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UBC Theses and Dissertations

Strikes in essential services in British Columbia Zafer, Muhammad Masoud Uz 1984

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C _I  STRIKES IN ESSENTIAL SERVICES IN BRITISH COLUMBIA by MUHAMMAD MASOUD UZ ZAFER B.A. (Hons.), LL.B. (Hons.), The Aligarh Muslim University A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (The Faculty of Law)  We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA February, 1984 ©MUHAMMAD MASOUD UZ ZAFER, 1984  In  presenting  requirements  this for  thesis  an  B r i t i s h Columbia,  it  freely  for  available  that  or  for  understood  that  financial  by h i s  of  DE-6  (3/81)  University shall  reference  and  study.  I  extensive  may b e her  shall  copying of  granted  by  the  p u b l i c a t i o n of  not  be  this  It  this  allowed without  Columbia  make  further  head  representatives.  cLX^oO"  The U n i v e r s i t y o f B r i t i s h 1956 Main M a l l Vancouver, Canada V6T 1Y3  Date  the  Library  permission.  Department  at  the  the  for  or  fulfilment of  that  copying or  gain  degree  agree  purposes  department  for  I  permission  scholarly  partial  advanced  of  agree  in  thesis  of  my  is thesis my  written  -  i:i -  ABSTRACT One of the most contentious issues within the area of industrial relations is strikes in essential services. This topic has been the subject of much debate in developed and developing countries, and, in British Columbia, i t was the subject of amendments to the Labour Code of British Columbia in 1977 and the enactment of the Essential Service Disputes Act. This study will examine how this problem is dealt with in British Columbia. The first chapter of the thesis examines the problems confronted by successive governments and the efforts made by them to deal with strikes in essential services. The second chapter deals with the concept and nature of essential services.  An attempt is made to define the term and draw upon the  legislative assembly debates and various examples to put the argument in a nutshell. A brief overview of the concept in other countries is also included to put the discussion in context. The third chapter will deal with the actions taken to contain harm caused by strikes in these areas.  The general guidelines regarding the  designation of essential employees established by the federal Public Service Staff Relations Act and the notion taken from i t and applied to the designation of esential services in British Columbia will be discussed. Chapter four will focus on impasse resolution machinery mentioned in the Essential Service Disputes Act. The final chapter of the thesis contains the observations and recommendations.  - iii TABLE OF CONTENTS Page INTRODUCTION 1.  2.  3.  1  EFFORTS BY THE GOVERNMENTS IN BRITISH COLUMBIA TO REGULATE STRIKES IN ESSENTIAL SERVICES  5  A. The Mediation Commission Act 1968 - 1972  6  B. The Birth of the Labour Code of British Columbia 1973  11  DEFINITION OF ESSENTIAL SERVICES  21  A. Essential Services and the Public Sector - A Brief Look at Different Countries  25  B. The Meaning of "Essential" - A Look at the Meaning of Essential in Different Countries The International Labour Office Reports  28  C. The Meaning of "Essential" in British Columbia  37  1. Services Mentioned specifically in the Labour Code of British Columbia and the Essential Service Disputes Act  43  2. Concluding Remarks  52  METHODS OF CONTAINING HARM CAUSED BY STRIKES IN ESSENTIAL SERVICES  56  A. Designation of Essential Employees the Federal Public Service Staff Relations Act  56  B. Designation of Essential Services in British Columbia  70  Criteria for Essentiality  76  C. The Non Stoppage and the Graduated Strike  85  - iv PAGE 4.  DISPUTE SETTLEMENT PROCEDURES  93  A.  Fact Finding  94  B.  Interest Arbitration  98  1.  The Arbitration Board  99  2.  Delay  100  3.  C r i t e r i a Relied upon by the Arbitrators  103  i ii  iii  Arbitration Awards Pursuant to Agreement of the Parties  106  Arbitration Awards Pursuant to Section 73 of the Labour Code of B r i t i s h Columbia  113  Arbitration Awards Pursuant to Section 6 of the Essential Service Disputes Act  120  4.  Comments on the Criteria  5.  Concluding Remarks on Interest Arbitration v i s - a - v i s Free Collective Bargaining  128  132  C.  Final Offer Arbitration  137  D.  Industrial Enquiry Commission  143  CONCLUSION  147  FOOTNOTES  148  LIST OF ARBITRATION AWARDS  161  APPENDICES Appendix A  166  Essential Services Continuation Act Appendix B Collective Bargaining Continuation Act  168  - V -  PAGE Appendix C  T71  Hospital Services Collective Agreement Act Appendix D  174  Railway and Ferries Bargaining Assistance Act Appendix E  184  Essential Services Disputes Act Appendix F  193  West Kootenay Schools Collective Bargaining Assistance Act BIBLIOGRAPHY  198  - vi  ERRATA  A computer error was discovered after the thesis had been printed out and submitted. The error consists of the omission of two foot note references.  1.  Page 4.  They appear on pages 4 and 55 of the text. They are -  Paragraph 3.  In British Columbia —  ad hoc response to  a particular bargaining impasse. J.M.P. Weiler ed.  2.  Page 55.  Paragraph 2.  Interest Arbitration (1981), at 2.  From the point of view of the union  at the bargaining table. Paul Weiler. Reconcilable Differences (1980), at 239.  —,  INTRODUCTION  It is one of the purposes of this thesis to explore the concept of essential services in British Columbia. The concept of "essential services" expresses the idea that certain activities are of fundamental importance to the community, and that their disruption will have particularly harmful consequences. This may then suggest the argument that the public interest in the uninterrupted operation of the service outweighs the consideration that the workers in i t should be free to withdraw their labour or that the employer should be free to lockout and that special provisions should apply to them, either preventing industrial action being taken at all or imposing restrictions upon its conduct. The idea that there are such services is one which almost all legal systems recognize, although the mechanisms for identifying and protecting them vary greatly.  Predictably there is no  consensus on what constitutes an essential service, but a service whose disruption would endanger public health or safety seems to be a "lowest common denominator" definition. While i t is simple for the parties—workers, employers and governments—to agree upon the principle that labour disputes in these areas be subjected to special rules, in order to limit the damage these disputes can cause, i t is often difficult for them to see eye to eye on the way the rules  should be applied.  The main problems consist, first, in defining the activities  - 2-  which should be governed by special rules and, second, in determining how these rules should differ from the general system. Although these are questions that have been raised since the dawn of industrialization, they still crop up regularly in the debate on industrial relations. In British Columbia the existing rules, or the way they are applied, are the subject of frequent criticisms either on the part of the workers who consider them too restrictive or on the part of the public which finds them too permissive. As a result the rules are often applied with varying degrees of strictness and sometimes have to be modified. It is one of the purposes of this thesis to discover how public security and well-being can be preserved while allowing essential employees, whether public or private, the right to participate fully in the process by which their working conditions and wages are determined. Some suggest that there should be a prohibition on industrial conflict in the essential services sectors. This rather draconian response is naive, ineffective, and palpably shortsighted. Such solutions are in fact inimical to the very public and government interests which such measures on their face purport to protect. This general rejection of such simplistic solutions stems in part from the realization that some degree of industrial conflict is inevitable and simply cannot be denied legislatively. Apart from threatening and undermining the community's respect for the law, such general  - 3 -  prohibitions fail to recognize and take account of the very real political pressures which are inextricably interwoven in any bargaining model in these sectors. In many instances these pressures would result in the mere threat of an unlawful strike being politically more destructive of the legitimate interests and security of the public by providing the employees with a powerful tool of coercion which is not available to those employees who are permitted to strike.  1  The point of the system of collective bargaining is to provide the employees with a means through which they can freely and meaningfully deal with their employer in setting their own terms and conditions of employment. Section 27 of the Labour Code of British Columbia, while having regard to 2  the public interests as well as to the rights and obligations of parties before i t , provides restraints to ensure that collective bargaining is conducted in an orderly manner. Sometimes the parties find the restraints onerous and this generates tension. This thesis proposes to show how the tension can be reduced, though not eliminated, by carefully administering the law. Later, a discussion on the designation of essential employees will follow. The provisions of the federal Pub!ic Service Staff Relations Act on the designation of essential employees will be examined in order to show how the labour relations legislation of British Columbia stands to gain from  - 4-  its experience. Immediately preceding will be a discussion on the designation of essential services in British Columbia. Lastly this work will deal with dispute resolution techniques in essential services in British Columbia. Fact finding, interest arbitration and final offer arbitration will be discussed. This work will deal solely with "interest" disputes (i.e., those which arise in the course of collective bargaining prior to the signing of the agreement relating to the content of the agreement to be concluded) and not with "rights" disputes (those concerning the application or interpretation of existing legal provisions or clauses in collective agreements). The reason for this is that strikes and lockouts are prohibited during collective agreement and rights disputes are in any event subject to the binding decision of a third party. The demand for interest arbitration is strongest where services are regarded as essential.  In British Columbia the  legislature is frequently under public pressure to expand the reach of the interest arbitration system, either as part of a general policy or as an ad hoc response to a particular bargaining impasse. Thus, in British Columbia, interest arbitration may be available where the service is of such a strategic position that a work stoppage may pose an "immediate and serious danger to life, health or safety" or "an immediate and substantial threat to the economy and welfare of the Province and its citizens".  3  - 5 -  CHAPTER 1 EFFORTS BY THE GOVERNMENT IN BRITISH COLUMBIA TO REGULATE STRIKES ESSENTIAL SERVICES  In British Columbia, limits on the right to strike do not depend solely on whether a worker is employed in the public or in the private sector.  Rather, what is considered is the "essentiality" of the  employer's job not the legal personality of the employer. For example, health care workers become no more or no less essential when they begin working at a public institution. In British Columbia, essential service employees bargain collectively and have been given the right to strike. However, the legislature has indicated a preference against work stoppages by essential service employees, there being statutory provisions for resolution of bargaining impasses by conventional interest arbitration. This part will examine British Columbia legislation, since 1968, governing essential service employees with emphasis being placed on provisions for the resolution of essential service bargaining disputes through interest arbitration.  When considering these events, attention  should be given to the way in which successive governments sought to introduce changes in provincial laws.  - 6-  A. The Mediation Commission Act 1968-1972  The Mediation Commission Act, was introduced in British 4  Columbia Legislature in December 1968.  5  From its very  inception the Act was destined to an uncertain existence. Almost every major labour leader in the province spoke out against i t .  Labour leaders called the Bill "punitive",  protest demonstrations were organized, and a "Beat Bill 33" fund was created. In contrast, employers were overwhelmingly in favour of the statute, and i t was generally regarded by the media as a positive step. It is not clear whether employers contributed to the drafting of the legislation, but i t can be stated with certainty that labour had not been consulted. Nor was the provincial government's Labour-Management Commission informed of the Bill before i t was introduced. Central to the Mediation Commission Act was the establishment of a "Mediation Commission".  6  The Act contained  a variety of provisions for the regulation of industrial relations.  A major part of the scheme was the administration  of independent research and the availability of mediation services.^ These latter functions were to be carried out by mediation officers, however, not by the Mediation Commission itself.  The controversial aspect of the legislation was the  jurisdiction given the Commission to resolve any labour disputes referred to i t by the Cabinet through the process of  - 7 -  compulsory arbitration.  With respect to private essential  service disputes, this power was contained in section 18: 18.(1) Where a dispute between any employer or employers and his or their employees or a trade union is not resolved, and in the opinion of the Lieutenant Governor in Council i t is necessary in order to protect the public interest and welfare, that (a) no employee shall strike, and no employer shall lockout his employees, or (b) an existing strike or lockout shall immediately cease, the Lieutenant Governor in Council may (i) refer the dispute to the Commission; (ii) order that the decision of the Commission with respect to the dispute, whether such decision is given on a reference pursuant to paragraph (i) or otherwise, is final and binding upon the parties except to the extent that the parties agree to vary the same. (2) An order given under this section expires on all parties to the dispute signing and executing a collective agreement. As can be seen, all that was required was that the Lieutenant Governor in Council be of the opinion that a dispute was contrary to the "public interest and welfare".  There were  also provisions for voluntary referral of disputes to the Commission by the parties to a collective agreement.  8  Municipal workers and hospital employees were "employees" within the meaning of the Act, and for the first time restrictions on their right to strike were removed. Prior to that they had limited bargaining rights and strikes by them were illegal.  It was likely contemplated by the government  - 8 -  that health care employees, firemen and policemen would not exercise their right to strike but would, instead, have any contract differences settled by the Commission. With respect to public sector employees, section 19 of the Act provided that the government could refer any labour relations matter regarding the civil service to the Commission for a hearing.  The government was free to decide, either  before or after the hearing, whether or not i t would be bound by the Commission's decision. This unusual discretion has been explained by the fact that, in 1968, civil service employees had only limited bargaining rights and were prohibited from striking.9 Organized labour's initial attack on the Act shook greatly public confidence in its ability to fulfil its legislative mandates. Subsequent events did l i t t l e , i f anything at all, to allay these misgivings. The first person to be appointed as chairman of the Commission was a Supreme Court judge who had only minimal experience in labour arbitration and mediation. The appointment further emphasized the judicial role which i t was intended that the Commission should play.  10  Shortly,  thereafter, the management representative and the director of research resigned without publicly stating their reasons, but leaving the impression that the relatively unknown chairman did not have their confidence.  11  It had previously been suggested that a permanent labourcourt affording an accumulation of knowledge and experience  - 9 -  would prove to be a major improvement over the often haphazard process of ad_ hoc arbitration.  12  Unfortunately, the permanency  of the Commission proved instead to be a major obstacle to its success.  For example, the Commission decided against  municipal police forces on certain issues of principle such as parity with the forces in Vancouver and Victoria.  It seemed  inevitable that the same result would follow should the union take the issue to arbitration in future years.  Under the old  system of ad hoc arbitration, to which the police had adhered, there was always the possibility that the selection of a different nominee or chairman would result in reversal of previous awards.  13  The actual decisions handed down by the Commission proved to be no less controversial. The first decision rendered arose out of a dispute involving psychiatric nurses employed by the provincial government.  14  On the issue of salaries, the  Commission refused the employees any increase in pay. Then, later, the government failed to implement portions of the award which were favourable to the nurses. A boycott of the Commission had been ordered by the British Columbia Federation of Labour as part of its protest against this Act. Because of the record established by the Commission a pattern developed whereby parties, forced with the prospect of government intervention, would choose to settle their differences by private, ad hoc arbitration.  The lack of confidence in the ability of  the Commission to provide satisfactory solutions to the matters  - 10 -  referred to i t became so widespread that, in 1971, the government avoided its own creation and appointed an independent arbitrator for the British Columbia Hydro dispute.15 The British Columbia experience with the Act has been summarized thus: The experiment with a strike control tribunal on the model of the Mediation Commission Act in British Columbia must be viewed with great misgiving. The Mediation Commission failed miserably to generate confidence in compulsory arbitration of public interest disputes, and i t alienated even those groups that had previously supported ad hoc compulsory arbitration. The Mediation Commission acted like a labour court and as a result political confrontation with the trade union movement increased and the incidence of strikes increased also. Because the Commission lacked credibility, important disputes were referred to a_d hoc arbitration. The back-to-work orders by the cabinet were ill-timed and treated with open defiance by employees. Eventually the failure of the Mediation Commission Act contributed to the defeat of the Social Credit Government at the polls.I 6  Without a doubt the Commission failed to alter the trend of lengthy and bitter labour disputes in the province.  - 11 -  B.  The Birth of the Labour Code of British Columbia  1973  Following the defeat of the Social Credit government in 1972, the Mediation Commission Act was substantially amended, and renamed the Mediation Services Act.  17  Sections 18 to 22 of  the old Act, which had dealt with compulsory arbitration were omitted entirely from the amended version. These changes were only part of a new system of labour law which was being designed for the province. To assist in reform, the Minister of Labour appointed a task force of three special advisers from outside government. The Special Advisers first set up an office, solicited briefs from all interested parties, and held meetings at which recommendations were sought. Hearings were also convened throughout the province and the advisers travelled across Canada to compare relevant experiences in other jurisdictions. The report of the task force was submitted to the Minister and in 1973 the Labour Code of British Columbia Act introduced.  18  was  This new statute continued the right of essential  service employees to strike, but this time there was no threat of possible compulsory binding arbitration.  "The basic  approach of the new law was to reduce legalism in response to labour-management controversies, follow a policy of noncompulsion, and to rely on mediative devices to protect the public interest."!  9  - 12 -  Section 7320 f the Labor Code made provision- for a 0  firefighter's union, policemen's union, or hospital union, as defined in this section, to elect to resolve a bargaining dispute by binding arbitration at the union's options where both parties had negotiated in good faith but had failed to conclude a collective agreement. It was hoped that the union would take advantage of this alternative.  This option did  not deprive them of the right to strike. The right to elect binding arbitration under section 73 was given to the tradeunions alone. This was thought appropriate as i t was the unions who would be giving up the right to withdraw their services: The only people who are relinquishing a meaningful course of action, a meaningful weapon, here, are the employees who if they opt for compulsory arbitration do relinquish the right to strike. 21  As already stated, under the new Labour Code, employees in the three designated areas were not denied the right to strike. Presumably i t was hoped that the option of binding arbitration would be sufficient incentive for the resolution of bargaining impasses without work stoppages. However, the ability of "essential" unions to strike, and the lack of legislative provisions to deal with such a strike raised the fear of ad hoc legislation: The absence of any standing prohibitions against strikes obviously does not prevent a government from introducing ad hoc legislation specifically designed to deal with individual emergent situations. But ad hoc legislation is a dangerous business: i t invites politicization of disputes; i t changes the rules in the middle of the game and is thus liable to be  - 13 challenged on the grounds of basic fairness; and i t does not afford the parties or the government any long-term basis for resolution of difficult, structural problems.22 In the mid-70's ad hoc legislative reactions to disputes in essential services became well known. For instance, in 1974, the fire fighters in Lower Mainland went on strike and refused to perform any firefighting duties. A special session of the Assembly was called to legislate them back to work. The N.D.P. government passed the Essential Services Continuation Act.23 varied the certificates of 5  five firefighters' locals to create a council of trade unions out of the separate bargaining certificates held by firefighters in various municipalities, imposed a collective agreement, and gave jurisdiction to the Labour Relations Board to make such orders as i t considered necessary in respect of the agreement. In addition, section 73 of the Labour Code was amended by adding subsections (7) and (8) by authorizing the Cabinet to impose a 21-day cooling-off period during which strikes and lockouts would be prohibited.  24  The next ad hoc legislation was passed in 1975 in the form of Collective Bargaining Continuation Act.  25  The Bill was  directed primarily at labour disputes in the food and forest industries and required, inter alia, all employees to resume business "...to the extent and scope i t was on the date the strike or lockout first occured," to "...immediately  26  and required all employees  resume the duties of their employment..."  27  By its terms the Act imposed a 90-day cooling off period, with  - 14 -  the possibility of a further 14 day extension should the Lieutenant Governor in Council so order.28 Not unexpectedly, the legislation evoked a strong negative response from the British Columbia Federation of Labour and for a short time there was speculation whether complete defiance of the Act would be encouraged. In the end, however, no concerted action was taken.  Only some bargaining units (notably the bakers and  butchers) continued picketing. In 1975, realizing the difficulty in dealing with serious work stoppages in essential services, the government made several key amendments to section 73 of the Labour Code.29 Sub-section 73(7) was amended by striking out all the words after "continuing to occur" and substituting this: "the minister may either (a) recommend that the Lieutenant Governor in Council, by order, prescribe a cooling-off period not exceeding 21 days during which no employee or trade union shall strike and no employer shall lockout his employees or during which an existing strike or lockout shall be suspended, or (b) request the board to designated those facilities, productions, and services that it considers necessary or essential to prevent immediate and serious danger to life, health or safety and the board may order the employer and the trade union described in subsection (6) to continue to supply, provide, or maintain in full measure those facilities, productions, and services and not to restrict or limit any facility, production, or service so designated, or may do both." This new provision added a measure of flexibility.  The  original version of subsection 73(7) required all striking  - 15 -  employees to return to work once the Lieutenant Governor in Council prescribed a cooling-off period. As amended the subsection prima facie permitted job action, albeit in a limited form, while at the same time ensuring that a minimum standard of service, satisfactory to the public interest, would be continued. Using the example of the federal Public Service Staff Relations Act, the government, in this Amendment Act, gave the Labour Relations Board the power to designate facilities and services as essential and to ensure the performance of these services during a strike in order to avoid "immediate and serious danger to life, health or safety". In 1976, this authority was exercised in the strike by the Hospital Employees Union against the Vancouver General Hospital.30  The Hospital Employees Union and the Health Labour  Relations Association were unable to settle negotiations for the renewal of a collective agreement covering components in the hospitals throughout British Columbia. The report of the Blair Industrial Inquiry Commission was rejected by the Health Labor Relations Association and a strike seemed inevitable. On April 30, the Minister of Labour ordered the Labour Relations Board, pursuant to section 73(7) of the Labour Code, to ensure that essential services would be maintained at the hospital in the event of a work stoppage by the Union. This was the first time that the "designation" provision of subsection 73(7) had been brought into use, and many questioned the ability of the  - 16 -  Board properly to judge the "life and death" issues involved when determining which positions would be "essential". On May 4, the hospital employees struck and in the ensuing weeks work stoppages were initiated at seven other hospitals. In each case, the Labor Relations Board designated which positions would have to be staffed during the strike. With no evidence of a break in the bargaining impasse, the government passed the Hospital Services Collective Agreement Act_31 hich brought an end to the work stoppage and resulted in w  an imposed contract. The Labor Code was soon amended to expand the scope of section 73(7).  32  Section 3 of the amending legislation  provided: Section 73(7) is amended (a) by striking out "fire fightert's" union, hospital union, or policemen's union" and substituting "trade union", (b) in paragraph (a), by striking out "21" and substituting "40", and (c) in paragraph (b), by striking out "described in subsection (6)" Previously, the maximum cooling-off period, which might be imposed, was 21 days; it was not extended to a total of 40 days. More importantly, the range of employees who could be the subject of a cooling-off order was broadened.  Section  73(7) had initially applied only to firefighters', health care and policemen's unions. The new wording referred to a"trade union". The net effect of the amendments, therefore, was to extend mechanisms of"cooling-off" and "designation," originally  - 17 -  implemented for three essential services, to any other area where an immediate and serious danger to life, health or safety was likely to occur. In mid-1976 another ad hoc legislation was enacted.  The  Railway and Ferries Bargaining Assistance Act was passed to 33  bring an end to shutdown of the British Columbia Railway by the United Transportation Union. legislation34 f  r o m  What distinguishes this piece of  its predecessors is that i t provides a far  more comprehensive approach to disputes in these two essential services.  According to the Minister of Labour, the Act was  designed to achieve two distinct purposes. First, i t employed 35  binding arbitration to bring an end to the then existing dispute between the British Columbia Railway and the United Transportation Union. Second, i t provided "...some new legislative measures that (would) assist collective bargaining —free collective bargaining—in these two paramount public transportation services of provincial significance, the railway and the ferry system."  36  The Act contains provisions for the  appointment of special commissions to inquire into all matters pertaining to the relationship between an employer and its employees or their trade unions and the disputes or differences arising betweeen them.  37  Part II of the Act is applicable only  to British Columbia Railway. It provides, inter alia, for the appointment of one or more persons as a Board of Arbitration where the employer and a trade union are unable to conclude a new or revised collective agreement. Under section 11(5) the  - 18 -  Board of Arbitration is empowered to use (a) fact finding, (b) final offer selection, or (c) mediation to finality or a combination of these methods. In 1976, the Board of Arbitration, chaired by Owen B. Shime, Q.C., was appointed pursuant to the Act to resolve matters still in dispute between the employer and the United Transportation Union. Part III of the Act provides that where an employer and trade union are unable to conclude a collective agreement and the Lieutenant Governor in Council is of the opinion that an immediate and a substantial threat to the economy and welfare of the Province exists, or is likely to occur, he may prescribe a 90 day cooling-off period.  39  Where such an order is made,  the Minister of Labour shall forthwith appoint a special mediator to confer with the parties and assist them in negotiations.  Where the special mediator so recommends, the  Minister may also appoint a fact-finder.40  it  w a s  these  provisions which the government used to unsuccessfully intervene in the 1977 Ferries dispute. On October 6, 1977, the British Columbia Ferry and Marine Workers Union announced its intention to strike after the efforts of a mediator failed to resolve contract differences with the Ferry Corporation.  The next day, the Provincial  Government imposed a 90 day cooling-off period under the Railway and Ferries Bargaining Assistance Act.  Despite this  order, and the possibility of monetary penalties, the union membership voted to continue with its intended strike.  Not  38  - 19 -  only was the ensuing work stoppage illegal, but the workers defied a Labour Relations Board back-to-work order, issued in October at the Corporations' request.  An end to the strike was  eventually negotiated by the Board in a closed door meeting with the parties.  The agreement reached provided for the  appointment of a new mediator, and contained an undertaking by the Ferry Corporation not to take disciplinary action against its employees. A few days later, the Union voted overwhelmingly in favour of a return to work. On October 20, 1977 in the immediate aftermath of the British Columbia Ferries dispute, a special session of the Provincial Legislature was held to introduce the Essential Service Disputes Act.  41  There was, in fact, little in the  Essential Service Disputes Act which had not been enacted in similar form in earlier pieces of ad hoc legislation.  The  important provisions to note here are that by virtue of section 19 of the Act, section 73(1) to (6) of the Labour Code was repealed; all but one of these subsections were re-enacted with minor amendments as section 6(1) to (5) of the new Essential Service Disputes Act; and further provisions in respect of arbitrations were added including for the first time the criteria to which any arbitrator should have regard. The final enactment relevant here is the West Kootenay Schools Collective Bargaining Assistance Act.  42  The Act was  introduced in late 1978 to permit intervention in labour disputes at Selkirk College and various school districts in  - 20 -  West Kootenays area of the Province.  Collective agreements  were eventually imposed under binding arbitration pursuant to the statute.  43  Certain significant changes were made in the  Essential Service Disputes Act.  44  Section 11 was proclaimed to be in force as of January 15, 1978.45 This means that Part III of the Essential Service Dispute Act may now be invoked where the Lieutenant Governor in Council is of the opinion that a bargaining dispute is causing a substantial disruption of educational services.  - 21 -  CHAPTER 2  DEFINITION OF ESSENTIAL SERVICES  A definition of the concept of essential services has become important as strikes if these areas continue to alarm the public and make the governments feel uneasy. Disputes in essential services have become matters for public debate. To conduct itself responsibly in that debate, the public should try to understand and accept the fact that strikes and the threat of strikes are an integral part of the dynamics of a democratic collective bargaining system. It is equally important that the public be assured that effective measures are available, and will be used whenever necessary to prevent dislocation caused by emergencies.  46  There is a complex of public interests which should be safeguarded. There is no single public interest with respect to collective bargaining and strike and lockout but rather a series of completing public interests. For instance, there is a public interest in the preservation of the freedom of association and to act collectively.  But, at the same time,  against this must be weighed the public interest in the continuation of essential services in the face of a labour and management impasse.  47  The law seeks to strike a balance between the freedom of association and other public interests. This freedom is in  - 22 -  many ways the cornerstone upon which any democratic society is built.  In Canada this freedom has been enshrined in the  Constitution in the Canadian Charter of Rights and Freedoms.48 The right to join a trade union and to strike at common law was recognized by the Supreme Court of Canada in CPR v. Zambri.49  in that decision, Locke J. stated at pp. 656-657: "I do not agree with the contention of the respondent that the right to strike is expressly given to employees by s. 3 of the Labour Relations Act. That section, saying that every person is free to join a trade union and to participate in its lawful activities, and s. 4 giving a similar right to persons to join an employer's organization, are equally meaningless. No statutory permission is necessary to participate in the lawful activities of any organization. Furthermore, i t is not the union that strikes but the employees. The statute, however, implicitly recognizes that employees may lawfully strike by restricting the undoubted right during the currency of collective agreements, during the period in which conciliation proceedings are being carried on and for a defined period after an award.  The freedom of association is the fundamental premise upon which the Labour Codes of Canada and British Columbia are written. The labour statutes must be read with this freedom clearly in mind. The labour codes protect the freedom in three ways: (1)  They require that the parties bargain collectively.  (2) They uphold the right of the workers to join the trade union of their choice. (3) They ensure the workers their right to strike.  - 23 -  The labour codes also impose a numberof restrictions upon anemployer to prevent him from unfair labour practices. For example, an employer cannot lockout his employees without meeting the statutory requirements. He must negotiate a clause in the collective agreement for the settlement of grievances.  These are only some of the  restrictions but they are sufficient to demonstrate that the law has guaranteed the freedom of association. Freedom of association has been recognized by the International Labour Organization.  In Article 2 of its 87th  Convention, i t is explicitly set out that workers and employers "shall have the right to establish ... and join organizations of their own choosing ..."  50  Thus far i t has been a brief discussion on the freedom of association in general.  But, how does the freedom fare when i t  comes to strikes in essential services?  In a recent case^l i t  was stated: "The fact that i t is almost universally accepted and in particular that i t is accepted by the ILO that those working in essential services may be denied the right to strike if such denial is accompanied by, adequate alternative safeguards for workers rights, such as impartial and speedy conciliation and arbitration procedures, is no indication that the right to strike is less than essential to the right to organize and bargain collectively. Rather, i t confirms that the right to strike is so essential to the interest of workers that if i t is removed then the state must replace i t with a state-given right that will adequately protect these interests"  -  24  -  Where union and management cannot resolve their differences, there is bound to be hardship for the public which depends upon those services.  Where the length of the stoppage  or the type of product or service involved is such that i t causes hardship then serious problems can confront individuals, groups and the public at large. The definition of the concept of essential services is a very important factor in any industrial relations system. Where the rules applicable to these services impose major limitations on the freedom of workers and employers, the effect of a relatively broad definition of the concept could be to give the entire labour relations system a somewhat restrictive character.  - 25 -  A. Essential Services and the Public Sector - A Brief Look at Different Countries.  The first notable development in this field has been in the public sector.52  By this i t is meant all branches of wage  employment in which the State is the employer or the sole or main proprietor.  In some countries i t includes the civil service  itself, parastatal bodies providing a public service (such as the railways, the postal, telegraph and telephone services) and state owned agricultural, industrial or commercial undertakings. Formerly industrial relations throughout the civil service and sometimes other parts of the public sector as well were often governed by extremely restrictive regulations, which were frequently justified--in part if not exclusively--by the argument that all the services provided were, by definition, essential. Regulations of this type are still fairly widespread. In many countries, both industrialized and developing, the entire civil service is still governed by dispute settlement machinery based on a prohibition of strikes and on compulsory arbitration. Sometimes these restrictions apply also to other parts of the public sector. Countries in this category include Colombia, where they extend to almost all state undertakings, and Japan, where they cover all "public corporations and national enterprises" (which are responsible, among other things, for running the railways, the postal, telegraph and telephone services and the production and retailing of salt, tobacco and alcohol).  - 26 -  The notion that the services provided by the public sector are all essential has, however, never met with universal acceptance. For some years now i t has been noted more and more frequently that when the whole civil service, or even the whole public sector is governed by special industrial relations rules the criterion applied is not the essential nature of the activities concerned but the legal nature of the employment relationship relationship (under private or public law) or the identity of the employer (State or private person).  It is in fact  difficult to maintain that lower-level public servants working in a service of secondary importance-still less certain state undertakings-are performing really essential tasks.  Hence, i t is not  surprising that such countries as the United Kingdom, Norway, Malaysia and several French-speaking African countries have long since established distinctions between employees in the public sector according to the nature of their functions, or that a number of others-particularly among the industrialized countries--have recently adopted a similar approach. For example, in Italy, where the 1931 Penal Code provides for penalties in the event of any strike in the civil service, decisions of the Constitutional Court in 1962 and 1969 had the effect of limiting the scope of that particular provision to strikes affecting activities considered to be truly indispensable. The situation in the public sector has thus become much more akin to that in the private sector, where i t is very widely accepted—at least as a matter of principle—that a  - 27 -  special dispute settlement procedure should only be established in respect of services that are of a genuinely essential nature. What then is a "genuinely essential" service?  - 28 -  B. The Meaning of "Essential"-A Look at the Meaning of Essential in Differnt CountriesThe International Labour Office Reports  It would be worthwhile to have a brief glimpse at how essential services are defined and how the concept is looked at in developed and developing countries around the world.  This will  yield useful insight into the problem of definition and will be of help later when the concept in British Columbia is explored. In seeking to define the essential nature of a service one is confronted with two basic questions which are very closely linked and which for this reason may be dealt with together.53 The first, a question of form, is whether i t is preferable to adopt a definition formulated in general and abstract terms or to enumerate the actual services i t is intended to treat as essential.  The second, a question of substance, is to determine  which activities should be regarded, explictly or implicitly, as essential. The enumeration method is used in a great many countries in Asia, Africa, Latin America and the Caribbean, but i t is less widespread in the other regions of the world.  Countries  using this system include Belgium, Brazil, Colombia, India, Jamaica, Kenya, Malaysia, New Zealand, Nigeria, Pakistan, Panama, the Phillipines, Seirra Leone, Sri Lanka, Trinidad and Tobago, Venezuela and Zambia.  - 29 -  Although there are a number of differences in the composition of the lists drawn up in these countries, i t is possible to make three general observations about them. First, the majority of the services listed are concerned either with safeguarding industrial plant-by avoiding, for example, any stoppage of continuous process equipment-or with protecting health and safety of the population.  This second  category mainly includes the armed forces and the police; the fire brigade; the public health and sanitation services; the production and distribution of basic foodstuffs, water, gas, electricity and some other sources of energy, such as petroleum products; transport and communications; and docks. Obviously there are cases where a stoppage of these activities, especially if i t is not a complete one, does not strictly speaking effect the health and safety of the population but causes purely economic damage or hardships.  Nonetheless, labour disputes in these services are, as a  rule, apt to cause disruption in the life of the community that can rapidly become dangerous. Secondly, more and more countries have in recent years included in their list of essential services certain activities which are not concerned with safeguarding industrial plant or protecting the health and safety of the population but in which a prolonged interruption can cause very serious damage to the national economy. This trend is particularly noticeable within developing countries. In Zambia, for instance, mining activities have been listed as essential services since 1971.  The same applies to the cultivation,  -  30  -  manufacture and refining of sugar in Trinidad and Tobago since 1972. In the Phillipines, essential services include the production of sugar, textiles, clothing, certain articles classified as essential by the National Economic Development Agency and many goods destined for export.  There has also been a move along the same lines in some  industrialized countries.  For example, in New Zealand (where meat  exports play a major role in the economy) slaughterhouses operating for the export trade have been treated as essential services since 1976 whereas previously only those operating for domestic consumption were so regarded.  It should be noted also that various countries,  both industrialized and developing, have recently included in their list of essential services certain financial operations such as those carried out by banks and foreign exchange offices. Thirdly, and contrary to what one might think, an enumeration of essential services does not necessarily impose a straightjacket on the authorities' freedom to manoeuvre. In quite a few countries which had adopted this system the government has in fact been empowered from the outset to expand these lists by means of highly expeditious procedures. In addition, besides the provisions applicable to the services listed as essential, many of these countries have other provisions of a very general nature enabling the government to intervene in any dispute which i t sees as endangering the national economy or the national interest in general.  In some countries  possibilities of this type have existed for many years while in others they have only been introduced more recently. In Colombia, for example, the list contained in the Labour Code, which  - 31 -  was limitative until 1956 but has since become merely illustrative, was supplemented in 1968 by a provision empowering the President of the Republic, following a favourable opinion of the Supreme Court, to put an end to any dispute "seriously affecting the interests of the national economy"  54  Similar provisions were introduced in Pakistan in  1974, and in Panama in 1976.  The degree to which the authorities have  in practice added to the list of essential services or intervened in disputes arising in activities not included in this list varies from country to country.  While some governments have availed themselves of  these powers extensively, others have never used them. Concern for flexibility has of course always been particularly pronounced in countries which have rejected any enumeration of essential services and have confined themselves to a general definition.  This is true, for example, of the United States, a  number of European countries and several French-speaking African nations.  Sometimes the legislature, despite its desire for a  flexible system, has taken care to define essential services in a relatively narrow fashion.  In the United States, for instance, the  Taft Hartley Act of 1947, which applies to all sections of the economy with the exception of agriculture, the railways and air transport, provides that the special system governing the settlement of labour disputes in the case of "national emergencies" can only be applied when a dispute affecting "an entire industry or a substantial part thereof" will imperil "the national health or safety"  55  In many other  countries the definitions are founded, however, on much less precise notions such as the "far-reaching social importance" of the dispute  - 32 -  (in Denmark), "the public interest"(in Sweden) or"public law and order" and "the general interest" (in the Ivory Coast). One cannot really say that these are true definitions. When a country has not defined what is meant by an essential service or has done so only in very general terms i t is important to know how this notion is interpreted in practice. The tendency to interpret i t broadly, which has already been noted in the countries which use lists, is also found in those which have opted for general definitions.  In the United States, for example, the emergency  procedure provided in the Taft-Hartley Act has often been applied to disputes which did not really imperial "the national health or safety".  