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Strikes in essential services in British Columbia 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 I n p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f t h e r e q u i r e m e n t s f o r an a d v a n c e d d e g r e e a t t h e U n i v e r s i t y o f B r i t i s h C o l u m b i a , I a g r e e t h a t t h e L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e a n d s t u d y . I f u r t h e r a g r e e t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y p u r p o s e s may b e g r a n t e d b y t h e h e a d o f my d e p a r t m e n t o r b y h i s o r h e r r e p r e s e n t a t i v e s . I t i s u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l n o t b e a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n . D e p a r t m e n t o f cLX^oO" T h e U n i v e r s i t y o f B r i t i s h C o l u m b i a 1956 Main M a l l V a n c o u v e r , C a n a d a V6T 1Y3 D a t e D E - 6 (3/81) - 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, it 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. - i i i - TABLE OF CONTENTS Page INTRODUCTION 1 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 2. 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 3. 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. Cr i ter ia Relied upon by the Arbitrators 103 i Arbitration Awards Pursuant to Agreement of the Parties 106 i i Arbitration Awards Pursuant to Section 73 of the Labour Code of Br i t ish Columbia 113 i i i Arbitration Awards Pursuant to Section 6 of the Essential Service Disputes Act 120 4. Comments on the Cr i ter ia 128 5. Concluding Remarks on Interest Arbitration v is -a -v is Free Collective Bargaining 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 168 Collective Bargaining Continuation Act - 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 - v i E R R A T A 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. They appear on pages 4 and 55 of the text. They are - 1. Page 4. Paragraph 3. In British Columbia — ad hoc response to a particular bargaining impasse. J.M.P. Weiler ed. Interest Arbitration (1981), at 2. 2. Page 55. Paragraph 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 it 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 it 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, it 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,2 while having regard to the public interests as well as to the rights and obligations of parties before it, 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,4 was introduced in British 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 it. 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 it was generally regarded by the media as a positive step. It is not clear whether employers contributed to the drafting of the legislation, but it 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 it 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 it 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 it 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 it 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 little, if 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 it was intended that the Commission should play. 1 0 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 labour- court affording an accumulation of knowledge and experience - 9 - would prove to be a major improvement over the often haphazard process of ad_ hoc arbitration. 1 2 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 it 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 it 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. 1 7 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 1 8 was introduced. 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 non- compulsion, and to rely on mediative devices to protect the public interest."!9 - 12 - Section 7320 0 f the Labor Code made provision- for a 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 trade- unions alone. This was thought appropriate as it 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. 2 1 As already stated, under the new Labour Code, employees in the three designated areas were not denied the right to strike. Presumably it 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: it invites politiciza- tion of disputes; it changes the rules in the middle of the game and is thus liable to be - 13 - challenged on the grounds of basic fairness; and it 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.235 varied the certificates of 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 it 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. 2 5 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 it was on the date the strike or lockout first occured,"26 and required all employees to "...immediately 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 which brought an end to the work stoppage and resulted in 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 Act33was passed to bring an end to shutdown of the British Columbia Railway by the United Transportation Union. What distinguishes this piece of legislation34 f r o m its predecessors is that it 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.35 First, it employed binding arbitration to bring an end to the then existing dispute between the British Columbia Railway and the United Transportation Union. Second, it 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.38 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 - 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. 4 1 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. 4 2 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. 4 4 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, it 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, it is explicitly set out that workers and employers "shall have the right to establish ... and join organizations of their own choosing ..."50 Thus far it has been a brief discussion on the freedom of association in general. But, how does the freedom fare when it comes to strikes in essential services? In a recent case^l it was stated: "The fact that it is almost universally accepted and in particular that it 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, it confirms that the right to strike is so essential to the interest of workers that if it is removed then the state must replace it 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 it 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 it is meant all branches of wage employment in which the State is the employer or the sole or main proprietor. In some countries it 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 it 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, it 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 it 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 Countries- The 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 it is preferable to adopt a definition formulated in general and abstract terms or to enumerate the actual services it 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 it 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, it 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 it 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, - 3 0 - 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 it 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 it is important to know how this notion is interpreted in practice. The tendency to interpret it 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), it 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, it 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; it 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, it should be noted that a dispute of this nature differs too greatly from one in a hospital or power- station 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." 5 6 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 it 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 - 35 - considerations? It is these factors which explain why it 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 it 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 it would be to invoke this procedure. While this danger is not an imaginary one, it 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 it 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 it 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, it 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. The reason? The light bulb changers were on strike. 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. 6 1 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. It is limited to aspects of health and safety. In a limited way, there is in section 8(b) of the Essential Service Disputes Act, 6 2 and the Railway and Ferries Bargaining Assistance Act 6 3 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, if 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 it an essential service." 6 4 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." 6 6 He quoted from the resolution of the Federation of Agriculture: "As the B.C. Ferry system is an integral part of the highway, it 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 Act70provisions were extended to include colleges and schools in 1978 because of lengthy work stoppages involving Canadian Union of Public Employees at Selkirk College and the West Kootenay School District. In the West Kootenay Schools Collective Bargaining Assistance Act 7 1 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 non- teaching personnel of educational institutions 7 2 - 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 it 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 fit 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 x n e s e f i 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 7 5 was passed in 1974, the fire fighters argued that it 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 it 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 re f ighter'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 dist inct from the majority of employees in the public service of Br i t i sh Columbia They are engaged in essential services of a kind that would need to be maintained in the event of a s t r ike . 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 re 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 str ike by members of the Br i t ish 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 entit led to exercise that r ight. Presumably, the Legislature has already considered this poss ib i l i t y , and notwithstanding the ramifications included the f i re fighters in the same bargaining unit as other employees."7 6 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 re 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 re 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 cert i f icat ion as a f i re f ighter'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. 7 7 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 it 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)8!, the 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, 8 2 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 "health- care 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 it 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. Having said that, another problem is presented. 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".8 4 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 8 5 a nd 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 it 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 it was first determined that the clinic was not a hospital and then it 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 it 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 it 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 8 6 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. 8 7 From a policy standpoint it 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 it 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 list 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 8 8 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 , t h e f o r e s t i n d u s t r y w i l l s u f f e r i f t h e r e i s a s t r i k e by the r a i l w a y w o r k e r s . 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 l i n k i n Canadian i n t e r d e p e n d e n t economy 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 f a c t o r i e s and m i l l s , and shipment of f i n i s h e d goods t o the m a r k e t . A 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 t h r o u g h o u t the economy, t r i g g e r i n g 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 i n d u s t r i e s , and l a y o f f s of employees who work i n them. 4. The v a s t m a j o r i t y o f government s e r v i c e s a r e d e s i g n e d to p r o v i d e 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 , t h e f e r r y s e r v i c e . By r e f e r r i n g t o t h e s e as " 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 are b e i n g d e p r e c i a t e d . They may w e l l be the major i n g r e d i e n t i n t h e 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 s o c i e t y 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 p r i o r i t y . 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 the 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 t o 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 f o r f u e l , f o o d and m e d i c a l s e r v i c e s . Shutdown o f the p o s t o f f i c e t h r e a t e n s c o m m u n i c a t i o n . 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 a r e a v a i l a b l e but they a r e e x p e n s i v e . 