Ontario Public Service Employees Union v. The Crown in Right of Ontario Represented by Management Board of Cabinet - Essential and Emergency Services, 1995 CanLII 9977

[1995] OLRB Rep. June 735

4357-94-M Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario Represented by Management Board of Cabinet - Essential and Emergency Services, Responding Party

BEFORE: Judith McCormack, Chair, and Board Members O. R. McGuire and B. L. Armstrong.

APPEARANCES: Andre Bekerman, Joyce Hansen and John O'Brien for the applicant; David Strang and Kevin Wilson for the responding party.

DECISION OF THE BOARD; June 13, 1995

1. This is an application under section 36 of the Crown Employees Collective Bargaining Act, 1993 in which the parties have asked the Board to determined five matters which they were unable to resolve in the course of their efforts to reach an essential services agreement under Part IV of that Act.

2. The parties to this application are the Crown in Right of Ontario represented by Management Board of Cabinet and the Ontario Public Service Employees Union representing some 76,000 employees in the Ontario Public Service. They commenced negotiations with respect to an essential services agreement in July of 1994 and developed a structure for discussions which consisted of a central negotiating table and a number of local negotiating tables. Not surprisingly, the central negotiations tended to focus on broader questions designed to provide the basis for more detailed discussions at the local level. The five matters before us are disputes emerging from the central negotiations.

3. Since this is the first case in which the Board has been asked to determine essential services issues under Part IV of the Crown Employees Collective Bargaining Act, we find it useful to examine the framework under which this matter comes before us.

4. Prior to the passage of the Crown Employees Collective Bargaining Act, 1993, these parties did not have the right to strike or lockout. Rather when collective bargaining negotiations failed, they were required to settle their differences through interest arbitration. The new legislation supplants the old regime with one in which economic sanctions are available to the parties, but where essential services are protected in the event that those sanctions are utilized.

5. The creation of the new structure is accomplished by bringing Crown employees under the Labour Relations Act, subject to the modifications set out in the new statute. And while the thrust of the legislation is clearly to provide the parties with the kind of collective bargaining regime that applies to most employees in the private sector, there are a number of specialized features to the bargaining process reflecting the proposition that disruption of certain kinds of government services may create unique problems.

6. Nowhere is this more apparent than in Part IV, which provides a comprehensive approach to the identification and protection of essential services. Those provisions are in part as follows:

PART IV ESSENTIAL SERVICES

30. In this Part, "essential services" means services that are necessary to enable the employer to prevent,

(a) danger to life, health or safety,

(b) the destruction or serious deterioration of machinery, equipment or premises,

(c) serious environmental damage, or

(d) disruption of the administration of the courts or of legislative drafting;

"essential services agreement" means an agreement between the employer and trade union that applies during a strike or lock-out and that has,

(a) an essential services part that provides for the use, during a strike or lock-out, of employees in the bargaining unit to provide essential services, and

(b) an emergency services part that provides for the use, during a strike or lock-out, of employees in the bargaining unit, in addition to those referred

to in clause (a), in emergencies.

31.-(1) An employer of Crown employees and a trade union representing Crown employees who have or are negotiating a collective agreement shall make an essential services agreement.

(2) The employer and the trade union shall bargain in good faith and make every reasonable effort to make an essential services agreement.

32.-(1) The essential services part of an essential services agreement must include provisions that,

(a) identify the essential services;

(b) set out how many employees in the bargaining unit from what employee positions are necessary to enable the employer to provide the essential services; and

(c) identify the employees who the employer and trade union have agreed will be required during a strike or lock-out to work to the extent necessary to

enable the employer to provide the essential services.

(2) In clause (1)(b), the number of employees in the bargaining unit that are necessary is how many are necessary taking into account the persons, other than members of the bargaining unit, that the employer is allowed to use under the Labour Relations Act.

33.-(1) An employer and trade union who do not have an essential services agreement shall begin to negotiate one,

(a) if they have a collective agreement, at least 180 days before the agreement ceases to operate; or

(b) if a notice under section 14 of the Labour Relations Act has been given, within fifteen days of the giving of that notice.

(2) An employer and trade union may begin to negotiate at a time later than that required under subsection (1) if they agree to do so.

