Evaluation of the Federal Mediation and Conciliation Service – Phase II

List of figures and tables

1.1 Evaluation scope and objectives

The Evaluation Directorate conducted the Federal Mediation and Conciliation Service evaluation in 2 phases:

• phase I, completed in 2018, covered the period of 2013 to 2014 and 2017 to 2018. Phase I of the evaluation assessed the relevance, effectiveness and efficiency of the Dispute Prevention and Relationship Development Service component
• the current Phase II covers the period from 2013 to 2014 and 2019 to 2020. Phase II assesses the Dispute Resolution Service and the Industrial Relations Advisory Service to ensure they are relevant, effective and efficient

Phase I of the evaluation showed that the Dispute Prevention and Relationship Development Service addresses an increasing need for support among federal organizations. The Service helped parties prevent and better manage workplace conflict and rely less on dispute resolution services. The evaluation showed the need to improve some aspects of dispute prevention services. Areas for improvement included data collection, monitoring and reporting of activities and expected outcomes.

This link includes more details on the 2018 Phase I evaluation: Evaluation of the Federal Mediation and Conciliation Service.

The Phase II evaluation drew on 4 lines of evidence, including:

• an administrative data review
• a document and literature review
• 27 key informant interviews
• 4 case studies^{Footnote 2}

1.2 Program overview

The core function of the Federal Mediation and Conciliation Service is to mediate between employers and unions during collective bargaining. Part I of the Canada Labour Code states the program’s mandate. As such, the Service “advises the Minister of Labour with respect to industrial relations matters and is responsible for fostering harmonious relations between trade unions and employers by assisting them in the negotiation of collective agreements and their renewal and the management of the relations resulting from the implementation of the agreements”.^{Footnote 3}

The Minister of Labour is responsible to Parliament for administering the Canada Labour Code. The Federal Mediation and Conciliation Service promotes cooperative labour relations between unions and employers that are subject to Part I of the Canada Labour Code. It provides assistance to unions and employers when they negotiate and renew collective agreements and helps maintain good relations during the term of these agreements.

The workplaces covered by Part I of the Canada Labour Code are federal works, undertakings or businesses.^{Footnote 4} Key industries include major airlines and airports, postal and courier services, port operations and railways. In 2019, the organizations subject to Part I of the Canada Labour Code employed approximately 992,000 employees (or 6.2% of all Canadian employees).^{Footnote 5} Approximately 35% of these workers were unionized and covered by a collective agreement.

During most of the evaluation period, the 3 main components of the Federal Mediation and Conciliation Service were as follows:

Dispute Resolution Service appoints mediation and conciliation officers under sections 72 and 105 of the Canada Labour Code to assist in resolving collective bargaining disputes. Conciliation and mediation officers deliver services through 6 regional offices across Canada^{Footnote 6}. For most of the evaluation period, the Dispute Resolution Service also appointed arbitrators. The role of arbitrators is to resolve other types of disputes governed by the Canada Labour Code and the Wage Earner Protection Program Act. These disputes include:

• grievances
• unjust dismissals
• wage recovery disputes^{Footnote 7}

The Dispute Resolution Service is also in charge of appointing arbitrators under Part I, on behalf of the Minister of Labour.

Dispute Prevention and Relationship Development Service helps to:

• prevent and better manage labour disputes and day-to-day workplace conflict
• develop and maintain collaborative working relations

It also provides communication and relationship development workshops and services, on a case-by-case voluntary basis.

Industrial Relations Advisory Service is the policy and research arm of the program. It provides advice and guidance to the Minister of Labour on industrial relations matters, as per section 70.1 of the Canada Labour Code. In July 2019, the Strategic Policy, Analysis and Workplace Information Directorate took over some of these responsibilities. The Federal Mediation and Conciliation Service continues to provide advice and guidance to the Minister of Labour. Advice and guidance relates to collective bargaining disputes and industrial relations matters.

