Archived - Guidelines for Essential Services Agreements

Subsection 4(1) of the PSLRA defines an "essential service" as "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". Services should be identified as essential where there are reasonable grounds for accepting the probability, or even the possibility, that human life or public safety would suffer if a work stoppage interrupted the duties of these employees. It should be noted that positions where occupants are to be available during their off-duty hours to report to work without delay to perform the essential services are also included.

Some examples of government programs that may be considered essential include, but are not exclusively:

• border safety/security
• correctional services
• food inspection
• health care
• accident safety investigations
• income and social security
• marine safety
• national security
• law enforcement
• search and rescue

The PSLRA defines an "essential services agreement" as "an agreement between the employer and the bargaining agent for a bargaining unit that identifies (a) the types of positions in the bargaining unit that are necessary for the employer to provide essential services; (b) the number of those positions that are necessary for these purposes; and (c) the specific positions that are necessary for that purpose".

The employer retains the exclusive right to determine the level of service required including the extent and frequency of service. However, the parties can negotiate the number of employees required to provide the essential services at the level determined by the employer and the specific positions that are necessary. For example, the employer could determine that two wards need to be kept open in a veterans' hospital to provide requisite care to patients (as opposed to only one ward, heavily staffed); or the employer could determine that employment insurance cheques must continue to be delivered once every two weeks (as opposed to a level of service with monthly delivery), and what operations are needed to meet this requirement.

In situations where only part of an employee's duties relate to a service that is necessary for safety or security, the parties could agree that a lower complement of employees is necessary than in normal operations to provide the level of essential services by assigning employees full-time on "safety or security" duties. The following example illustrates this concept. If 20 employees normally spend 50% of their time on duties necessary to provide an essential service, then 10 of those employees could, during a strike, spend 100% of their time on those duties, allowing the other 10 to exercise their right to strike.

The calculation of the number of employees required to provide essential services is determined on the following basis:

• without regard to the availability of other persons (e.g., unrepresented employees and managers) to provide the essential services in the event of a strike; and
• the employer would not have to change its normal operations, including the normal hours of work, the extent of the employer's use of overtime and the equipment it uses.

The Public Service Staff Relations Board (now referred to as the PSLRB) does not balance the right to strike versus ensuring essential services are provided to the public. The only issue is whether the duties of the position relate to the safety or security of the public. Other principles, established under the former Public Service Staff Relations Act, that may be considered when establishing essential services agreements, are outlined in the chart in Annex A.

Departments and bargaining agents must determine what kind of positions (based on the types of duties), how many of those positions, and which specific positions, are necessary to provide essential services in the event of a strike. The intention is for the parties to conclude an essential services agreement cooperatively and consensually. The dialogue and negotiations between departments and bargaining agents could start at the local or regional level in departments, and move up to the national level to finalize an essential services agreement. Alternatively, negotiations could begin at the national level based on a template that would receive local or regional verification. Departmental Labour/Management Consultation Committees could be used for this purpose where bargaining agents agree.

5.1.1 Notice to bargain

Legislated deadlines to be met during the essential services agreement process are determined by the notice to bargain date. Bargaining agents can give notice to bargain:

• At any time, if no collective agreement or arbitral award is in force; or
• If a collective agreement or arbitral award is in force, within four months before it expires.

For each round of collective bargaining and prior to notice to bargain being served, the bargaining agent must specify which method is to be used in dispute resolution: arbitration or conciliation. Where the chosen method for dispute resolution is conciliation the issue of essential services agreements must be addressed. If the employer believes employees in a bargaining unit provide essential services, it must give notice to the bargaining agent to require it to enter into negotiations for an essential services agreement. The employer can give this notice at any time but no later than 20 days after the day a notice to bargain is given. Once the notice has been given, the parties must make every reasonable effort to enter into an essential services agreement as soon as possible.

A timeline and flowchart of activities have been created in Annex B to illustrate the timing of the activities around essential services agreements.

5.1.2 Departmental responsibilities

Departmental Human Resources (i.e., Labour Relations) officials, with the advice and guidance of Treasury Board Secretariat officials are responsible for:

• providing the necessary advice and guidance to departmental managers (e.g., assisting in the preparation of documentation and rationales, and assisting in the negotiations);
• ensuring notices and agreements are sent to the Treasury Board Secretariat for records purposes;
• ensuring employees occupying essential positions are notified accordingly; and
• ensuring that employees occupying essential positions are identified as such in departmental HR systems, the Treasury Board Secretariat's database and in the PWGSC Pay System.

Departmental managers with the advice and guidance of departmental Human Resources (i.e., Labour Relations) officials are responsible for:

• determining the level at which an essential service is to be provided;
• reviewing the positions within their organisations and identifying the number of positions that are necessary for the provision of an essential service;
• providing the rationale behind decisions (the sample Essential Services Agreement Review Form in Annex C may be used for this purpose);
• negotiating essential services agreements with bargaining agent representatives where the agents are authorized to negotiate at this level;
• producing any required documentation; and
• notifying employees occupying those positions identified as essential of the related implications.