34. In negotiating the essential services part of an essential services agreement, the employer and trade union shall negotiate with respect to the following issues in the following order:

35. What types of services are essential services.

36. What levels of the types of essential services are necessary to prevent,

i. danger to life, health or safety,

ii. the destruction or serious deterioration of machinery, equipment or premises,

iii. serious environmental damage, or

iv. disruption of the administration of the courts or of legislative drafting.

3. What employee positions are necessary to enable the employer to provide the types of essential services at the necessary levels.

4. How many employees in the bargaining unit, in employee positions referred to in paragraph 3, are necessary to enable the employer to provide the essential services at the necessary levels.

5. Which employees will be required during a strike or lock-out to work to the extent necessary to enable the employer to provide the essential services.

36.-(1) On application by the employer or trade union, the Ontario Labour Relations Board shall determine any matters that the parties have not resolved and in doing so the Board may,

(a) determine any matters to be included in an essential services agreement between the parties;

(b) order that terms specified by the Board be deemed to be part of an essential services agreement between the parties;

(c) order that the parties be deemed to have entered into an essential services agreement; and

(d) give any other such directions as the Board considers appropriate.

(2) The Board may consult with the parties to resolve any matter raised by the application or may inquire into any matter raised by the application, or may do both.

(3) The Board may make any interim or final order it considers appropriate after consulting with the parties or on an inquiry.

(4) On a further application by the employer or trade union, the Board may modify any determination or direction in view of a change in circumstances.

39.-(1) In an application or complaint relating to this Part, the burden of proof that services are essential services lies upon the party alleging that they are.

(2) In an application or complaint relating to this Part, the burden of proof that circumstances constitute or would constitute an emergency lies upon the party alleging it.

40.-(1) During a strike or lock-out, the employer is entitled to use, to provide essential services, such employees in the bargaining unit as are necessary as provided in the essential services part of the essential services agreement.

(2) The employer shall notify the employees who, under the essential services part of the essential services agreement, the employer is entitled to use under subsection (1) during a strike or lock-out.

(3) Employee who have been notified by the employer or trade union that the employer is entitled to use them under subsection (1) may not strike and may not be locked out.

(4) Unless the employer and trade union agree otherwise, the terms and conditions of employment and any rights, privileges or duties of the employer, the trade union or the employees in effect before it became lawful for the trade union to strike or the employer to lock out continue to apply with respect to employees used under this section.

41.-(l) In an emergency during a strike or lock-out, the employer is entitled to use such employees as the emergency services part of the essential services agreement provides for.

(2) Employees who have been notified that the employer is entitled to use them under subsection (1) and wishes to do so may not strike while the employer is so entitled and so wishes.

(3) Unless the employer and the trade union agree otherwise, the terms and conditions of employment and any rights, privileges or duties of the employer, the trade union or the employees in effect before it became lawful for the trade union to strike or the employer to lock out continue to apply with respect to employees used under this section.

42.-(1) A party to an essential services agreement may apply to the Ontario Labour Relations Board for a determination as to whether meaningful collective bargaining has been prevented because of the agreement.

Section 13 also provides as follows:

It is an additional requirement to those in subsection 74(2) of the Labour Relations Act that the employer and the trade union must have an essential services agreement under Part IV before an employee may strike or the employer may lock out an employee.

7. In essence, then, the legislation defines essential services and requires the parties to enter into an essential services agreement. Such an agreement is a mandatory precondition to the use of economic sanctions. Part IV defines the contents of the agreement, imposes a duty to bargain in good faith in this regard and sets out what issues the parties must negotiate and in what order. If there are issues the parties cannot resolve, either may apply to the Board for various kinds of determinations, orders and directions. The burden of proof in those proceedings that services are essential or emergency services lies on the party alleging so.

8. Employees designated to provide essential or emergency services are prohibited from striking or being locked out, and the terms and conditions of employment and rights, privileges and duties preceding the labour dispute are frozen for those employees. If as a result of the essential services agreement meaningful collective bargaining has been prevented, section 42 provides that the Board may also direct a series of remedies including further mediation and arbitration of the collective agreement.