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 cheap mode of c o m m u n i c a t i o n . The n o t i o n o f " p u b l i c w e l f a r e " i s 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 o f " 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 it 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 it is only the employer, the school board, which is the legitimate target of the union's action. But what does it 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 va r ious 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 those running e s s e n t i a l s e r v i c e s . The f i r s t method i s to des ignate the employees as e s s e n t i a l and thus r e s t r i c t t h e i r r i g h t t o go on s t r i k e . One example of t h i s i s found i n the f e d e r a l sphere . A . Des ignat ion of E s s e n t i a l Employees - The Federal 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 The idea of d e s i g n a t i n g e s s e n t i a l employees and thereby t a k i n g away or r e s t r i c t i n g t h e i r r i g h t t o s t r i k e was ment ioned, f o r the f i r s t t ime i n the federa l 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 A c t . 8 9 i t i s a l e s s d r a s t i c method of l i m i t i n g the e f f e c t of s t r i k e s than l e g i s l a t i v e p r o h i b i t i o n of s t r i k e s . I t would be worthwhi le to examine b r i e f l y the p r o v i s i o n s of t h i s A c t . I t would show how f a r i t s p r o v i s i o n s can be of help in 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 B r i t i s h Columbi a . E a r l y Canadian i n d u s t r i a l r e l a t i o n s l e g i s l a t i o n , enacted dur ing the f i r s t decade of t h i s c e n t u r y , d e a l t s p e c i f i c a l l y w i th s t r i k e 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 p r o p r i e t a r y 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 nature of the i n d u s t r i e s a f f e c t e d . P u b l i c u t i l i t i e s , r a i l w a y s , and coal mines were e a r l y 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 i n t e r v e n t i o n which dur ing these fo rmat ive years took the r e l a t i v e l y innocuous form of compulsory s t r i k e postponement and c o n c i l i a t i o n . 9 0 I t i s - 57 - p a r t i c u l a r l y r e l e v a n t , i n the present c o n t e x t , tha t employees of both p r i v a t e f i r m s and government-owned r a i l w a y s and munic ipa l l y -owned p u b l i c u t i l i t i e s had and have up u n t i l now f u l l freedom to engage i n c o l l e c t i v e b a r g a i n i n g . 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 r e q u i r e s both the employing agency and the b a r g a i n i n g agent , upon t i m e l y n o t i c e , " to barga in c o l l e c t i v e l y i n good f a i t h and make reasonable e f f o r t t o conclude a c o l l e c t i v e agreement".91 The f a i l u r e to announce a f f i r m a t i v e l y the e x i s t e n c e of a r i g h t to s t r i k e i s ha rd l y s u r p r i s i n g . In the f i r s t p l a c e , no Canadian cour t has ever c l e a r l y held tha t s t r i k e s by p u b l i c servants are per se i l l e g a l ; 9 2 thus there was no need f o r Par l iament to reserve an e x i s t i n g l e g a l norm. Second, w h i l e i t i s t rue tha t Canadian labour r e l a t i o n s s t a t u t e s have seldom conta ined an express re ference to the r i g h t to s t r i k e , the cour ts have recognized tha 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 to 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 i n the cont inued o p e r a t i o n of government to the whim of n e g o t a t i o n s . I f a union has e l e c t e d to reso l ve i t s c o l l e c t i v e 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 - and , i m p l i e d l y , by a s t r i k e - ra ther than by a r b i t r a t i o n , the Act f o r b i d s c e r t a i n "des ignated 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 par t of d u t i e s the performance of which at any p a r t i c u l a r t ime or a f t e r any s p e c i f i e d per iod of t i m e , i s or w i l l be necessary i n the i n t e r e s t of the sa fe ty or s e c u r i t y of the p u b l i c . " 9 4 But , i t should be noted tha t the d e f i n i t i o n of "des ignated employees" i s very c i r c u m s c r i b e d . The Act denies the r i g h t to s t r i k e only to those - 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. 9 5 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 difficult. Within 20 days after either party has served a notice to bargain, the employing agency must establish a li 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. The union often accepts the employer's unilateral judgment. 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, 9 6 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 traffic, 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 w i t h i n t h i s p a r t i c u l a r b a r g a i n i n g u n i t . The Act does not exp ress l y prov ide 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 dur ing a s t r i k e i f the employing agency or the Board i n i t i a l l y misjudged the number or type of employees necessary to p ro tec t the p u b l i c i n t e r e s t . The Board would undoubtedly m o b i l i z e i t s f u l l s t a t u t o r y resources to cope wi th such a c r i s i s , i n c l u d i n g i t s power to " r e v i e w , 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 order made by i t . " 9 7 I t might w e l l be argued tha t the employer and the Board should 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 cho ice of des ignated employees but t h i s argument might have the unfor tunate e f f e c t of prompting the employer to exaggerate at the outset the number of des ignated employees on the bas i s of remote c o n t i n g e n c i e s . A second s e r i e s of problems concerns the r e l a t i o n s h i p between s t r i k i n g employees and des ignated employees i n the same b a r g a i n i n g u n i t . I f a government employer determines tha t a s k e l e t o n s t a f f i s necessary dur ing a s t r i k e i n order to prov ide s e r v i c e s e s s e n t i a l to the "sa fe ty and s e c u r i t y of the p u b l i c " , how i s such a s t a f f to be s e l e c t e d from among the employees i n the b a r g a i n i n g u n i t ? What happens i f some of the des ignated employers r e s i g n or become i l l ? Must the same i n d i v i d u a l s cont inue t o work throughout the s t r i k e , or can the s t r i k e r s serve i n r o t a t i o n ? What of the r i s k s of sabotage, d e l i b e r a t e s low - downs, or " w o r k - t o - r u l e " campaigns by des ignated employees? And what of the wages pa id to des ignated employees: i f the remuneration f o r c o n t i n u i n g on the job exceeds s t r i k e pay, should the des ignated employees be r e q u i r e d t o t u r n su rp lus over t o the union s t r i k e fund? - 60 - Although these as yet unanswered quest ions are t roublesome, the s t a t u t o r y procedure f o r d e s i g n a t i n g employees i n advance of an ac tua l s t r i k e s i t u a t i o n i s fundamental ly sound. The f a c t tha t the p a r t i e s are not locked i n c o n f l i c t makes i t more l i k e l y tha t they w i l l agree upon the l i s t of des ignated employees. I f there i s d isagreement , the Board can undertake the 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 in e s s e n t i a l s e r v i c e s wi thout the e x t r a pressure of a s t r i k e s i t u a t i o n . F i n a l l y , i f a l a r g e p r o p o r t i o n of employees i n a barga in ing u n i t must be des ignated 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 to s t r i k e , tha t f a c t i s made obvious so tha 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 roceed ings . S e c t i o n 79 of the Act r a i s e s a number of i s s u e s . The a n a l y s i s , here , spr ings from three cases which w i l l be assessed i n t u r n : I n t e r n a t i o n a l Brotherhood of E l e c t r i c a l Workers and Treasury B o a r d 9 8 ( E l e c t r o n i c s Group - Techn ica 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 Treasury Board (Heating Power and S t a t i o n a r y P l a n t Operat ion B a r g a i n i n g U n i t s ) , 9 9 h e r e i n a f t e r c a l l e d the Heat ing Power case and The Canadian A i r T r a f f i c Cont ro l A s s o c i a t i o n and Treasury Board ( A i r T r a f f i c C o n t r o l Group Des ignat ion 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 C o n t r o l l e r s c a s e . The E l e c t o r n i c s Case Under subsec t ion 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 S t a f f R e l a t i o n s A c t , the employer i s requ i red t o f u r n i s h to the Board and to the b a r g a i n i n g agent a statement of employees who he cons ide rs to be e s s e n t i a l f o r the purposes of s a f e t y and s e c u r i t y of the p u b l i c . - 61 - In t h i s case the 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 the 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 the h e a r i n g , the p a r t i e s met on severa l occas ions and i n due course informed the Board tha t they had reached agreement w i th regard to 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 th regard to o t h e r s . The employer had agreed t h a t , in the event of a s t r i k e , the d u t i e s of the t e c h n i c i a n s concerned would be r e s t r i c t e d to those 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 rad io 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 . Severa l c o n s i d e r a t i o n s were put before the Board . Counsel f o r the barga in ing agent submitted that the Act 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 to Canadian p u b l i c s e r v a n t s , i n c l u d i n g the r i g h t to s t r i k e and t h a t the Board ought to do i t s utmost to preserve t h a t r i g h t and should not permit the employer to dest roy i t through the process of d e s i g n a t i o n . In the B o a r d ' s v iew, the statement tha t p u b l i c servants 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 the general sense b u t , l i k e many g e n e r a l i z a t i o n s , i t was subject to q u a l i f i c a t i o n s and could be a p p l i e d i n s p e c i f i c cases only by re ference to the q u a l i f i c a t i o n s as we l l as the 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 the r i g h t t o s t r i k e are r e l a t e d to both t ime and f u n c t i o n . The Board s a i d i t was concerned there only w i th the l i m i t a t i o n s that 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 to i n s e c t i o n 7 9 ( 1 ) , i . e . , those f u n c t i o n s tha t were r e l a t e d to p u b l i c - 62 - s a f e t y and s e c u r i t y . Persons who are engaged i n the f u n c t i o n s d e f i n e d i n s e c t i o n 79(1) are not permi t ted to s t r i k e at any t i m e . I t i s not tha 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 to such persons . 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 the 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 tha t may normal ly 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 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 s e c u r i t y 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 the employer - as an employer - to c a r r y on i t s d a y - t o - d a y b u s i n e s s . The r o l e of the 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 purely 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 to a s t o p , the normal o p e r a t i o n of the employer - as an employer - w i th a view to reduc ing the employer 's ba rga in ing power and i n c r e a s i n g tha t of the employees. The s t r i k e has been t o l e r a t e d , accepted and even encouraged by s o c i e t y i t s e l f as a means of b a l a n c i n g the b a r g a i n i n g power of the employer and the employees wi th a view to an eventual s e t t l e m e n t . By - products of the s t r i k e are the inconvenience or hardship tha t may be s u f f e r e d by the employer 's customers . But the prime t a r g e t i s the employer , not the p u b l i c . I f the e x e r c i s e of the r i g h t t o s t r i k e does e f f 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 , r a t h e r than the p r o f i t a b i l i t y or convenience of the employer , the r o l e of the s t r i k e i s t ransformed by a change i n k ind and not merely a change of degree or e f f e c t i v e n e s s . The Act does not contemplate that p u b l i c convenience should remain u n a f f e c t e d . " P u b l i c convenience and n e c e s s i t y " i s a we l l know l e g i s l a t i v e te rm, but i t does not appear i n the A c t . The Act 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 the p u b l i c " Th is does not mean tha t the p u b l i c would always n e c e s s a r i l y s u f f e r i f the employees to whom the s e c t i o n a p p l i e s withdraw t h e i r s e r v i c e s . I t does mean t h a t where there are reasonable grounds f o r a c c e p t i n g the p r o b a b i l i t y , or even perhaps only a p o s s i b i l i t y , t h a t human l i f e or p u b l i c sa fe t y and s e c u r i t y would s u f f e r , s e c t i o n 79(1) comes i n t o p l a y . One of the quest ions r a i s e d at the very outset of the proceedings was whether the employer , i n i t s d e s i g n a t i o n of the persons and p o s i t i o n s i n the l i s t i t f u r n i s h e d to the b a r g a i n i n g agent i n t h i s c a s e , contemplated a "bus iness as u s u a l " s i t u a t i o n i n the event of a s t r i k e or whether i t contemplated a l e v e l of operat ions that would not permit a f f a i r s t o operate i n the 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 tha t the employer 's proposals were made i n the e x p e c t a t i o n , as he put i t , t h a t a l l sh ips would s a i l and planes would f l y . Counsel f o r the employer on the other hand submitted tha t the employer d i d not seek t o c a r r y on business as usual i n the sense desc r ibed by counsel f o r the b a r g a i n i n g agent . In the op in ion of the Board the need f o r 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 the p u b l i c " should have been based on the premise t h a t there would be no "bus iness as u s u a l " dur ing a s t r i k e of e l e c t r o n i c s t e c h n i c i a n s . A i r and water t r a n s p o r t a t i o n should cease except f o r emergency purposes . Th is would undoubtedly r e s u l t i n i n c o n v e n i e n c e , p o s s i b l y some h a r d s h i p s , but i t would i n the chai rman'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 "sa fe ty or s e c u r i t y of the - 64 - public" in that particular set of circumstances. The Board, therefore, stated that it 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] if 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, forest- fire 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 traffic control was to make air traffic safe, they all must be "designated" as necessary for public safety. This position is particularly vacuous since it 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 fi 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, if 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". I would like to see these issues clearly resolved: - 67 - 1) What i n t e r e s t s are to be inc luded i n the concept " s a f e t y and s e c u r i t y " of the p u b l i c ? 