Essential Services Agreements Operational Framework Template

Background

The preamble of the Public Service Labour Relations Act (PSLRA), which came into effect on April 1, 2005 states that the public service labour-management regime must operate in a context where protection of the public interest is paramount. The PSLRA further stipulates that effective labour-management relations represent a cornerstone of good human resource management and that collaborative efforts between parties, through communication and sustained dialogue, improve the ability of the public service to serve and protect the public interest. The PSLRA recognizes that the commitment from the employer and bargaining agents to mutual respect and harmonious relations is essential to a productive and effective public service.

Sections 119 to 134 of the PSLRA describe the process and legislative timelines associated with the negotiations of essential service agreements (ESA's) when the bargaining agent has selected conciliation as the dispute mechanism of choice in the collective bargaining process. These agreements, between the employer and the bargaining agent, will include all positions identified as essential to the safety or security of the public. Employees who are notified that they occupy an essential position are prevented, by law, from participating in legal strike activities.

Objective

This framework is developed to foster a common understanding and agreement between (Department) and the Public Service Alliance of Canada (PSAC) on the process to be used to negotiate ESAs based on the Public Service Labour Relations Act (PSLRA). This framework does not replace the Treasury Board (TB) Guidelines for Essential Services Agreements but rather complements the guidelines by providing the details that are specific to each department.

It is understood that it is in our best interest to have some mutually agreed guidelines regarding the process to be used for ESAs and to ensure that all stakeholders receive the appropriate information.

The parties to this framework are committed to union-management relationships in all its forms (information, consultation, mediation), as they recognize the benefits of working collaboratively and strongly believe that it is essential to good union-management relations.

All recognize the essence of "public interest" and believe in a constructive exercise that enables parties to engage in two-way communication, understand each other's interests and address essential services in a climate of collaboration, openness, trust and mutual respect. This framework also encourages the parties to share information in good faith and in a transparent manner; seek opinions and advice; examine positions; recognize public interest; and better understand each other's standpoint and sometimes, decisions that have been made.

The following will provide the necessary definitions, principles, timelines, roles and responsibilities for the various stakeholders, activities and dispute resolution process in the negotiation of ESAs.

This document serves as a template that may be used and adapted by Departments to meet their particular needs. The information contained in the roles and responsibilities of the various stakeholders are provided as a guide only. Points may be added or removed as required.

Definitions

"essential services" – means a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public. (PSLRA, Section 4(1))

"essential services agreement"– means an agreement between the employer and the bargaining agent for a bargaining unit that identifies the types of positions in the bargaining unit that are necessary for the employer to provide essential services; the number of those positions that are necessary for that purpose; and the specific positions that are necessary for that purpose. (PSLRA, Section 4(1))

Principles

The manner in which ESAs are negotiated will have a direct impact on the efficiency and effectiveness of the process. Consultations must be meaningful and carried out in a climate of collaboration. All parties should keep in mind that they share the common goal of ensuring the delivery of essential services to the public in the event of a strike. (Departments may choose to link back to their respective organizational values or establish ground rules based on the TB Guidelines for Labour-Management Consultation Committees).

In addition, the following principles are derived from the Public Service Staff Relations Board (PSSRB) case law concerning the designation provisions in the former Public Service Staff Relations Act (PSSRA). The essential services provisions differ from those under the former PSSRA, but the requirement that a service be necessary for the safety or security of the public remains the same. Although this case law does not bind the Public Service Labour Relations Board (the Board), the parties may want to keep these principles in mind when establishing essential services agreements.

"Inconvenience to the public" is not a valid consideration for determining essential services.
The Board will err on the side of caution. The Board will designate where there is just the possibility that human life or public safety would be harmed. However, the Board will look at the regular duties of the employees, and not an extraordinary hypothetical situation. "Safety or security" can also relate to future situations.
Safety/security duties do not encompass duties that would protect the employer or the public from economic hardship.
The mental, psychological or emotional state of individuals is not covered by safety/security to the public.
Employees who maintain equipment/facilities that may contribute to safety perform duties that are necessary for safety or security of the public.
The term "public" is to be given a broad meaning. It includes employees and inmates.
The Board is not entitled to impose restrictions on the employer as to how it should carry on the affairs of Government, except to the extent that the employees who are designated may affect the capacity of the employer to provide certain services. The Board is not authorized to determine the level of service.

(These principles were reproduced, in part, from Annex A of the TB Guidelines for Essential Services Agreements.)

Timelines

The parties agree to begin the process surrounding essential services as early as possible. All legislative timelines can be found in Appendix B of the TB Guidelines for Essential Services Agreements. (We encourage Departments to use this space to outline their respective timelines for the various activities to be undertaken with respect to ESAs)

Bilateral Negotiations

Early in the process, the department and the bargaining agent representative will be required to jointly determine how the negotiations will take place in the establishment of ESAs. For example, the negotiations between managers, supported by departmental human resources officials and bargaining agent representatives could start at the local or regional level in some departments, and move up to the national level for approval of an ESA. Should the parties agree, the Labour/Management Consultation Committee could be tasked with this responsibility. Section 5.1.4.of the TB Guidelines for Essential Services Agreements offers the variations that can be considered. The Public Service Alliance of Canada and the Treasury Board Secretariat remain the final level of approval on all essential services agreements.

(This area should describe what has been agreed to for your specific department with respect to bilateral negotiations. You may adjust the departmental and bargaining agent representatives' roles and responsibilities listed below, as required.)

