Essential Services

The Labour Relations Act (the “Act”) requires that, during a strike or lockout, the employer, bargaining agent and employees must continue the supply of services, operation of facilities or production of goods to the extent necessary to prevent:

• a threat to the health, safety or welfare of resident in Manitoba
• disruption to the administration of justice
• a threat of serious environmental damage

To achieve this, bargaining agents and employers must first determine if an Essential Services Agreement (the “ESA”) is required and file that Determination with the Manitoba Labour Board (the “Board”). The Act requires the parties to jointly file a Determination even where the parties agree that no essential services exist.

If an ESA is needed the parties must negotiate an agreement that sets out the manner and extent to which the supply of services, operation of facilities and the production of goods must continue during a strike or lockout, and file it with the Board. Parties may not commence a legal strike or lockout until they have filed, or the Board has settled their ESA.

If the employer and bargaining agent are unable to agree, the matters are to be settled by the Board.

All employers, bargaining agents, and employees who work under a collective agreement in Manitoba are covered by the essential services sections of the Act. This includes newly certified bargaining units in the event they fail to negotiate a collective agreement and wish to go on legal strike or lockout.

The only exception from compliance with the essential services sections of the Act are for employees in a unit, who are prohibited from striking, such as police or firefighters.

An Essential Services Determination whether Essential Services exist must be filed with the Board 180 days prior to the expiry of a collective agreement. The Determination of Essential Services – by consent form can be used as a template when the parties agree. If the parties are unable to agree on this first step an application may be filed to have the Board settle the question. A jointly filed Determination has the same effect as an order of the Board.

If the parties, or the Board, determine that essential services are required to be maintained in the event of a strike or lockout, an Essential Services Agreement must be filed with the Board at least 90 days prior to the expiry of the collective agreement.

The ESA must set out:

• the manner and extent to which the employer, the bargaining agent and the employees in the unit must continue the supply of services, operate facilities and produce goods
• the number of employees that are necessary to maintain these essential services

Reminder, if the parties are unable to reach an agreement an application may be filed to have the Board settle the ESA.

A negotiated ESA is preferable to a determination of the Board. The parties can negotiate and settle the terms of an ESA at any time, and they are encouraged to contact the Board for assistance at any time. Board representatives can assist as mediators, and if the parties are outside of the timelines specified in the Act, they may file an application seeking a Board determination under section 142(5) of the Act to answer specific questions that the parties may disagree on, outside of the rigorous timelines that the Board must follow when settling ESAs and Determinations.

The negotiation of an ESA is primarily the responsibility of the parties to the bargaining relationship. The parties best understand which services are essential to protect the health, safety or welfare of residents of Manitoba, to maintain the administration of justice and to prevent a threat of serious environmental damage. Parties can hire a conciliator (a neutral person who helps parties reach agreement by improving communication) or ask for Board representatives to assist them in reaching an ESA.

An ESA should identify:

• the manner and extent to which the employer, the bargaining unit and the employees in the unit must continue the supply of services, operation of facilities or production of goods during a strike or lockout
• the functions and duties of employees in the bargaining unit that are necessary to maintain essential services
• the classifications, and the number of positions in each classification, required to perform those essential services
• the number of employees in the bargaining unit required to perform the essential duties and functions
• the method by which employees capable of performing the essential services will be assigned to perform those services during a strike or lockout
• the procedures to be followed in responding to emergencies or foreseeable changes to the essential services that need to be maintained during a strike or lockout. These procedures should be sufficiently flexible to allow the parties to quickly respond to emergent changes to necessary essential services
• if applicable, permissible changes to the terms and conditions of employment which will apply to designated essential services workers during a strike or lockout

If parties are not able to agree whether essential services exist, either party, or the minister, may file an application requesting the Board make the determination (ES-1 Determination Application - Essential Services). The Board will have 30 days from the date that the application was filed to determine the issue.

If it has been determined that an essential services agreement is required and parties are not able to agree what the terms are, they have two options.

