CIRB Newslink–Summer 2014

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Message from the Chairperson

I am pleased to share our summer edition of the Canada Industrial Relations Board's news bulletin. As the landscape is changing around us, I want to take this opportunity to inform you of the latest developments impacting the Board and its employees.

The Budget Implementation Act (Bill C-31 that was tabled in Parliament in March 2014) contained provisions creating a new organization—the Administrative Tribunals Support Service of Canada (ATSSC). The purpose of this initiative is to centralize and coordinate the provision of support services to eleven administrative tribunals, including the Canada Industrial Relations Board. This statute received Royal Assent on June 19, 2014, and the coming into force date will be set by order of the Governor in Council, but we expect that the new organization will begin operations in early November 2014.

Once the legislation is proclaimed in force, all staff currently employed by the tribunals involved, as well as related resources, will transfer to the ATSSC. The headquarters of this new organization will be in the National Capital Region, but the Board's current regional offices will also be part of the new organization. The ATSSC will be headed by a Chief Administrator who will have full authority to manage the organization. A main goal for creating the ATSSC is to better meet the administrative needs of small tribunals. The new, larger organization will pool resources from smaller entities, which will strengthen the overall capacity to support the tribunals, with the goal of improving access to justice for Canadians. The initiative is consistent with the government's ongoing commitment to improve the effectiveness and efficiency of its administration and operations.

The ATSSC will focus on providing the support that these tribunals need to do their work, but will not be involved in decision-making. Therefore, its creation should in no way diminish the independence of the tribunals. Nor will it affect the status of tribunal members. While the ATSSC will be part of the Justice portfolio, all tribunals will remain in their current ministerial portfolios. I am also very pleased to advise you that Ginette Brazeau will remain the Executive Director and General Counsel for the CIRB, and will continue to ensure the highest quality of services to the Board members and to the labour relations community.

The results of the client survey that was conducted by the Board earlier this year have now been tabulated in a comprehensive report that is posted on our website. I was very pleased to see that clients have expressed high levels of satisfaction across virtually all the areas examined, from case processing and management, to mediation assistance by industrial relations officers as well as the conduct of hearings. It certainly establishes a benchmark against which the Board will be able to assess the delivery of its services on an ongoing basis. I wish to express my sincere gratitude to those who took the time to participate in the survey.

Finally, the new Status of the Artist Act Procedural Regulations have now been adopted and published in the Canada Gazette. Over the past year, the CIRB had undertaken an in-depth review of the Canadian Artists and Producers Professional Relations Tribunal Procedural Regulations (SOR/2003-343), with a view to adopting new Regulations aligned with the current policies, procedures and practices of the CIRB, while taking into account the unique circumstances of the cultural sector. I am confident that the regulatory amendments will serve the Board and the artistic community well in ensuring the effective processing of matters requiring determination by the Board.

Elizabeth MacPherson

E-FILING IS NOW AVAILABLE

The Board is now pleased to announce that it is able to accept documents electronically through its website. In order to file a new application or complaint or submit documents related to an existing file, parties are asked to go to the Board's website and follow the link to "E-filing."

Parties are also encouraged to carefully review the terms of use prior to using the web portal for filing documents. The Board asks that parties not send copies or originals of documents previously filed electronically with the Board. The Board also asks that no membership evidence be sent through the web portal. The Board will continue to review and investigate original membership evidence and employee wishes as is its current practice.

EMAIL NOTIFICATION

Parties should note that the Board will soon be using outgoing emails to communicate with parties that use the web portal or that provide their email address with their filing. When a party gives the Board its email address, all communications from the Board will be sent to that email address only. The Board is not able to receive emails through the email box that will be used for outgoing emails. Emails sent in reply to outgoing communications will not be monitored or answered in any circumstances.

Recent Cases–Summary Notes

St. John's International Airport Authority, 2014 CIRB 708

The Board reiterates its general preference for larger bargaining units at airports

At the request of the Public Service Alliance of Canada (PSAC or the union), which represented an all-employee bargaining unit at the St. John's International Airport Authority (SJIAA or the employer), the Board considered an application for a bargaining unit review under section 18.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code). PSAC was seeking to partition the existing bargaining unit and asked the Board to create a separate bargaining unit for the airport firefighters.

The issue for the Board was whether there was compelling evidence that the comprehensive bargaining unit at the SJIAA was no longer appropriate for collective bargaining and would impair effective labour relations between the parties. The Board considered a multitude of factors but was not persuaded that the current bargaining unit structure was no longer appropriate for collective bargaining.

In support of its application, PSAC submitted that there had been a continuing divergence of interests between the firefighters and the other employees of the bargaining unit, leading to labour relations difficulties. According to PSAC, the firefighters would be more effectively represented under their own bargaining unit since they dealt with issues and work conditions that were distinct from other employees. PSAC also relied on an earlier decision of the Board, Aéroport de Québec Inc., 2010 CIRB 557 (RD 557), where the Board fragmented an all-employee bargaining unit to create a separate unit for firefighters after finding that the single unit was no longer appropriate due to evidence that the employees had very divergent interests and that the original structure had contributed to difficult negotiations and lengthy work stoppages.