9. It is evident that the legislation reflects some of the philosophical tensions often identified with respect to public sector bargaining. On the one hand, there is no doubt that its intent is to provide government employees with a form of collective bargaining that more closely matches the traditional model. This is consistent with the view that the original objections to collective bargaining by public employees have been largely eroded by a combination of analysis and experience. The trend to move government functions to the private sector, often coupled with comprehensive regulation of those functions, has also had the effect of blurring both the lines between the private and public spheres, and the rationale for differential bargaining regimes. In addition, there is increasing recognition that there is a public interest in an equitable workplace and the harmonious labour relations which can be the product of collective bargaining.

10. At the same time, it is still undeniable that many functions performed by public employees play a unique role in the social fabric, especially those associated with more vulnerable citizens who may depend on government assistance for the most basic and critical of human needs. Moreover, increasing awareness of health, safety and environmental issues highlights the fact that there are areas in which all citizens are susceptible to harm. This is brought into even sharper focus in circumstances where the use of economic sanctions may have a greater impact on the public than either bargaining opponent, and where that third party impact may largely capture both the spotlight and the attention of the parties.

11. The form of the legislation which brings government employees under the Labour Relations Act suggests that the intention of the Legislature was to fashion a regime which to the extent possible reflects the kinds of rights and dynamics in that Act applicable to other employees in Ontario. At the same time, the specialized aspects of the collective bargaining process contained in the new statute also indicate legislative recognition that while there are many overlapping characteristics between private and public sector bargaining, there are significant differences as well. The provision for mediation and arbitration where collective bargaining is no longer meaningful as a result of an essential services agreement supports both propositions. It indicates that one of the tasks facing the Board in this process is to ensure that collective bargaining is as meaningful as possible, but also that there may be times when that is not feasible and a residual mechanism is required.

12. To some extent this begs the question of what constitutes meaningful collective bargaining. It is also true that the highly constructed process of the "controlled" strike or lockout can give rise to an air of artificiality which tends to undermine some of the traditional underpinnings of collective bargaining that have to do with theoretical notions of voluntarism and economic freedom. Nevertheless, this is not so different in many ways from the heavily regulated sphere of private sector bargaining, and it is still possible to distil these ingredients as critical to the legislation in both sectors: that arm's length parties sit down to negotiate the terms and conditions of employment and that they are assisted in this endeavour by the threat of effective economic sanctions.

13. The dilemma inherent in this legislation is that the concept of essential services carries with it the seed for subverting collective bargaining significantly. Removing essential services from the ambit of a strike may eliminate the most potent part of the strike weapon, leaving it an empty shell. And while such sanctions are not frequently resorted to in the overall landscape of collective bargaining, it is axiomatic that the underlying threat of economic conflict is what drives the vast majority of uneventful negotiations and contract settlements. To the extent that the designation of essential services renders the strike sanction relatively toothless, the salutary effect of economic pressure is likely to be correspondingly impaired. Moreover, there is some irony in the parties being required to, in essence, negotiate their own bargaining strength through the essential service agreement process. In addition, it is also fair to say that substantial dilution of that strength may unduly protract a labour dispute.

14. Recognition of this conundrum is reflected in the definition of essential services in section 30 which confines the identification of those services within prescribed limits. It is apparent from both section 30 and the overall scheme of this legislation that such designations are intended to be the exception, rather than the rule.

15. Balancing the opposing elements of this scheme is a delicate and challenging proposition. We anticipate as well that each specific situation brought before the Board will carry with it many of these conflicting tensions in microcosm.

16. Often, however, there is a quality of rough justice to adjudication in this area. Much of what adjudicators need to make sound decisions is either so detailed as to be unworkable in a case of this scale, or unknowable, at least in the absence of any previous strike or lockout history. If we are to be candid about adjudication in this area, at least at this point, we must admit that our decisions will be approximate in a forum in which we would prefer prescience.