An instance often cited in this regard is the application  of this procedure to the steel strike of 1959 even though only 1 percent of steel production was needed for purposes of national defence.  In Denmark too, where Parliament has intervened on various  occasions over the past 50 years to put a stop to certain disputes deemed dangerous for the community (generally by transforming the conciliator's final proposals into law), i t should be noted that the purpose of several of the interventions made during the 1970s has been to impose wage settlements where central negotiations had reached deadlock.  It seems clear that these initiatives of the legislature  were motivated more by economic considerations than by a desire to protect the health and safety of the population. The above remarks enable one to make two series of comments concerning, respectively, the question ofsubstance and the question of form raised by the definition of "essential".  - 33 -  As regards the question of substance, i t might be asked whether it is a good thing that emergency procedures originally devised to safeguard industrial plant and protect the health and safety of individuals should now also be applied, in a growing number of countries, to disputes which seriously affect the national economy. To pose this question is not of course in any way to minimize the gravity of the problems caused by the latter type of dispute; i t seems in fact that the question of the influence the authorities should (or should not) exert in the field of collective bargaining, and the settlement of industrial disputes in order to help preserve or restore the major microeconomic balances, is currently one of the most important in the whole field of industrial realtions.  It is currently  a question which has preoccupied the majority of developing countries since they gained independence and which the recession has brought to the forefront in many industrial nations. While law can be laid down on how to resolve labour disputes that are likely to cause serious damage to the national economy, i t should be noted that a dispute of this nature differs too greatly from one in a hospital or powerstation to be dealt with in the same fashion. At the very least, before resorting to a procedure designed for other situations, an effort should be made to ascertain that there are no better alternatives.  Has the question really been gone into sufficiently  deeply to know for certain that such alternatives do not exist? As regards the question of form—and whatever the answer found for the question of substance--!'t seems that the problem of choosing between a list of essential services and a general and abstract  - 34 -  definition of them is largely a false one.  The fact is that many  countries which originally opted for the listing procedure have subsequently taken powers that give them almost as much room for manoeuvre as the countries without lists. These developments seem to indicate clearly that a modicum of flexibility is indispensable in defining essential services. There are two reasons for this. First of all, i t is not certain that "essential" can be defined adequately through the enumeration of certain "activities".  In the  preamble to the Basic Agreement applicable in Sweden to the private sector the signatories declare that "a certain activity is rarely in itself of such fundamental importance to the community as to warrant its protection against any conflict" and that the repercussions of the conflict on the community depend as much on the extent of the conflict as on the nature of the activities affected. They conclude that "no other solution appears to offer itself than to permit the balancing of conflicting interests to assert itself in each individual conflict." Even if one is not prepared to push the argument as far as that, one can scarcely deny the validity of the considerations on which i t is based. The second reason militating in favour of flexibility is that it should be possible to take into account, in the application of the rules, a number of extrinsic factors which willy-nilly play a very important part.  Is there any need to recall that the attitude  adopted by the authorities to a labour dispute often largely depends on the limits to the public's patience or even on purely political  56  - 35 -  considerations?  It is these factors which explain why i t has  frequently happened in almost all countries that the disputes procedure established for essential services has been applied in the case of relatively harmless disputes while i t has not been applied in the case of other much more serious ones. It might be feared that the more imprecise the definition of "essential" the easier i t would be to invoke this procedure.  While  this danger is not an imaginary one, i t seems nevertheless that the frequency with which this procedure is used does not depend primarily on the precision with which essential services are defined.  In Sweden,  where there is no definition, the discussions held in the Labour Market Council in connction with major disputes have only once resulted in a real decision (in 1953 on the occasion of a dispute in a privately owned electric power-station).  In the United States, on the other  hand, the emergency procedure provided for in the 1926 Railway Labour Act (also applicable since 1936 to air transport) has been invoked more than 200 times, even though this Act applies to only two sectors of activity and contains a definition (of sorts) since i t states that this procedure can be used only if a dispute should "threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service."57 i t seems therefore that the frequency with which recourse is had to the emergency procedures depends more on certain other factors and more particularly on the degree to which industrial relations in general are strained, since the less tense they are the fewer disputes there will  - 36 -  be and the greater the number of those that can be settled through the ordinary procedure.  -  37  -  C. The Meaning of Essential in British Columbia  In British Columbia there have been at one time or another certain disquieting trends which affected the maintenance of essential services in some vital sectors of the economy. The expression of the public interest in being protected from the hardships of work stoppages takes many forms. Generally, the public interest refers to protection of life and health, maintenance of public safety and order, and preservation of the state. The Report of the Task Force On Labour Relations made seven observations which were fundamental to the determination of a scheme for containing these disputes.  58  First, i t is very difficult to say with certainly in advance of actual events in what industry or service and at which time a strike may cause such inconvenience and hardship and thereby bring about a life threatening situation.  By way of illustration, in London,  England, burned-out traffic lights were not replaced, and traffic ground to a halt. strike.  The reason? The light bulb changers were on  Would anyone, before that event, have defined light bulb  changing as an "essential industry"?  Or, here in Canada, who would  have defined elevator construction as an "essential industry"? Nevertheless, a national strike in that industry tied up an estimated $800,000,000 worth of construction across the country, created serious problems in hospitals and nursing homes and caused great inconvenience for many people.59 Second, the length of a strike or lockout frequently is a critical factor. A short duration  - 38 -  may make no difference at all, whereas a long duration in the industry or service may create big problems. Third, there can be no one policy or procedure that works with uniform success. Fourth, flexibility of approach is essential lest the parties should build the existing policy or procedure into their strategies. Fifth, a determination that a given stoppage of work ought to be terminated in the public interest is essentially a political decision.  Sixth, the political element in a  potential emergency dispute is an inducement to the parties to drive the dispute beyond any procedural device of settlement and into the political arena. Seventh, circumstances may be expected to arise in the eventual course of industrial conflict in which disobedience to and defiance of the law will not be forestalled by that law.  For instance,  in October of 1977, the Government of British Columbia decided to impose a cooling-off period in an attempt to avoid a work stoppage on the ferries.  The ferry workers refused to abide by the order to  continue working during the "cooling-off period".  The illegal work  stoppage lasted eight days. The public was inconvenienced and alarmed at the defiant attitude of the ferry workers against the government and the Labour Relations Board.  60  These observations should suffice to demonstrate that before one can settle on a definition of "essential industry" or "serivce" one must take into account a number of variables.  If one tries to  define what industries are essential, where does the list end? It is difficult to determine in advance, in what industry, or at what stage of events, a strike should be prohibited or terminated. The length of  - 39 -  a strike, the extent of disruption, the public interest—these are all critical factors.  61  In the laws of British Columbia and particularly in the Labour Code of British Columbia there are provisions which deal with a limited definition of essential services. and safety.  It is limited to aspects of health  In a limited way, there is in section 8(b) of the  Essential Service Disputes Act, Bargaining Assistance Act  63  62  and the Railway and Ferries  another parameter of essential services—  that of threatened harm to the economy and welfare of the province and its citizens. What does "economy" of the province mean? The word "economy" mentioned in the Bill generated much debate. Mr.  Wallace  queried: "What for example, will happen, after this Bill is passed, i f the employees in our liquor stores would wish to go on strike again? Just how do we define impact on the economy, Mr. Speaker? The 1976-77 figure for revenue derived from the sale of liquor in this province was $162.5 million. If the employees in the liquor stores of British Columbia strike, with the obvious loss of revenue to the government, the government should consider that to be sufficient economic impact to invoke the appropriate provisions of the Bill for a cooling-off period or for the Labour Relations Board to designate i t an essential service." 64  There is no essential nature in providing liquor for the citizens, but indeed there is a vital impact if the government loses a large amount of revenue. That service which disrupts the economy of the province and the country is essential. Mr. Gibson, the then leader of the opposition, proposed that in a literal reading of the legislation British Columbia Railway was essential to the economic well being and welfare of the province.  - 40 -  So the Labour Relations Board might well find in interpreting this section that all of the running trades on the British Columbia Railway had to keep going, which in essence was an elimination of the strike weapon. Similar findings could be made in British Columbia Hydro, in the  electricity supply, in the natural gas supply, and in transit  operations, all of which are clearly necessary to the economy and welfare of the province and citizens of the province. The British Columbia Ferries clearly fell within this category, the British Columbia Systems  Corporation probably and any area of government  related to health and and welfare.  65  The Honourable Mr. Hewitt emphasized upon the importance of British Columbia Railway and British Columbia Ferries.  He explained:  "As Minister of Agriculture I can tell you that there are two areas which affect agriculture in this province when you deal with essential services, one being B.C. Rail and the other being B.C. Ferries. For the movement of produce, materials and supplies, which are needed in the economy, and, of course, which are needed by the agriculture industry in this province, i t is important important that railway lines be kept open. On Vancouver Island, we have poultry that has to be moved from there to the mainland for processing. We have feed supplies that come on to this island from the mainland—molasses, grain and alfalfa, which are needed, of course, in our dairy industry. We ship cattle to the mainland for slaughter, and, of course, we import, if you want to use that term, from the mainland, fruits, vegetables, meats and milk, to go to market on the island." 66  He quoted from the resolution of the Federation of Agriculture: "As the B.C. Ferry system is an integral part of the highway, i t is of real concern to all when this vital link is closed down due to strike action. When such action occurs, movement of perishable and other produce comes to a standstill, thereby jeopardizing the economy  - 41 and the livelihood of those people directly and indirectly involved in the production and marketing of such products. To this end the Federation of Agriculture respectfully requests that the provincial government declare the B.C. Ferry services as an essential service."67 Referring to the ferry strike Mr. L. Bawtree observed: "It could take months or even years to overcome the economic effects caused by the suspension of the ferry services for just a very few days earlier this month. The people of Vancouver Island surely are entitled to know that a service so essential to their welfare will not be discontinued again in the future. The government has a responsibility to make sure that no part of this province suffers great economic hardship and deprivation because of illegal acts by labour and management." 68  At the other extreme, apart from fire, hospital and police services, is the view of the Honourable Mr. Phillips.  He said  during the debate: "The workers are well paid, and outside of their jobs they have an abundance of other services provided by the taxpayers of this province. The workers of this province, along with the other population, enjoy hospital insurance today. They enjoy medical insurance. Those who are unemployed enjoy unemployment insurance. The majority of the people enjoy pharmacare, and we have guaranteed income for the elderly citizens of this province. Indeed for the less fortunate ones we have social welfare programmes. These are services that are very essential to those who are receiving them. They are services that must not be interrupted and indeed they are services that are being paid for by the very workers of this province that Bill 92 would seek to serve by creating a better climate in which to work ... I refer not only to those essential services that are rendered by the Province of British Columbia but I refer also to essential services that are rendered by our federal government, such as mail delivery".69  - 42 -  Still another extreme is brought into view when the educational system is considered.  In British Columbia the Essential Service  Disputes Act 0provisions were extended to include colleges and 7  schools in 1978 because of lengthy work stoppages involving Canadian Union of Public Employees at Selkirk College and the West Kootenay School District. Assistance Act  71  In the West Kootenay Schools Collective Bargaining the strike was brought to an end, collective  agreements were eventually imposed and the scope of essential service disputes legislation was extended to municipal employees and to nonteaching personnel of educational institutions  72  - 43 -  1. Services Specifically mentioned in the Labour Code of British Columbia and the Essential Service Disputes Act  What industries and services, whether public or private have sufficient impact on the public interest to warrant their being termed as essential? There is little doubt that the truly essential category of fire, hospital and police employees meets the tests of protection of the public set out in section 73(1) of the Labour Code and section 8(a) of the Essential Service Disputes Act. The problem in British Columbia derives from the the necessary determination of whether a particular union meets the definition of "fire fighter's union", "health-care union" and "policemens' union" under section 1 of the Essential Service Disputes Act. Taking the position that these three categories of unions should be denied the right to strike, the definitions of them in section 1 of Essential Service Disputes Act become particularly meaningful. The definitions merit examination. What is a fire fighter's union? The definition has been included in the Essential Service Disputes Act exactly as i t was in the now repealed section  73(6) of the Labour Code:  Fire fighters union means a trade union certified for a unit in which the majority of employees has as its principal duties the fighting of fires and the carrying-out of rescue operations. 73  This definition does not present problems. Large corporations can conceivably employ their own fire departments for certain purposes,  - 44  -  and local fire departments can be publicly employed by the municipalities and f i t easily into the definition.  However, the  case of provincially employed fire fighters at the University of British Columbia, Riverview Hospital and Tranquille School presents an interesting problem.74  xnese fi  r e  fighters were members of the British  Columbia Government Employees Union and were organized under a separate occupational group for fire fighters. When the Essential Service Continuation Act  75  was passed in 1974,  the fire fighters argued that i t  served to amend the Labour Code of British Columbia in such a way as to confer a special status on them. It was argued that there should be a special component for the fire fighters and further that i t was excluded from the British Columbia Government Employees Union by virtue of the definition of fire fighter's union quoted above and then set out in section 73 of the Labour Code. The Board rejected this argument and determined that these fire fighters were not a fire fighter's union under that definition for these reasons: In the first place this group of fire fighters does not constitute a trade union. There was no evidence of any organizational structure. Secondly, no certification has been issued for any organization to represent a unit of employees of the Crown in which the majority of employees has as its principal duties the fighting of fires and carrying out of rescue operations. In fact, this Board has no authority to certify any such unit. The Public Service Labour Relations Act expressly designates the bargaining units in the Public Service, and these are the three set out in section 4 of that Act. No unit that could satisfy section 73(6) of the Code can be certified under the Public Service Labour Relations Act. In short, I find that the 85 fire fighters employed by the Government of the Province of British Columbia at the University of British Columbia, Riverview  - 45 -  Hospital and Tranquille School do not constitute a f i r e fighter's union within the meaning of that expression as i t appears in section 73(6) of the Code. As to the policy argument advanced by Counsel for the employees, I agree that a very logical case may be made for treating these f i r e fighting employees as a group separate and distinct from the majority of employees in the public service of B r i t i s h Columbia They are engaged in essential services of a kind that would need to be maintained in the event of a s t r i k e . However, I observe in this case that such services were maintained, within certain l i m i t s , and that by Counsel's own admission every f i r e was fought, and l i f e supporting services were rendered. It is quite conceivable that the example offered in this case might well be emulated in the event of a lawful strike by members of the B r i t i s h Columbia Employees Union. On the other hand, there is no doubt that these employers have had the right to strike conferred upon them, given appropriate circumstances, and are therefore entitled to exercise that right. Presumably, the Legislature has already considered this p o s s i b i l i t y , and notwithstanding the ramifications included the f i r e fighters in the same bargaining unit as other employees." 76  At the present time, this bargaining unit may be dealt with under section 73 of the Code which does not have the pre-requisite definition of f i r e fighters' union.  But i t is submitted that the  decision quoted was made in error, and that there should indeed be a separate bargaining unit for these f i r e fighters and i t should be subject to the Essential Service Disputes Act.  While there have been  procedural barriers to granting separate status in this action, the policy argument should have been accepted and a recommendation made for application and c e r t i f i c a t i o n as a f i r e fighter's union.  -  46 -  What constitutes a health care union? The definition is Essential Service Disputes Act provides:  "Health care union" means a trade union certified for a unit in which the majority of employees has as its principal duties the health care of patients or operation and maintenance of a hospital. 77  Jurisdiction to determine the question rests with the Labour Relations Board. It has been exercised in the cases of Medical 78  Associates Clinic and the Hospital Employees Union Local 180,'° Medical Associate Clinic and the Hospital Employees Union Local 180,  79  and Jubilee Home Society (Noric House)  80  In the Medical Associate Clinic case 52, of 1978 the issue was whether persons in a medical clinic were covered by the Essential Service Disputes Act.  Had the Board the jurisdiction to determine  whether the persons were covered by the Act? The Board ruled i t could hear the case. In the Medical Associate Clinic case 60, of 1978 the issue was whether clinic workers were included in the definition of health care union. The Board reviewed the principal duties of each of the employee classifications.  It held that the housekeeper, caretakers,  receptionists, billing clerks, medical stenographers, and medical records clerks were not involved in the examination, diagnosis, treatment or active care of patients. They did not have as their principal duties the "health-care of patients". There were fifteen employees within those classifications.  Since the entire unit consists  of twenty-two employees and the definition under consideration was a  - 47 -  majority rule provision, i t was held that the Hospital Employees Union was not a "health-care union" in the circumstances of that case. It was held that a clinic to which people came to visit doctors and nurses was not operated by a health careunion.  The decision of the Board was  that the clinic workers were not represented by a health care union and that those negotiations fell under the Labour Code. Similarly in the City of Vancouver and Registered Nurses Association of British Columbia (Labour Relations Division) !, the 8  union sought for a declaration that the union consisting of nurses, employed by the city, was within the definition of a "health-care union" under the Essential Service Disputes Act.  The employer opposed  the application. The Board determined that the duties of the nurses in question did constitute providing care to patients for the purposes of the Act and thus, the arbitration provisions of the Act were available to the union. In Windemere Central Park Lodge and Hospital Employees Union, Local 180 and British Columbia Association of Non-Profit Community Care Facilities,  82  there was an application for reconsideration of a  previous Board decision which held that the employer and the union were not governed by the provision of the Essential Service Disputes Act. The Board, after analyzing the definitions of "hospital" and "healthcare union", dismissed the application and upheld the previous Board decision.  It was a matter of agreement between counsel that a finding  that a facility was a hospital under the Hospital Act, did not necessarily make i t a hospital under the Essential Service Disputes Act.  - 48 -  In the Jubilee case 62, of 1979 the Board determined that a hospital for the care of persons whose average age exceeded eighty years was operated by a bargaining unit that was a "health care union" under the definition in the Act. The Medical Associate Clinic case and the Jubilee case approach the problem by examining the definition of health care union and comparing i t with the definition of "hospital union" in the now repealed section  73(6) of the Labour Code which read:  hospital union means a trade union certified for a unit in which the majority of employees has as its principal duties the care of patients in, or operation and maintenance of a hospital.83 Even a quick glance reveals a number of differences between the two definitions.  In the first place, the term "hospital union" has  been replaced by the term "health care union". As well, the phrase "care of patients "has now been modified by the adjective "health" to produce the phrase "health care of patients".  Finally, and of  particular significance, the health care of patients is no longer exclusively referable to employees in a hospital.  By removing the  word "in" from the phrase "care of patients in" and retaining the disjunctive "or", the legislature has quite obviously made an adjustment to the scope of the definition.  At the same time,  however, a sharp distinction seems to have been drawn between employees engaged in the "health care of patients" and those engaged in the "operation and maintenance of a hospital". It is clear that the new definition in common with the old one, embraces all bargaining unit employees at hospitals. Those  - 49 -  employees must necessarily be engaged in either the delivery of health care or in operating or maintaining the hospital facility. It is equally clear that the new definition was intended to reach beyond hospitals and to cover at least some groups of employees at other kinds of health care facilities. problem is presented.  Having said that, another  When one goes beyond hospitals, what is the  significance to be attached to the distinction which has seemingly been drawn between the "health care of patients" and the "operation or maintenance of a hospital".  84  If one assumes that all employees of hospitals belong to health care unions, then the next question to be asked is what is a hospital ? Neither Essential Service Disputes Act nor the Labour Code include a definition of 'hospital'. The Board in the Jubilee case refers to the Hospitals Act  85 a n  d concludes that the institution in that case  fits into none of the applicable definitions.  Nor would the clinic in  the Medical Associate Clinic case meet the criteria.  Here is where the  distinction between those who work in the operation and maintenance of the hospital and those whose duties are principally the health care of patients is significant.  Once i t is determined that the institution is  not a hospital then those involved in the operation and maintenance of it will not be members of a health care union unless the majority of members of the bargaining unit offer health care to patients. In the Medical Associate Clinic case i t was first determined that the clinic was not a hospital and then i t was determined that those persons who offered health care were doctors and nurses outside the membership.  - 50 -  The bargaining unit did not qualify as a health care union because the membership neither operated a hospital nor were their principal duties health care. But in the Jubilee case, while the institution was determined not to be a hospital, the employees' duties, in tending to the needs of persons of varying degrees of dependency due to old age, were found to be health care duties. Additionally the Board found, in that case, that i t did not make sense to say that employees who assisted the patients in dressing were health care workers while those who did the laundry were not. Thus the support staff engaged in cooking, dietary and housekeeping functions were included in the bargaining unit as health care workers.  As a consequence the majority  of the workers were found to have health care duties and consequently, the bargaining unit became a health care union despite the fact that i t did not operate a hospital. The new definition of health care union in Essential Service Disputes Act is indicative of the policy in the new Act to expand the bounds of essentiality.  The Board was prepared assuming the  appropriate criteria were met (and they were not) to designate a privately owned medical clinic to be essential. Certain other private hospitals might also come under this extension but they are largely funded by the provincial government and therefore are distinct from a wholly private medical clinic which, despite sources of funding from the medical insurance plans, is privately operated.  Also, the removal  of the requirement that an institution meet the definition of hospital allows the Board to find that any association of employees which supplies medical services to the public meets the definition of health  - 51 -  care union.  The larger general hospital staff would be found to be  essential without doubt but there are other large community care facilities  86  whose patients would suffer in the event of a work  stoppage and no determination has as yet been made as to whether these institutions are operated by health care unions.  It does not seem  likely that these institutions will meet the definition of hospital under the Hospitals Act so the second part of the test must be satisfied. What is a 'policemen's union'? The definition in the Essential Service Disputes Act does not appear to have been challenged.  The  section reads: A trade union certified for a unit in which the majority of employees is engaged in police duties. 87  From a policy standpoint i t would appear that all police employees should be included in the definition as long as they are recognized peace keeping forces.  - 52 -  2.  Concluding Remarks  To conclude the discussion on the definition of essential services i t can be said the services can not be enumerated exhaustively because to the list of services, designated as essential services, can be added still a few more services. The l i s t grows longer as services not essential under a given time and condition become so as circumstances change. Even more important, the shift from the limited, self-contained notion of public safety to the broad concept of public welfare having no determinate form, poses intractable, qualitative problems. The concept of public welfare reveals the vast array of government services and the distinctive types of harm that might flow from essential service strikes whether public or private.  Some of these have been mentioned before.  In summary,  they are: 1.  The public safety employees—particularly fire, hospital workers,  and fire fighters.  If these  workers go on strike, individuals in the  community are immediately threatened with injury, illness, even death. 2.  Governments minister to the profound human needs such as education  of the young, social  assistance of the weak and unfortunate, legal  justice for all citizens  88  These, therefore, should be treated as  essential services. 3.  A great deal of government activity is intended to provide the  infrastructure upon which Canadian economic activity depends. Extensive harm will be caused by a lengthy railway strike, especially where railway is an integral part of the industrial set up.  For  - 53 -  i n s t a n c e , the f o r e s t i n d u s t r y w i l l railway workers.  suffer i f  t h e r e i s a s t r i k e by the  R a i l t r a n s p o r t a t i o n i s the c r i t i c a l  i n t e r d e p e n d e n t economy f a c t o r i e s and m i l l s ,  l i n k i n Canadian  p r o v i d i n g d e l i v e r y o f raw m a t e r i a l s to  and shipment of f i n i s h e d goods to the  r a i l w a y s t r i k e q u i c k l y r i p p l e s throughout  the economy,  market.  A  triggering  c u t b a c k s i n the p r i m a r y r e s o u r c e and secondary m a n u f a c t u r i n g industries, 4.  and l a y o f f s of employees who work i n them.  The v a s t m a j o r i t y o f government s e r v i c e s are d e s i g n e d to  the a m e n i t i e s of l i f e ,  r a n g i n g from garbage c o l l e c t i o n to p u b l i c  t r a n s i t l i k e bus s e r v i c e , a n d , i n B r i t i s h C o l u m b i a , the f e r r y By r e f e r r i n g t o these as are  being d e p r e c i a t e d .  provide  service.  " a m e n i t i e s " i t s h o u l d not be t a k e n t h a t they They may w e l l be the major  i n g r e d i e n t i n the  q u a l i t y o f l i f e i n the community and the mark o f how c i v i l i z e d a society i s . Among t h e s e r v i c e s p r o v i d e d by the f e d e r a l government, a i r t r a f f i c and p o s t a l s e r v i c e s need to be mentioned f i r s t i n o r d e r  of  priority.  the  An a i r t r a f f i c c o n t r o l l e r s ' s t r i k e not o n l y d e p r i v e s  community of the amenity o f v a c a t i o n t r a v e l , but i t a l s o g e n e r a t e s economic l o s s e s to the t o u r i s t i n d u s t r y .  I t may even c r e a t e the r i s k  of p h y s i c a l i n j u r y to remote communities r e l y i n g on a i r t r a n s p o r t fuel,  f o o d and medical s e r v i c e s .  communication.  Shutdown of the p o s t o f f i c e  for  threatens  A l t e r n a t i v e s l i k e t e l e x , t e l e g r a m and t e l e p h o n e are  a v a i l a b l e but they are e x p e n s i v e . cheap mode of c o m m u n i c a t i o n .  P o s t a l s e r v i c e s p r o v i d e a f a s t and  The n o t i o n of " p u b l i c w e l f a r e "  is  c e r t a i n l y c a p a b l e of b r i n g i n g t h e s e k i n d s of s e r v i c e s under the u m b r e l l a of " e s s e n t i a l " p u b l i c s e r v i c e l e g i s l a t i o n .  S o r t i n g out t h e s e  -  5 4  -  qualitatively different services, and distinguishing the variety of kinds of harm inflicted by a single strike of a single integrated operation, is still indispensable in deciding when and to what extent the government should intervene. The theme which has unfolded in British Columbia labour relations legislation is that while with one hand the law holds out to essential service, employees public or private, the promise of the right to strike, with the other hand i t must protect the general public from any significant harm to its welfare resulting from such a strike. A hypothetical illustration will show how the public is affected when the essential service employees go on strike. One has heard the rhetoric many times: the ordinary citizen is just an "innocent victim" trapped in the midst of a battle between a remote government and a powerful union, and he should be insulated from any such painful fallout. Surely this is an illusion.  For instance, imagine a school  board dispute in which negotiations between the board and the union have reached an impasse.  It is up to the union to take the  initiative to break one logjam by calling a strike.  When the union  members stop working, they feel the immediate brunt of that action. Their pay cheques stop coming, and they must make do on meagre strike benefits. The union is now told that it must not disrupt delivery of educational services to the innocent school children and their parents. Presumably i t is only the employer, the school board, which is the legitimate target of the union's action.  But what does i t mean  - 55 -  to say that a government entity is the target of a strike?  Will the  elected members of a school board really feel any tangible incentive to compromise in their bargaining posture if the schools are continuing to operate even though their employees are out on strike? From the point of view of the union, the general public is not an innocent, uninvolved bystander in the dispute between the government employer and its union.  The public j_s_ the employer to an even greater  extent than are the shareholders of private corporate employers.  It is  the interests of the public that are being advanced at the other side of the table, either as consumers of the services who want to maximize employee production, or as taxpayers who want to minimize labour costs. (It is this inherent conflict of interest between public employee and ordinary citizen which is the rationale for collective bargaining in a political democracy). The general public elects the officials responsible for settling the disputes. Thus, i t is these voters who must feel the pain from the loss of services that they really miss— which they really consider essential to their welfare—if the politicians are to be made a little more accommodating, a little more malleable, at the bargaining table.  - 56 -  CHAPTER 3 METHODS OF CONTAINING HARM CAUSED BY STRIKES IN ESSENTIAL  SERVICES  There are v a r i o u s methods of c o n t a i n i n g harm caused by s t r i k e s by e s s e n t i a l employees and t h o s e running e s s e n t i a l  services.  The  method i s t o d e s i g n a t e the employees as e s s e n t i a l and thus t h e i r r i g h t t o go on s t r i k e . federal A.  first  restrict  One example of t h i s i s found i n t h e  sphere.  D e s i g n a t i o n of E s s e n t i a l  Employees - The F e d e r a l P u b l i c  Service  S t a f f R e l a t i o n s Act The i d e a of d e s i g n a t i n g e s s e n t i a l employees and thereby away or r e s t r i c t i n g t h e i r time i n t h e f e d e r a l  taking  r i g h t t o s t r i k e was m e n t i o n e d , f o r t h e  Public Service Staff Relations Act.89  d r a s t i c method of l i m i t i n g t h e e f f e c t of s t r i k e s than  it is a less  legislative  p r o h i b i t i o n of s t r i k e s .  I t would be w o r t h w h i l e t o examine b r i e f l y  provisions  It  of t h i s A c t .  first  would show how f a r i t s p r o v i s i o n s  help i n the f i e l d of d e s i g n a t i o n of e s s e n t i a l s e r v i c e s i n  the  can be of  British  Columbi a . E a r l y Canadian i n d u s t r i a l the f i r s t  r e l a t i o n s l e g i s l a t i o n , enacted d u r i n g  decade of t h i s c e n t u r y ,  dealt s p e c i f i c a l l y with  s i t u a t i o n s i n which the community had e i t h e r a d i r e c t  strike  proprietary  i n t e r e s t or a s p e c i a l concern a r i s i n g out of the e s s e n t i a l n a t u r e the i n d u s t r i e s a f f e c t e d . were e a r l y  Public u t i l i t i e s ,  railways,  and c o a l mines  i d e n t i f i e d as i n d u s t r i e s worthy of l e g i s l a t i v e  intervention  which d u r i n g t h e s e f o r m a t i v e y e a r s took the r e l a t i v e l y  innocuous  of compulsory s t r i k e postponement and c o n c i l i a t i o n .  It  9 0  of  is  form  - 57 -  particularly  relevant,  i n the p r e s e n t c o n t e x t , t h a t employees of  p r i v a t e f i r m s and government-owned  r a i l w a y s and m u n i c i p a l l y - o w n e d  p u b l i c u t i l i t i e s had and have up u n t i l collective bargaining.  both  now f u l l  freedom t o engage i n  The P u b l i c S e r v i c e S t a f f R e l a t i o n s Act  requires  both t h e employing agency and the b a r g a i n i n g a g e n t , upon t i m e l y  notice,  " t o b a r g a i n c o l l e c t i v e l y i n good f a i t h and make r e a s o n a b l e e f f o r t  to  conclude a c o l l e c t i v e agreement".91 The f a i l u r e t o announce a f f i r m a t i v e l y t h e e x i s t e n c e of a r i g h t s t r i k e i s hardly s u r p r i s i n g .  In the f i r s t  to  p l a c e , no Canadian c o u r t has  ever c l e a r l y h e l d t h a t s t r i k e s by p u b l i c s e r v a n t s are per se i l l e g a l ; 9 2 thus t h e r e was no need f o r P a r l i a m e n t t o r e s e r v e an e x i s t i n g norm.  Second, w h i l e i t  legal  i s t r u e t h a t Canadian l a b o u r r e l a t i o n s  statutes  have seldom c o n t a i n e d an e x p r e s s r e f e r e n c e t o t h e r i g h t t o s t r i k e , the c o u r t s have r e c o g n i z e d t h a t such l e g i s l a t i o n i m p l i e d l y i n c o r p o r a t e s  the  common-law r i g h t t o s t r i k e . 9 3 The Act does n o t , however, e n t i r e l y  abandon the p u b l i c i n t e r e s t  t h e c o n t i n u e d o p e r a t i o n of government t o t h e whim of n e g o t a t i o n s . union has e l e c t e d t o r e s o l v e i t s c o l l e c t i v e  in  If a  b a r g a i n i n g impasse by a  process of c o n c i l i a t i o n - a n d , i m p l i e d l y , by a s t r i k e -  r a t h e r than by  a r b i t r a t i o n , t h e Act f o r b i d s c e r t a i n " d e s i g n a t e d employees" w i t h i n  the  b a r g a i n i n g u n i t from s t r i k i n g because t h e i r d u t i e s " c o n s i s t i n whole or i n p a r t of d u t i e s t h e performance of which at any p a r t i c u l a r time or a f t e r any s p e c i f i e d p e r i o d of t i m e , i s or w i l l  be n e c e s s a r y i n the  i n t e r e s t of t h e s a f e t y or s e c u r i t y of the p u b l i c . " 9 4 noted t h a t t h e d e f i n i t i o n of " d e s i g n a t e d employees" i s circumscribed.  B u t , i t s h o u l d be very  The Act d e n i e s t h e r i g h t t o s t r i k e only t o t h o s e  - 58 -  persons whose absence from work would imperil interests which are absolutely vital;  employees whose absence would merely imperil the  "public interest", "convenience", or "welfare" are s t i l l permitted to strike.  95  The procedure for identifying "designated employees" is designed to avoid controversy over this issue during the course of a strike when the pressures of conflict would make resolution of the matter especially d i f f i c u l t .  Within 20 days after either party has served a  notice to bargain, the employing agency must establish a l i s t of essential employees.  If the union does not object to the employer's  l i s t , all of the persons so identified are to be taken as "designated employees".  However, in the event that the bargaining agent files an  objection, the Public Service Staff Relations Board must hold a hearing to determine whether the listed employees are really essential to the "safety and security of the public". In practice, the various government employers have exercised great self-restraint in designating critical employees. accepts the employer's unilateral judgment.  The union often  Thus the Board has not had  occasion to determine authoritatively the meaning of the statutory phrase "safety and security of the public".  Nevertheless, some clue to  the meaning of this standard may be gleaned from the Ai r Traffic Controllers case,  96  where the only "designated" employees were those  controllers thought necessary to provide emergency assistance to overflying and non commercial aircraft at various airports throughout the country.  Obviously such a small number of "designated" controllers  would be inadequate to service regular domestic commercial air t r a f f i c ,  f  - 59 -  which would n e c e s s a r i l y  be suspended f o r the d u r a t i o n of a s t r i k e  within t h i s p a r t i c u l a r bargaining The A c t does not e x p r e s s l y  unit.  p r o v i d e f o r the d e s i g n a t i o n  of  a d d i t i o n a l employees d u r i n g a s t r i k e i f t h e employing agency or the Board i n i t i a l l y misjudged the number or t y p e of employees necessary protect the p u b l i c i n t e r e s t . full  statutory  r e s o u r c e s t o cope w i t h such a c r i s i s ,  power t o " r e v i e w , made by i t . "  9 7  The Board would undoubtedly  It  mobilize  including  its  its  r e s c i n d , amend, a l t e r or vary any d e c i s i o n or might w e l l  to  order  be argued t h a t t h e employer and t h e Board  s h o u l d have a n t i c i p a t e d a l l c o n t i n g e n c i e s  i n making the c h o i c e of  d e s i g n a t e d employees but t h i s argument might have the  unfortunate  e f f e c t of prompting t h e employer t o exaggerate at t h e o u t s e t the number of d e s i g n a t e d employees on the b a s i s of remote  contingencies.  A second s e r i e s of problems concerns t h e r e l a t i o n s h i p  between  s t r i k i n g employees and d e s i g n a t e d employees i n the same b a r g a i n i n g unit.  If  a government employer determines t h a t a s k e l e t o n s t a f f  is  necessary d u r i n g a s t r i k e i n o r d e r t o p r o v i d e s e r v i c e s e s s e n t i a l t o t h e " s a f e t y and s e c u r i t y  of t h e p u b l i c " , how i s such a s t a f f t o be s e l e c t e d  from among t h e employees i n the b a r g a i n i n g u n i t ? of t h e d e s i g n a t e d employers r e s i g n or become i l l ? individuals  c o n t i n u e t o work throughout  serve i n r o t a t i o n ?  What happens i f some Must t h e same  t h e s t r i k e , or can t h e  What of t h e r i s k s of s a b o t a g e , d e l i b e r a t e  downs, or " w o r k - t o - r u l e "  campaigns by d e s i g n a t e d employees?  of t h e wages p a i d t o d e s i g n a t e d employees:  strikers slow-  And what  i f the remuneration  c o n t i n u i n g on t h e job exceeds s t r i k e pay, should t h e  for  designated  employees be r e q u i r e d t o t u r n s u r p l u s over t o t h e union s t r i k e fund?  - 60 -  A l t h o u g h t h e s e as y e t statutory  unanswered q u e s t i o n s are t r o u b l e s o m e ,  the  procedure f o r d e s i g n a t i n g employees i n advance of an a c t u a l  s t r i k e s i t u a t i o n i s f u n d a m e n t a l l y sound.  The f a c t t h a t t h e p a r t i e s  not l o c k e d i n c o n f l i c t makes i t more l i k e l y t h a t they w i l l t h e l i s t of d e s i g n a t e d employees.  If  are  agree upon  t h e r e i s d i s a g r e e m e n t , t h e Board  can undertake t h e d i f f i c u l t a d j u d i c a t i v e problems of d e f i n i n g and i d e n t i f y i n g employees i n e s s e n t i a l s e r v i c e s w i t h o u t t h e e x t r a of a s t r i k e s i t u a t i o n .  Finally,  pressure  i f a l a r g e p r o p o r t i o n of employees i n  a b a r g a i n i n g u n i t must be d e s i g n a t e d as e s s e n t i a l , thus i m p a i r i n g the u n i o n ' s a b i l i t y t o s t r i k e , t h a t f a c t i s made obvious so t h a t the union can opt f o r a r b i t r a t i o n at an e a r l y stage i n the p r o c e e d i n g s . S e c t i o n 79 of t h e A c t r a i s e s a number of i s s u e s . h e r e , s p r i n g s from t h r e e cases which w i l l International  The a n a l y s i s ,  be a s s e s s e d i n t u r n :  Brotherhood of E l e c t r i c a l Workers and T r e a s u r y B o a r d  9 8  ( E l e c t r o n i c s Group - T e c h n i c a l C a t e g o r y ) , h e r e i n a f t e r c a l l e d the E l e c t r o n i c s c a s e . P u b l i c S e r v i c e A l l i a n c e of Canada and T r e a s u r y Board (Heating Power and S t a t i o n a r y P l a n t O p e r a t i o n B a r g a i n i n g  Units),  h e r e i n a f t e r c a l l e d t h e H e a t i n g Power case and The Canadian A i r C o n t r o l A s s o c i a t i o n and T r e a s u r y Board ( A i r T r a f f i c C o n t r o l Designation c a s e ) ,  l u o  h e r e i n a f t e r c a l l e d The A i r T r a f f i c  9 9  Traffic  Group  Controllers  case. The E l e c t o r n i c s Case Under s u b s e c t i o n 2 of s e c t i o n 79 of the P u b l i c S e r v i c e  Staff  R e l a t i o n s A c t , the employer i s r e q u i r e d t o f u r n i s h t o t h e Board and t o t h e b a r g a i n i n g agent a statement of employees who he c o n s i d e r s t o be essential  f o r t h e purposes of s a f e t y and s e c u r i t y  of t h e p u b l i c .  - 61 -  In t h i s case t h e b a r g a i n i n g agent f i l e d an o b j e c t i o n t o t h e statemet and the matter was l i s t e d f o r h e a r i n g . F o l l o w i n g t h e h e a r i n g , t h e p a r t i e s met on s e v e r a l o c c a s i o n s and i n due c o u r s e informed t h e Board t h a t they had reached agreement w i t h regard t o c e r t a i n d e s i g n a t i o n s proposed by the employer and t h a t they had f a i l e d t o reach agreement w i t h regard t o The employer had agreed t h a t ,  others.  i n t h e event of a s t r i k e , t h e d u t i e s  of t h e t e c h n i c i a n s concerned would be r e s t r i c t e d t o t h o s e i n v o l v i n g  the  i n v e s t i g a t i o n and e l i m i n a t i o n of r a d i o i n t e r f e r e n c e which a f f e c t s e s s e n t i a l t r a n s m i s s i o n of emergency messages i n support of p o l i c e , ambulance, f i r e f i g h t i n g and s i m i l a r a c t i v i t i e s . S e v e r a l c o n s i d e r a t i o n s were put b e f o r e t h e B o a r d . b a r g a i n i n g agent s u b m i t t e d t h a t t h e A c t granted f u l l  Counsel f o r t h e  collective  b a r g a i n i n g r i g h t s t o Canadian p u b l i c s e r v a n t s , i n c l u d i n g t h e r i g h t t o s t r i k e and t h a t t h e Board ought t o do i t s utmost t o p r e s e r v e t h a t and s h o u l d not p e r m i t the employer t o d e s t r o y  right  i t through t h e process  of  designation. In t h e B o a r d ' s v i e w , the statement t h a t p u b l i c s e r v a n t s have been granted f u l l c o l l e c t i v e b a r g a i n i n g r i g h t s was t r u e i n t h e general but,  sense  l i k e many g e n e r a l i z a t i o n s , i t was s u b j e c t t o q u a l i f i c a t i o n s and  c o u l d be a p p l i e d i n s p e c i f i c cases only by r e f e r e n c e t o t h e q u a l i f i c a t i o n s as w e l l as t h e general p r i n c i p l e .  