CIRB Newslink–Winter 2013

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Message from the Chairperson

As the end of the year approaches, I wish to take this opportunity to share with the community some information related to the Board’s performance results of the last year. I continue to be very proud of the work being done by all of the Board’s staff, members and vice-chairs. Although the number of incoming matters has decreased over the past year, the Board has continued to dispose of more matters than it receives and as a result, the number of pending matters is now well below 300. This year, we have seen a slight increase in the Board’s average processing time when compared to last year however, it remains well below the level it was at just five years ago when the average processing time was at 312 days. You will find more detailed performance information elsewhere in this issue of the CIRB Newslink.

Also this year, we co-hosted the 2013 National Industrial Relations Conference with our colleagues from the Federal Mediation and Conciliation Service. I was pleased to see a large participation from the labour relations community at the Conference and all-round excellent discussions and debate about the issues and challenges of the day. The success of the conference is truly a reflection of the vibrant labour relations environment in the federal jurisdiction and it is clear to me that there remains a critical need for such fora, where representatives of employers and unions develop and solidify relationships that ultimately result in more productive and harmonious workplaces. Planning has already begun for the 2015 Conference and I trust that members of our community will continue to support and participate in this very important initiative.

Finally, I indicated in our last issue of the NewsLink that the CIRB had conducted a review of the procedural regulations under the Status of the Artist Act and was engaged in consultations with the artistic community to obtain their views on proposed amendments to those regulations. I am pleased to report that the consultations are now completed and that we are in the process of drafting the amendments, taking into consideration the comments received during our consultation meetings with the community. It is our hope to have the new regulations in place by April 2014.

Please accept my very best wishes for a safe holiday season and a happy and healthy 2014.

Elizabeth MacPherson

Client Satisfaction Survey

The Board will be conducting a survey of labour and management representatives, counsel and individuals that had active matters before the Board over the last two years.

The Board has retained the services of the polling firm EKOS to assist it with the development and conduct of the survey. It is expected that the field survey will begin in February 2014.

We hope that you will participate in the survey and provide the Board with honest and helpful feedback on how to improve its services and approach to case management.

CIRB Performance

During the last fiscal year, there was a 19% decline in the volume of matters filed with the Board. This represents not only a decrease from the number of applications filed in the previous fiscal year, but also the lowest number of applications filed in the past five years. The Board continues to dispose of more matters than it receives, thereby lowering the number of pending matters to historic lows.

Chart 1-Volume of Matters

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Chart 2-Matters awaiting determination

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A quick glance at the types of matters filed before the Board in 2012–13 shows that certification applications and applications for reconsideration have decreased by almost half when compared to the previous year. However, the number of duty of fair representation complaints has largely remained constant and now represents a higher proportion of the Board’s overall workload.

Applications/Complaints Received 2012–13

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The decline in workload has presented an opportunity for the Board to further improve its average processing time, reducing it to 168 days in 2012–13 from 221 days in the previous fiscal year. However, in the current year, we see a slight increase in the average processing time, something the Board will monitor closely for the remainder of the year. Additionally, this past year proved to be the best since the 2009–10 fiscal years for resolving matters within a one-year period, with 89% of all matters received being processed within one year of receipt.

Recent CIRB Cases–Summary Notes

Ford, 2013 CIRB 682
Section 110–Obligation of Trade Union to Provide Financial Statements–Scope of Obligation

In considering a complaint by a union member alleging a violation of section 110 of the Code, the Board found that a full forensic accounting is not a “financial statement” within the meaning of section 110 of the Code, and was thus beyond the scope of a trade union’s obligation.

This decision dealt with a complaint brought by a member of the International Longshore and Warehouse Union, Local 502, alleging that his union had failed to comply with his request for a copy of the trade union’s financial statements, in violation of section 110 of the Code. Specifically, the complainant asked the union to produce, among many other documents, “the full forensic accounting from 2009 to date, as per section 110 of the Canada Labour Code.”

