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Essential Services Orders Do Not Contravene Replacement Worker Restrictions
May 6, 2009

A recent decision of the BC Labour Relations Board addresses the issue of whether employees and management hired after notice to bargain has been served can be included in essential services orders without contravening prohibitions on the use of replacement workers in Section 68(1) of the BC Labour Relations Code.

This decision arose in the context of the continuing strike between the Emergency Health Services Commission and CUPE, Local 873. CUPE asked the Board to order that no full time or part time employees hired after notice to bargain was given be designated essential or perform bargaining unit work during the strike. CUPE argued the designation of such employees would be contrary to the restrictions on replacement workers set out in Section 68(1).

CUPE’s application was triggered by an earlier decision in which the Board held that managers hired after notice to bargain was given would constitute replacement workers: Compass Group Canada (Health Services) Ltd., BCLRB No. B72/2009.

In the present case, the Board dismissed CUPE’s application and concluded that an essential services order effectively displaces the replacement worker restrictions during an essential services dispute. The Board reasoned that the legislature could not have intended an interpretation of the replacement worker provisions that would prevent the Board from fully and properly maintaining essential service levels. Such an interpretation would potentially expose the public to immediate and serious danger and would be inconsistent with the legislative direction in the Code to protect the public interest. The Board found the Compass decision was “clearly wrong”, stating that, in addition to employees hired after the notice to bargain, “post notice hire managers must also be used in compliance with the essential services order, notwithstanding the decision in Compass.”

As a result, bargaining unit employees may be designated to provide essential services, regardless of whether they are hired before or after notice to bargain is issued. This decision is of significant importance to all employers whose operations are subject to essential services orders.

Emergency and Health Services Commission (British Columbia Ambulance Service), BCLRB No. B93/2009