17. For this and other reasons, the emphasis in the legislation on the parties reaching agreement in this area is extremely important. As employers and employees in the various institutions and functions involved, they are in a much better position to make these kinds of assessments and to create sounder and flexible solutions. It is fair to say that the parties before us had clearly devoted a great deal of time, energy and commitment to this process and had been highly successful in agreeing on much both centrally and locally. For the first round of such essential services discussions, where the parties were grappling with a new process and very speculative facts, the extent of agreement they were able to reach first on their own, secondly with the assistance of the Ministry of Labour's Office of Mediation and finally with the help of the Board's Labour Relations Officers and Vice-Chairs represents a considerable achievement. In part, that explains our desire to assist them in resolving their remaining disputes in the adjudication forum to the extent possible.

18. However, we encountered two problems in the course of considering the central issue disputes before us. In the first place, the nature of those disputes tended to be broad, as one might expect with central issues which span a group of 76,000 employees. It was not possible with matters of this nature to adjudicate on the basis of the kind of specific facts that the Board usually has available to it to ground its decisions, since those facts would have taken an extraordinary time both to assemble on the part of the parties and to digest on the part of the Board. Moreover, there was no assurance that such details would have been particularly helpful, given the uncertainty attendant on the fact that there had been no previous strike or lockout history in the untested circumstances before us. The effect was to highlight the rough justice problem referred to earlier.

19. Secondly, it was clear that the parties had decided to agree on not just the sort of essential services issues contemplated by the legislation, but on a comprehensive strike/lockout protocol at the same time. This made eminent sense in terms of the exercise in which they were engaged, and we had no wish to discourage it. The result, however, was to put before us unresolved issues that had in some cases fairly remote links to essential services issues, and as will be seen, about which we had some reservations in regard to our jurisdiction as a result. We took both these problems to mean that some creativity on the part of the Board was necessary in addressing the needs of the parties.

20. Before turning to the specific disputes before us, we find it useful to say a word about the procedure we employed in hearing this matter. The legislation permits the Board to hold either a hearing or a consultation. The latter is a new form of adjudication which the Board has utilized in jurisdictional disputes with excellent results in terms of saving the parties and the taxpayers a considerable amount of time and money. It is particularly well-suited to cases where there is a significant amount of technical evidence and where credibility issues do not loom large in the proceedings. At a time when litigation has become expensive and time-consuming, consultations can offer a nimble form of adjudication without diluting the quality of justice. While the consultation is intended to be a flexible process which the Board can tailor to the contours of each case, it usually involves the filing of written material rather than viva voce evidence, followed by some opportunity for oral submissions.

21. We turn now to the five specific issues before us.

I. Definition of Essential Services

22. The parties' dispute with respect to the definition of essential services focused on what types of services should be classified as essential, as opposed to those designated as emergency services. Under section 30, an essential services agreement is defined as having both an essential services part and an emergency services part. The significance of this dispute is that employees performing emergency services are treated differently under the Act than those performing essential services. Section 40(3) provides that employees required to provide essential services may not strike and may not be locked out. Section 41(2) indicates that employees required to provide emergency services may not strike, but only for the period for which they are performing those services.

23. The gist of the union's submission was that as many employees as possible should be designated as performing emergency rather than essential services. To this end, the union proposed that essential services be defined as those work functions that are continuous in nature. Intermittent work, whether or not it is regular or predictable, should be considered emergency services. The reason for the union's concern was that the parties anticipate between 15,000 and 20,000 employees will be performing services during a strike or lockout. The union argued that its ability to mount an effective strike will be seriously compromised if such a large number of employees are legally prohibited from participating in the strike at all, as are those performing essential services. The situation is less problematic for those performing emergency services who will be on strike, except for the periods of time they will be supplying those services.

24. The employer argued that "essential services" are defined under section 30 of the Crown Employees Collective Bargaining Act, 1993, and that the Board cannot rewrite that portion of the legislation. Counsel was also concerned that the language that the union proposed which refers to work functions would limit its discretion to assign work as it saw fit, and counsel argued it would have the undesirable effect of the Board supervising the day-to-day allocation of work.

