adjudicative capacity.

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). Although DFRs are not usually the type of matters that require priority attention—they are 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. Indeed, DFRs typically represent approximately 24% of all applications/complaints received in any given year, and since they were more likely to be deferred, they only represented about 20% of disposed matters. As a result, the number of pending DFR complaints had steadily grown since 2000 and accounted for 235 (40%) of the 587 pending matters at the end of 2007–08.

New procedures for handling DFRs were put into place on January 1, 2006, and although they have had some success in meeting their original goal, questions had been raised as to their long-term applicability. As a result, the Board again reviewed the handling of DFR complaints and instituted revised procedures as of March 1, 2008. In addition to the revised procedures, the Board made a sustained effort to lower the backlog of DFRs in 2008–09. Together, these measures appear to have had a noticeable impact, as the number of backlog DFR complaints is expected to be halved by the end of 2008–09, and will represent 28% of all pending matters, down from 40% the previous year. Nevertheless, the CIRB will continue to monitor the effectiveness of the revised DFR process to ensure that the effects are enduring.

Client Consultations
Formal and informal consultations with clients continue to be important for the CIRB. A client consultation workgroup is in place and has been particularly useful in recent years. In particular, these client consultations have contributed to the determination of specific case management process reviews that have been undertaken in the last few years. The CIRB will be meeting regularly with the client community in 2009–10 to further discuss various actions the Board may take to meet its priority of reducing its case processing and disposition time.

2.3.2 Management Priorities

The Board is committed to continually improving its management framework and infrastructure, which supports its legislative mandate, ensures accountability and sets out a shared vision of expected results, and has actively embarked on a number of modern management initiatives.

Modern Management Agenda
At the top of the list of priorities with respect to management initiatives in the new fiscal year is the review of the Board’s evaluation under Round VI of the Management Accountability Framework (MAF), which will conclude in March 2009. The MAF sets out the Treasury Board’s expectations of government departments and agencies for good public service management covering 21 areas of management. Small agencies like the CIRB are evaluated and rated every three years. Once the evaluation results of Round VI are available, the Board will review the ratings and prepare an action plan, which will address any weaknesses that may be identified.

The Board’s modern management agenda for the upcoming year also includes the continued improvement upon its revamped strategic and operational planning cycle, including improving the integration of its human resources planning into the cycle. The latter should identify key risks, challenges and key actions to be taken in this area, and should 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 by its staff, management and Board members.

Human Resources
The CIRB also has a number of strategic and operational priorities with regards to human resources in 2009–10. These are to:

• review and continue the implementation of its integrated human resources plan;
• analyse the results of the 2008 Public Service Employee Survey, which are expected early in 2009–10, determine if progress was made since the 2005 Survey, and establish an action plan accordingly;
• implement a new Award and Recognition Policy;
• develop a succession plan;
• develop a learning and developmental plan for generic jobs;
• review the work flow and structure of the operations of the CIRB to ensure maximum efficiency.

2.3.3 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.

Applications for Reconsideration
Applications for reconsideration are applications by a party to a previously resolved application or complaint requesting a review of the decision. While there are no formal plans to review the processing of this type of application at this time, the Board is concerned that their incidence has increased noticeably in 2008–09. If this continues into 2009–10, the Board will need to assess the reason for this increase, and to ensure that it is not a result of the new expedited duty of fair representation process mentioned in section 2.3.1.

Regulations
Section 15 of the Canada Labour Code empowers the Board to make regulations to ensure the proper performance of its duties, including case handling procedures. The CIRB plans to conduct a full review of its internal operating procedures over the next two fiscal years, to identify measures that are likely to contribute to more constructive labour management relations. This will undoubtedly lead to revisions of the Board Regulations over this period.

Information Technology
Our plans and efforts are to continue the implementation of the MITS initiative introduced by the Treasury Board, which aims at ensuring the security of information and information technology (IT) 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 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 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;
• the active investigation of introducing electronic means of doing business.

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. 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. The development and improvement of information circulars or practice notes will be ongoing in 2009–10.

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