ARCHIVED - Canadian Artists and Producers Professional Relations Tribunal - Report

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Section II – Analysis of Program Activities by Strategic Outcome

Strategic Outcome - The rights of artists and producers under Part II of the Status of the Artist Act are protected and respected.

Part II of the Act, and the collective bargaining regime set up under it, are intended to encourage constructive professional relations between artists and producers in federal jurisdiction. This is the sole strategic outcome under the Tribunal’s Program Activity Architecture approved by Treasury Board.

During fiscal year 2009-2010, the Tribunal pursued three priorities in order to achieve this strategic outcome. It continued to focus on timeliness and fairness in dealing with requests under the legislation. It continued its efforts to ensure that stakeholders have timely information about the Act and their rights and responsibilities under it, and about Tribunal decisions and activities. And it continued to improve its management practices, focusing on implementing the Public Service Modernization Act and the various initiatives of Treasury Board and other central agencies.

The performance measurement framework for these priorities matches that presented in the Tribunal’s Report on Plans and Priorities for 2009-10. The performance results are reported below the following table, which summarizes them.

Program Activity: Certification, Complaints, and Determination

Program Activity: Certification, Complaints, and Determination

2009-10 Financial Resources ($ millions)			2009-10 Human Resources (FTEs)
Planned Spending	Total Authorities	Actual Spending	Planned	Actual	Difference
1.2	1.2	0.7	8	5	3

Expected Results	Performance Indicators	Targets	Performance Status	Performance Summary
Fair and timely resolution of cases	Average time to issue reasons for a decision after the hearing in all cases	Maximum of 60 calendar days	N/A for fiscal 2009-2010	No oral hearings were held.
	Average time to process all cases (from date of receipt of completed application to date of decision)	Maximum of 200 calendar days	Met	The Tribunal issued its decision nine days after application
	Percentage of Tribunal decisions upheld under judicial review	More than 75 percent	N/A for fiscal 2009-2010	No applications for judicial review in 2009-2010.
Availability to stakeholders of information about the Act and the Tribunal	Quality and timeliness of information	Bulletins issued within 60 days of major developments (e.g., Tribunal decisions).	2 Bulletins issued within timelines	Bulletins provided timely information on developments such as  collective bargaining in previous FY and attainment of quorum in appointments
		Responses to inquiries within two working days.	Met	90 percent of responses to inquiries were within target
		Stakeholders are satisfied (as determined by informal stakeholder consultations)	Mostly met	Informal consultations indicate Tribunal needs more visibility
	Quality of the Tribunal’s Web site	The Web site contains timely, accurate and helpful information, explains clearly how to do business with the Tribunal, and meets Government On-Line standards.	Met	The Web site is regularly updated and continuously improved to meet Common Look and Feel (CLF) 2.0 Standards and improve readability and relevance.  Scale agreements and summaries are available on the Web site for the first time.
	Direct contacts with stakeholders		Met	Tribunal staff attended 5 industry conferences, and met with 4 artists’ associations, 3 producers, and one producers’ association.
Improved management practices	Management Accountability Framework	Required elements of MAF are in place	Met
	Human Resources Plan	Plan updated twice per year	Met
	Internal Policies Suite	Policies updated as needed and in line with government’s objectives and Treasury Board policies	Met

Performance Analysis

Priority 1: Deal with matters brought before the Tribunal with high quality service

High quality in processing of cases includes the work of staff, in preparing cases and providing legal advice, and the work of the Tribunal in issuing decisions.

The Tribunal was without quorum to hear cases for the first half of 2009-2010. The level of case activity in the fiscal year was lower than expected. Certification cases have decreased over the years since the passage of the Status of the Artist Act, with most sectors of artistic activity now represented by certified artists’ associations. Increasingly, inquiries and cases brought before the Tribunal concern issues that arise in collective bargaining.

Four certifications of artists’ associations as sectoral bargaining agents came up for renewal; all four were renewed. The Tribunal issued one final decision. At year’s end, two cases were pending. Details on cases are presented in the Tribunal’s annual report and its Information Bulletins, all available on the Tribunal’s Web site at www.capprt-tcrpap.gc.ca.

The Tribunal’s ability to serve its stakeholders was affected for half of the fiscal year by the fact that it did not have enough members to ensure quorum. The Tribunal was without quorum, and consequently unable to hear cases, from April 1 to September 30, 2009.