2) Is the d e s i g n a t i o n process designed to p r o t e c t "employees" or " d u t i e s " and " s e r v i c e s " ? 3) If i t i s "employees" tha t are d e s i g n a t e d , and not t h e i r f u n c t i o n s , what l i m i t s are p laced upon an employer 's assignment of employees to d u t i e s dur ing 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 the 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 lowed to agree between themselves as to what employees are e s s e n t i a l . 1 0 2 i f the p a r t i e s do not agree , the Board accepts a l i s t of the employees or c l a s s of employees i n the b a r g a i n i n g u n i t who are cons idered by the employer to be des ignated e m p l o y e e s . l 0 3 The b a r g a i n i n g agent rece i ves a copy of the l i s t and he i s f r e e t o f i l e an o b j e c t i o n wi th the Board . I f he does not do s o , the Board adopts the d e s i g n a t i o n of the employer . I f he does f i l e an o b j e c t i o n , the Board a f t e r c o n s i d e r i n g the o b j e c t i o n and a f f o r d i n g each of the p a r t i e s an oppor tun i t y to make r e p r e s e n t a t i o n s determines which of the employees s h a l l 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 a l l purposes of the A c t . l ° 5 However, the Board i n one c a s e ^ 6 re-opened a d e s i g n a t i o n a l ready determined pursuant to i t s general power of review over i t s own d e c i s i o n s i n the Ac t .107 In tha 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 the d e s i g n a t i o n l i s t of the employer because they were expected to be excluded from the b a r g a i n i n g u n i t 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 . However, the employees were subsequent ly i n c l u d e d i n the b a r g a i n i n g u n i t a f t e r the p a r t i e s - 68 - had agreed upon the 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 to the Board t o amend the l i s t t o i n c l u d e the t w e n t y - f o u r a d d i t i o n a l employees. The union opposed the a p p l i c a t i o n on the ground that the Board had no j u r i s d i c t i o n to a l t e r the d e s i g n a t i o n l i s t once the p a r t i e s had agreed to i t or the Board had determined i t . 1 0 8 Where the p a r t i e s have agreed the Board has no a u t h o r i t y t o i n t e r v e n e on i t s own i n i t i a t i v e . I t i s one t h i n g f o r the Board to des ignate employees as e s s e n t i a l but i t i s q u i t e another t h i n g f o r the Board t o s u b s t i t u t e i t s op in ion f o r the agreement of the p a r t i e s . However, one might argue, tha t the agreement was made by the employees under a mistake of f a c t . I t b e l i e v e d the employees i n quest ion to be exc luded as management. A d d i t i o n a l l y , the p o l i c y of 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 the number of employees found to be e s s e n t i a l may be v a r i e d from t ime to t ime to 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 , as was argued i n the c a s e , the Board , under i t s general powers of a d m i n i s t r a t i o n : 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 con fe r red or imposed upon i t but a l s o as may be i n c i d e n t a l to the at ta inment of the o b j e c t i v e s of the A c t . 1 0 9 The Board decided t h a t s e c t i o n s 18 and 25 of the Act a l lowed i t t o r e j e c t i t s own p o l i c y d e c i s i o n i n t o the process as c i rcumstances changed. I t 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 the involvement of the p a r t i e s o n l y . The purpose of tha 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 par t t o play i n the r e l a t i o n s h i p between the p a r t i e s . In t h i s case where, because of an o m i s s i o n , whether caused by inadver tence or neg l igence on the par t of - 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 Act 1 1 0 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 the not ion of " d e s i g n a t i o n " was f i r s t mooted i n the f e d e r a l 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 A c t . The Labour Code of B r i t i s h Columbia was the f i r s t i n which the procedure was u t i l i z e d i n the case of f u l l y f l e d g e d , p u b l i c sa fe t y b a r g a i n i n g u n i t s . Bu t , s e c t i o n 73 of the C o d e ^ l has brought t o the f o r e f r o n t the c o m p l e x i t i e s i n the r i g h t to 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 c o l l e c t i v e b a r g a i n i n g . At some po in 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 to 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 re fuse to cont inue w o r k i n g . The assumption of the Labour Code i s tha 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 roduct ion t o the employer and the l o s s of wages t o the employees - t h a t each party 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 to avo id the s t r i k e or to end i t as q u i c k l y as p o s s i b l e . Th is shows why the law has t r a d i t i t o n a l l y taken a r e s t r i c t i v e a t t i t u d e towards s t r i k e s by p u b l i c sa fe t y employees. I t seems i n t o l e r a b l e to a l l o w the p a r t i e s to t r y to break the logjam i n t h e i r own economic d i spu te by us ing a t a c t i c which might produce p h y s i c a l harm - even death - f o r innocent i n d i v i d u a l s . But there i s a growing r e a l i z a t i o n that the e f f o r t to impose unduly broad bans on s t r i k e a c t i o n may overreach i t s e l f and e v e n t u a l l y become s e l f - d e f e a t i n g . For that reason , there i s c o n s i d e r a b l e i n t e r e s t i n the 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 in order to move them towards a - 71 - c o n t r a c t s e t t l e m e n t ; but does so wi thout i n f l i c t i n g i n t o l e r a b l e r i s k s on the personal s a f e t y of c i t i z e n s . S e c t i o n 73(7) of the o l d Labour Code was one response to tha t ques t . I t had one f u l l - f l e d g e d t e s t in the s t r i k e at the Vancouver General H o s p i t a l i n 1 9 7 6 . H 2 When the s t r i k e s t a r t e d i n May 1976, the B r i t i s h Columbia Labour R e l a t i o n s Board des ignated c e r t a i n c r i t i c a l , l i f e - p r e s e r v i n g f a c i l i t i e s and s e r v i c e s t o be mainta ined dur ing the s t r i k e . The M i n i s t e r of Labour requested tha t the Board e x e r c i s e i t s powers under s e c t i o n 73(7) (b) of the o l d Labour Code t o des ignate those s e r v i c e s which must be o f f e r e d by the h o s p i t a l (through union members, i f necessary) t o prevent "immediate danger to l i f e , h e a l t h , or p u b l i c s a f e t y " . The Board he ld s e s s i o n s , making the judgments and i s s u i n g the 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 vo te , s t r i k e n o t i c e , 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 , the s t r i k e on May 4 . B r i e f l y s t a t e d these were the f a c t s of the case : The H o s p i t a l Employees Union (H .E .U . ) represents nonpro fess iona l employees i n the acute care h o s p i t a l s i n B r i t i s h Co lumbia . The Hea l th 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 the a c c r e d i t e d b a r g a i n i n g agent f o r these h o s p i t a l s , which number s l i g h t l y over a hundred i n the p r o v i n c 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 , 1975. N e g o t i a t i o n s f o r renewal began i n September 1975. Mr. Bert B l a i r was appointed I n d u s t r i a l Inqu i ry Commisisoner by the p r o v i n c i a l government i n December 1975. 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 , he i s s u e d a repor t i n A p r i l 1976 recommending a set t lement of a one- year agreement, which would prov ide 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 lus a C . O . L . A . c l a u s e and other changes i n f r i n g e b e n e f i t s , - 72 - amounting to a t o t a l compensation package of somewhere between 13%-15%, depending on the b a s i s of c a l c u l a t i o n . The Union execut i ve favoured a c c e p t i n g tha t package. However, H . L . R . A . r e j e c t e d i t f o r two reasons . F i r s t of a l l , the monetary i n c r e a s e exceeded the a n t i - 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 14 , 1975, and w h i c h , i n the 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 to an 8% i n c r e a s e . Second, the P r o v i n c i a l M i n i s t r y of Heal th had decreed that 8% was to be the maximum i n c r e a s e t h a t the p rov ince would grant i n o p e r a t i n g funds f o r the h o s p i t a l s , and employee compensation amounted to j u s t about 80% of tha t o p e r a t i n g budget. From the Union 's po int of v iew, once i t had rece ived the n e u t r a l ' s recommendation i n i t s f a v o u r , the Execut i ve cou ld not p o l i t i c a l l y see i t s way c l e a r to s e t t l i n g f o r a penny l e s s . C e r t a i n l y , the re was a deep impasse between these f i r m l y embedded p o s i t i o n s of the H .E .U . and the H . L . R . A . As a r e u s l t , the Union dec ided tha t i t would e x e r c i s e i t s r i g h t t o s t r i k e . S t r i k e votes were conducted i n i n d i v i d u a l h o s p i t a l s . The f i r s t vote was he ld at the Vancouver General H o s p i t a l on A p r i l 29 and 30 . The margin i n favour of s t r i k i n g was 87%, and the Union d e l i v e r e d 72-hour s t r i k e n o t i c e f o r t h w i t h , to e x p i r e on Monday, May 3 . Was the e n t i r e opera t ion of the h o s p i t a l not i n d i s p e n s a b l e f o r p u b l i c h e a l t h and s a f e t y ? C e r t a i n l y the a d m i n i s t r a t o r s of the Vancouver General thought so . Th is i s the l a r g e s t general h o s p i t a l not only i n B r i t i s h Columbia but i n the e n t i r e B r i t i s h Commonwealth as w e l l . I t s p o p u l a t i o n amounts to about 10,000 people a day . The 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 - 73 - care p a t i e n t s and 300 f o r extended c a r e . As the major teach ing h o s p i t a l i n the p r o v i n c e , o f f e r i n g the e n t i r e range of s p e c i a l i z e d medical s e r v i c e s , techniques and equipment (many of them u n a v a i l a b l e anywhere e l s e i n the p rov ince ) the Vancouver General asked the Board t o deem the opera t ion of the e n t i r e h o s p i t a l necessary to prevent a " s e r i o u s and immediate danger to l i f e , h e a l t h and p u b l i c s a f e t y " , and to d i r e c t a l l of the nonpro fess iona l employees i n the H .E .U . b a r g a i n i n g u n i t to work d u r i n g t h e i r proposed s t i r k e . The Board d e c l i n e d to do s o . The Board l i s t e n e d to the arguments of the Vancouver General d o c t o r s ; t a l k e d to the s e n i o r members of the paramedical and p r o f e s s i o n a l s t a f f (who were represented by other t rade u n i o n s ) , as w e l l as t o the people i n the M i n i s t r y of H e a l t h ; probed i n t o the ebb and f low i n the use of h o s p i t a l beds throughout the y e a r . E v e n t u a l l y i t d i d agree t h a t the 300 beds i n the extended care wing must cont inue to be f i l l e d , but tha t the community cou ld make do w i t h j u s t 700 of the 1500 of the acute care beds. P a t i e n t s i n need of immediate and t r u l y important h o s p i t a l care could have i t , but wide range of l e s s c r i t i c a l and e l e c t i v e work would have t o be postponed. 