Ontario Public Service Employees Union v. The Crown in Right of Ontario (as represented by Management Board Secretariat), 1998 CanLII 18306

[1998] OLRB REP. JULY/AUGUST 578

1006-98-M Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario (as represented by Management Board Secretariat), Responding Party

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES: Donald K Eady, Tim Hadwen, Andy Todd, Terry Stinson, David Chen and Alyssa Hamilton for the applicant; Leonard Marvy, Donna Holmes, Kevin Wilson, Gail Fisher, Greg Gledhill, Norman Manara, Janet Myers, Judy Stamp and Brian Gaston for the responding party.

DECISION OF THE BOARD; August 7, 1998

1. This is an application made pursuant to section 36 of the Crown Employees Collective Bargaining Act, 1993 ("CECBA"), seeking a determination from the Board regarding several issues arising out of essential service bargaining conducted pursuant to section 34 of this Act.

2. It would appear that the parties commenced bargaining with respect to concluding an essential services agreement in June 1998 and have participated in between five and six days of bargaining to negotiate an essential services agreement for the deemed bargaining unit. While they have made some progress, they remained divided on four issues. A consultation was held in this application on June 26, 1998, at which time the parties made submissions with respect to the following issues:

a) The inter-relationship between sections 32, 40(1) and 41.1 of CECBA in connection with the use of other persons to do the applicant's essential work under an essential services agreement;

b) What terms and conditions of employment apply to essential and emergency service workers under an essential services agreement;

c) What happens if a person designated essential pursuant to an essential services agreement does not show up for work; and,

d) What happens if a person designated essential pursuant to an essential services agreement exercises his or her right under the Occupational Health and Safety Act to refuse to perform unsafe work.

3. Part IV of the CECBA addresses "Essential Services". The relevant sections state:

4. Definitions.- 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; ("services essen­tiels")

"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; ("entente sur les services essentiels")

32.(l) Essential Services part.- 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) Same.- For the purposes of clause 1(b), the number of employees in the bargaining unit that are necessary to provide the essential services shall be determined without regard to the availability of other persons to provide essential services.

34. Agenda of negotiation, essential services part.- 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 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) Application to the Board.- 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) Same.- The Board may consult with the parties to resolve any matter raised by the applications or may inquire into any matter raised by the application, or may do both.

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

(4) Reconsideration.- 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.

38. (1) Enforcement of essential services agreement.- A party to an essential services agreement may apply to the Board to enforce it.

(2) Amendment of agreement.- A party to an agreement may apply to the Board to amend it,

(a) if the agreement does not provide for services that are essential services;

(b) if it provides for levels of service that are greater or less than required to provide the essential services; or

(c) if it provides for too many or too few employees in the bargaining unit to provide the essential services.

(3) Order.- On an application under this section. the Board may enforce the agreement or amend it and may make such other orders as it considers appropriate in the circumstances.

(4) Same.- Subsection 32(2) applies with necessary modifications when the Board is deciding an application under subsection (2).

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

(2) Notification of employees - 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) Limitation on strike, lock-out rights - Employees 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) [Repeated SO. 1995, c1. s.43]

41. (1) Use of employees, emergency services.- 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) Limitation on strike rights.- 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) [Repealed SO. 1995, c1 s.44.]

41.1 (1) Use of other persons.- An essential services agreement shall not directly or indirectly prevent the employer from using a person to perform any work during a strike or lock-out.

(2) Same.- A provision in an essential services agreement that conflicts with subsection (1) is void.

a) The inter-relationship between sections 32, 40(1) and 41.1 of CECBA in connection with the use of other persons to do the applicant's essential work under an essential services agreement

4. The Ontario Public Service Employees Union ("OPSEU" or the "union") requests that the Board issue an order that the responding party (the "Crown" or the "government employer") cannot utilize replacement workers during a strike or lock-out. Its alternate position is that the Board order that replacement workers cannot do any work in a workplace where essential service workers are working in accordance with an essential service agreement. In the further alternative, OPSEU requests that the Board order that replacement workers cannot do essential services work. The union defines replacement workers to include OPSEU members who cross the picket line to return to work, replacement workers or contractors hired by the Crown, and other Crown employees who would not normally be doing OPSEU bargaining work. Replacement workers would not include management or other excluded workers.

