ESSENTIAL SERVICES SUMMARY
On June 27, 2019, the Saskatchewan Labour Relations Board issued a decision on LRB File No. 015. This was the first full decision of an Essential Services Tribunal (the "Tribunal") in Saskatchewan, and it involved an essential services dispute between the University of Saskatchewan and CUPE 1975.
Following the Saskatchewan Federation of Labour ("SFL") ruling by the Supreme Court of Canada in 2015 in which Saskatchewan's former essential services legislation was determined to be unconstitutional, the Saskatchewan legislature amended The Saskatchewan Employment Act (the "SEA") to provide for a new essential services regime with a view to complying with the Charter and international norms. Among the key changes were the removal of a statutory definition of "essential services", as well as the removal of reference to any specific entities or employers as essential services providers.
By removing the definition of "essential service", the Saskatchewan legislature left it to the employer and the union to attempt to agree on whether the employer provided "essential services" on a workplace-by-workplace basis and to agree on which positions were essential before a strike or lockout can occur. If an essential services agreement cannot be reached between the employer and the union, then the Essential Services Tribunal hears evidence on the positions and renders a decision. Without a statutory definition of "essential services", the Tribunal is left to examine case law (including International Labour Organization, or "ILO" case law) for a sense of what qualifies as "essential services" in the context of each workplace.
Given that this was the first essential services tribunal hearing in Saskatchewan history, there was a great deal of uncertainty surrounding the process and likely outcomes. One of the uncertainties was whether the University even qualified as an essential service provider. CUPE took the position that under international essential services principles, the educational sector is deemed to not deliver essential services to the public. The Tribunal considered and rejected CUPE's argument.
Three key takeaways from the decision are the following:
1. The Tribunal found that the University provides essential services
The Tribunal accepted the University's argument that the University provides essential services to the public, notwithstanding the ILO's position that the education sector is not an essential service provider. The Tribunal found that many services provided by CUPE 1975 were "essential" insofar as their interruption would endanger the life, personal safety or health of the whole or part of the population, and therefore those positions must continue to report to work in the event of a strike or lockout. Over 40 positions across many departments and types of job functions were designated as essential services, such as:
- Staff providing clinical services, and supporting medical professionals, in dentistry, specialized medicine, and family medicine clinics both on- and off-campus;
- Staff providing clinical services, and supporting medical professionals, providing crisis services to university students and their families at the Student Wellness Centre on campus;
- Tradespersons involved in University's Facilities group, including boiler operators, controls technicians, millwright, steamfitter, draftsperson, and locksmith positions;
- Maintenance and janitorial staff on campus including targeted areas such as student living facilities, bathrooms, childcare facilities, and clinical facilities;
- Data processing staff to ensure payroll, disability, and other benefits payments would continue;
- Environmental protection technicians engaged to assist with removing chemical, biological, and radioactive waste on campus, and responding to emergency spill calls;
- Staff to order and handle dangerous goods in the Veterinary College and the Department of Chemistry; and
- A dispatcher and platoon members providing campus security 24 hours a day, 7 days per week, 365 days per year with Protective Services.
2. Employer may determine what constitutes an "emergency" for the sake of call-in protocol
The SEA requires the Tribunal to establish the "procedures that must be followed to respond to an emergency during a work stoppage." The University provided the Tribunal with a proposed procedure that, in essence, required University and CUPE representatives to meet in the event of the an emergency, and if the existing complement of out of scope, essential, and on-call staff is insufficient to deal with the emergency, additional non-essential services would be redeployed to help assist with the emergency if the University considered the event to be an emergency.
CUPE argued that non-essential services staff should only be deployed in the event that CUPE agreed with the University on whether the event constituted an emergency. The Tribunal determined that CUPE's proposal was unworkable and adopted the University's proposal, consistent with the principle of "obey now, grieve later" often found in labour relations case law.
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