These types of complaints are somewhat unusual and infrequent. Interestingly, the Board found that, in this case, the complainant had ulterior motives for bringing the complaint and was using the Board’s process as a means of obtaining production of the full forensic accounting for purposes of the civil litigation ongoing between the complainant and the union.

The Board confirmed that a financial statement is simply a statement of the net assets and a summary of income and expenses of an operating entity. It must be sufficiently detailed to disclose accurately the financial condition and operations of the organization. One prepared by a reputable accounting firm would satisfy the minimum requirements of the Code. The Board went on to find, however, that the full forensic accounting requested by the complainant went far beyond the type of financial statement that the Code requires the union to provide and that the union was not obliged to produce it. Any further financial information in the way of supporting details or justifications of expenditures are matters that may be dealt with internally through the union’s constitution or by-laws. The Board further confirmed that the obligation is limited to providing a financial statement for the most recent fiscal year, and not for any prior years.

Having found that the union had provided the complainant with a copy of an audited financial statement for the 2012 fiscal year, the Board found no violation of section 110 of the Code and dismissed the complaint.

Canada Post Corporation, 2013 CIRB 690
Constitutional Jurisdiction–Postal Outlets in Drug Store

The Board found that it did not have constitutional jurisdiction to rule on an application for certification of a group of employees working in postal outlets of drug store franchises of Pharmaprix.

In this decision, the Board had before it five applications for certification filed by the Canadian Union of Postal Workers (the union) covering the employees working at postal outlets of 28 drug store franchises (the franchisees) of Pharmaprix.

The union alleged that the Canada Post Corporation (the CPC) was the true employer of the employees affected by these applications or, alternatively, that the CPC, Pharmaprix and the franchisees (the respondents) constituted a single employer pursuant to section 35 of the Code. The respondents presented many preliminary objections, including the issue of the Board’s constitutional jurisdiction.

The Board ruled that it could not determine the issue of constitutional jurisdiction without identifying the true employer of the postal outlet employees covered by the certification applications. In the Board’s view, the two issues were closely related and had to be considered together. In view of the significance of the evidence to be adduced regarding the issue of the true employer in the five files, the Board decided that it would begin by hearing the evidence in only one of the five certification files. The other four files were accordingly placed in abeyance.

The Board first found that the operations of the franchisees’ postal outlets in the five certification files were an integral part of the operation of the CPC’s national network, therefore within federal jurisdiction, and that the postal outlets’ operations, when isolated, could be subject to derivative federal jurisdiction.

The Board then conducted a review of the true employer, in one of the five files, in order to determine the “going concern” to be considered from a constitutional perspective. The Board found that the franchisees were the true employers of the postal outlet employees in this file.

In light of the principles established by the SCC in Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23, and after having considered the essential operational nature of the drug store franchises, the Board found that it did not have constitutional jurisdiction to rule on the application for certification in this file. In fact, the federal operations carried out in the franchisees’ postal outlets represented but a small portion of their normal and habitual activities, which are those of a drug store and a retail business under provincial jurisdiction. Furthermore, the postal outlet operations were not severable from the other franchisees’ local operations, and the employees who performed those federal operations did not form a discrete unit that can be constitutionally characterized.

The Board dismissed the union’s application for certification in the lead file, and asked the union to send additional written submissions concerning the alternative application for a single employer declaration. The Board also asked that the union advise it as to whether or not it planned to provide any different evidence in regard to the other four certification files, which had been held in abeyance.

A judicial review of this decision is presently before the Federal Court of Appeal.

Comings and Goings

The Board regrets to announce that John Bowman’s term as a union-side representative member has ended. John was first appointed to the Board in November 2007 and his term was renewed for a second three-year mandate in 2010. John will complete his duties in respect of those proceedings that are continuing and to which he was assigned as a member. Board members and staff would like to extend their best wishes to Mr. Bowman in his future endeavours.

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