5. While OPSEU recognizes that the public sector's right to strike must be balanced against the public interest and need for essential services, it argues that in order to ensure a rational outcome of a labour dispute, there must be meaningful collective bargaining. To achieve meaningful collective bargaining, both a trade union and an employer must fear that a strike or lock-out may take place. Thus whatever scheme is in place to facilitate collective bargaining, it must maximize pressure on each side to ensure that quick and fair settlements are reached. The union points out that pursuant to section 2(1) of the CECBA, the Labour Relations Act, 1995 is deemed to form a part of this Act. One of the purposes of the Labour Relations Act, 1995 is to "promote the expeditious resolution of workplace disputes" (section 2(7)) and to "encourage co-operative participation of employers and trade unions in resolving workplace issues" (section 2(6)). The CECBA contains no purpose clause.

6. According to the union, Bill 117, which gave public sector employees the right to strike in 1993, maintained a balance between the public interest in the provision of essential services, the public interest in the right of organized employees to strike or for the employer to lock out its employees, and in the labour relations goal of meaningful collective bargaining. It achieved this by creating a regime in which the government employer could use its non-bargaining unit staff and designated essential service workers to do bargaining unit work which had been identified as essential so that services which had been agreed as essential to the public good could continue to be provided. Bargaining unit employees required to work during a labour dispute would work under the terms and conditions of employment prevailing prior to the labour dispute commencing. Bill 117 also minimized the number of bargaining unit employees who would be deprived of the right to strike by limiting the numbers of employees who would be designated as "essential" and therefore unable to strike. Thus, the government employer would feel the pressure of a strike or lock-out because it would have to use its human resources to the fullest to continue to provide essential services, the union would feel the pressure of having part of its membership unable to strike and of the employer ability to continue to provide some services even during a labour dispute. The Labour Relations Board was available to the parties after 10 days of a strike or lock-out to consider whether meaningful collective bargaining was being prevented for some reason, and had the power to order a number of remedies, including sending the parties to interest arbitration to settle the collective agreement if the Board was of the view that meaningful collective bargaining was not possible.

7. The union points out that as a consequence of the enactment in late 1995 of Bill 7 by the present government, the CECBA provisions regarding essential services were amended. Section 32(2), which required that in arriving at the number of bargaining unit employees necessary to provide essential services, the parties had to take into account all other persons who the employer could legitimately utilize, was removed (also referred to as the management off-set provision). Sections 40(4) and 41(3), which dictated the working conditions of those deemed essential or emergency workers, were also removed. The Board's power to refer the parties to interest arbitration if meaningful collective bargaining was not taking place was rescinded. Pursuant to the provisions of Bill 7, as reproduced above, section 32(2) requires the parties to arrive at the number of bargaining unit employees necessary to enable the employer to provide essential services without regard to the availability of other persons to provide these services (see section 38(4)). Even if the parties apply to the Board for an amendment to an essential services agreement ("ESA"), the Board must also decide on the number of bargaining unit employees necessary to enable the employer to provide essential services without regard to the availability of other persons to provide these services. Section 41.1 was added: That provision directs that an ESA shall not prevent the employer from using a person to perform any work during a labour dispute.

8. The union takes the position that the amendments to CECBA changed the balance of power so fundamentally that the right to strike had been rendered meaningless, and the essential services regime is now unworkable. The union argues that the Board, pursuant to the powers granted to it in section 36(1)(d) and (3), has the jurisdiction to remedy the imbalance by ordering that the Crown cannot use replacement workers and others.

9. Relying on a line of British Columbia Labour Relations Board jurisprudence, the union argues that the B.C. Board made a ruling of the sort sought here, and that that Board's decision was upheld on both judicial review and when it was further reviewed by the B.C. Court of Appeal. (See Beacon Hill Lodge v. B.C.N.U. and H.E.U., No. 2/86 B.C.L.R.B.; Beacon Hill Lodge v. B.C., [1986] B.C.S.C., No. 2431 B.C.J.; Beacon Hill Lodge v. B. C.N. U. and HE. U., No. 238/86 B.C.L.R.B.; Beacon Hill Lodge v. B.C., [1986] B.C.S.C., No. 1260 B.C.J.; Beacon Hill Lodge v. B.C., [1987] B.C.C.A. No. 713 B .C.J. The B .C. Labour Code did not contain a provision banning replacement workers. The union argues here that the Ontario Labour Relations Board has supervisory powers designed to preserve the balance between the union and employer parties to an ESA (see section 36(a) to (c), and sections 38 and 42).