Roles and responsibilities

Treasury Board Secretariat (TBS)

Provide tools to departments to facilitate the negotiation of ESAs.
Notify all departments that a notice to bargain has been received and that the essential services agreement process must be started;
Notify the bargaining agent that the employer will be entering into negotiations for an essential services agreement;
Consult or liaise on essential services agreements at the national level;
Review, at the department's request, any positions in dispute prior to notifying the Public Service Labour Relations Board (PSLRB) of a stalemate;
Submit notices and agreements to the bargaining agent and the PSLRB, as required;
Provide employer representation before the PSLRB;
Sign the final ESAs, as the Employer, and inform the departments and the bargaining agent;
Maintain a central database of all positions identified as essential to the safety or security to the public;
Monitor departmental performance to ensure compliance with the PSLRA;

Public Service Alliance of Canada (Bargaining Agent)

Notify the components that a notice to bargain has been sent and that essential services agreement process should be started, or amendments discussed (The parties are encouraged to negotiate essential services agreements outside the collective bargaining schedule);
Notify the components that the departments will be entering into negotiations for essential services agreements or an amendment to an ESA;
Provide advice and guidance to component officials;
Review any position in dispute, prior to notifying the PSLRB of a stalemate;
Submitting notices and agreements to the Employer and the PLSRB, when requested;
Consult or liaise on ESAs at the national level; and
Provide bargaining agent representation before the PSLRB.

Departmental/Corporate Labour Relations Office

Assist management in the determination of level of service required during a labour disruption;
Provide advice, guidance and assistance to local/regional offices in the preparation of documentation and rationales as well as through the local negotiation process;
Ensure the appropriate documentation is obtained to support the recommended essential services;
Ensure notices and agreements are sent to the Treasury Board Secretariat, as required;
Notify TBS of any unresolved issues surrounding ESA's;
Negotiate/sign the ESA as the departmental representative with the bargaining agent representative and forward to TBS for final approval;
Notify employees who occupy positions identified as essential to the safety or security of the public;
Ensure the necessary data entry to departmental systems, TBS' database and the PWGSC Pay System;

Regional/Local Labour Relations Office

Provide necessary advice and guidance to managers in the preparation of documentation, rationales and assisting in the negotiations, as required;
Ensure all appropriate documentation is forwarded to the Corporate/Regional Labour Relations Office, as required;
Ensure employees occupying essential positions are notified accordingly; and
Ensure that positions and employees occupying essential positions are identified as such in departmental HR systems as well as TBS database, if delegated to do so.

Management

Determine the level of service required in the event of a strike and the number of positions required to do so, in consultation with human resources;
Develop rationales and ensure the validity of the duties and organizational charts to support the proposed positions to be identified as essential to the safety or security of the public;
Complete the Essential Services Agreement Review Form (Annex C of the TB Guidelines for Essential Services Agreements)Discuss and consult with the local/regional bargaining agent representatives on all proposals in their organizational unit;
Forward the list of "recommended positions" to the next level of authority;
Inform the local/regional office of labour relations of any disagreements encountered with the local/regional bargaining agent representative.

Bargaining Agent Representative

Review and/or approve (as delegated) the recommended list of essential services positions submitted by management or the labour relations office;
Negotiate essential services agreements with the department's representative where authorized to do so;
Provide the necessary advice and guidance to local representatives, if required (e.g. assisting in the preparation of documentation and rationales and assisting local representatives in the negotiations, as required;
Ensure notices and agreements are sent to the next level of authority;
Ensure employees occupying essential positions are notified accordingly.

Public Service Labour Relations Board (PSLRB)

Despite best efforts, the parties may not be able to agree on all matters to be included in an essential services agreement. In such cases, the PSLRB becomes the neutral arbiter. Either the Treasury Board Secretariat, as the Employer on behalf of the Department, or the bargaining agent can apply to the PSLRB if they are unable to agree on the terms of an essential services agreement. The application may be made no later than 15 days after either of the parties has requested conciliation or the Chairperson has referred them to conciliation on his/her own initiative.

Activities

Develop and finalize the framework with the union;
Determine training needs and plan the development/delivery of training sessions to Human Resources Advisors, bargaining agent representatives and/or managers, as required;
Management determination of level of service requirements in the event of a strike;
Identify those positions that are essential to the safety or security of the public;
Assemble proper documentation to support proposals (work descriptions, organizational charts, rationales, etc.);
Begin bilateral negotiations (either at local, regional or national level);
Bargaining Agent issues a notice to bargain to TBS;
TBS informs departments that notice to bargain has been received and that parties are now required to negotiate ESA;
Continue negotiations until agreement is reached or until impasse has not been resolved through mediation or additional consultation;
Discuss impasses or stalemates with TBS where further mediation or a formal hearing at the PSLRB is scheduled;
ESA finalized and signed by department, union representative, TBS and the PSAC or an Order is issued by the PSLRB;
Notification sent to employees occupying positions identified as essential to the safety or security of the public;
Public Interest Commission (PIC) convened if an agreement is not reached at the bargaining table;
Bargaining Agent is in a legal strike position 7 "clear days" after the tabling of the PIC report and 30 "clear days" after the finalization of ESA's. (PSLRA, s. 194(1)h & m).

Dispute Resolution

Every effort will be made by the parties to resolve disputes at the level that is closest to the location of the position. The parties can use various dispute resolution mechanisms. When resolution is not achieved, it will be referred to the next level of authority identified above. If an agreement is not reached at the departmental level, the dispute will be referred to TBS and the PSAC simultaneously and they will attempt to reach an agreement, failing which, the case will be referred to the PSLRB.

Amendment to Essential Services Agreements

ESAs remain in effect until changed in accordance with the PSLRA. The parties agree to abide by Section 5.2 of the TB Guidelines for Essential Services Agreements as it relates to reasons and timelines associated with such amendments.

Signatures

The parties hereby agree to abide by this framework in the process of negotiating ESAs.

Department Representatives	Date	Bargaining Agent Representatives	Date