25. There is no doubt that the term "essential services" is defined in the Crown Employees Collective Bargaining Act, 1993, and we agree that the Board cannot rewrite that definition. Leaving aside the issue of the union's ability to mount an effective strike, however, it is also clear that employees performing essential services during a labour dispute are in an anomalous legal position in which their bargaining unit is on strike or locked out, but they are prohibited from exercising these rights. Given that the overall thrust of the legislation is to synchronize the labour relations of government employees with the private sector to the extent possible, we think that minimizing the number of employees in this unusual limbo is a legitimate proposition. In addition, the employer's interests are served by having the employees available to perform the services, however they are described. We also note that elsewhere in the agreement the parties have reached on some of the central issues, the employer has agreed to pay the benefit costs of employees classified as essential, in contrast to those employees required for emergency services work. The implication of this is that minimizing the number of employees designated as performing essential rather than emergency services may represent a cost saving to the employer.

26. As a result, although we are not prepared to make a determination with respect to the distinction between emergency and essential services which would fly in the face of the Act, we are willing to provide the parties with some assistance in this regard. Pursuant to section 36(1)(d), we direct that the parties endeavour to designate as few employees as possible as performing essential rather than emergency services.

II. The Waiver Issue

27. Sections 40(4) and 41(3) of the Crown Employees Collective Bargaining Act contain provisions stipulating that the prior terms and conditions of employment and rights, privileges and duties apply to employees providing either essential or emergency services unless the parties agree otherwise. It was common ground between the parties that this included the terms of the expiring collective agreement. The agreement contains clauses setting out the normal hours of work for employees on three different schedules.

28. The employer's concern was that it did not want to be bound to these normal hours of work for employees performing essential or emergency services because if a particular employee could only perform emergency services for a portion of those hours, they would be paid for remaining idle for the rest of them. Alternatively, the employer wished to be able to use the employees to perform non-essential services to fill up the remainder of the normal hours of work.

29. The union asserted that part-time employees amount to only 7.9% of the work force and that work is generally structured on a full-time basis. It pointed to the fact that the parties have been able to resolve this matter in most cases at the local level by arranging essential and emergency services work so that it can be performed by employees working the normal hours of work specified in the collective agreement. In addition, the union argued that that the Board cannot require it to waive the frozen collective agreement provisions, which can only take place by the mutual agreement referred to in sections 40(4) and 41(3). It also argues that a waiver of these provisions would have a domino effect in that other collective agreement articles affected by these provisions would also require waiving.

30. This dispute is not a simple one, involving as it does the meaning of the freeze provisions cited, the effect of the collective agreement and the Board's jurisdiction in this regard. Normally a disagreement with respect to the effect of the freeze provisions would come before us as a complaint under section 91 of the Labour Relations Act, alleging a violation. Although we do think that it is sections 40(4) and 41(3) that are determinative, we have some doubts about the advisability of rendering free-standing interpretations of those provisions in the context of a section 36 application.

31. At the same time, as we have indicated above, the importance of assisting the parties in their negotiations predisposes us to provide whatever guidance we can give in this area. We note among other things that in interpreting a similar provision in the Labour Relations Act, the Board has indicated that freeze provisions crystallize a workplace which is often an amorphous and fluid environment, and that the Board's approach to applying such provisions recognizes that fluidity. On the other hand, it also appears to us that sections 40(4) and 41(3) contemplate that changes will occur by the agreement of the parties, and we have significant reservations about the Board's ability to modify the terms, conditions, rights, privileges and duties by way of our jurisdiction under section 36.

32. It is true that the prospect of employees designated to perform essential or emergency services performing other kinds of work is antithetical to the entire scheme of these provisions. However, it is also seems unlikely that the Legislature intended these sections to operate to pay employees who perform essential services or emergency services for a portion of the day or week for the remaining time spent idle.

33. This is one of the situations we referred to previously where the absence of concrete facts creates significant problems in adjudication. We have no details before us to suggest that rearranging the work to fit full-time schedules is not feasible; on the contrary, the local agreements filed with the Board suggest the opposite. Then again, it may also be that they represent those situations where the parties did not have difficulties rearranging the work, as opposed to those outstanding.

34. In other words, it is not clear that there is a practical problem, as opposed to a disagreement between the parties in regard to their overall approach. In the absence of knowing this, we are inclined to provide some common sense direction to the parties as to the approach their local negotiators should be taking, and remained seized to address any particular problem on its facts.

