Essential Services

Labour Relations Code

72.

  1. If a dispute arises after collective bargaining has commenced, either of the parties to the dispute may apply to the chair to investigate, or the chair on his or her own motion may
    1. investigate whether or not the dispute poses a threat to the health, safety or welfare of the residents of British Columbia, and
    2. report the results of the investigation to the minister.
  2. If the Minister
    1. after receiving a report of the chair respecting a dispute, or
    2. on the minister's own initiative considers that a dispute poses a threat to the health, safety or welfare of the residents of British Columbia, the minister may direct the board to designate as essential services those facilities, productions and services that the board considers necessary or essential to prevent immediate and serious danger to the health, safety or welfare of the residents of British Columbia.
  3. When the minister makes a direction under subsection (2) the associate chair of the Mediation Division may appoint one or more mediators to assist the parties to reach an agreement on essential services designations.
  4. A mediator appointed under subsection (3) must report to the associate chair of the Mediation Division within 15 days of his or her appointment or within any additional period agreed on by the parties.
  5. The board
    1. must within 30 days of receiving the report of a mediator, designate facilities, productions and services as essential services under subsection (2), and
    2. may, in its discretion, incorporate any recommendations made by the mediator into the designation under that subsection.
  6. If the minister makes a direction under subsection (2) before a strike or lockout has commenced, the parties must not strike or lockout until the designation of essential services is made by the board.
  7. I f the minister makes a direction under subsection (2) after a strike or lockout has commenced, the parties may continue the strike or lockout subject to any designation of essential services by the board.
  8. If the board designates facilities, productions and services as essential services, the employer and the trade union must supply, provide or maintain in full measure those facilities, productions and services and must not restrict or limit a facility, production or service so designated.
  9. A designation made under this section may be amended, varied or revoked and another made in its place, and despite section 135 the board may, in its discretion, on application or on its own motion, decline to file its order in a Supreme Court registry.

The question in essential service cases is what services are essential, not what employees are essential. Once a service is found to be essential, the Labour Relations Board will designate those employees from the striking and non-striking bargaining units necessary to provide the services. The Board also will expect deployment of management staff to perform struck work that is designated essential.

Therefore, the same factors will apply for support staff as for teachers in determining what services are essential to protect the welfare of students. The circumstances of special needs students in each school will be a consideration. The timing of the dispute and the potential consequences for grade 12 students scheduled to write provincial exams, for example, will be factors as with teachers.

If the Board were to designate certain services essential, both support staff and teachers would be required to provide those services. In the case of striking support staff, however, the Board would first ensure that excluded staff such as administrative officers are working approximately 60 hour weeks performing their own and struck work that is essential before assigning striking employees to the work. The deployment of excluded staff would not be limited to their usual places of work.

The Labour Relations Board continues to follow the leading case on Essential Services, Board of School Trustees of School District No. 54 (Bulkley Valley) (BCLRB no. B147/93). It sets out the prposition that "welfare" is to be given a broad meaning (to include education and economic welfare), and that the threshold to be met in order to start an investigation under section 72(1) of the Code is lower than must be met in order to make a designation under section 72(2). BC Ferry Corporation and BCFMWU, B518/98.

Further, Bulkley Valley states that while the disruption in the delivery of educational services is not sufficient in and of itself to cause a designation of essential services, there will be cause to conduct an investigation under section 72(1) where the disruption affects grade 12 students' ability to graduate and apply to post secondary programs.

Factors which will be considered by the Chair in making a recommendation to the Minister under section 72(1) include:

  1. The length of the dispute.
  2. The timing of the dispute
  3. The amount of instructional time remaining.
  4. The likelihood of an early settlement.
  5. The date of provincial examinations.
  6. An assessment on the potential impact on grade 12 students.

Another aspect to an essential services designation in the event of a support staff strike could be the health and safety of students. If the strike activity results in the school grounds becoming unsafe such that the health and/or safety of students is threatened, there may be a basis for an investigation and essential services designation under section 72 of the Code. A school board's responsibility to close school buildings when the health or safety of students is at risk is found in section 90 of the School Act. This responsibility could be a factor in considering whether or not the apply under section 72 for an essential service designation.

Part 6 of the Code will be applicable to a support staff dispute if it can be shown that the dispute will affect the welfare of students. While a threat to welfare is to be construed broadly, it requires some serious impact on students such as the inability to attend or apply to post secondary programs. It is doubtful that the strike action at the beginning of a school year could be construed as having the same type of impact on students and as such it would be unlikely that such action would result in an investigation and designation under section 72.

Furthermore, if strike activity by support staff results in school buildings or grounds becoming a risk to the health or safety of students, an essential services designation could be supported.

Part 6 of the Code will be applicable to a support staff dispute if it can be shown that the dispute will affect the welfare of students. While a threat to welfare is to be construed broadly, it requires some serious impact on students such as the inability to attend or apply to post secondary programs. It is doubtful that the strike action at the beginning of a school year could be construed as having the same type of impact on students and as such it would be unlikely that such action would result in an investigation and designation under section 72.

Furthermore, if strike activity by support staff results in school buildings or grounds becoming a risk to the health or safety of students, an essential services designation could be supported.