As set out in the 2009-2010 Report on Plans and Priorities, the Tribunal’s performance measurement framework looks at timeliness and fairness. These two factors are interrelated but distinct, and require different performance indicators and measurements.

For timeliness, we use two indicators: the time taken to issue reasons for a decision after a hearing, and the total time taken to process a case, from the date an application is received until the date of the decision. Targets and performance information for these indicators are shown in the table above.

The first indicator is not applicable for the past fiscal year, as the Tribunal did not render any decisions requiring hearings. The second indicator is based on time elapsed from the date of receipt of a completed application to the date of the final decision in the case. As shown in the table, the Tribunal met its target.

In the Tribunal’s internal monitoring and evaluation, performance information is analyzed over multiple years, in order to identify trends.

The Tribunal uses the term “fairness” broadly, to encompass all its responsibilities as a quasi-judicial tribunal, such as impartiality, accessibility, integrity, and confidentiality.

We use as an indicator of fairness the percentage of Tribunal decisions upheld on judicial review. The Federal Court may review a Tribunal decision in the following circumstances:

• if the Tribunal acted without jurisdiction or beyond its jurisdiction, or refused to exercise its jurisdiction;
• if it failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; or
• if it acted, or failed to act, by reason of fraud or perjured evidence.

The indicator is not perfect, because parties may be dissatisfied with Tribunal decisions but not seek judicial review, for any number of reasons, including lack of resources. Nonetheless, the Federal Court acts as the arbiter of fairness of federal quasi-judicial tribunals, so this is an important indicator. We have set as a target that more than 75 percent of our cases are upheld on judicial review.

There were no applications for judicial review in 2009-2010. As with timeliness, we collect this information yearly but analyze it over longer periods. To date, only three of the Tribunal’s 86 interim and final decisions have been challenged in this manner. Two requests for judicial review were dismissed by the Federal Court of Appeal, one in 1998-1999 and one in 2004-2005. The third request was withdrawn.

An important outcome of fair Tribunal decisions is the development of a solid body of precedents. These can be used to help resolve future cases.

The Tribunal is committed to maintaining and strengthening its research function to support the work of the Tribunal. This is a matter of importance for the Tribunal: it deals continually with new issues, and its jurisprudence is largely innovative, requiring a strong research capacity to ensure that decisions are fair and reflect the realities of the stakeholder community. Tribunal staff continued developing research resources over the course of the fiscal year, meeting with producers and artists’ associations and attending industry conferences, and facilitated information and training sessions for Tribunal members on developments in broadcasting and labour relations. The Tribunal’s case management database was further developed and refined over the course of the year.

Priority 2: Fully inform and assist stakeholders

The Tribunal’s second priority is to fully inform and assist the artists, artists’ associations, and producers that make up its stakeholder base. The Tribunal has a duty to ensure that artists, artists’ associations and producers are fully aware of their rights and responsibilities under the Status of the Artist Act. For parties to benefit from the Act, for collective bargaining under the Act to take place and for the long-term objectives of the Act to be realized, the parties must fully understand the legislation.

One way that the Tribunal does this is through timely responses to inquiries. The Tribunal receives a wide variety of questions from stakeholders, dealing with subjects like jurisdiction, specifics of the various cultural industries, and how to use the Act. Tribunal staff members respond to these questions quickly and thoroughly, always inviting further comment or question. The Tribunal’s target is to respond within 2 working days of the receipt of the inquiry. The Tribunal exceeded its target in 90 percent of its inquiry responses.

The Tribunal is committed to facilitating collective bargaining by making research tools and resources available to artists associations and producers. The Tribunal works in an informal partnership with Human Resources and Skills Development Canada (HRSDC) to make scale agreements readily available to stakeholders for research purposes. HRSDC runs a database known as Negotech that digitally stores collective agreements filed with the Minister of Labour. The Tribunal’s website provides hyperlinks to scale agreements on Negotech. For many of the scale agreements, the Tribunal provides summaries of salient features such as provisions dealing with new media.

With respect to more general information needs about the Act and the Tribunal’s services and activities, the Tribunal uses information bulletins, regularly-updated information on its Web site, and information sessions for stakeholders. Follow-up with stakeholders has shown that these are well received and considered useful.

