[1999] OLRB REP. JANUARY/FEBRUARY 21

2879-98-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 which services involving administration of the courts and involving preparation for Y2K (Year 2000) are essen­tial -Board ruling that administration of the courts is to continue during a strike or lock-out without any disruption - Board holding that essentiality of Y2K compliance depends on project by project assessment and that specific projects should be negotiated by the parties - Board describing process whereby Crown may re-apply at or before commencement of strike or lock­out with respect to any Y2K preparation service not now essential

BEFORE: Robert Herman, Alternate Chair.

APPEARANCES: Don Eady, Lily Harmer and Timothy Hadwen for the applicant; Leonard Marvy, Brian Loewen, Greg Gledhill and Stephanie Crawford for the responding party.

DECISION OF THE BOARD; January 27, 1999

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 with respect to two issues:

(a) which services involving the administration of the courts are essential, and

(b) which services involving preparation for Y2K (Year 2000) are essential.

2. Although as filed, the application also raises the question of which aspects of legislative drafting are essential, at the hearing the Board was advised that it was unnecessary to deal with this issue.

3. Section 30 of CECBA reads as follows:

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 essentials")

"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. ("entente sur les services essentiels")

4. Turning first to the issue of the administration of the courts, the parties were disagreed over whether any inconvenience to or disruption of the administration of the courts was inconsistent with the legislation. Having regard to the written and oral submissions of the parties, the Board is satisfied that the administration of the courts is to continue during a strike or lock-out, without any disruption.

5. There are two reasons for this conclusion. First, when one looks at the language used in the definition of "essential services" in section 30, one sees that the qualifying adjective "serious" is used with respect to subsections (b) and (c), but no such qualifier is used in subsection (d), in describing "disruption of the administration of the courts", nor in subsection (a), which refers to "danger to life, health or safety". The use of the qualifier "serious" in subsections (b) and (c) and its absence from subsections (a) and (d), suggest a legislative intention that the "danger" (the word used in (a)) or the "disruption" (the word used in (d)) were not intended to be qualified in any respect.

6. Second, the nature of this essential service, the administration of the courts, itself suggests that any disruption is inconsistent with the provision of the service. The legislation describes a particular service, unlike what is done in subsections (a) (b) and (c). This suggests that the legislative intent was to exempt the entire service, the administration of the courts, from any disruption.

7. The Board concludes that the "essential services" necessary to enable the employer to prevent disruption to the administration of the courts includes any services that would enable the administration of the courts to continue on the basis that it was prior to any strike or lock-out. Delays or inconvenience would amount to disruption of the administration of the courts.

8. By "administration of the courts", the Board means all the services necessary in order to allow the courts to administer themselves with respect to the operation of the courts themselves, on a day-to-day basis. More specifically, this would include the courts' ability to continue to administer itself as it did previously with respect to the scheduling of hearings or proceedings, the preparation by the courts themselves for those hearings or proceedings, and the conducting of those hearing or those proceedings, and the preparation for and the issuing of any decisions that flow therefrom. Also included would be any of the court officers necessary in order to allow payment into or receive funds paid to the courts with respect to any proceedings. With respect to this latter point, this would include any court apparatus necessary to ensure that payment into court, as directed by the court, can be effectuated, failing which some other penalty or contempt might apply.

9. What is not included in this "essential service" are services which fall beyond the parameters just described, which are more properly described as services dealing with the administration of justice. It is only with respect to the operation of the courts themselves that the legislature, in section 30(d), has concluded that an "essential service" is involved. This is not to suggest that services falling outside this ambit, but within the administration of justice, would not qualify as "essential services" for reasons falling within subsections 30 (a), (b) or (c). That would depend on the particular circumstances, and that issue does not fall to be dealt with in the instant proceeding.

10. In terms of providing further assistance to the parties, the following services or positions would fall within "the administration of the courts":

11. Courtroom personnel as referred to in paragraphs 15 to 19 of the Crown's Brief;

12. Court Officers, referred to in paragraphs 26 and 27 of the Crown's Brief;

13. Judicial Support, as referred to in paragraphs 28 to 32 of the Crown's Brief.

With respect to #3, this would include the judges' secretaries, law clerks, and Crown Co-ordinators, and library services insofar as they are being utilized by the judiciary, or other court officers, to assist with the performance of their duties.

11. With respect to Litigation Support, (see paragraph 33 of the Crown's Brief), only certain aspects of Litigation Support fall within the "administration of the courts". Where the Crown is involved in a prosecutorial role, as statutorialy authorized, whether with respect to the criminal law or provincial offences, the performance of this role would constitute the provision of an "essential service". Similarly, the performance of the Office of the Children's Lawyer, since this office is appointed by the court to assist the court, would constitute an "essential service".