10. Counsel for the Crown argues that Part IV of the CECBA, dealing with essential services, only requires the employer to bargain with the union about bargaining unit positions, and since the Labour Relations Act, 1995 does not restrict an employer from hiring replacement workers, it is open to the employer to do so. Furthermore, the Crown relies on the passage of section 41.1 for the proposition that the employer can specifically use anyone it wants to perform work during a labour dispute.

11. The Crown argues that the Board does not have the jurisdiction the union is arguing it does, and that the Board would be re-writing the legislation if it finds it does have it. According to the Crown the only power the Board has is to deal with matters related to an ESA, and to give the parties some direction to assist them in reaching an agreement or make orders in matters related to the ESA. Any order the Board makes would become part of the ESA, so that the Board's jurisdiction about the employer's use of other persons to perform work during a labour dispute is clearly restricted by the CECBA provisions. The Crown argues that the Board must recognize that the overriding objective is the continuation of services to the public and that the balancing of the interests of collective bargaining and the relative powers of the parties are secondary to this objective.

12. It is the employer's position that section 41.1 and other sections of Part IV are all designed to ensure that while the union and the Crown must bargain an ESA for bargaining unit members, there is nothing to preclude the Crown from using whatever other human resources it wishes to utilize during a labour dispute. It argues that section 41.1 has to have meaning, and that this section is consistent with the employer's view that there is a need to provide essential services, and to provide the employer with flexibility so that it can run its essential services at will using anyone it wishes to.

13. The employer suggests that the union is not without recourse if the employer uses replace­ment workers in great numbers: it can apply to the Board for a variation of the ESA with respect to the numbers of employees which the parties had originally agreed upon.

14. With respect to the union's reliance on the B.C. Labour Relations Board and related jurisprudence, the Crown states that the legislation in that province is quite different from the legislative mandate this Board has. The intent of the CECBA is that the parties are responsible for reaching an ESA, and the Board oversees that process. In B.C., that Board is responsible for determining essential services from the beginning of the process and has a much broader jurisdiction.

15. The second aspect of the union's position on this first area of dispute is that where the parties have agreed on the number of bargaining unit employees needed to provide essential services, and where they have agreed that the employer can use some of its own substitutes for those employees in an agreed-upon ratio, the employer cannot use any more persons to do the same functions. The union relies on the wording in sections 32 and 34 of the CECBA that the parties are to identify the employees who will be required during a labour dispute "to work to the extent necessary to enable the employer to provide the essential services” or to "enable the employer to provide the types of essential services at the necessary levels". The union argues that "necessary" and "to the extent necessary" connote a minimal number.

16. Section 41.1 of the CECBA specifies that an essential services agreement shall not directly or indirectly prevent the employer from using a person to perform "any work during a strike or lock­out", and that any provision in an ESA which conflicts with this provision is void. The union argues however that there is nothing in this section to prevent the Board from making an order that the Crown cannot use replacement workers. The Board's power, according to the union, is grounded in sections 36(1)(d) and 36(3).

17. I have carefully reviewed the parties' submissions and the provisions of CECBA. In my view, the Board has no power under the current Act to grant the union s request. As I analyze the legislative history, the Bill 117 version of CECBA struck a particular balance between the employees' right to engage in meaningful collective bargaining, on the one hand, and the protection of the public through the delivery of essential services, on the other. The current version of the statute rejects that balance between those interests as evidenced by the government's own submission wherein it argues that the continuation of services to the public is the overriding statutory objective. The value of the ESA in maintaining that earlier balance no longer obtains. The parties must still reach an essential services agreement and must identify the number of bargaining unit employees needed so as to enable the government employer to "provide the types of essential services at the necessary levels" (emphasis added, see section 34(3)). Yet on the other hand the parties must now negotiate about the number of employees necessary to provide essential services without regard to the availability of other persons to provide those same services (see section 32(2)). Section 41.1 further clarifies the point that the government employer is to be free to use anyone to do any work during a labour dispute. Therefore, the reference to "necessary levels" becomes somewhat meaningless. The labour relations consequence of the application of the CECBA provisions is that the government employer is able to require its unions to negotiate essential services agreements pursuant to which the government employer is assured that a certain number of its regular bargaining unit employees are deprived of the right to strike, and must attend at work during a labour dispute, AND, it can use replacement workers during that labour dispute.

