CIRB Newslink–December 2010
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- Message from the Chairperson
- The Duty of Fair Representation and the Prima Facie Process
- Processing of Certification Applications
- Regulatory Review
- Industrial Relations Officer Celebrates 35 Years of Service With the CIRB!
Message from the Chairperson
As we approach the end of 2010 and with the festive season upon us, we are proud to present our second issue of the CIRB Newslink.
I am pleased to report that our efforts to improve processing times have been successful. In the first six months of the current fiscal year, the overall processing time is down to an average of 175 days, which represents a 24% improvement over last year. In addition, our average decision-making time for the current year is 62 days, well below the statutory time limit of 90 days.
The Board recently held its annual strategic retreat, which brought together Board members and staff from across the country. It was an opportunity to take stock of the work that is being done at all levels to respond to the needs of the labour-management community, to identify best practices and to seek ways to continue to improve our service delivery. In particular, we examined the challenges that privacy legislation presents in our daily work. We analyzed our performance with respect to certification applications. We considered the opportunities and risks associated with the electronic exchange of documents as we contemplate a transition to e-filing. We also initiated work on the review of the Canada Industrial Relations Board Regulations, 2001.
I trust that the community will be as satisfied as we are with the progress that we have made in recent years, and look forward to the year ahead as we explore new ways of doing business. I take this opportunity to wish all a very safe holiday season and offer my best wishes for 2011.
The Duty of Fair Representation and the Prima Facie Process
Section 37 of the Canada Labour Code deals with a union's duty of fair representation to its members. Complaints under section 37 are the most common type of applications filed with the Board and make up a significant part of its workload.
Once the Board receives a complaint under section 37, the file is reviewed by a panel of the Board to determine whether or not the complainant has made a prima facie case against the union. If the Board finds that the complainant has made out a case for the union to meet, the Board gives the union and the employer the opportunity to make submissions, and gives the complainant the right of reply. The Board can then decide the matter without a hearing, or order a hearing if further evidence is required. If the Board finds that there is no prima facie case, or that the complaint is clearly untimely, the complaint will be dismissed without requiring the other parties to make any submissions. This process is further described in the Board's decision Paramveer Singh Cheema, 2008 CIRB 414. The successful implementation of this process has increased the Board's capacity to render decisions on these complaints in a more timely manner.
When dealing with a duty of fair representation complaint, it is important that parties review the Board's decision in Virginia McRaeJackson, 2004 CIRB 290. This decision explains how the Board defines arbitrary, discriminatory and bad faith conduct by a union, describes the scope of the duty of fair representation, explains the employer's role in such complaints, and summarizes the Board's jurisprudence on the subject.
In the vast majority of its decisions regarding duty of fair representation cases, the Board will determine the complaint based on the parties' written submissions. The Board has revised the form used by complainants to file a section 37 complaint in order to try to ensure that it receives the necessary information to process the complaint. This has helped the Board to process the complaints more efficiently as it more often receives the necessary information and does not have to spend time and resources obtaining additional information from the complainant.
There are some things that unions can do both before and after a complaint is filed, that will assist the Board in efficiently handling these complaints. Many duty of fair representation complaints are the result of communication problems between the union and a member. First, it is important that the union, when investigating a member's issue or grievance, take the time to meet with the member and obtain all the necessary information before making a decision on what to do with the grievance. Ideally, notes should be kept regarding any meetings with the grievor to enable the union to document what it has done. Second, the union should keep the member informed about what is happening regarding the issue or grievance that the member raised. Again, this should be done in writing so that there is a record of what the union has done.
Finally, if the union ultimately decides not to file a grievance or to withdraw a grievance, the union should advise the member in writing. This communication should set out what the union did to investigate the grievance, and the reasons why the union decided not to pursue the matter. The Board asks complainants to provide it with copies of all correspondence received from the union as part of the documentation filed with the original complaint and this is done by most complainants. When the Board has detailed information and correspondance that clearly sets out the reasoning behind the union's decision, it is in a better position to expeditiously decide whether the complainant has made out a prima facie case.
