Essential Services Decision

cupe1975Bargaining, Negotiations

Dear CUPE 1975 Members,

As we’ve reported before, since March, your executive – supported by CUPE National – has spent a significant amount of time at essential services hearings, fighting to protect our rights as workers against threats by the University.

Today, we received the decision from the Essential Service Tribunal. (see attached PDFs)

LRB File No. 015-19 Decision

LRB File No. 015-19 Reasons for Decision

The short version is: The University had asked for 252.3 FTE positions and 23 Call-in positions to be declared essential (which means those workers would not be allowed to join a job action and could not, for example, participate in a work stoppage to fight for better pay and a better contract from the University.)  

The Tribunal declared that only 41.5 FTE and 7 Call-in positions were essential.

Obviously, all of our work is important. Keeping as few of our positions as possible listed as “essential” makes sure that we keep our right to make that point to the university when we need to.

Here’s a more complete analysis and rundown of the ruling by our lawyer.

In 2007, CUPE 1975 went on strike but agreed that certain members could work in order to protect the public. At the time, there was no essential services legislation in Saskatchewan. Later that year, the Saskatchewan Party was elected and soon passed essential services legislation. CUPE started a Charter challenge that ultimately saw the essential services legislation declared unconstitutional by the Supreme Court of Canada in SFL, 2015 SCC 4.

In response to SFL, the Government of Saskatchewan passed new essential services legislation. This hearing is the first time it has been fully tested.

The essential services legislation is set out in Part VII of The Saskatchewan Employment Act. However, Part VII does not contain a definition of ‘essential services.’  Because there is no definition, we argued that the Tribunal should apply the definition from the International Labour Organization (ILO). (The ILO is a tri-partite body which includes employer representatives, worker representatives and government representatives. It was established after World War I as part of the Treaty of Versailles. It is now part of the United Nations.)

The ILO definition that we argued for was that essential services are those needed to prevent “a clear and imminent threat to the life, personal safety or health of the whole or part of the population.”  At the hearing, much of the argument turned on the “clear and imminent” part. Ultimately, the Tribunal decided against fully adopting the “clear and imminent” standard but stated at paragraph 34 that “a requirement of a clear and imminent threat is implied in the definition.”  I consider this definition a partial victory. It is not as clear as I would like, but it does allow us to argue the clear and imminent threat in the future, I think.

The Tribunal then applied this definition to the positions in dispute. At paragraph 56, the Tribunal stated that “[p]ositions whose absence would directly affect patient care were considered essential.”  In contrast, positions at the College of Medicine that did not involve patient care were not declared essential.

The University had asked for 252.3 FTE positions and 23 Call-in positions to be declared essential. The Tribunal declared that 41.5 FTE and 7 Call-in positions were essential. The Local’s position was that 17 different positions work during a strike as part of a shutdown protocol. At the end of the hearing, we conceded that 5 more positions in the heating plant met the legal definition of essential services.

At paragraph 58, the Tribunal ordered that 6 security officers (“Platoon Members”) were essential. The University had asked for 16.

The University had also requested 62 positions (plus 15 on-call positions) to look after the various animals on campus. We argued that essential services legislation does not apply to animals, it applies to human beings. The Tribunal agreed and ordered that 0.5 Animal Technician be declared essential only because it handled hazardous substances.

At paragraph 62, the Tribunal noted that the University had sought to declare employees essential for irrelevant reasons included: property damage, interruption of research, disruption of student education, damage to the reputation of the University, unpaid bills and decreased revenue.

At paragraphs 63 and 64, the Tribunal agreed with our position that when employees are designated as ‘essential services employees’ they are only to perform those duties which are ‘essential’. They are not supposed to perform non-essential duties.

A paragraph 67, the Tribunal discussed clause 7-8(3) of the Act. This part of the Act requires the Tribunal to establish the “procedures that must be followed to respond to an emergency during a work stoppage.”   We argued that the University should not be able to unilaterally declare an emergency and have members on the picket lines suddenly go in to work. The Tribunal disagreed and stated that the Local did not have the right to assess whether there really is an emergency before being required to provide employees. The employees must perform the work as directed. If the Local thinks there wasn’t truly an emergency, that issue can be addressed later.

If you have questions, please let us know and keep checking the website for more updates about this and our ongoing bargaining.