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 the medical s t a f f , and would make sure t h a t any such p a t i e n t s vacated t h e i r beds as e x p e d i t i o u s l y as p o s s i b l e . The Board having decided tha t the h o s p i t a l (the employer) must mainta in t h a t l e v e l of s e r i o u s acute care s e r v i c e , i t was to be decided which f a c i l i t y or s e r v i c e would be mainta ined dur ing the s t r i k e . - 74 - The p o s i t i o n of the Union was as extreme as tha t of the h o s p i t a l . In i t s v iew, none of i t s members should 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 . There are over 5,000 employees at the Vancouver G e n e r a l . About 2,200 were nonpro fess iona l employees represented by the H .E .U . The remainder i n c l u d e a d m i n i s t r a t o r s , s u p e r v i s o r s , p r o f e s s i o n a l nurses ( represented by the R . N . A . B . C . ) , paramedical p r o f e s s i o n a l s ( represented by the H . S . A . ) , and the house s t a f f ( represented by P . A . R . I . ) . There i s a l s o a s i z e a b l e cont ingent of student nu rses , and over 800 medical a s s o c i a t e s of the h o s p i t a l . In the Board 's judgment, the bas ic labour i n running the h o s p i t a l - - c l e a n i n g , c o o k i n g , l a u n d r y , p r a c t i c a l n u r s i n g , and a d m i n i s t r a t i o n — would have t o be performed by these other s t a f f memebers, not the workers who were e x e r c i s i n g t h e i r l e g a l r i g h t to s t r i k e . At the same t ime there were a number of H .E .U . members who had the s k i l l s or exper ience to perform s p e c i a l i z e d t a s k s or operate 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 dur ing the s t r i k e : renal t e c h n i c i a n s , operators of r e s p i r a t o r y machines or hyperbar i c chambers, medical records s t a f f , a few switchboard o p e r a t o r s , and so on . The Board concluded tha t a t o t a l of 100 members of the H .E .U . b a r g a i n i n g u n i t should be d i r e c t e d to work d u r i n g the s t i r k e . In t h i s a r e a , the Board ' s p o l i c y was t o e r r on the s i d e of s a f e t y , t o ensure tha t there would be someone i n the h o s p i t a l t o operate any equipment or perform any f u n c t i o n s t h a t were needed. But the i n s t r u c t i o n s t o the union members were t h a t they were to 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 t ime by per forming labour t h a t other people cou ld 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 b a r g a i n i n g u n i t d i d go on s t r i k e , a l l of the des ignated workers went t o work as d i r e c t e d . While i t i s not easy , i t i s f e a s i b l e t o mainta in a c a r e f u l l y modulated s t r i k e of p u b l i c s a f e t y employees. What was the impact of the work stoppage on the b a r g a i n i n g impass i t s e l f ? C e r t a i n l y the s t r i k e generated a great deal of pressure f o r s e t t l e m e n t . I n t e r e s t i n g l y , t h i s pressure had i t s most immediate impact on the Un ion . The members of the H .E .U . saw t h a t a s t r i k e was not j u s t 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 r e a l i t y when i t was a c t u a l l y e x p e r i e n c e d , w i th r e g u l a r earn ings rep laced by meager s t r i k e b e n e f i t s . 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 pe r iod of t ime wi thout a s e t t l e m e n t , the s t r i k e vote margin at o ther 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 the s t r i k e i n the d i spu te as q u i c k l y as p o s s i b l e , to minimize the damage t o i t s members and to avoid the p o l i t i c a l impact upon the Union i t s e l f . The e x e c u t i v e looked eager ly f o r some means of compromise, some route out of the impasses. On the employer s i d e , the impact of the s t r i k e was much more complex, i f only because the e f f e c t i v e e x e r c i s e of employer a u t h o r i t y i s s p l i n t e r e d i n the h o s p i t a l i n d u s t r y . The h o s p i t a l a d m i n i s t r a t i o n , which a c t u a l l y operates the Vancouver General H o s p i t a l , was t e r r i b l y anxious to see the d i s p u t e s e t t l e d and the s t r i k e ended, because i t was e x p e r i e n c i n g 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 the d r a i n on the res 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 b a r g a i n i n g - 76 - arm of a l l the h o s p i t a l s , was not prepared t o s ign 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 i t cou ld see where the money was coming f rom. E v e n t u a l l y , the pressure had to b u i l d on the M i n i s t r y of H e a l t h , which pays the b i l l s f o r h o s p i t a l c a r e . A f t e r a great deal of sc rambl ing behind the scenes , the Heal th M i n s i t e r conceded tha t he would have to fund a c o n t r a c t se t t lement even i f i t d id 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 . The Union acquiesced i n the s t a t u t o r y 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 Inqui ry Commission, al though i t had a l ready embraced the l a t e r . The a r b i t r a t o r l a r g e l y r a t i f i e d the B l a i r Report f o r the c o n t r a c t y e a r , but a l s o dec ided tha t t h i s should be extended i n t o a two -year agreement w i th a reopener only on wages f o r the second y e a r . Severa 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 the 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 a n t i - i n f l a t i o n g u i d e l i n e s , and tha t t h i s se t t lement must be he ld to the 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 lay a major r o l e i n b reak ing the log jam. C r i t e r i a f o r E s s e n t i a l i t y What c r i t e r i a should be s a t i s f i e d before the 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 or d i r e c t e d 1 1 4 t o des ignate p a r t i c u l a r s e r v i c e s t o be e s s e n t i a l ? What f a c i l i t i e s , p roduct ions 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 the p u b l i c i n t e r e s t to warrant government i n t e r v e n t i o n i n the c o l l e c t i v e b a r g a i n i n g process? - 77 - S e c t i o n 73(1) (b) of the Labour Code employs a s o l i t a r y t e s t of the se r iousness of the withdrawal of s e r v i c e s . I t must r e s u l t i n an "immediate and s e r i o u s danger to l i f e or h e a l t h " . 1 1 5 A s i m i l a r t e s t i s requ i red by s e c t i o n 8(a) of E s s e n t i a l S e r v i c e D isputes Act which r e q u i r e s that "an immediate and s e r i o u s danger to 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 other reasons f o r the Board to des ignate e s s e n t i a l s e r v i c e s . S e c t i o n 8(b) r e q u i r e s "an immediate and s u b s t a n t i a l t h r e a t t o the economy and w e l f a r e of the P ro i vnce and i t s c i t i z e n s " and s e c t i o n 8(c ) 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 of educat iona l s e r v i c e s " . S e c t i o n 8 , t h e r e f o r e , permits a much broader d i s c r e t i o n . I t w i l l be h e l p f u l i n examining these c r i t e r i a to c a t e g o r i z e the s e r v i c e s prov ided by p u b l i c employees: Category 1) e s s e n t i a l s e r v i c e s - f i r e , 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) i n t e r m e d i a t e s e r v i c e s - 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 - where shor t s t r i k e s may be t o l e r a t e d ; Category 3) n o n - e s s e n t i a l s e r v i c e s - s t r e e t s , p a r k s , hous ing , w e l f a r e 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 d u r a t i o n cou ld be t o l e r a t e d . 1 1 6 I t should be noted that a l l these f u n c t i o n s are p o t e n t i a l l y under the E s s e n t i a l S e r v i c e Disputes Act by v i r t u e of the schedule which i n c l u d e s a l l p r o v i n c i a l l y employed s e r v i c e s . There i s l i t t l e doubt tha t the t r u l y e s s e n t i a l category of f i r e , h o s p i t a l 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 the p u b l i c set out i n s e c t i o n 73(1) of the 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 Disputes 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 the necessary de te rminat ion 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 care un ion" and "po l i cemen 's un ion" under s . 1 of the E s s e n t i a l S e r v i c e D isputes 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 important t o the de te rminat ion 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 isputes Act because a union which does not f a l l w i t h i n the d e f i n i t i o n does not have the opt ion of reques t ing a r b i t r a t i o n . My t h e s i s i s that i n t r u l y e s s e n t i a l s e r v i c e s the r i g h t to s t r i k e should be denied and a r b i t r a t o n should be the 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 tha t c o o l i n g - o f f per iods and mediat ion have been u n s u c c e s s f u l . Th is 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 igher percentage of the employees are e s s e n t i a l . The h o s p i t a l unions support s t a f f may be permi t ted to s t r i k e i n c e r t a i n c i r c u m s t a n c e s 1 1 8 but h e a l t h care unions g e n e r a l l y have been i n c l u d e d i n t h i s category because of the 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 extent the s e r v i c e s inc luded i n the second category - 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 p u b l i c w e l f a r e . G e n e r a l l y a s t r i k e i n these areas i f i t cont inues long enough to become s e r i o u s would lead to 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 the E s s e n t i a l S e r v i c e Disputes A c t : an immediate and s u b s t a n t i a l t h r e a t to the economy and w e l f a r e of the P rov ince 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 of e d u c a t i o n a l s e r v i c e s . . . - 79 - The c r i t e r i a set down i n c lauses (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 these i n t e r m e d i a t e s e r v i c e s has been determined . Some American j u r i s d i c t i o n s , notab ly P e n n s y l v a n i a , have t e s t e d the 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 the s t a t u t e of t h a t s t a t e does not i n c l u d e the economy and p u b l i c w e l f a r e t e s t as a ground, the 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 the b a s i s of c r i t e r a s i m i l a r to those i n s e c t i o n 8(a) of the E s s e n t i a l S e r v i c e D isputes A c t . The Pennsy l van ia P u b l i c Employee R e l a t i o n s Act r e q u i r e s tha t i n the event of a work stoppage the s t a t e should seek i n j u n c t i v e r e l i e f i f the re e x i s t s : a c l e a r and present danger to the h e a l t h , sa fe t y or w e l f a r e of the p u b l i c 1 ! 9 " C l e a r and p resent " has been found t o mean tha t the t h r e a t i s rea l or a c t u a l and tha t a s t rong 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 o c c u r . I t i s submit ted tha t the wording i n s e c t i o n 73(1) of the Labour Code or i n s e c t i o n 8(a) of the E s s e n t i a l S e r v i c e Disputes Act i s not markedly d i f f e r e n t . The phrase , "danger to the h e a l t h , sa fe t y or w e l f a r e of the p u b l i c " was examined i n Armstrong School D i s t r i c t v . Armstrong Educat iona l A s s o c i a t i o n . 1 2 0 In t h i s case the court supported the not ion tha t the p u b l i c should be expected to bear some inconvenience as a r e s u l t of the s t r i k e : . . . i t seems to [ the c o u r t ] t h a t the 'danger ' o r t h r e a t concerned must not be one which i s normal ly 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 e n a c t i n g [ P a r a . 1003] which a u t h o r i z e s such s t r i k e s the 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 to accept c e r t a i n inconven ience , f o r such are i n e v i t a b l e , but i t obv ious l y intended t o draw the l i n e at those which pose a danger to the p u l b i c h e a l t h , sa fe 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 Local 115,121 a s t ruck sewage p lant had been d i s c h a r g i n g unt reated 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 source of d r i n k i n g wate r . S c i e n t i f i c ev idence te nde re d , 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 . The 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 days , the cour t he ld tha t there was a c l e a r and present danger to the h e a l t h , sa fe t y or w e l f a r e of the p u b l i c . In response to the argument by the defendant union t h a t t h e r e had been no compla int by the p u b l i c about the d r i n k i n g water , the court i n d i c a t e d that the t e s t should be used f o r p revent ion 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 intended tha t the danger must become a r e a l i t y before a c t i o n can be taken t o p r o t e c t the h e a l t h and s a f e t y of the pub l i c . On the other hand, i n the Armstrong case ,122 the court was concerned about i n t e r p r e t i n g the t e s t too f r e e l y : The proper purpose of an i n j u n c t i o n i s to aver t present danger, not t o prevent danger which may never occur at a l l or which can only occur i f i t does occur at some f u t u r e t ime before which the gr ievances concerned can reasonably be expected to be s e t t l e d . C e r t a i n l y the d i f f e r e n c e between the two i s t o be found i n the nature of the work stoppage and i t s impact on the p u b l i c w e l f a r e . In the New Br igh ton case the t h r e a t of d i sease from the 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 the f a c t tha t i f the s t r i k e cont inued another twenty days , a p p r o x i m a t e l y , the school board would not be ab le to schedule enough i n s t r u c t i o n a l days to q u a l i f y f o r a s t a t e s u b s i d y . Th is i s not - 81 - immediate inasmuch as 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 n the f u t u r e and i t i s not a danger i n the same sense as the t h r e a t of d i s e a s e because i t i s a p u r e l y , economic consequence and a s t r i k e r i g h t l y admin is te red i s designed to be an economic weapon. I t should be added tha t the court i n d i c a t e d tha t i f the s t r i k e cont inued through the twenty days necessary t o l o s e the subsidy tha t would c o n s t i t u t e a t h r e a t s u b s t a n t i a l enough t o meet the t e s t and q u a l i f y f o r i n j u n c t i v e r e l i e f . Th is i s an example of the American cour ts a p p l y i n g the t e s t of a s e r i o u s danger to h e a l t h , sa fe ty and w e l f a r e of the p u b l i c to an i n t e r m e d i a t e s e r v i c e . I t i s submit ted t h a t t h i s t e s t should be used f o r only the most rea l t h r e a t s t o s o c i e t y , and a mere economic damage done to a school board should not f a l l i n t o tha t c a t e g o r y . The reasoning i n Haze l ton Area School D i s t r i c t v. Haze l ton Educat ion A s s o c i a t i o n * 2 3 i s to be p r e f e r r e d . There the court determined that the l e g i s l a t u r e must have contemplated a c e s s a t i o n of educat iona l s e r v i c e s and school c l o s u r e when i t a l lowed the teachers t o s t r i k e . Therefore they must have a n t i c i p a t e d g reate r inconvenience than tha t a s s o c i a t e d wi th a s t r i k e . 