18. In Beacon Hill Lodge v. B.C.N.U. and H.E.U., No.2/86 B.C.L.R.B. Jan. 3, 1986, the British Columbia Labour Relations Board expressed the sentiment that it is the role of that labour relations tribunal to maximize the amount of economic pressure on both sides to a labour dispute so as to encourage the parties to conclude a collective agreement and an end to a labour dispute. That Board's jurisdiction in the designation of essential services is derived from section 73 of the B.C. Labour Code, which states:

73.(l) Where a dispute between an employer and a trade union is not resolved, and as a consequence an immediate and serious danger to life or health is likely to or is continuing to occur, the minister may do either or both of the following:

(a) recommend that the Lieutenant Governor in Council, by order, prescribe a cooling off period not exceeding 40 days during which no employee or trade union shall strike and no employer shall lock out his employees or during which an existing strike or lock­out shall be suspended; or

(b) request the board to designate the facilities, productions and services it considers necessary or essential to prevent immediate and serious danger to life, health or safety, and the board may order the employer and the trade union to continue to supply, provide or maintain in full measure those facilities, productions and services and not to restrict or limit a facility, production or service so designated.

(2) The Lieutenant Governor in Council shall not make an order under this section more than once in respect of the same dispute.

Further, and pursuant to its general remedial powers, in that province the B.C. Board has the jurisdiction to control a public sector strike or lock-out so as to ensure that a balance of power between the parties is maintained while at the same time essential services are provided to the public.

19. In Beacon Hill Lodge, cited above, a hospital providing long term care was involved in a labour dispute and the Minister had referred the matter to the B.C. Board under section 73 of the Code.

The Board had designated the hospital an essential service. Beacon Hill Lodge then took the position that it should be entitled to relieve itself of the administrative pressure caused by the Board's designation by hiring paid replacement nurses instead of or in addition to those nurses required to work pursuant to the Board's decision. The B.C. Board, in refusing to grant the employer's request, stated as follows:

A strike under Section 73 which results in a request by the Minister to the Labour Relations Board that it designate essential services and provide for the maintenance of those services to the public in order to prevent immediate and serious danger to life, health or safety. does not result in a designation and nothing more by the Board. The Board's designation of essential services and subsequently the Board's orders as to how those services are to be provided is not a static order setting a minimum level of service to which either the union or the employer can react in labour relations terms to minimize the economic pressure caused by the Board's order. To put it another way, the Board's essential services designation does not provide a platform from which the employer can spring with self-help measures designed to eliminate the effect of the union's strike or of the union's resistance to a lock-out. The error to which Beacon Hill Lodge falls prey in this case is to forget that this is not a private sector non-essential industry labour dispute.

Were counsel for Beacon Hill Lodge to succeed in his interpretation of Section 73 of the Code, the exercise of the Board's discretion in designating essential services would be exercised with an air of unreality, to the extent that the Board would be required to pretend that the economic contest between the employer and the trade union simply did not exist. In our view, the Board's obligation to protect the public does not require the Board to operate with such a complete detachment from reality. Were counsel for Beacon Hill Lodge to succeed in this case, the Board would be limited to determining the number of members of the BCNU required to perform those services necessary to maintain the level of service essential to prevent immediate and serious danger to life, health or safety, in the event that the BCNU exercises its legal right to strike at Beacon Hill Lodge. The employer then would be entitled to hire additional replacement nurses and, more importantly, to require the Board's assistance in directing other union members to work alongside these hired strike replacements.

