Bargaining Consultation: Essential Services Agreement

The Labour Relations Code requires AUFA and AU to assess whether any of the work performed by AUFA members constitutes an essential service. If so, AUFA and AU must conclude an essential services agreement (ESA).

In December, AUFA’s executive appointed an ESA Negotiating Committee comprising Bob Barnetson, Susan Cake, Jason Foster, and Richard Roach. This blog post is the first step in consulting AUFA members about an ESA.

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, if bargaining reaches impasse and a strike or lockout takes place, such a work stoppage 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 an interruption in services 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 union and/or the employer can apply for an exemption from the requirement to have an ESA. Disputes about the need for or scope of ESAs are resolved by the Essential Services Commissioner (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 2020-22 round of bargaining, AUFA and AU agreed that none of the work performed by AUFA members constituted an essential service. The Essential Services Commissioner agreed with this assessment and granted AUFA and AU an exemption.

The language used to in the Labour Code around whether or not work is essential is “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 phrase “which would endanger” requires compelling argument and/or evidence of endangerment, not a mere suspicion of such.

The passage “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” requires meaningful harm to the public.

A work stoppage would entail significant disruption of AU services. For example, courses offered on a paced model would likely be interrupted. Course requiring the supervision of AUFA members, such as practicums and clinicals in the Faculty of Health Disciplines, would be particularly impacted. Such disruptions would negatively impact students and the relationship between AU and its partner organizations. While these organizational consequences are serious, they don’t fall within the types of harms contemplated by the emergency services provisions of the Labour Relations Code.

Counselling services provided by AUFA members would also be interrupted by a work stoppage. Past investigations have suggested that (1) AU counselling is primarily focused on academic issues, not issues of mental health, and (2) AU offers mental health supports to students that would not be affected by an AUFA work stoppage. Again, while these consequences of a work stoppage would be significant, they don’t seem to fall within the types of harms contemplated by the emergency services provisions of the Labour Relations Code.

Next Steps

A preliminary review of AUFA members’ work suggests that it remains the case that AUFA members do not perform work that meets the definition of an essential service. If you believe you perform work that is essential, please contact Bob Barnetson (barnetso@athabascau.ca) to discuss this by February 1, 2024.

Once the AUFA ESA committee has completed its investigations, it will make a recommendation to the executive about how to proceed (i.e., develop an ESA or seek an exemption). Our hope is that AUFA and AU can file a joint application with the Labour Board shortly after notice to bargain is served this spring.

Bob Barnetson, President