Large-scale information sessions for stakeholders have in recent years given way to more tailored and customized information. The Tribunal’s stakeholders have different, often quite specific, needs for information. More focused personalized information and small group or individual meetings are often a more effective way of addressing those needs. The Tribunal emphasized these more direct approaches to stakeholders, including participation in industry conferences that bring stakeholders together and allow multiple meetings and information exchanges, maximizing the effective use of Tribunal staff time. In 2009-2010, Tribunal staff used informal means to increase the knowledge and awareness of the Act and the Tribunal among a cross-section of stakeholders from the artists’ and producers’ communities, including 4 artists’ associations, 3 producers and 1 producers’ association. Both approaches, formal presentations and informal meetings, are useful, and the Tribunal will continue to use them both, as appropriate.

The Tribunal issued two information bulletins in 2009-2010, covering information such as the new availability of scale agreements on the Tribunal’s website and changes in the Tribunal’s membership, allowing it to ensure quorum.

The Tribunal continued revising its website to make it more helpful and accessible, and made major revisions to the website, adding links to scale agreements and summaries of agreements. The website received 30,663 hits from April 1, 2009, to March 31, 2010.

Research to support the Tribunal’s work with artists’ associations and producers continued to be important in 2009-2010, especially in view of current developments in broadcasting and new media. Broadcasting is one of the principal areas of the Tribunal’s jurisdiction, and the challenges of transformations in the broadcasting industry – mergers, changes of ownership, new technologies, and the weakening of traditional business models – for artists’ associations and broadcasters require new efforts from the Tribunal to facilitate negotiation under the Act. Research staff monitored and analyzed developments in broadcasting and new media throughout the fiscal year, tracking CRTC and Parliamentary initiatives and attending industry conferences.

Priority 3: Improve management practices

As in previous years, the Tribunal used outsourcing and cost-saving agreements for many services not required on a full-time basis. It contracted with the Department of Canadian Heritage for human resources services, with Industry Canada for security and mail services, and with the Public Service Labour Relations Board for informatics support. It has arrangements with two other federal labour boards to use their hearing rooms and library services. It also contracts for the services of a financial analyst.

The Tribunal Secretariat continued to maximize its human resources, selecting multi-skilled, flexible staff capable of handling a wide variety of responsibilities. This matches the economic efficiency of the Tribunal itself: Tribunal members are part-time appointees, called on and paid only as needed, and bilingual, which facilitates scheduling of hearings. The Tribunal continued to provide accommodation and administrative and financial services to Environmental Protection Review Canada, thereby lowering the overall costs to the government.

To improve its operational efficiency and its capability to measure performance, the Tribunal continued to refine its case management database over the course of 2009-2010.

The Tribunal continued to develop its management practices in 2009-2010, working on implementing government-wide initiatives and continuing work on those initiatives already implemented, in a cluster group with three other small quasi-judicial agencies, the Copyright Board, the Registry of the Competition Tribunal, and the Transportation Appeal Tribunal. The Tribunal also worked with other networks such as the Small Agency Transition Support Team for expertise related to human resources issues (such as the Policy on Learning, Training and Development), and was an active participant in the Micro and Small Agency Labour Management Consultation Committee to ensure adherence to the Public Service Labour Relations Act.

The Tribunal continued to work with and update its Human Resources Plan. It uses this plan to forecast its staffing needs, deal strategically with staffing, retention and succession issues, and mobilize and sustain the energies and talents of its members and employees, enabling them to contribute to the achievement of organizational goals.

The Tribunal has internal policies to promote excellence in performance, accountability, and workplace well-being, and a code of values and ethics as well as policies on harassment and the internal disclosure of wrongdoing. To ensure that these policies remain current and relevant, the Tribunal further refined its policy review and renewal cycle, including continued study and development of evaluation strategies and performance measurement tools.

The Tribunal’s human resources and business planning are integrated, and it uses a Strategic Human Resources Plan and a Staffing Management Accountability Framework. In 2009-2010, it continued to monitor staffing actions in relation to its staffing strategies and plans, although the small number of positions and of staffing actions hardly justifies the term “statistics” and makes identification of trends or tendencies difficult.

Based on assistance from the Treasury Board Secretariat in the assessment of the Tribunal’s compliance with the Management Accountability Framework (MAF) in 2007-2008, the Tribunal put considerable effort in 2009-2010 into updating the Tribunal’s risk profile and better aligning the language and indicators between the Report on Plans and Priorities and Departmental Performance Report. It also continued to review its information practices, to ensure compliance with the Access to Information Act and the Privacy Act.

