Federally regulated employers will soon see new rules and procedures when they appear before the Canada Industrial Relations Board (the CIRB), under proposed amendments to the Canada Industrial Relations Board Regulations, 2001 (the Regulations) published by the federal government on November 17, 2012. Members of the federal labour community have until December 1, 2012, to provide feedback before the changes become final.
The proposed changes are part of a government effort to make the Regulations more clear, modern and practical. The changes are only to CIRB procedures, not to the substantive law practiced at the CIRB or to its revenues or resource allocation. Nonetheless, the changes may well affect employers who are engaged in essential services negotiations, who wish to intervene in cases where they are not parties, or who wish to keep documentation confidential during their proceedings.
Some of the procedures the government has proposed are new, while others are streamlined for better clarity and more efficient resolution of disputes. Here are some of the highlights:
- A person requesting to intervene in a dispute must now describe his or her interest in the dispute, including an explanation of any prejudice the person would suffer if the intervention were denied, and an explanation of whether the person’s interest is different from that of any other party.
- The CIRB must make all documents filed in a proceeding public if they are relevant to the proceeding, unless the document is “confidential.” A document will be confidential if its disclosure would cause specific direct harm to a party, and that harm outweighs the public interest in disclosure. If a document is found to be confidential, the CIRB is given the power to make various orders such as removing all or part of the document from the public record.
- When a matter is dormant for more than 12 months, the CIRB may now send a notice to the parties that requires them to show cause why the matter should not be deemed to be withdrawn. If there is no response, the CIRB may deem the matter withdrawn.
- The government has proposed a new Part to the Regulations setting out specific information that is required in essential services applications under section 87.4 of the Canada Labour Code. These applications can be made by either an employer or a trade union when they are unable to agree on the proper method for ensuring the continuation of essential services during an otherwise legal strike or lockout.
- The deadline for filing reconsideration applications will increase from 21 days to 30 days after the date of the written reasons of the decision or order.
What it means for employers
Although the proposed changes are procedural rather than substantive, several of them may affect employers in important ways. The most significant change might be the Regulations’ new approach to confidential documents.
Currently, the Regulations give the CIRB a broad discretion to treat any document filed with it as confidential. The proposed changes limit this discretion considerably, since they require all documents to be placed on the public record unless the CIRB specifically declares otherwise. Furthermore, the CIRB can declare a document “confidential” only if it meets a strict definition, where the document’s disclosure would cause “specific direct harm” to a party and that harm outweighs the public interest in disclosure. These changes may well harm employers’ ability to preserve the confidentiality of materials they file with the CIRB, such as internal policies, private correspondence or business information which, while considered sensitive by the employer, may not carry an obvious “specific direct harm” if disclosed.
The changes to the procedure surrounding essential services applications will likely be welcomed by employers, however. It may appear that such applications are now more difficult to make, but in fact, by requiring a great deal of detailed information to be provided up front, the new procedure should allow essential services disputes to be resolved more efficiently by the CIRB. Employers will likely benefit. Similarly, employers may welcome changes to the Regulations making it easier for the CIRB to dismiss matters that are dormant. After all, employers are typically the responding parties in CIRB applications, and would be more likely than trade unions to experience frustration when an applicant attempts to revive an almost-forgotten application.
Employers wishing to comment on the proposed changes should address representations to Ginette Brazeau, Executive Director and Senior Registrar, Canada Industrial Relations Board, 240 Sparks Street, 4th Floor West, Ottawa, Ontario K1A 0X8 (tel: 1-800-575-9696 and e-mail: firstname.lastname@example.org). Employers must cite the Canada Gazette, Part 1: Notices and Proposed Regulations and the November 17, 2012, notice of publication date.