The q u a l i f i c a t i o n s on  t h e r i g h t t o s t r i k e are r e l a t e d t o both t i m e and f u n c t i o n .  The Board  s a i d i t was concerned t h e r e only w i t h the l i m i t a t i o n s t h a t came from f u n c t i o n s , and more p a r t i c u l a r l y those f u n c t i o n s , t h a t were r e f e r r e d in section 79(1),  i.e.,  those f u n c t i o n s t h a t were r e l a t e d t o p u b l i c  to  - 62 -  s a f e t y and s e c u r i t y .  Persons who are engaged i n t h e f u n c t i o n s  i n s e c t i o n 79(1) are not p e r m i t t e d t o s t r i k e at any t i m e .  It  defined is  t h a t c o l l e c t i v e b a r g a i n i n g r i g h t s are denied t o such p e r s o n s .  not  The  s u b s i d i a r y p r i n c i p l e i s t h a t one of t h e c o l l e c t i v e b a r g a i n i n g  rights  t h a t may n o r m a l l y be e x e r c i s e d by employees cannot be e x e r c i s e d by s p e c i f i e d persons i f security  i t s e x e r c i s e would j e o p a r d i z e p u b l i c s a f e t y and  as d i s t i n c t from i n t e r f e r i n g w i t h the c a p a c i t y of t h e employer  - as an employer - t o c a r r y on i t s d a y - t o - d a y  business.  The r o l e  of  t h e s t r i k e i n North America i s g e n e r a l l y accepted t o be p u r e l y economic.  The t r a d i t i o n a l and normal r a i s o n d ' e t r e of a s t r i k e i s  to  i n t e r f e r e w i t h , or b r i n g t o a s t o p , the normal o p e r a t i o n of t h e employer - as an employer - w i t h a view t o r e d u c i n g t h e e m p l o y e r ' s b a r g a i n i n g power and i n c r e a s i n g t h a t of the employees. The s t r i k e has been t o l e r a t e d , a c c e p t e d and even encouraged by society  i t s e l f as a means of b a l a n c i n g t h e b a r g a i n i n g power of the  employer and the employees w i t h a view t o an e v e n t u a l s e t t l e m e n t .  By-  products of the s t r i k e are t h e i n c o n v e n i e n c e or h a r d s h i p t h a t may be s u f f e r e d by the e m p l o y e r ' s c u s t o m e r s . e m p l o y e r , not t h e p u b l i c .  If  e f f e c t the s a f e t y and s e c u r i t y profitability  But the prime t a r g e t  i s the  t h e e x e r c i s e of t h e r i g h t t o s t r i k e does of t h e p u b l i c , r a t h e r than t h e  or convenience of the e m p l o y e r , t h e r o l e of t h e s t r i k e  is  t r a n s f o r m e d by a change i n k i n d and not merely a change of degree or effectiveness.  The A c t does not contemplate t h a t p u b l i c  s h o u l d remain u n a f f e c t e d .  convenience  " P u b l i c convenience and n e c e s s i t y " i s a w e l l  know l e g i s l a t i v e t e r m , but i t does not appear i n t h e A c t .  The A c t does  -  6 3  -  not draw the l i n e at "convenience of the p u b l i c " but at " s a f e t y  or  s e c u r i t y of t h e p u b l i c " T h i s does not mean t h a t the p u b l i c would always n e c e s s a r i l y i f the employees t o whom t h e s e c t i o n a p p l i e s withdraw t h e i r It  suffer  services.  does mean t h a t where t h e r e are r e a s o n a b l e grounds f o r a c c e p t i n g t h e  probability,  or even perhaps o n l y a p o s s i b i l i t y , t h a t human l i f e  public safety  and s e c u r i t y would s u f f e r ,  or  s e c t i o n 79(1) comes i n t o  play. One of the q u e s t i o n s r a i s e d at t h e very o u t s e t of t h e p r o c e e d i n g s was whether t h e e m p l o y e r , i n i t s d e s i g n a t i o n of t h e persons and p o s i t i o n s i n t h e l i s t i t f u r n i s h e d t o t h e b a r g a i n i n g agent i n t h i s c a s e , contemplated a " b u s i n e s s as u s u a l " s i t u a t i o n i n t h e event of a s t r i k e or whether i t contemplated a l e v e l of o p e r a t i o n s t h a t would not permit a f f a i r s t o o p e r a t e i n t h e normal f a s h i o n .  Counsel f o r  the  b a r g a i n i n g agent contended t h a t t h e e m p l o y e r ' s p r o p o s a l s were made i n t h e e x p e c t a t i o n , as he put i t , t h a t a l l s h i p s would s a i l would f l y .  and planes  Counsel f o r the employer on t h e o t h e r hand s u b m i t t e d t h a t  t h e employer d i d not seek t o c a r r y on b u s i n e s s as usual i n t h e sense d e s c r i b e d by counsel f o r t h e b a r g a i n i n g a g e n t . In t h e o p i n i o n of t h e Board t h e need f o r p r e s e r v i n g t h e " s a f e t y s e c u r i t y of the p u b l i c " s h o u l d have been based on t h e premise t h a t t h e r e would be no " b u s i n e s s as u s u a l " d u r i n g a s t r i k e of e l e c t r o n i c s technicians.  A i r and water t r a n s p o r t a t i o n s h o u l d cease except  emergency p u r p o s e s .  T h i s would undoubtedly  result in  for  inconvenience,  p o s s i b l y some h a r d s h i p s , but i t would i n t h e c h a i r m a n ' s o p i n i o n , s a t i s f y the o b j e c t i v e of p r e s e r v i n g the " s a f e t y or s e c u r i t y  of t h e  or  - 64 -  public" in that particular set of circumstances.  The Board, therefore,  stated that i t would have designated more narrowly on the basis of an entirely different set of circumstances.^l The Heating Power Case This case stands for the propositon that duties and not employees should be "designated".  In essence, the Board held that during a  strike an employer could only use "designated" employees to perform "designated" tasks.  In the words of Mr. Roy Gauthier, the Vice-  Chairman of the Board: "The employer could not assign [designated employees] to [duties not normally performed by those employees] i f that [work] was not required for the safety and security of the public".  The Suprmee Court of Canada rejected this propositon in the Air Traffic Controller's case. The Air Traffic Controller's Case The Board followed the Heating Power case in its assessment of Air Traffic Controllers. The issue in this case was simple: how many airport personnel are necessary, within the meaning of section 79, to maintain the "safety and security" of the public.  Following the logic  of the Heating Power case the majority found that they must adopt that approach to the problem: 1.  Determine what level of air service was necessary for public safety.  2.  Decide which duties must be performed to maintain that level of service.  - 65 -  3.  Decide how many employees were necessary to perform those duties.  The majority decided that "safety and security" of the public meant something equivalent to bodily security.  They held that the only  air services which were essential were those which prevented physical disasters, i.e., emergency evacuation flights, medical flights, forestfire fighting flights, and so on.  Most importantly, they held that the  protection of economic interests, and public "convenience", were not part of "safety and security". Accordingly, they found that the maintenance of reguarly scheduled air services was not "essential". A minority of the Board disagreed.  They argued that any  interruption of air service would threaten public safety.  In the words  of the dissenting members (Pyle, Steward concurring): "Air transportation is critical in this far-flung country --A paralysis of the commercial air traffic would deny public access to aviation and oblige them to remain wherever they may be regardless of the consequences." Implicit in this position is the acceptance of economic factors as having a bearing upon "safety and security".  The harm caused by being  stranded without air service is an economic harm. The minority went on to assert that since the only purpose of air t r a f f i c control was to make air t r a f f i c safe, they a l l must be "designated" as necessary for public safety.  This position is  particularly vacuous since i t begs the question of the level of service which is necessary for "safety". The Federal Court of Appeal and the Supreme Court of Canada reversed the Board's decision, following different reasoning.  - 66 -  Marti and, J. for the Supreme Court, found the Board's decision with regard to section 79 to be to determine, at the time of designation, which employees were performing functions necessary to public safety. Once the designation has been made, he said, the designated employees could be employed during a strike in whatever manner the employer saw it to be f i t , regardless of their former duties, regardless of the reason for their "designation". These words by Urie, J. of the Federal Court of Appeal found favour with Martland, J.: Section 79... does not impose on the Board the duty of determining which services rendered by the controllers must be maintained in the event of strike... The sole duty of the Board pursuant to section 79(1) is to determine, before a conciliation board has been established, what employees or class of employees in the bargaining unit are, at the time at which the matter is being determined, performing duties which are necessary for the safety and security of the public. Following this reasoning the Board must simply ask: What employees, i f they were to be removed one by one at this time, are necessary to the immediate safety of the public? This method renders all employees "designated", because at the time of designation, i.e., during full air service, all air traffic controllers are necessary to the safety of air travellers. These judgments leave one feeling unsettled.  I think that the  result of the Supreme Court decision is that economic interest, and convenience, are protected in the name of "public safety". like to see these issues clearly resolved:  I would  - 67 -  1)  What i n t e r e s t s are t o be i n c l u d e d i n the concept security"  2)  Is t h e d e s i g n a t i o n p r o c e s s designed t o p r o t e c t  If  it  is  and  of t h e p u b l i c ?  " d u t i e s " and 3)  "safety  "employees" or  "services"?  "employees" t h a t are d e s i g n a t e d , and not  their  f u n c t i o n s , what l i m i t s are p l a c e d upon an e m p l o y e r ' s assignment of employees to d u t i e s d u r i n g s t r i k e s ? In c o n c l u s i o n i t can be s a i d t h a t i n t h e f e d e r a l c o n t e x t ,  the  p a r t i e s are a l l o w e d t o agree between themselves as t o what employees are e s s e n t i a l . 1 0 2  i f t h e p a r t i e s do not a g r e e , t h e Board a c c e p t s a  l i s t of t h e employees or c l a s s of employees i n t h e b a r g a i n i n g u n i t who are c o n s i d e r e d by t h e employer t o be d e s i g n a t e d e m p l o y e e s . l  The  0 3  b a r g a i n i n g agent r e c e i v e s a copy of the l i s t and he i s f r e e t o f i l e an objection with the Board.  If  d e s i g n a t i o n of t h e e m p l o y e r .  he does not do s o , t h e Board adopts the If  he does f i l e an o b j e c t i o n , t h e Board  a f t e r c o n s i d e r i n g t h e o b j e c t i o n and a f f o r d i n g each of t h e p a r t i e s an opportunity shall  to make r e p r e s e n t a t i o n s  determines which of t h e employees  be d e s i g n a t e d . A d e s i g n a t i o n by the Board i s f i n a l and c o n c l u s i v e f o r  purposes of t h e A c t . l °  5  However, t h e Board i n one c a s e ^  d e s i g n a t i o n a l r e a d y determined pursuant t o i t s general over i t s own d e c i s i o n s i n t h e A c t . 1 0 7  6  all re-opened a  power of  In t h a t c a s e , t w e n t y - f o u r  employees had not been i n c l u d e d on t h e d e s i g n a t i o n l i s t of t h e because they were expected t o be e x c l u d e d from t h e b a r g a i n i n g under a managerial and c o n f i d e n t i a l e x c l u s i o n . were s u b s e q u e n t l y  review  employer unit  However, t h e employees  included i n the bargaining unit a f t e r the  parties  - 68 -  had agreed upon t h e d e s i g n a t i o n l i s t .  The employer made a p p l i c a t i o n t o  t h e Board t o amend t h e l i s t t o i n c l u d e t h e t w e n t y - f o u r a d d i t i o n a l employees.  The union opposed t h e a p p l i c a t i o n on t h e ground t h a t  the  Board had no j u r i s d i c t i o n t o a l t e r the d e s i g n a t i o n l i s t once t h e p a r t i e s had agreed t o i t  or t h e Board had determined i t .  p a r t i e s have agreed t h e Board has no a u t h o r i t y initiative. essential  It  but i t  Where t h e  1 0 8  t o i n t e r v e n e on i t s own  i s one t h i n g f o r the Board t o d e s i g n a t e employees as i s q u i t e another t h i n g f o r t h e Board t o s u b s t i t u t e  o p i n i o n f o r t h e agreement of t h e  its  parties.  However, one might a r g u e , t h a t t h e agreement was made by t h e employees under a m i s t a k e of f a c t .  It  q u e s t i o n t o be e x c l u d e d as management.  b e l i e v e d the employees  in  A d d i t i o n a l l y , the p o l i c y  e s s e n t i a l employees d e s i g n a t i o n leans toward f l e x i b i l i t y  so t h a t  of the  number of employees found t o be e s s e n t i a l may be v a r i e d from t i m e t o time t o accommodate changes i n c i r c u m s t a n c e s .  And f i n a l l y ,  argued i n the c a s e , t h e B o a r d , under i t s general powers  as was  of  administration: s h a l l e x e r c i s e such powers and perform such d u t i e s not only as are c o n f e r r e d or imposed upon i t but a l s o as may be i n c i d e n t a l t o t h e a t t a i n m e n t of the o b j e c t i v e s of t h e A c t . 1 0 9  The Board d e c i d e d t h a t s e c t i o n s 18 and 25 of t h e Act a l l o w e d i t reject  i t s own p o l i c y d e c i s i o n i n t o t h e process as c i r c u m s t a n c e s  changed.  It  j u s t i f i e d the a c t i o n :  The s i t u a t i o n under s e c t i o n 79 goes beyond t h e involvement of t h e p a r t i e s o n l y . The purpose of t h a t s e c t i o n i s e s s e n t i a l l y t o p r o t e c t the s a f e t y and s e c u r i t y of the p u b l i c , i . e . , people who have no d i r e c t p a r t t o play i n t h e r e l a t i o n s h i p between t h e parties. In t h i s case where, because of an o m i s s i o n , whether caused by i n a d v e r t e n c e or n e g l i g e n c e on the p a r t of  to  - 69 the employer, certain employees were not proposed for designation as provided for by section 79(2), to hold that such a neglect on the part of the employer is fatal to the application now before the Board would jeopardize the safety and security of the public and would defeat the very purpose for wich the matter of safety and security is included in the Act. Additionally, the reasoning behind sections 18 and 25 would apply a fortiori to a situation where the parties could not agree and the Board determined the designation of essential employees. In that case the decision would be appealable without any doubt but just to the Board itself.  There is no appeal to any other body within the statute.  Appeal under the Federal Court A c t  110  would not generally allow the  court to substitute its opinion for that of the Board. Instead the Board's decision may be quashed or a mandamus order issued to require the Board to exercise its discretion.  - 70 -  B.  D e s i g n a t i o n of E s s e n t i a l S e r v i c e s i n B r i t i s h Columbia As noted e a r l i e r t h e n o t i o n of " d e s i g n a t i o n " was f i r s t  the federal P u b l i c Service S t a f f R e l a t i o n s A c t . B r i t i s h Columbia was the f i r s t t h e case of f u l l y  mooted i n  The Labour Code of  i n which t h e procedure was u t i l i z e d  fledged, public safety bargaining u n i t s .  s e c t i o n 73 of t h e C o d e ^ l has brought t o the f o r e f r o n t  in  But,  the c o m p l e x i t i e s  i n the r i g h t t o s t r i k e i n e s s e n t i a l s e r v i c e s a r e a . To s t r i k e i s a l e g i t i m a t e t a c t i c i n a system of f r e e bargaining.  collective  At some p o i n t of t i m e , i f an employer i s not w i l l i n g t o  o f f e r t o i t s employees what they deserve t o be p a i d , employees must be e n t i t l e d to refuse to continue working.  The assumption of t h e Labour  Code i s t h a t such a c o l l e c t i v e stoppage of work would impose s u f f i c i e n t harm on both s i d e s - by reason of the l o s s of p r o d u c t i o n t o t h e employer and t h e l o s s of wages t o the employees - t h a t each p a r t y has s u f f i c i e n t i n c e n t i v e e i t h e r t o a v o i d t h e s t r i k e or t o end i t as q u i c k l y as p o s s i b l e . restrictive  T h i s shows why t h e law has t r a d i t i t o n a l l y t a k e n a a t t i t u d e towards s t r i k e s by p u b l i c s a f e t y employees.  It  seems i n t o l e r a b l e t o a l l o w t h e p a r t i e s t o t r y t o break the logjam i n t h e i r own economic d i s p u t e by u s i n g a t a c t i c which might produce p h y s i c a l harm - even death - f o r i n n o c e n t i n d i v i d u a l s . growing r e a l i z a t i o n t h a t t h e e f f o r t t o impose unduly s t r i k e a c t i o n may o v e r r e a c h i t s e l f and e v e n t u a l l y  But t h e r e i s a  broad bans on  become s e l f -  defeating. For t h a t r e a s o n , t h e r e i s c o n s i d e r a b l e i n t e r e s t  i n t h e concept  of  i n t e r m e d i a t e s t r i k e a c t i o n : A work stoppage which imposes a d i s c i p l i n i n g i n f l u e n c e on the p a r t i e s i n o r d e r t o move them towards a  - 71 -  contract  s e t t l e m e n t ; but does so w i t h o u t  on t h e p e r s o n a l s a f e t y of c i t i z e n s .  i n f l i c t i n g intolerable  risks  S e c t i o n 73(7) of the o l d Labour  Code was one response t o t h a t q u e s t .  It  had one f u l l - f l e d g e d t e s t  t h e s t r i k e at t h e Vancouver General H o s p i t a l  in  in  1976.H2  When t h e s t r i k e s t a r t e d i n May 1976, t h e B r i t i s h Columbia Labour R e l a t i o n s Board d e s i g n a t e d c e r t a i n c r i t i c a l ,  life-preserving  facilities  and s e r v i c e s t o be m a i n t a i n e d d u r i n g t h e s t r i k e . The M i n i s t e r of Labour requested t h a t t h e Board e x e r c i s e  its  powers under s e c t i o n 7 3 ( 7 ) ( b ) of the o l d Labour Code t o d e s i g n a t e s e r v i c e s which must be o f f e r e d by t h e h o s p i t a l if  necessary)  safety".  those  (through union members,  t o prevent "immediate danger t o l i f e ,  h e a l t h , or  public  The Board h e l d s e s s i o n s , making t h e judgments and i s s u i n g t h e  d i r e c t i v e s which were r e q u i r e d .  There was s t r i k e v o t e ,  strike  notice,  Board d e s i g n a t i o n of e s s e n t i a l s e r v i c e s , and f i n a l l y , t h e s t r i k e on May 4.  Briefly  s t a t e d t h e s e were t h e f a c t s of t h e c a s e :  The H o s p i t a l Employees Union  (H.E.U.) represents  nonprofessional  employees i n t h e acute care h o s p i t a l s i n B r i t i s h C o l u m b i a . Labour R e l a t i o n s A s s o c i a t i o n ( H . L . R . A . ) i s t h e a c c r e d i t e d agent f o r t h e s e h o s p i t a l s , which number s l i g h t l y province. 1975.  bargaining  over a hundred i n t h e  T h e i r e x i s t i n g master agreement had e x p i r e d on December 3 1 ,  Negotiations  f o r renewal began i n September 1 9 7 5 .  B l a i r was a p p o i n t e d I n d u s t r i a l government  The H e a l t h  i n December 1975.  he i s s u e d a r e p o r t i n A p r i l  Mr.  I n q u i r y Commisisoner by t h e  Bert  provincial  A f t e r e x t e n s i v e meetings and d i s c u s s i o n s , 1976 recommending a s e t t l e m e n t of a o n e -  y e a r agreement, which would p r o v i d e f o r an 8% a c r o s s - t h e - b o a r d wage i n c r e a s e p l u s a C . O . L . A . c l a u s e and o t h e r changes i n f r i n g e  benefits,  - 72 -  amounting to a t o t a l  compensation package of somewhere between 13%-15%,  depending on t h e b a s i s of c a l c u l a t i o n . a c c e p t i n g t h a t package. reasons.  First  However,  The Union e x e c u t i v e  H.L.R.A.  favoured  rejected i t for  of a l l , the monetary i n c r e a s e exceeded t h e  two anti-  i n f l a t i o n g u i d e l i n e s , which had come i n t o e x i s t e n c e on October 1 4 , 1975, and w h i c h , i n t h e absence of some s p e c i a l c o n s i d e r a t o n ,  would  l i m i t B r i t i s h Columbia h o s p i t a l employees t o an 8% i n c r e a s e .  Second,  t h e P r o v i n c i a l M i n i s t r y of H e a l t h had decreed t h a t 8% was t o be the maximum i n c r e a s e t h a t the p r o v i n c e would grant i n o p e r a t i n g funds  for  t h e h o s p i t a l s , and employee compensation amounted t o j u s t about 80% of t h a t o p e r a t i n g budget. received the n e u t r a l ' s c o u l d not p o l i t i c a l l y Certainly, positions  From t h e U n i o n ' s  recommendation i n i t s f a v o u r ,  first 30.  the  had  Executive  see i t s way c l e a r t o s e t t l i n g f o r a penny  t h e r e was a deep impasse between t h e s e f i r m l y of t h e H . E . U . and t h e  embedded  i t would e x e r c i s e i t s  S t r i k e votes were conducted i n i n d i v i d u a l  right  hospitals.  The margin i n f a v o u r of s t r i k i n g was 87%, and t h e Union  72-hour s t r i k e n o t i c e f o r t h w i t h ,  Certainly so.  29 and delivered  t o e x p i r e on Monday, May 3 .  Was t h e e n t i r e o p e r a t i o n of t h e h o s p i t a l  Vancouver General thought  not i n d i s p e n s a b l e  for  the a d m i n i s t r a t o r s of the  T h i s i s the l a r g e s t  general  hospital  only i n B r i t i s h Columbia but i n t h e e n t i r e B r i t i s h Commonwealth as well.  Its  to  The  vote was h e l d at t h e Vancouver General H o s p i t a l on A p r i l  p u b l i c h e a l t h and s a f e t y ?  less.  H.L.R.A.  As a r e u s l t , t h e Union d e c i d e d t h a t strike.  p o i n t of v i e w , once i t  p o p u l a t i o n amounts t o about 10,000 people a d a y .  h o s p i t a l has n e a r l y 1800 beds, of which 1500 are f o r  acute  The  not  - 73 -  c a r e p a t i e n t s and 300 f o r extended c a r e . h o s p i t a l i n the p r o v i n c e , medical s e r v i c e s ,  As the major t e a c h i n g  o f f e r i n g t h e e n t i r e range of  specialized  t e c h n i q u e s and equipment (many of them u n a v a i l a b l e  anywhere e l s e i n t h e p r o v i n c e ) t h e Vancouver General asked the Board t o deem t h e o p e r a t i o n of the e n t i r e h o s p i t a l " s e r i o u s and immediate danger t o l i f e , to direct  a l l of t h e n o n p r o f e s s i o n a l  necessary t o p r e v e n t a  h e a l t h and p u b l i c s a f e t y " ,  employees i n t h e H . E . U .  u n i t t o work d u r i n g t h e i r proposed s t i r k e .  and  bargaining  The Board d e c l i n e d t o do  so. The Board l i s t e n e d t o the arguments of the Vancouver doctors;  General  t a l k e d t o the s e n i o r members of t h e paramedical and  professional  staff  (who were r e p r e s e n t e d by o t h e r t r a d e u n i o n s ) ,  as  w e l l as t o t h e people i n t h e M i n i s t r y of H e a l t h ; probed i n t o the ebb and f l o w i n the use of h o s p i t a l beds throughout  the y e a r .  Eventually  i t d i d agree t h a t t h e 300 beds i n t h e extended c a r e wing must c o n t i n u e t o be f i l l e d ,  but t h a t the community c o u l d make do w i t h j u s t 700 of  1500 of t h e acute c a r e beds.  the  P a t i e n t s i n need of immediate and t r u l y  i m p o r t a n t h o s p i t a l c a r e c o u l d have i t ,  but  wide range of l e s s  and e l e c t i v e work would have t o be p o s t p o n e d .  critical  The medical committee of  the h o s p i t a l would make the d e c i s i o n s about how t h i s s m a l l e r number of beds would be a l l o c a t e d among p a t i e n t s r e f e r r e d by t h e medical and would make sure t h a t any such p a t i e n t s expeditiously  vacated t h e i r beds as  as p o s s i b l e .  The Board having d e c i d e d t h a t t h e h o s p i t a l maintain that level which f a c i l i t y  staff,  (the employer)  of s e r i o u s acute c a r e s e r v i c e ,  must  i t was t o be d e c i d e d  or s e r v i c e would be m a i n t a i n e d d u r i n g t h e s t r i k e .  - 74 The p o s i t i o n of t h e Union was as extreme as t h a t of the h o s p i t a l . In i t s v i e w , none of i t s members s h o u l d be d i r e c t e d t o "scab on t h e i r own u n i o n ' s s t r i k e " .  The Board r e j e c t e d t h a t as w e l l .  5,000 employees at t h e Vancouver G e n e r a l .  About 2,200 were  n o n p r o f e s s i o n a l employees r e p r e s e n t e d by t h e H . E . U . include administrators, supervisors, by t h e R . N . A . B . C . ) ,  The  p r o f e s s i o n a l nurses  paramedical p r o f e s s i o n a l s  H . S . A . ) , and t h e house s t a f f  There are over  (represented  remainder (represented  ( r e p r e s e n t e d by t h e  by P . A . R . I . ) .  There i s a l s o  a s i z e a b l e c o n t i n g e n t of student n u r s e s , and o v e r 800 m e d i c a l a s s o c i a t e s of t h e h o s p i t a l . i n running t h e h o s p i t a l - -  In t h e B o a r d ' s judgment, t h e b a s i c l a b o u r cleaning, cooking, laundry,  n u r s i n g , and a d m i n i s t r a t i o n —  practical  would have t o be performed by t h e s e  o t h e r s t a f f memebers, not t h e workers who were e x e r c i s i n g t h e i r right to s t r i k e .  legal  At the same t i m e t h e r e were a number of H . E . U .  members who had t h e s k i l l s  or e x p e r i e n c e t o perform s p e c i a l i z e d t a s k s  or o p e r a t e equipment which were i n d i s p e n s a b l e f o r p a t i e n t s a f e t y , and who, as a p r a c t i c a l m a t t e r , were i r r e p l a c e a b l e d u r i n g t h e s t r i k e : t e c h n i c i a n s , o p e r a t o r s of r e s p i r a t o r y medical  records s t a f f ,  renal  machines or h y p e r b a r i c chambers,  a few s w i t c h b o a r d o p e r a t o r s , and so o n .  Board concluded t h a t a t o t a l of 100 members of t h e H . E . U . u n i t s h o u l d be d i r e c t e d t o work d u r i n g t h e s t i r k e .  The  bargaining  In t h i s a r e a , t h e  B o a r d ' s p o l i c y was t o e r r on t h e s i d e of s a f e t y , t o ensure t h a t  there  would be someone i n t h e h o s p i t a l t o o p e r a t e any equipment or p e r f o r m any f u n c t i o n s t h a t were needed.  But t h e i n s t r u c t i o n s t o the union  members were t h a t they were t o work only on those v i t a l t a s k s which  - 75 -  r e q u i r e d t h e i r d e s i g n a t i o n , not t o f i l l  i n t h e i r time by p e r f o r m i n g  l a b o u r t h a t o t h e r people c o u l d be c o n s c r i p t e d t o do. What was a c t u a l l y happening?  F i r s t of a l l w h i l e the  bargaining  u n i t d i d go on s t r i k e , a l l of the d e s i g n a t e d workers went t o work as directed.  While i t  i s not e a s y , i t  modulated s t r i k e of p u b l i c s a f e t y  i s f e a s i b l e to maintain a c a r e f u l l y  employees.  What was t h e impact of t h e work stoppage on t h e b a r g a i n i n g impass itself?  Certainly  settlement.  t h e s t r i k e generated a great deal of p r e s s u r e  for  I n t e r e s t i n g l y , t h i s p r e s s u r e had i t s most immediate impact  on t h e U n i o n .  The members of t h e H . E . U . saw t h a t a s t r i k e was not  an i d l e t h r e a t .  I t was an u n a t t r a c t i v e  experienced, with regular earnings  just  r e a l i t y when i t was a c t u a l l y  r e p l a c e d by meager s t r i k e  benefits.  As each h o s p i t a l u n i t saw t h a t i t s s i s t e r h o s p i t a l s would be out  of  work f o r a p e r i o d of t i m e w i t h o u t a s e t t l e m e n t , t h e s t r i k e vote margin at o t h e r h o s p i t a l s dropped s t e a d i l y .  The Union l e a d e r s h i p q u i c k l y went  t o V i c t o r i a t o seek ways and means of ending t h e s t r i k e i n the  dispute  as q u i c k l y as p o s s i b l e , t o minimize the damage t o i t s members and t o avoid the p o l i t i c a l eagerly  impact upon t h e Union i t s e l f .  The e x e c u t i v e  looked  f o r some means of compromise, some route out of t h e i m p a s s e s .  On t h e employer s i d e , t h e impact of t h e s t r i k e was much more complex, i f  only  because t h e e f f e c t i v e e x e r c i s e of employer  i s s p l i n t e r e d in the h o s p i t a l  industry.  The h o s p i t a l  authority  administration,  which a c t u a l l y o p e r a t e s t h e Vancouver General H o s p i t a l , was  terribly  anxious t o see the d i s p u t e s e t t l e d and t h e s t r i k e ended, because i t was experiencing d i r e c t l y  the impact on i t s normal o p e r a t i o n and t h e  on the r e s t of i t s s t a f f .  But H . L . R . A . ,  the p r o f e s s s i o n a l  drain  bargaining  - 76 -  arm of a l l t h e h o s p i t a l s , was not prepared t o s i g n a l o n g - t e r m agreement t o r e s o l v e t h i s s h o r t - t e r m c r i s i s u n t i l t h e money was coming f r o m .  Eventually,  i t c o u l d see where  t h e p r e s s u r e had t o b u i l d on  t h e M i n i s t r y of H e a l t h , which pays t h e b i l l s f o r h o s p i t a l c a r e .  After  a great deal of s c r a m b l i n g behind t h e s c e n e s , the H e a l t h M i n s i t e r conceded t h a t he would have t o fund a c o n t r a c t s e t t l e m e n t even i f d i d exceed the a n t i - i n f l a t i o n g u i d e l i n e s . statutory  it  The Union a c q u i e s c e d i n t h e  appointment of an a r b i t r a t o r t o review once more the  recommendations of the I n d u s t r i a l a l r e a d y embraced t h e l a t e r .  I n q u i r y Commission, a l t h o u g h i t  The a r b i t r a t o r  Report f o r the c o n t r a c t y e a r ,  largely  r a t i f i e d the B l a i r  but a l s o d e c i d e d t h a t t h i s s h o u l d be  extended i n t o a t w o - y e a r agreement w i t h a reopener only on wages t h e second y e a r .  had  for  S e v e r a l months l a t e r the A n t i - I n f l a t i o n Board r u l e d  t h a t t h e H . E . U . had no c l a i m f o r s p e c i a l c o n s i d e r a t i o n under the  anti-  i n f l a t i o n g u i d e l i n e s , and t h a t t h i s s e t t l e m e n t must be h e l d t o t h e s t r i c t 8% g u i d e l i n e l e v e l . The impact of the l i m i t e d s t r i k e d i d p l a y a major r o l e i n b r e a k i n g the logjam. C r i t e r i a for  Essentiality  What c r i t e r i a s h o u l d be s a t i s f i e d b e f o r e t h e Labour R e l a t i o n s Board may be r e q u e s t e d  1 1 3  s e r v i c e s t o be e s s e n t i a l ?  or d i r e c t e d  1 1 4  to designate  particular  What f a c i l i t i e s , p r o d u c t i o n s and s e r v i c e s ,  whether p u b l i c or p r i v a t e , have s u f f i c i e n t impact on t h e p u b l i c i n t e r e s t to warrant bargaining process?  government i n t e r v e n t i o n  i n the  collective  - 77 -  S e c t i o n 7 3 ( 1 ) ( b ) of the Labour Code employs a s o l i t a r y s e r i o u s n e s s of t h e w i t h d r a w a l  of s e r v i c e s .  It  must r e s u l t  "immediate and s e r i o u s danger t o l i f e or h e a l t h " . r e q u i r e d by s e c t i o n 8(a) requires  that  1 1 5  t e s t of  the  i n an  A similar test  is  of E s s e n t i a l S e r v i c e D i s p u t e s A c t which  "an immediate and s e r i o u s danger t o l i f e ,  h e a l t h or  s a f e t y e x i s t s or i s l i k e l y t o o c c u r . " In a d d i t i o n , s e c t i o n 8 i n c l u d e s two o t h e r  reasons f o r the Board t o d e s i g n a t e e s s e n t i a l  S e c t i o n 8(b)  requires  services.  "an immediate and s u b s t a n t i a l t h r e a t t o t h e  economy and w e l f a r e of the P r o i v n c e and i t s c i t i z e n s " and s e c t i o n r e q u i r e s a " s u b s t a n t i a l d i s r u p t i o n i n the d e l i v e r y services".  Section 8, therefore,  It w i l l  be h e l p f u l  services provided Category  1)  8(c)  of e d u c a t i o n a l  p e r m i t s a much broader  discretion.  i n examining t h e s e c r i t e r i a t o c a t e g o r i z e  the  by p u b l i c employees:  essential services  - fire,  h o s p i t a l s and p o l i c e - where a  s t r i k e immediately endangers p u b l i c h e a l t h and s a f e t y ; Category  2)  intermediate services  - transit,  education, sanitation,  w a t e r and sewage - where s h o r t s t r i k e s may be t o l e r a t e d ; Category  3)  non-essential services  - s t r e e t s , parks, housing,  and a d m i n i s t r a t i o n - where s t r i k e s of i n d e f i n i t e c o u l d be t o l e r a t e d . It  welfare duration  1 1 6  s h o u l d be noted t h a t a l l t h e s e f u n c t i o n s are p o t e n t i a l l y  under  t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t by v i r t u e of t h e s c h e d u l e which includes a l l p r o v i n c i a l l y  employed  services.  There i s l i t t l e doubt t h a t t h e t r u l y e s s e n t i a l c a t e g o r y hospital  of  and p o l i c e employees meets the t e s t s of p r o t e c t i o n of  fire, the  p u b l i c s e t out i n s e c t i o n 73(1) of t h e Labour Code and s e c t i o n 8(a)  of  - 78 -  the E s s e n t i a l S e r v i c e D i s p u t e s A c t .  1 1 7  The problem i n B r i t i s h Columbia  d e r i v e s from t h e necessary d e t e r m i n a t i o n of whether a p a r t i c u l a r  union  meets the d e f i n i t i o n of " f i r e f i g h t e r s u n i o n " , " h e a l t h c a r e u n i o n " and " p o l i c e m e n ' s u n i o n " under s . 1 of t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t . These d e f i n i t i o n s are p a r t i c u l a r l y  i m p o r t a n t t o t h e d e t e r m i n a t i o n of  whether a union can request b i n d i n g a r b i t r a t i o n under s e c t i o n 6 of E s s e n t i a l S e r v i c e D i s p u t e s A c t because a union which does not w i t h i n the d e f i n i t i o n does not have the o p t i o n of arbitration.  fall  requesting  My t h e s i s i s t h a t i n t r u l y e s s e n t i a l s e r v i c e s t h e  right  t o s t r i k e s h o u l d be denied and a r b i t r a t o n s h o u l d be t h e a v a i l a b l e process f o r impasse r e s o l u t i o n , assuming t h a t c o o l i n g - o f f p e r i o d s and m e d i a t i o n have been u n s u c c e s s f u l .  T h i s i s p a r t i c u l a r l y t r u e of the  f i r e and p o l i c e unions where a h i g h e r percentage of the employees are essential.  The h o s p i t a l unions support s t a f f may be p e r m i t t e d t o  s t r i k e in certain c i r c u m s t a n c e s  1 1 8  but h e a l t h c a r e unions  generally  have been i n c l u d e d i n t h i s c a t e g o r y because of t h e p o s s i b i l i t y  of  s t r i k e by nurses a s s o c i a t i o n s . To a l e s s e r e x t e n t the s e r v i c e s i n c l u d e d i n t h e second c a t e g o r y  -  t r a n s i t , e d u c a t i o n , s a n i t a t i o n , water and sewage, have an impact on the public welfare.  G e n e r a l l y a s t r i k e i n t h e s e areas i f  it  continues long  enough t o become s e r i o u s would l e a d t o a d e s i g n a t i o n under s e c t i o n 8(b)  and (c)  of t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t :  an immediate and s u b s t a n t i a l t h r e a t t o t h e economy and w e l f a r e of t h e P r o v i n c e and i t s c i t i z e n s ; or a s u b s t a n t i a l d i s r u p t i o n i n the d e l i v e r y servi c e s . . .  of e d u c a t i o n a l  - 79 -  The c r i t e r i a set down i n c l a u s e s (b)  and (c)  have not y e t been t e s t e d .  Nor are t h e r e any B r i t i s h Columbia cases where e s s e n t i a l i t y of t h e s e i n t e r m e d i a t e s e r v i c e s has been d e t e r m i n e d . Some American j u r i s d i c t i o n s ,  n o t a b l y P e n n s y l v a n i a , have t e s t e d t h e  e s s e n t i a l i t y of i n t e r m e d i a t e s e r v i c e s  but because t h e s t a t u t e of  that  s t a t e does not i n c l u d e t h e economy and p u b l i c w e l f a r e t e s t as a g r o u n d , t h e e s s e n t i a l i t y of i n t e r m e d i a t e s e r v i c e s was t e s t e d on t h e b a s i s c r i t e r a s i m i l a r t o t h o s e i n s e c t i o n 8(a) Disputes A c t .  of t h e E s s e n t i a l  relief  Service  The P e n n s y l v a n i a P u b l i c Employee R e l a t i o n s A c t  t h a t i n t h e event of a work stoppage t h e s t a t e s h o u l d seek i f there  of  requires  injunctive  exists:  a c l e a r and p r e s e n t danger t o t h e h e a l t h , s a f e t y w e l f a r e of t h e p u b l i c ! 1  or  9  " C l e a r and p r e s e n t " has been found t o mean t h a t t h e t h r e a t or a c t u a l and t h a t a s t r o n g l i k e l i h o o d e x i s t s t h a t i t w i l l  is  real  occur.  i s s u b m i t t e d t h a t t h e wording i n s e c t i o n 73(1) of the Labour Code or s e c t i o n 8(a) different.  It in  of t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t i s not markedly The p h r a s e ,  "danger t o the h e a l t h , s a f e t y or w e l f a r e of  p u b l i c " was examined i n Armstrong School D i s t r i c t Educational A s s o c i a t i o n .  1 2 0  v.  the  Armstrong  In t h i s case t h e c o u r t supported  the  n o t i o n t h a t t h e p u b l i c s h o u l d be expected t o bear some i n c o n v e n i e n c e as a r e s u l t of t h e s t r i k e : . . . i t seems t o [ t h e c o u r t ] t h a t the ' d a n g e r ' o r t h r e a t concerned must not be one which i s n o r m a l l y i n c i d e n t t o a s t r i k e by p u b l i c employees. By enacting [Para. 1003] which a u t h o r i z e s such s t r i k e s t h e l e g i s l a t u r e may be understood t o have i n d i c a t e d i t s w i l l i n g n e s s t o accept c e r t a i n i n c o n v e n i e n c e , f o r such are i n e v i t a b l e , but i t o b v i o u s l y i n t e n d e d t o draw the l i n e at t h o s e which pose a danger t o t h e p u l b i c h e a l t h , s a f e t y and w e l f a r e .  - 80 -  In New B r i g h t o n Borough S a n i t a r y A u t h o r i t y  v. Plumbers L o c a l  115,121 a s t r u c k sewage p l a n t had been d i s c h a r g i n g u n t r e a t e d raw a f f l u e n t i n t o a r i v e r used f o r purposes of r e c r e a t i o n and as a s o u r c e of d r i n k i n g w a t e r .  S c i e n t i f i c evidence tendered, i n d i c a t e d that  there  was a "good p o s s i b i l i t y " t h a t the p o l l u t a n t s would cause d i s e a s e . s t r i k e having l a s t e d f o r f o r t y - f i v e  The  d a y s , the c o u r t h e l d t h a t t h e r e was  a c l e a r and p r e s e n t danger t o t h e h e a l t h , s a f e t y or w e l f a r e of the public. In response t o t h e argument by the defendant union t h a t t h e r e had been no c o m p l a i n t by t h e p u b l i c about t h e d r i n k i n g w a t e r , t h e c o u r t i n d i c a t e d t h a t t h e t e s t s h o u l d be used f o r p r e v e n t i o n of such dangerous c i rcumstances: we do not b e l i e v e t h a t the l e g i s l a t i o n i n t e n d e d t h a t t h e danger must become a r e a l i t y b e f o r e a c t i o n can be t a k e n t o p r o t e c t t h e h e a l t h and s a f e t y of t h e publi c. On t h e o t h e r hand, i n t h e Armstrong c a s e , 1 2 2 the c o u r t was concerned about i n t e r p r e t i n g the t e s t too  freely:  The p r o p e r purpose of an i n j u n c t i o n i s t o a v e r t p r e s e n t d a n g e r , not t o prevent danger which may never occur at a l l or which can only occur i f i t does o c c u r at some f u t u r e t i m e b e f o r e which t h e g r i e v a n c e s concerned can reasonably be expected t o be settled. C e r t a i n l y t h e d i f f e r e n c e between t h e two i s t o be found i n t h e nature of t h e work stoppage and i t s impact on the p u b l i c w e l f a r e .  In  t h e New B r i g h t o n case t h e t h r e a t of d i s e a s e from t h e sewage was immediate and r e a l .  By c o n t r a s t the t h r e a t i n the Armstrong case  d e r i v e d from t h e f a c t t h a t i f t h e s t r i k e c o n t i n u e d a n o t h e r twenty  days,  a p p r o x i m a t e l y , the school board would not be a b l e t o s c h e d u l e enough i n s t r u c t i o n a l days t o q u a l i f y f o r a s t a t e s u b s i d y .  This i s  not  - 81 -  immediate inasmuch as i t i n t h e f u t u r e and i t  i s a p r e d i c t a b l e occurance on a p r e c i s e date  i s not a danger i n t h e same sense as the  of d i s e a s e because i t  is a purely,  economic consequence and a s t r i k e  r i g h t l y a d m i n i s t e r e d i s designed t o be an economic weapon. be added t h a t t h e c o u r t  threat  indicated that  It  should  i f the s t r i k e c o n t i n u e d  through  t h e twenty days necessary t o l o s e t h e s u b s i d y t h a t would c o n s t i t u t e a threat relief.  substantial  enough t o meet t h e t e s t and q u a l i f y f o r  injunctive  T h i s i s an example of t h e American c o u r t s a p p l y i n g the t e s t  of  a s e r i o u s danger t o h e a l t h , s a f e t y and w e l f a r e of the p u b l i c t o an intermediate service.  It  i s s u b m i t t e d t h a t t h i s t e s t s h o u l d be used  f o r only the most r e a l t h r e a t s t o s o c i e t y , done t o a school board s h o u l d not f a l l  and a mere economic damage  into that  category.  The r e a s o n i n g i n H a z e l t o n Area School D i s t r i c t Education A s s o c i a t i o n *  2 3  i s t o be p r e f e r r e d .  v.  Hazelton  There t h e  court  determined t h a t t h e l e g i s l a t u r e must have contemplated a c e s s a t i o n e d u c a t i o n a l s e r v i c e s and school c l o s u r e when i t strike.  allowed the teachers  T h e r e f o r e they must have a n t i c i p a t e d g r e a t e r  than t h a t a s s o c i a t e d w i t h a s t r i k e .  to  inconvenience  One can go i n f u r t h e r .  The  l e g i s l a t u r e must have known t h a t i n g r a n t i n g the r i g h t t o s t r i k e t e a c h e r s , i t opened up t h e p o s s i b i l i t y t h a t t o o few i n s t r u c i t o n a l would be scheduled t o q u a l i f y f o r t h e s u b s i d y .  of  Therefore,  to days  such  consequences were w i t h i n t h e l e g i s l a t i v e i n t e n t and need not be found t o c r e a t e a r e a l danger t o t h e p u b l i c . up the o p p o r t u n i t y as a r e s u l t  to characterize,  To d e c i d e o t h e r w i s e would open  any d i s c o m f o r t r e s t e d on t h e  of a s t r i k e i n t h e p u b l i c s e c t o r t o be a t h r e a t or  t o t h e p u b l i c and t h e r e f o r e s u b j e c t t o i n j u n c t i o n  public  danger  i n P e n n s y l v a n i a or t o  - 82 designation as essential in British Columbia. This renders the grant of the right to strike an empty tool in the hands of the union because every time the strike hurts, the remedial legislation is employed to return the union to work. This atrophy of the right to strike in the public sector is attenuated by the addition of two new tests which may be used to invoke the Essential Service Disputes Act.  "A substantial disruption in the  delivery of educational services" should not be classified as an essential service. By setting the standard of essentiality too low one will run the risk of having all public sector employees found to be essential, thereby effectively removing their right to strike.  But on  the face of the Essential Service Disputes Act, that appears to be its intent. Virtually all public employees are included in the schedule and consequently provide their services after they have been designated essential.  It is difficult to envision a work stoppage of any kind  which would not result in a threat to the economy and welfare of the Province and its citizens, the criteria required in section 8(b) of the Essential Service Disputes Act.  The threat could be defined as  immediate and substantial in a prolonged strike and the Act might be i nvoked. It is within the intermediate service category that abuse of the designation process may arise. In the truly essential services right to strike is not very expansive. But in this category no one assumes that employment in services such as transport or sewage will deny him the right to strike.  If a service does indeed appear to be an  essential part of the community the tests in section 8 of the Essential  - 83  -  Service Disputes Act will allow its designation as essential.  It is  submitted that the test should not be treated lightly so as to include services which are beneficial but not essential. Category three, the non-essential services requires little treatment here.  It would only be in the most extreme cases that a  cessation of work by one of these unions would threaten the community. However, in the event of such an occurrence the same tests might be applied as those applied to intermediate services. In general, however, the right to strike should be unqualified. The designation of essential services is only a means of restricting a bargaining unit's right to strike in order to assure basic standards of safety. However, there is no indication that i t speeds or aids the resolution of the dispute, and in the final analysis it may have a negative influence on the relationship between the parties.  But i t does ease the burden on the general public during a  strike. The designation process where i t has been used has been satisfactory.  But there are still some imperfections to be dealt with.  It interjects another agreement to be negotiated between the parties before the contract issues are dealt with.  There are difficulties in  deciding whether to designate persons or functions. Additionally there is the problem of determining the appropriate measure of inconvenience so the employer does not complain of threats to the public safety and the union does not complain of over designation. Caution should be exercised that the designation process is not overused. The result would be a degeneration of the process  - 84 -  i n t o a form of q u a s i - i n j u n c t i o n . has t h e same f o r c e whether i t  To t h e employee, a b a c k - t o - w o r k  i s i s s u e d by way of d e s i g n a t i o n under t h e  E s s e n t i a l S e r v i c e D i s p u t e s A c t o r by way of It  injunction.  i s d i f f i c u l t t o apply t h e d e s i g n a t i o n process t o  essential  services  truly  l i k e f i r e and p o l i c e unions and t o a l e s s e r e x t e n t  t h e h o s p i t a l unions because of t h e homogenous n a t u r e of t h e and because of the s e r i o u s n e s s of a work s t o p p a g e . potential  order  The  f o r t h e a p p l i c a t i o n of d e s i g n a t i o n i s i n the  s e r v i c e s where t h e r i g h t t o s t r i k e s h o u l d be r e a d i l y some a s p e c t s of t h e f u n c t i o n s , h a r d s h i p on t h e general  public.  if  employers  greatest intermediate  granted but where  i n t e r r u p t e d , would work a r e a l  - 85 -  C.  The Nonstoppage S t r i k e and t h e Graduated S t r i k e The nonstoppage s t r i k e and the graduated s t r i k e ^  methods of c o n t a i n i n g harm cuased by s t r i k e s .  c a  n  be two  U n l i k e the d e s i g n a t i o n  of e s s e n t i a l employees and e s s e n t i a l s e r v i c e s , t h e s e two methods have not been adopted so f a r .  However, i t would be w o r t h w h i l e t o d i s c u s s 1 ? 5  them i n o r d e r t o see what p o s s i b i l i t i e s they have t o It  offer.  i s reasonably c l e a r t h a t i n p u b l i c employment, b a r r i n g s t r i k e s  a l t o g e t h e r i n o r d e r t o s o l v e problems c r e a t e d by work stoppages does not work, y e t  i n most j u r i s d i c t i o n s  real p o s s i b i l i t y .  The s t r i k e as i t  l e g i s l a t i o n of t h e s t r i k e i s not a i s known i n t h e p r i v a t e  sector  would not f u n c t i o n i n t h e same way i n t h e p u b l i c s e c t o r and does not f i t t h e p e c u l i a r i t i e s of p u b l i c c o l l e c t i v e b a r g a i n i n g -  diffuse  r e s p o n s i b i l i t y and t h e consequent need f o r l o n g e r p e r i o d s of time t o reach s e t t l e m e n t s than i n t h e p r i v a t e  sector.  In a nonstoppage s t r i k e o p e r a t i o n s would c o n t i n u e as u s u a l ,  but  both the employees and t h e employer would pay t o a s p e c i a l fund an amount equal t o a s p e c i f i e d percentage of t o t a l cash wages.  