As noted previously, the Board may ask the parties to file submissions if it finds that a prima facie case has been made out by the complainant. In most cases, these will be situations where the union has not provided anything in writing to the complainant explaining why it is not proceeding with the grievance, or where it has given a cursory written explanation for its decision. In its submission to the Board, it is important for the union to detail what steps it took to investigate the issue or grievance and then explain how that investigation led to the decision not to proceed any further with the issue or grievance. The Board will look at whether the union fairly investigated the matter and came to a reasoned conclusion following that investigation. In order to avoid unnecessary costs to all parties, the Board will not hold oral hearings on duty of fair representation complaints unless it is absolutely necessary to obtain sufficient information and evidence.
The Board will continue to look for ways to improve its processes regarding duty of fair representation complaints. With the continued assistance of the parties involved, we can make progress towards minimizing the time and expense for all parties in the process, while adjudicating these complaints as efficiently as possible. The Members of the Board representing employees are available to meet with union representatives in educational forums to further discuss the duty of fair representation under the Code. Please contact the Board for further details.
Processing of Certification Applications
In April 2005, the Board adopted new procedures for the processing of certification applications with the objective of processing and disposing of "standard" certification applications within 50 calendar days. The term "standard" refers to applications that do not involve complex issues or related complaints of unfair labour practice.
Previously, the Board's statistics did not differentiate its processing performance between the various types of certification applications, but simply provided an overall average for them. This may have left the impression that the Board was not meeting its service standard target of 50 days. However, the table below provides the processing time for certification applications on the basis of complexity.
The data shows an increase in the overall processing time for all certification applications received since April 1, 2005, except for the current fiscal year, where the average has so far fallen to 82 days from 129 calendar days in the previous year. The processing time for standard certification applications, which represent the largest volume of certification applications, has been relatively stable over the period, averaging 51 to 60 days. The Board continues to make certifications applications a priority and to seek ways of further improving its processing times.
Average Processing Time for Certification Applications Received Since April 1, 2005
| 2005–06 | 2006–07 | 2007–08 | 2008–09 | 2009–10 | 2010–11* | |
|---|---|---|---|---|---|---|
| Processing Time (Days) | Processing Time (Days) | Processing Time (Days) | Processing Time (Days) | Processing Time (Days) | Processing Time (Days) | |
| Standard | 51 | 58 | 60 | 85 | 59 | 56 |
| With Vote | 107 | 79 | 107 | 96 | 135 | 102 |
| With Hearing | 113 | 217 | 347 | 288 | 476 | 282 |
| With Vote & Hearing | 127 | 245 | 136 | 423 | 727 | 145 |
| Other Non Standard | 201 | 101 | 185 | 234 | 82 | 139 |
| Total | 63 | 81 | 96 | 108 | 129 | 82 |
Regulatory Review
Clear, Modern and Practical Regulations
The Canada Industrial Relations Board Regulations, 2001 have been in force since 2001. With almost a decade of experience, the Board has heard from the labour relations community about procedures that work well under the Regulationsas well as those that could be improved upon. We have been listening to your comments and are pleased to announce that a formal review of the Regulations is now underway. Over the course of the next year, the Board will be developing proposals for amendments to the Regulations in order to make them more clear, modern and practical. The Board also plans to identify areas in the Regulations where it can give parties more influence over the process.
A significant part of the review process will involve consultation with the labour relations community and the labour law bar regarding any proposed amendments. With a view to hearing from as many stakeholders as possible, we plan to begin conducting formal consultations with the community in the Spring of 2011. We expect to announce our consultation plan early in 2011.
Industrial Relations Officer Celebrates 35 Years of Service With the CIRB!
Harvey Farysey graduated from the University of Manitoba with a B.A.(Hons.) in Economics. At the start of his career he was employed by the Manitoba Department of Labour, working in the Employment Standards division. He worked there for approximately five years.
Harvey joined the Canada Labour Relations Board (CLRB) on March 10, 1975, as a Labour Relations Officer. At that time, the Board was decentralizing some of its operations to the regions by opening regional offices to better serve its clientele. Vancouver was the first regional office opened by the CLRB.
As the Board's longest serving Industrial Relations Officer, Harvey has worked with every Chairperson appointed to both the CLRB and the CIRB. He has witnessed the Board evolve into what it is today. He is regularly contacted by his colleagues for advice, as he is viewed as one of the best sources of information with respect to the Board's jurisprudence and practices. Within the labour relations community his reputation is stellar. Labour relations practitioners recognize his expert experience in Board matters and routinely call on Harvey to share his wealth of knowledge.
We congratulate Harvey for over thirty-five years of exemplary and dedicated service with our Board!
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