Rather than exercising its discretion in a neutral way with a view to maximizing the economic pressure on both sides to advance the public interest by shortening a labour dispute affecting an essential service, while at the same time ensuring that the labour dispute does not interfere with the provision of that level of services necessary or essential to prevent immediate or serious danger to life, health or safety, the employer would have the Board act in a manner which directly and powerfully advances the employer's interests. A Board order directing members of the HEU to work alongside hired paid replacements would have the certain result of removing any impact of the lawful strike on the employer. This result does not operate in the long term interest of the public, simply because without any economic pressure on the employer's side of the equation of the labour dispute, the dispute is likely to endure for a much longer time and to result in a much longer disruption to the public's access to that essential service. That is not the result contemplated by Section 73.

We decline to give the interpretation to Section 73 and to place the limits on the Board's power, pressed by counsel for the employer, which would have the result of placing Beacon Hill Lodge in a stronger position than a non-essential service employer to the extent that its ability to resist the strike would be advanced by the "assistance" of the Board in ordering HEU members to work alongside hired strike replacements, a result which would not occur in the private non-essential sector.

20. As noted earlier, the B.C. Board's decision was judicially reviewed (see Beacon Hill Lodge v. B.C., [1986] B.C.SC., No. 1260 B.C.J.). The British Columbia Supreme Court in its decision upholding the Board's decision stated:

21. An order of an inferior tribunal can sometimes be attacked as patently unreasonable. The Board's view that it is appropriate that union employees should not be required to work with non­union employees cannot be said to be patently unreasonable. It is the very sort of decision that is peculiarly within the skill and knowledge of the Labour Relations Board.

22. The Supreme Court decision was appealed to the B.C. Court of Appeal. That court unani­mously dismissed Beacon Hill Lodge's application, upheld the lower court decision, and found the Board's decision reasonable (see Beacon Hill Lodge v. B.C., [1987] B.C.C.A., No. 713 B.C.J.).

23. While the analysis and conclusion of the B.C. Board in Beacon Hill Lodge makes labour relations sense and addresses the fundamental and underlying issues inherent in the balancing of interests in public sector labour disputes, the Ontario Labour Relations Board is not subject to the same statutory framework. The CECBA only mandates the Board to address certain matters arising out of that statute, and makes no reference to the Board's general remedial powers under the Labour Relations Act, 1995. The thrust of Part IV of the CECBA, dealing with essential services, envisions the Crown employer and the trade union identifying the services which will be essential and then working out the number and identity of the bargaining unit employees needed to provide those essential services. It is only if and when one of the parties to the negotiations applies to the Board for assistance in resolving an issue that the Board is engaged in the essential services agreement process.

24. Section 36 must be read as a whole, and in doing so it would appear that the Board's powers are in relation to assisting the parties in reaching an essential services agreement. Section 38 allows the Board, again upon application by one party, to enforce or amend an ESA. Section 42 permits the parties to come back to the Board ten days after a work stoppage has commenced for a determination of whether meaningful collective bargaining has been prevented. These sections outline the Board's role in relation to essential services agreements.

25. Based on the scheme of the legislation before me I am of the view that a Board order or direction made as a result of an application under section 36 is an order or direction regarding the negotiation of the ESA. OPSEU concedes that section 41.1 of the CECBA specifies that an essential services agreement shall not directly or indirectly prevent the employer from using a person to perform "any work during a strike or lock-out". Therefore, in my view it is not open to the Board to order at this stage of the negotiations that the government employer cannot use replacement workers in the event of a work stoppage, or direct that that is a determination which the parties must be guided by in their negotiations for an ESA. OPSEU's two pronged request is therefore denied.

b) What terms and conditions of employment apply to essential and emergency service workers under an essential services agreement

25. The union position is that prior to the commencement of a labour dispute the terms and conditions of employment applicable to the essential and emergency service workers must be the subject of bargaining, and that the employer cannot unilaterally decide on those terms and conditions of employment. If that is not the case, the union suggests that the essential service workers will be in the position of being conscripted workers, in the sense that they must work, cannot strike, and could be paid whatever the Crown wants to pay them. The union requests that the Board order the employer to bargain with the union about the terms and conditions of employment of essential and emergency service workers. The remedy requested includes that the parties have an enforceable obligation to bargain in good faith; that if they cannot reach an agreement, that they can return to the Board which will impose a resolution; and, that the Board should provide guidance to the parties about these negotiations.