35. In general then, given the primarily full-time composition of the work force, the collective agreement provisions reflecting the present structure of work, the intent of the Legislature as expressed in the freeze provisions and the limited facts before us in the form of the local agreements, we are of the view that the parties should be endeavouring to arrange essential or emergency work in such a manner as to allow it to be performed by employees working the hours in the collective agreement and we so direct. The limited information we have before us suggests that there is a reasonable possibility that this will resolve most of the parties' problems. If there are some instances in which such an arrangement is not possible, we anticipate some flexibility on the part of the union, keeping in mind that the freezes imposed by sections 40(4) and 41(3) are not likely to be absolute.

III. Extension of Non-classified Contracts

36. The union proposed that the contracts of all non-classified employees be extended by the length of a strike or lockout, unless business needs prevent the full or partial extension of the contract in a particular case. The employer argued that non-classified contracts should be extended or renewed based on the employer's business needs. The parties have agreed that non-classified contracts will not be terminated solely because the affected employees are engaged in a strike or lockout. There was little dispute that non-classified employees amount to approximately 30% of the work force as a whole.

37. In support of its position the union argued that if its proposal is not accepted, employees exercising their right to strike would be subject to a chilling factor, given that such a strike might consume part or all of their contract periods. In addition, a temporary employee without a definite contract period could be terminated for lack of work as soon as the strike commences, in essence having lost her job as a result of exercising her right to strike. This is a result which the union asserted is in violation of the Labour Relations Act. The union maintained that this is relevant to the issue of essential or emergency services because employees designated in this manner will have their contracts renewed, while those not designated will run the risk of losing their employment, a situation it described as discriminatory.

38. The employer was of the view that this issue is irrelevant to the provision of essential and emergency services, and is not within the jurisdiction of the Board under section 36. In addition, counsel advanced a number of substantive arguments including the fact that the employment

of non-classified staff may be seasonal such as snow removal or forest fire-fighting and that extension of these contracts was impractical.

39. This is an example of an issue which has only the most tenuous connection to the issue of essential or emergency services. While we understand the utility of the parties agreeing on a comprehensive strike or lockout protocol, the matter before us is not an all-purpose interest arbitration, but rather proceedings with specific parameters. In this regard we observe that section 36 provides that the Board "shall determine any matters that the parties have not resolved". In doing so the Board may "determine any matters to be included in an essential services agreement between the parties". Although at first glance this may appear to suggest relatively untrammelled jurisdiction, this provision must be read with section 34, which sets the stage for what the parties must negotiate. That section stipulates in a very specific manner that the parties must negotiate the types of services necessary, the levels of the types of services necessary, the employee positions necessary to provide those services at the necessary levels and how many and which employees will be required to provide them.

40. This does not, of course, preclude the parties from negotiating other matters relating to a strike or lockout and as we have noted, it may well be very sensible in terms of mature labour relations for them to do so. Moreover, we are not prepared to say at this early stage of adjudication in a new area that the jurisdiction of the Board is limited to the matters set out in section 34. However, we do think that any other issues the parties wish to put before the Board under section 36 should be at least similar in nature or bear some relationship to the matters set out in section 34.

41. In addition, much of the argument before us was highly speculative, based on what the employer might or might not do. We understand that the parties are trying to address these issues in a preventative manner, and this is certainly a worthy approach. Again, however, this is a matter which is difficult to adjudicate in the abstract, particularly since the parties indicated that there were quite a variety of different kinds of contractual arrangements for non-classified staff. Given the factual vacuum with which we are faced, the tenuous connection of this issue to essential services and our concerns about jurisdiction, we are not prepared to make any directions in this regard.

42. This does not necessarily mean that the parties are without relief. We note that the Labour Relations Act contains a number of provisions with respect to penalties for the exercise of statutory rights and employer interference, together with statutory obligations in regard to the return of employees to work after a strike or lockout, adjustment plans in the case of layoffs, and so forth. While we make no comments about the applicability of such provisions, a party who believes that they have been violated may file a complaint to this effect, and the Board will rule upon it based on the facts of the matter at that time.

