CIRB Reaffirms Principles on Essential Services and Employees

The Canada Industrial Relations Board recently issued a decision reaffirming its position with respect to essential employees and the maintenance of activities in the event of a strike or a lock-out.

The employer in this case argued that if its public transit services were interrupted during weekday peaks hours (6AM-9AM, 2:30 PM-6 PM), the resulting increase in road traffic would create a delayed response for emergency services, thus endangering the safety or the health of the public. The employer also argued that the public would suffer from increased stress and a decrease in air quality.

In its reasons, the Board outlined important principles for employers to remember as they prepare for bargaining and advise the union which of their employees and services are essential:

• The test for essential employees and services is to “prevent an immediate and serious danger to the safety or health of the public” (emphasis in original). Other issues, though they may be in the public interest, do not concern the Board.
• The obligation to maintain the health and safety of the public must be balanced with the commitment to free collective bargaining, set out in the preamble of the Canada Labour Code.
• As a result of this balancing, “any abridgement of the right to strike must be to the minimum level required to cautiously protect the health and safety of the public” (emphasis in original).
• It is not required that public danger be imminent, or that there be an immediate threat of accident. “It is the danger which must be prevented and not the actual occurrence.”
• The burden of proof to demonstrate that activities and employees who perform them must continue during a work stoppage is with the employer.

The Board dismissed both of the employers' arguments, concluding that there was no evidence that emergency services would be adversely affected in the event of an interruption of public transit services any more than they usually were during peak hours and that the stress and decrease in air quality caused by increased road traffic would not create an immediate and serious risk to the health of the public.

This decision is under the Canada Labour Code which governs federal employers and those in the three nothern Territories. Alberta recently passed essential services legislation for the public sector which includes the following definition of “essential services”. They are “those services (a) the interruption of which would endanger the life, personal safety or health of the public, or (b) that are necessary to the maintenance and administration of the rule of law or public security.”

This is slightly different from the Canada Labour Code definition but we would expect that the narrow view of “essential” that is expressed in this decision would be similar to what the Essential Services Commissioner would apply in Alberta. The practical consequence is that the public will undoubtedly be inconvenienced by strikes far more than they were before these changes.