In September 2019, the Collective Bargaining and Data Management unit became part of the Federal Mediation and Conciliation Service. It was formerly part of the Strategic Policy, Analysis and Workplace Information Directorate. The unit joined in the last 6 months of the evaluation period and is outside the scope of this evaluation.

Conciliation and Mediation: When parties seek support from the Program to resolve a collective bargaining dispute, conciliation is a mandatory legislated process, while mediation is voluntary. When employers and unions who engage in direct negotiations encounter an impasse, they may:

• file a notice of dispute with the Minister of Labour under Part I of the Canada Labour Code
• seek the assistance of a Federal Mediation and Conciliation Service officer to begin conciliation

Conciliation is one of several steps required by the Canada Labour Code before a party may begin a legal work stoppage.

Mediation can occur at any point in the bargaining process. However, once the conciliation period expires, the parties may choose to continue working with a mediator. Officers who assist unions and employers as conciliators can also act as mediators on the same file.

The program’s clients are federal unions and employers governed by Part I of the Canada Labour Code, including:

• private sector organizations
• certain Crown corporation
• municipal employers
• private sector and municipal employers/employees in the Yukon, Nunavut and the Northwest Territories

As per the table below (Table 1), the Program’s total expenditures ($47,480,622) were slightly above the planned budget ($47,311,055.67). The majority of the program budget went to the regions (46%), followed by Dispute Resolution Services (29%), and the Director General’s Office (9%).

Source: FMCS Financial Report, 2013 to 2020

2.1 Role of Federal Mediation and Conciliation Service in settling collective bargaining disputes and preventing work stoppages

The Canada Labour Code requires federal mediators to assist parties during the conciliation phase of collective bargaining. The percentage of labour disputes that Labour Program officers settled under the Canada Labour Code (Part I), without work stoppages, is one of the program’s key performance indicators.

Characteristics of work stoppages

From 2013 to 2014 and 2019 to 2020, there were 54 work stoppages (strikes or lock-outs) at the organizations that received conciliation/mediation services. They involved 70,096 workers. Work stoppages resulted in 475,662 person-days not worked.

Between 2013 to 2014 and 2019 to 2020, 28% of work stoppages occurred in the Ontario region. It was followed by 22% in the Québec^{Footnote 8} region and 19% in the Northwest region (Figure 1).

Transportation industries^{Footnote 9} made up most of the conciliation and mediation files. Between 2013 to 2014 and 2019 to 2020, transportation industries were involved in 63% of the disputes that the program handled. Furthermore, 41% of the 54 work stoppages occurred in these industries. They were also responsible for about 70% of the total person-days not worked during the evaluation period.

Figure 1. Percentage of work stoppages by regional office, 2013 to 2014 and 2019 to 2020

Collective bargaining disputes settled by the program

Between 2013 to 2014 and 2019 to 2020, the Federal Mediation and Conciliation Service settled 1,044 cases.

During the same period, conciliation officers and mediators settled 42% of cases during conciliation, which is the earliest possible stage. Whereas, 58% of the cases were settled after the conciliation stage.

Between 2013 to 2014 and 2019 to 2020, mediators settled the majority (95%) of cases, without a work stoppage (Figure 2).

Figure 2. Proportion of disputes settled without work stoppages, 2013 to 2014 and 2019 to 2020

Most of the key informants and case study participants confirmed that, without the help of a mediator, disputes would have lasted much longer. In addition, there would have been more frequent and/or longer work stoppages if a mediator had not been involved. For example, in 3 out of the 4 case studies, unions and employers believed that a work stoppage would have occurred if a mediator had not been involved.

One cannot assess whether mediation and conciliation services are effective solely by looking at the number of disputes resolved without a work stoppage. The extent to which mediators contribute to resolving disputes is a better way of assessing the impact of the program, regardless of a work stoppage.

The document and literature review revealed that work stoppages may occur despite effective conciliation. Multiple factors affect collective bargaining including factors that do not relate to the program’s ability to help parties settle disputes. For example, poor relations between parties may hinder the process.