26. OPSEU relies on the wording of section 32 and points out that that provision only outlines what must be included in an ESA - it is open to the parties and the Board to decide what else may be negotiated into an ESA, subject to the other provisions of CECBA Part IV. Further, section 36(1)(d) gives the Board the power to determine "any matters that the parties have not resolved", and to give any directions which the Board considers appropriate. Section 36(3) is a broader provision designed to give the Board the power to make an interim or final order which it considers appropriate after consulting with the parties.

27. It would appear that prior to the consultation the employer had taken the position that it had no statutory obligation to negotiate about this matter. However, at the consultation the Crown indicated it was prepared to negotiate the terms and conditions of employment for essential service workers, to bargain in good faith, and to undertake to participate in the negotiations by 90 days before the end of the collective agreement, December 31, 1998. It asked the Board to make a direction to this effect, and indicated it would be prepared to have the Board direct that the parties can return to the Board on this issue if they cannot reach agreement.

28. The Crown view is that it has a unilateral right to set the terms and conditions of employ­ment, and it argues that the Board has no jurisdiction to do more than what the employer is already prepared to do. Notwithstanding this view, the employer undertakes to apply whatever agreement the parties reach regarding terms and conditions of employment in the event that there is a labour dispute and essential service workers are required to work.

29. The parties must reach an essential services agreement before a strike or lock-out can commence (see section 13). The CECBA mandates what an ESA must include, when the parties must begin negotiations, and the order in which matters are to be negotiated. However, nothing in Part IV suggests that the parties cannot negotiate about other matters which may be peripheral to the legislated agenda, but without which the agreements would not be operational. Section 36 does not limit the Board's powers in what matters it can assist the parties in resolving so that they can reach an ESA. It is sensible to have a broad provision of the sort that section 36 is as it provides parties with access to a neutral body to help them break a log jam. Such a mechanism is particularly important when the legislation clearly states that without an ESA, there can be no strike or lock out. If section 36 was not available, parties may never get past essential service agreement negotiations, and therefore not get to the real issue between them, the negotiations for a new collective agreement.

30. The Bill 117 version of CECBA included provisions pursuant to which essential and emergency service workers had their terms and conditions of employment frozen at the pre-work stoppage level. The employer's rights, privileges and duties were similarly frozen. The employer and trade union could agree to some other regime, but the default position was a freeze. (See sections 40(4) and 41(3) of Bill 117).

31. As a result of the Bill 7 amendments in 1995, these two provisions were removed. However, there is nothing in the CECBA to preclude the negotiation of terms and conditions of employment for the workers in question. Indeed, it is counter-intuitive that parties would be discussing what services were essential, the numbers of workers necessary, who those workers would be, and that the employer would be informing the individual workers that they had to work, but that there would be no discussion about what those workers were to be paid and under what conditions they would have to work.

32. In an employment context the main matters of concern to workers are what work they will be expected to do, and what their terms and conditions of employment will be. In a unionized environment, where there is a bargaining agent for a group of employees, it is the bargaining agent which should be negotiating what the workers' terms and conditions will be. In the particular context of these parties readying themselves for a strike or lock out, if these issues are not resolved, it would not be surprising if on the eve of a work stoppage the parties are faced with an extremely disgruntled workforce. Especially when that workforce is expected, and indeed legally obliged, to provide essential services to the Ontario public. This would not be a desirable labour relations result nor desirable from a public policy perspective.

33. For the reasons outlined above, the Board is of the view that good faith bargaining about the terms and conditions of employment for those essential and emergency service workers who may be required to work in the event of a work stoppage is a necessary part of the negotiations between OPSEU and the Crown. Therefore, pursuant to section 36(3) the Board orders that the parties negotiate the terms and conditions of employment for essential and emergency service workers. The parties are directed to bargain in good faith and make every reasonable effort to reach agreement on this matter. The Board does not believe that the parties would have sufficient time to address this matter if it is left to the end of negotiations, and would therefore encourage the parties to engage in these negotiations as part of the essential services agreement bargaining. The parties may return to the Board on this issue if they cannot reach agreement. The Board declines at this early stage in the negotiations to give any further guidance regarding this matter.

c) What happens if a person designated essential pursuant to an essential services agreement does not show up for work

34. OPSEU's position on this issue is that if an essential service worker, who is a member of the union, does not report for work, then the union will have to supply another worker to cover for that position. In the event that the essential service worker is a manager or other person, then the union would not be responsible for supplying an additional essential service worker to cover for the absence.

