CIRB Newslink–June 2012

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Message from the Chairperson

I am pleased to present our fifth semi-annual newsletter and reaffirm my commitment to keeping the federally regulated labour relations community informed of the performance and initiatives of the Board.

I also welcome the opportunity to share encouraging results achieved through our continuing efforts to streamline our processes and assist parties in resolving issues constructively. Considerable progress has been achieved over the last four years in reducing the backlog of pending cases and improving average case disposition time. The time required to process a file—which includes opening, investigating, mediating, hearing, and deciding a case—continues to be a critical focus for the Board, in particular with respect to the applications for certification, where the average case disposition time has dropped by more than 50% from just two years ago. The current rate of disposition has allowed the Board to reduce the number of pending matters to fewer than 400 cases, its lowest level in over 25 years. In addition, it should be noted that only 9% of those cases have been pending for more than 24 months; and of this number, 20% are matters that have been put in abeyance at the request of the parties themselves. This is a significant improvement from just four years ago, when approximately 25% of cases had remained unresolved for more than two years.

In this issue of Newslink, you will also find information on recent Board and Federal Court decisions of note.

I trust that you continue to find this newsletter helpful and informative, and invite you to provide us with your comments or suggestions for our next issues.

Elizabeth MacPherson

New Board Member

Robert Monette, Member

The Governor-in-Council recently appointed Mr. Robert Monette as a full-time member of the Board, serving as an employer representative. Mr. Monette has specialized in labour law matters since 1972 and over the course of his career, has represented many key Canadian employers. He retired from full-time law practice in 2009, and until his appointment, remained actively involved in federal labour matters as a senior counsel with Norton Rose LLP.




Performance Results at Fiscal Year End (March 31, 2012)

The number of incoming matters over the last fical year has remained relatively constant despite the economic challenges that Canada is facing and the ensuing uncertainty that this creates for businesses and their employees. In the last year, the Board maintained its rate of disposition, and the pending caseload is at its lowest level in over two decades.

Chart - Applications/Complaints Received 2011–12

text version

New Responsibilities for the CIRB

The federal government’s 2012 Budget Implementation Act contains amendments to the Status of the Artist Act that will, once proclaimed in force, make the Canada Industrial Relations Board the tribunal responsible for administering Part II of that Act. As a result, the CIRB will take on all the duties and responsibilities formerly performed by the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT).

The Status of the Artist Act establishes a framework for the conduct of professional relations between independent professional artists and producers within the federal jurisdiction. The Act guarantees the right of artists to join associations that can represent their professional interests and the right to bargain collectively with producers for the purpose of reaching agreement on the minimum terms and conditions under which an artist will provide services to those producers. The Act also permits producers to form associations for the purposes of bargaining and entering into scale agreements. Although scale agreements set the minimum terms and conditions applicable in a particular artistic sector, artists are still free to negotiate individual contracts that provide more favourable rights and benefits.

Officials of the CIRB and CAPPRT have begun the work necessary to ensure a seamless transition for the communities they serve.

Launch of a New Platform for the Publication of CIRB Decisions

The CIRB is pleased to announce that its new platform for the publication of its decisions was launched on June 22. This improved platform makes it easier for clients to access and research Board decisions, and provides advanced search and navigation functions.

Users are now able to find a decision by launching a full-text search or by using a tool to search by the official citation, file number or author of a decision.

The decisions are now available in two formats (HTML and PDF), which will provide for better accessibility.

We invite you to visit our Website and follow the links to “Decisions.”

Recent CIRB Cases–Summary Notes

Buenaventura Jr. v. Telecommunications Workers Union, 2012 FCA 69

Federal Court of Appeal confirms that reconsideration power of the Board is not a statutory appeal process

The Federal Court of Appeal dismissed an application for judicial review filed by a group of employees of TELUS with respect to the Board’s decision in Torres, 2010 CIRB 526. In that decision, the Board refused to extend the time limit for the complainants to file a duty of fair representation complaint against the Telecommunications Workers Union (TWU) and dismissed the complaint.

On judicial review, the applicants argued that it was unreasonable for the Board not to consider the fact that they were unrepresented for most of the nine months it took them to file the complaint, which led to some difficulties in assembling the information needed and in appreciating the Board’s procedures for dealing with a multiplicity of complaints. Among a number of arguments, the TWU took the position that the Court should refuse to consider the application for judicial review because the applicants had not requested the Board to reconsider its original decision. It argued that the Board’s reconsideration process is an adequate alternate remedy, which the applicants should have exhausted before filing the application for judicial review.

The Board exercised its right under section 22(1.1) of the Canada Labour Code to make submissions to the Court on the issue of adequate alternate remedy. It was the Board’s position that its reconsideration process is not a statutory appeal process and that failure to seek reconsideration is not an impediment to judicial review.

The Court confirmed that the failure of a party to invoke the reconsideration process is not necessarily fatal to a judicial review application. The Court also confirmed that the Board’s reconsideration process is not a statutory appeal process. The Board’s jurisprudence shows a consistent adherence to the principle that its decisions are final and that reconsideration is the exception rather than the norm. As such, the Board’s reconsideration power is not an adequate alternate remedy.

The Court dismissed the application for judicial review on its merits. It concluded that it was reasonable for the Board to refuse to extend the time limit for the duty of fair representation complaint given the policy considerations for the statutory time limit. It also noted that laypersons should be held to the same standard as unions and employers.

