Here is the latest news on two ongoing aspects of the 2018 negotiations.
Essential Services Agreement
An Essential Services Agreement (ESA) is an agreement between an employer and a union regarding the provision of essential services in the event of job action. ESAs were introduced for the Post-Secondary sector when labour relations were moved into the Labour Code by Bill 7.
Under the Code, an Essential Service is an activity whose interruption would “endanger the life, personal safety or health of the public,” or that is “necessary to the maintenance and administration of the rule of law or public security” (Division 15.1 Section 95). Faculty Associations and Universities are required have an ESA in place (or request an exemption if no essential services are carried out) before any job action (e.g. Lockout or Strike) or formal mediation can take place. We have discussed ESAs several times over the last year, including here, here, here, here, and here.
University files for an exemption
On June 26, the University of Lethbridge filed a unilateral application for an exemption to this requirement for an ESA. Under Section 95(21).2 of the Code, the Commissioner of Essential Services may grant an exemption if the “the employees in the bargaining unit represented by the bargaining agent do not perform essential services,” or the services they do provide “can be maintained during a strike or lockout by other capable and qualified persons who are not employees in the bargaining unit” and who have not been hired specifically to provide this service during the job action (i.e. strike breakers).
In its application, the University argued that no ULFA Member carries out any essential service. This position was determined by the University without formal discussion with ULFA. It is also at odds with evidence collected by the Faculty Association that suggests there are a small number of members who carry out tasks on a regular or emergent basis that cannot be interrupted without endangering the life, personal safety or health of the public.
A call with the Commissioner for Essential Services to discuss the University’s application for an exemption has been scheduled for July 12. We will provide additional updates as they become available.
Unfair Labour Practice Complaint: Bridging
The University and ULFA have both submitted positions to the Labour Relations Board with regard to the application of the “bridging” provisions of the Code (esp. section 138(1)), particularly with regard to the Cost of Living Adjustment (COLA) of Schedule A.02 in the Faculty Handbook.
ULFA’s position is that Section 138(1) requires COLA to be paid to its members on July 1, 2018 as part of these bridging positions and that a failure to honour this requirement is an Unfair Labour Practice. The University argues that the question of whether COLA is subject to bridging is a question for “Interpretation” under Article 1 of the Faculty and Sessional Handbooks and therefore not subject to a ruling from the Labour Board. You can read more about this issue here, here, and here. A background discussion of the issue can be found here.
University and ULFA agree to argue request for deferral through written submissions
On July 4, the Labour Board accepted a proposal from the University and ULFA to address the University’s request for a deferral of the case using written submissions only. According to this agreement, the University will have until July 18th to make its submission. ULFA will be given until July 25 to respond to the University’s submission. The University will then have until August 1 to make a response to ULFA’s response.
If the University wins a deferral, the matter will be referred to the Interpretation Committee under Article 1 of the Faculty Handbook for a decision. In the event the Interpretation Committee cannot reach an agreement, the matter will then be referred to an arbitrator for mediation or, if mediation is unsuccessful, a decision by Final Offer Selection (Article 1.07).
If the University loses its request for a deferral, the Labour Board will consider ULFA’s application for a ruling on the applicability of the bridging provisions to the 2016-2018 Collective Agreement. In that case, a hearing will likely be scheduled for the matter in the early fall.
Again, we will keep Members updated as events progress.