Prior to taking any steps towards a work stoppage, such as entering formal mediation, the Labour Relations Code requires AUFA and AU to determine if any AUFA work comprises an essential service. If so, AUFA and AU must negotiate an essential services agreement (ESA) to ensure that essential work continues during a work stoppage.
The Labour Code also allows either party to apply for an exemption on the basis that no AUFA work meets the threshold test of “essential”. Earlier this month, AUFA’s executive decided to file for an ESA exemption on the basis that no AUFA work comprises an essential service. This blog explains what this ESA exemption application means and outlines the next steps.
Essential Services Agreements
Section 95.1(a) of the Labour Relations Code defines an essential service as “those services, the interruption of which would endanger the life, personal safety or health of the public or necessary to the maintenance and administration of the rule of law or public security”.
The requirement for an ESA reflects legitimate concern that, sometimes, work stoppages could endanger the public. For example, the interruption of public utilities (e.g., power, water, emergency medical care) would endanger the life, health, or safety of the public.
If there is the expectation that an interruption would endanger the public, the employer and union must negotiate an ESA before they can move towards a strike or lockout. An ESA outlines how the harm posed by the interruption will be mitigated. For example, the union might agree to provide some level of staffing during a work stoppage.
If there is no expectation of endangerment, the employer or the union can apply for an exemption from the requirement to have an essential services agreement. Disputes about the need for or scope of ESAs are resolved by the Essential Services Commission (i.e., a vice-chair at the Labour Board) who may delegate the work to an Umpire (i.e., a private arbitrator).
ESAs at AU
During the 2018 round of bargaining, AUFA argued that Counselling Services (CS) and the Master of Counselling practicum in the Graduate Centre for Applied Psychology (GCAP) were essential services. AU opposed this position. Each side submitted briefs to an Umpire but bargaining settled before the ESA dispute was heard.
The Labour Relations Code definition of an essential service as “those services, the interruption of which would endanger the life, personal safety or health of the public…”. The test “would endanger” establishes a requirement for proof that the interruption will endanger health, safety, or life with some certainty. The mere possibility of endangerment will not meet this test.
In reviewing AUFA’s 2018 experience, AUFA ESA negotiating team (Bob Barnetson, Jason Foster, Dave Powell and Richard Roach) identified that AUFA had likely not met the burden of proof in 2018 required to have the CS and GCAP work deemed essential.
AUFA’s ESA team then spent several months consulting with affected AUFA members about whether or not it was possible to close this evidentiary gap. In the end, AUFA’s ESA team was not able to find enough evidence to meet the “would endanger” test.
After a review of the ESA team’s analysis by AUFA’s lawyer, the ESA team recommended the Executive file for an exemption. In short, AUFA has adopted AU’s position from 2018 that no ESA is required.
Next steps
AUFA filed an application for an ESA exemption on September 10, 2021. AU asked for an received an extension to file a response by October 7, 2021. AU may agree with AUFA exemption application (since it aligns with AU’s 2018 position) or it may oppose the application, perhaps proposing certain job tasks be subject to an ESA. AUFA will share more information as it becomes available.
Bob Barnetson, Chair
AUFA ESA negotiating committee