[1999] OLRB REP. JANUARY/FEBRUARY 10
2834-98-M Ontario Public Service Employees Union, Applicant v. The Crown in Right of Ontario (as represented by Management Board Secretariat), Responding Party
Crown Employees Collective Bargaining Act - Board determining various issues in dispute regarding essential services agreement between OPSEU and the Crown, including ability of employer to require overtime, right of employer to change working conditions for employees providing essential services, identification of dispute resolution representatives at each work site, right of the employer to unilaterally increase number of workers consequent on an employee exercising a right to refuse to perform particular work under the Occupational Health and Safety Act (where the basis of the refusal is that the agreed upon numbers are too low), whether Crown Employees Collective Bargaining Act requires that parties negotiate essential roles or functions or whether they are only required to negotiate positions that are designated as providing essential work (so that employees in such designated positions can be required by the employer to perform all the work of those positions, and not only functions that involve providing essential service), qualifications of employees to perform specific essential or emergency services work, whether essential services agreement should include a justice and dignity clause, and rights of access to worksites by union representatives
BEFORE: Robert Herman, Alternate Chair.
APPEARANCES: Lily Harmer, Don Eady, Tim Hadwen, Terry Stinson and Dave Chew for the applicant; Len Marvy, Brian Loewen, Doug Gray Gayle Fisher, Linda Wendel, Barry Thomas, Eugene Shapka and Brian Gaston for the responding party.
DECISION OF THE BOARD; January 27, 1999
1. This is an application under section 36 of the Crown Employees Collective Bargaining Act,
1993, (the "Act").
2. In a decision dated January 12, 1999, the Board earlier dealt with a number of matters in dispute. The instant decision deals with the remaining issues.
3. The relevant sections of the Act read as follows:
- Definitions - In this Part,
"essential services" means services that are necessary to enable the employer to prevent,
(a) danger to life, health and 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 lockout, of employees in the bargaining unit, in addition to those referred to in
clause (a), in emergencies.
31.(1) (Essential services agreements required - 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) Duty to bargain - The employer and the trade union shall bargain in good faith and make every reasonable effort to make an essential services agreement.
32.(1) 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.
- (1) When parties must begin negotiations - 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 16 of the Labour Relations Act, 1995 has been given, within fifteen days of the giving of that notice.
(2) Same - 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.
- 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;