The employer argued that the comprehensive bargaining unit was required to ensure the cooperation and integration needed for the organization to be successful and that a separate unit would undermine that cohesion.

The Board distinguished the present case from that in RD 557. It stated that, in this case, while there had been two lengthy work stoppages since the original certification, there was no divergence of interests between the firefighters and the other employees with regard to the contested issues. The work stoppages were not specific to the firefighters. The interests of the firefighters and the other employees were not divergent enough so as to create tensions and frustrations during negotiations, and the facts did not persuade the Board to deviate from its preference for larger bargaining units, as it had in RD 557.

The Board also focused on the role of firefighters in the bargaining unit and the consequences of a fragmentation. Placing the firefighters in a separate bargaining unit would diminish the bargaining power of other employees by reducing the number of union members significantly, especially since the firefighters had always played a leadership role in the local. The single unit was also found to be more administratively efficient for both the employer and PSAC.

Finally, the Board concluded that it could not entertain an attempt by a group to obtain more bargaining strength by facilitating its access to binding arbitration.

All factors being considered, the Board found that the bargaining unit remained appropriate and dismissed PSAC's application.

Treaty Three Police Service, 2013 CIRB 677

The Board found that the 30-day time limit set out in section 45(2) of the 2012 Regulations does not apply to applications for review that are based on alleged changes to constitutional jurisdiction as a result of a decision of the Supreme Court of Canada.

This case dealt with a preliminary objection raised by the Public Service Alliance of Canada on the timeliness of an application for reconsideration filed by the Treaty Three Police Service (the employer).

The employer filed an application for reconsideration of a certification order issued by the Board on the basis that the Board had no jurisdiction to issue the order, as its activities fell within provincial jurisdiction for labour relations purposes. The employer relied on the decisions of the Supreme Court of Canada (SCC) in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, 2010 SCC 45 and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto, 2010 SCC 46, issued more than two years prior to the date of the application for reconsideration.

This was the first opportunity since the coming into force of the 2012 Regulations that the Board had to consider whether an application for review under section 18 of the Code based on constitutional jurisdiction grounds should be subject to the time limit set out in section 45(2) of the 2012 Regulations. In doing so, the Board took the opportunity to explain the rationale for repealing section 44 of the 2001 Regulations as well as the underlying reasons for extending the time limit for applying for reconsideration.

After reviewing its general powers under section 18 of the Code and the brief history of its reconsideration practice, the Board found that the 30-day time limit set out in section 45(2) of the 2012 Regulations does not apply to applications for review that are based on alleged changes to constitutional jurisdiction as a result of a decision of the SCC. The Board noted that such applications may be brought at any time, like applications for review of the scope of a bargaining unit.

Consequently, the Board found that the application for review filed by the employer was timely.

The issue of constitutional jurisdiction is still pending before the Board.

Survey Results Are In

The Board is pleased to inform you that its first client satisfaction survey is now completed.

The consultant that carried out the survey, EKOS Research Associates Inc., observed that the results are particularly impressive, given the complex and potentially contentious nature of the matters that are dealt with at the Board. The final report shows that clients expressed high levels of satisfaction on all the areas/issues examined in the survey; in fact, the majority of satisfaction indicators are in the 80 to 95 per cent range. Similarly, there is very little variation in client satisfaction levels across the Board's regional offices. The results also identify the factors that drive the satisfaction of our clients and stakeholders which will guide the Board in further enhancing client services.

The Board had retained the services of EKOS to conduct the survey among clients that had active matters before the Board between January 1, 2012, and December 21, 2013. Respondents were asked to rate their satisfaction with several aspects of service from the Board, including interaction with the Board's staff, the mediation process, representation votes, case management meetings, expedited hearings, oral hearings, as well as access to information on the Board's website.

One of our key priorities at the Board is to continue to improve service delivery and to continually strive to find timely solutions that best serve the labour-management relations of the Board's client community. These survey results provide further guidance on what works well and where improvements can be made. The Board expresses its sincere gratitude to all clients who took the time to participate in the survey.

The full report on the client satisfaction survey can be consulted on the Board's website.

Gaétan Ménard, Member

New Board Member

The Governor in Council recently appointed Mr. Gaétan Ménard as a full-time member of the CIRB serving as an employee representative.

Mr. Ménard has close to 30 years of experience as a prominent union representative for the Communications, Energy and Paperworkers Union of Canada (CEP), and in 2006 became the youngest national officer in CEP's history. As Co-Chair of the Proposal Committee, he oversaw the merger between the Canadian Auto Workers union (CAW) and CEP to form Unifor, Canada's largest private sector union, on August 31, 2013.

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