Turnaround Couriers Inc. v. Canadian Union of Postal Workers, 2012 FCA 36

Federal Court of Appeal finds that local courier companies are not a “postal service”

The Federal Court of Appeal has determined that bicycle and pedestrian couriers delivering time-sensitive letters and packages exclusively within the city of Toronto are not providing a postal service and thus are within the constitutional jurisdiction of the provincial labour relations board. The constitutional question arose from an application for judicial review filed by the employer to set aside a decision of the CIRB (TurnAround Couriers Inc., 2010 CIRB 544). In that decision, the CIRB had held that TurnAround was providing a postal service within the meaning of section 91(5) of the Constitution Act, 1867, and that its operations therefore fell within federal jurisdiction. As a result, the CIRB determined that it had jurisdiction under the Canada Labour Code to certify the Canadian Union of Postal Workers as the bargaining agent for TurnAround’s couriers.

On judicial review, the Court determined that TurnAround’s operations did not constitute a “postal service” for the purpose of the Constitution Act, 1867. The Court was of the view that “postal service” in the Constitution Act refers to the national delivery system, which is currently either operated directly by the Canada Post Corporation or managed by it through contracts with other entities. The Court concluded that TurnAround Couriers Inc. was a local undertaking and was thus within provincial jurisdiction. It granted the application for judicial review and set aside the CIRB’s decision and certification order.

Spragg, 2011 CIRB 610

Board finds union breached its duty of fair representation when it agreed to remove rights in collective agreement applicable to a specific group of employees in the bargaining unit

The Board was seized of a duty of fair representation complaint filed against the London Technical Employee Association (the union) by nine home entertainment specialists (the HES technicians) working for Rogers Cable Communications Inc. (the employer). The complainants alleged that the union had acted in an arbitrary and bad faith manner by failing to bargain on behalf of the HES technicians and by agreeing to remove all reference to them in the new collective agreement.

The union did not pursue any demands on behalf of the HES technicians during the round of collective bargaining that took place following certification. Consequently, the collective agreement that was negotiated did not contain any of the references to the HES technicians that had been contained in the previous collective agreement.

The Board found that the union made a conscious decision during bargaining that, despite its certification order, it did not wish to represent the HES technicians. Rather than taking steps to remove itself as the exclusive bargaining agent for these employees, it simply abandoned them. The Board found that, not only did the union fail to advance the interests of the HES technicians during bargaining, it actively participated in depriving them of the few rights that they did have under the previous collective agreement. The Board found no evidence that the union endeavored to maintain the existing terms and conditions of employment for the HES technicians, let alone to improve them. On the contrary, the union ensured that all mention of the HES technicians was removed from the collective agreement, with no reasonable explanation.

The Board found no evidence that the union’s decision was taken in bad faith, but concluded that it was arbitrary and discriminatory, and therefore breached the duty of fair representation that the union owed the HES technicians, in violation of section 37 of the Canada Labour Code.

As remedy for the union’s violation of the Code, the Board directed the union to meet with the employer for the purpose of negotiating appropriate amendments to the collective agreement to include the HES technicians.

Comings and Goings

Appointment of New Regional Director of Ontario Region

Natalie Zawadowsky

Natalie Zawadowsky was appointed Regional Director of the Ontario Region on December 29, 2011. Natalie had worked as an Industrial Relations Officer with the CIRB since 2009. Prior to joining the Board, she worked with the Federal Mediation and Conciliation Service, the Ontario Human Rights Commission and with Lang Michener LLP in Toronto. She holds a Bachelor of Arts degree (Psychology) from Queen’s University and a Bachelor of Laws degree from the University of Toronto.

The Board congratulates Natalie on her appointment and is confident that she will ensure the highest quality of services to the client community.

Resignation

After two and a half years as an employer-side representative member, Mr. David Olsen has resigned from the Board in order to accept a position as Vice-Chair of the Public Service Labour Relations Board. Our loss is the PSLRB’s gain, and we wish Mr. Olsen every success in his new position.

Changes Within the Atlantic Regional Office

David Gooch, Senior Industrial Relations Officer, is retiring from the public service after five years with the CIRB. David worked as an Aircraft Avionics Technician and then as a National Business Representative with the International Association of Machinists and Aerospace Workers prior to joining the Atlantic Region of the CIRB on March 5, 2007, as an Industrial Relations Officer. We thank David for his dedication to the work of the CIRB and wish him a long and healthy retirement.

Caroline Mann joined the Atlantic office of the CIRB on January 9, 2012, as an Industrial Relations Officer following her successful experience as both an intern and then as a Conciliation/Mediation Officer with the Federal Mediation and Conciliation Service. Caroline holds a Bachelor of Arts degree (History and Political Science) from the University of New Brunswick and a Master of Arts degree (History) from Dalhousie University. Throughout her university studies, she was employed by the federal government as both a Senior Student Employment Officer and a Student Employment Counsellor. We welcome Caroline and wish her great success in her role.

Upcoming Events

  • The CIRB is pleased to participate again this year in the planning and organizing of the Association of Labour Relations Agencies’ annual conference. ALRA is a US-Canadian association of provincial and federal labour relations boards, mediation agencies and labour departments. Advocates’ Day is part of ALRA’s annual conference. It is a unique program which brings together labour officials, labour and management representatives, public and private sector managers and labour relations neutrals from across the United States and Canada to hear national and regional speakers discussing key issues of the day.
  • Advocates’ Day will be held on July 30, 2012, at the Hyatt Regency hotel in Montréal. For more information and registration details, visit http://www.alra.org/.
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