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 to s t r i k e to t e a c h e r s , i t opened up the p o s s i b i l i t y tha t too few i n s t r u c i t o n a l days would be scheduled to q u a l i f y f o r the s u b s i d y . T h e r e f o r e , such consequences were w i t h i n the l e g i s l a t i v e i n t e n t and need not be found to c rea te a rea l danger to the p u b l i c . To decide otherwise would open up the oppor tun i t y t o c h a r a c t e r i z e , any d i scomfor t res ted on the p u b l i c as a r e s u l t of a s t r i k e i n the p u b l i c s e c t o r to be a t h r e a t or danger to the p u b l i c and t h e r e f o r e sub jec t to i n j u n c t i o n i n Pennsy l van ia or to - 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 it 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 it does ease the burden on the general public during a strike. The designation process where it 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 . To the employee, a back - to -work order has the same f o r c e whether i t i s i s sued by way of d e s i g n a t i o n under the E s s e n t i a l S e r v i c e D isputes Act or by way of i n j u n c t i o n . I t i s d i f f i c u l t to apply the d e s i g n a t i o n process to t r u l y e s s e n t i a l s e r v i c e s l i k e f i r e and p o l i c e unions and to a l e s s e r extent the h o s p i t a l unions because of the homogenous nature of the employers and because of the s e r i o u s n e s s of a work stoppage. The g r e a t e s t p o t e n t i a l f o r the 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 i n t e r m e d i a t e s e r v i c e s where the r i g h t to s t r i k e should be r e a d i l y granted but where some aspects of the f u n c t i o n s , i f i n t e r r u p t e d , would work a rea l hardship on the general p u b l i c . - 85 - C. The Nonstoppage S t r i k e and the Graduated S t r i k e The nonstoppage s t r i k e and the graduated s t r i k e ^ c a n be two methods of c o n t a i n i n g harm cuased by s t r i k e s . 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 , these two methods have not been adopted so f a r . However, i t would be worthwhi le to d i s c u s s 1 ? 5 them i n order to see what p o s s i b i l i t i e s they have t o o f f e r . I t i s reasonably c l e a r tha 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 order t o so l ve problems c reated by work stoppages does not work, ye t i n most j u r i s d i c t i o n s l e g i s l a t i o n of the s t r i k e i s not a rea l p o s s i b i l i t y . The s t r i k e as i t i s known i n the p r i v a t e s e c t o r would not f u n c t i o n i n the same way i n the p u b l i c s e c t o r and does not f i t the 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 - d i f f u s e r e s p o n s i b i l i t y and the consequent need f o r longer per iods of time to reach se t t lements than i n the p r i v a t e s e c t o r . In a nonstoppage s t r i k e opera t ions would cont inue as u s u a l , but both the employees and the employer would pay t o a s p e c i a l fund an amount equal to 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 pressure to s e t t l e , the re 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 working dur ing p o r t i o n s of t h e i r usual work week and would s u f f e r comparable reduct ions of wages. Here, the re would be pressure not only on employees and employer but a l s o on the community; however, 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 the convent iona l s t r i k e . - 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 to d e c l a r e a nonstoppage s t r i k e a f t e r a l l o ther b a r g a i n i n g procedures have f a i l e d to produce a s e t t l e m e n t . Employees would be o b l i g e d to cont inue t o work f u l l t ime but would forego a p o r t i o n of t h e i r take-home pay. He suggests t h a t , i n i t i a l l y , ten percent would s u f f i c e . Th is money would be pa id by the p u b l i c employer d i r e c t l y i n t o a s p e c i a l fund . In a d d i t i o n to pay ing the 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 the fund an e x t r a amount equal to what the employees have given up; t h i s l a t t e r sum would c o n s t i t u t e a l o s s t o the employer . The union would have the op t ion p e r i o d i c a l l y to i n c r e a s e the amount of foregone wages and employer payment, perhaps by increments of ten percent every two weeks. The p u b l i c employer would have the op t ion to r e q u i r e the union to sw i tch to a graduated s t r i k e . I f the employer d i d t h i s , the employees would cont inue t o l o s e the same rate of pay, but the employer would forego s e r v i c e s r a t h e r than pay out a d d i t i o n a l funds . That e x e r c i s e of the opt ion t o i n i t i a t e the nonstoppage s t r i k e and i n c r e a s e the percentage can be l i m i t e d to the u n i o n . The union has l i t t l e other l e v e r a g e , s i n c e the convent iona l s t r i k e would s t i l l be p r o h i b i t e d . A l s o , were the p u b l i c employer ab le t o i n i t i a t e a procedure under which employees would work wi thout pay, ques t ions of i n v o l u n t a r y s e r v i t u d e might a r i s e . In any event , the employer would s t i l l 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 other terms of employment which have been o f f e r e d to the union and r e j e c t e d . - 87 - The nonstoppage s t r i k e would accommodate the p e c u l i a r i t i e s of p u b l i c labour r e l a t i o n s . I t would a t t r a c t the a t t e n t i o n of and put pressure on both the 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 the union i n v o l v e d and other members of the execut i ve 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 pressure would be steady and i n c r e a s e a b l e . Thus, i t may prov ide the necessary i n c e n t i v e f o r the var ious bodies of government to a c t , w h i l e a l l o w i n g them the t ime they need to 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 the mer i ts of the d i s p u t e wi th the h y s t e r i a now t y p i c a l of i l l e g a l s t r i k e s . Whi le 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 f o r p u b l i c employers - many of whom are hard pressed as i t i s - they should a l s o put an end to the present p r a c t i c e of paying the employees at overt ime ra tes when a s t r i k e ends t o reduce the back log of work accumulated dur ing the s t r i k e . A l s o , h o p e f u l l y , the expense should be only temporary , and , the money w i l l not go to waste . In any event , the p r i c e does not seem too high to pay f o r a s u b s t a n t i a l l y 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 to employees, perhaps even more than would l e g a l i z a t i o n of convent iona l s t r i k e s . In the f i r s t p l a c e , t h e i r ra te of l o s s of pay would be lower at any given t ime i f t h e r e were an a l l out s t r i k e . For employees wi th mortgage and other i n s t a l l m e n t o b l i g a t i o n s to meet, t h i s c o n t i n u i t y of income i s h i g h l y d e s i r a b l e . And, t o the extent tha t the nonstoppage s t r i k e encourages more responsive b a r g a i n i n g wi thout any stoppages, the 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 s c a l e s t r i k e , e s p e c i a l l y one of long d u r a t i o n , the employer i s not l i a b l e f o r f r i n g e b e n e f i t payments. Thus, l i f e insurance p o l i c i e s may lapse or r e q u i r e payments by employees at a t ime when t h e i r income i s i n t e r r u p t e d , and group medical care insurance may have to be kept i n f o r c e at the h i g h e r - c o s t i n d i v i d u a l r a t e s . In a nonstoppage s t r i k e these b e n e f i t s should c o n t i n u e . Second, i n a c t u a l s t r i k e s employees run the r i s k of l o s i n g t h e i r j o b s . 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 to f i r e s t r i k e r s . In the 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 long been p e r m i t t e d , and w h i l e there i s no data on p u b l i c employer a c t i v i t y of t h i s s o r t , i t i s h igh l y probable tha t permanent, n o n d i s c r i m i n a t o r y replacement of s t r i k e r s w i l l become a f e a t u r e of the l e g a l p u b l i c employee s t r i k e . In nonstoppage s t r i k e s , of c o u r s e , jobs would be s e c u r e . Moreover , the absence of even temporary replacements would e l i m i n a t e a t r a d i t i o n a l l y potent source of v i o l e n c e , which everyone has a s take i n a v e r t i n g . T h i r d , 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 tha t i s l e g a l and d i scomfor t s the community as l i t t l e as p o s s i b l e . Union l e a d e r s h i p knows that unpopular s t r i k e s lead to d i s t a s t e f u l l e g i s l a t i o n . And, the s t r i k e r s , even i f they f e e l t h e i r conduct j u s t i f i e d , o f ten must i n c u r the d i sapprova l of the community. A peacefu l method of pursu ing demands seem c l e a r l y p r e f e r a b l e . The p u b l i c employer would need some means of a s s u r i n g union and employee compl iance w i th ground r u l e s . O b v i o u s l y , working f u l l t ime f o r l e s s than f u l l pay might encourage some employees to slow down - a - 89 - favoured dev ice i n s t r i k e - b a n j u r i s d i c t i o n s . Two procedures would minimize v i o l a t i o n s . F i r s t , the unions must see tha t i t i s to t h e i r advantage t o persuade members that i t i s to t h e i r advantage t o abide by the r u l e s . That i s , a l l must be made aware tha 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 rov ide f o r an expedi ted u n f a i r labour p r a c t i c e procedure t o bear and determine charges of a slowdown or improper absence. However, these 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 should be l i m i t e d to those cases where i m p a r t i a l hear ing o f f i c e r s make a f i n d i n g tha t the improper a c t i o n has taken p l a c e . One s e r i o u s problem w i t h the 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 the s p e c i a l fund t o which the p u b l i c employer and employees have c o n t r i b u t e d . In order t o i n s u r e tha t the 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 the p a r t i e s conduct i n b a r g a i n i n g , the fund would have to be p laced 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 . P r o f e s s o r B e r n s t e i n recommends t h a t the fund be put at the 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 respected community f i g u r e s outnumber the t o t a l number of union and government members. T h i s committee would be charged w i t h the task of a p p l y i n g the money t o p u b l i c l y d e s i r a b l e , p r e f e r a b l y short term p r o j e c t s tha t are not c u r r e n t l y i n the 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. C e r t a i n l y 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 the money. Moreover , s i n c e these p r o j e c t s would not be c u r r e n t l y funded, the committee's a c t i o n would not d ischarge any of the - 90 - government's present o b l i g a t i o n s ; and s i n c e such c o n t r i b u t i o n s would occur i r r e g u l a r l y , the government cou ld not count on being r e l i e v e d of any f u t u r e burdens. Consequent ly , 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 f o r l o s i n g c o n t r o l over money, t h i s use of the funds should a l s o prov ide an i n c e n t i v e f o r p u b l i c employers to b a r g a i n . A l though 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 acceptance by p r i v a t e p a r t i e s . There are a number of reasons f o r t h i s . F i r s t , a l though s t r i k e s have been the sub ject of some academic d i s a p p r o v a l , they remain an acceptab le dev ice i n the p r i v a t e s e c o t r . There has been, t h e r e f o r e , l i t t l e rea l p ressure f o r a s u b s t i t u t e . Second, f o r a nonstoppage s t r i k e i n the p r i v a t e s e c t o r to be as e f f e c t i v e as the convent iona l s t r i k e , the c o n t r i b u t i o n s of the employer to the fund must be geared to the amount of p r o f i t s i t i s spared from l o s i n g . Because of the obvious d i f f i c u l t y of c a l c u l a t i n g t h i s f i g u r e , a c h i e v i n g a formula f o r 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 to both p a r t i e s cou ld e a s i l y be more fo rmidable 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 . T h i r d , any s t a t u t o r y i m p o s i t i o n of a nonstoppage p lan would , w h i l e s o l v i n g i n a crude way the c o m p l e x i t i e s of computing the f o r m u l a , r a i s e the c l a i m by employers of d e p r i v a t i o n of property wi thout the process and the analogous employee c l a i m of i n v o l u n t a r y s e r v i t u d e . - 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 respons ive b a r g a i n i n g . More d i r e c t p ressure may be r e q u i r e d , and the graduated s t r i k e would prov ide i t . In a graduated s t r i k e the union would c a l l work to a h a l t i n s t a g e s . Dur ing the f i r s t week or two of the 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 the union so chose , they would not work f o r one f u l l day per week; and so on , u n t i l they reached a stage short of t o t a l stoppage. Employees' t a k e home pay would be cut p r o p o r t i o n a t e l y . The e f f e c t of a graduated s t r i k e would be to g ive the p u b l i c a t a s t e of reduced s e r v i c e wi thout the shock of t o t a l d e p r i v a t i o n . Th is would set i n motion the p o l i t i c a l machinery . C i t i z e n s would make compla ints about t h e i r inconvenience to 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 . Loca l o f f i c i a l s , both execut i ve and l e g i s l a t i v e , would , thus be under pressure to do something, but would never the less be ab le to c o n s u l t w i t h each other and w i t h the o f f i c i a l s at h igher l e v e l s of government. They would t h e r e f o r e be ab le t o n e g o t i a t e w i th the union i n a reasonably 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. Free of resentment and of p o s t u r i n g over i l l e g a l i t y , the compl icated p o l i t i c a l process of s o r t i n g out p re ferences between h igher cos ts and fewer s e r v i c e s and among competing demands cou ld then work i t s e l f o u t . 