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XO/18/08 June 4, 2009
TO: National Board of Directors
FROM: John Gordon
RE: Essential Services Agreements
As you are all aware, following the tremendous progress made by Components in developing Essential Services Agreements (ESAs), PSAC has been working diligently over the past months to finalize ESAs for the Treasury Board PA, FB and SV bargaining units and for our members at Parks Canada and CFIA.
Given the recommendation of PSAC to have members ratify the tentative agreements reached in the last few weeks with these bargaining units, there is no longer the same time pressure to finalize the ESAs to ensure our members’ right to strike was in place if an agreement could not be reached at the table.
However, this does not mean that the ESA process ends. The new legislation is clear that the process only stops when an ESA is signed by the parties or imposed by the Public Service Labour Relations Board. Unlike the former designations process, ESAs are not re-negotiated with every round of collective bargaining. While amendments to the ESAs are possible, the ESAs are presumed to stay in place until “the parties jointly determine that there are no employees in the bargaining unit who occupy positions that are necessary for the employer to provide essential services”. This is why PSAC has maintained the position with Treasury Board that we will “get it right” the first time.
As you are probably also aware, the Treasury Board proposed over 30,000 positions in 46 different departments to be included in Essential Services Agreements. PSAC has been very successful in challenging many of these proposals, either through informal discussions with Treasury Board or, in several cases, we have used the mediation services of the Public Service Labour Relations Board (the Board). As a result, many proposals have been withdrawn by Treasury Board and remaining proposals from over half of the departments have been tentatively agreed to.
Unfortunately, because ESAs are for the entire bargaining unit, all proposals must be agreed to prior to signing a final ESA. This has proved particularly difficult with some of the larger departments. For example, Service Canada proposed over 9,600 positions as essential. Not surprisingly, PSAC is challenging many of these proposals and after several unsuccessful attempts at mediation, the Board has now set hearing dates in late January to rule on these disputes.
Last spring, PSAC made an application to the Board to challenge over 1,300 essential service proposals made by Parks Canada. In August, the Board held four days of hearings to determine the matter. This was the first time that the Board had an opportunity to interpret the essential services section of the new legislation. As such, PSAC took the opportunity to ask the Board to rule on several general legal principles about the new legislation as well as a “test case” of disputed ES proposals at Parks.
The decision in this matter was finally released on November 24th. Recognizing that this was an important precedent-setting case, the Board did a very thorough job of interpreting the new legislation and agreed with PSAC that the ESA process under the new legislation is markedly different from the former designations process. The Board also made strong statements about the importance of the right to strike and the narrow scope of what should be deemed an essential service. PSAC is very pleased with the outcome of this case and we believe that it will help us successfully challenge unreasonable ES proposals from all employers falling under this legislation.
PSAC understands that many of the Components are being asked questions about the ESA process from frustrated members. Please reassure members that we appreciate their patience and support and that PSAC is doing everything it can to ensure that only those members occupying positions essential to the safety and security of the public are included in the final ESAs. This means that the vast majority of our members will be able to exercise their legal right to strike and gives those members occupying essential service positions time to be properly notified by their employer of their rights and responsibilities well in advance of a strike. We will also ensure that fair and reasonable ESAs will be in place long before our members are at the bargaining table again.
In Solidarity,
John Gordon
National President
c.c. Management Team