Thus,  w h i l e both p a r t i e s would be under p r e s s u r e t o s e t t l e , t h e r e would be no d i s r u p t i o n of s e r v i c e .  In a graduated s t r i k e , employees would stop  w o r k i n g d u r i n g p o r t i o n s of t h e i r usual work week and would comparable r e d u c t i o n s of wages.  suffer  H e r e , t h e r e would be p r e s s u r e not  on employees and employer but a l s o on the community; however,  only  the  decrease i n p u b l i c s e r v i c e would not be as sudden or complete as i n t h e conventional  strike.  - 86 -  The Nonstoppage S t r i k e Under P r o f e s s o r B e r n s t e i n ' s p r o p o s a l , a p u b l i c employee union would be f r e e t o d e c l a r e a nonstoppage s t r i k e a f t e r a l l  other  b a r g a i n i n g procedures have f a i l e d t o produce a s e t t l e m e n t .  Employees  would be o b l i g e d t o c o n t i n u e t o work f u l l time but would f o r e g o a p o r t i o n of t h e i r take-home pay. p e r c e n t would s u f f i c e . directly  He suggests t h a t ,  initially,  ten  T h i s money would be p a i d by t h e p u b l i c employer  into a special fund.  In a d d i t i o n t o p a y i n g t h e e q u i v a l e n t  of  r e g u l a r wages, the employer would a l s o put i n t o t h e fund an e x t r a amount equal t o what the employees have given up; t h i s c o n s t i t u t e a l o s s t o the employer.  l a t t e r sum would  The union would have t h e  option  p e r i o d i c a l l y t o i n c r e a s e t h e amount of foregone wages and employer payment, perhaps by increments of t e n percent every two weeks.  The  p u b l i c employer would have the o p t i o n t o r e q u i r e t h e union t o s w i t c h t o a graduated s t r i k e .  If  t h e employer d i d t h i s , t h e employees would  c o n t i n u e t o l o s e t h e same r a t e of pay, but the employer would services  r a t h e r than pay out a d d i t i o n a l  forego  funds.  That e x e r c i s e of the o p t i o n t o i n i t i a t e t h e nonstoppage s t r i k e and i n c r e a s e t h e percentage can be l i m i t e d t o t h e u n i o n . l i t t l e other leverage, since the conventional prohibited.  The union has  s t r i k e would s t i l l  be  A l s o , were the p u b l i c employer a b l e t o i n i t i a t e a  procedure under which employees would work w i t h o u t pay, q u e s t i o n s involuntary still  s e r v i t u d e might a r i s e .  of  In any e v e n t , t h e employer would  have the s t r a t e g i c b a r g a i n i n g advantage of i n s t i t u t i n g , a f t e r a  deadlock i n n e g o t i a t i o n s , c e r t a i n changes i n pay or o t h e r terms of employment which have been o f f e r e d t o t h e union and r e j e c t e d .  - 87 -  The nonstoppage s t r i k e would accommodate t h e p e c u l i a r i t i e s p u b l i c labour r e l a t i o n s .  of  I t would a t t r a c t t h e a t t e n t i o n of and put  p r e s s u r e on both t h e p u b l i c o f f i c i a l s who deal d i r e c t l y w i t h t h e u n i o n i n v o l v e d and o t h e r members of t h e e x e c u t i v e branch- whose own budgets might be a f f e c t e d , the l o c a l l e g i s l a t u r e , and s t a t e o f f i c i a l s .  And  w h i l e a nonstoppage s t r i k e would not p r e c i p i t a t e a c r i s i s , i t s would be steady and i n c r e a s e a b l e .  Thus, i t may p r o v i d e t h e  pressure  necessary  i n c e n t i v e f o r t h e v a r i o u s bodies of government t o a c t , w h i l e a l l o w i n g them the time they need t o do so e f f e c t i v e l y .  Moreover,  i t does not  d i s t u r b c o n s i d e r a t i o n of t h e m e r i t s of t h e d i s p u t e w i t h t h e now t y p i c a l  of i l l e g a l  hysteria  strikes.  W h i l e nonstoppage s t r i k e s would c r e a t e a d d i t i o n a l expense p u b l i c employers - many of whom are hard p r e s s e d as i t  for  is -they  should  a l s o put an end t o t h e p r e s e n t p r a c t i c e of paying the employees at o v e r t i m e r a t e s when a s t r i k e ends t o reduce t h e b a c k l o g of work accumulated d u r i n g t h e s t r i k e .  A l s o , h o p e f u l l y , t h e expense s h o u l d be  only t e m p o r a r y , a n d , t h e money w i l l  not go t o w a s t e .  In  any  t h e p r i c e does not seem t o o high t o pay f o r a s u b s t a n t i a l l y  event,  improved  process of b a r g a i n i n g . Nonstoppage s t r i k e s o f f e r s i g n i f i c a n t advantages t o employees, perhaps even more than would l e g a l i z a t i o n of c o n v e n t i o n a l the f i r s t  place, their  strikes.  r a t e of l o s s of pay would be lower at any  t i m e i f t h e r e were an a l l out s t r i k e .  In  given  For employees w i t h mortgage and  o t h e r i n s t a l l m e n t o b l i g a t i o n s t o meet, t h i s c o n t i n u i t y of income i s highly d e s i r a b l e .  A n d , t o the e x t e n t t h a t t h e nonstoppage  strike  encourages more r e s p o n s i v e b a r g a i n i n g w i t h o u t any s t o p p a g e s , t h e t o t a l  - 88 -  l o s s of pay may be l e s s .  In a d d i t i o n , i n a f u l l  scale s t r i k e ,  e s p e c i a l l y one of l o n g d u r a t i o n , t h e employer i s not l i a b l e f o r b e n e f i t payments.  Thus, l i f e i n s u r a n c e p o l i c i e s may l a p s e o r  fringe require  payments by employees at a t i m e when t h e i r income i s i n t e r r u p t e d ,  and  group medical c a r e i n s u r a n c e may have t o be kept i n f o r c e at t h e higher-cost should  individual  rates.  In a nonstoppage s t r i k e t h e s e  benefits  continue.  S e c o n d , i n a c t u a l s t r i k e s employees run t h e r i s k of l o s i n g jobs.  their  A common s a n c t i o n i n i l l e g a l s t r i k e s i s t o f i r e s t r i k e r s .  In  t h e p r i v a t e s t r i k e , t o o , replacement of economic s t r i k e r s has l o n g been p e r m i t t e d , and w h i l e t h e r e i s no data on p u b l i c employer a c t i v i t y this sort,  it  i s highly  p r o b a b l e t h a t permanent,  replacement of s t r i k e r s w i l l employee s t r i k e . secure.  public  In nonstoppage s t r i k e s , of c o u r s e , j o b s would be  eliminate a t r a d i t i o n a l l y  Third,  nondiscriminatory  become a f e a t u r e of the l e g a l  Moreover, t h e absence of even temporary  a stake i n  of  replacements would  potent source of v i o l e n c e , which everyone has  averting. l o n g - r u n employee and union i n t e r e s t s are best served by a  method t h a t i s l e g a l and d i s c o m f o r t s t h e community as l i t t l e as possible. distasteful  Union l e a d e r s h i p knows t h a t unpopular s t r i k e s l e a d t o legislation.  A n d , t h e s t r i k e r s , even i f they f e e l  conduct j u s t i f i e d , o f t e n must i n c u r t h e d i s a p p r o v a l A p e a c e f u l method of p u r s u i n g demands seem c l e a r l y  their  of the community. preferable.  The p u b l i c employer would need some means of a s s u r i n g union and employee c o m p l i a n c e w i t h ground r u l e s . f o r l e s s than f u l l  Obviously,  working f u l l  time  pay might encourage some employees t o slow down - a  - 89 -  favoured device i n s t r i k e - b a n j u r i s d i c t i o n s . minimize v i o l a t i o n s .  F i r s t , t h e unions must see t h a t i t  advantage t o persuade members t h a t i t the r u l e s .  Two procedures  would  is to  their  i s t o t h e i r advantage t o a b i d e by  That i s , a l l must be made aware t h a t the " s t r u c k " employer  i s indeed under s t r i k e - l i k e p r e s s u r e .  Second, the s t a t u t e should  p r o v i d e f o r an e x p e d i t e d u n f a i r l a b o u r p r a c t i c e procedure t o bear and determine charges of a slowdown or improper a b s e n c e .  However, t h e s e  areas are so s e n s i t i v e and have such a p o t e n t i a l f o r emotional o v e r r e a c t i o n t h a t employer d i s c i p l i n e of employees s h o u l d be l i m i t e d t o those cases where i m p a r t i a l h e a r i n g o f f i c e r s make a f i n d i n g t h a t  the  improper a c t i o n has t a k e n p l a c e . One s e r i o u s problem w i t h t h e nonstoppage s t r i k e i s f i n d i n g a s u i t a b l e use f o r t h e s p e c i a l fund t o which t h e p u b l i c employer and employees have c o n t r i b u t e d .  In o r d e r t o i n s u r e t h a t t h e l o s s w i l l  a c t u a l l y d i s c i p l i n e t h e p a r t i e s conduct i n b a r g a i n i n g , t h e fund would have t o be p l a c e d e f f e c t i v e l y  beyond t h e i r r e c a p t u r e .  Professor  B e r n s t e i n recommends t h a t t h e fund be put at t h e d i s p o s a l  of  t r i p a r t i t e P u b l i c Purposes Committee i n which r e s p e c t e d community f i g u r e s outnumber t h e t o t a l number of union and government members. T h i s committee would be charged w i t h t h e t a s k of a p p l y i n g t h e money t o publicly desirable, preferably currently  s h o r t term p r o j e c t s t h a t are not  i n t h e p u b l i c budget - c r e a t i o n of s c h o l a r s h i p s or  c o n s t r u c t i o n of p u b l i c r e c r e a t i o n f a c i l i t i e s , f o r example.  Certainly  p u b l i c employees would get l i t t l e d i r e c t advantage from such a use of t h e money.  M o r e o v e r , s i n c e t h e s e p r o j e c t s would not be  currently  f u n d e d , the c o m m i t t e e ' s a c t i o n would not d i s c h a r g e any of  the  - 90 -  government's p r e s e n t o b l i g a t i o n s ; occur i r r e g u l a r l y ,  would  the government c o u l d not count on b e i n g r e l i e v e d  any f u t u r e b u r d e n s . for losing control  and s i n c e such c o n t r i b u t i o n s  Consequently,  of  given p u b l i c o f f i c a l d o m ' s d i s l i k e  over money, t h i s use of t h e funds s h o u l d a l s o  p r o v i d e an i n c e n t i v e f o r p u b l i c employers t o b a r g a i n . A l t h o u g h nonstoppage s t r i k e s were i n i t i a l l y proposed f o r use i n the p r i v a t e s e c t o r , they have had l i t t l e a c c e p t a n c e by p r i v a t e There are a number of reasons f o r t h i s . been the s u b j e c t  First,  a l t h o u g h s t r i k e s have  of some academic d i s a p p r o v a l , they remain an  acceptable device i n the p r i v a t e s e c o t r . little  real pressure f o r a s u b s t i t u t e .  There has been, t h e r e f o r e , Second, f o r a nonstoppage  s t r i k e i n t h e p r i v a t e s e c t o r t o be as e f f e c t i v e as t h e s t r i k e , the c o n t r i b u t i o n s the amount of p r o f i t s difficulty  parties.  it  conventional  of the employer t o the fund must be geared t o i s spared from l o s i n g .  of c a l c u l a t i n g t h i s f i g u r e ,  Because of t h e  achieving a formula f o r  obvious employer  c o n t r i b u t i o n which i s s a t i s f a c t o r y t o both p a r t i e s c o u l d e a s i l y be more f o r m i d a b l e an o b s t a c l e than r e s o l v i n g t h e i r b a s i c economic d i f f e r e n c e s . Third,  any s t a t u t o r y  i m p o s i t i o n of a nonstoppage p l a n w o u l d , w h i l e  s o l v i n g i n a crude way t h e c o m p l e x i t i e s of computing the f o r m u l a ,  raise  t h e c l a i m by employers of d e p r i v a t i o n of p r o p e r t y w i t h o u t t h e p r o c e s s and t h e analogous employee c l a i m of i n v o l u n t a r y  servitude.  - 91 -  The Graduated S t r i k e A nonstoppage s t r i k e may be i n s u f f i c i e n t t o induce r e s p o n s i v e bargaining.  More d i r e c t p r e s s u r e may be r e q u i r e d , and t h e graduated  s t r i k e would p r o v i d e  it.  In a graduated s t r i k e t h e union would c a l l work t o a h a l t stages.  in  D u r i n g t h e f i r s t week or two of t h e s t r i k e , the employees  would not work f o r h a l f a day; d u r i n g the next p e r i o d , i f t h e union so c h o s e , they would not work f o r one f u l l day per week; and so o n , u n t i l they reached a stage s h o r t of t o t a l s t o p p a g e . would be cut  Employees' t a k e home pay  proportionately.  The e f f e c t of a graduated s t r i k e would be t o g i v e t h e p u b l i c a t a s t e of reduced s e r v i c e w i t h o u t t h e shock of t o t a l d e p r i v a t i o n . would s e t i n motion t h e p o l i t i c a l m a c h i n e r y .  This  C i t i z e n s would make  c o m p l a i n t s about t h e i r i n c o n v e n i e n c e t o t h e i r e l e c t e d r e p r e s e n t a t i v e s . L o c a l o f f i c i a l s , both e x e c u t i v e and l e g i s l a t i v e , w o u l d , thus be under p r e s s u r e t o do s o m e t h i n g , but would n e v e r t h e l e s s be a b l e t o c o n s u l t w i t h each o t h e r and w i t h t h e o f f i c i a l s at h i g h e r l e v e l s of  government.  They would t h e r e f o r e be a b l e t o n e g o t i a t e w i t h t h e union i n a r e a s o n a b l y c o - o r d i n a t e d and a u t h o r i t a t i v e manner.  F r e e of resentment  and of p o s t u r i n g over i l l e g a l i t y , t h e c o m p l i c a t e d p o l i t i c a l process of s o r t i n g out p r e f e r e n c e s between h i g h e r c o s t s and fewer s e r v i c e s and among competing demands c o u l d then work i t s e l f  out.  To ensure t h a t employees r e a l l y s u f f e r p r o p o r t i o n a t e l o s s of wages would r e q u i r e , f i r s t , t h a t they be u n a b l e , a f t e r t h e s t r i k e , t o b a c k l o g s at o v e r t i m e r a t e s .  reduce  T h i s c o u l d probably be a c c o m p l i s h e d s i m p l y  by a l i m i t a t i o n on o v e r t i m e pay f o r some p e r i o d f o l l o w i n g t h e s t r i k e .  - 92 -  It  does not seem necessary t o do more t o the e x t e n t t h e employees  u l t i m a t e l y recoup t h e i r l o s t wages, t h e p u b l i c w i l l s e r v i c e r e s t o r e d ; and i n any case i t l o s s e s w i l l ever be t o t a l l y  lost  i s , u n l i k e l y that either  recovered.  sides  S e c o n d , i t would be necessary  t h a t the shutdown not exceed t h e announced l e v e l . this  have the  W h i l e enforcement  of  requirement would not be e a s y , i t would p r o b a b l y be s a t i f a c t o r y  f o r an i m p a r t i a l body w i t h an e x p e d i t e d h e a r i n g procedure t o determine the a c t u a l e x t e n t of t h e employee stoppage and t o mete out penalties,  i n c l u d i n g r e d u c t i o n of wages.  appropriate  In a d d i t i o n , t h e r e would be  another s t r o n g inducement t o proper observance of the ground union and employee r e c o g n i t i o n t h a t they have an e f f e c t i v e ,  rules: fair,  and  a c c e p t a b l e weapon t o encourage good f a i t h b a r g a i n i n g . The nonstoppage s t r i k e and t h e graduated s t r i k e would work best tandem.  Because a nonstoppage s t r i k e would cause the p u b l i c  disruption,  i t s h o u l d perhaps be r e q u i r e d t h a t unions t r y  it  in  less for  at  l e a s t f o u r weeks;  they would then have t h e o p t i o n of i n s t i t u t i n g a  graduated s t r i k e .  However, s i n c e both types of s t r i k e s are c e r t a i n t o  put p r e s s u r e on t h e p u b l i c e m p l o y e r , t h e employer s h o u l d be given some limited options.  If  i t f e e l s i t s e l f f i n a n c a i l l y hard p r e s s e d , i t  can  s e l e c t the graduated s t r i k e , which would r e s u l t i n no a d d i t i o n a l expense.  If  the employer b e l i e v e s t h a t t h e s e r v i c e performed by t h e  employees i s so e s s e n t i a l t o t h e p u b l i c t h a t c e s s a t i o n i s i n t o l e r a b l e f o r example, f i r e and p o l i c e p r o t e c t i o n opportunity  it  s h o u l d have t h e  t o persuade an i n p a r t i a l , p r e f e r a b l y e x p e r t ,  t h e s e r v i c e s are i n r e a l i t y  so i n d i s p e n s a b l e .  If  tribunal  successful, it  l i m i t t h e union t o t h e ever more e x p e n s i v e nonstoppage s t r i k e .  that could  -  - 93 CHAPTER IV DISPUTE SETTLEMENT PROCEDURES  Even more than the definition of essential services, the manner of settling disputes in these services raises some perplexing questions. Because employers and employees have both common and divergent objectives, conflicts of interest inevitably arise from time to time. When these conflicts occur, labour and management resort to collective bargaining, which is the accepted procedure for resolving such di fferences. This part will deal with the analysis of dispute resolution procedures in essential services, against the backdrop of free collective bargaining.  The challenges to the procedures are obvious as  statutes seek to protect free collective bargaining and partly because this area is characterized by (1) political and economic environments that produce disputes of greater intensity and complexity, (2) highly sophisticated bargaining representatives who are able to pursue aggressively the interests of their organizations through the various stages of dispute resolution, and (3) more assertive union members, management negotiators, politicians, and public interest groups.  126  Two important assumptions underlie the analysis:  (1) the factors  causing collective bargaining impasses are diverse, and (2) there is no "one best way" for resolving all types of disputes.  127  - 94 A.  Fact Finding Fact finding is a procedure in which hearings are held and  evidence is received by a neutral third party who makes recommendations as to the most equitable resolution of the dispute. recommendations of the fact finder may  The  either be accepted by the  parties as a reasonable solution or be used by them as a basis for further direct negotiations.  In a sense, fact finding is l i t t l e more  than mediation with written recommendations.  The procedure is usually  designed to include publication of the fact finder's report i f the parties do not adhere to the recommendations and cease negotiating in good faith.  Publication is said to generate compliance and put  pressure on the parties to bargain. There are provisions for fact finding in section 5 of the Essential Service Disputes A c t .  128  Under the terms of the  statute, the fact-finder reports to the parties, the agency and the minister.  Only the minister may  publish or distribute a fact finder's  report. Literature describing the process of fact finding is not to be found in British Columbia.  Here fact finding has been discounted as a  step in dispute resolution procedure.  The main criticism is that later  arbitration merely becomes an instant replay, and arbitrators are uncomfortable with having to second guess another n e u t r a l . There may  129  be ways of designing an important role for the  technique, however, under alternate arbitration schemes.  In the  U.S.A., fact finding prior to arbitration has proven to be highly successful in reducing the number of issues going to arbitration. example, Massachusetts and Iowa legislations provide for mediation,  For  - 95 f o l l o w e d by f a c t f i n d i n g and then a r b i t r a t i o n .  Final offer  arbitration  i s u s e d , but the a r b i t r a t o r i s a l l o w e d t o s e l e c t between e i t h e r  party's  final  proposal as w e l l as the recommendations of the f a c t f i n d e r .  Iowa,  r e s u l t s have so f a r been e n c o u r a g i n g .  S t u d i e s show t h a t  In  where  t h e p a r t i e s have used f a c t f i n d i n g , an average of 3 . 9 i s s u e s go t o arbitration. arbitrated.  Where f a c t f i n d i n g i s not u s e d , 6 . 2 i s s u e s are 1 3 0  A 1965 s t a t u t e which gave M a s s a c h u s e t t s ' m u n i c i p a l employees the statutory  r i g h t t o b a r g a i n was amended i n 1973 t o p r o v i d e f i n a l  offer  a r b i t r a t i o n by package f o r p o l i c e and f i r e f i g h t e r s , e f f e c t i v e J u l y 1 , 1974 f o r a t h r e e y e a r t r i a l  period.  The p e r i o d was extended  for  another two y e a r s i n June 1977 but i n c l u d e d these r e v i s i o n s p a r t i e s c o u l d waive f a c t f i n d i n g ; i f  f a c t f i n d i n g were not w a i v e d , the  a r b i t r a t o r c o u l d s e l e c t from e i t h e r s i d e ' s f i n a l o f f e r or t h e finder's  recommendations; the p a r t i e s c o u l d choose a s i n g l e  r a t h e r than a t r i b u n a l reduced.  the  and the scope of a r b i t r a l  fact  arbitrator  i s s u e s was  1 3 1  L i p s k y and B a r o c c i a n a l y z e d the M a s s a c h u s e t t s e x p e r i e n c e over the p e r i o d 1975 t o 1 9 7 7 .  1 3 2  p e r c e n t of n e g o t i a t i o n s  They found t h a t s l i g h t l y (6.6 percent)  ended w i t h an award.  m e d i a t i o n and f a c t f i n d i n g were e x t e n s i v e l y p r i o r to a r b i t r a t i o n . recommendations h e a v i l y  l e s s than 7  u t i l i z e d by the  They a s c e r t a i n e d t h a t the f a c t  Both parties  finder's  i n f l u e n c e d the awards and they concluded t h a t ,  w h i l e f i n a l o f f e r a r b i t r a t i o n may have r e s u l t e d i n r e l i a n c e on impasse p r o c e d u r e s , i t d i d not r e s u l t i n a l a r g e number of cases being through an award.  resolved  - 96 The Iowa l e g i s l a t u r e passed a comprehensive s t a t u t e i n 1974 which p r o v i d e d the r i g h t t o o r g a n i z e and b a r g a i n c o l l e c t i v e l y s e c t o r employees ( i n c l u d i n g t e a c h e r s ) provision  f o r most p u b l i c  a c r o s s the s t a t e and made  for i s s u e - b y - i s s u e , f i n a l offer a r b i t r a t i o n .  cannot mediate but can s e l e c t between the p a r t i e s ' the recommendations of the f a c t f i n d e r .  The  final  arbitrator  positions  The l e g i s l a t i o n c a l l s  m e d i a t i o n f o l l o w e d by f a c t f i n d i n g f o l l o w e d by a r b i t r a t i o n . may be a s i n g l e a r b i t r a t o r f i r s t two y e a r s  n e  the p r o p o r t i o n  y  found, f i r s t ,  Therefore,  latter  The r e s u l t s f o r  "filtering  the  Gallagher  effect",  of d i s p u t e s taken to each s u c c e s s i v e  decreased s u b s t a n t i a l l y . negotiations  a strong  for  The  (1975-76 and 1976-77) have been reviewed by  and D e g n e t t e r . 1 3 3 j i.e.,  or a three-man b o a r d .  or  step  Very few cases went t o award - 3 . 6 percent  of  i n t h e f i r s t y e a r and 3 . 9 percent i n the second y e a r .  the M a s s e c h u s e t t s and Iowa r e s u l t s are e n c o u r a g i n g  with  r e s p e c t to the e f f i c a c y of f i n a l o f f e r a r b i t r a t i o n used w i t h fact finding, p a r t i c u l a r l y  i n comparison t o other forms of  dispute  resolution. Arbitration  usage r a t e s , as do s t r i k e r a t e s , depend t o a degree on  t h e r e l a t i o n s h i p between the p a r t i e s and the environment w i t h i n they b a r g a i n .  It  i s clear that  would be used f r e q u e n t l y used f r e q u e n t l y .  i n some r e l a t i o n s h i p s ,  which  arbitration  j u s t as i n some casess the s t r i k e weapon i s  A d i s t i n c t d i s a d v a n t a g e w i t h regard t o a r b i t r a t i o n  t h a t n e g o t i a t i o n s w i t h the s t r i k e t h r e a t  removed tend t o be drawn  T h i s problem i s not i n d i g e n o u s t o a r b i t r a t i o n , however,  out.  and can be  overcome by p l a c i n g t h e p a r t i e s , i n c l u d i n g t h i r d p a r t y n e u t r a l s , a r i g i d time frame f o r n e g o t i a t i o n s .  is  Indeed, t h e r e are many  under  - 97 s u g g e s t i o n s t h a t c o u l d be made t o a s s u r e t h a t b a r g a i n i n g under a r b i t r a t i o n operates e f f e c t i v e l y . which would r e s u l t  A l s o , procedures are a v a i l a b l e now  i n a c c e p t a b l y low usage r a t e s a c r o s s a s e c t o r .  An  e f f e c t i v e l y designed system of f i n a l o f f e r a r b i t r a t i o n , from the evidence a v a i l a b l e , would probably all  l e a d t o a l l but 5 t o 10 p e r c e n t  of  d i s p u t e s i n a s e c t o r being r e s o l v e d by n e o g t i a t i o n s ; an e f f e c t i v e l y  designed system of c o n v e n t i o n a l  a r b i t r a t i o n would probably  lead to a l l  but 10 t o 25 p e r c e n t being r e s o l v e d s h o r t of an a r b i t r a t i o n award. These r a t e s are comparable t o the frequency of s t r i k e u s a g e . The Iowa procedures bear very c l o s e s c r u t i n y possible policy thrust  in t h i s regard.  A  i n d i s p u t e r e s o l u t i o n i n the f u t u r e may be made  by b r i n g i n g f a c t f i n d i n g and a r b i t r a t i o n t o g e t h e r more c l o s e l y than i n the p a s t .  G i v i n g the t h i r d p a r t y (under f i n a l o f f e r  arbitration)  the e x p l i c i t opportunity  conventional  t o s e l e c t from t h e f a c t  finder's  recommendations would seem, from the Iowa e x p e r i e n c e , t o put maximum p r e s s u r e on t h e p a r t i e s t o n e g o t i a t e t h e i r own agreements.  - 98 B.  Interest  Arbitration  Prolonged c o n f l i c t s between employers and employees, and s t r i k e s and l o c k o u t s i n areas where s e r v i c e s are regarded as e s s e n t i a l can cause immense danger t o l i f e ,  h e a l t h and s a f e t y .  T h i s f e a r puts  e x c e s s i v e p r e s s u r e on the c o l l e c t i v e b a r g a i n i n g s y s t e m . If,  i n the i n t e r e s t s of the p u b l i c , the r i g h t t o s t r i k e and  l o c k o u t i s t o be denied i n t h e s e e s s e n t i a l s e r v i c e s components of the B r i t i s h Columbia economy, then the law must p r o v i d e an a l t e r n a t i v e . The a l t e r n a t i v e suggested i n almost a l l p r o p o s a l s t o end the r i g h t s t r i k e i s a r b i t r a t i o n of i n d u s t r i a l  to  disputes.  Anderson contends t h a t i n t e r e s t a r b i t r a t i o n i s a r e a l i s t i c a l t e r n a t i v e which " n e i t h e r i m p a i r s the e f f e c t i v e n e s s of b a r g a i n i n g , nor d i s t o r t s the d e m o c r a t i c p r o c e s s "  1 3 5  collective  Moreover,  " a r b i t r a t i o n b a l a n c e s the r e l a t i v e s t r e n g t h of the p a r t i e s and p l a c e s the small union or small employer on an equal f o o t i n g w i t h a l a r g e r bargaining  counterpart".  1 3 6  This p a r t p r e s e n t s an a n a l y s i s of the d e c i s i o n s a l o n g a number of d i m e n s i o n s ; i n t e r a l i a , the time w i t h i n which a r b i t r a t i o n occurs and the c r i t e r i a r e l i e d upon by the a r b i t r a t i o n b o a r d s .  Wherever  the d i f f e r e n c e s a c c o r d i n g t o t h e nature of the award ( i . e . , t o t h e mentioned c a t e g o r i e s ) almost e n t i r e l y awards.  have been n o t e d .  relevant,  according  The d i s c u s s i o n i s based  upon i n f o r m a t i o n t h a t c o u l d be c o l l e c t e d from the  Sometimes, the d e s i r e d i n f o r m a t i o n was s i m p l y not t o be found  i n the a r b i t r a t o r ' s  report.  However, i t was p o s s i b l e t o d i s c e r n a  number of t r e n d s d u r i n g the p e r i o d under e x a m i n a t i o n and u s e f u l c o n c l u s i o n s were made.  - 99 1.  The A r b i t r a t i o n  Board  The c o m p o s i t i o n of the boards of a r b i t r a t i o n v a r i e d a c c o r d i n g t o the c a t e g o r y of award c o n s i d e r e d . of c o u r s e , e i t h e r :  1.  significantly  The o p t i o n s here a r e ,  a s i n g l e a r b i t r a t o r agreed t o by the  parties,  or appointed by t h e m i n i s t e r ; or 2 . a t r i p a r t i t e board composed of a nominee of each p a r t y and a n e u t r a l  c h a i r m a n , the chairman being  s e l e c t e d by the nominees or a p p o i n t e d by the m i n i s t e r . 1 3 7 Examination of the " v o l u n t a r y  a r b i t r a t i o n s " showed  boards were used t o a g r e a t e r e x t e n t , the c a s e s .  tripartite  or i n a p p r o x i m a t e l y 30 percent  of  A l l but t h r e e of the " s e c t i o n 73 awards" were d e c i d e d by  s i n g l e a r b i t r a t o r s ; the t h r e e e x c e p t i o n s were i n m a t t e r s private hospitals.  A l l but one of t h e " E s s e n t i a l S e r v i c e D i s p u t e s Act  awards" were heard by t r i p a r t i t e In i n t e r e s t  involving  boards.  a r b i t r a t i o n t h e r e i s a v a l u a b l e r o l e t o be p l a y e d by  t h e nominees, even more so than i n r i g h t s a r b i t r a t i o n . discussed in Hospital  T h i s was  Employees U n i o n , L o c a l 180 and H e a l t h Labour  R e l a t i o n s A s s o c i a t i o n of B r i t i s h C o l u m b i a n s by chairman Munroe: S e c o n d l y , the r o l e of the nominee i n e n s u r i n g r e l e v a n c y of the f i n i s h e d product i s p o t e n t i a l l y more c r i t i c a l i n " i n t e r e s t " a r b i t r a t i o n s than i n " r i g h t s " a r b i t r a t i o n s . In both c l a s s e s of a r b i t r a t i o n s , t h e n e u t r a l chairman i s brought i n t o a r e l a t i o n s h i p w i t h which he l i k e l y has l i t t l e f a m i l i a r i t y a n d , i n a r e l a t i v e l y b r i e f p e r i o d of t i m e , i s expected t o p r o v i d e the " c o r r e c t " answer t o a d i s p u t e or s e r i e s of d i f f e r e n c e s . But the a r b i t r a t o r ' s t a s k i n " r i g h t s " a r b i t r a t i o n s i s g e n e r a l l y e a s i e r . That t a s k i s t o t a k e terms and c o n d i t i o n s which have a l r e a d y been agreed t o - i . e . , the c o l l e c t i v e agreement - and apply them t o a p a r t i c u l a r set of facts. The " i n t e r e s t " a r b i t r a t o r , however, i s a c t u a l l y asked t o c r e a t e t h e terms and c o n d i t i o n s . Depending on the number of i s s u e s o u t s t a n d i n g t h a t can be an awesome r e s p o n s i b l i t y , e s p e c i a l l y when one c o n s i d e r s t h a t t h e working c o n d i t i o n s t o be imposed w i l l govern t h e p a r t i e s f o r a p e r i o d of o n e , two or even t h r e e y e a r s . The n e u t r a l chairman can be g r e a t l y  - 100 assisted, and thus the system has a better chance of working in fact as well as on paper, i f his colleagues on the arbitration board know, with some precision, the intricacies of the employment relationship and the actual impact or effect of the parties' respective proposals. The foregoing comments become even more relevant where the  parties  rely on different arbitrators to resolve succeeding collective agreements - this seemed to be occurring for all but a few collective bargaining relationships.  Also, where nominees sit on the board, there  is a greater chance for feedback and accommodation during the course of the arbitration.  The chairman can "try out!' contemplated solutions on  the parties intimately familiar with the industry, and at the same time there can be communication between those presenting the case and their nominee. What the board perceived as unrealistic proposals would hopefully be modified and there would be a greater likelihood of further evidence being presented where the chairman was  uncertain about  suggested terms of the collective agreement. Tripartite arbitration boards should therefore be encouraged in interest arbitration, notwithstanding the probable additional expenses involved.  The role of the nominee should be limited, however, to  participation at the hearing and discussion  of the evidence.  decision of the majority should be binding on the parties.  The  This would  hopefully eliminate delays resulting from the practice of attaining concurring opinions and from disagreement over the wording of awards.  2.  Delay An inherent characteristic of the interest arbitration process in  British Columbia seems to be lengthy time lags betwen expiry of the  -  c o l l e c t i v e agreement, and eventual contract.I (i)  101 -  s e t t l e m e n t of the new  3 9  Time l a g s o c c u r r e d w i t h v o l u n t a r y  g e n e r a l l y not h e l d u n t i l  arbitrations.  Hearings were  29 weeks a f t e r t h e c o l l e c t i v e agreement had  e x p i r e d , and awards were not handed down u n t i l  34 weeks subsequent  to  the e x p i r y d a t e . (ii)  In the case of s e c t i o n 73 awards, t h e f i r s t  was not h e l d u n t i l terminated.140  (iii)  hearing  27 weeks a f t e r the p r e v i o u s c o l l e c t i v e agreement had  There g e n e r a l l y ensued a f u r t h e r  before the a r b i t r a t o r ' s total  arbitration  r e p o r t was r e l e a s e d ,  1 4 1  p e r i o d of 6 weeks resulting in a  delay of 33 weeks. The t o t a l  time p e r i o d f o r r e s o l u t i o n of E s s e n t i a l  Service  D i s p u t e s Act awards was s h o r t e r than e i t h e r of t h e s e , being an average 27 weeks.  The d e l a y between e x p i r y of t h e c o l l e c t i v e agreement and the  date of the f i r s t  a r b i t r a t i o n h e a r i n g was " o n l y "  17 weeks - a  s i g n i f i c a n t r e d u c t i o n over the e a r l i e r two c a t e g o r i e s . seems t h a t a r b i t r a t o r s  However,  it  i n these d i s p u t e s d e l i b e r a t e d f o r 10 weeks  b e f o r e handing down t h e i r  awards.  Long d e l a y s between e x p i r y of one c o l l e c t i v e agreement and s e t t l e m e n t of t h e next one are o b v i o u s l y  undesirable.  The f a c t  that  new terms remain u n r e s o l v e d cannot h e l p but breed worker d i s s a t i s f a c t i o n w i t h the s y s t e m , and may u l t i m a t e l y l e a d t o i l l e g a l  strikes.  Where a c o l l e c t i v e agreement i s t o have a term of o n l y one y e a r t h e s i t u a t i o n i n many of the a r b i t r a t i o n s )  (as was  the mentioned f i g u r e s mean  t h a t employees d i d not have a c o n t r a c t u n t i l  shortly  b e f o r e the date on  which they were l e g a l l y a b l e t o g i v e n o t i c e t o b a r g a i n f o r  the  - 102 subsequent c o n t r a c t .  It  i s u s u a l l y p o s s i b l e t o c a l c u l a t e wages and  f r i n g e s payable from the e f f e c t i v e date of a c o l l e c t i v e agreement. There was not s u f f i c i e n t i n f o r m a t i o n i n the a r b i t r a t o r s ' a s c e r t a i n reasons f o r d e l a y , except disputes.  reports  to  f o r a very l i m i t e d number of  In many cases t h e r e had been attempts at m e d i a t i o n  subsequent t o e x p i r y of the p r e v i o u s c o n t r a c t , and one might s p e c u l a t e the p a r t i e s were n e g o t i a t i n g t o some e x t e n t .  reasonably  P a r t of the  reason f o r d e l a y might be u n a v a i 1 a b l i 1 i t y of p r e f e r r e d a r b i t r a t o r s i n a b i l i t y of a l l f o r the h e a r i n g s .  or  persons i n v o l v e d t o arrange m u t u a l l y a c c e p t a b l e dates The d i f f e r e n c e between the v o l u n t a r y  arbitrations  and s e c t i o n 73 awards and E s s e n t i a l S e r v i c e D i s p u t e s Act awards i s noteworthy.  When one c o n s i d e r s as w e l l the number of i s s u e s  prima f a c i e i t would seem t h e r e i s an i n c r e a s i n g t e n d e n c y , among h e a l t h c a r e u n i o n s , t o r e l y on a r b i t r a t i o n .  arbitration  P e r h a p s , the a r b i t r a t i o n boards i n these d i s p u t e s  r e q u i r i n g more t i m e t o make t h e i r  especially  They are n e g o t i a t i n g  fewer i s s u e s t o t h e p o i n t of s e t t l e m e n t and going t o sooner.  involved,  are  awards.  In t h e i r study of a r b i t r a t i o n s under the B r i t i s h Columbia P u b l i c S c h o o l s A c t , Thompson and C a i r n i e m a i n t a i n t h a t the c u m u l a t i v e e f f e c t of imposing a s e r i e s of s t r i c t d e a d l i n e s on the p a r t i e s appears t o encourage b i l a t e r a l s e t t l e m e n t .  1 4 2  D e a d l i n e s are seen as a source  of p r e s s u r e on the p a r t i e s t o s e t t l e t h e i r d i f f e r e n c e s .  There are many  a s p e c t s of p u b l i c s c h o o l s a r b i t r a t i o n s which are u n i q u e , however, it  i s here suggested t h a t time l i m i t a t i o n s may only  and  encourage  b a r g a i n i n g when t h e p a r t i e s seek t o a v o i d t h e i r . p a r t y  settlements.  In  t h e c o n t e x t of e s s e n t i a l s e r v i c e d i s p u t e s , where t h e r e does not appear  - 103 -  t o be a high d i s t a s t e f o r a r b i t r a t e d agreements, i t p r e d i c t the r e s u l t  of the time l i m i t on b a r g a i n i n g .  is d i f f i c u l t  to  The e f f e c t  might  be t o s t i f l e b a r g a i n i n g and e l i m i n a t e attempts at e l e v e n t h s e t t l e m e n t as t h e p a r t i e s prepare f o r a r b i t r a t i o n .  On the o t h e r  t h e r e i s no doubt t h a t a maximum time p e r i o d w i t h i n which awards must be handed down c o u l d be p r e s c r i b e d .  hour hand,  arbitration  A provision  s i m i l a r to  s e c t i o n 100 of t h e Labour Code of B r i t i s h Columbia s h o u l d be  introduced  as p a r t of the E s s e n t i a l  S e r v i c e D i s p u t e s Act s e t t i n g a s p e c i f i c time  1 imitation.  3.  C r i t e r i a R e l i e d Upon by Interest a r b i t r a t i o n  Arbitrators  has developed as an a d j u d i c a t i v e  T h i s assumes t h a t t h e r e w i l l  be s t a n d a r d s upon which a d e c i s i o n w i l l  b a s e d , and t h a t e v i d e n c e and arguments w i l l of those standards being a p p l i e d . objective  standards, generally  would seem t o be a r e l a t i v e l y it  process.  be prepared i n  anticipation  The development and a p p l i c a t i o n of  r e f e r r e d to as c r i t e r i a , prima f a c i e straight  forward e x e r c i s e .  In  practice,  becomes one of the most nebulous a s p e c t s of the a r b i t r a t i o n  One i n d u s t r i a l  be  process.  r e l a t i o n s s p e c i a l i s t has s a i d :  " . . . t h e f o r l o r n s e a r c h f o r an e l u s i v e set of c r i t e r i a t h a t are supposed t o p r o v i d e the u n c h a l l e n g e d b a s i s f o r a c c e p t a b l e awards decreed by a t h i r d p a r t y . " 1 4 3  There i s a q u e s t i o n which must be answered before s e l e c t i n g the criteria.  The q u e s t i o n i s , what i s the r o l e of a r b i t r a t i o n and what  should i t a c h i e v e ?  T h i s q u e s t i o n must be answered where no c r i t e r i a  have been s p e c i f i e d i n the governing l e g i s l a t u r e gives  legislation.  Even where the  some i n d i c a t i o n of t h e a p p r o p r i a t e c r i t e r i a ,  the  - 104 statutory  directive  i s o f t e n so general  as to be of o n l y  limited  a s s i s t a n c e t o both the p a r t i e s and the board of a r b i t r a t i o n . example, Kenneth P. Swan advocates t h e need f o r a r b i t r a t o r s  For to  develop:  " . . . a g e n e r a l l y a c c e p t a b l e s t r u c t u r e of meaningful c r i t e r i a which may be a p p l i e d s c i e n t i f i c a l l y and c o n s i s t e n t l y and which w i l l produce i n general r e s u l t s p e r c e i v e d to be j u s t and a c c e p t a b l e to both the p a r t i e s the d i s p u t e and s o c i e t y at l a r g e . " (emphasis added)  to  1 4 4  Other a r b i t r a t o r s  have r e j e c t e d concepts of  " j u s t i c e " and " f a i r n e s s "  and attempt t o d u p l i c a t e the market s i t u a t i o n thereby f i g u r e which would have p r e v a i l e d i n the absence of  r e a c h i n g an award compulsory  a r b i t r a t i o n by the use of f r e e c o l l e c t i v e b a r g a i n i n g . become concerned s o l e l y w i t h q u e s t i o n s of The term " n o r m a t i v e " a r b i t r a t i o n t o impose a " j u s t "  Many  arbitrators  comparability.  d e s c r i b e s attempts by  arbitrators  s o l u t i o n on the p a r t i e s , t a k i n g i n t o account  the  m e r i t s of the case r a t h e r than economic powers of the p a r t i e s or the a c c e p t a b i l i t y of the terms to both s i d e s .  "Accommodative"  arbitration  r e s u l t s i n an award which embodies s u b s t a n t i a l l y the terms which the p a r t i e s themselves would have r e a c h e d , b e a r i n g i n mind t h e i r strengths.  The main o b j e c t i v e  of accommodative a r b i t r a t i o n  bargaining i s to  find  something c l o s e t o a m u t u a l l y a c c e p t a b l e s o l u t i o n ; the award i s a pragmatic attempt to r e s o l v e the d i s p u t e , t o a v o i d a s t r i k e or t o induce a r e t u r n t o Not a l l  work.  1 4 5  academics are i n agreement t h a t c r i t e r i a are a necessary  part of the a r b i t r a t i o n p r o c e s s . purpose of c o n t r a c t  arbitration  One c r i t i c has argued t h a t the  chief  i s t o r e s o l v e a b a s i c and urgent  d i s p u t e c o n c e r n i n g t h e terms of a f u t u r e  relationship,  r a t h e r than t o  -  105 -  " o f f e r c l e a r guides f o r f u t u r e a r b i t r a t i o n are some s i t u a t i o n s  i n which o b j e c t i v e  decision".  He a s s e r t s  standards are not e v i d e n t ,  the f a c t the a r b i t r a t o r was not p r o v i d e d w i t h s a t i s f a c t o r y d e m o n s t r a t e , he d e c i d e d c o r r e c t l y e x e r c i s e sound judgment  there and  criteria  to  does not mean t h a t he f a i l e d t o  - or r a t i o n a l i t y .  Others argue  1 4 6  t h e r e are l i m i t s t o be p l a c e d on t h e use of  criteria:  that  1 4 7  I b e l i e v e t h e r e are l i m i t a t i o n s t o p r o v i d i n g a r a t i o n a l e f o r the money d e c i s i o n . C l e a r l y t h e a r b i t r a t i o n board should s p e c i f y t h a t mandatory c r i t e r i a have been c o n s i d e r e d when such are p a r t of the l e g i s l a t i v e mandate. Indeed, i t i s not unreasonable t o i n d i c a t e t h e . s t r o n g e r f a c t o r s at work i n shaping t h e b o a r d ' s d e c i s i o n . Beyond t h a t p o i n t , a n a l y s i s i s foolhardy. The exact outcome i s a complex d e t e r m i n a t i o n r e p r e s e n t i n g a mire of customary c r i t e r i a plus t r a d e - o f f s of c o n t r a c t u a l components made i n the e x e c u t i v e s e s s i o n . D e t a i l e d a n a l y s i s , t h e n , i s extremely d i f f i c u l t . Further, i t can be c o u n t e r p r o d u c t i v e . D e t a i l i n g of t h e t r a d e - o f f s can r e s u l t i n honourable p o s t i o n s becoming ammunition f o r p o l i t i c a l a t t a c k s on one or both p a r t i e s . It i s important f o r a r b i t r a t i o n boards and t h e c o u r t s t o r e c o g n i z e the d i s t i n c t i o n between adherence t o c r i t e r i a and the p o t e n t i a l damage of over e x p o s i t i o n . Most w r i t e r s  seem to be of the o p i n i o n , however,  d e s i r a b l e , and t h a t they should f u l f i l the a r b i t r a t i o n  that c r i t e r i a  two key f u n c t i o n s :  board t o come t o the " c o r r e c t "  result;  (1)  and (2)  are allow assist  the p a r t i e s i n m a r s h a l l i n g the a p p r o p r i a t e evidence and p r e s e n t i n g their  case. The January  Bulletin  1 4 8  1974 t o November 1983 i s s u e s of the Labour Research  c o n t a i n summaries of 87 i n t e r e s t  arbitrations  r e s o l v i n g a term or terms of c o l l e c t i v e agreements between  employers  and t r a d e unions s u b j e c t to the Labour Code of B r i t i s h C o l u m b i a . t h e s e summaries only those awards were s e l e c t e d , f o r t h i s  study,  From which  -  106 -  dealt with bargaining disputes in essential service i n d u s t r i e s . awards so chosen f a l l (a)  The  i n t o three separate c a t e g o r i e s :  a r b i t r a t i o n awards pursuant t o agreement of the i n c l u d i n g terms of the c o l l e c t i v e agreement  parties,  (voluntary  arbitrations), (b)  a r b i t r a t i o n awards pursuant t o s e c t i o n 73 of the Labour Code (section  (c)  73 a w a r d s ) , and  a r b i t r a t i o n awards pursuant t o s e c t i o n 6 of the E s s e n t i a l S e r v i c e D i s p u t e s Act ( E s s e n t i a l  S e r v i c e D i s p u t e s Act  awards).  Summaries of t h e r e a s o n i n g found i n the awards examined are mentioned i n an attempt t o p r o v i d e an overview of the g e n e r a l  criteria  which have been r e l i e d upon by B r i t i s h Columbia a r b i t r a t o r s .  A number  of awards d e c i d e d the q u e s t i o n of wages almost e x c l u s i v e l y of comparison w i t h o t h e r employer-employee r e l a t i o n s h i p s *  on the b a s i s and  4 9  t h e r e was l i t t l e or no a n a l y s i s of t h e a p p r o p r i a t e c r i t e r i a .  For many  non-monetary i s s u e s , the reasons f o r an award depended upon f a c t o r s unique t o the p a r t i e s  (i)  involved.  A r b i t r a t i o n Awards Pursuant t o Agreement of the P a r t i e s . Vancouver (Blair)  P o l i c e Board and Vancouver P o l i c e m e n ' s Union !  The a r b i t r a t o r made h i s recommendation i n r e s p e c t of wages l i g h t of a l l  ".  in  . . of t h e evidence brought forward and the s u b m i s s i o n s  made by those r e p r e s e n t i n g the n e g o t i a t i o n s , i n c l u d i n g the  final  - 107 -  p o s i t i o n s taken by each on the m a t t e r of r e m u n e r a t i o n " and i n the of  light  this: The t a s k c o n f r o n t i n g the a r b i t r a t o r i s by no means an easy one. In making recommendation on wages, he must g i v e c o g n i z a n c e t o the f a c t t h a t the P r o v i n c e of B r i t i s h Columbia i s p r e s e n t l y p a s s i n g through a somewhat d i f f i c u l t economic s i t u a t i o n and t h a t l a r g e segments of the p r o v i n c e ' s p r i v a t e s e c t o r are e x p e r i e n c i n g poor m a r k e t s , f a l l i n g e a r n i n g s , l a y o f f s and shutdowns. At the same t i m e , the a r b i t r a t o r has a l s o t o be m i n d f u l of what has been happening t o our c o s t of l i v i n g f o r some time now - a matter of i n c r e a s i n g l y s e r i o u s consequence t o a very l a r g e segment of our s o c i e t y . The h i g h e s t i n Vancouver of any Canadian c i t y , and i t seems t h a t the end t o t h i s unhappy s i t u a t i o n i s not y e t i n s i g h t . In a d d i t i o n , the a r b i t r a t o r must bear i n mind the t r e n d and p a t t e r n of wage s e t t l e m e n t s i n t h i s area i n both the p r i v a t e and t h e p u b l i c s e c t o r and he must a l s o t a k e a look at what has been happening i n t h i s r e s p e c t t h i s y e a r t o p o l i c e f o r c e s not o n l y i n B r i t i s h C o l u m b i a , but elsewhere i n Canada as wel 1 . W h i l e l o o k i n g at these v a r i o u s a s p e c t s of t o d a y ' s s i t u a t i o n , one has a l s o , i n the a r b i t r a t o r ' s v i e w , t o keep b e f o r e him the p r i n c i p l e of m a i n t a i n i n g the Vancouver p o l i c e f o r c e where i t r i g h t f u l l y b e l o n g s , namely, on the top l e v e l among Canada's p o l i c e f o r c e s i n terms of wages, f r i n g e b e n e f i t s and working c o n d i t i o n s . Vancouver has a f i r s t r a t e p o l i c e f o r c e charged w i t h p o l i c i n g , as we have p o i n t e d o u t , an area t h a t might even be termed a d i f f i c u l t one. I t i s e s s e n t i a l , t h e r e f o r e , t h a t by a l l r e a s o n a b l e means a v a i l a b l e t o u s , the morale of t h a t f o r c e must be m a i n t a i n e d at a high l e v e l . Moreover, V a n c o u v e r ' s p o l i c e f o r c e has b e e n , and s t i l l i s , expanding and must a t t r a c t to i t , and keep w i t h i t , men of the high c a l i b r e r e q u i r e d today t o p r o p e r l y and c r e d i t a b l y f i l l the r o l e of p o l i c e m e n . To do the t h i n g s of which we s p e a k , Vancouver must be prepared t o o f f e r i t s p o l i c e wages and w o r k i n g c o n d i t i o n s w h i c h , by a l l r e a s o n a b l e s t a n d a r d s , can be termed a t t r a c t i v e . And remember, when d e f i n i n g what i s meant by " a t t r a c t i v e " mixed b l e s s i n g though i t may be c o n s i d e r e d i n the eyes of some people - i t must be r e c o g n i z e d , t o s t a r t w i t h , t h a t we i n Vancouver operate i n a high wage a r e a , (pp 7 - 8 )  -  108 -  B r i t i s h Columbia Railway and T e a m s t e r s , Local 213 et a l . (Shime) The a r b i t r a t o r an economic e v e n t .  noted t h a t i n t e r e s t a r b i t r a t i o n i s i n many r e s p e c t s Thus, s u b m i s s i o n s t o a board of a r b i t r a t i o n  present as f a c t s , c a r e f u l l y a n a l y z e d economic d a t a .  