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 , tha t they be unab le , a f t e r the s t r i k e , t o reduce backlogs at overt ime r a t e s . Th is cou ld probably be accompl ished s imply by a l i m i t a t i o n on overt ime pay f o r some per iod f o l l o w i n g the s t r i k e . - 92 - I t does not seem necessary to do more t o the extent the employees u l t i m a t e l y recoup t h e i r l o s t wages, the p u b l i c w i l l have the l o s t s e r v i c e r e s t o r e d ; and i n any case i t i s , u n l i k e l y tha t e i t h e r s ides losses w i l l ever be t o t a l l y recovered . Second, i t would be necessary t h a t the shutdown not exceed the announced l e v e l . Whi le enforcement of t h i s requirement would not be easy , i t would probably 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 th an exped i ted hear ing procedure to determine the a c t u a l extent of the employee stoppage and t o mete out a p p r o p r i a t e p e n a l t i e s , i n c l u d i n g reduct ion of wages. In a d d i t i o n , the re would be another s t rong inducement to proper observance of the ground r u l e s : 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 , f a i r , and acceptab le weapon to 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 the graduated s t r i k e would work best i n tandem. Because a nonstoppage s t r i k e would cause the p u b l i c l e s s d i s r u p t i o n , i t should perhaps be requ i red t h a t unions t r y i t f o r at l e a s t four weeks; they would then have the op t ion 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 to put pressure on the p u b l i c employer , the employer should be given some l i m i t e d o p t i o n s . I f 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. I f the employer b e l i e v e s tha t the s e r v i c e performed by the employees i s so e s s e n t i a l to the 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 - i t should have the oppor tun i t y 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 r i b u n a l tha t the 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 . I f s u c c e s s f u l , i t cou ld l i m i t the union t o the ever more expensive nonstoppage s t r i k e . - 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. 1 2 6 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. 1 2 7 - 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. The recommendations of the fact finder may 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 if 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 Act. 1 2 8 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 neutral. 1 2 9 There may 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. For example, Massachusetts and Iowa legislations provide for mediation, - 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 . F i n a l o f f e r a r b i t r a t i o n i s u s e d , but the a r b i t r a t o r i s a l lowed to s e l e c t between e i t h e r p a r t y ' s f i n a l proposal as we l l as the recommendations of the f a c t f i n d e r . In Iowa, r e s u l t s have so f a r been encourag ing . Stud ies show that where the 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 to a r b i t r a t i o n . Where f a c t f i n d i n g i s not used , 6 .2 i s s u e s are a r b i t r a t e d . 1 3 0 A 1965 s t a t u t e which gave Massachuset t s ' munic ipa l employees the s t a t u t o r y r i g h t to barga in was amended i n 1973 to prov ide f i n a l o f f e r 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 th ree year t r i a l p e r i o d . The per iod was extended f o r another two years i n June 1977 but i n c l u d e d these r e v i s i o n s - the p a r t i e s could 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 wa ived , the a r b i t r a t o r cou ld 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 the f a c t f i n d e r ' s recommendations; the p a r t i e s cou ld choose a s i n g l e a r b i t r a t o r ra ther than a t r i b u n a l and the scope of a r b i t r a l i ssues was r e d u c e d . 1 3 1 Lipsky and Barocc i analyzed the Massachusetts exper ience over the p e r i o d 1975 to 1 9 7 7 . 1 3 2 They found t h a t s l i g h t l y l e s s than 7 percent of n e g o t i a t i o n s (6 .6 percent ) ended wi th an award. Both mediat ion and f a c t f i n d i n g were e x t e n s i v e l y u t i l i z e d by the p a r t i e s p r i o r to a r b i t r a t i o n . They a s c e r t a i n e d t h a t the f a c t f i n d e r ' s recommendations h e a v i l y i n f l u e n c e d the awards and they concluded t h a t , wh i le 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 in r e l i a n c e on impasse procedures , i t d i d not r e s u l t i n a l a r g e number of cases being reso lved through an award. - 96 - The Iowa l e g i s l a t u r e passed a comprehensive s t a t u t e in 1974 which prov ided the r i g h t to organize and barga in c o l l e c t i v e l y f o r most p u b l i c s e c t o r employees ( i n c l u d i n g teachers ) across the s t a t e and made p r o v i s i o n f o r 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 . The a r b i t r a t o r cannot mediate but can s e l e c t between the p a r t i e s ' f i n a l p o s i t i o n s or the recommendations of the f a c t f i n d e r . The l e g i s l a t i o n c a l l s f o r mediat ion fo l l owed by f a c t f i n d i n g fo l l owed by a r b i t r a t i o n . The l a t t e r may be a s i n g l e a r b i t r a t o r or a three-man board . The r e s u l t s f o r the f i r s t two years (1975-76 and 1976-77) have been reviewed by Ga l lagher and Degnet ter .133 j n e y found , f i r s t , a s t rong " f i l t e r i n g e f f e c t " , i . e . , the p r o p o r t i o n of d i sputes taken to each success i ve step decreased s u b s t a n t i a l l y . Very few cases went to award - 3 .6 percent of n e g o t i a t i o n s i n the f i r s t year and 3 .9 percent i n the second y e a r . T h e r e f o r e , the Massechusetts and Iowa r e s u l t s are encouraging wi th respect 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 wi th f a c t f i n d i n g , p a r t i c u l a r l y in comparison to other forms of d i spute r e s o l u t i o n . A r b i t r a t i o n usage r a t e s , as do s t r i k e r a t e s , depend to a degree on the 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 which they b a r g a i n . I t i s c l e a r that in some r e l a t i o n s h i p s , a r b i t r a t i o n would be used f r e q u e n t l y j u s t as in some casess the s t r i k e weapon i s used f r e q u e n t l y . A d i s t i n c t d isadvantage with regard to a r b i t r a t i o n i s that n e g o t i a t i o n s w i th the s t r i k e t h r e a t removed tend to be drawn o u t . This problem i s not indigenous to a r b i t r a t i o n , however, and can be overcome by p l a c i n g the p a r t i e s , i n c l u d i n g t h i r d party n e u t r a l s , under a r i g i d t ime frame f o r n e g o t i a t i o n s . Indeed, there are many - 97 - suggest ions t h a t cou ld be made to assure tha t barga in ing under a r b i t r a t i o n operates e f f e c t i v e l y . A l s o , procedures are a v a i l a b l e now which would r e s u l t i n acceptab ly low usage rates across 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 lead to a l l but 5 to 10 percent of a l l d i sputes i n a s e c t o r being reso lved 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 convent iona l a r b i t r a t i o n would probably lead to a l l but 10 to 25 percent being reso lved shor t of an a r b i t r a t i o n award. These ra tes are comparable to the frequency of s t r i k e usage. The Iowa procedures bear very c l o s e s c r u t i n y in t h i s r e g a r d . A p o s s i b l e p o l i c y t h r u s t i n d i spute r e s o l u t i o n in 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 together 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 party (under f i n a l o f f e r convent iona l a r b i t r a t i o n ) the e x p l i c i t oppor tun i t y to s e l e c t from the f a c t f i n d e r ' s recommendations would seem, from the Iowa e x p e r i e n c e , to put maximum pressure on the p a r t i e s to n e g o t i a t e t h e i r own agreements. - 98 - B. In te res t A r b i t r a t i o n Prolonged c o n f l i c t s between employers and employees, and s t r i k e s and lockouts in 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 to l i f e , h e a l t h and s a f e t y . This f e a r puts excess i ve pressure on the c o l l e c t i v e b a r g a i n i n g system. I f , in the i n t e r e s t s of the p u b l i c , the r i g h t to s t r i k e and lockout i s to be denied i n these 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 prov ide 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 in almost a l l p roposals to end the r i g h t to 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 d i s p u t e s . Anderson contends that 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 impai rs the e f f e c t i v e n e s s of c o l l e c t i v e b a r g a i n i n g , nor d i s t o r t s the democrat ic p r o c e s s " 1 3 5 Moreover , " a r b i t r a t i o n balances the r e l a t i v e s t reng th of the p a r t i e s and p laces the small union or small employer on an equal f o o t i n g wi th a l a r g e r b a r g a i n i n g c o u n t e r p a r t " . 1 3 6 This part presents an a n a l y s i s of the d e c i s i o n s along a number of d imens ions ; 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 boards . Wherever r e l e v a n t , the d i f f e r e n c e s accord ing to the nature of the award ( i . e . , accord ing to the mentioned c a t e g o r i e s ) have been n o t e d . The d i s c u s s i o n i s based almost e n t i r e l y upon i n f o r m a t i o n t h a t cou ld be c o l l e c t e d from the awards. Sometimes, the d e s i r e d i n f o r m a t i o n was s imply not to be found i n the a r b i t r a t o r ' s r e p o r t . However, i t was p o s s i b l e to d i s c e r n a number of t rends dur ing the per iod under examinat ion and usefu l conc lus ions were made. - 99 - 1 . The A r b i t r a t i o n Board The composi t ion of the boards of a r b i t r a t i o n v a r i e d s i g n i f i c a n t l y accord ing to the category of award c o n s i d e r e d . The opt ions here a r e , of c o u r s e , e i t h e r : 1 . a s i n g l e a r b i t r a t o r agreed to by the p a r t i e s , or appointed by the 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 par ty and a neut ra l cha i rman, the chairman being s e l e c t e d by the nominees or appointed by the m i n i s t e r . 1 3 7 Examination of the "vo luntary a r b i t r a t i o n s " showed t r i p a r t i t e boards were used to a g reate r e x t e n t , or i n approx imate ly 30 percent of the c a s e s . A l l but three of the " s e c t i o n 73 awards" were decided by s i n g l e a r b i t r a t o r s ; the th ree except ions were in matters i n v o l v i n g p r i v a t e h o s p i t a l s . A l l but one of the " E s s e n t i a l Se rv i ce Disputes Act awards" were heard by t r i p a r t i t e boards . In i n t e r e s t a r b i t r a t i o n there i s a va luab le r o l e to be played by the nominees, even more so than i n r i g h t s a r b i t r a t i o n . Th is was d iscussed in H o s p i t a l Employees Un ion , Local 180 and Heal th 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: Secondly , the r o l e of the nominee in ensur ing re levancy 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 in " i n t e r e s t " a r b i t r a t i o n s than in " 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 , the neut ra l chairman i s brought i n t o a r e l a t i o n s h i p w i th 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 and, i n a r e l a t i v e l y b r i e f per iod of t i m e , i s expected to prov ide the " c o r r e c t " answer to 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 task in " 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 task i s to take terms and c o n d i t i o n s which have a l ready been agreed to - i . e . , the c o l l e c t i v e agreement - and apply them to a p a r t i c u l a r set of f a c t s . 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 to c r e a t e the terms and c o n d i t i o n s . Depending on the number of i s s u e s outs tand ing 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 cons ide rs that the working c o n d i t i o n s to be imposed w i l l govern the p a r t i e s f o r a per iod of one, two or even th ree y e a r s . The neut ra 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, if 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. The decision of the majority should be binding on the parties. 