The literature review also showed that work stoppages may have potential negative impacts on society and the economy. The Sims report notes that work stoppages in the postal, transportation or grain sectors can “have an enormous effect upon the public.”^{Footnote 10} These include production losses, diminished productivity, reduced investment and foreign trade. However, the report also acknowledges that there is little evidence to support firm conclusions on economic and non-economic impacts.

Recent Statistics Canada data showed that in August 2020, the strike at the Port of Montreal caused $600 million in economic losses.^{Footnote 11} The Canadian Federation of Independent Business conducted a survey in August 2020. The survey showed that 40% of Quebec small and medium enterprises suffered negative impacts due to the station.

Despite their potential short-term negative economic effects, work stoppages are sometimes inevitable and/or are a needed step in resolving disputes.

At the same time, the evaluation found that the program has influence over the incidences of work stoppages. This happens when mediators and conciliators help settle issues in dispute that may otherwise have led to a work stoppage. For example, assisting parties to communicate better can help avoid work stoppages.

However, in cases when work stoppages do occur, key informant interviews revealed that conciliators and mediators remain involved and continue to assist parties with resolving the dispute.

Figure 3 below identifies some of the factors most frequently mentioned in interviews and cited in the reviewed literature. These factors may have an impact on the collective bargaining process and/or may worsen disputes or help with their resolution.

Figure 3. External and internal factors that may impact the collective bargaining process

The International Labour Organization supports the view that employers and employees can avoid or resolve disputes through:

• consensus building
• action among themselves
• conciliation and bargaining processes with third parties^{Footnote 12}

The literature review showed that mediation and conciliation services are able to help labour and management representatives resolve collective bargaining disputes^{Footnote 13}. This included similar services to those offered by the program.

During interviews, many clients stated that mediators improved the negotiation process and working relations. Helping parties communicate better was one such example.

Clients consulted during the interviews and case studies mentioned several positive impacts mediation and conciliation services have on resolving disputes. As such, mediation and conciliation services:

Among those who were interviewed, there was general agreement that the role of conciliator and mediator involved helping parties reach an agreement. This was done by using different strategies, including:

• reframing issues
• identifying potential solutions
• separating or convening parties (meeting parties one-on-one and in caucus)

These strategies were consistent with conciliation and mediation best practices found in the dispute resolution literature.

2.2 Extent to which the design and delivery of the program support the effective delivery of program activities and foster cooperative labour relations

Financial resources are sufficient and meet the program’s overall workload

During interviews, senior management stated that overall, the level of funding was sufficient.

During the evaluation period, 75% of the program’s budget went to dispute resolution. The program allocated this budget directly (funding for regions to deliver mediation and conciliation services) and indirectly (funding for managing dispute resolution) (Table 1).

The annual amount of funding for dispute resolution is consistent with the overall yearly caseload.

Assigned human resources support the delivery of mediation and conciliation services

Administrative data showed that the Dispute Resolution Service appoints conciliation officers within 15-days. This is the timeframe or service standard that is stated in the Canada Labour Code.

The average number of days taken to appoint conciliation officers during the evaluation period was 9.57, which was well within the service standard.

Between 2013 to 2014 and 2019 to 2020, the program appointed 1,055 conciliation officers to help settle disputes. Moreover, the program assigned the number of mediation and conciliation officers based on need, by region and overall caseload (Figure 4).

Interviews revealed that mediators and conciliators were highly mobile and often provided services in other regions as needed.

Based on the interviews, the number of conciliators and mediators who delivered services in the 6 regional offices addressed client needs.

Figure 4. Number of conciliation appointments and percentage of collective bargaining disputes, by region between 2013 to 2014 and 2019 to 2020

External stakeholders and case study participants indicated that they were either satisfied or very satisfied with the quality of the services received. They also mentioned that, for the most part, conciliators and mediators were accessible and reachable, skilled and experienced as well as highly competent.