should  However, w h i l e  . . . t h e r e are some who b e l i e v e t h a t economic data have a c e r t a i n t y that w i l l u l t i m a t e l y lead to a s o l u t i o n , i t i s obvious t h a t economic f a c t s may prove t o be as e l u s i v e as o r d i n a r y f a c t s and as d i f f i c u l t t o a s s e s s . O f t e n economic f a c t s may p o i n t t o o p p o s i t e c o n c l u s i o n s a n d , t h e r e f o r e , they s h o u l d be c a r e f u l l y m a r s h a l l e d , ( p . 4) In the a r b i t r a t o r ' s  opinion, interest  s l e i g h t of hand p r o c e s s " .  a r b i t r a t i o n should not be "a  W h i l e reasons may be d i f f i c u l t , they are  necessary t o enable t h e p a r t i e s t o understand the b a s i s f o r d e c i s i o n . C r i t e r i a were then enumerated i n summary form ( p . 1.  5):  P u b l i c s e c t o r employees s h o u l d not be r e q u i r e d t o  subsidize  the community by a c c e p t i n g substandard wages and working conditions 2.  Cost of  living  3.  Productivity  4.  Comparisons (a)  Internal  (b)  External i  i n the same i n d u s t r y  ii  not i n the same i n d u s t r y ,  but s i m i l a r work  What f o l l o w e d i n the a r b i t r a t o r ' s  r e p o r t was an e x h a u s t i v e  of t h e s e i n d i v i d u a l  5-24).  criteria  (pp.  elaboration  - 109 -  The f i r s t  p r o p o s i t i o n c i t e d by the a r b i t r a t o r  r e l a t e d t o the  argument s u b m i t t e d by the employer t h a t the r a i l w a y was o p e r a t i n g at a loss.  M r . Shime r e j e c t e d t h i s c o n t e n t i o n and s t a t e d t h a t the  of the i n d u s t r y at a l o s s does not j u s t i f y substandard wages.  employees  operation  receiving  The community which r e q u i r e s the s e r v i c e s  should  s h o u l d e r the f i n a n c i a l l o s s and not expect the employees t o bear an u n f a i r burden by a c c e p t i n g i n f e r i o r c o n d i t i o n s .  In t h i s  regard he  stated: "Once i t i s accepted t h a t the p u b l i c s e c t o r employer does not operate w i t h a view t o p r o f i t and once accepted t h a t i t may a l s o o p e r a t e at a l o s s , i t becomes c l e a r t h a t i t may not have the n e c e s s a r y resources r e q u i r e d t o pay the employees. It must g a i n t h i s f i n a n c i a l support through the t a x i n g power whether d i r e c t l y or i n d i r e c t l y . In almost a l l c a s e s , the f i n a n c i a l means are a v a i l a b l e through t a x a t i o n , and more t o the p o i n t , q u i t e o f t e n t h e d i f f e r e n c e s between the union and t h e employer are such t h a t i f t a x e s were i n c r e a s e d , the f i n a n c i a l burden c o u l d be r e a d i l y borne by each member of t h e community b e a r i n g h i s or her p r o p o r t i o n a t e share of the c o s t . Thus, each member of the community should bear h i s or her share of t h e r e q u i r e d p u b l i c s e r v i c e w i t h o u t the n e c e s s i t y of the employees b e a r i n g the u n f a i r burden of substandard wages or working c o n d i t i o n s . " M r . Shime then went on t o deal w i t h the c o s t of l i v i n g First,  increases.  he s t a t e d t h a t t h e r e i s no p r o o f t h a t a r b i t r a t i o n awards  aggravate a r i s i n g c o s t of l i v i n g and " t h e r e i s s u f f i c i e n t t h a t the n e c e s s i t y t o r e a d j u s t wages i s a r e s u l t o f , cost o f ,  increased l i v i n g c o s t s " .  evidence  r a t h e r than the  He s t a t e d :  " . . . Thus, most a r b i t a t o r s have given c o n s i d e r a t i o n t o t h i s f a c t o r as a response t o t h e economy and have adopted t h e position that a p a r t i c u l a r a r b i t r a t i o n involving a l i m i t e d number of employees i s not the p l a c e t o r e g u l a t e the n a t i o n a l or p r o v i n c i a l economy. The a r b i t r a t i o n process as an i n s t i t u t i o n i s not equipped t o be a r e g u l a t o r of t h e economy. That f u n c t i o n i s p r o p e r l y t h e r o l e of P a r l i a m e n t or the L e g i s l a t u r e a d o p t i n g n e c e s s a r y f i s c a l or monetary policies."  - 110 He emphasized t h a t  i n a s s e s s i n g the c o s t of l i v i n g f a c t o r ,  arbitrators  s h o u l d t a k e i n t o account a l l i n c r e a s e s i n c o m p e n s a t i o n s , such as  fringe  b e n e f i t s , and not o n l y wages: "A c o n s i d e r a t i o n of t h e c o s t of l i v i n g s t a n d a r d must t a k e i n t o c o n s i d e r a t i o n not o n l y wages, but b e n e f i t s from a l l s o u r c e s , i n c l u d i n g increments and improvements i n working c o n d i t i o n s and f r i n g e b e n e f i t s . An i n c r e a s e i n employer c o n t r i b u t i o n s t o a medical p l a n would f r e e o t h e r f i n a n c i a l r e s o u r c e s i n the hand of the employee t o combat i n f l a t i o n . M o r e o v e r , gains i n working c o n d i t i o n s such as r e d u c t i o n s i n hours of work are a c o s t t o t h e employer and a b e n e f i t t o t h e employee and are m a t t e r s t h a t must be e v a l u a t e d when c o n s i d e r i n g c o s t of l i v i n g . " He d i s c u s s e d t h e p r o d u c t i v i t y a p p l y i n the p u b l i c s e r v i c e .  f a c t o r s and whether they  should  He concluded t h a t p r o d u c t i v i t y  increases  should be shared by p u b l i c s e r v a n t s even though no s p e c i f i c measurement can be made of growth as i n p r i v a t e s e r v i c e .  However, i n t h i s  regard  he noted t h a t a u t o m a t i c increments s h o u l d be c o n s i d e r e d when t a k i n g i n t o account p r o d u c t i v i t y  or cost of  living.  F i a n l l y , t h e award proceeded t o deal w i t h c e r t a i n c o m p a r a t i v e wage data i n a s s e s s i n g the v a l i d i t y of a c l a i m .  The a r b i t r a t o r  stated that  boards of a r b i t r a t i o n should c o n s i d e r : 1)  Wages p a i d i n s i m i l a r c l a s s i f i c a t i o n s or "bench mark" jobs the e m p l o y e r ;  2)  Wages i n j o b s i n the same i n d u s t r y . In t h i s r e g a r d , the a r b i t a t o r noted t h a t t h e economic s i t u a t i o n i n B r i t i s h Columbia had t o be taken i n t o a c c o u n t ;  3)  Wages and c o n d i t i o n s i n s i m i l a r jobs i n t h e p r i v a t e In t h i s regard the a r b i t r a t o r s a i d :  of  sector.  " A r b i t r a t i o n of i n t e r e s t d i s p u t e s i n t h e p u b l i c s e c t o r i s a s u b s t i t u t e f o r f r e e c o l l e c t i v e b a r g a i n i n g and some a t t e n t i o n must be p a i d t o what might have e v o l v e d had t h e p a r t i e s had the o p p o r t u n i t y t o engage i n t h a t p r o c e s s . If t h e p a r t i e s know t h i s i n advance i t may encourage them t o r e s o l v e t h e i r own d i f f e r e n c e s , and at the very l e a s t the  - Ill f r e e c o l l e c t i v e b a r g a i n i n g s i t u a t i o n s p r o v i d e some objective basis for assessing a p a r t i c u l a r d i s p u t e . " The a r b i t r a t o r  concluded h i s a n a l y s i s of c r i t e r i a w i t h  these  remarks: In c o n c l u s i o n , I am of the view t h a t these c r i t e r i a may be used i n whole or i n part i n i n t e r e s t d i s p u t e s and t h a t v a r y i n g weight may be given t o each of the c r i t e r i a as the i n d i v i d u a l s i t u a t i o n demands. The c r i t e r i a s h o u l d enable a form of a d j u d i c a t i o n based on a more s c i e n t i f i c a n a l y s i s and should a l s o permit the p a r t i e s t o p r o p e r l y prepare f o r i n t e r e s t a r b i t r a t i o n , ( p . 25)  Vancouver (Larson)'  P o l i c e Board and Vancouver  At the o u t s e t , the a r b i t r a t o r arbitration  P o l i c e m e n ' s Union  commented on the n a t u r e of the  process:  B i n d i n g a r b i t r a t i o n can work i n t h i s c o n t e x t o n l y i f i t does not p r e j u d i c e t h e policmen i n r e l a t i o n to other g r o u p s . It must r e s u l t i n a r e a l i z a t i o n of t h e i r l e g i t i m a t e e x p e c t a tions. At t h e same t i m e , t h o s e s u b j e c t t o a r b i t r a t i o n must r e a l i z e t h a t not every e x p e c t a t i o n can be r e a l i z e d . There w i l l always be u n s a t i s f i e d demands. The t o u c h s t o n e i s a s t a b l e r e l a t i o n s h i p with other r e l a t e d bargaining groups. Out of one a r b i t r a t i o n , r e l a t i v e improvement may be r e a l i z e d and y e t i n a n o t h e r , one may not f a r e as w e l l . It i s only over t h e long run t h a t a judgment can be made as t o the e f f i c a c y of the p r o c e s s . A l l i n a l l , i t i s t o be remembered t h a t whatever g a i n s , however modest or g r e a t , t h e s e have been a c h i e v e d w i t h o u t a stoppage of work or i n t e r r u p t i o n of service. In i t s mechanical a s p e c t s , a r b i t r a t i o n i n v o l v e s an e x e r c i s e of judgment by the a r b i t r a t o r as t o what t h e p a r t i e s are prepared t o a c c e p t . He i s s k i l l e d to the e x t e n t t h a t he i s able to discern a v i a b l e s o l u t i o n . In some cases t h a t s o l u t i o n may be seen by t h e p a r t i e s and y e t they may f i n d themselves i n such a p o s i t i o n as t o be unable t o a g r e e . N e g o t i a t i o n s cannot work under those c i r c u m s t a n c e s . A r b i t r a t i o n may be the only path t o r e s o l u t i o n s i n c e t h e p a r t i e s are r e l i e v e d of the r e s p o n s i b i l i t y of the c h o i c e . T h i s may be such an a r b i t r a t i o n , ( p . 4)  - 112 In t h i s c o n t e x t , the a r b i t r a t o r made a judgment as t o s e t t l e m e n t which he f e l t would "be workable f o r t h e time b e i n g " ( p .  5).  In  e s t a b l i s h i n g a s a l a r y l e v e l , the a r b i t r a t o r had regard t o t h e f a c t  that  Vancouver C i t y P o l i c e had i n 1975 enjoyed the h i g h e s t s a l a r i e s of any p o l i c e f o r c e i n Canada; t o the c o s t of l i v i n g ; t o recent  increases  achieved by o t h e r p o l i c e f o r c e s i n Canada; t o the A . I . B .  guidelines;  and t o o t h e r employment g r o u p s , i n c l u d i n g t e a c h e r s , w o r k e r s , l a b o u r e r s and Vancouver c i t y  construction  employees.  B r i t i s h Columbia Railway and U n i t e d T r a n s p o r t a t i o n (McKee)  Union  The i s s u e b e f o r e the a r b i t r a t o r was a demand by t h e union daily overtime.  for  The p r a c t i c e f o r s i m i l a r employees i n the r e s t of the  i n d u s t r y was e x a m i n e d . standard p r a c t i c e .  In none of t h e cases was the u n i o n ' s request a  The a r b i t r a t o r , t h e r e f o r e ,  stated  No t h i r d p a r t y , even someone w i t h a long background i n the i n d u s t r y s h o u l d , i n my o p i n i o n , impose the d r a s t i c changes i n the c o l l e c t i v e agreement demanded by the p r o p o s a l s of each p a r t y . . . such d e t a i l e d changes i n content and s t r u c t u r e of a c o l l e c t i v e agreement can o n l y come by n e g o t i a t i o n , not by i m p o s i t i o n by a t h i r d p a r t y , (pp. 17-18) E a r l i e r i n h i s award the a r b i t r a t o r the a r b i t r a t i o n  had c o n s i d e r e d t h e nature of  process:  There are very few g u i d e l i n e s f o r the " i n t e r e s t "  arbitrator.  U s u a l l y t h e " i n t e r e s t " a r b i t r a t o r i s faced w i t h r u l i n g on d i f f e r e n c e s i n a small but i m p o r t a n t number of working c o n d i t i o n s which the p a r t i e s have been unable t o r e s o l v e but do not wish t o s e t t l e by s t r i k e . W h i l e i t i s not always p o s s i b l e , sound l a b o u r r e l a t i o n s demand t h a t the award imposed by an " i n t e r e s t " a r b i t r a t o r s h o u l d have some modicum of a c c e p t a b i l i t y t o both p a r t i e s ,  - 113 -  and be a c h i e v e d w i t h as l i t t l e d i s t u r b a n c e t o t h e i r agreement as p o s s i b l e .  basic  S u r e l y , t h e most b a s i c are t h a t the a r b i t r a t o r s i n making an award do so (a) c o n s t r u c t i v e l y - an award t h a t the p a r t i e s can l i v e w i t h or by n e g o t i a t i o n adapt (b)  i n m a i n t a i n i n g sound l a b o u r r e l a t i o n s - an award t h a t does not damage the ongoing r e l a t i o n s h i p  (c)  with  responsibility  i  t o t h e p a r t i e s i n t h a t he does not abuse the power granted t o him and does not impose on them s o l u t i o n s t h a t can generate not o n l y s e r i o u s immediate problems but a l s o endanger t h e i r ongoing r e l a t i o n s h i p and so p l a c e i n j e o p a r d y the s e r v i c e p o r v i d e d by any such organization.  ii  t o enable the p a r t i e s t o have f u l l a c c e s s t o h i m , and h i s t h i n k i n g , p r i o r t o t h e f i n a l i z a t i o n of t h e award such t h a t the award i s not made i n a "vacuum" and thus cause the p a r t i e s t o l o s e a l l f a i t h i n t h i r d p a r t y i n t e r v e n t i o n as one way of impasse r e s o l u t i o n . The best method of r e s o l u t i o n i s by the p a r t i e s . However, a l t h o u g h one may d e p l o r e the tendency t o l e t someone e l s e t a k e t h e r e s p o n s i b i l i t y i n t h o s e s e r v i c e s upon which the p u b l i c i s so dependant, the t r e n d i s i n c r e a s i n g l y toward t h i r d p a r t y i n t e r v e n t i o n t o r e s o l v e , or help r e s o l v e p r o b l e m s . It i s t h e r e f o r e mandatory t h a t the c r e d i b i l i t y of t h i r d p a r t y i n t e r v e n t i o n not be t a r n i s h e d by the i m p o s i t i o n of a s o l u t i o n j u s t f o r t h e sake of making a decision, (pp. 1 5 - 1 6 )  ii  A r b i t r a t i o n Awards Pursuant t o S e c t i o n 73 of the Labour Code.  V i c t o r i a P o l i c e m e n ' s Union and C i t y of V i c t o r i a  (Barclay):  In d e c i d i n g t h e i s s u e of s a l a r y s c a l e , the a r b i t r a t o r  had regard  t o the c o s t of l i v i n g , the consumer p r i c e i n d e x , and the d u t i e s of a V i c t o r i a policeman as compared t o those of policemen i n a nearby municipality.  It was a l s o s t a t e d :  - 114 -  I t i s apparent t h a t V i c t o r i a has an e x c e l l e n t p o l i c e f o r c e and i t i s i m p o r t a n t t h a t i t s e f f e c t i v e n e s s and morale be m a i n t a i n e d at a high l e v e l . The crime r a t e w i t h i n t h e c i t y i s i n c r e a s i n g and i t w i l l be necessary t o a t t r a c t t o t h e f o r c e men of high c a l i b r e r e q u i r e d today t o p r o p e r l y f i l l t h e r o l e of policemen. Certainly in today's society public a t t i t u d e s do not make a p o l i c e m a n ' s t a s k an easy one. I b e l i e v e the V i c t o r i a P o l i c e Board, r e c o g n i z i n g t h e s e f a c t o r s , d e c i d e d they had l i t t l e a l t e r n a t i v e but t o s e t t l e on t h e l e a s e s of t h e S a a n i c h agreement a l t h o u g h they were aware i t was a most generous one. (p. 5) Richmond P r i v a t e H o s p i t a l and H o s p i t a l Employee's U n i o n , L o c a l 180 (Weiler) The Board was a p p o i n t e d t o set the terms and c o n d i t i o n s of first  the  c o l l e c t i v e agreement between t h e p a r t i e s , who had f a i l e d t o  agreement on some 140 m a t t e r s .  reach  The p r i n c i p l e s e l u c i d a t e d i n two  O n t a r i o a r b i t r a t i o n s were a d o p t e d . P r o f e s s o r s A r t h u r s and W e i l e r b e l i e v e t h a t a r b i t r a t i o n was i n t e n d e d t o be an a d j u d i c a t i v e mode of d e c i s i o n m a k i n g , i n v o l v i n g  the  a p p l i c a t i o n of accepted n a t i o n a l s t a n d a r d s t o d i s p o s e o f f t h e i s s u e s t o be r e s o l v e d .  The d i f f i c u l t y which t h i s a d j u d i c a t i v e model of  a r b i t r a t i o n e x p e r i e n c e s i s t o determine t h e a p p r o p r i a t e c r i t e r i a  or  standards. An a r b i t r a t o r s h o u l d not look t o n o t i o n s of s o c i a l j u s t i c e s e t t i n g t h e terms and c o n d i t i o n s of a c o l l e c t i v e agreement.  For  example, i n s e t t i n g the wage s c a l e s , an a r b i t r a t o r s h o u l d not what i s a f a i r wage f o r c e r t a i n k i n d s of work.  in  consider  There i s no i n d i c a t i o n  i n t h e Labour Code t h a t j u s t i c e i s t o r e p l a c e t h e law of supply and demand as t h e p r i c i n g mechanism f o r wages i n t h e h o s p i t a l  industry.  T h i s p r i n c i p l e i s e x p r e s s e d i n Wei l a n d County General H o s p i t a l a t p. 5 . "No doubt such standards as a j u s t wage are based  - 115 upon p r a i s e w o r t h y moral c o n c e p t s , but they are s i m p l y not r e l e v a n t i n modern c o l l e c t i v e b a r g a i n i n g where wage gains are won by economic power. C o n s i d e r a t i o n s of " j u s t i c e " are not only i r r e l e v a n t , they are s i m p l y too vague t o outweigh the more p r e c i s e c r i t e r i a of c o m p a r a t i v e r a t e s as a f a c t o r i n s e t t i n g new c o n t r a c t t e r m s . " I n t e r e s t - d i s p u t e a r b i t r a t i o n under s e c t i o n 73 of the Labour Code i s i n t e n d e d t o p r o v i d e a p r o c e d u r a l s u b s t i t u t e f o r s t r i k i n g w i t h i n a p r o c e s s of f r e e c o l l e c t i v e b a r g a i n i n g . An a r b i t r a t o r must look at l a b o u r market r e a l i t i e s , i . e . , the r e l a t i v e economic and b a r g a i n i n g p o s i t i o n s of the p a r t i e s , i n a t t e m p t i n g t o s i m u l a t e the agreement which c o u l d have been reached by the p a r t i e s under t h e s a n c t i o n of a s t r i k e or l o c k o u t . The best e v i d e n c e of t h i s h y p o t h e t i c a l agreement i s the p a t t e r n of development i n o t h e r comparable h o s p i t a l s i n the community, e s p e c i a l l y those c o l l e c t i v e agreements v o l u n t a r i l y concluded, (p. 2) In answer t o the q u e s t i o n "which are t h e  'comparable' h o s p i t a l s i n  the c o n t e n t ? " , the Board was s a t i s f i e d on the e v i d e n c e t h a t  t h e r e was  at l e a s t a presumption t h a t t h e p r i v a t e h o s p i t a l s were the  relevant  comparable i n s t i t u t i o n s .  The union d i d not r e f u t e t h i s  presumption.  The Board a c c e p t s the overwhelming e v i d e n c e at the h e a r i n g t o the e f f e c t t h a t the revenues t h a t pay t h e o p e r a t i n g expenses of t h e s e p r i v a t e f a c i l i t i e s c o n s t i t u t e a mere f r a c t i o n of the amount t h a t funds their public counterparts. Without going i n t o e x c e s s i v e d e t a i l as t o the mechanisms i n v o v l e d i n t h i s f u n d i n g p r o c e s s , the Board i s s a t i s f i e d t h e r e i s a huge d i s c r e p a n c y i n the a b i l i t y t o pay t h e c o s t of c o l l e c t i v e agreements. The i s s u e as t o who i s r e s p o n s i b l e f o r t h i s phenomena i s i r r e l e v a n t f o r purposes of d e t e r m i n i n g which h o s p i t a l c o l l e c t i v e agreement - p r i v a t e o r p u b l i c are t h e a p p r o p r i a t e or "comparable" i n s t i t u t i o n s t h a t t h i s Board must examine i n o r d e r t o s i m u l a t e the agreement t h a t the p a r t i e s t o t h i s a r b i t r a t i o n would have concluded had they r e s o r t e d t o t h e i r economic s a n c t i o n i n s t e a d of u s i n g the a r b i t r a t i o n system a v a i l a b l e under s e c t i o n 73 of the Labour Code. (p. 3) Wherever p o s s i b l e , the Board c o n s i d e r e d the b a r g a i n i n g p o s i t i o n the p a r t i e s t o s e t c l a u s e s of the agreement.  Where t h e r e was no  of  - 116 -  e v i d e n c e whatsoever of w i l l i n g n e s s t o a g r e e , t h e comparable agreements were r e f e r r e d  collective  to.  Glen P r i v a t e H o s p i t a l L t d . and Canadian Union of P u b l i c Employees, L o c a l Union 1 7 3 1 , (Thompson) The Board c o n s i d e r e d a d j u d i c a t i v e t h e o r y which " h o l d s t h a t a d e c i s i o n be based on r a t i o n a l , a c c e p t e d c r i t e r i a , p r i n c i p a l l y s e t t l e m e n t s a r r i v e d at i n t h e same i n d u s t r y " ;  and, adjustment,  other which  " r e s o l v e s a d i s p u t e i n which t h e members of t h e a r b i t r a t i o n board agree on a compromise p o s t i i o n a c c e p t a b l e t o both p a r t i e s " ,  (p.  3)  " w i t h i t s r e f e r e n c e t o " o b j e c t i v e " or " r a t i o n a l " s t a n d a r d s , t h e a d j u d i c a t i v e t h e o r y i s an a p p e a l i n g one t o an a r b i t r a t i o n b o a r d , s e e k i n g a b a s i s f o r i t s d e c i s i o n s . U n f o r t u n a t e l y , the theory i s a d i f f i c u l t one t o implement i n any c i r c u m s t a n c e s . One problem i s t h e s e l e c t i o n of c r i t e r i a o r s t a n d a r d s on which t o base a d e c i s i o n . The sources c i t e d r e j e c t a b s t r a c t n o t i o n s of s o c i a l j u s t i c e i n f a v o u r of agreements f r e e l y n e g o t i a t e d e l s e w h e r e . However, c o l l e c t i v e agreements even i n t h e same i n d u s t r y , c o n t a i n many c l a u s e s i n t e r r e l a t e d i n t h e i r impact on t h e p a r t i e s as w e l l as b e i n g t h e r e s u l t of t r a d e - o f f s by the p a r t i e s d u r i n g n e g o t i a t i o n s , a phenomenon sometimes c a l l e d " p o l y c e n t r i c i t y " . To i d e n t i f y a s m a l l number of c l a u s e s as t h e bases f o r comparison o v e r l o o k s t h i s f a c t . Another problem i s t h e s e l e c t i o n of agreements f o r c o m p a r i s o n . Ontario h o s p i t a l s may be s u f f i c i e n t l y homogenous t o permit comparisons by a r b i t r a t o r s s e e k i n g d e c i s i o n criteria. I f s o , such a s i t u a t i o n i s f a r from common. M o r e o v e r , can an a r b i t r a t i o n board r e l y on the r e s u l t s of " f r e e c o l l e c t i v e b a r g a i n i n g " i n a s i t u a t i o n where v i r t u a l l y a l l employer revenues come from government? On b a l a n c e , a d j u d i c a t i o n i s s u i t a b l e f o r a s m a l l c l a s s of d i s p u t e s . " It  was a s s u r e d , t h a t , when a r b i t r a t i o n t a k e s p l a c e i n  segments o r f i r m s w i t h o u t  a substantial history  of  industry  collective  b a r g a i n i n g , or where meaningful comparisons are p r e c l u d e d , an arbitration  board cannot a d j u d i c a t e t h e d i f f e r e n c e s between t h e  - 117 -  parties:  "It  may a d j u s t t h e s e d i f f e r e n c e s or attempt i n some t o  r e p l i c a t e t h e p r o b a b l e outcome of c o l l e c t i v e b a r g a i n i n g , t h e r e are few, i f decision". dispute,  any,  realizing  ' r a t i o n a l ' s t a n d a r d s on which t o base i t s  The Board t h e r e f o r e  " t r i e d t o a d j u s t " the matters  in  s t a t i n g i t s c r i t e r i a on each i s s u e .  On the i s s u e of wages, t h e Board heard e x t e n s i v e evidence of t h e i n a b i l i t y of t h e employer t o pay more than a minimal i n c r e a s e , due t o t h e low l e v e l of f u n d i n g p r o v i d e d by the p r o v i n c i a l private  government t o a l l  hospitals. The f i r s t p r i n c i p l e u n d e r l y i n g t h e B o a r d ' s d e c i s i o n i n t h i s case i s a d e s i r e not t o see the h o s p i t a l close. A l t h o u g h i t i s a marginal o p e r a t i o n e c o n o m i c a l l y , i t p r o v i d e s an e s s e n t i a l s e r v i c e t o the community. We read s e c t i o n 73 of t h e Labour Code t o a f f o r d the b e n e f i t s of a r b i t r a t i o n t o employees i n c e r t a i n i n d u s t r i e s w h i l e p r o t e c t i n g t h e p u b l i c ( i n t h i s case t h e p a t i e n t s and t h e i r f a m i l i e s ) a g a i n s t i n t e r r u p t i o n of an e s s e n t i a l service. We would be t h w a r t i n g the i n t e n t of t h i s p r o v i s i o n i f we knowingly caused the demise of the hospital. Moreover i f t h e employees had wished t o c l o s e t h e h o s p i t a l , at l e a s t t e m p o r a r i l y , they had t h e o p t i o n of doing so through a s t r i k e , ( p . 5)  At t h e same t i m e , t h e Board was anxious t o s e c u r e f o r t h e employees at l e a s t minimal p r o t e c t i o n a g a i n s t i n c r e a s e d l i v i n g  costs.  A s a l a r y s c a l e was d e v i s e d which t h e Board b e l i e v e d would permit the hospital to operate. P o l i c e Board of t h e D i s t r i c t of S a a n i c h and S a a n i c h P o l i c e Association  (Stewart):  The a r b i t r a t o r d i d not c o n s i d e r as c o n c l u s i v e , t h e argument of parity: My award w i l l have more emphasis on t h e a b i l i t y of a community t o pay i t s employees or t o p r o v i d e s e r v i c e s which t h e p u b l i c r e q u i r e s and on p r o d u c t i v i t y and a t t i t u d e which I b e l i e v e t o be f a r  - 118 -  more e f f e c t i v e and r e a l i s t i c a b a s i s of wage s e t t l e m e n t than on p a r i t y by i t s e l f . It i s c l e a r t h a t I do not b e l i e v e a f i r s t c l a s s c o n s t a b l e i n S a a n i c h s h o u l d be p a i d l e s s than h i s V i c t o r i a c o u n t e r p a r t , (p. 5) In a r r i v i n g at h i s award, t h e a r b i t r a t o r took i n t o account t h e s e factors:  (pp.  8-9):  1.  Historical employer  r e l a t i o n s h i p w i t h employees of the same  2.  The p u b l i c i n t e r e s t t o be served by making t h e award r e l e v a n t t o t h e community i n v o l v e d and t h e need t o make t h e process work. The words of D a l t o n Larson i n t h e Vancouver Award of September 2 7 , 1976 at p. 4 are r e l e v a n t : " B i n d i n g a r b i t r a t i o n can work i n t h i s c o n t e x t only i f i t does not p r e j u d i c e t h e policemen i n r e l a t i o n to other groups. I t must r e s u l t i n a r e a l i z a t i o n of t h e i r legitimate expectations. At the same t i m e t h o s e s u b j e c t t o a r b i t r a t i o n must r e a l i z e t h a t not every e x p e c t a t i o n can be r e a l i z e d . There w i l l always be u n s a t i s f i e d demands. The t o u c h s t o n e i s a stable r e l a t i o n s h i p with other related bargaining g r o u p s . Out of one a r b i t r a t i o n r e l a t i v e improvement may be r e a l i z e d and y e t i n another one may not f a r e as w e l l . I t i s o n l y over t h e long run t h a t a judgment can be made as t o t h e e f f i c i e n c y of the p r o c e s s . A l l i n a l l i t i s t o be remembered t h a t whatever g a i n s , however modest or g r e a t , t h e s e have been a c h i e v e d w i t h o u t a stoppage of work or i n t e r r u p t i o n of s e r v i c e . "  3.  The c l e a r u n c o n t r a d i c t e d e v i d e n c e of e f f c i e n c y , high m o r a l e , p r i d e , e x c e l l e n t community r e c o r d , l e a d e r s h i p i n development of p o l i c e methods and s t a n d a r d s , i n s h o r t , e x c e l l e n c e and proper work a t t i t u d e p l a c i n g them second t o none i n B r i t i s h Columbia.  4.  The f a c t , t h e s e employees d i d not slow down, withdraw s e r v i c e s , impede performance or adopt common methods of i n f l u e n c i n g t h e b a r g a i n i n g relationship.  5.  The f a c t , e a r l y i n n e g o t i a t i o n s t h e s e employees e l e c t e d t o s e t t l e by n e g o t i a t i o n or a r b i t r a t i o n without r e s o r t i n g to s t r i k e .  other  - 119 -  6.  T h i s award must r e f e r t o wage s e t t l e m e n t only and not r e f l e c t my o p i n i o n of t h e p o s i t i o n of the p a r t i e s throughout the n e g o t i a t i o n s .  Kiwanis Senior C i t i z e n s '  Homes L t d . and H o s p i t a l Employees  Union,  L o c a l 180 ( B i r d ) The employer was a n o n - p r o f i t ,  long-term care f a c i l i t y .  c h a r a c t e r i z e d by t h e Board as a p u b l i c i n s t i t u t i o n . " a b i l i t y t o pay" and "budget"  It  Therefore,  c o n s i d e r a t i o n s d i d not weigh  heavily.  Alhtough t h e a f f e c t s of a h i g h e r award were s i m p l y unknown, t h a t not act as a major i n h i b i t o r  (p.  13).  In r e s e p c t of  was  appropriate  c r i t e r i a i t was s a i d : . . . T h e Board c o n s i d e r e d t h e approach t a k e n i n s i m i l a r c i r c u m s t a n c e s by P r o f e s s o r W e i l e r i n h i s award i n Richmond P r i v a t e H o s p i t a l and H o s p i t a l Employees U n i o n , L o c a l 1 8 0 , Dec. 3 1 , 1975, wherein he c a u t i o n e d a g a i n s t t r y i n g t o apply n o t i o n s of what i s a f a i r wage f o r c e r t a i n k i n d s of work i n f o r m u l a t i n g a c o l l e c t i v e agreement by a r b i t r a t i o n and had regard t o l a b o u r market r e a l i t i e s , i . e . , t h e r e l a t i v e economic and b a r g a i n i n g p o s i t i o n s of the p a r t i e s , in attempting to simulate the agreement which c o u l d have been reached by t h e p a r t i e s under t h e s a n c t i o n of s t r i k e or l o c k o u t . P r o f e s s o r W e i l e r s t a t e d i n h i s award i n Richmond P r i v a t e H o s p i t a l , p. 2 : "The best e v i d e n c e of t h i s h y p o t h e t i c a l agreement i s the p a t t e r n of development i n o t h e r comparable h o s p i t a l s i n the community, e s p e c i a l l y t h o s e c o l l e c t i v e agreements v o l u n t a r i l y c o n c l u d e d . " We do not r e j e c t c o n s i d e r a t i o n of what would be a f a i r wage. However, market r e a l i t i e s d i s c o v e r e d by examining what agreements have been concluded under s i m i l a r c i r c u m s t a n c e s t o t h o s e at K i w a n i s are t h e main g u i d e ; " f a i r n e s s " i s a c o n s i d e r a t i o n as are t h e " c o s t of l i v i n g " and the s p e c i a l problems t o t h e employer i n c l u d i n g the u n c e r t a i n s t a t e of f i n a n c i a l support by t h e Government. Perhaps even growth i n t h e gross n a t i o n a l product c o u l d p r o p e r l y be c o n s i d e r e d . . .  did  - 120 -  To f i n d t h e p a t t e r n of c o l l e c t i v e agreements i n o t h e r comparable i n s t i t u t i o n s i n the community, e s p e c i a l l y those v o l u n t a r i l y c o n c l u d e d , i s t h e t a s k P r o f e s s o r W e i l e r s e t f o r h i m s e l f and we s e t f o r ourselves. In o r d e r t o do so we must know t h e c h a r a c t e r i s t i c s of the s u b j e c t i n s t i t u t i o n and i d e n t i f y t h e community b e f o r e we t r y t o f i n d comparable i n s t i t u t i o n s . We would waste our t i m e s e e k i n g an i d e n t i c a l i n s t i t u t i o n . Each i s u n i q u e . C o m p a r a b i l i t y i s a matter of d e g r e e , (pp. 1 3 - 1 4 ) iii  A r b i r a t i o n Awards Pursuant t o S e c t i o n 6 of t h e E s s e n t i a l Service Disputes Act  The E s s e n t i a l S e r v i c e D i s p u t e s A c t p r o v i d e d f o r t h e f i r s t B r i t i s h Columbia s t a t u t o r y r e g a r d i n making an award.  c r i t e r i a t o which a r b i t r a t o r s  shall  have  The c r i t e r i a are i n s e c t i o n 7 of t h e A c t :  7(1) In an a r b i t r a t i o n under t h i s A c t , the s i n g l e a r b i t r a t o r or t h e a r b i t r a t i o n board s h a l l have regard to (a) t h e i n t e r e s t s of t h e p u b l i c ; (b)  time i n  t h e terms and c o n d i t i o n s of employment i n s i m i l a r o c c u p a t i o n s o u t s i d e the e m p l o y e r ' s employment, i n c l u d i n g such g e o g r a p h i c , i n d u s t r i a l , or o t h e r v a r i a t i o n s as t h e s i n g l e a r b i t r a t o r or a r b i t r a t i o n board c o n s i d e r s relevant;  (c)  t h e need t o m a i n t a i n a p p r o p r i a t e r e l a t i o n s h i p s i n t h e terms and c o n d i t i o n s of employment as between d i f f e r e n t c l a s s i f i c a t i o n l e v e l s w i t h i n an o c c u p a t i o n and as between o c c u p a t i o n s i n t h e e m p l o y e r ' s employment;  (d)  t h e need t o e s t a b l i s h terms and c o n d i t i o n s of employment t h a t are f a i r and r e a s o n a b l e i n r e l a t i o n t o the q u a l i f i c a t i o n s r e q u i r e d , the work p e r f o r m e d , the r e s p o n s i b i l i t y assumed and t h e n a t u r e of t h e s e r v i c e s r e n d e r e d ; and  (e)  any o t h e r f a c t o r t h a t t h e s i n g l e a r b i t r a t o r or t h e a r b i t r a t i o n board c o n s i d e r s r e l e v a n t t o t h e matter i n d i s p u t e .  - 121 -  All  boards of a r b i t r a t i o n a p p o i n t e d pursuant t o t h e E s s e n t i a l  S e r v i c e D i s p u t e s A c t have of n e c e s s i t y c o n s i d e r e d and i n t e r p r e t e d statutory  guidelines  i n making t h e i r  awards.  the  1 5 0  H e a l t h Labour R e l a t i o n s A s s o c i a t i o n and R e g i s t e r e d Nurses A s s o c i a t i o n of B r i t i s h Columbia ( S t e w a r t ) T h i s award r e s u t l e d from t h e f i r s t Essential Service Disputes A c t .  a r b i t r a t i o n conducted  The Board d i d not e l a b o r a t e at  l e n g t h upon t h e c r i t e r i a , nor was t h e s a l a r y i n c r e a s e justified.  under great  specifically  A general d i s c u s s i o n of s e c t i o n 7 was i n c l u d e d at t h e end  of the d e c i s i o n .  In regard t o t h e p u b l i c i n t e r e s t  i t was s a i d :  The i n t e r e s t s of the p u b l i c must not be c o n s t r u e d i n a narrow c o n t e x t t o mean t h a t t h e p u b l i c i s only concerned w i t h a system f o r e f f e c t i v e c o l l e c t i v e b a r g a i n i n g f o r t h e purposes of t h e p a r t i e s themselves. I t i s c l e a r t h a t the e x p r e s s i o n of i n t e r e s t of t h e p u b l i c embraces not only t h e c o n t i n u a t i o n of work and employment but a l s o t h e s o c i a l and economic r e s u l t s of s e t t l e m e n t (p. 58) Thus, a l t h o u g h t h e i n t e r e s t  of t h e p u b l i c r e q u i r e s t h a t  work  stoppages be a v o i d e d , t h i s goal i s not t o be a c h i e v e d "at any  cost".  The s e t t l e m e n t between t h e p a r t i e s must be f a i r , and t h e impact on t h e p u b l i c must be a p p r o p r i a t e ,  r e a s o n a b l e and j u s t .  (p.  60)  The Board a l s o compared wage l e v e l s i n o t h e r components w i t h i n industry.  D i f f e r e n c e s on a p r o v i n c i a l  recognized. appropriate.  It  and g e o g r a p h i c a l  b a s i s were  i s d i f f i c u l t t o a s c e r t a i n t h e s t a n d a r d deemed  The h i g h e s t comparable wage was c l e a r y  rejected:  . . . L o o k i n g at a l l agreements, and on b a l a n c e , we have not seen f i t t o make major adjustments i n the p r e s e n t c o n t r a c t . I t i s not i n t h e i n t e r e s t s of the p u b l i c t h a t superb s e l e c t agreements n e g o t i a t e d w i t h i n t h e i n d u s t r y between a group of employees and t h e i r employer s h o u l d be c o p i e d merely t o a l l o w t h e p r i n c i p l e of " h i g h e s t common denominator" t o  the  - 122 -  prevail. (p. 59) The i n t e r n a l  A b a l a n c e has been sought i n t h i s award, " p e c k i n g o r d e r " was an i m p o r t a n t f a c t o r and t h i s  c o n c l u s i o n l e d t o i n c l u s i o n of a p r o v i s i o n f o r r e - o p e n i n g the  contract  i f a l a t e r wage i n c r e a s e t o lower p a i d employees d i s t u r b e d h i s t o r i c a l i n t e r n a l comparisons. H e a l t h Labour R e l a t i o n s A s s o c i a t i o n and H o s p i t a l Employees Union (Hope) The award s e t t l e d t h e c o l l e c t i v e agreement between t h e h e a l t h c a r e workers and the general h o s p i t a l s i n t h e p r o v i n c e .  The Board gave  e x t e n s i v e c o n s i d e r a t i o n t o the p r i n c i p l e s g o v e r n i n g  interest  arbitration.  In r e l a t i o n t o c r i t e r i a , a great deal of t i m e was spent  d i s c u s s i n g t h e p a r t i e s p r o p o s a l s i n terms of the p u b l i c  interest.  A s i d e from the f a c t t h a t both p a r t i e s agreed t h a t t h e p u b l i c  interest  was served by preventng d i s r u p t i o n s i n e s s e n t i a l s e r v i c e s , t h e r e was l i t t l e consensus between them.  The e m p l o y e r ' s arguments  economic c o n d i t i o n s and a b i l i t y t o pay were  regarding  rejected:  The c o m b a t t i n g of i n f l a t i o n and r e s t r u c t u r i n g of p u b l i c s e c t o r spending are matters t h a t remain t o be r e s o l v e d i n t h e p u b l i c domain. I t would r e q u i r e express language i n t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t t o impose t h a t j u r i s d i c t i o n upon t h i s B o a r d . The a b i l i t y of t h e p u b l i c t o pay wages t o h o s p i t a l workers i s a f a c t o r t o be c o n s i d e r e d but i t i s a f a c t o r t h a t measures i t s e l f i n a c o n s i d e r a t i o n of p r e v a i l i n g wages and w o r k i n g c o n d i t i o n s r a t h e r than i n an e x t e r n a l or c o l l a t e r a l c o n s i d e r a t i o n of the s t a t e of t h e economy, (p. 32) It  was s a i d t h a t t h e u s e f u l n e s s of i n t e r e s t a r b i t r a t i o n i n t h e  p u b l i c s e c t o r l i e s i n t h e a b i l i t y of the p r o c e s s t o s u c c e s s f u l l y s u b o r d i n a t e t h e r i g h t s of e s s e n t i a l s e r v i c e employees t o t h e r i g h t s t h e general p u b l i c .  T h i s s u b o r d i n a t i o n s h o u l d i d e a l l y guarantee t o  of  - 123 -  employees a r e s u l t t h a t a u t h e n t i c a t e s a r b i t r a t i o n as an e q u i t a b l e s u b s t i t u t e f o r the c o l l e c t i v e bargaining process.  T h u s , t h e r e was an  o b l i g a t i o n on t h e Board t o demonstrate a f a i r and e q u i t a b l e  result.  The o b l i g a t i o n t o demonstrate a f a i r and e q u i t a b l e r e s u l t does not a r i s e so much as p a r t of t h e c r i t e r i a i n an i n t e r e s t a r b i t r a t i o n as i t a r i s e s as a means of e v a l u a t i n g t h e a p p l i c a t i o n of the c r i t e r i a (pp. 2 7 - 2 8 ) In d e t e r m i n i n g a f a i r and e q u i t a b l e wage l e v e l  the Board s t a t e d :  . . . t h a t the best i n d i c a t o r of f a i r wages and w o r k i n g c o n d i t i o n s i n any aspect of t h e p u b l i c s e c t o r i s wages and wok r i n g c o n d i t i o n s enjoyed by persons employed i n s i m i l a r or comparable jobs i n t h e p u b l i c s e c t o r where t h o s e wages and w o r k i n g c o n d i t i o n s have been e s t a b l i s h e d through t h e t r a d i t i o n a l c o l l e c t i v e b a r g a i n i n g mechanisms, ( p . Thus t h e wages and w o r k i n g c o n d i t i o n s enjoyed by h e a l t h components of t h e p r o v i n c i a l  government were c o n s i d e r e d t o r e f l e c t a  f a i r and e q u i t a b l e b a s i s f o r t h e d e t e r m i n a t i o n of wages ( p . e s p e c i a l l y as i n both cases t h e p r o v i n c i a l employer ( p .  care  government  9),  i s the u l t i m a t e  30).  The Board d i d n o t ,  however,  p a r i t y w i t h the p u b l i c s e r v i c e .  accept the u n i o n ' s  s u b m i s s i o n of  The concept of " p a r i t y " was  as b e i n g t o o s i m p l i s t i c i n f a v o u r of t h e term  rejected  "comparability":  I t i s q u i t e p o s s i b l e w i t h i n t h e concept " c o m p a r a b i l i t y " to achieve a r e s u l t that acknowledges and r e f l e c t s both the d i f f e r e n c e s and t h e s i m i l a r i t i e s between t h e two groups, (p. 9) H e a l t h Labour R e l a t i o n s A s s o c i a t i o n and H e a l t h S c i e n c e s A s s o c i a t i o n of B r i t i s h Columbia ( L a r s o n ) At the b e g i n n i n g of the d e c i s i o n , t h e Board sought t o d e f i n e i n t e r e s t of t h e p u b l i c " , and a number of p r e v i o u s l y  asserted  "the  - 124 f o r m u l a t i o n s of the p u b l i c i n t e r e s t were c a n v a s s e d . c o n c l u d e d , however,  The Board  that  . . . t h e consequence i s t h a t except i n terms of a general d i f f e r e n c e t o the concept of p u b l i c i n t e r e s t , t h e primary focus of an a r b i t r a t i o n board must be market r e a l i t y . That i s why the l e g i s l a t u r e has s t i p u l a t e d c l a u s e s ( b ) , (c) and (d) of s e c t i o n 7 of t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t which c a l l p r i m a r i l y f o r i n t e r n a l and e x t e r n a l c o m p a r i s o n s . Under c l a u s e (e) a board would p r o p e r l y c o n s i d e r such t h i n g s as i n c r e a s e s i n the l o c a l c o s t of l i v i n g , i n c r e a s e d p r o d u c t i v i t y and economic c o n d i t i o n s g e n e r a l l y . It  was noted t h a t t h e E s s e n t i a l S e r v i c e D i s p u t e s Act does  not  i n d i c a t e which comparisons must be given t h e g r e a t e s t w e i g h t . Board d e c i d e d t h a t t h e r e l e v a n t  f a c t o r s had not been arranged  d e s c e n d i n g o r d e r of i m p o r t a n c e . clauses  (b)  and (c)  effect,  "competitive",  It  was a l s o r e c o g n i z e d  The in  that  of s e c t i o n 7 might i n some c i r c u m s t a n c e s be i n (p.  8)  The r e s o l u t i o n of t h i s seeming conundrum i s t h a t t h e f a c t o r s set out i n s e c t i o n 7 of the E s s e n t i a l S e r v i c e D i s p u t e s A c t are not m u t u a l l y exc I us i v e . Regard i s t o be had t o a l l t h e comparisons stipulated. In so d o i n g we have determined t h a t g r e a t weight must be given t o terms and c o n d i t i o n s of employment i n t h e government s e r v i c e s i n c e i t i s a b a s i s f o r s i g n i f i c a n t r e l a t i v e comparison w i t h i n the province. This i s p a r t i c u l a r l y true where, as h e r e , t h e terms and c o n d i t i o n s of employment w i t h i n t h e government s e r v i c e l e a d t h e p r i v a t e s e c t o r , ( p . 9) Ladner P r i v a t e H o s p i t a l e t a l and H o s p i t a l Employees Union  (Owen-  Flood) The f i r s t  award of the B o a r d , e s t a b l i s h i n g terms of  between t h e union and s e v e r a l  employment  " p r i v a t e " h o s p i t a l s , was reviewed by the  Supreme C o u r t on a p p l i c a t i o n of t h e employer.  In a very s h o r t  judgment  - 125 -  t h e Board was d i r e c t e d t o " r e c o n s i d e r , determine and c l a r i f y " decision.  its  The r e a s o n i n g noted here i s from the " r e c o n s i d e r e d " award.  The Board f e l t t h a t t h e i n t e r e s t of t h e p u b l i c i s a r e l e v a n t d o u b l e - e d g e sword f o r t h e s e r e a s o n s : (i)  The common weal of the p u b l i c good m i l i t a t e s a g a i n s t any award t h a t w i l l unduly f u r t h e r burden t h e a l r e a d y b e l e a g u r e d economy. Such awards are self defeating.  (ii)  On t h e o t h e r hand, t h e p u b l i c i n t e r e s t  requires:  " . . . t h a t t h e s e t t l e m e n t between t h e p a r t i e s i s f a i r and t h a t t h e impact of t h a t s e t t l e m e n t on t h e p u b l i c i s a p p r o p r i a t e , r e a s o n a b l e and j u s t . . . " (pp. 6 - 7 ) In a p p l y i n g t h e " f a i r and r e a s o n a b l e " c r i t e r i a , t h e Board l o o k e d at t h e history  of wages i n the p r i v a t e h o s p i t a l s , and found they had  t r a d i t i o n a l l y been below t h o s e i n t h e p u b l i c s e c t o r . towards p a r i t y ,  A gradual  trend  however, was d i s c e r n e d .  "While t h e r e i s no rhyme or reason i n p a r i t y f o r t h e sake of p a r i t y , t h e r e i s a d e f i n i t e b e n e f i t t o t h e p u b l i c i n an award which r e c o g n i z e s t h a t the e v e n t u a l aim s h o u l d be towards equal pay f o r equal work... . . . t h i s Board f i n d s t h a t both t h e p r i v a t e h o s p i t a l s and t h e employees would b e n e f i t i n an award which seeks t o r e c o g n i z e t h e aim of eventual p a r i t y or c o m p a r a b i l i t y but not i n s t a n t p a r i t y and g i v e s , as t h i s award d o e s , i n c r e a s e s which are phased so t h a t t h e p a r t i e s can make t h e necessary adjustments t o p r o v i d e f o r t h o s e i n c r e a s e s ( p . 8)  "...  Under s e c t i o n 7(1) (e) t h e Board c o n s i d e r e d another f a c t o r  that  the award must be one which s e r v e s the p r a g m a t i c needs of  both  sides"  (p.  12)  R e g i s t e r e d Nurses A s s o c i a t i o n of B r i t i s h Columbia and Government of B r i t i s h Columbia  (Maclntyre)  - 126 -  At t h e b e g i n n i n g of i t s award t h e Board examined i n some d e t a i l interpretations  of t h e s t a t u t o r y  c r i t e r i a in four previous  awards.  then proceeded t o apply t h e c r i t e r i a t o t h e d i s p u t e b e f o r e i t . s t a n d a r d was d i s c u s s e d g e n e r a l l y  It  Each  and then s p e c i f i c a l l y i n r e l a t i o n  t h e matters i n i s s u e , f o c u s i n g mainly on monetary c o n c e r n s .  The  p a r t of t h e B o a r d ' s r e a s o n i n g under each heading has been o m i t t e d here. (a)  The i n t e r e s t of the p u b l i c . T h i s i s not a particularly helpful c r i t e r i o n . There i s an argument t h a t t h e p u b l i c , as t a x p a y e r s , s h o u l d not be burdened w i t h e x c e s s i v e wage payments t o government employees, and a f u r t h e r argument t h a t such e x c e s s i v e wage payments w i l l f u r t h e r i n c r e a s e i n f l a t i o n i n t h e general economy. On the o t h e r hand, t h e r e i s t h e argument t h a t the n u r s e s ' wages are l o w , given t h e i r s k i l l s and t r a i n i n g r e l a t i v e t o o t h e r p e r s o n s , whether i n t h e p u b l i c or p r i v a t e s e c t o r , and t h e f u r t h e r argument t h a t t h e p u b l i c i s b e t t e r served by c o n t e n t e d r a t h e r than d i s c o n t e n t e d employees. A l l of t h e s e are v a l i d arguments but they do not p o i n t t o a p a r t i c u l a r wage r a t e .  (b)  E x t e r n a l comparisons - or what we w i l l term "horizontal equity". T h i s c r i t e r i o n suggests t h a t nurses i n the government s e r v i c e s h o u l d r e c e i v e remuneration and o t h e r b e n e f i t s or c o n d i t i o n s which are comparable and r e l a t i v e l y equal t o nurses doing much the same s o r t of work i n o t h e r s e r v i c e s . Presumably comparisons w i t h o t h e r B r i t i s h Columbia nurses would be t h e most a p p r o p r i a t e , but n u r s e s ' a b s o l u t e and r e l a t i v e p o s i t i o n s i n o t h e r p r o v i n c e s may have some r e l e v a n c e , ( p . 9)  (c)  I n t e r n a l comparisons - or what we w i l l c a l l "vertical equity". This c r i t e r i o n i s r e l a t e d to the concept t h a t w i t h i n the w o r k p l a c e of the same e m p l o y e r , t h e r e i s a " p e c k i n g o r d e r " of s k i l l s , t r a i n i n g , and e x p e r i e n c e , both w i t h i n each b a r g a i n i n g u n i t and as between v a r i o u s b a r g a i n i n g u n i t s (or even non - b a r g a i n i n g p e r s o n s ) . These r e l a t i v e o r d e r s can u s u a l l y be e x p l a i n e d p a r t l y i n terms of p r i n c i p l e , p a r t l y i n terms of b a r g a i n i n g s t r e n g t h , p a r t l y i n terms of h i s t o r y , and p a r t l y i n terms of f o r t u i t i o u s e v e n t s , of which the A n t i i n f l a t i o n g u i d e l i n e s are the most obvious example.  to  latter  - 127 -  Whatever t h e i r j u s t i f i c a t i o n t h e d i s t i n c t i o n s loom l a r g e i n importance t o t h o s e who work i n c l o s e a s s o c i a t i o n and small d i f f e r e n c e s i n pay or o t h e r b e n e f i t s (such as hours or v a c a t i o n s ) may have c o n s i d e r a b l e i n f l u e n c e on employees m o r a l e . . . ( p . 