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 - 101 - c o l l e c t i v e agreement, and eventual se t t lement of the new c o n t r a c t . I 3 9 ( i ) Time lags occur red wi th v o l u n t a r y a r b i t r a t i o n s . Hearings were g e n e r a l l y not held u n t i l 29 weeks a f t e r the 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 exp i r y d a t e . ( i i ) In the case of s e c t i o n 73 awards, the f i r s t a r b i t r a t i o n hear ing was not held u n t i l 27 weeks a f t e r the prev ious c o l l e c t i v e agreement had te rminated .140 There g e n e r a l l y ensued a f u r t h e r per iod of 6 weeks before the a r b i t r a t o r ' s report was r e l e a s e d , 1 4 1 r e s u l t i n g i n a t o t a l delay of 33 weeks. ( i i i ) The t o t a l t ime per iod fo r r e s o l u t i o n of E s s e n t i a l S e r v i c e Disputes Act awards was shor te r than e i t h e r of t h e s e , being an average 27 weeks. The delay between e x p i r y of the 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 hear ing was "only" 17 weeks - a s i g n i f i c a n t reduc t ion over the e a r l i e r two c a t e g o r i e s . However, i t seems that a r b i t r a t o r s in these d i spu tes d e l i b e r a t e d f o r 10 weeks before handing down t h e i r awards. Long de lays between e x p i r y of one c o l l e c t i v e agreement and set t lement of the next one are o b v i o u s l y u n d e s i r a b l e . The f a c t tha t new terms remain unresolved cannot help but breed worker d i s s a t i s f a c - t i o n with the sys tem, and may u l t i m a t e l y lead to i l l e g a l s t r i k e s . Where a c o l l e c t i v e agreement i s to have a term of only one year (as was the s i t u a t i o n in many of the a r b i t r a t i o n s ) the mentioned f i g u r e s mean that employees d i d not have a c o n t r a c t u n t i l s h o r t l y before the date on which they were l e g a l l y able to g ive n o t i c e to bargain 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 to 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 in fo rmat ion i n the a r b i t r a t o r s ' repor ts to a s c e r t a i n reasons f o r d e l a y , except f o r a very l i m i t e d number of d i s p u t e s . In many cases there had been attempts at mediat ion subsequent to e x p i r y of the prev ious c o n t r a c t , and one might reasonably specu la te the p a r t i e s were n e g o t i a t i n g to some e x t e n t . Part of the reason f o r delay 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 or i n a b i l i t y of a l l persons invo lved to arrange mutual ly acceptab le dates f o r the h e a r i n g s . The d i f f e r e n c e between the vo luntary a r b i t r a t i o n s 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 Disputes Act awards i s noteworthy. When one cons iders as we l l the number of i s s u e s i n v o l v e d , prima f a c i e i t would seem there i s an i n c r e a s i n g tendency , e s p e c i a l l y among hea l th care u n i o n s , to r e l y on a r b i t r a t i o n . They are n e g o t i a t i n g fewer i ssues to the point of se t t lement and going to a r b i t r a t i o n sooner . Perhaps , the a r b i t r a t i o n boards in these d i spu tes are r e q u i r i n g more t ime to make t h e i r 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 Schools A c t , Thompson and C a i r n i e main ta in tha t the cumulat ive 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 to encourage b i l a t e r a l s e t t l e m e n t . 1 4 2 Deadl ines are seen as a source of pressure on the p a r t i e s to 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 aspects of p u b l i c schoo ls a r b i t r a t i o n s which are un ique , however, and i t i s here suggested that time l i m i t a t i o n s may only encourage barga in ing when the p a r t i e s seek to avo id t h e i r . p a r t y s e t t l e m e n t s . In the context 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 there does not appear - 103 - to 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 i s d i f f i c u l t to p r e d i c t the r e s u l t of the t ime l i m i t on b a r g a i n i n g . The e f f e c t might be to 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 leventh hour set t lement as the p a r t i e s prepare f o r a r b i t r a t i o n . On the other hand, there i s no doubt t h a t a maximum time per iod w i t h i n which a r b i t r a t i o n awards must be handed down could be p r e s c r i b e d . A p r o v i s i o n s i m i l a r to s e c t i o n 100 of the Labour Code of B r i t i s h Columbia should be in t roduced as part of the E s s e n t i a l Se rv i ce Disputes Act s e t t i n g a s p e c i f i c t ime 1 i m i t a t i o n . 3 . C r i t e r i a R e l i e d Upon by A r b i t r a t o r s In te res t a r b i t r a t i o n has developed as an a d j u d i c a t i v e p r o c e s s . Th is assumes tha t t h e r e w i l l be standards upon which a d e c i s i o n w i l l be based, and that ev idence and arguments w i l l be prepared i n a n t i c i p a t i o n of those standards being a p p l i e d . The development and a p p l i c a t i o n of o b j e c t i v e s t a n d a r d s , g e n e r a l l y r e f e r r e d to as c r i t e r i a , prima f a c i e would seem to be a r e l a t i v e l y s t r a i g h t forward e x e r c i s e . In p r a c t i c e , i t becomes one of the most nebulous aspects of the a r b i t r a t i o n p r o c e s s . One i n d u s t r i a l r e l a t i o n s s p e c i a l i s t has s a i d : " . . . the f o r l o r n search f o r an e l u s i v e set of c r i t e r i a tha t are supposed to prov ide the unchal lenged b a s i s f o r acceptab le awards decreed by a t h i r d p a r t y . " 1 4 3 There i s a ques t ion which must be answered before s e l e c t i n g the c r i t e r i a . The ques t ion 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 ach ieve? This quest ion 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 i o n . Even where the l e g i s l a t u r e g ives some i n d i c a t i o n of the appropr ia te c r i t e r i a , the - 104 - s t a t u t o r y d i r e c t i v e i s o f ten so general as to be of on ly l i m i t e d a s s i s t a n c e to both the p a r t i e s and the board of a r b i t r a t i o n . For example, Kenneth P. Swan advocates the need f o r a r b i t r a t o r s to deve lop : " . . . a g e n e r a l l y acceptab le 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 perce ived to be j u s t and acceptab le to both the p a r t i e s to the d i s p u t e and s o c i e t y at l a r g e . " 1 4 4 (emphasis added) 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 to d u p l i c a t e the market s i t u a t i o n thereby reaching an award f i g u r e which would have p r e v a i l e d i n the absence of 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 . Many a r b i t r a t o r s become concerned s o l e l y wi th quest ions of c o m p a r a b i l i t y . The term "normat ive" a r b i t r a t i o n d e s c r i b e s attempts by a r b i t r a t o r s to impose a " j u s t " 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 mer 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" a r b i t r a t i o n 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 reached , bear ing in mind t h e i r ba rga in ing s t r e n g t h s . The main o b j e c t i v e of accommodative a r b i t r a t i o n i s to f i n d something c l o s e to a mutua l l y acceptab le s o l u t i o n ; the award i s a pragmatic attempt to reso l ve the d i s p u t e , to avoid a s t r i k e or t o induce a re tu rn to w o r k . 1 4 5 Not a l l academics are i n agreement tha 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 . One c r i t i c has argued t h a t the c h i e f purpose of c o n t r a c t a r b i t r a t i o n i s to reso l ve a b a s i c and urgent d i s p u t e concern ing the terms of a f u t u r e r e l a t i o n s h i p , ra ther than to - 105 - " o f f e r c l e a r guides f o r fu tu re a r b i t r a t i o n d e c i s i o n " . He a s s e r t s there are some s i t u a t i o n s in which o b j e c t i v e standards are not e v i d e n t , and the f a c t the a r b i t r a t o r was not prov ided wi th s a t i s f a c t o r y c r i t e r i a to demonstrate , he decided c o r r e c t l y does not mean that he f a i l e d to e x e r c i s e sound judgment - or r a t i o n a l i t y . 1 4 6 Others argue tha t there are l i m i t s t o be p laced on the use of c r i t e r i a : 1 4 7 I b e l i e v e there are l i m i t a t i o n s to 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 the 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 cons idered when such are part of the l e g i s l a t i v e mandate. Indeed, i t i s not unreasonable to 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 in shaping the board 's d e c i s i o n . Beyond tha t p o i n t , a n a l y s i s i s f o o l h a r d y . The exact outcome i s a complex de te rminat ion 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 execut i ve 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 . F u r t h e r , 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 the t r a d e - o f f s can r e s u l t in honourable pos t ions 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 . I t i s important f o r a r b i t r a t i o n boards and the cour ts to recognize the d i s t i n c t i o n between adherence to 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, that c r i t e r i a are d e s i r a b l e , and t h a t they should f u l f i l two key f u n c t i o n s : (1) a l l o w the a r b i t r a t i o n board to come to the " c o r r e c t " r e s u l t ; and (2) a s s i s t 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 t h e i r c a s e . The January 1974 to November 1983 i s s u e s of the Labour Research B u l l e t i n 1 4 8 c o n t a i n summaries of 87 i n t e r e s t a r b i t r a t i o n s 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 rade unions sub jec t to the Labour Code of B r i t i s h Co lumbia . From these summaries only those awards were s e l e c t e d , f o r t h i s s t u d y , which - 106 - d e a l t w i th b a r g a i n i n g d isputes in e s s e n t i a l s e r v i c e i n d u s t r i e s . The awards so chosen f a l l i n t o three separate c a t e g o r i e s : (a) a r b i t r a t i o n awards pursuant to agreement of the p a r t i e s , i n c l u d i n g terms of the c o l l e c t i v e agreement ( vo luntary a r b i t r a t i o n s ) , (b) a r b i t r a t i o n awards pursuant to s e c t i o n 73 of the Labour Code ( s e c t i o n 73 awards) , and (c) a r b i t r a t i o n awards pursuant to 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 Disputes Act ( E s s e n t i a l S e r v i c e Disputes Act awards) . Summaries of the reasoning found i n the awards examined are mentioned in an attempt to prov ide an overview of the general c r i t e r i a 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 decided the quest ion of wages almost e x c l u s i v e l y on the bas i s of comparison wi th other employer-employee r e l a t i o n s h i p s * 4 9 and there was l i t t l e or no a n a l y s i s of the appropr ia te 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 to the p a r t i e s i n v o l v e d . ( i ) A r b i t r a t i o n Awards Pursuant to Agreement of the P a r t i e s . Vancouver P o l i c e Board and Vancouver Po l i cemen 's Union ( B l a i r ) ! The a r b i t r a t o r made h i s recommendation in respect of wages in l i g h t of a l l " . . . of the evidence brought forward and the submissions 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 f i n a l - 107 - p o s i t i o n s taken by each on the matter of remunerat ion" and in the l i g h t of t h i s : The task 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 ive cognizance to the f a c t t h a t the Prov ince of B r i t i s h Columbia i s p r e s e n t l y pass ing through a somewhat d i f f i c u l t economic s i t u a t i o n and that la rge 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 markets , 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 to be mindful of what has been happening to our cost 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 to a very l a r g e segment of our s o c i e t y . The h ighest i n Vancouver of any Canadian c i t y , and i t seems that the end to t h i s unhappy s i t u a t i o n i s not yet in 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 rend and p a t t e r n of wage set t lements i n t h i s area i n both the p r i v a t e and the p u b l i c sec to r and he must a l s o take a look at what has been happening i n t h i s respect t h i s year to p o l i c e fo rces not on ly i n B r i t i s h Co lumbia , but elsewhere i n Canada as wel 1 . Whi le l o o k i n g at these va r ious aspects of t o d a y ' s s i t u a t i o n , one has a l s o , in the a r b i t r a t o r ' s v iew, to keep before 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 fo rce where i t r i g h t f u l l y be longs , namely, on the top l e v e l among Canada's p o l i c e fo rces 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 ra te p o l i c e fo rce charged wi th p o l i c i n g , as we have po inted o u t , an area tha 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 , that by a l l reasonable means a v a i l a b l e to u s , the morale of tha t f o r c e must be mainta ined at a high l e v e l . Moreover , Vancouver 's p o l i c e f o r c e has been, and s t i l l i s , expanding and must a t t r a c t to i t , and keep wi th i t , men of the high c a l i b r e requ i red today to 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 po l i cemen. To do the t h i n g s of which we speak, Vancouver must be prepared to o f f e r i t s p o l i c e wages and working c o n d i t i o n s w h i c h , by a l l reasonable 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 cons idered i n the eyes of some people - i t must be r e c o g n i z e d , to s t a r t w i t h , t h a t we in Vancouver operate i n a high wage a r e a , (pp 7-8) - 108 - B r i t i s h Columbia Rai lway and Teamsters , Local 213 et a l . (Shime) The a r b i t r a t o r noted that i n t e r e s t a r b i t r a t i o n i s i n many respects an economic event . Thus, submissions to a board of a r b i t r a t i o n should present as f a c t s , c a r e f u l l y analyzed economic d a t a . However, wh i le . . . the re are some who b e l i e v e that 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 tha t economic f a c t s may prove to be as e l u s i v e as o rd ina ry f a c t s and as d i f f i c u l t to a s s e s s . Often economic f a c t s may po int to oppos i te c o n c l u s i o n s and, t h e r e f o r e , they should 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 o p i n i o n , i n t e r e s t a r b i t r a t i o n should not be "a s l e i g h t of hand p r o c e s s " . Whi le reasons may be d i f f i c u l t , they are necessary to enable the p a r t i e s to understand the bas 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. 