They were of the opinion that conciliation and mediation experience mattered more than industry knowledge. Many clients noted that experienced conciliators and mediators were able to get up to speed on the various issues and dynamics regardless of industry knowledge.

The program’s structure is a good way of providing mediation and conciliation services

Interviews revealed a strong level of team work between:

• headquarters and regions
• dispute resolution, prevention, and industrial advisory services

They described information sharing as constant and fluid.

As shown through the key informant interviews, the program often deploys mediators and conciliators outside their region. The reasons for doing so include their expertise in a specific industry or area.

The program’s management structure is a good fit and well tailored to meet the program’s needs

Six regional offices – most headed by regional directors – deliver mediation and conciliation services^{Footnote 14}.

Interviews showed that the management structure helped the program achieve results. No one suggested arranging the reporting structure differently.

Communication within and across the program’s different teams is effective

Participants did not mention any problems with communication within or across different teams. They spoke positively about how different components of the program work together. They also described information sharing between teams as constant and fluid.

The Industrial Relations Advisory Service was in charge of the following:

• conducting research and analysis
• providing advice to the Minister of Labour on a range of labour relations issues including high-profile labour disputes

In July 2019, the Strategic Policy, Analysis and Workplace Information Directorate took over some of its duties. The purpose was to bring together broad policy expertise within a single Labour Program directorate.

The unit was not fully staffed during the second half of the evaluation period. Therefore, it is difficult to assess its structure and resources. However, several participants agreed the unit supported mediators. It also provided expert service to the Minister of Labour prior to its move in July 2019.

During the second half of the evaluation period, a core group of analysts reporting to the Director General carried out the advisory function. They provided research support to conciliators/mediators and advice and guidance to senior management. They also responded to requests about current or past disputes.

The Federal Mediation and Conciliation Service continues to play a key role in advising the Minister (as required by legislation, mainly related to specific disputes).

Interviews showed that this change would enhance the advisory capacity of the Branch. The Strategic Policy, Analysis and Workplace Information Directorate has the background and resources to support legislative and strategic policy work. The change would also reinforce mediation and conciliation services’ neutral position by removing responsibilities related to labour relations legislation from the program.

2.3 Recent changes made in support of effective program delivery and attaining expected outcomes

After the last evaluation in 2014, the program made several changes to support the program achieve its objective of fostering supportive labour relations.

The program developed a Performance Information Profile in June 2017 and updated it once again in 2020.

In February 2019, the Evaluation Directorate assessed the program’s Performance Information Profile. They found that the program informed the need to monitor and measure results.

Current evaluation key findings showed that the occurrence of work stoppages does not solely determine the success of mediation and conciliation. Other factors, such as the relations between parties, may have played a larger role in the outcomes.

Interviews showed that mediators and conciliators involvement in dispute resolution was more important than the number of disputes settled without a work stoppage.

Therefore, this evaluation showed that the main indicator used to measure the success of mediation and conciliation services^{Footnote 15} is not sufficient. It does not fully capture the impact of mediators and conciliators involvement in helping parties resolve disputes.

New tools and supporting documents ensure that data collection, storage and reporting are consistent

Some of the more significant changes made by the program included:

• revising the weekly reports used to capture mediation and conciliation data
• creating training manuals to assist with data entry
• adopting new software to extract data from the internal database used to store mediation files

The program is also switching to a new data management system. This should reduce some of the remaining challenges.

Data collection, storage and reporting is more consistent and concise

The 2014 evaluation of the Federal Mediation and Conciliation Service highlighted data reporting as one of the main issues. Data that was part of the internal data management system was not available in report form. Rather, it required an interface that was labour intensive.

Although the former internal software is still in use as a database, the program adopted new software as a solution to data reporting issues. This allows the program to extract readily usable information in the form of reports, used to develop annual reports.

The Collective Bargaining and Data Management unit became part of the Federal Mediation and Conciliation Service. This change helped the program centralize data collection relating to collective agreements and work stoppages.