Either party may apply to the Board to have the Board settle an ESA by specifying the manner and extent to which services must continue during a labour dispute (ES-2 Settlement Application – Essential Services). The Board must render its decision within 30 days of receiving an application, reflecting the urgent nature of essential services matters.

Parties also have the option of jointly agreeing to appoint an arbitrator to settle their ESA instead of using the Board. If the parties prefer to appoint an arbitrator, they must follow these steps:

1. Within two days of filing their application with the Board, they must inform the Board in writing of their agreement to settle the dispute by arbitration
2. Provide the name of the individual who has agreed to act as arbitrator
3. The arbitrator is required to settle the terms of the ESA within 30 days after notice is served on the Board
4. The cost of the arbitrator is split equally between the bargaining agent and the employer

If an arbitrator is selected to settle the ESA, the arbitrator continues to have jurisdiction to settle requests for amendments. The arbitrator must determine any matter in dispute between the parties during a lockout or legal strike within two days of the application, unless the arbitrator is unable or unwilling to act. In such cases, the parties may agree to another arbitrator, or if the parties are unable to agree, either party may request the Board to settle the issue.

Parties may not commence a legal strike or lockout until they have filed, or the Board has settled their ESA.

Employers, bargaining agents and employees must comply with the ESA. The terms and conditions of the expired collective agreement continue to apply for any employee required to work in accordance with an ESA, unless otherwise negotiated between the parties, or imposed by the Board.

If the bargaining agent or the employer believes that the ESA's effect will substantially interfere with meaningful collective bargaining, they may file an application with the Board for a determination of substantial interference (ES-3 Substantial Interference Determination - Application). If the Board finds that the ESA does substantially interfere with meaningful collective bargaining, any strike or lockout action ends, and the Board may order that all matters remaining in dispute between the parties be settled, including the collective agreement.

During a lockout or legal strike, either the employer or the bargaining agent may request a review of the ESA (ES-4 Review of Essential Services Agreement During Lockout/Legal Strike - Application).

The Board has developed a comprehensive application package that must be completed when filing a Determination Application and Settlement Application. The Board will require the applicant to file its direct evidence by way of affidavit, with the affiant being subject to cross-examination by the replying party. Before an application is filed with the Board, it must be served on the respondent.

The application process follows these steps:

1. Care must be taken to ensure the application is sufficiently detailed and includes all requested information. The Board will not accept an incomplete application package.
2. Once the Board has accepted an application package as complete, the respondent must file its reply within three days. The reply must contain all the material facts on which the respondent intends to rely.
3. The respondent may not be entitled to present evidence or make any representations about any additional material fact that was not set out in the reply, except with the permission of the Board.
4. The Board will schedule a Case Management Conference (CMC) on the day following the deadline for the filing of the reply.
5. At the CMC, the Board will schedule the hearing, which must commence no later than six days after the CMC.

At the Case Management Conference, the Board may:

• schedule a hearing, which must be scheduled to start no later than six days after the case management conference and must be completed with enough time for the Board to render its decision within 30 days
• set deadlines for the parties to provide additional information or documents before the hearing
• discuss possible consequences of a Respondent's failure to comply with a notice that its reply to an application does not meet the requirements of the Board's Rules of Procedure, fails to provide sufficient particulars or notice from the Board that it requires additional information or documents
• discuss the possible settlement of the application
• attempt to narrow the issues in dispute between the parties
• determine how the hearing will be conducted, including how evidence will be presented and how the parties will make submissions

Please remember that the Board will have limited opportunity to conduct the hearing, assess the evidence and render a decision within the allotted time, and timelines must be strictly adhered to for decisions to be rendered in a timely manner. The Board will require that hearings proceed in a concise and timely fashion. Extensions will be exceptionally rare, and the availability of counsel will not be deemed an exceptional circumstance.

Board representatives will be assigned to every matter that is received by the Board, who will continue to work with the parties to narrow or resolve matters through mediation.