5.1.3 Treasury Board Secretariat

The Treasury Board Secretariat is responsible for:

• notifying departments that a notice to bargain has been received and that the essential services agreement process should be started, or amendments discussed (Note: As indicated above, the parties are encouraged to negotiate essential services agreements outside the collective bargaining schedule.);
• notifying bargaining agents that departments will be entering into negotiations for a essential services agreements or an amendment to an existing essential services agreement;
• providing advice and guidance to departmental officials;
• reviewing, at the department's request, any positions in dispute, prior to a notifying the PSLRB of a stalemate; and
• submitting notices and agreements to the bargaining agents and the PSLRB, when requested;
• consulting or liaising on essential services agreements at the national level;
• providing Employer representation before the Board;
• maintaining a central database of positions identified as essential;
• monitoring departmental performance to ensure compliance with the PSLRA; and
• reviewing policy instruments, as required.

5.1.4 Bilateral negotiations

Once the level of service and the number of positions have been determined, departmental and bargaining agent representatives are expected to meet to examine the position of each employee in the bargaining unit to determine whether or not each position is essential to the safety or security of the public. (Nothing precludes the parties from conducting a review much earlier. In fact the sooner the review begins, the more time the parties will have to complete it.) During the initial review, both parties will either:

• agree that the position is essential;
• agree that the position is not essential; or
• disagree.

Every attempt should be made to achieve an agreement. Departments and bargaining agents can jointly determine how the negotiations will take place and can negotiate understandings regarding the level of negotiations involved in establishing essential services agreements. For example, the negotiations between managers, supported by departmental Human Resources (i.e., Labour Relations) officials, and bargaining agents should start at the local or regional level in some departments, and move up to the national level for final approval of an essential services agreement. Should the parties agree, Labour/Management Consultation Committees could be tasked with this responsibility.

Depending on the size of a department and the bargaining agent involved, where and how an essential services agreement is reached can vary. Variations may include:

• agreement reached at the local level, with regional sanction and national notification;
• agreement reached at local level, reviewed at regional level and sanctioned at national level;
• agreement reached at regional level and reviewed and sanctioned at national level;
• agreement reached at the national level based upon local data, etc.

It is generally understood that the knowledge of the functions and level of service required is found where the operations occur. In larger departments this is usually at the local level. Draft essential services agreements could be concluded at the local/operational level and reviewed at a higher level to ensure consistent application across the region and nationally. Alternatively, some bargaining agents will want to negotiate nationally at the department-wide level once the department provides their data and rationale. The chart in Annex D illustrates the various levels of negotiations/approval.

5.1.5 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 employer, on behalf of departments, 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.

The PSLRB can defer dealing with an application if the parties have not negotiated sufficiently and seriously. The PSLRB can make the determination on the disputed terms of an essential services agreement, but it cannot change the employer's determination as to the level at which an essential service is to be provided, including the extent to which and the frequency with which the service is to be provided. The PSLRB will issue an Order once it has concluded its review. The right to strike comes into force 30 "clear" days from the date of the signing of an essential services agreement or Order from the PSLRB (i.e., 30 full days between events) assuming the other requirements regarding the right to strike listed in subsection 194(1) of the PSLRA have been met (i.e., Public Interest Commission report has been filed).

5.1.6 Notification

As noted above, departments are responsible for informing each employee that s/he occupies an essential services position and is prohibited from participating in a strike. This can be done on initial hiring via the letter of offer and must be done after the conclusion or amendment of an essential services agreement. Periodic reminders may be warranted in certain circumstances (e.g., when the condition on which the essential services identification was made comes into play). Sample wording is found in Annex E.

It should be noted that, in the event of a strike, employees occupying essential services positions continue to be entitled to all of the benefits contained in the collective agreement, including overtime, call-back, etc..

ESA's remain in effect until changed in accordance with the PSLRA. Reasons for amending an essential service agreement may include, but are not exclusive to:

• new positions being added;
• positions being deleted;
• vacant positions being replaced;
• government or departmental restructuring; and
• bargaining agent affiliation changes.

Only the employer on behalf of a department, or the bargaining agent (not the PSLRB) can initiate a review that will lead to a change. Either party must give written notice to the other party that an amendment is sought.

The employer on behalf of a department, or the bargaining agent can give this notice at any time but no later than 60 days after the day a notice to bargain is given. Once the notice has been given, the parties must make every reasonable effort to amend the essential services agreement as soon as possible. The process and timelines for filing the agreement and/or resolving a stalemate are identical to that for an initial agreement. (See the timeline/flowchart in Annex B.)

It should be noted that updating essential services agreements can be done outside the collective bargaining schedule (e.g., annually, semi-annually, quarterly, or on a mutually agreed to schedule). However, the parties must ensure to file the required notices and amendments.

In extraordinary or emergency circumstances, in which a strike either needs to be delayed, or its effects temporarily minimized, the employer or the bargaining agent may apply to the PSLRB to temporarily amend or suspend an essential services agreement. The kinds of situations envisaged might include:

• a public security threat (e.g., September 11, 2001);
• a major health or environmental emergency (e.g., Red River flood); or
• any other exigent circumstances where federal employees would be needed to be on the job, above and beyond what an essential services agreement would call for.