10) The B o a r d ' s o p i n i o n was t h a t i t was not r e q u i r e d t o internal  correct  a n o m a l i e s , but n o n e t h e l e s s i t c o u l d not be b l i n d t o  historical  r e l a t i o n s h i p s and was r e q u i r e d by s t a t u t e t o c o n s i d e r them. (d)  " F a i r and r e a s o n a b l e wages". One m u c h - d i s c u s s e d concept which might f i n d a p l a c e under t h i s c r i t e r i o n i s " a b i l i t y to pay". T h i s concept i s d i f f i c u l t t o apply t o p u b l i c s e c t o r b a r g a i n i n g . In t h e s h o r t r u n , of c o u r s e , t h e government can pay. I t has t h e powers of t a x a t i o n and of r e d i s t r i b u t i o n . I t i s not s u b j e c t t o c o m p e t i t i o n . Its decisions, though f i n a n c i a l i n appearance, w i l l be m o t i v a t e d as w e l l by p o l i t i c a l c o n s i d e r a t i o n s . Second-guessing t h e " f r e e market" form of c o l l e c t i v e b a r g a i n i n g i n a f o r c e d or o p t i o n a l a r b i t r a t i o n system becomes more than a r t i f i c i a l . The r e l a t i v e l y s e c u r e p u b l i c s e r v i c e has — e s p e c i a l l y i n t h i s s e c t o r - - become l e s s s e c u r e . There i s a tendency t o compensate f o r t h e d e p r i v a t i o n of c u r t a i l m e n t of t h e r i g h t t o s t r i k e ; t h e r e i s a c o u n t e r v a i l i n g tendency t o r e s i s t t h e p o l i t i c a l p r e s s u r e of an " e s s e n t i a l " s e r v i c e . I t i s not s u r p r i s i n g t h a t t h e p u b l i c s e c t o r b a r g a i n i n g has been more c l o s e l y l i n k e d t o t h e i n f l a t i o n r a t e ; i t i s a v i s i b l e and c o n s i s t e n t s t a n d a r d i n a sea of v a r i a b l e s . . . ( p . 12)  The union p l a c e d c o n s i d e r a b l e r e l i a n c e upon t h e i n f l a t i o n r a t e as a minimum s t a n d a r d of s e t t l e m e n t ; t h e Board took t h e s e arguments consideration (p.  "...  as of c o n s i d e r a b l e , i f  into  not c o m p e l l i n g s i g n i f i c a n c e " .  12). Under the heading of  "other relevant  f a c t o r s " t h e Board d i s c u s s e d  t h e q u e s t i o n s of delay and b e n e f i t of h i n d s i g h t . these f a c t o r s  relevant,  regard them.  It  the Board was not e n t i r e l y  While i t  considered  sure how i t  c o n c l u d e d , w i t h some d i f f i d e n c e , t h a t i t  "...  should must  c o n s i d e r t h e d e l a y f a c t o r and make some attempt t o compensate f o r not n e c e s s a r i l y w i t h mathematical e x a c t i t u d e " ,  ( p . 15)  it,  The Board a l s o  - 128 -  concluded that i t b e g i n n i n g of t h e 4.  might c o n s i d e r events which had occured s i n c e t h e contract.  Comments on the  Criteria  The most obvious q u e s t i o n which a r i s e s i s whether or not  the  enactment of s e c t i o n 7(1) of t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t has had any e f f e c t on i n t e r e s t be yes and n o .  arbitration  Generally,  under s e c t i o n 7 ( 1 ) ,  in B r i t i s h Columbia.  in f u l f i l l i n g their  arbitrators  significantly  The answer can  l e g i s l a t i v e mandate base t h e i r award on t h e  f a c t o r s c o n t a i n e d i n the l e g i s l a t i o n and e x p l a i n t h e e f f e c t which t h e c r i t e r i a had on t h e i r u l t i m a t e d e c i s i o n . t o see any s i g n i f i c a n t ,  Beyond t h i s ,  it  is  diffiuclt  s u b s t a n t i a l changes which have been brought  about by t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t .  The c r i t e r i a  contained  t h e r e i n had been r e l i e d upon by B r i t i s h Columbia a r b i t r a t o r s 1977.  The c r i t e r i a were: t h e p u b l i c i n t e r e s t ;  c o l l e c t i v e agreements, p r e f e r a b l y  freely  prior  comparison w i t h  to  other  n e g o t i a t e d ; some i n t e r n a l  c o m p a r i s o n s ; l a b o u r market r e a l i t i e s and t h e need t o e s t a b l i s h r e a l i s t i c and " f a i r " s a l a r y l e v e l s ; economic and market f a c t o r s , i n c l u d i n g changes i n t h e c o s t of l i v i n g and t h e p r o j e c t e d r a t e  of  i n f l a t i o n ; and t h e e f f i c i e n c y and morale of t h e b a r g a i n i n g u n i t . list  roughly p a r a l l e l s the p r o v i s i o n s  of paragraphs  (a) t o  s u b s e c t i o n 7(1) of t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t . the s t a t u t o r y  provisions  for interest  arbitrators.  t h a t the i n q u i r y  in  The e f f e c t  has been t h e c r e a t i o n of a u s e f u l  of  "checklist"  The c r i t e r i a ensure t h a t a board of  a r b i t r a t i o n w i l l t u r n i t s mind t o t h e p u b l i c i n t e r e s t , c o m p a r i s o n s , and so o n .  (e)  This  At t h e same t i m e , however,  is virtually  open-ended,  i.e.,  appropriate  paragraph  any f a c t o r  not  (e)  means  - 129 -  s p e c i f i c a l l y contemplated as r e l e v a n t " r e g a r d e d " by t h e a r b i t r a t o r . priority  by the l e g i s l a t u r e may be  As p o i n t e d out i n the awards, no  need be g i v e n t o any p a r t i c u l a r c r i t e r i o n .  t h a t , a l t h o u g h t h e r e are o s t e n s i b l y o b j e c t i v e  The r e s u l t  is  statutory  criteria,  a r b i t r a t i o n i n B r i t i s h Columbia remains a f l e x i b l e and  subjective  process.  This observation  is further  unanymity among a r b i t r a t o r s a c t u a l l y be i n t e r p r e t e d problematic.151 different  p  a r  r e i n f o r c e d by the l a c k of  as t o how t h e s t a t u t o r y  - the  "public interest"  t of t h e u n c e r t a i n t y  is  guidelines  should  especially  no doubt r e s u l t s  from  c h a r a c t e r i s t i c s as t o the very n a t u r e and purpose  of  arbitration. In many d e c i s i o n s , one gets the f e e l i n g t h a t t h e c r i t e r i a have not been e s p e c i a l l y h e l p f u l .  There i s l i t t l e attempt by t h e a r b i t r a t o r s  to  examine each f a c t o r i n r e l a t i o n t o each aspect of the award.  (Indeed  t h i s may n e i t h e r be f e a s i b l e nor p r a c t i c a l ) .  criteria  A n a l y s i s of the  i s u s u a l l y i s o l a t e d e i t h e r at the b e g i n n i n g or at t h e end of t h e report.  Express  r e a s o n i n g f o r a p a r t i c u l a r term of t h e  attempted only i n t h e case of wages. of c o n j e c t u r e . "objective"  It  is relatively  This brings to the f o r e a point  easy t o c o n c e p t u a l i z e how t r a d i t i o n a l ,  c r i t e r i a might be r e l e v a n t  salary levels.  It  collective  t o the e s t a b l i s h m e n t of wage and  i s more d i f f i c u l t t o imagine how t h e s e c r i t e r i a  d i c t a t e a s e t t l e m e n t of non-monetary  terms of a c o n t r a c t .  Yet,  section  7 i s a p p l i c a b l e t o a l l u n r e s o v l e d i s s u e s which go t o a r b i t r a t i o n . H a l l has a l l u d e d t o t h i s  difficulty:  1 5 2  when t h e ( c o l l e c t i v e b a r g a i n i n g system c o l l a p e s i n t o t o t a l disagreement, I think i t highly u n l i k e l y t h a t an a r b i t r a t o r w i l l be s u c c e s s f u l i n f i n d i n g one o r two c r i t e r i a by which he can p u l l t h e whole  can  Noel  - 130 r e l a t i o n s h i p back i n t o p e r s p e c t i v e and some degree of b a l a n c e . Most d i s p u t e s t h a t end up w i t h imposed b i n d i n g a r b i t r a t i o n a r e , i n may e x p e r i e n c e , one i n which e f f e c t i v e r e l a t i o n s h i p s have t o t a l l y collapsed. In t h o s e c i r c u m s t a n c e s t h e a r b i t r a t o r must use a wide range of e x p e r i e n c e and I suppose, i n s i g h t from many d i f f e r e n t p e r s p e c t i v e s i f he i s t o r e s t o r e some r e a s o n a b l e b a l a n c e t o t h e c o l l e c t i v e agreement and t h e b a r g a i n i n g relationship. He must of n e c e s s i t y t r y t o f i n d an accomodation t h a t may have a l l u d e d the d i r e c t e f f o r t s of t h e p a r t i e s . While few of t h e a r b i t r a t i o n s r e l a t i o n s h i p s which had " t o t a l l y  examined i n t h i s study  invovled  c o l l a p s e d " , the i n c r e a s i n g  incidence  of disagreement between p a r t i e s u s i n g a r b i t r a t i o n has meant t h a t arbitrators shift  are b e i n g asked t o r u l e on c o n d i t i o n s of employment such as  r o t a t i o n , s u b s t i t u t i o n procedures,  e v a l u a t i o n programs.  e d u c a t i o n committees and j o b  O u t s i d e of e x t e r n a l  comparisons i t  t o see how predetermined c r i t e r i a can be very u s e f u l . negotiation i s a highly sensitive process, trade-offs.  full,  is  difficult  Contract  of s u b t l e nuances and  Where non-monetary terms of a c o l l e c t i v e agreement must be  s e t t l e d by a r b i t r a t i o n  ( a g a i n , the p r e f e r a n c e i s t h a t t h e  parties  themselves r e s o l v e t h e s e terms) a very f l e x i b l e approach must be a d o p t e d , r e c o g n i z i n g t h e requirement of t h e i n d i v i d u a l  employer and  union. The c o n c l u s i o n , t h a t l e g i s l a t i v e c r i t e r i a s i m i l a r t o t h o s e s e c t i o n 7 of t h e E s s e n t i a l S e r v i c e D i s p u t e s A c t do not i n f l u e n c e t h e outcome of a r b i t r a t i o n , study*  5 3  statutory  i s not u n i q u e .  significantly In an American  comparable d e c i s i o n s under M i c h i g a n law (which criteria)  provisions)  in  provides  and under P e n n s y l v a n i a law (which c o n t a i n s no such  were i n v e s t i g a t e d .  Some of t h e c o n c l u s i o n s  reached were:  - 131 -  1.  Generally, the Michigan statute made little impact upon the informal evolution of a body of "common law" in arbitration of protective service disputes. 154  2.  There was no evidence which pointed to the conclusion that the contending parties were any more satisfied with decision rendered under the Michigan law with its criteria section than they were under the Pennsylvania law. 155  3.  The listing of criteria in a statute appeared to make no difference in the final resolution of a dispute. 156  Two explanations for this result are plausible, both of which are evident in British Columbia. The first is that experienced arbitrators automatically rely on criteria similar to those prescribed by the legislature.  The second explanation is that wage and salary levels are  set by some arbitrators primarily on an intuitive basis, and their award is not appreciably affected by the presence or absence of permissive guidelines.  Criteria are therefore interpreted not to  assist in reaching a decision, but to justify an already determined result.  In some arbitrators reports an express or readily implied  objective was to fashion an award satisfactory to the parties. Once the arbitrator has discerned the "satisfactory award", appropriate characterization of the criteria becomes one method of promoting acceptance, and explaining the result to the parties.  Whether or not  this second explanation is a correct interpretation of the decisionmaking process, i t is clear that criteria, used to date in British Columbia arbitrations do not afford certainty of result.  - 132 -  5.  Concluding remarks on interest arbitration vis-a-vis free collective bargaining  A major, challenging question is how to prevent strikes by essential service employees without denying them the right to organize and bargain collectively. It would be unfair to place upon the legal machinery sole responsibility for these interruptions of critical services on which life, health and welfare of the citizens depends. There is raised with increasing frequency the suggestion that the proper technique for resolution of impasses in employment relations dealing with essential services is some third-party determination where an outsider to the dispute is given ultimate authority to fix the terms of employment. Most commonly this takes the form of a proposal for arbitration.  Critics reject arbitration for two reasons. First, they  think i t is probably an illegal delegation of the authority of a public agency. Second, they feel i t would encourage disputants to resort constantly to arbitration instead of themselves assuming the responsibility of decision making. But proposals for arbitration persist.  Moreover, they do succeed in framing the issue properly, for  the question seems to be whether there is a viable alternative to collective bargaining for the effective resolution of disputes in essential services, and arbitration in one form or another is the only logical, if not practical, alternative.  It does provide, partly in  theory and partly in practice, for a "final" resolution of conflicts when an impasse is reached. The neutral third party is designated the final decision maker. The impartial adjudicator hears both sides and makes a decision.  Arbitration should not be confused with fact  - 133 -  finding, mediation, or any other form of third-party procedure that does not result in a final decision. In arbitration, the standard of determination can and should be the equity of the claim, whereas in fact finding with recommendations, the standard has to be the acceptability of the recommendations. The arbitrator's decision is final.  Since there is no appeal from the decision, the uncertainty may  encourage voluntary agreement. Each party runs a risk, so there may in fact be more incentive to agree than is the case when a board makes recommendations which can be turned down. While arbitration can be a legal and feasible method of settling disputes in certain situations, i t does face serious legal obstacles. There are many issues which are proper subjects of bargaining, but which no agency of government can legally submit for decision to a third party. Arbitration will be effective only if viewed as a last resort after other steps have failed and the dispute has reached a stage where the issues remaining unresolved have been sharply narrowed and can be stated within specific bounds. Framing the issues properly, and providing some standards for determination, i f only, the limits of the arbitrator's authority is essential i f arbitration is to be of any use. The absence of standards of reference makes arbitration of issues involving wages and other terms of a contract fraught with difficulty. When bargaining has framed the issue with precision, then arbitration may be possible. To enable the board of arbitration to function, the outer limits of the award must effecitvely be prescribed by the law imposing arbitration.  - 134 -  All  s a i d and done about a r b i t r a t i o n  wise c o n c l u s i o n i s that i t It  in the e s s e n t i a l s e r v i c e s ,  i s n e i t h e r l e g a l l y nor p r a c t i c a l l y  a  feasible.  would be a great m i s t a k e t o adopt t h i s procedure as t h e u s u a l method  p r e s c r i b e d i n advance f o r a l l d i s p u t e s i n t h e e x p e c t a t i o n t h a t i t s i g n a l an end t o l a b o u r s t r i f e  in the e s s e n t i a l  services.  True c o l l e c t i v e b a r g a i n i n g must be adhered t o , even though must i n c l u d e the p o s s i b i l i t y  of a s t r i k e .  t h e b a r g a i n i n g p r o c e s s and t h e s k i l l strikes.  It  must be sought t o  this improve  of the n e g o t i a t o r s t o prevent  For i n t h e e n d , t h e s o l u t i o n t o t h e wide range of  problems i n e s s e n t i a l s e r v i c e s  would  labour  i n v o l v i n g t h e many a s p e c t s of a dynamic  and c o m p l i c a t e d human r e l a t i o n s h i p must depend on t h e human f a c t o r . The most e l a b o r a t e machinery i s no b e t t e r than t h e people who man i t . It  cannot f u n c t i o n a u t o m a t i c a l l y .  negotiations,  With s k i l l f u l  and r e s p o n s i b l e  no m a c h i n e r y , no o u t s i d e r s , and no f i x e d r u l e s are needed  to s e t t l e disputes.  Authors and academics have f o c u s e d a t t e n t i o n on  mechanics and p e n a l t i e s r a t h e r than on t h e p a r t i c i p a n t s and t h e process.  It  i s time t o change t h a t , t o seek t o prevent s t r i k e s by  e n c o u r a g i n g t r u e c o l l e c t i v e b a r g a i n i n g t o the f u l l e s t e x t e n t p o s s i b l e . For t h e s t r i k e s t h a t might j e o p a r d i z e p u b l i c h e a l t h or  safety,  t h e r e s h o u l d be l e g i s l a t i o n a u t h o r i z i n g t h e p r o v i n c e t o seek an injunction  f o r a s p e c i f i e d p e r i o d through procedures f o r d i s p u t e s  t h e Labour Code.  D u r i n g the c o o l i n g - o f f  p e r i o d , the p a r t i e s  under  could  c o n t i n u e t h e i r search f o r t h e b a s i s of accommodation t o end t h e dispute.  If  t h e s e procedures  prove u n a v a i l i n g , then the  c o u l d c o n s i d e r means, but not t h e s p e c i f i c t e r m s , of  legislature  settlement,  i n c l u d i n g t h e p o s s i b i l i t y of s u b m i t t i n g t h e r e m a i n i n g i s s u e s  to  - 135 -  a r b i t r a t i o n w i t h i n s p e c i f i c bounds. issues sharply  l i m i t e d and d e f i n e d through b a r g a i n i n g  imposed as a l a s t r e s o r t p u b l i c without  by t h e l e g i s l a t u r e can e f f e c t i v e l y  The primary  with  arbitration  l e a v i n g them f e e l i n g t h a t t h e c o l l e c t i v e  process i s a hoax. must i f  In a p a r t i c u l a r s i t u a t i o n ,  protect  bargaining  r e l i a n c e would then be p l a c e d , as  s t r i k e s are t o be p r e v e n t e d ,  the  it  on j o i n t d e t e r m i n a t i o n by p a r t i e s  i n a t r u e b a r g a i n i n g atmosphere. There i s no workable s u b s t i t u t e f o r c o l l e c t i v e b a r g a i n i n g . environment  conducive t o real b a r g a i n i n g , s t r i k e s w i l l  s h o r t e r than i n a system where employees are i n e f f e c t  In an  be fewer and i n v i t e d to  defy  t h e law i n o r d e r t o make r e a l the promise of j o i n t d e t e r m i n a t i o n . real bargaining environment, effectively Only i f  the employee r e p r e s e n t a t i v e s  meet t h e i r dual r e s p o n s i b i l i t y  i n p l a c e of d i s o r d e r  can more  t o n e g o t i a t e and t o  l e a d e r s do both can t h e r e be c o n s t r u c t i v e  labour  r e s u l t i n g when agreements reached i n  In a  lead.  relationships negotiations  are r e j e c t e d by an angry rank and f i l e or d e f i e d by s u b t e r f u g e forms s t r i k e such as w o r k i n g t o t h e These s u g g e s t i o n s  rule.  are not advanced w i t h a guaranty t h a t they w i l l  b r i n g a complete end t o e s s e n t i a l s e r v i c e s t r i k e s . that  r e l i a n c e on l e g a l p r o h i b i t i o n s ,  It  is  suggested  p e n a l t i e s , and e l a b o r a t e  p a r t y recommendations has not worked p r o p e r l y ,  third-  and t h a t b e f o r e  i n d e s p e r a t i o n t o t h i r d p a r t y d e t e r m i n a t i o n , which cannot steadily,  c o l l e c t i v e b a r g a i n i n g s h o u l d be given a c h a n c e .  turning  serve The most  e f f e c t i v e t e c h n i q u e t o produce a c c e p t a b l e terms t o r e s o l v e d i s p u t e s voluntary  of  agreement of t h e p a r t i e s , and t h e best system t h a t t h e r e  f o r p r o d u c i n g agreements between groups i s c o l l e c t i v e b a r g a i n i n g -  is is even  - 136 -  though it involves conflict and the possibility of a work disrupti There is no alternative.  - 137 -  C.  Final Offer Arbitration  Thus f a r t h e paper has examined c o n v e n t i o n a l a r b i t r a t i o n , i . e . , system i n which t h e a r b i t r a t i o n award may be anywhere between  a  (or,  t h e o r e t i c a l l y at l e a s t , even o u t s i d e l 5 7 ) t h e p o s i t i o n s s u b m i t t e d t o t h e a r b i t r a t o r by union and management n e g o t i a t o r s . This i s i n contrast to f i n a l o f f e r a r b i t r a t i o n thesis w i l l  ( w i t h which t h e  now d e a l ) i n which the a r b i t r a t o r must s e l e c t  either  t h e u n i o n ' s or management's p r o p o s a l - t h e t h i r d p a r t y i s not g i v e n the opportuntiy  to s p l i t the d i f f e r e n c e .  The t h e o r e t i c a l purpose of t h i s procedure i s t o l i m i t t h e adverse e f f e c t s t h a t a r b i t r a t i o n i s r e f u t e d t o e x e r t on c o l l e c t i v e system.  The premise advanced i s t h a t ,  by c o m p e l l i n g union and  management t o make t h e i r b a r g a i n i n g o f f e r s of v o l u n t a r y  settlement i s increased.  bargaining  reasonable, the l i k e l i h o o d  Because t h e a r b i t r a t o r ' s  may n e i t h e r omit nor change a n y t h i n g i n t h e f i n a l o f f e r , the of being h i t c h e d up w i t h the o t h e r p a r t y ' s  o f f e r tends  award  prospect  to  c o n s i d e r a b l y enhance t h e r e a s o n a b l e n e s s of t h e p r o p o s a l s made by both s i d e s and thus enhance t h e chances of a r e a s o n a b l e s e t t l e m e n t . There are two t y p e s of f i n a l o f f e r a r b i t r a t i o n - t o t a l package and issue-by-issue.  Under t o t a l  package f i n a l o f f e r a r b i t r a t i o n t h e  a r b i t r a t o r must choose e i t h e r t h e u n i o n ' s or the e m p l o y e r ' s proposal i n i t s e n t i r e t y .  contract  When t h e t e c h n i q u e of i s s u e - b y - i s s u e f i n a l  o f f e r a r b i t r a t i o n i s used a q u a s i - c o m p r o m i s e i s r e a c h e d , w i t h the a r b i t r a t o r s e l e c t i n g one p a r t y ' s  p r o p o s a l f o r each i s s u e .  This  t h e r i s k element c e n t r a l t o f i n a l o f f e r a r b i t r a t i o n s and i g n o r e s o f f c o n s i d e r a t i o n s which go i n t o t h e f o r m u l a t i o n of a p a r t y ' s  reduces trade-  overall  - 138 -  platform.  On t h e o t h e r hand, under t o t a l package a r b i t r a t i o n what  is  o t h e r w i s e t h e " b e t t e r " p r o p o s a l may be thrown out merely because the a r b i t r a t o r p e r c e i v e s one element t o be u n r e a s o n a b l e . p r o s p e c t of a " s l e e p e r " c l a u s e b e i n g a c c e p t e d .  Worse y e t ,  That i s , e i t h e r  i s the party  may i n c l u d e a seemingly innocuous p r o v i s i o n w h i c h , i f a c c e p t e d by t h e a r b i t r a t o r might do s u b s t a n t i a l damage i n the l o n g r u n , t o t h e c o l l e c t i v e bargaining relationship.158 F i n a l o f f e r a r b i t r a t i o n wi1 u s u a l l y work best where the employer and the union are f a i r l y  s o p h i s t i c a t e d i n t h e i r approach t o b a r g a i n i n g  and are a b l e t o judge t h e r e a s o n a b l e n e s s of t h e i r own p o s i t i o n r e l a t i o n t o t h e standards l i k e l y t o be a p p l i e d by t h e  arbitrator.  A l t h o u g h f i n a l o f f e r a r b i t r a t i o n may promise more than deli vers,159 i t effects.  in  it  has been shown t o overcome t h e n a r c o t i c and c h i l l i n g  Downie e x p l o r e d a l l the l i t e r a t u r e a v a i l a b l e i n o r d e r  to  s p e c u a l t e on t h e p r o b a b l e impact of v a r i o u s t y p e s of a r b i t r a t i o n . was c l e a r t h a t r e s o r t t o a r b i t r a t i o n more than once i s h i g h e r conventional  versus f i n a l o f f e r a r b i t r a t i o n . 1 6 0  It  under  Secondly t h e data  suggested t h a t p a r t i e s come much c l o s e r t o n e g o t i a t i n g a s e t t l e m e n t under t o t a l package f i n a l o f f e r a r b i t r a t i o n than under e i t h e r  issue-by-  i s s u e f i n a l o f f e r a r b i t r a t i o n or c o n v e n t i o n a l a r b i t r a t i o n , 1 6 1 and t h a t t h e former t e c h n i q u e d e f i n i t e l y  provides  incentives to bargain.  c o n s i d e r e d any c o n c l u s i o n s " t e n t a t i v e " 1 6 2 but a l l o w e d t h a t an e f f e c t i v e l y designed system of f i n a l - o f f e r a r b i t r a t i o n , from t h e e v i d e n c e a v a i l a b l e , would p r o b a b l y l e a d t o a l l but 5 t o 10 p e r c e n t of a l l d i s p u t e s i n a s e c t o r b e i n g r e s o v l e d by n e g o t i a t i o n s ; an e f f e c t i v e l y designed system of c o n v e n t i o n a l a r b i t r a t i o n would p r o b a b l y l e a d t o a l l but 10 t o 25 p e r c e n t b e i n g r e s o l v e d s h o r t of  Downie  - 139 -  an a r b i t r a t i o n award. These r a t e s are comparable t o the frequency of s t r i k e u s a g e . 1 6 3  However he o b s e r v e d : . . . whatever advantages f i n a l - o f f e r a r b i t r a t i o n may have w i t h r e s p e c t t o t h e c h i l l i n g e f f e c t may be o f f s e t by the n o t i o n t h a t f i n a l - o f f e r a r b i t r a t i o n awards are i n e v i t a b l y worse than awards f l o w i n g from c o n v e n t i o n a l a r b i t r a t i o n because of t h e o p p o r t u n i t y on t h e p a r t of t h e t h i r d p a r t y i n t h e l a t t e r case t o shape a compromi s e . * 6 4  F i n a l o f f e r a r b i t r a t i o n t e c h n i q u e was used i n Typographical a first  Union and Vancouver  International  I s l a n d P u b l i s h i n g Company.165  It  was  c o n t r a c t a r b i t r a t i o n , t h e a r b i t r a t o r h a v i n g been a p p o i n t e d by  t h e Labour R e l a t i o n s Board a f t e r a l o n g and b i t t e r c o n f l i c t between t h e company and t h e n e w l y - c e r t i f i e d  union.  chosen by t h e p a r t i e s t o be t h e means of As w i t h o r d i n a r y  F i n a l o f f e r a r b i t r a t i o n was settlement.  i n t e r e s t a r b i t r a t i o n , t h e a r b i t r a t o r was  t o f o r m u l a t e some b a s i s or s t a n d a r d f o r h i s d e c i s i o n : While t h e f i n a l - o f f e r s e l e c t i o n c r i t e r i a and t h e compulsory h o s p i t a l a r b i t r a t i o n c r i t e r i a i n B r i t i s h Columbia and O n t a r i o appear t o d i f f e r w i d e l y , i . e . , more r e a s o n a b l e of t h e two p r o p o s a l s v. s i m u l a t i o n of the r e s u l t of s t r i k e or l o c k o u t , the a c t u a l p r o c e s s i n both must i n v o l v e a c o n s i d e r a t i o n of l i k e or n e a r l y l i k e c i r c u m s t a n c e s e l s e w h e r e . In o r d e r t o determine what i s more r e a s o n a b l e , one must have a p o i n t of r e f e r e n c e which s u r e l y i s what o t h e r people have done i n s i m i l a r c i r c u m s t a n c e s . The f i n a l - o f f e r s e l e c t i o n process i s s i m p l y a s p e c i a l k i n d of a r b i t r a t i o n of an i n t e r e s t d i s p u t e . The a r b i t r a t i o n of an i n t e r e s t d i s p u t e i s a means of t r y i n g t o s u b s t i t u t e reason f o r economic f o r c e . In e f f e c t t h e p a r t i e s agree t h a t t h e r e w i l l be a c o l l e c t i v e agreement and both p a r t i e s say t o each o t h e r t h a t reason can be s u b s t i t u t e d f o r f o r c e , t h e obvious s t r e s s and waste caused by s t r i k e or l o c k o u t can be a v o i d e d . The more r e a s o n a b l e o f f e r i n f i n a l - o f f e r s e l e c t i o n i s t h e more s e n s i b l e o f f e r i n the circumstances. I c o n c l u d e t h e c i r c u m s t a n c e s t o be examined are i n t h e main t h o s e d e s c r i b e d a l r e a d y , b e i n g t h e p a t t e r n of development of c o l l e c t i v e  required  - 140 -  agreements i n o t h e r comparable p l a c e s of work. However, because t h e p a r t i e s c o u l d have r e s o r t e d t o s t r i k e or l o c k o u t , c o u r s e s of a c t i o n not open t o t h e h o s p i t a l s i n v o l v e d i n the mentioned c a s e s , more c o n s i d e r a t i o n of economic and b a r g a i n i n g p o s i t i o n s of the p a r t i e s i s i n d i c a t e d , (pp. 1 3 - 1 4 ) In t h i s c a s e , t h e a r b i t r a t o r c l e a r l y had d i f f i c u l t y of the two p r o p o s a l s were more r e a s o n a b l e . of the two c o n t r a c t s  i n d e c i d i n g which  A f t e r exhaustive  analysis  (pp. 1 5 - 2 6 ) , i t was h i s o p i n i o n t h a t  . . . t o award t h e Company's p r o p o s a l would s e r i o u s l y undermine t h e s e c u r i t y of t h e c r a f t u n i t and would p r o b a b l y cause t h e c o l l a p s e of t h e b a r g a i n i n g u n i t as a c r a f t e n t i t y . To award t h e union s p r o p o s a l s would be t o s a d d l e t h e Company w i t h an onerous c r a f t agreement c o n t a i n i n g many h i g h l y o b e j c t i o n a b l e p r o v i s i o n s , at l e a s t some of which may c o n t r a v e n e t h e Labour Code. (p. 3 0 ) . In the e n d , t h e u n i o n ' s c o n t r a c t p r o p o s a l was s e l e c t e d as b e i n g t h e more r e a s o n a b l e of the two. The a r b i t r a t o r found a passage from Cashman, " C u r r e n t Experiments i n C o l l e c t i v e B a r g a i n i n g " , 1 6 6 t o be p r o p h e t i c : The s i m p l e " f i n a l o f f e r " t e c h n i q u e i s q u i t e unrealistic. In p r a c t i c e i t might w e l l make f o r a t o t a l l y u n a c c e p t a b l e a r b i t r a t i o n award and never r e a l l y s e r v e t o narrow t h e i s s u e s at t h e b a r g a i n i n g table. In r e a l l i f e p r o p o s a l s made by unions at the o u t s e t of b a r g a i n i n g f r e q u e n t l y c o n t a i n a number of demands which are t h e r a p e u t i c i n n a t u r e . That i s , such p r o p o s a l s are i n t e n d e d t o s a t i s f y t h e union membership even though t h e judgment of t h e union o f f i c e r s i s t h a t such p r o p o s a l s are not r e a l i z a b l e at t h i s p a r t i c u l a r s e t of n e g o t i a t i o n s . Such demands may be abandoned or s u b s t a n t i a l l y m o d i f i e d i n t h e c o u r s e of b a r g a i n i n g but t h e abandonment or m o d i f i c a t i o n i s not h i g h l i g h t e d because of the way i n which c o l l e c t i v e b a r g a i n i n g p r o c e e d s . Normally management makes a package p r o p o s a l which may c o n t a i n no r e f e r e n c e t o what may be s t y l e d as " p o l i t i c a l p r o p o s a l s " not expected t o be a c h i e v e d . Union l e a d e r s h i p i s then f r e e t o deal w i t h t h e management p r o p o s a l s w i t h o u t any s p e c i a l s p o t l i g h t on t h e i r abandonment of t h e " p o l i t i c a l p r o p o s a l s " . The " f i n a l o f f e r " t e c h n i q u e , however, r e q u i r e s the union t o p u b l i c l y put on t h e t a b l e i t s " f i n a l offer".  There w i l l  be a number of p r o p o s a l s which  - 141 union o f f i c i a l s c o u l d n o t , as a p r a c t i c a l m a t t e r , omit from t h e i r " f i n a l o f f e r " . The a c c e p t a b i l i t y of an award a d o p t i n g t h e management o f f e r i n such a c o n t e x t would be e x t r e m e l y d o u b t f u l , ( p . 28). I t was t h e a r b i t r a t o r ' s  o p i n i o n t h a t t h e union here was p l a y i n g a  game of "double or n o t h i n g " - e i t h e r i t would win a very good agreement, or i t would be e l i m i n a t e d . In B r i t i s h Columbia R a i l w a y and U n i t e d T r a n s p o r t a t i o n  Union  p a r t i e s had at t h e i r o p t i o n t h e a l t e r n a t i v e of f i n a l o f f e r In t h i s r e g a r d , the a r b i t r a t o r  the  1 6 7  arbitration.  stated:  F i n a l o f f e r s e l e c t i o n i s t h a t p r o c e s s i n which both p a r t i e s put forward t h e i r best f i n a l p o s i t i o n and t h e t h i r d p a r t y s e l e c t s t h e o f f e r t h a t most c l o s e l y approximates what he c o n s i d e r s the d e s i r a b l e s o l u t i o n . The f a t a l f l a w i n such a p r o c e s s , p a r t i c u l a r l y when i t encompasses matters i n t h e c o l l e c t i v e agreement o t h e r than money, i s t h a t t h e p a r t i e s are s t i l l welded t o t h e i r p r e s c r i p t i o n f o r r e s o l t u i o n w i t h a l l t h e i r t r a d i t i o n a l and a t t i t u d i n a l postures b u i l t i n t o t h e i r o f f e r s . The s i t u a t i o n i s analogous t o the p a t i e n t who goes t o t h e d o c t o r and w i t h o u t drawing upon t h e d o c t o r ' s knowledge and e x p e r t i s e demands t h a t t h e remedy f o r t h e p a t i e n t ' s headache be a s p i r i n or d e c a p i t a t i o n , (p. 4) Q u i t e a few c r i t i c s a r e u n c o m f o r t a b l e w i t h arbitration. this will final  final-offer  Proponents of t h i s method of impasse r e s o l u t i o n admit  o f t e n be t h e c a s e , but p o i n t t o t h e a n t i c i p a t e d v i r t u e s  offer a r b i t r a t i o n .  1 6 8  One c r i t i c i s m of c o n v e n t i o n a l  of  arbitration  i s t h a t i t may have a n e g a t i v e e f f e c t on c o l l e c t i v e b a r g a i n i n g .  The  p a r t i e s may e i t h e r become dependant upon t h i r d p a r t y s o l u t i o n s t o  their  disputes  of  (the  "narcotic" effect)  or they may a v o i d t h e t r a d e - o f f s  good f a i t h b a r g a i n i n g and c l i n g t o u n r e a l i s t i c p o s i t i o n s  i n t h e hope of  g e t t i n g more from t h e a r b i t r a t i o n than from a n e g o t i a t e d  settlement  (the  "chilling" effect).  F i n a l o f f e r a r b i t r a t i o n attempts t o  t h e s e problems by adding a g r e a t e r element of u n p r e d i c t a b i l i t y  overcome and r i s k  - 142 -  to the a r b i t r a t i o n process.  Each p a r t y  runs t h e r i s k of i t s  p r o p o s a l b e i n g thrown out because of t h e unreasonableness u n a c c e p t a b i 1 i t y of even one element t h e r e i n .  whole  or  The p a r t i e s are thus  induced t o develop even more r e a s o n a b l e p o s i t i o n s i n t h e hope of w i n n i n g t h e award, and t h e s e mutual attempts t o win n e u t r a l should r e s u l t  approval  i n t h e p a r t i e s b e i n g so c l o s e t o g e t h e r they w i l l  t h e i r own s e t t l e m e n t s . 1 6 9  S t u d i e s have shown t h a t under f i n a l  create offer  procedures p a r t i e s do reduce t h e number of d i s p u t e d i s s u e s and move c l o s e r t o g e t h e r t o a g r e a t e r e x t e n t than under arbitration.I  7 0  conventional  - 143 -  D.  Industrial  I n q u i r y Commission  Under t h e Labour Code, an ad hoc d e v i c e f o r heading o f f interest  d i s p u t e s has been t h e use of an i n d u s t r i a l  T h i s i s an e x t r a o r d i n a r y  remedy, and i t  d i s c r e t i o n of the M i n i s t e r . 1.  public  i n q u i r y commisison.  i s only a v a i l a b l e at the  S e c t i o n 122 of t h e Labour Code s t a t e s :  The m i n i s t e r may, on a p p l i c a t i o n or on h i s own m o t i o n , make  or cause t o be made t h e i n q u i r i e s he c o n s i d e r s a d v i s a b l e  respecting  i n d u s t r i a l m a t t e r s and s u b j e c t t o t h i s A c t and r e g u l a t i o n s , may do the t h i n g s he c o n s i d e r s necessary t o m a i n t a i n or secure i n d u s t r i a l and promote c o n d i t i o n s f a v o u r a b l e t o s e t t l e m e n t of 2. industry  disputes.  For any of the purposes of s u b s e c t i o n ( 1 ) ,  or where i n an  a d i s p u t e between employers e x i s t s or i s l i k e l y t o a r i s e ,  m i n i s t e r may r e f e r the m a t t e r t o an i n d u s t r i a l i n v e s t i g a t i o n and 3.  peace  inquiry  the  commission f o r  report.  The m i n i s t e r s h a l l f u r n i s h t h e i n d u t r i a l  inquiry  commission  w i t h a statement of t h e matters t o be i n q u i r e d i n t o , and where an inquiry  involves  p a r t i c u l a r persons or p a r t i e s , s h a l l a d v i s e them of  t h e appointment. 4.  An i n d u s t r i a l  matters r e f e r r e d t o i t terms of r e f e r e n c e ; meantime, s h a l l  inquiry  commission s h a l l i n q u i r e i n t o t h e  by t h e m i n i s t e r and endeavour t o c a r r y out  its  and i f a s e t t l e m e n t i s not e f f e c t e d i n t h e  r e p o r t t h e r e s u l t of i t s i n q u i r i e s and i t s  recommendations t o t h e m i n i s t e r w i t h i n 14 days a f t e r i t s  appointment,  or w i t h i n a f u r t h e r t i m e the m i n i s t e r s p e c i f i e s . 5.  On r e c e i p t of a r e p o r t of an i n d u s t r i a l  inquiry  commission  r e l a t i n g t o a d i s p u t e between employers and employees, the m i n i s t e r  - 144 -  s h a l l f u r n i s h a copy to each of the p a r t i e s a f f e c t e d , and s h a l l it  i n t h e manner he c o n s i d e r s 6.  An i n d u s t r i a l  publish  advisable.  inquiry  commission s h a l l c o n s i s t of one or more  members a p p o i n t e d by t h e m i n i s t e r . 7.  An i n d u s t r i a l  inquiry  commission s h a l l , d u r i n g i t s p e r i o d  a p p o i n t m e n t , have t h e power and a u t h o r i t y  fo  of a commissioner under  s e c t i o n s 1 2 , 15 and 16 of the I n q u i r y A c t . 8.  Where e i t h e r b e f o r e or a f t e r the r e p o r t t h e p a r t i e s agree  in  w r i t i n g t o accept t h e r e p o r t i n r e s p e c t of the m a t t e r s r e f e r r e d t o t h e industrial  inquiry  commission t h e p a r t i e s are bound by t h e r e p o r t  in  r e s p e c t of t h o s e m a t t e r s . P r i o r t o t h e p a s s i n g of t h e Labour Code of B r i t i s h C o l u m b i a , 1972 the l e g i s l a t i v e machinery f o r t h i s k i n d of i n t e r v e n t i o n but i t was never u s e d . industrial  inquiry  Despite the h i s t o r y  the s u b s t a n t i a l  of M e d i a t i o n Commisison A c t ,  occasions.  and t h e a t t a c k on  by t h e u n i o n s , a s u r p r i s i n g development has been  number of t i m e s t h a t l a b o u r and management have both  agreed t o be bound by t h e d e c i s i o n s of an i n d u s t r i a l commission.  existed,  S i n c e t h e making of t h e Labour Code the  commisison has been employed on v a r i o u s  compulsory a r b i t r a t i o n  in  inquiry  In major d i s p u t e s i n 1973 and 1974 both p a r t i e s agreed  in  advance t o be bound by whatever d e c i s i o n was given by an i n d u s t r i a l inquiry  commission.171  Voluntary  Third-party intervention effective.  For t h i s  used by i n d u s t r i a l  b i n d i n g a r b i t r a t i o n was t h e  must be f l e x i b l e i f  it  result.  i s t o be  reason a new t e c h n i q u e c a l l e d ' m e d - a r b ' has been  inquiry  process b a s i c a l l y i n v o l v e s  commissioners i n B r i t i s h C o l u m b i a .  This  t h e commisson's m e d i a t i n g t h e d i s p u t e and  - 145 -  e n c o u r a g i n g t h e p a r t i e s t o a r r i v e at t h e i r own s e t t l e m e n t under p r e s s u r e of knowing t h a t i f they do n o t , then t h e commission w i l l render an a r b i t r a t i o n award. C l i v e McKee, who was chairman of s i x major e n q u i r i e s ,  explained:  'In t h e past y e a r , as an I n d u s t r i a l I n q u i r y C o m m i s s i o n e r , I have experimented w i t h t h i s t e c h n i q u e and have found t h a t my e x p e r i e n c e ranged, a l l t h e way from a p o s i t i o n where I was l e f t w i t h no a l t e r n a t i v e but t o w r i t e a b i n d i n g award t o a p o s i t i o n of j u s t k e e p i n g t h e pendulum i n motion w h i l e t h e p a r t i e s s e t t l e d , i n great d e t a i l , t h e i r own agreement. As a n e g o t i a t o r , m e d i a t o r , a r b i t r a t o r t h i s i s t h e system of d i s p u t e r e s o l u t i o n that I advocate. Voluntary ' m e d - a r b . ' I 7 2  The  ' m e d - a r b ' t e c h n i q u e i s an i n f o r m a l a d m i n s i t r a t i v e p r o c e s s ,  s h a r p l y d i f f e r e n t from t h e l e g a l i s t i c procedures which were f o l l o w e d by t h e M e d i a t i o n Commisison. The ad hoc approach under t h e Labour Code has gained t h e c o n f i d e n c e of l a b o u r and management where permanent machinery under t h e M e d i a t i o n Commisison d i d n o t .  One reason i s t h a t the chairman c o u l d be  s e l e c t e d on the b a s i s of h i s p a r t i c u l a r e x p e r i e n c e i n t h e area of the dispute.  The ad hoc c h o i c e of commissioner does not a l l o w  p r e c e d e n t s t o be made.  stultifying  The a i r of u n c e r t a i n t y t h a t r e s u l t s ,  everyone t h e f e e l i n g s t h a t they have a c h a n c e .  This  gives  experience  u n d e r s c o r e s the c r i t i c i s m d i r e c t e d a g a i n s t a permanent mechanism or tribunal  - l i k e t h e M e d i a t i o n Commission - as a g u a r d i a n of t h e p u b l i c  interests. The method of i m p r o v i n g the a r b i t r a t i o n system i s t o b u i l d i n a structure for  'med-arb'.  reach a v o l u n t a r y  M r . Ed Peck used t h e  'med-arb' technique to  s e t t l e m e n t i n t h e H o s p i t a l Labour R e l a t i o n s  A s s o c i a t i o n v . H o s p i t a l Employees Union b a r g a i n i n g d i s p u t e i n 1979.  - 146 The Labour Relations Board has successfully used 'med-arb' in its section 70 cases to cut down the number of issues ultimately adjudication.  requiring  Indeed, the availability of nominees on tripartite  interest arbitration panels is amendable to 'med-arb', as was pointed out by the Labour Relations Board in H.L.R.A. v. H.E.U..  173  In this  case the Board approved of the nominees acting as carriers of information to their respective principals concerning the  deliberations  of the panel prior to the issuance of the final award. On the basis of this new information, the parties were then allowed to make submissions to the arbitration board. The potential for using the nominees or the entire panel to advise the parties of the panel's view of their respective positions prior to final adjudication would certainly be a powerful incentive to reach a negotiated settlement. The Board further developed this point in this passage: Secondly, the role of the nominee in assuming relevancy of the finished product is potentially more critical in "interest" arbitrations than in "rights" arbitrations. In both classes of arbitrations, the neutral chairman is brought into a relationship with which he likely has little familiarity and in a relatively brief period of time, is expected to provide the "correct" answer to a dispute or series of differences. But the arbitrator's task in "rights" arbitration is generally easier. That task is to take terms and conditions which have already been agreed to - i.e. the collective agreement - and apply them to a particular set of facts. The "interest" arbitrator, however, is actually asked to create the terms and conditions. Depending on the number of issues outstanding, that can be an awesome responsibility especially when one considers that the working conditions to be imposed will govern the parties for a period of one, two or even three years. The neutral chairman can be greatly assisted, and thus the system has a better chance of working in fact, as on paper, i f his colleagues on the arbitration board know with some precision the intricacies of the employment relationship and the actual impact of effect of the parties' respective proposals".  - 147 -  CONCLUSION  The British Columbia Legislators have realized that strikes in essential services have a dramatic effect on the economy and industrial stability of British Columbia. Accordingly, they have fashioned an approach tailored to the achievement of techniques which will lend themselves to the minimization of conflict in these areas and have made efforts to cultivate public awareness of their policies. Also the British Columbia Labour Relations Board has recognized that the achievement of harmony in the area will come only with a sustained implementation of the Labour Code and the Essential Service Disputes Act provisions as enacted to date, instead of haphazardly searching a case by case, ad hoc legislation.  Their policies represent  a significant step in the ethos of labour relations law of British Columbia. The Board has been acutely aware of the tension between the /  parties to the conflict and the accompanying harm that the public suffers.  It must develop a policy which achieves an equilibrium  amongst the various forces that create the tension.  For in the end i t  is the public that suffers. The taxpayers are certainly entitled to the services that they pay for.  - 148 -  FOOTNOTES 1.  David M. Beatty, "Preface", in Collective Bargaining in the Essential and Public Service Sectors, Morley Gunderson ed., University of Toronto Press, Toronto, 1975, at viii-ix.  2.  R.S.B.C. 1979, c. 212. ,  3.  Essential Service Disputes Act R.S.B.C. 1979, c. 113, s. 8 {hereinafter referred to in the footnotes as E.S.D.A.).  4.  S.B.C. 1968, c. 26 (hereinafter referred to in the footnotes as M.C.A.).  5.  For a discussion of events prior to the introduction of the M.C.A., see James G. Matkin, "Government Intervention in Labour Disputes in British Columbia", in Collective Bargaining in the Essential and Public Service Sectors, Morley Gunderson ed., supra, note 1 at 75.  6.  Section 28(1) of the Act provided: 28(1) There is hereby established a commission to be known as the "Mediation Commission", which shall consist of a chairman and, ... such number of other members as may be so determined. See further. Part IV of the Act for jurisdiction, procedure etc. of the Commission. The title, Mediation Commission, was a misnomer as the Commission did not perform a mediation function; i t was an adjudicative tribunal.  7.  See Part II, sections 11 to 13.  8.  Section 16.  9.  Matkin, supra, note 5 at 86.  10.  In introducing the Bill in the Legislature, the Minister of Labor had referred to the "judicial system" as analogous to the role that the new Commission would perform. B.C. Legislative Assembly Debates, Second Session, 28th Parliament, p. 11. The Commission was bound to determine its own procedure "for the prompt and judicious disposition of disputes" (section 40(D) and there was even reference to "the burden of proof" (section 13(c)).  11.  Matkin, supra, note 51 at 86.  i  - 149 -  12.  Judge Samuel I. Rosenman, "A Better Way to Handle Strikes", Newsday, July 15, 1967. His idea is explained in Proposals to Deal with National Emergency Strikes, Legislative Analysis No. 3, American Enterprise Institute for Public Policy Research (1969), in Collective Bargaining in the Essential and Public Service Sectors, Norley Gunderson ed., supra, note 1 at 82.  13.  Matkin, supra, note 5 at 88.  14.  Psychiatric Nurses Association v. Civil Service Commission, November 14, 1968.  15.  The Hon. Mr. Justice Nemetz was appointed as .an ad hoc arbitrator of the dispute under the research provision of the M.C.A. (Section 34).  16.  Matkin, supra, note 5 at 79.  17.  See An Act to Amend the Mediation Commission Act, S.B.C. (second session), c. 8.  18.  S.B.C. 1973, (second session), c. 122.  19.  Matkin, supra, note 5 at 92.  20.  s. 73(1) Where a firefighters union, policemen's union, pr hospital union as defined in this section and an employer or a representative authorized by the employer have bargained collectively in good faith and have failed to conclude a collective agreement, or a renewal or revision thereof, the trade union may elect, by giving a notice in writing to the employer and the minister, to resolve the dispute by arbitration. (2) Upon the receipt of a notice under subsection (1), the parties shall make such arrangements as are mutually agreed upon for the appointment of a single arbitrator, or the establishment of an arbitration board, to hear the dispute and resolve i t by settling the terms and conditions of a collective agreement. (3) Where the parties fail to agree to a single arbitrator, or an arbitration board is not fully constituted, within ten days after the notice has been given, the minister shall appoint a single arbitrator to hear the dispute and resolve i t by settling the terms and conditions of a collective agreement. (4) The terms and conditions settled by the arbitrator or arbitration board shall be deemed to be a collective agreement between the parties, binding upon them and the employees except to the extent to which the parties agree to vary any or all of them. (5) No employer referred to in this section shall lockout his employees, and no employee or trade union referred to in  1972,  - 150 -  this section shall strike during a period from the date a notice is given under this section until the date a collective agreement settled under subsection (2) or (3) terminates, and unless he otherwise complies with this Act. (6) In this section, unless the context otherwise requires, "fire fighters' union" means a trade union certified for a unit in which the majority of employees has as its principal duties the fighting of fires and the carrying out of rescue operations: "hospital union" means a trade union certified for a unit in which the majority of employees has as its principal duties the care of patients in, or operation and maintenance of, a hospital; "policemen's union" means a trade union certified for a unit in which the majority of employees is engaged in police duties. 21.  Mr. King, Minister of Labor, B.C. Legislative Assembly Debates, Third Session, 30th Parliament, October 26, 1973, p. 1000.  22.  