12. With respect to the services of the Family Responsibility Office, referred to in paragraph 38 of the Crown's Brief, the Crown has not provided sufficient detail for the Board to be able to determine whether the role of that office in any fashion constitutes an "essential service". Accordingly, the Board offers no decision with respect to that office. If the comments elsewhere with respect to the administra­tion of the courts do not enable the parties themselves to resolve this issue, a further application can be made to the Board in this respect.

13. The role of the Crown as litigant, or its role in seeking to execute upon judgements, do not fall within the "administration of the courts". Thus, for example, the Central Registry Office, referred to in paragraph 39 of the Crown's Brief, does not appear in the material filed to constitute an "essential service". Nor does the Law Library referred to in that same paragraph.

14. With respect to the Legal Services Branches of the Government, referred to in paragraph 40 of the Crown's Brief, unless the Crown is involved in a prosecutorial role, as referred to above, the services provided by those branches do not constitute an "essential service" (again, at least insofar as the issue of whether they fall within the provisions of section 30 (d) is concerned: they may constitute an "essential service" on one of the other headings under section 30).

15. Finally, Civil Enforcement, (see paragraph 59 of the Crown's Brief) whereby various officials of the Ministry of the Attorney General or other ministries would be involved in matters such as seeking to execute upon judgements, or attempting to seize and/or sell property, would not fall within the parameters of an "essential service".

16. The parties should now attempt to negotiate the positions and numbers of positions neces­sary to provide the defined "essential services" without disruption, to the extent necessary to provide the essential service components of any of those positions. This may mean, given the material before the Board, that a considerable number of existing employees in these positions, if not all in some circumstances, are appropriately designated "essential" during any strike or lock-out. At this stage, this is a matter best remitted to the parties.

17. Turning to the second issue, Y2K preparation personnel, after hearing the submissions of the parties at the hearing, the Board provided the following decision orally:

18. There are two issues put to the Board for its decision. To use the phrasing adopted by the Crown in its submissions, can Y2k services be essential, and if so, what directions are appropriate for the Board to issue to assist the parties in negotiating in this area?

19. In order to be an "essential service" in this context, the primary service itself must be essential, the computer component involved in the delivery of that service must be essential, and the Y2K preparation services must also be essential. It is only if all three conditions are met that the Y2K preparation service will itself be found to be "essential".

20. With respect to Y2K compliance being "essential", it does not axiomatically follow, contraiy to the Crown's submission, that all Y2K efforts are "essential" until they are fully completed. Whether or not particular Y2K services are essential will depend upon the nature of the work involved, the projected timing of the Y2K preparation work, the detail of the service, the predicted problems, and so on. To put it differently, whether Y2K compliance is essential or not will depend on a project by project assessment.

21. Although it was suggested by OPSEU that the Crown has the ability to, and some obligation to, redeploy resources to ensure that Y2K compliance can take place without it being deemed "essential", in the Board's view the Crown is under no obligation to redeploy resources for this purpose, although it is free to choose to do so. Nor does the Crown have to ensure that there be a hack-up to the computer system in question, failing which, it must follow that the Y2K preparation is not essential.

22. The issue, put directly, is whether the Y2K projects in question are essential at this point in time. If not essential at this juncture, the Crown shall be free to reapply at or just before the commencement of any strike or lock-out. The parties should turn their minds to a precise description, if they deem it necessary, as to when either party can reapply in this respect, but in any event, the Crown shall be entitled to reapply no later than the commencement of any strike or lock-out. For clarity's sake, this right to reapply would arise with respect to any Y2K preparation service which is not now "essential", but which is asserted to be at the time of the commencement of a strike.

23. If the Crown continues to assert that any of the Y2K preparation services identified in Appendix A to its materials, are currently "essential", then this matter can be relisted forthwith to consider those projects. Before doing so, however, the Crown and OPSEU are to attempt to negotiate over this issue, something that has not yet occurred.

24. If the Crown should apply now for a declaration that any of the Y2K preparation services are currently essential, but the Board concludes that they are not now essential, then the Crown can reapply, before the commencement of any strike or lock-out, if it asserts they have by then become essential.

25. With respect to the question of estoppei raised by OPSEU, the Board need not deal with this further. Even if the Crown has only recently added two new projects to its Appendix A, asserting that the Y2K preparation with respect to those projects is now essential, there is no prejudice so OPSEU, given the directions that have issued, and the fact that there will now be full opportunity for both parties to address in bargaining these issues".

26. These matters are both remitted to the parties to continue their negotiations, in light of the directions made herein. Should any issues arising from the instant decision or this application require that these matters be considered further, I am not seized.