IV. Benefits

43. The parties were in dispute with with respect to two issues in the areas of benefits. Firstly, they disagreed as to the point at which the employer should cease to pay benefits during a strike or lockout, with the union asserting that it should pay until the end of any month in which an employee has performed one day or more of work, and the employer arguing that it should only pay until the first day of a strike or lockout. Secondly, the parties disagreed on how benefits are to be paid for employees performing emergency services.

44. The first issue lacks even the most tenuous link to the designation of essential services. Rather, it addresses the payment of benefits for those employees who are not performing essential or emergency services. While this is a perfectly appropriate subject for a strike or lockout protocol agreement, its proximity to the matters addressed in sections 34 and 36 is so remote that even assuming we have the jurisdiction to address it, we would not do so. While we wish to provide the parties with as much assistance as possible, as we noted earlier, we do not think that the intent of the Legislature was to have proceedings under section 36 resolve all matters in dispute between the parties with respect to strike or lockout procedures generally. This would be inconsistent with the thrust of the new legislation to normalize collective bargaining in this sector, since matters such as this would usually be addressed in collective bargaining and in the context of the provisions of the Labour Relations Act, rather than by a form of interest adjudication.

45. The second issue is one which is again properly a matter of the interpretation of section 41(3). The union asserted that its position reflects the current practice between the parties, and this is not disputed. If that is so, it may well be that section 41(3) provides the answer to the parties' query. We note as well for the parties' assistance that while we agree that a leave of absence is not the same thing as a strike, employees performing emergency services are not on strike for the period they are working. However, the union suggested that this was a matter that could be the subject of further negotiations, and in light of our comments above we so direct.

V. Selection of Bargaining Unit Members for Essential/Emergency Services

46. The parties have agreed on a detailed system for the selection of employees to perform essential or emergency services which involves using draws of classified and non-classified employees to create an ordered list. They disagree, however, on the stage at which those draws should take place. The union proposes that the draws take place before the strike vote, while the employer argued that this process should not occur until eight working days before a strike or lockout would occur.

47. The employer expressed concern that if the draws take place before a strike vote, more employees might vote in favour of a strike knowing that the impact upon them will be lessened because they will be performing essential or emergency services. In addition, the employer did not wish to engage in the exercise of the draws if employees vote against a strike. Counsel also argued that if the ordered list is created too early in the bargaining process, it may need substantial revisions at the point of a strike or lockout as a result of employee movement or turnover.

48. The union pointed out that the employer's proposal would mean that draws for 15,000 to 20,000 employees at roughly 2,000 work sites, notification of those employees, and a mechanism for resolving disputes in this regard by arbitration would all have to take place within the eight working days prior to a strike or lockout. It argued that the last seven months of bargaining have demonstrated that with the best of intentions in the world, the employer has not been able to quickly obtain and organize information from the Ministries, and that the payroll data is quite different from that obtained from the Ministries. The union advised that it is quite willing to undertake any revisions to the list that are necessary as a result of employee turnover and movement.

49. The employer's argument with respect to the interest of employees in a strike is similar to those advanced earlier by the union in regard to both the issues of unclassified employee contracts and the impact of the definition of essential services on its ability to mount a strike. While we are acutely aware that our decisions on essential services matters may have significant ramifications in terms of the attractiveness of a strike or lockout to either of the parties, we are not prepared to make determinations on the basis of those ramifications. To do otherwise would suggest that we either deliberately assist one side or another, or that we enter into some assessment of bargaining strength and the appetite for economic sanctions on each side and attempt to balance these factors. We doubt that the former exercise is appropriate for an impartial quasi-judicial tribunal like the Board in the absence of some statutory mandate in this regard. The latter, on the other hand, appears to us unlikely to be justiciable where bargaining strength is not capable of meaningful measurement, and where even if it were, the appropriate balance is steeped in controversy.

50. Although the argument that the draws will be unnecessary if employees vote against a strike is initially appealing, we note that it does not address the situation of a lockout. Moreover, the entire process of negotiating an essential services agreement is unnecessary if there is no labour dispute, and it was not suggested that this would mean such negotiations would commence only after a strike vote is taken. In addition, there is nothing to stop the union from taking more than one strike vote, and the results may differ at different stages of the process.