H.W. Arthurs, "The Dullest Bill: Reflections on the Labour Code of British Columbia", (1974) 9 U.B.C. Law Review 280 at 295.  23.  S.B.C. 1974, c. 108. (See Appendix A, infra.).  24.  S.B.C. 1973, c. 122. (7) Where a dispute between an employer and a fire fighters' union, policemen's union, or hospital union is not resolved, and as a consequence an immediate and serious danger to life or health is likely to occur or is continuing to occur, the minister may recommend that the Lieutenant Governor in Council, by order, prescribe a cooling-off period of time not excedint 21 days during which period no employee or trade-union shall strike and no employer shall lock out his employees or during which period any existing strike or lockout shall be suspended. (8) The Lieutenant-Governor in Council shall not make an order under this section more than once in respect of the same dispute.  25.  S.B.C. 1975, c. 83. (See Appendix B, infra.).  26.  Collective Bargaining Continuation Act, S.B.C. 1975, c. 83, section 1(1)(a).  27.  Ibid., section 2(1)(a).  28.  Ibid., section 9 clauses (1) and (2).  - 151  -  29.  Labour Code of British Columbia (Amendment) Act, 1975, (B.C.), c. 33, section /3(7).  30.  Vancouver General Hospital and Hospital Employees Union Local 180. B.C.L.R.B. Decision No. 31/78.  31.  S.B.C. 1976, c. 21. (See Appendix C, infra).  32.  Labour Code of British Columbia (Amendment) Act, 1976, (B.C.), c. 26.  33.  S.B.C. 1976, c. 48. (See Appendix D, infra).  34.  The Act has not been repealed, although i t is regarded as "obsolete" and has not been included in the latest consolidation: Revised Statutes of British Columbia, 1979.  35.  B.C. Legislative Assembly Debates, First Session, 31st Parliament, June 14, 1976, p. 2579.  36.  Ibid.  37.  See sections 2-5. By virtue of section 7, an "employer", except in Part II, means The British Columbia Railway Company and the British Columbia Ferries Division of the Department of Transport and Communications, or the British Columbia Ferry Corporation.  38.  See In the Matter of an Arbitration between the British Columbia Railway Company and the United Transportation Union, Locals 1778" ana Wd6, September z i , 19/b iShlme) and ibid., July 19, 1977.  39.  Section 16(1). The period may be extended by Order-in-Council for a further period not exceeding 14 days.  40.  Sections 17 and 18.  41.  S.B.C. 1977d, c. 83 (Bill 92). (See Appendix E, infra).  42.  S.B.C. 1978, c. 42. (See Appendix F, infra).  43.  See Arbitrator's Report: In the Matter of the West Kootenay Schools Collective Bargaining Assistance Act, June 30, 1979 (Hall).  44.  The Essential Service Disputes Act is amended (a) in section 8 by adding "or" at the end of clause (b) and by adding this clause: (c) a substantial disruption in the delivery of educational services;  !  - 152 -  (b) and by adding these employers to the Schedule: Colleges and Boards of School Trustees as defined in the Public Schools Act; Universities as defined in the Universities Act; Institutions as defined in the Colleges and Provincial Institutes Act; Municipalities; Regional Districts and Improvement District Corporations under the Water Act. 45.  Order-in-Council.  46.  Hon. John Munro, Minister of Labor, "Arbitration in Essential Industries" April 1974 in Labour Gazette at 256.  47.  Canadian Industrial Relations - The Report of the Task Force on Labor Relations. Privy Council Office, December 1968, (hereinafter referred to as the Task Force Report) at 32.  48.  Section 2(d) Canadian Charter of Rights and Freedoms, Part I, Schedule B, Constitution Act, 1982.  49.  (1962) 34 D.L.R. (2d) 654 (S.C.C).  50.  Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organized Adopted by the General Conference of the International Labor Organization at its thirty-first session, San Francisco, July 9, 1948.  51.  The Durham Board of Education and Ontario Secondary School Teachers' Federation, District 17 and Education Relations Commission, (unreported, October 24, 1983). O'Leary J. at 61.  52.  For further details on this subject see J. Schregle: "Labour Relations in Public Sector" (1974) in International Labor Review 399.  53.  See generally A. Pankert "Settlement of Labor Disputes in Essential Services" (1980) 119 International Labor Review 723.  54.  Act No. 48 of 1968, section 3, paragraph 4.  55.  Section 206. 2.  56.  Id., Basic agreements and joint statements... .  57.  Section 10. See Legislative Series (Geneva ILO), 1926U.S.A.- 1.  58.  Supra, note 47 at 170.  59.  Supra, note 46 at 257.  See Legislative Series (Geneva ILO), 1947 '- U.S.A.  - 153 -  60.  J.M.P. Weiler ed. Interest Arbitration (1981), at 103.  61.  Supra, note 46 at 257.  62.  E.S.D.A., supra, note 3.  63.  Supra, note 33.  64.  Mr. Wallace, B.C.! Legislative Assembly Debates, 1973, p. 5903.  65.  Mr. Gibson, B.C. Legislative Assembly Debates, 1973, p. 5885.  66.  Hon. Mr. Hewitt, B.C. Legislative Assembly Debates, 1973, p. 5938.  67.  Ibid.  68.  Mr. L. Bawtree, B.C. Legislative Assembly Debates, 1973, p. 5938.  69.  Hon. Mr. Phillips, B.C. Legislative Assembly Debates, 1973, p. 5905.  70.  Section 8(c).  71.  Supra, note 42.  72.  Supra, note 44.  73.  Supra, note 3, section 1.  74.  See Public Service Commission of the Government of British Columbia and Certain Employees of the Government of British TJbiiumbia engaged in Fire Fighting Activities and The British Columbia Government Employees Union. B.C.L.R.B. Decision No. 29/75.  75.  Supra, note 23.  76.  Supra, note 74.  77.  Supra, note 3, section 1.  78.  B.C.L.R.B. Decision No. 52/78.  79.  B.C.L.R.B. Decision No. 60/78.  80.  B.C.L.R.B. Decision No. 62/79.  81.  B.C.L.R.B. Decision No. 21/80.  - 154 B.C.L.R.B. Decision No. 32/81. Labor Code of British Columbia, Section 73(6), now repealed. Supra, note 80. Hospitals Act, R.S.B.C. 1960, c. 78. See Community Care Facilities Act, R.S.B.C. 1979, c. 4. Supra, note 3, section 1. In a recent decision, In the Matter of the British Columbia Government Employees Union of November 1, 1983, Hon. Allan McEachern, C.J., of the Supreme Court of British Columbia made a Restraining Order against pickets at the entrances and within the precincts of Courts of justice. He stated: "... picketing which may be lawful in many private, commercial or institutional settings, has fn this case as its obvious purpose, the limitation and restriction both of the work of the courts, ... such conduct is a contempt of this and every Court. It is in fact a contempt against justice itself... I must therefore make an Order restraining and enjoining all persons having notice or knowledge of this Order from picketing at or in the vicinity of any Provincial, County, Supreme or Appeal Court in the province ..." R.S.C. 1970, c. P-34 (hereinafter referred to in the footnotes as P.S.S.R.A.). H.W. Arthurs, Collective Bargaining in the Public Service of Canada: Bold Experiment or Act of Folly? (1969) Michigan Law Review 67 at 971. P.S.S.R.A., s. 50. The issue was raised, and avoided, in A.G. British Columbia v. Ellasy and British Columbia Government Employees Association (1959) C.L.L.C. 15, 262 (British Columbia Supreme Court). Regina v. C.P.R. ex rel. Zambri [1962] S.C.R. 609. P*S«S»R«A«) s• 7 9 • H.W. Arthurs, supra, note 90 at 988. Infra, note 99.  - 155 -  98.  (1969) P.S.S.R.B., File No. 181-2-8.  99.  (1974) P.S.S.R.B., File No. 181-1-32.  100.  (1981) P.S.S.R.B., File No. 181-2-134.  101.  The Electronics case has been followed many times. See Administrative Support Category case (1976) P.S.S.R.B. File No. 181-2-18.  102.  P.S.S.R.A., R.S.C., 1966-67, c. 72 s. 79(1).  103.  P.S.S.R.A. s. 79(2).  104.  P.S.S.R.A. s. 79(3).  105.  P.S.S.R.A. s. 79(4).  106.  The Canadian Air Traffice Control Association and Treasury Board (19/2) P.S.S.R. Reports K 839.  107.  P.S.S.R.A. s. 25.  108.  P.S.S.R.A. s. 79(1).  109.  Supra, note 102.  110.  Federal Court Act, R.S.C. 1970, c.F-10.  111.  Supra, note 2. s. 73(1) Where a dispute between an employer and a trade union is not resolved, and as a consequence an immediate and serious danger to life or health is likely to or is continuing to occur, the minister may ... (b) request the board to designate the facilities, productions and services i t considers necessary or essential to prevent immediate and serious danger to life, health, or safety, and the board may order the employer and the trade union to continue to supply, provide or maintain in full measure those facilities, productions and services and not to restrict or limit a facility, production or service so designated.  112.  Supra, note 30.  113.  Supra, note 2, section 73(l)(b).  114.  Supra, note 3, section 8(d).  115.  Supra, note 2, section 73(1).  >  - 156 -  116.  John F. Burton and Charles Krider, "The Role and Consequences of Strikes by Public Employees", 79 Yale Law Journal 48.  117.  In Ladner Private Hospital et al. and Hospital Employees Union Local 180 B.C.L.R.B. Decision No. 17/79, Counsel for the Hospital Employees Union conceded that the Essential Service Disputes Act applied to the collective bargaining relationship between the Hospital and the Hospital Employees Union.  118.  A strike by hospital support staff was successfully managed at the Vancouver General Hospital by the Labor Relations Board in May and June, 1976.  119.  Public Employee Relations Act, Pennsylvania, s. 43 paragraph  120.  68 L.C. p. 52 827; 5 Comm. Ct. 378 (1972).  121.  2 P.B.C., p. 20.0/2 (1973).  122.  Armstrong case supra, note 120.  123.  2 C.C.H. State Labor Cases 52, 684 (Pa. Comm. Pleas, 1971).  124.  See generally Professor Merton C. Bernstein, "Alternatives to the Strike in Public Labour Relations" Havard Law Review: 442, 469.  125.  Several proposals for "nonstoppage" or "statutory" (because imposed by statute) strikes have been made in the private sector. See McCalmont, The Semi-Strike, 15 Industrial and Labor Relations Review 191 (1962); Marshall and Marshall, "Nonstoppage Strike Proposals - A Critique", 7 Labor Law Journal 299 (1956). These proposals envisioned that employees continue at work ad that the employer lose some income; and most involved a reduction of pay between declaration of the nonstoppage and settlement. All were limited to the private sector.  126.  Thomas A. Kochan, "Dynamics of Dispute Resolution in the Public Sector", Public Sector Bargaining ed. Aaron, Grodin and Stein, Industrial Relations Research Association Series, at 150.  127.  Ibid.  - 157 -  128.  s. 5(1) Where the agency recommends that fact-finding should be a procedure to be followed the minister may appoint a person as the fact-finder. (2) The fact finder shall confer with the parties and inquire into, ascertain and make a report setting out the matters agreed on by the parties for inclusion in a collective agreement and all matters remaining in dispute between the parties, and the fact-finder shall, in his report, include his findings in respect of any matter that he considers relevant to the conclusion of a collective agreement, and may recommend terms of settlement of all matters remaining in dispute. (3) The fact finder, in carrying out his duties, (a) may require an employer or trade union to provide him with information, and the employer or trade union, as the case may be, shall proptly comply with the request; (b) has all the powers, protection and privileges of a commissioner under sections 12, 15 and 16 of the Inquiry Act; (c) may determine his own procedure, but shall give an opportunity to the employer and trade union to present evidence and make representations; and (d) may receive and accept evidence and information on affidavit or otherwise, as in his discretion he considers advisable whether or not i t is admissible as evidence in court. (4) The fact finder shall submit a report to the parties, the agency and the minister within 20 days following the date of his appointment, or within such longer period of time as the minister directs. (5) The report of the fact-finder is not binding on the parties but is made for the advice and guidance of the parties, and on receipt of the report the parties shall endeavour, in good faith, to conclude a collective agreement. (6) Except as provided in subsection (5), no person shall publish or distribute the report of the fact-finder; but the minister may publish and distribute the report in any manner he considers advisable.  129.  Supra, note 126, at 184.  130.  Bryan Downie "Behavioral Economic, and Institutional Effects of Compulsory Interest Arbitration", Discussion Paper No. 147, Economic Council of Canada, Ottawa, 1979, at 40.  131.  UL_ at 32.  132.  David B. Lipsky and Thomas A. Barocci, "Final-Offer Arbitration and Public Safety Employees: The Massachusetts Experience", Industrial Relations Research Association Proceedings of the 30th Annual Meeting, December 1977, New York City (Madison, Wisconsin: The Association, 1978), at 67-75.  - 158 -  133.  D.G. Gallagher and R. Pegnetter, "Impasse Resolution under the Iowa Multistep Procedure", (1979( 32 Industrial and Labour Relations Review, at 327-338.  134.  Supra, note 130 at 80.  135.  Anderson, "Arbitration: The Better Way" (1979) 1 The Rev. 6.  136.  Ibid.  137.  Predictably, the 'voluntary arbitrations' showed the highest incidence of chairman/single arbitrators being selected by the parties themselves. This happened in 8 of the 10 awards. On the question of ministerial appointment, for 'section 73 awards', 9 chairmen/single arbitrators were agreed to by the parties, 5 were appointed by the minister and 1 was appointed by the Labour Relations Board. In the 'Essential Service Disputes Act awards', 4 chairmen were appointed by the minister, while 3 were agreed to by the parties.  138.  B.C.L.R.B. Decision 75/79.  139.  For the purposes of examining time lags, first contract arbitrations were ignored. All figures are averages for the awards in the appropriate category.  140.  There was indication in most of the awards with respect to the point in time at which the parties had agreed to resort to arbitration.  {  141.  Three awards by Sherlock were excluded from the calculation. In these cases, a memorandum of agreement had been reached between the bargaining representatives but either the employer or the employees had subsequently repudiated the accord. The arbitrator imposed the terms of the memorandum of agreement in each of the disputes, handing down his report in a matter of days.  142.  Mark Thompson and James Cairnie, "Compulsory Arbitration: The Case of British Columbia Teachers" (1973-74) 27 Industrial and Labour Relations Review at 3.  143.  John Crispo, The Canadian Industrial Relations System, (McGraw-Hill, Ryerson Ltd., Toronto, 1978) at 422.  144.  Kenneth P. Swan, "The Search for Meaningful Criteria in Interest Arbitration". Kingston, Industrial Relations Centre. Queen's University, 1978.  - 159 -  145.  See Charles J. Morris, "The Role of Interest Arbitration in a Collective Bargaining System", The Future of Labor Arbitration in America, American Arbitration Association 1976, at 197.  146.  Peter Seize, "Mandatory Contract Arbitration: A Viable Process or Not, It Works (Sometimes), (1972-73) 26 Industrial and Labour Relations Review, 1009.  147.  Walter J. Gershenfeld, "Perceptions of the Arbitrator and the Parties", National Academy of Arbitrators, Proceedings of the Thirty-First Annual Meeting, (1978) 305, at 307.  148.  Published by the Research and Planning Branch, Ministry of Labor, Province of British Columbia, Victoria.  149.  For example, in the case of fire fighters and policemen's unions, i t became widely accepted that the appropriate salary level was parity, or near parity with the Vancouver local: Corporation of the City of Dawson Creek and Dawson Creek Firefighters (Sherlock).  150.  A more extensive review of arbitrator's reasons is found in "Criteria Used by Arbitrators in Public Sector Interest Disputes", Reference Report No. 32, Public Employers of British , Columbia, September 21, 1979. The Report examines the extent to which arbitrators have considered the criteria (or elaborated upon their use) at 4-6.  151.  As noted in the awards, the public interest is a "double-edge sword" (Ladner Private Hospital - Owen Flood) and "not a particularly helpful criterion" (R.N.A.B.C. - Mclntyre). One may indeed wonder how the parties themselves can be expected to present an objective view of the public interest. If the legislature is serious in seeing that the public interest is genuinely regarded, this almost of necessity entails submissions from a neutral third party.  152.  In The Matter of The West Kootenay Schools Collective Bargaining Assistance Act, June 30, 1979 (Hall), at p. 17. The arbitrator stated that applying criteria required a great deal of judgment,"...particularly i f the arbitration of interest disputes is seen to be an alternative to free collective bargaining". It is suggested that this is an incorrect view of interest arbitration; i t is an alternative to strike - not to free collective bargaining.  153.  Michael J. Klaper, "Legislated Criteria in Arbitration of Public Safety Contract Disputes".  - 160 -  154.  Idy at 119.  155.  JjL, at 116.  156.  IcL, at 129.  157.  Supra, note 130 at 11.  158.  To reduce this risk, i t might be possible to use final offer arbitration to resolve monetary terms of the collective agreement and rely on conventional arbitration for any remaining issues.  159.  Charles Feigenbaum, "Final Offer Arbitration: Better Theory Than Practice", (1975) 14 Industrial Relations, 311.  160.  Supra, note 130 at 36.  161.  Id., at 40.  162.  Id^, at 79.  163.  Id., at 80.  164.  at 81.  165. 166.  January 31, 1977 (Bird) A-45/77. Industrial Relations Research Association Series, Proceedings of , the Twenty-Sixth Annual Winter Meeting, December 28-29, 1973, New York.  167.  June 28, 1978 (McKee).  168.  Arnold M. Zack, "Final Offer Selection - Panacea or Pandora's Box?", (1973-74) New York Law Forum 579.  169.  Peter Feuille, "Final Offer Arbitration and the Chilling Effect", (1975) 14 Industrial Relations 302, at 305.  170.  JjJ^, at 309.  171.  These disputes were in the mining industry, railroad, chemical plant, and oil industry.  172.  Address by Clive McKee, 'Arbitration of "Rights" and "Interestest" Disputes' at Seminar on Arbitrations, sponsored by British Columbia Department of Labor, December 10, 1974. University of British Columbia.  173.  H.L.R.A. v. H.E.U. [1979] Can. L.R.B.R. 409.  - 161 LIST OF ARBITRATION AWARDS  This is a list of arbitration awards analyzed in this study. The parties, dates and the names of the arbitrators are given, followed by the Ministry of Labour reference code. For tripartite arbitration boards, only the chairman's name is noted.  Awards pursuant to Agreement of the parties  Dogwood Lodges and Hospital Employee's Union, Local 180, July 17, 1975 (Blair); A-135/75. Vancouver Police Board and Vancouver Policemen's Union, July 22, 1975 (Blair); A-139/75. Vancouver Police Board and Vancouver Policemen's Union, January 12, 1976 (Blair); A-l4/76. British Columbia Railway and Teamsters Local 213 et al, June 1, 1976 (Shime); MA-6/76. Vancouver Police Board and Vancouver Policemen's Union, September 27, 1976 (Larson); A-211/76. Cariboo College Faculty Association and Cariboo College Council, November 26, 1976 (Bird); A-271/76. International Typographical Union and Vancouver Island Publishing Company, January 31, 1977 (Bird); A-45/77. Board ofSchool Trustees No. 45 and West Vancouver Municipal Employee's Association, June 17, 1977 (McKee); A-164/77. Fraser Valley Areans (1975) Ltd. and Misc. Workers Union, Local 351, May 30, 1978 (Hickling); MA-12/78.  - 162 -  British Columbia Railway and United Transportation Union, June 28, 1978 (McKee); A-l44/78. The Management and Professional Employees Society of British Columbia Hydro and Power Authority, May 17, 1979 (Thompson); A-l61/79.  - 163 Awards pursuant to section 73 of the Labour Code.  City of Kelowna and Kelowna Firefighters' Association, Local 953 I.A.F.F., June 16, 1975 (Sherlock); A-105/75. Corporation of the District of Burnaby and Burnaby Firefighter's Association, Local 323, I.A.F.F., August 8, 1975 (Sherlock); A-156/75. City of Prince George and Prince George Firefighters' Association, Local 1372 I.A.F.F., August 20, 1975 (Sherlock); MA-14/75. Victoria Policemen's Union and City of Victoria, November 13, 1975(Barclay); MA-24/75. Richmond Private Hospital and Hospital Employees Union, Local 180, December 31, 1975 (Weiler). City of Victoria and Victoria Firefighter's Union, Local 730 I.A.F.F., July 20, 1976 (Davie); A-174/76. Glen Private Hospital and Canadian Union of Public Employees, Local 1731, September 14, 1976 (Thompson). Corporation of the City of Dawson Creek and Dawson Creek Firefighters, Local 2136 I.A.F.F. (Sherlock); MA-12/76. Police Board of the District of Saanich and Saanich Police Association, December 10, 1976 (Stewart); A-55/77. Ladner Private Hospital, et al and Hospital Employee's Union, Local 180, December 15, 1976 (McColl); A-10/77. Health Labour Relations Association and International Union of Operating Engineers, Local 882, January 31, 1977 (Ladner); MA-22/77. City of Victoria and Victoria Firefighter's Union, Local 730 I.A.F.F., May 5, 1977 (Stewart); MA-13/77.  - 164 -  Corporation of the District of West Vancouver and West Vancouver Professional Firefighter's Union, Local 1525 I.A.F.F., April 27, 1977 (Larson) MA-24/77. Kiwanis Hospital Employees Union Senior Citizens' Homes Ltd. and Hospital Employees Union, Local 180, September 29, 1978 (Bird); A221/78. New Vista Care Society and Hospital Employee's Union, Local 180, May 14, 1979 (Larson) A-123/79.  - 165 Awards Pursuant to Section 6 of the Essential Service Disputes Act  Health Labour Relations Association and Hospital Employees Union, Local 180, July 28, 1977 (Hope); A-168/78. Health Labour Relations Association and Registered Nurses Association of British Columbia, June 12, 1978 (Stewart); MA-7/78. The Corporation of the District of Burnaby and Burnaby Firefighter's Association, Local 323 I.A.F.F., August 9, 1978 (Ladner); A-184/78. Health Labour Relations Association and the Health Sciences Association of British Columbia, September 6, 1978 (Larson); MA 17/78. Health Labour Relations Association and Canadian Union of Public Employees, Local 105, April 20, 1979 (Sherlock); A-96/79. Ladner Private Hospital et al and Hospital Employees Union, Local 180, June 12, 1979 (Owen-Flood), MA-11/79. Registered Nurses Association of British Columbia and Government of British Columbia, June 29, 1979 (Maclntyre) MA-38/79.  - 166 -  APPENDIX A S.B.C.  1974,  c.  108  Essential Services Continuation Act  WHEREAS by reason of a strike by the firefighters' unions in the Corporation of the District of North Vancouver, the District of Coquitlam, the Corporation of the Township of Richmond, and the Corporation of Delta, an immediate and serious danger to life and health may occur: And whereas thefirefighters*unions have failed to provide essential life supporting services to the communities affected: And whereas an Industrial Inquiry Commission appointed by the Minister of Labour has failed to resolve the dispute: And whereas extensive mediation has also failed to provide a resolution of the dispute: Now, therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: Cortifiemtton  1. Notwithstanding the Labour Code of British Columbia Act or any other Act or law, the certifications of the (a) District of North Vancouver Fire Fighters' Association, Local 1183; (b) Coquitlam Fire Fighters' Union, Local 1782; (c) Richmond Fire Fighters' Association, Local 1286, International Association of Fire Fighters; (d) Delta Fire Fighters' Association, Local 1763; and (e) Vancouver Fire Fighters' Union, Local 18, International Association of Fire Fighters are varied by substituting, in each case, the Greater Vancouver Council of Fire Fighters' Trade Unions as the bargaining agent for those units.  Constitution o l Council.  2. The Greater Vancouver Council of Fire Fighters' Trade Unions consists of the (a) District of North Vancouver Fire Fighters' Association, Local 1183; (b) Coquitlam Fire Fighters' Union, Local 1782; (c) Richmond Fire Fighters' Association, Local 1286, International Association of Fire Fighters; (d) Delta Fire Fighters' Association, Local 1763; and (e) Vancouver Fire Fighters' Union, Local 18, International Association of Fire Fighters, and shall be deemed to be a council of trade-unions within the meaning of the Labour Code of British Columbia Act.  - 167 -  Effect of certification.  3. Upon the coming into force of this Act, the collective agreement •between the City of Vancouver and the Vancouver Fire Fighters' Union, Local 18, International Association of Fire Fighters and ail the terms and conditions thereof in so far as they may be applicable shall be deemed to constitute the collective agreement between the employers, namely the Corporation of the District of North Vancouver, the District of Coquitfam, the Corporation of the Township of Richmond, the Corporation of Delta, and the City of Vancouver, respectively, and the Greater Vancouver Council of Fixe Fighters' Trade Unions, and is binding upon the employers and their employees represented by the bargaining agents referred to in section 2, except to the extent to which any of the employers and the Greater Vancouver Council of Fire Fighters' Trade Unions agree in writing to vary any or all of those terms and conditions.  Application.  4. (1) Where, in the opinion of the Labour Relations Board, the provisions of the collective agreement first referred to in section 3 cannot be applied in respect of the employees of all or any of the employers named in that section, the board may make such orders' as it considers necessary. (2) Upon the coming into force of this Act, the collective agreement referred to in section 3 applies to the Corporation of the District of North Vancouver, the District of Coquitlam, the Corporation of the Township of Richmond, the Corporation of Delta, and the City of Vancouver and their respective employees represented by the bargaining agents referred to in section 2, effective on the day following the date of expiry of the last preceding collective agreement of each of them with their respective employees.  Interpretation.  5. Unless inconsistent with this Act, the definitions of words contained in the Labour Code of British Columbia Act apply to those words used in this Act  Amends Labour Code of Brittth Columbia Act  6. The Labour Code of British Columbia Act, being chapter 122 of the Statutes of British Columbia, 1973 (Second Session), is amended (a) by repealing section 57 (1) and substituting the following: (1) For the purpose of securing and maintaining industrial peace and promoting conditions favourable to settlement of disputes, the minister may, upon the application of one or more trade-unions, or on his own motion, and after such investigation as he considers necessary or advisable, direct the board to consider whether or not, in a particular case, a council of trade-unions would be an appropriate bargaining agent; and where the board considers it necessary or advisable, it may certify a council of trade-unions as a bargaining agent, or vary a certification by substituting for the trade-union or trade-unions named therein a council of trade-unions as the bargaining agent for that unit; and (b) in section 73, by adding after subsection (6) the following as subsections (7) and (8):~ (7) Where .a dispute between an employer and afirefighters'union, policemen's union, or hospital union is not resolved, and as a consequence an immediate and serious danger to life or health is likely to occur or continuing to occur, the minister mayrecommendthat the LieutenarjtGovemor in Council, by order, prescribe a cooling off period of time not exceeding 21 days during which period no employee or trade-union shall strike and no employer shall lock out his employees or during which period any existing strike or lockout shall be suspended. (8) The Lieutenant-Governor in Council shall not make an order under this section more than once inrespectof the same dispute. u  - 168 -  APPENDIX B S.B.C. 1975, c. 83  Collective Bargaining Continuation Act [Assented to 7th October. 1975.]  HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: Basic indu» tries and services resumed.  W e m  .  1.  . Act,  (1) Commencing 48 hours after the coming into force of this Act,  (a) every employer shall immediately in good faith resume and reinstate the operation of his undertaking, plant, industry, or business to the extent and scope that it was on the date the strike or lockoutfirstoccurred, (b) no employer shall restrict, limit, reduce, diminish, or slow down the operation of his undertaking, plant, industry, or business or the production or output therefrom by reason of or in contravention of this Act, (c) no employer shall reduce, diminish, or cease the production of any goods or the provision of any services where the reduction, diminution, or cessation would be likely to cause immediate and serious danger to life or health, (d) no employer shall declare, authorize, acquiesce in, or engage in a lockout of his employees, (e) every employer to which this Act applies shall call back to work each of his employees who. has been on strike or locked out or has been laid off as a consequence of any strike that has ceased to be valid by reason of the coming into force of this Act, and (Q no employee referred to in paragraph (e) shall be laid off or again be laid off by any such employer as a consequence of any such strike. (2) Nothing in this section shall be construed as affecting the right of an employer to suspend, transfer, lay off, discharge, or discipline an employee for just and reasonable cause. 2. Commencing 48 hours after the coming into force of this Act, (a) all employees shall immediately resume the duties of their employment with their respective employer in accordance with the terms and conditions of the last collective agreement in force between the employees and their respective employer prior to the coming into force of this Act, and (b) no person or trade-union shall declare, acquiesce in, or engage in any strike of the operations of their employers or declare.  -  1 6 9  -  authorize, acquiesce in, or engage in any picketing of the places of business operation of their respective employers, or the places where they are employed. Notice of compliance required.  3. Each person who, at the time this Act comes into force, is authorized on behalf of a trade-union to bargain collectively with an employer for the renewal or revision of a collective agreement, shall forthwith give notice to the members of the trade-union on whose behalf he is authorized to bargain that any declaration, authorization, or direction to go on strike, declared, authorized, or given to them before the coming into force of this Act, has become invalid and that any strike and picketing is prohibited by reason of the coming into force of this Act.  Collective agreement deemed in force.  4. The terms and conditions of a collective agreement between the employers and their respective employees or their trade-union in force on January 1, 1975, are deemed to comprise a collective agreement and, notwithstanding anything to the contrary in the collective agreement, the Labour Code of British Columbia, the regulations made under it, or any order made under the Labour Code of British Columbia, are in full force and effect, commencing 48 hours after this Act comes into force and ending, (a) • in respect of a particular employer and his employees or their trade-union, on the date on which a new or revised collective agreement has been concluded between that employer and his employees or their trade-union, or (b) on the date this Act expires, whichever first occurs.  Bargaining in good faith for new or revised collective agreement.  5. Every employer and his employees or the trade-union representing them shall forthwith enter into negotiations with a view to the settlement of the matters at present in dispute between them as to the terms and conditions of a renewal or revision of the collective agreements to which this Act applies, and shall negotiate in good faith with one another and make every reasonable effort to conclude a settlement and to enter into new collective agreements.  Mandatory terms of new collective agreement.  6. Every collective agreement concluded after 48 hours after this Act comes into force and during the 90-day period that this Act is in force shall, unless the employer and the trade-union otherwise agree, contain provisions that (a) the rate of wages payable at the commencement of the collective agreement shall be retroactive to the date the last collective agreement expired in respect of that employer and his employees or their trade-union, and (b) if ordered by the Lieutenant-Governor in Council, the employer shall pay to each of his employees interest on the amount of any  - 170 -  increase in wages in respect of the retroactive period determined under paragraph (a) at a rate fixed in the order. Application of  Labour Cod:  Regulation*.  7. Unless inconsistent with this Act, the labour Code of British Columbia applies, with the necessary changes and so far as it is applicable. 8. The Lieutenant-Governor in Council may make regulations.  Commincf mint  9. (I) This Act comes into force on Royal Assent and, subject to subsection (2), expires on a date 90 days after the date upon which it comes into force. (2) Notwithstanding subsection (1), the Lieutenant-Governor in Council may, by order, extend this Act for a further period not exceeding 14. days after the date referred to in subsection (1), and, in that event, this Act expires on the date set out in the order. (3) Where an employer and his employees or their trade-union have concluded a collective agreement, including the provisions referred to in section 6, this Act does not apply to that employer and his employees or their trade-union on and after the date on which the collective agreement was concluded.  lnterpr tatlon.  10. (1) In this Act, unless the context otherwise requires, "collective agreement" means a collective agreement between the employer and his employees or their trade-union that expired on or after January 1, 1975, and has not been renewed or revised prior to the coming into force of this Act; "employee" means an employee of an employer; "employer" means an employer involved in a labour-management dispute in the forest, pulp and paper, railway, propane and butane distribution, or food merchandising industries, and includes, without limiting the generality of the foregoing, the employers' organizations representing the employers in each of those industries set out in the Schedule; "trade-union" means a trade-union representing some or all of the employees of an employer. (2) Unless inconsistent with this Act, the definitions.of words used in this Act have the same meaning as in the ljibour Code of British Columbia.  - 171  -  APPENDIX C S.B.C. 1976, c. 21  Hospital Services Collective Agreement Act [Assented to 9th June, 1976.]  WHEREAS a dispute between the Health Labour Relations Association, representing certain hospitals, and the Hospital Employees' Union, Local 180 exists and has resulted in work stoppages: And whereas various initiatives have been taken to assist the parties in the resolution of their dispute, including the appointment by Order in Council of a Special Mediator: And whereas the parties remain unable to achieve settlement and further work stoppages are likely to occur: And whereas the Special Mediator has recommended the terms and conditions of a collective agreement between the parties: Now, therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: 1. In this Act "employee" means employees of an employer within a bargaining unit for which the trade-union is certified; "employer" means those employers set forth in Schedule A to the accreditation, a true copy of which is identified by the signatures of the Clerk of the Legislature and the Provincial Secretary and is on file in the office of the Gerk of the Legislature and the office of the Provincial Secretary, and includes, where the context so requires, H.L.R.A.; "H.L.R.A." means the Health Labour Relations Association of British Columbia accredited as bargaining agent for the employers; "minister" means that member of the Executive Council charged by order of the Lieutenant-Governor in Council with the administration of this Act; "parties" means the employers and the trade-union and includes, where the context so requires, H.L.R.A.; "report" means the report and recommendations of the Special Mediator appointed by Order in Council No. 1623 approved and ordered May 25, 1976, true copies of which report andrecommendations,identified by the signatures of the Clerk of the Legislature and the Provincial Secretary, are on file in the office of the Gerk of the Legislature and the office of the Provincial Secretary; "trade-union" means the Hospital Employees' Union, Local 180.  - 1 7 2 -  Deemed collective acreement.  Review and variation at collective agreement.  HotpiUl •ervtcet continued.  2. (1) Forthwith upon the coming into force of this Act, (a) Appendix I of the report shall be deemed to constitute the terms and conditions of a collective agreement between the parties, (b) H.LR.A. and the trade-union shall forthwith execute documents in the form of Appendix I to the report, and (c) if H.LR.A. or the trade-union fails to execute documents in the form of Appendix I to the report within 5 days after the date on which this Act comes into forced the party failing to execute the documents shall be deemed to have executed them. (2) The collective agreement constituted under subsection (1) (a) may be varied by agreement between H.L.R.A. and the trade-union. 3. (1) As soon as practicable after the coming into force of this Act, H.L.R.A. and the trade-union, or in the event of their failure, the Special Mediator referred to in the report shall refer the collective agreement constituted under section 2 for review under the Anti-Inflation Act (Canada) and the regulations under that Act. (2) Where (a) variations to the collective agreement constituted under section 2 are ordered under the Anti-Inflation Act (Canada) or regulations under that Act, those variations shall be deemed to be a part of the collective agreement constituted under section 2, and (b) any dispute arises between the parties respecting any such variation, the Special Mediator referred to in the report shall deal with the matters in dispute and shall make an award and the award is final and binding on the parties. 4. Forthwith upon the coming into force of this Act and notwithstanding  the Labour Code of British Columbia ,  (a) no employer shall lock out or declare a lockout of any of its employees, (b) the trade-union and the employees shall terminate any strike and shall not strike, (c) every employee shall continue or resume the ordinary duties of his employment with his employer, (d) the trade-union shall give notice to the employees that any declaration, authorization, or direction to go on strike given before or after the coming into force of this Act has become invalid by reason of this Act, (e) no officer or representative of the trade-union shall in any manner impede or prevent, or attempt to impede or prevent, any person to whom paragraphs (a) to (c) apply from complying with those paragraphs, and  - 1 7 3 i  (0  L i m i t on n 4.  Special  fund.  Other Act.  no employer or person acting on behalf of an employer or any of ' them shall (i) refuse to permit any person to whom paragraphs (a) to (c) apply to continue or resume the ordinary duties of his employment, or (ii) discharge or in any other manner discipline such a person by reason of his having been locked out or on strike prior to the coming into force of this Act.  5. Section 4 ceases to apply upon the expiration of the collective agreement constituted under section 2. 6. The Minister of Finance shall set aside out of the Consolidated Revenue Fund and hold in a special fund until March 31,1977, the sum of Sfj million, to be paid out on the requisition of the Minister of Health without an appropriation other than this section, for the purpose of implementation of the job evaluation provisions in the collective agreement constituted under section 2, and any further money required for that purpose shall be paid out of money authorized by the Legislature. 7. (1) Unless inconsistent with this Act, the definitions, provisions and  procedures set out In the Labour Code of British Columbia and the  regulations under that Act apply. (2) Where there is a conflict or inconsistency between this Act and the  Labour Code of British Columbia, this Act applies.  (3) Any question or difference between the parties (a) as to whether this Act has been complied with, or (b) respecting the interpretation or application of this Act may be referred by the parties or any of them to the Labour Relations Board, and the Labour Relations Board may decide the question or difference and enforce the decision (c) in any of the ways, and (d) by applying any of the remedies available for the enforcement of a decision or order of the Labour Relations Board under the Labour Code of British Columbia.  Regulation*. Appropruuon.  8. The Lieutenant-Governor in Council may make regulations. 9. Money required for the administration of this Act shall, until March 31, 1977, be-paid out of the Consolidated Revenue Fund and thereafter out of money authorized by the Legislature for that purpose. Printed hy K. M. M x O m t u , Primer Io the Queen'* Motl Eiccllcn) MajeMy in riaru of the Province of Britiih Columbia. 1»1<  - 174 -  APPENDIX D S.B.C. 1976, c. 48  Railway and Ferries Bargaining Assistance Act [Assented to 14th June, 1976. ]  HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: 1. In this Act "collective agreement", except in Part II, means a collective agreement, as defined in the Labour Code of British Columbia, between an employer  and its employees or their trade-union, and includes a renewal or revision of a collective agreement; "employee" means a person who is ordinarily employed by an employer and 'on whose behalf a trade-union is entitled to bargain with the employer; "employer", except in Part II, means the British Columbia Railway Company and the British Columbia Ferries Division of the Department of Transport and Communications, or the British Columbia Ferry Corporation, as the case may be; "minister" means that member of the Executive Council charged by order of the Lieutenant-Governor in Council with the administration of this Act; "trade-union" means a trade-union representing some or all of the employees of an employer. PART I  2. (1) The minister may, with the approval of the Lieutenant-Governor in Council, appoint Special Commissions consisting of such number of persons and for such terms as he considers necessary or advisable. (2) The Lieutenant-Governor in Council shall designate a chairman and may designate a vice-chairman from among the members of a Special Commission. (3) In the case of the absence or inability to act of the chairman or of there being a vacancy in the'office of the chairman, the vice-chairman shall act as and have all the powers of the chairman,and in the absence of the chairman and vice-chairman from a meeting of a Special Commission, the members of the Special Commission present at the meeting shall appoint an acting chairman who shall act as and have all the powers of the chairman during the meeting. (4) Every vacancy on a Special Commission caused by the death, resignation, or incapacity of a member may befilledby the appointment, by the Lieutenant-Governor in Council, of a person to hold office for the remainder of the term of that member. :  - 175 -  (5) Each of the members of a Special Commission is eligible for reappointment upon the expiration of his term of office. (6) The members of a Special Commission shall be paid such remuneration and expenses asare determined by the Lieutenant-Governor in Council. (7) A Special Commission may, with the approval of the minister, appoint and pay such assistants, advisers and employees as are necessary for the purpose of carrying out its duties. Duties of Special Commission.  Powers of Special Commission,  3. A Special Commission may inquire into all matters pertaining to the relationships between an employer and its employees or their trade-unions and the disputes or differences arising between them, with a view to securing and maintaining industrial peace and furthering harmonious relations between them and (a) may report its recommendations to the minister from time to time, and shall report to the minister on request, and (b) if directed by the minister, shall publish the report. 4. A Special Commission, in carrying out an inquiry under this Act, (a) has all the powers of a Commissioner under sections 7, 10 and 11 of the Public Inquiries Act,  (b) may receive and accept evidence and information on affidavit or otherwise, as in its discretion it considers advisable, whether or not it is admissible as evidence in court, and (c) may determine its own procedure, but shall give an opportunity to any interested party to present evidence and make representations. Inquiries of Special Commission.  5 . (1) Without limiting the generality of section 3, a Special Commission may inquire into and make a report and recommendations respecting (a) the procedures to be followed for development and implementation of job evaluation in an employer's operations, and (b) any other matter affecting relations between an employer and its employees not included or referred to in a collective agreement. (2) A report and recommendations of a Special Commission (a) made under subsection (1) (a) (i) may include a provision that all or any part of the report and recommendations shall be deemed to be a part of a collective agreement, or, if a collective agreement is not then in force, of a collective agreement thereafter entered into, and (ii) is final and binding on the employer, the trade-union affected and the employees on whose behalf it is entitled to bargain, or  - 176 -  (b) made under subsection (1) (b) is final and binding, if a Special Commission so recommends, on the employer, the trade-union affected and the employees on whose behalf It is entitled to bargain for a period, not exceeding 90 days, stated in the recommendation, or (c) made under this section may be varied by agreement between the employer and the trade-unions affected. PART 17 Interpretation.  Railway torvicea to be resumed.  6. In this Part 'collective agreement" means a collective agreement between the employer and its employees, or their trade-union, that expired before this Part comes into force and has not been renewed; "employer" means the British Columbia Railway Company; "normal operations" means such operations of the employer as require the employment of not less than the normal number of employees employed during a period specified in an order of the LieutenantGovernor in Council. 7. (1) Within 48 hours after the coming into force of this section, (a) the employer (i) shall resume its normal operations, (ii) shall re-engage and resume the employment of every employee required for its normal operations, and (iii) shall not declare, authorize, acquiesce in, or engage in a lockout of employees, (b) every employee of the employer who was bound by a collective agreement to which this Part applies shall resume the normal duties of his employment with the employer, (c) no person or trade-union affected by this Part shall declare, authorize, acquiesce in, or engage in a strike of the operations of the employer, or declare, authorize, acquiesce in, or engage in picketing of the place of business, operations, or employment of the employer, and (d) every person who is authorized on behalf of a trade-union affected by.this Part to bargain collectively with the employer for the amendment, renewal, or revision of a collective agreement shall give notice to the members of that trade-union on whose behalf he is authorized to bargain that  - 177 -  j  (i)  a declaration, authorization, or direction to go on strike, declared, authorized, or given to them before or after the coming into force of this section, has become or is invalid, and (ii) any strike and picketing is prohibited by reason of the coming into force of this section, and shall inform those members of their obligations under paragraph (b). (2) No person acting on behalf of the employer shall (a) refuse to permit, or authorize or direct another person to refuse to permit, an employee of the employer who went on strike before the coming into force of this section to resume the duties of his ordinary employment forthwith, or (b) suspend, discharge, or in any manner discipline, or authorize or direct another person to suspend, discharge, or in any other manner discipline such an employee by reason of his having been on strike before the coming into force of this section. (3) Nothing in this Part shall be construed as affecting the right of the employer to suspend, discharge, or discipline an employee for just and reasonable cause. Eztention t^cnMnta?  &- 0) The term of every collective agreement to which this Part applies i* extended to include the period beginning from its expiry date and ending on the date on which a new or revised collective agreement comes into effect. (2) The terms and conditions of every collective agreement to which this Act applies are effective and binding on the parties to it for the period referred to in subsection (1), notwithstanding anything in the Labour Code of British Columbia or in the collective agreement. (3) During the term during which a collective agreement is extended by subsection (1), (a) section 7 applies, (b) subject to section 7 (3), the employer shall not, except with the consent of the trade-unions, alter the rates of wages of the employees or any other term or condition of employment that was in operation on the expiry date referred to in subsection (1), and (c) the trade-unions shall not, except with the consent of the employer, alter any of the terms or conditions of employment that were in operation on the expiry date referred to in subsection (1).  - 178 -  Board of Arbitration.  9. (1) Where the employer and any trade-union are unable to conclude a new or revised collective agreement, the minister may appoint one or more persons as a Board of Arbitration. (2) Where more than one person is appointed, the Board of Arbitration shall consist of a chairman, and members, equal in number, representing the employer and the employees of the employer. (3) Where an arbitrator is unable to enter on or complete his duties so as to enable him to render his decision within a reasonable time after his appointment, the minister shall appoint another person to act as arbitrator in his place and the inquiry may begin as a re-hearing or proceed to completion. (4) The Board of Arbitration shall determine its own procedure, but shall give full opportunity to the employer and the trade-unions affected to present their evidence and make their submissions. (5) The Board of Arbitration has all the powers of an arbitrator under the Labour Code of British Columbia.  Employer and trade-unions to negotiate.  D u t y of Board of Arbitration.  10. The employer and the trade-unions affected shall, upon the appointment of a Board of Arbitration by the minister, forthwith, with the assistance of the Board of Arbitration, enter into negotiations with a view to the settlement of the matters in dispute, and shall negotiate in good faith and make every reasonable effort to conclude a settlement and to enter into a new or revised collective agreement. 11. (1) The Board of Arbitration shall examine into and decide all matters remaining in dispute between the employer and the trade-unions affected and any other matters that appear to the Board of Arbitration to be necessary to be decided in order to conclude new or revised collective agreements between the parties. (2) The Board of Arbitration shall remain seized of and may deal with all matters in dispute until new or revised collective agreements between the employer and the trade-unions affected are in full force and effect. (3) Where, before or during the proceedings before the Board of Arbitration, the employer and a trade-union affected agree upon some matters to be included in a new or revised collective agreement and they so notify the Board of Arbitration in writing, the decision of the Board of Arbitration shall include those matters and, in addition, (a) the matters not agreed upon between the employer and the trade-unions affected, (b) such other matters as may be-agreed upon by the employer and those trade-unions, and (c) such other matters as may appear to the Board of Arbitration to be necessary to be decided in order to conclude the new or revised collective agreements.  - 179 -  (4) The Board of Arbitration ihall conclude the inquiry and give its decision within 30 days after the commencement of the inquiry; but the minister may extend the inquiry for such period as he considers necessary or advisable, or where all the parties to a particular collective agreement agree in writing, the Board of Arbitration may extend the inquiry for the period agreed upon. (5) Where, before or during the proceedings before the Board of Arbitration, the employer and the trade-unions agree, the Board of Arbitration may use (a) fact-finding, or (b) final offer selection, or (c) mediation to finality, or a combination of those methods, in order to make a decision on all matters remaining in dispute. Decision of Board of Arbitration b Incline  12. (1) The decision of the Board of Arbitration shall befinaland binding upon the employer and the trade-unions affected and the employees on whose behalf the trade-unions are entitled to bargain. (2) Within 7 days after the date of the decision of the Board of Arbitration or such longer period as may be agreed upon in writing by the parties to a particular collective agreement, the parties shall prepare and execute documents giving effect to the decision of the Board of Arbitration, and the documents so executed constitute new or revised collective agreements. (3) If the parties fail to prepare and execute documents in the form of new or revised collective agreements giving effect to the decision of the Board of Arbitration within the period referred to in subsection (2), the parties or any of them shall notify the Board of Arbitration in writing forthwith, and the Board of Arbitration shall prepare documents in the form of new or revised collective agreements giving effect to the decision of the Board of Arbitration and any agreement of the parties and submit the documents to the parties for execution. (4) If the parties or any of them fail to execute the documents prepared by the Board of Arbitration within a period of 7 days after the day of submission of the documents by the Board of Arbitration to them, the documents shall come into effect as though they had been executed by the parties and the documents constitute new or revised collective agreements under the Labour Code of British Columbia.  Arbitration Act not to apply.  13. (1) The Arbitration Act does not apply to proceedings under this Act. (2) The employer and the trade-unions affected shall assume their own costs of proceedings under this Act, and the remuneration and expenses of the chairman of the Board of Arbitration shall be paid out of the Consolidated Revenue Fund without an appropriation other than this Act.  - 180 -  Application  ° *** «•  14. Where a new or revised collective agreement comes into effect pursuant to this Part, this Part ceases to apply to the parties to that collective agreement. PART  Interpretation.  Coolinf-off period.  III  15. In this Part, "normal operations" means such operations of an employer as require the employment of not less than the normal number of employees employed during a period specified in an order made under section 16. 16. (1) Where an employer and a trade-union are unable to conclude a collective agreement and the Lieutenant-Governor in Council is of the opinion that an immediate and substantial threat to the economy and welfare of the Province and its citizens exists or is likely to occur, he may, by order, prescribe a period, not exeeding 90 days, during which (a) the employer shall continue or, within 48 hours after the order is made, resume its normal operations, and shall re-engage and resume the employment of every employee required for its normal operations, (b) the employer shall not declare, authorize, acquiesce in, or engage in a lockout of employees, (c) the employer shall not transfer, lay off, or demote an employee without just and reasonable cause, (d) every employee shall continue or, on the call of the employer pursuant to paragraph (a), resume the normal duties of his employment with the employer, (e) neither the trade-union nor any person on its behalf, nor any employee of the employer on whose behalf the trade-union is entitled to bargain, shall declare, authorize, acquiesce in, or engage in a strike of the operations of the employer, or declare, authorize, acquiesce in, or engage in picketing of the place of business, operations, or employment of the employer, and ( 0 the terms and conditions of employment shall be those terms and conditions prevailing with respect to the employees of that employer during the period specified under section 15, except to" the extent that the employer and the trade-union affected agree to vary them. (2) Every person, who at the time an order under subsection (1) is made is authorized on behalf of a trade-union to bargain collectively with the employer for a collective agreement, shall (a) immediately give notice to the employees on whose behalf he is authorized to bargain  - 181 -  (i)  that a declaration, authorization, or direction to go on strike, declared, authorized, or given to them before or after the time the order is made, is suspended for the period prescribed in the order, and (ii) that any strike and picketing is prohibited by reason of the order, and (b) inform those employees of their obligations under subsection (1) (d). (3) No person acting on behalf of the employer shall (a) refuse to permit, or authorize or direct another person to refuse to permit, an employee who went on strike before the time of an order under subsection (1) to resume the duties of his ordinary employment, or (b) suspend, discharge, or in any manner discipline, or authorize or direct another person to suspend, discharge, or in any other manner discipline such an employee by reason of his having been on strike before the time the order is made. (4) Nothing in this Act shall be construed as affecting the right of the employer to suspend, discharge, or discipline an employee for just and reasonable cause. (5) The Lieutenant-Governor in Council may, by order, extend the period referred to in subsection (1) for a further period not exceeding 14 days. (6) The Lieutenant-Governor in Council shall not make an order under subsection (1) or (5) more than once in respect of the same dispute. 17. (1) Where the Lieutenant-Governor in Council has made an order under section 16, the minister shall forthwith appoint a special mediator to confer with the parties to assist them in settling the terms of a collective agreement, and where the minister appoints more than one special mediator he shall designate a chairman. (2) In this section, "special mediator" means one or more special mediators appointed pursuant to this section. (3) The special mediator may determine his own procedures and both the employer and trade-union shall comply with those procedures, and where the special mediator requests information from the employer or trade-union the employer or trade-union, as the case may be, shall provide the special mediator with full and complete information. (4) The special mediator shall, no later than a date prescribed in his appointment, make a*report to the minister setting out the progress of the mediation. (5) The special mediator shall not, in his report, recommend the terms and conditions of settlement of the dispute, unless he considers that such recommendations would resolve the dispute between the parties.  - 182 -  (6) Where the dispute is not resolved, the special mediator shall, not later than a date prescribed in his appointment, report to the minister his recommendations as to the procedures that should be followed to achieve a collective agreement. 18. (1) Where the special mediator recommends, pursuant to section 17 (6), that fact-finding should be the procedure to be followed, the minister may appoint a person as the fact-finder. (2) The fact-finder shall confer with the parties and inquire into, ascertain and make a report setting out the matters agreed upon by the parties for inclusion in a collective agreement and all matters remaining in dispute between the parties, and the fact-finder shall, in his report, include his findings in respect of any matter that he considers relevant to the conclusion of a collective agreement, and may recommend terms of settlement of all matters remaining in dispute. (3) The fact-finder, in carrying out his duties, (a) may require an employer or trade-union to provide him with information, and the employer, or trade-union, as the case may be, shall forthwith comply with the request, (b) has all the powers of a Commissioner under sections 7,10 and 11 of the Public Inquiries Act,  (c) may determine his own procedure, but shall give an opportunity to the employer and trade-union to present evidence and make representations, and (d) may receive and accept evidence and information on affidavit or otherwise, as in his discretion he considers advisable, whether or not it Is admissible as evidence in court. (4) The fact-finder shall submit a report to the parties within 20 days following the date of his appointment, or within such longer period of time as the minister directs. (5) The report of the fact-finder is not binding on the parties but is made for the advice and guidance of the parties, and upon receipt of the report the parties shall endeavour, in good faith, to conclude a collective agreement. (6) Except as provided in subsection (4), no person shall publish or distribute the report of the fact-finder; but if a collective agreement has not been concluded within 10 days after the submission of the report to the parties, the fact-finder shall submit bis report to the minister, who may publish and distribute the report in any manner he considers advisable.  I  - 183 -  PART Other Act*.  rv  19. (1) Unless inconsistent with this Act, the definitions, provisions and  procedures set out in the Labour Code of British Columbia and the regulations under that Act or the Public Service Labour Relations Act and the  regulations under that Act, as the case may be, apply. (2) Where there is a conflict or inconsistency between this Act and the  Labour Code of British Columbia or the Public Service Labour Relations Act,  respectively, this Act applies. (3) Any question or difference between the parties (a) as to whether this Act or a binding report or recommendation of the Special Commission has been complied with, or (b) respecting the interpretation or application of this Act or the regulations, or an order made under this Act may be referred by the parties or any of them to the Labour Relations Board, and the Labour Relations Board may decide the question or difference and enforce the decision (c) in any of the ways, and (d) by applying any of the remedies available for the enforcement of a decision or order of the Labour Relations  Board under the Labour Code of British Columbia or the Public Service Labour Relations Act, as the case may be. Regulations. Appropriation.  Commencement.  20. The Lieutenant-Governor in Council may make regulations. 21. Money required for the purpose of this Act shall, until March 31, 1977, be paid out of the Consolidated Revenue Fund and thereafter out of money authorized by the Legislature for that purpose. 22. (1) This Act, except Part II, comes into force on a day to befixedby Proclamation. (2) Part II comes into force on June 15, 1976.  Printed by K. M . M A C D O N A L O , Printer to the Queen's Most E i c e l l c n t Majesty in right of the Province of British C o l u m b i a . 1976  - 184 -  APPENDIX E S.B.C. 1977, c. 83  Essential Services Disputes Act [Assented to 21 st October, 1977.)  HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: 1. In this Act "agency" means the Essential Services Advisory Agency established under Part I; "employer" means an employer in the Schedule or an employer of the members of thefire-fighters'unions, policemen's unions and health care unions; "fire-fighters' union" means a trade-union certified for a unit in which the majority of employees has as its principal duties the fighting of fires and the carrying-out of rescue operations; "health care union" means a trade-union certified for a unit in which the majority of employees has as its principal duties the health care of patients or operation and maintenance of a hospital; "policemen's union" means a trade-union certified for a unit in which the majority of employees is engaged in police duties; "minister" means that member of the Executive Council charged by order of r the Lieutenant-Governor in Council with the administration of this Act; "normal operations" means such operations of the employer as require the employment of not less than the normal number of employees employed during a period specified in an order of the LieutenantGovernor in Council; "special mediator" means a person appointed under section 8 (e). 2. (1) This Act applies to the employers defined in section 1 , their' employees and the trade-unions representing them. (2) Unless inconsistent with this Act, the definitions, provisions and procedures in the Labour Code of British Columbia and the regulations under it or the Public Service Labour Relations Act and the regulations under it, as  the case may be, apply to this Act. (3) Where there is a conflict or inconsistency between this Act and the  regulations under it, and the Labour Code of British Columbia or the Public  Service Labour Relations Act and the regulations under either of them, this Act and the regulations under it applies.  -185 -  PART I Essential Services Advisory Acency.  3. (1) The Lieutenant-Governor in Council shall, by order, establish an Essential Services Advisory Agency consisting of such number of members for such terms as is specified in the order. (2) The members shall be paid such remuneration and expenses as the Lieutenant-Governor in Council determines. (3) The Lieutenant-Governor in Council may designate one of the members to act as chairman of the agency. (4) Notwithstanding the Public Service Act, the agency may employ such employees, specialists and consultants as it considers necessary to enable it to carry out its duties and may determine their remuneration. 1  Duties of acency.  Fectflndinc  4. (1) On the request of the Lieutenant-Governor in Council, the agency shall investigate and report to him with advice and recommendations respecting (a) the causes of industrial relations disputes in essential services under this Act, (b) the impact on, or extent of danger to, the public or threat to the economy of the Province referred to in section 8, (c) the development with employers and employees of strategies and plans for the prevention of interruption of essential services and the resolution of industrial relations disputes, (d) special procedures necessary to conclude a collective agreement or a renewal or revision of it, and (e) such further and other matters as he may request. (2) The agency has all the powers, protection and privileges of a Commissioner under sections 7,10 and 11 of the Public Inquiries Act. (3) A report by the agency under subsection (1) shall be published by the agency forthwith after it is given to the Lieutenant-Governor in Council. 5. (1) Where the agency recommends that fact-finding should be a procedure to be followed, the minister may appoint a person as the fact-finder. (2) The fact-finder shall confer with the parties and inquire into, ascertain and make a report setting out the matters agreed on by the parties for inclusion in a collective agreement and all matters remaining in dispute between the parties, and the fact-finder shall, in his report, include his findings in respect of any matter that he considers relevant to the conclusion of a collective agreement, and may recommend terms of settlement of all matters remaining in dispute. (3) The fact-finder, in carrying out his duties, (a) may require an employer or trade-union to provide him with information, and the employer or trade-union, as the case may be, shall forthwith comply with the request,  - 186 -  (b) has all the powers, protection and privileges of a Commissioner under sections 7, 10 and 11 of the Public Inquiries Act, (c) may determine his own procedure, but shall give an opportunity to the employer and trade-union to present evidence and make representations, and (d) may receive and accept evidence and information on affidavit or otherwise, as in his discretion he considers advisable, whether or not it is admissible as evidence in court. (4) The fact-finder shall submit a report to the parties, the agency and the minister within 20 days following the date of his appointment, or within such longer period of time as the minister directs. (5) The report of the fact-finder is not binding on the parties but is made for the advice and guidance of the parties, and on receipt of the report the parties shall endeavour, in good faith, to conclude a collective agreement. (6) Except as provided in subsection (5), no person shall publish or distribute the report of the fact-finder; but the minister may publish and distribute the report in any manner he considers advisable. PART II Settlement  Sy uoitrmUon-  6. (1) Where afire-fighters'union, policemen's union, or health care union and an employer or a representative authorized by the employer have bargained collectively- in good faith and fail to conclude a collective agreement or a renewal or revision of it, the trade-union may elect, by giving a notice in writing to the employer and the minister, to resolve the dispute by arbitration. (2) On the receipt of a notice under subsection (1), the parties shall make such arrangements as are mutually agreed for the appointment of a single arbitrator or the establishment of an arbitration board and the appointment of a chairman to hear the dispute and resolve it by settling the terms and conditions of a collective agreement. (3) Where, within 10 days after the notice has been given, the parties fail to agree to a single arbitrator or an arbitration board is not fully constituted, the minister shall appoint a single arbitrator or fully constitute an arbitration board to hear the dispute and resolve it by settling the terms and conditions of a collective agreement. (4) The terms and conditions settled by the single arbitrator or arbitration board shall be deemed to be a collective agreement between the parties, binding on them and the employees except to the extent to which the parties agree to vary any or all of them. (5) No employer referred to in this section shall lock out his employees, and no employee or trade-union referred to in this section shall strike during  - 187 -  a period from the date a notice is given under this section until the date a collective agreement settled under subsection (2), (3), or (4) terminates and unless he otherwise complies with the Labour Code of British Columbia. Arbitration.  7. 0) In an arbitration under this Act, the single arbitrator or the arbitration board shall have regard to (a) the interests of the public, (b) the terms and conditions of employment in similar occupations outside the employer's employment, including such geographic, industrial, or other variations as the single arbitrator or arbitration board considers relevant, (c) the need to maintain appropriate relationships in the terms and conditions of employment as between different classification levels within an occupation and as between occupations in the employer's employment, (d) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered, and (e) any other factor that the single arbitrator or the arbitration board considers relevant to the matter in dispute. (2) The Arbitration Act does not apply to an arbitration under this Act. (3) Sections 99, 101 to 105 and 107 of the Labour Code of British  Columbia apply to an arbitration under this Act. (4) Where it is shown to the satisfaction of the single arbitrator or the arbitration board that he or it has failed to deal with any matter in dispute or that an error is apparent on the face of the decision, the single arbitrator or arbitration board may, on application by either party to the dispute within 10 days after the effective date of its decision, and after giving the parties the opportunity to make representations, amend, alter, or vary the decision. (5) There is no appeal from a decision or award of a single arbitrator or an arbitration board referred to in this Act. PART III 8. Where an employer and a trade-union fail to conclude a collective agreement or a renewal or revision of it, or a dispute between them is not resolved, and the Lieutenant-Governor in Council is of the opinion that, as a consequence, (a) an immediate and serious danger to life, health, or safety, or (b) an immediate and substantial threat to the economy and welfare of the Province and its citizens  - 188 -  exists or is likely to occur, he may, with respect to the employees covered or to be covered by the collective agreement, do one or more of the following: (c) direct the Labour Relations Board to designate those facilities, productions and services that it considers necessary or essential to prevent immediate and serious danger to life, health, or safety or an immediate and substantial threat to the economy and welfare of the Province and its citizens, and the Board shall order the employer and the trade-union to continue to supply, provide, or maintain in full measure those facilities, productions and services and not to restrict or limit any facility, production, or service so designated; (d) prescribe a period not exceeding 90 days, commencing at the time provided in the order, during which (i) the employer shall continue or resume its normal operations and shall re-engage and resume the employment of every employee required for its normal operations, (ii) the terms and conditions of employment shall be those terms and conditions prevailing with respect to the employees of that employer immediately prior to the prescribed period, except to the extent that the employer and the trade-union affected agree to vary them; (iii) the employer shall not declare, authorize, acquiesce in, or engage in a lockout of employees, (iv) the employer shall not transfer, lay off, demote, suspend, or dismiss an employee without just and reasonable cause, (v) every employee shall continue or, on the call of the employer pursuant to subparagraph (i), resume the normal duties of his employment with the employer, (vi) neither the trade-union nor any person on its behalf, nor any employee of the employer on whose behalf the trade-union is entitled to bargain, shall declare, authorize, acquiesce in, or engage in a strike of the operations of the employer, or declare, authorize, acquiesce in, or engage in picketing of the place of business, operations, or employment of the employer, and (vii) the employer and the trade-union shall continue or commence to bargain collectively in good faith and make every reasonable effort to conclude a collective agreement or a renewal or revision of it; (e) appoint one or more special mediators to confer with the parties to assist them in settling the terms of a collective agreement and, where he appoints more than one special mediator, he shall designate a chairman.  - 189 -  9. (1) On the making of an order by the Lieutenant-Governor in Council or the Labour Relations Board under section 8 (c) or (d), (a) every person, who is authorized on behalf of a trade-union to bargain collectively with the employer for a collective agreement, shall (i) immediately give notice to the employees on whose behalf he is authorized to bargain (A) that a notice, declaration, authorization, or direction to go on strike, declared, authorized, or given to them before or after the time the order is made, is suspended for the period prescribed in the order, and (B) that any strike and picketing is prohibited by reason of the order, and (ii) inform those employees of their obligations under section 8 (d), and (b) every employer, trade-union, or employee affected by an order under section 8 (c) or (d) shall comply with the order. (2) No employer or person acting on behalf of the employer shall (a) refuse to permit, or authorize or direct another person to refuse to permit, an employee who went on strike before the time of an order made by the Lieutenant-Governor in Council or the Labour Relations Board under section 8 to resume the duties of his ordinary employment, or (b) suspend, discharge, or in any manner discipline, or authorize or direct another person to suspend, discharge, or in any other manner discipline, such an employee by reason of his having been on strike before the time the order is made; but nothing in this section affects the right of the employer to suspend, discharge, or discipline an employee for just and reasonable cause. (3) For the purpose of this Act, the failure or refusal by an employee, without lawful excuse, to comply with an order made by the LieutenantGovernor in Council or the Labour Relations Board under section 8 shall be deemed to be just and reasonable cause for demotion, suspension, or dismissal  of the employee, and section 98 (d) and (e) of the Labour Code of British  Columbia does not apply. ( 4 ) Where an employer or an employee, without lawful excuse, fails or refuses to comply with an order made by the Lieutenant-Governor in Council or an order of the Labour Relations Board in a matter arising under section 8, (a) In the case of the employer, he shall, in addition to the wages that he is required to pay to his employees, pay an amount equal to the wages of all his employees affected by the non-compliance for every day the employer fails or refuses to comply with the order, and  - 190 -  (b) in the cue of the employee, the employer shall reduce the wages of the employee by an amount equal to the wages of that employee for every day the employee fails Or refuses to comply with the order and the additional amount payable under paragraph (a) or the amount by which the wages of an employee is reduced under paragraph (b) shall forthwith be paid by the employer to a charitable organization qualified as such under the Income Tax Act (Canada) for use exclusively within the Province, that is agreed to by the parties or, failing agreement, designated by the Lieutenant-Governor in Council. (5) Any question or difference between the employer, the employees, or their trade-union with respect to any matter arising under subsection (4). including (a) the additional amount to be paid by an employer under subsection (4) (a), (b) the amount by which the wages of an employee is to be reduced under subsection (4) (b), and (c) the manner and time for the implementation of the payment or reduction, shall be referred for determination to the Labour Relations Board. Extension.  Election to arbitrate.  Special mediator.  Report.  10. (1) The Lieutenant-Governor in Council may, by order, extend the period referred to in section 8 for a further period not exceeding 14 days. (2) The Lieutenant-Governor in Council shall not make an order under subsection (1) or section 8 (d) more than once in respect of the same dispute. 11. Where an order is made by the Lieutenant-Governor in Council under section 8 (c) or (d), the trade-union named in the order may, by giving notice in writing to the employer and the minister within 14 days after the date of the order, elect to conclude a collective agreement or a renewal or revision of it by arbitration, and section 6 (2) to (S) applies. 12. (1) The special mediator may determine his own procedures and both the employer and trade-union shall comply with those procedures and, where the special mediator requests information from the employer or trade-union, the employer or trade-union, as the case may be, shall provide the special mediator with full and complete information. (2) The special mediator has all the powers, protection and privileges of a Commissioner under sections 7,10 and 11 of the Public Inquiries Act. 13. (1) The special mediator shall, at the request of the minister, report on the progress of the mediation.  - 191 -  (2) Where the dispute is not resolved, the special mediator shall, not later than a date set out in his appointment, report to the minister his recommendations. PART IV F i l i n t of order ln court.  14. (1) The Labour Relations Board may, on the application of any person or on its own motion, and shall, on order of the Lieutenant-Governor in Council, forthwith after it is made,filein a registry of the Supreme Court a copy of every order made by it in a matter arising under this Act, and the order shall be filed as if it were an order of the court and, on being filed, the order shall be deemed for all purposes, except for the purpose of an appeal from it, to be an order of the Supreme Court effective from the date the order was made by the Board. (2) Notwithstanding the filing of an order under subsection (1), the Labour Relations Board may, at any time by further order, amend, substitute, replace, or withdraw ail or part of an order, and shall forthwith file a copy of the subsequent order in accordance with subsection (1).  Reference to Labour Relations Board.  15. Any question or difference between the parties (a) as to whether or not this Act or the regulations have been complied with, or (b) respecting the interpretation or application of this Act or the regulations, or an order made under this Act may be referred by the parties or any of them to the Labour Relations Board, and the Labour Relations Board may decide the question or difference and enforce the decision .(c) in any of the ways, and (d) by applying any of the remedies available for the enforcement of a decision or order of the Labour Relations Board under the Labour Code of British Columbia or the Public Service Labour Relations Act, as the case may be.  Offence.  16. A person who (a) contravenes an order made under section 8, or (b) contravenes section 5 (6), 6 (5), or 9, commits an offence and is liable to the penalties provided in section 138 of the Labour Code of British Columbia.  Refutations.  17. The Lieutenant-Governor in Council may make regulations.  - 192 -  18. Money required for the purposes of this Act shall, until March 31, 1978, be paid out of the Consolidated Revenue Fund without any other appropriation, and thereafter shall be paid out of such money as may be authorized by an Act of the Legislature. 19. Section 73 (I) to (6) of the Labour Code of British Columbia is  repealed. 20. This Act comes into force on a day to be fixed by Proclamation. SCHEDULE British Columbia Building} Corporation British Columbia Ferry Corporation British Columbia Hydro and Power Authority British Columbia Railway Company British Columbia Systems Corporation Emergency Health Services Commission Government of British Columbia Insurance Corporation of British Columbia Workers' Compensation Board  Primed by K. M . M H O U K U D , Primer to the Qucen'i M O M Excellent MnjeMy in riant of the Province of British C o l u m b i a . 1977  APPENDIX F S.B.C. 1978,  c.  42  West Kootenay Schools C o l l e c t i v e Bargaining Assistance Act [Assented to December 9 , HER bly  1978.)  MAJESTY, by and with the advice and consent of the L e g i s l a t i v e Assemof the Province of B r i t i s h Columbia, enacts as f o l l o w s :  Interpretation  r  1. In t h i s Act "employee" means a person who i s o r d i n a r i l y employed by an employer and on whose behalf a union i s e n t i t l e d to bargain with the employer; "employer" means S e l k i r k College and the boards of school t r u s t e e s of school d i s t r i c t s number 7, 9, 11 and 12; "minister" means the M i n i s t e r of Labour; •parties" means the unions and the employers and includes, where a p p l i c a b l e , the B r i t i s h Columbia School Trustees A s s o c i a t i o n as a c c r e d i t e d bargaining agent f o r the employers; "union" means a trade union that, on the coming into force of t h i s Act, i s c e r t i f i e d under the Labour Code of B r i t i s h Columbia f o r the employees. Resumption of s e r v i c e s 2. (1) Within 48 hours a f t e r t h i s Act r e c e i v e s Royal Assent (a) each employer s h a l l resume f u l l operations and s h a l l resume the employment of every employee required f o r i t s f u l l operations, and (b) each employee s h a l l resume the ordinary d u t i e s of h i s employment with h i s employer. (2) On the coming into force of t h i s Act (a) every person who i s authorized on behalf of a union to bargain c o l l e c t i v e l y with an employer s h a l l (i) give notice to the employees on whose behalf he i s authorized to bargain that a n o t i c e , d e c l a r a t i o n , a u t h o r i z a t i o n o r d i r e c t i o n to go on s t r i k e , d e c l a r e d , authorized or given to them before t h i s Act comes i n t o force i s canc e l l e d , and (ii) inform the employees of t h e i r o b l i g a t i o n s under t h i s Act, .. (b) every person who i s authorized on behalf of an employer to bargain c o l l e c t i v e l y with a union s h a l l (i) give notice to the employer that a n o t i c e , d e c l a r a t i o n , a u t h o r i z a t i o n or d i r e c t i o n to lock out employees i s canc e l l e d , and  - 194 -  (ii) inform the employer of i t s o b l i g a t i o n s under the Act, every c o l l e c t i v e agreement between an employer and i t s employees, or t h e i r union, that (i) l a s t expired before t h i s Act conies into f o r c e , and (ii) has not been renewed i s extended and s h a l l be deemed to be in e f f e c t f o r the period from the expiry date of the c o l l e c t i v e agreement to the date on which a renewed or r e v i s e d c o l l e c t i v e agreement between, the employer and i t s employees, or t h e i r union, comes into f o r c e , and (d) no employer or person a c t i n g on behalf of the employer s h a l l (i) refuse to permit, or authorise or d i r e c t another person to refuse to permit, an employee, who i s on s t r i k e or locked out on the coming i n t o f o r c e of t h i s Act, to resume the d u t i e s of h i s ordinary employment, or (ii) suspend, discharge or in any manner d i s c i p l i n e , or authori z e or d i r e c t another person to suspend, discharge or in another manner d i s c i p l i n e an employee described in subparagraph ( i ) because the employee was on s t r i k e or locked out before t h i s Act comes i n t o f o r c e . (3) Nothing i n t h i s s e c t i o n a f f e c t s the r i g h t of an employer to suspend, discharge or d i s c i p l i n e an employee f o r j u s t and reasonable cause. (4) Where an employee complies with t h i s Act, h i s union s h a l l not d i s c i p l i n e him f o r h i s compliance. (c)  S p e c i a l mediator 3. (1) On the coming into force of the Act, (a) the p a r t i e s s h a l l continue or commence to bargain c o l l e c t i v e l y i n good f a i t h and make every reasonable e f f o r t to renew or r e v i s e t h e i r c o l l e c t i v e agreements, and (b) the m i n i s t e r s h a l l f o r t h w i t h appoint a s p e c i a l mediator f o r a term of 30 days to confer with the p a r t i e s to a s s i s t them i n s e t t l i n g the terms of c o l l e c t i v e agreements. (2) Where a person appointed under t h i s s e c t i o n i s unable to enter on o r complete h i s d u t i e s the m i n i s t e r may appoint another person to act in his place. (3) The s p e c i a l mediator may determine h i s own procedure and the part i e s s h a l l comply with that procedure, and where the s p e c i a l mediator r e quests information from a party i t s h a l l provide the s p e c i a l mediator with f u l l and complete information. (4) The s p e c i a l mediator s h a l l , no l a t e r than a date s p e c i f i e d i n h i s appointment, make a report to the m i n i s t e r s e t t i n g out the progress of the mediation i n c l u d i n g the matters on which agreement has or has not been reached. (5) The" m i n i s t e r may, on the request of a s p e c i a l mediator, extend the term of h i s appointment. (6) A s p e c i a l mediator s h a l l be paid remuneration and expenses d e t e r mined by the m i n i s t e r .  - 195 -  Board of arbitration  r  4. (1) Where the special mediator reports to the minister that the parties are unable to renew or revise their collective agreements, the minister may appoint a board or boards of arbitration each composed of one or more persons. (2) Where a person appointed to a board is unable to enter on or complete his duties the minister shall appoint another person to act in his place and the inquiry may continue or recommence as the board determines. (3) A board of arbitration shall determine its own procedure and shall give f u l l opportunity to the parties to present evidence and make submissions.. (4) A board of arbitration has a l l the powers of an arbitrator under the Labour Code of British Columbia. (31 A" person appointed to" a board shall be paid remuneration and expenses determined by the minister. (6) The minister shall specify the parties for whom a board shall renew or revise collective agreements. Duty of board of arbitration 5. (1) A board of arbitration shall renew or revise collective agreements for the parties specified under section 4 (6) respecting that board. (2) The decision of the board shall include provisions agreed to by the parties. (3) A board shall conclude the arbitration and give its decision within 30 days after appointment of the board but the minister may extend the term. (4) The decision of the board may provide that the renewed or revised collective agreement takes effect from any date after the expiration of the collective agreement extended under section 2 (2) (c). Decision of a board of. arbitration 6. (1) The decision of a board of arbitration is binding on the parties affected and on the employees on whose behalf a union is entitled to bargain except so far as the parties agree to vary i t . (2) Where i t is shown to the satisfaction of a board of arbitration that an error i s apparent on the face of the decision, the board may, on application of a party to the dispute within 7 days after the effective date of the decision, amend the decision. (3) No application for judicial review shall be made under the Judicial Review Procedure Act in respect of the decision of a board of arbitration. Execution of documents 7. (1) If the parties f a i l to prepare and execute documents in the form of renewed or revised collective agreements giving effect to the decision of a board of arbitration within 7 days after the board's deci-  - 196 -  sion, the parties or any of them shall notify the board of arbitration in writing forthwith, and the board of arbitration shall prepare documents in the form of renewed or revised collective agreements giving effect to the decision of the board of arbitration and any agreement of the parties and submit the documents to the parties for execution. (2) If the parties or any of them f a i l to execute the documents prepared by a board of arbitration within 7 days after the day of submission of the documents to them, the documents come into effect as though they had been executed by the parties and shall constitute renewed or revised collective agreements under the Labour Code of British Columbia. Costs 8. (1) Each party shall pay its own costs of proceedings under this Act. (2) The remuneration and expenses of the special mediator and of a board of arbitration and its members shall, on the requisition of the minister, be paid out of the consolidated revenue fund. Application of this Act and other Acts 9. (1) The Labour Code of British Columbia applies to the interpretation of this Act. (2) Where there is a conflict or inconsistency between (a) this Act, and , (b) the Labour Code of British Columbia and its regulations this Act applies. (3) The Arbitration Act does not apply to an arbitration under this Act. (4i Subject to section 6, where as a consequence of [(a) an arbitration under this Act, or I(b) agreement between the parties renewed or revised collective agreements settle the disputes between a l l parties, this Act ceases to apply to the parties and their collective agreements. r  Reference to Labour Relations Board 10. (1) A question (a) as to whether or not this Act has been complied with, or (b) respecting the interpretation or application of this Act, or an order made under this Act shall be referred by the parties or any of them, and may be referred by any interested person, to the Labour Relations Board, and the Board shall decide the question and may, by order, enforce the -decision (c) in the ways, and (d) by applying the remedies available for the enforcement of a decision or order of the labour Relations Board under the Labour Code of British Columbia.  - 197 -  (2) The Labour R e l a t i o n s Board may, on i t s own motion, and s h a l l , on r e c e i p t of proof that i t s order has been disobeyed, f o r t h w i t h f i l e the order i n the Supreme Court and the order s h a l l be f i l e d as i f i t were an order of the court and, on being f i l e d , the order s h a l l be deemed f o r a l l purposes, except f o r the purpose of an appeal from i t , to be an order of the Supreme Court e f f e c t i v e from the date the order was made by the Board. (3) Notwithstanding the f i l i n g of an order under subsection (1), the Labour R e l a t i o n s Board may, at any time by f u r t h e r order, amend, s u b s t i tute, replace or withdraw a l l or p a r t of an .order, and s h a l l f o r t h w i t h f i l e a copy of the subsequent order in accordance with subsection (1). (4) A person who contravenes s e c t i o n 2 or 3 (1) commits an offence and i s l i a b l e to the p e n a l t i e s provided in s e c t i o n 138 of the Labour Code of B r i t i s h Columbia. S.B.C. 1977,  c. 83  11. The E s s e n t i a l S e r v i c e s Disputes Act i s amended (a) i n s e c t i o n 8 by adding "or" at the end of paragraph (b) and adding the f o l l o w i n g paragraph: ( b . l ) a s u b s t a n t i a l d i s r u p t i o n i n the d e l i v e r y of educational services", '(b) by adding the f o l l o w i n g employers to the Schedule: C o l l e g e s and Boards of School Trustees as defined i n the P u b l i c Schools Act; U n i v e r s i t i e s as defined in the U n i v e r s i t i e s Act; I n s t i t u t i o n s as defined i n the C o l l e g e s and P r o v i n c i a l I n s t i t u t e s Act; Municipalities; Regional D i s t r i c t s ; and Improvement d i s t r i c t corporations under the Water Act, and (c) by adding i n s e c t i o n 8 (c) l i n e 5 thereof a t t e r the word " c i t i z e n s " the words "or a s u b s t a n t i a l d i s r u p t i o n i n the d e l i v e r y of e d u c a t i o n a l s e r v i c e s in the Province,". Commencement 12. S e c t i o n 11 comes i n t o f o r c e on a day to be f i x e d by  proclamation.  P r i n t e d by K.M. MacDonald, P r i n t e r to the Queen's Most E x c e l l e n t Majesty in r i g h t of the Province of B r i t i s h Columbia. 1979  - 198 -  BIBLIOGRAPHY BOOKS Arthurs, H.W., Carter, D.D., Glasbeek, H.J., Labour Law and Industrial Relations in Canada, Butterworths, 1981. Beal, E., The Practise of Collective Bargaining, Richard D. Irwin Inc., 1972, Homewood. Carrothers, A.R., Collective Bargaining Law in Canada, Butterworths Ltd., 1965, Toronto. Gunderson, Morley, Collective Bargaining in the Essential and Public Service Sectors, University of Toronto Press, 1975, Toronto. Loewenberg, J. Joseph, Gershenfeld, Walter J., Glasbeek, H.J., Hepple, B.A., Walker, Kenneth F., Compulsory Arbitration, D.C. Heath and Company, 1976, Toronto. Sloane, A. and Whitney, F., Labor Relations, 3rd edition, Prentice-Hall, Inc., Englewood Cliffs, New Jersey. Taylor, B.J. and Whitney, F., Labor Relations Law, 2nd edition, Prentice-Hall, Inc., Englewood Cliffs, New Jersey. Weiler, J.M.P., Interest Arbitration, The Carswell Company Ltd., 1981, Toronto. Weiler, Paul C , Reconcilable Differences, The Carswell Company Ltd., 1980, Toronto. Woods, H.D., Canadian Industrial Relations - Report of the Task Force on Labor Relations, 1968.  ARTICLES Aaron, B., "National Emergency Disputes", Labor Law Journal, Vol. 22, No. 8., August 1971. Anderson, A., "Lessons from Interest Arbitration in the Public Sector: The Experience of Four Jurisdictions," in Arbitration - 1974, Proceedings of the Twenty-Seventh Annual Meeting, National Academy of Arbitrators, April 1974, Washington, D.C: Bureau of National Affairs, 1975. Anderson, J.C., "Evaluating the Impact of Compulsory Arbitration: What Can We Learn From Alternate Research Designs and Methodologies," (A paper presented at the Thirty-ninth Annual Meeting of the Academy of Management, Atlanta, Georgia, August 7-11, 1979.  - 199 -  Anderson, J.C. and Kochan, T.A., "Impasse Procedures in the Canadian Federal Service: Effects on the Bargaining Process", Industrial and Labor Relations Review, Vol. 30, No. 3, April mr.  Arthurs, H.W., "Collective Bargaining in the Public Service of Canada: Bold Experiment or Act of Folly?", Michigan Law Review, Vol. 67, No. 5, March 1969. Bezdek, R.H. and Ripley, D.W., "Compulsory Arbitration versus Negotiations for Public Safety Employees: The Michigan Experience", Journal of Collective Negotiations in the Public Sector, Vol. 3, No. 2, Spring 1974. Bigoness, W.J., "The Impact of Initial Bargaining Position and Alternative Modes of Third Party Intervention in Resolving Bargaining Impasses", Organizational Behaviour and Human Performance, Vol. 17, No. 2, 1976. Feuille, P., "Final Offer Arbitration and the Chilling Effect", Industrial Relations, Vol. 14, No. 3, October 1975. Gallagher, D.G., "Interest Arbitration Under the Iowa Public Employment Relations Act", Arbitration Journal, Vol. 33, No. 3, 1978. Gallagher, D.G. and Pegnetter, R., "Impasse Resolution Under the Iowa Multistep Procedure", Industrial and Labour Relations Review, Vol. 32, No. 3, April W79~. Morris, Gillian S., "The Regulation of Industrial Action in Essential Services", The Industrial Law Journal, Vol. 12, No. 2, June 1983. :  Pankert, A., "Settlement of Labour Disputes in Essential Services", International Labour Review, Vol. 119, 1980.  

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