Other indicators of progress

The Status of the Artist Act is a specialized piece of legislation, of quite limited application to a very specific and narrow area of economic activity. As a result, indicators of effectiveness are frequently difficult to assess because of the problem of small numbers. The Tribunal uses certain indicators over multi-year periods to monitor the achievement of constructive professional relations in the cultural sector.

One such indicator is the proportion of complaints that are resolved without the necessity of a hearing by the Tribunal. Joint resolution of issues fosters cooperation between artists and producers, and saves time and money for the parties and the Tribunal by reducing the need for costly hearings. Accordingly, the Tribunal encourages parties to resolve as many issues as possible jointly before proceeding to a hearing, and the parties frequently find that they can resolve all the issues jointly. The Tribunal Secretariat provides assistance, where appropriate, through investigation and mediation, and in 2009-2010 emphasized augmenting staff’s knowledge and skills in the issues facing the arts sector, so that the staff members are better able to meet the needs of stakeholders.

The table below shows the progress against this indicator. It should be noted that, as with many performance indicators, this is an approximate measure. Parties will withdraw complaints for various reasons. For example, sometimes the filing of a complaint will in itself bring the parties together to resolve the issue without any intervention of the Tribunal.

The negotiation of scale agreements is another indicator of constructive professional relations. Again, this is an approximate measure. The Tribunal can facilitate negotiations by granting certification, providing information about the Act’s provisions for negotiations, and dealing with complaints of failure to bargain in good faith. It has little influence, however, over whether the parties actually pursue negotiations after certification, or over the results of such negotiations, unless one of the parties brings the matter before the Tribunal. Moreover, because there is no provision for first contract arbitration in the legislation, parties may be involved in bargaining for years without ever concluding an agreement.

With respect to the negotiation of scale agreements, a lot has been accomplished, if less than hoped for, as shown in the table below. Thirteen of the 24 certified artists’ associations (54 percent) have negotiated a scale agreement under the Act, compared to the expected target of 19 (80 percent). (Note that this indicator has been adjusted from what was used in previous years, where we looked at first agreements signed within 5 years of certification. That indicator, on review over time, was found not to be representative.)

Constructive professional relations

Indicator	Target	Results since SAA was passed
Percentage of complaints resolved without a hearing	At least 50 percent of all complaints are resolved without a hearing.	50 percent were resolved without a hearing.
Proportion of certified artists’ associations that have concluded scale agreements under the Act.	A minimum of 80 percent of certified artists’ associations have concluded at least one new scale agreement under the Act.	54 percent have negotiated at least one scale agreement.

At the end of fiscal year 2009-2010, 16 certified artists’ associations (67 percent) had at least one outstanding notice to bargain a new scale agreement.

Various amendments recommended in the 2002 evaluation of the Act², such as requiring arbitration in specific situations for the settlement of first agreements, would facilitate the goal of successful negotiations following certification.

Lessons Learned

The Tribunal Secretariat noted again the importance of being able to ensure that it has quorum to hear cases. The absence of quorum has a negative impact on the Tribunal’s relations with its stakeholders. It must increase its outreach efforts when it is unable to hear cases. The Tribunal’s credibility with its stakeholders is significantly advanced with balanced representation from the cultural industries and the labour relations community.

Benefits for Canadians

This program activity contributes to harmonious professional relations in the cultural sector, which in turn contributes to better conditions of engagement for artists and a more stable, predictable workforce for producers. This is a critical contribution to a vibrant Canadian culture, the economic benefits of which have been amply demonstrated by recent research.

Program Activity: Internal Services

Program Activity: Internal Services

2009-10 Financial Resources ($ millions)			2009-10 Human Resources (FTEs)
Planned Spending	Total Authorities	Actual Spending	Planned	Actual	Difference
0.8	0.9	0.4	2	2	0

Internal Services are activities and resources that support the needs of the Tribunal’s operating program and other corporate obligations. They include administrative, human resources, financial, information management services, and information technology services.

The Tribunal has internal service expectations and monitors overall service performance of its internal services. The Tribunal has a sound results-oriented framework utilizing the Management Accountability Framework (MAF) and a quality assurance framework that will continue to ensure that services are conducted in a timely and cost effective manner.

The Tribunal’s internal services have had to be carefully designed to take into account the extremely small size of the organization. The Tribunal outsources some corporate services that are not required on a full time basis. For example, it contracts with Canadian Heritage for human resources services, and with the Public Service Labour Relations Board and Industry Canada for informatics, security, and mail services. It has arrangements with two other federal labour boards to use their hearing rooms and library services.

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