51. It is also evident that the intention of the statute is that essential services matters be dealt with at an early stage of the negotiations. In this regard section 33 provides as follows:

33.-(1) An employer and trade union who do not have an essential services agreement shall begin to negotiate one,

(a) if they have a collective agreement, at least 180 days before the agreement ceases to operate; or

(b) if a notice under section 14 of the Labour Relations Act has been given, within fifteen days of the giving of that notice.

(2) An employer and trade union may begin to negotiate at a time later than that required under subsection (1) if they agree to do so.

Whether or not the union is correct in asserting that this provision indicates that the essential services negotiations are to take place early in the process so that they will not be hindered by the emotions running high in closer proximity to a strike or lockout, it is at least clear that the parties are to address their essential services agreement at a preliminary point in their negotiations.

52. We do, however, share the employer's concern that revisions of the list due to employee movement and turnover be kept to a minimum. In this regard, we observe that the union indicated such revisions might involve as many as 5,000 employees. In addition the parties have themselves agreed that final revisions to the lists will occur immediately following a strike vote and rejection of the employer's offer.

53. The problem with the employer's proposal is that it appears extraordinarily optimistic to think that the draws, notifications and any dispute resolution necessary on the massive scale required could all take place within eight working days. As counsel for the employer conceded, we are dealing with an enormous and complex structure with diverse and widespread workplaces. At the same time, we have no information from the parties as to what a realistic period of time for this process would be. Nor is it apparent on the limited information before us that the draws could not take place before a strike vote but within reasonable time before the point at which a strike or lockout becomes legal. Among other things we note that although negotiations are to commence at an early point, and although it makes sense to have the draws at a later point, the timing of the strike vote appears to be a floating variable within the control of the union.

54. In the absence of any information suggesting structural inflexibility in this situation, we provide the following general guidance. We direct that the parties negotiate a time for the draws which:

(a) may be prior to a strike vote;

(b) should be within reasonable proximity to the time at which a strike or lockout could take place; but

(c) must allow ample time to complete the list process before such strike or lockout.

55. Finally, the parties were also in dispute with respect to a mechanism for resolving last-minute problems arising in the area of essential or emergency services. Both agreed that given the size and complexity of the work force, there was the distinct possibility that some small work site might be overlooked in this process, and both asserted that such an error should not bar a strike or lockout. Neither wished to have the exercise of economic sanctions in regard to 76,000 employees held up by a situation that might be discovered at the brink of a labour dispute. Rather, they proposed differing mechanisms for resolving oversights of this kind.

56. At the hearing, we indicated to the parties our concern that the language of both of their proposals to the effect that the parties could strike or lockout before resolving problems of this nature appeared to be in conflict with section 13 of the Crown Employees Collective Bargaining Act 1993, which in conjunction with section 74(2) of the Labour Relations Act prohibits labour disputes until the employer and the union have an essential services agreement. While we accept that their mutual concern in this area may well make sense from a practical standpoint, we are of the view that we cannot direct the inclusion of provisions in an essential services agreement that allow for a strike or lockout before the completion of that agreement.

57. Although we are not prepared to make orders which suggest that the parties are contracting out of the Act, it does seem to us that the question of when an essential service agreement exists is a factual matter within the realm of the parties' agreement. Moreover, it is apparent that problems may arise at any time, including during a strike or lockout without having the effect of implying that an essential services agreement has not been completed. Indeed, section 41 refers to emergencies during a strike or lockout, and the parties have agreed upon a definition of emergency services which includes "any other unforeseen circumstances which call for immediate action that falls within the definition of section 30". Section 38 also provides that a party may apply to amend an agreement.

58. All of this suggests that last-minute or unforeseen difficulties do not necessarily mean that an essential services agreement has not been completed. As a result, the parties could strike or lockout, and still address these matters.

59. With respect to the manner in which the parties might address them, the employer made a new proposal at the hearing for a dispute resolution mechanism which involved interim selection by agreement. Where agreement could not be reached, assignments would be made on the basis of seniority until a 36-hour mediation/arbitration process could be completed. The union indicated that it was prepared to agree to such a proposal. As a result, we remit this matter to the parties to work out the details.

60. In light of the general nature of the directions we have made in this decision, we remain seized to assist the parties with implementation problems.