35. The Crown argues that if an essential service worker is unavailable to work, the employer has the right to use other persons to perform the work until the worker returns. It is of the view that section 41.1 permits the employer to use managers, returning OPSEU members who have crossed the picket line, or replacement workers in these circumstances.

36. The "Essential Services" section of CECBA defines these services in Section 30 as services which "are necessary to enable the employer to prevent" danger to life, health or safety; destruction or serious deterioration of machinery, equipment, or premises; serious environmental damage; or, disrup­tion of the administration of the courts or of legislative drafting.

37. Section 32 indicates what an essential services agreement must include: It must identify the essential services; it must 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 it must identify the employees who the employer and trade union have agreed will be required during a strike or lock­out to work to the extent necessary to enable the employer to provide the essential services. Subsection (2) of section 32 mandates that the number of bargaining unit employees necessary shall be determined without regard to the availability of other persons to provide essential services.

38. It is obvious from the provisions outlined above that the legislators, who are also the employers, have expressed a significant interest in ensuring that bargaining unit members are going to be working during a work stoppage to provide what the parties will have agreed are the essential services in the province. It is not simply a matter of agreeing that some number of employees will have to work, but rather, the precise positions of those needed must be identified, and who in those positions. It is therefore clear to the Board that the essential service workers agreed upon to work during a work stoppage are important to the overall goal of "enabling the employer to provide the essential services". That being the case, it seems obvious that if one of those workers is unable to perform the work for whatever reason, there must be some protocol in place to ensure that the employer has relatively quick access to another bargaining unit worker who would be able to provide the same apparently vital service.

39. The Board cannot accept the Crown's position that it can simply use "other persons". Section 32(2) specifically excludes consideration of other persons in arriving at the number of those bargaining unit members who are going to be essential. I cannot help but conclude that these sections are premised on a view that there is some precise number of bargaining unit members who are going to be key to the continued provision of essential services during a work stoppage.

40. The Board therefore directs the parties to negotiate as part of the essential service agreement a protocol to ensure that a designated bargaining unit essential service worker who is unable to attend at work can be replaced by another bargaining unit worker.

d) What happens if a person designated essential pursuant to an essential services agreement exercises his or her right under the Occupational Health and Safety Act to refuse to perform unsafe work

41. The parties agree that the Occupational Health and Safety Act ("OHSA") continues to operate in the workplace even if there is a labour dispute in progress. Hence, any essential service worker will continue to have the same rights she or he would normally have had pursuant to OHSA.

42. The employer position is that in accordance with the OHSA, it can replace a worker who makes a work refusal, so long as it does so in compliance with the provisions of that Act. Further, it argues that pursuant to section 41.1, it can use whoever it wishes to do the work in question. This is where the parties disagree. The OPSEU position is that who can be substituted to do the work of the refusing worker is a matter dependent on the terms of the essential services agreement. Thus, according to the union, the parties must develop a protocol to address who would replace a bargaining unit designated essential service worker.

43. The Board is in agreement with OPSEU on this issue. Once one accepts the premise that in negotiating the ESA the parties have had to agree on how many bargaining unit employees, from specific positions, are "necessary to enable the employer to provide the essential services", then the obvious implication of that is that without that number of persons from those positions the employer is not going to be able to provide the essential services. If that is the case, then if a bargaining unit employee who has been designated as essential exercises his or her right to refuse unsafe work, then it would be sensible for the parties to have worked out what the procedure will be to address the situation so that the employer continues to be able to provide the essential services.

44. The Board therefore directs that the Crown and OPSEU bargain as part of the essential service agreement a protocol for those situations where a designated essential service worker exercises the right to refuse unsafe work.