5 ) : 1 . P u b l i c s e c t o r employees should not be requ i red to s u b s i d i z e the community by a c c e p t i n g substandard wages and working c o n d i t i o n s 2 . Cost of l i v i n g 3 . P r o d u c t i v i t y 4 . Comparisons (a) I n te rn a l (b) Ex te rna l i in the same i n d u s t r y i i not i n the same i n d u s t r y , but s i m i l a r work What fo l lowed i n the a r b i t r a t o r ' s repor t was an exhaust i ve e l a b o r a t i o n of these i n d i v i d u a l c r i t e r i a (pp. 5 - 2 4 ) . - 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 to the argument submitted by the employer t h a t the ra i lway was o p e r a t i n g at a l o s s . 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 ta ted t h a t the operat ion 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 employees r e c e i v i n g substandard wages. The community which requ i res the s e r v i c e s should shoulder the f i n a n c i a l l o s s and not expect the employees to 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 s t a t e d : "Once i t i s accepted tha t the p u b l i c s e c t o r employer does not operate w i th a view to p r o f i t and once accepted tha t i t may a l s o operate at a l o s s , i t becomes c l e a r that i t may not have the necessary resources requ i red to pay the employees. It must gain 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 to the p o i n t , q u i t e o f ten the d i f f e r e n c e s between the union and the employer are such tha t i f taxes were i n c r e a s e d , the f i n a n c i a l burden could be r e a d i l y borne by each member of the community bear ing 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 the requ i red p u b l i c s e r v i c e without the n e c e s s i t y of the employees bear ing the u n f a i r burden of substandard wages or working c o n d i t i o n s . " Mr . Shime then went on to deal w i th the cost of l i v i n g i n c r e a s e s . F i r s t , he s t a t e d tha t there i s no proof that a r b i t r a t i o n awards aggravate a r i s i n g cost of l i v i n g and " there i s s u f f i c i e n t evidence tha t the n e c e s s i t y to read just wages i s a r e s u l t o f , r a t h e r than the cost o f , i nc reased l i v i n g c o s t s " . 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 to t h i s f a c t o r as a response to the economy and have adopted the p o s i t i o n tha t a p a r t i c u l a r a r b i t r a t i o n i n v o l v i n g a l i m i t e d number of employees i s not the p lace to 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 to be a r e g u l a t o r of the economy. That f u n c t i o n i s p roper l y the r o l e of Par l iament or the L e g i s l a t u r e adopt ing necessary f i s c a l or monetary p o l i c i e s . " - 110 - He emphasized tha t i n assess ing the cost of l i v i n g f a c t o r , a r b i t r a t o r s should take i n t o account a l l i n c r e a s e s in compensat ions, such as f r i n g e b e n e f i t s , and not only wages: "A c o n s i d e r a t i o n of the cost of l i v i n g standard must take i n t o c o n s i d e r a t i o n not only 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 inc rease in employer c o n t r i b u t i o n s to a medical p lan would f ree other f i n a n c i a l resources in the hand of the employee to combat i n f l a t i o n . Moreover , gains in working c o n d i t i o n s such as reduct ions in hours of work are a cost to the employer and a b e n e f i t to the employee and are matters tha t must be eva luated when c o n s i d e r i n g cost of l i v i n g . " He d i s c u s s e d the p r o d u c t i v i t y f a c t o r s and whether they should apply i n the p u b l i c s e r v i c e . He concluded that p r o d u c t i v i t y i n c r e a s e s should be shared by p u b l i c servants even though no s p e c i f i c measurement can be made of growth as in p r i v a t e s e r v i c e . However, i n t h i s regard he noted tha t automatic increments should be cons idered 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 l i v i n g . F i a n l l y , the award proceeded to deal wi th c e r t a i n comparat ive wage data in 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 s t a t e d 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 pa id 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 of the employer ; 2) Wages i n jobs in 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 tha t the economic s i t u a t i o n i n B r i t i s h Columbia had to be taken i n t o account ; 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 the p r i v a t e s e c t o r . In t h i s regard the a r b i t r a t o r s a i d : " A r b i t r a t i o n of i n t e r e s t d i spu tes in the 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 barga in ing and some a t t e n t i o n must be paid to what might have evolved had the p a r t i e s had the oppor tun i t y to engage in t h a t p r o c e s s . I f the p a r t i e s know t h i s i n advance i t may encourage them to 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 - I l l - 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 prov ide some o b j e c t i v e bas i s f o r a s s e s s i n g 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 th these remarks: In c o n c l u s i o n , I am of the view that 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 sputes and that va ry ing weight may be given to 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 should 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 to p roper 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 P o l i c e Board and Vancouver Po l i cemen's Union (Larson) ' At the o u t s e t , the a r b i t r a t o r commented on the nature of the a r b i t r a t i o n p r o c e s s : B ind ing a r b i t r a t i o n can work in t h i s context only i f i t does not p r e j u d i c e the policmen i n r e l a t i o n to other groups. I t must r e s u l t in 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 - t i o n s . At the same t i m e , those subject to 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 touchstone i s a s t a b l e r e l a t i o n s h i p w i th other r e l a t e d b a r g a i n i n g 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 ye t i n another , one may not f a r e as w e l l . I t i s only over the long run tha t a judgment can be made as to 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 to be remembered tha t whatever g a i n s , however modest or g r e a t , these have been achieved wi thout 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 . 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 to what the p a r t i e s are prepared to a c c e p t . He i s s k i l l e d to the extent tha t he i s ab le to d i s c e r n 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 the p a r t i e s and yet they may f i n d themselves in such a p o s i t i o n as to be unable to agree . 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 to r e s o l u t i o n s i n c e the 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 . Th is 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 to set t lement which he f e l t would "be workable f o r the t ime be ing" (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 to the f a c t tha t Vancouver C i t y P o l i c e had i n 1975 enjoyed the h ighest s a l a r i e s of any p o l i c e fo rce i n Canada; to the cost of l i v i n g ; to recent i n c r e a s e s achieved by other p o l i c e fo rces i n Canada; to the A . I . B . g u i d e l i n e s ; and to other employment groups, i n c l u d i n g t e a c h e r s , c o n s t r u c t i o n workers , labourers and Vancouver c i t y employees. B r i t i s h Columbia Rai lway and Uni ted T r a n s p o r t a t i o n Union (McKee) The i ssue before the a r b i t r a t o r was a demand by the union f o r d a i l y o v e r t i m e . The p r a c t i c e f o r s i m i l a r employees i n the res t of the i n d u s t r y was examined. In none of the cases was the u n i o n ' s request a standard p r a c t i c e . The a r b i t r a t o r , t h e r e f o r e , s ta ted No t h i r d p a r t y , even someone wi th 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 proposa ls of each party . . . such d e t a i l e d changes in 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 only 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 had cons idered the nature of the a r b i t r a t i o n p r o c e s s : 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 " a r b i t r a t o r . U s u a l l y the " i n t e r e s t " a r b i t r a t o r i s faced wi th r u l i n g on d i f f e r e n c e s i n a small but important 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 to r e s o l v e but do not wish to s e t t l e by s t r i k e . Whi le i t i s not always p o s s i b l e , sound labour 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 should have some modicum of a c c e p t a b i l i t y to both p a r t i e s , - 113 - and be achieved wi th as l i t t l e d i s tu rbance to t h e i r bas i c agreement as p o s s i b l e . S u r e l y , the most b a s i c are tha 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 that the p a r t i e s can l i v e w i th 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 labour r e l a t i o n s - an award that does not damage the ongoing r e l a t i o n s h i p (c) w i th r e s p o n s i b i l i t y i to the p a r t i e s i n tha t he does not abuse the power granted to him and does not impose on them s o l u t i o n s tha t can generate not only se r ious 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 lace in jeopardy the s e r v i c e porv ided by any such o r g a n i z a t i o n . i i to enable the p a r t i e s to have f u l l access to h im, and h i s t h i n k i n g , p r i o r to the f i n a l i z a t i o n of the award such that the award i s not made i n a "vacuum" and thus cause the p a r t i e s to lose a l l f a i t h i n t h i r d party 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 though one may deplore the tendency to l e t someone e l s e take the r e s p o n s i b i l i t y i n those s e r v i c e s upon which the p u b l i c i s so dependant, the t rend i s i n c r e a s i n g l y toward t h i r d party i n t e r v e n t i o n to r e s o l v e , or help r e s o l v e problems. It i s t h e r e f o r e mandatory tha t the c r e d i b i l i t y of t h i r d par ty 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 the sake of making a d e c i s i o n , (pp. 15-16) i i A r b i t r a t i o n Awards Pursuant to Sec t ion 73 of the Labour Code. V i c t o r i a Po l i cemen 's Union and C i t y of V i c t o r i a ( B a r c l a y ) : In d e c i d i n g the 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 to the cost of l i v i n g , the consumer p r i c e index , and the d u t i e s of a V i c t o r i a pol iceman as compared to those of policemen i n a nearby m u n i c i p a l i t y . I t was a l s o s t a t e d : - 114 - I t i s apparent that 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 important tha t i t s e f f e c t i v e n e s s and morale be maintained at a high l e v e l . The crime ra te w i t h i n the 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 to the f o r c e men of high c a l i b r e requ i red today t o p roper l y f i l l the r o l e of po l i cemen . C e r t a i n l y i n t o d a y ' s s o c i e t y p u b l i c a t t i t u d e s do not make a po l i ceman 's task 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 B o a r d , r e c o g n i z i n g these f a c t o r s , decided they had l i t t l e a l t e r n a t i v e but to s e t t l e on the leases of the Saanich agreement a l though 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 Un ion , Local 180 (We i le r ) The Board was appointed to set the terms and c o n d i t i o n s of the f i r s t c o l l e c t i v e agreement between the p a r t i e s , who had f a i l e d to reach agreement on some 140 m a t t e r s . The p r i n c i p l e s e l u c i d a t e d in two Onta r io a r b i t r a t i o n s were adopted. 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 that a r b i t r a t i o n was intended to be an a d j u d i c a t i v e mode of d e c i s i o n making, 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 standards to d ispose o f f the i s s u e s to 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 exper iences i s to determine the a p p r o p r i a t e c r i t e r i a or s t a n d a r d s . An a r b i t r a t o r should not look to not ions of s o c i a l j u s t i c e in s e t t i n g the 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 should not c o n s i d e r what i s a f a i r wage f o r c e r t a i n k inds of work. There i s no i n d i c a t i o n i n the Labour Code tha t j u s t i c e i s t o rep lace the law of supply and demand as the p r i c i n g mechanism f o r wages i n the h o s p i t a l i n d u s t r y . Th is p r i n c i p l e i s expressed i n Wei land County General H o s p i t a l at 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 a r e 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 g a i n s 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 " a r e not o n l y i r r e l e v a n t , they a r e s i m p l y t o o vague t o outweigh t h e 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 t h e 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 . , 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 t h e 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 t h e 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 a s t r i k e or l o c k o u t . The b e s t 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 t h e 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 t h e 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 , ( p . 2) In answer t o t h e q u e s t i o n "which a r e t h e ' c o m p a r a b l e ' h o s p i t a l s i n t h e c o n t e n t ? " , t h e Board was s a t i s f i e d on t h e 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 p r e s u m p t i o n t h a t t h e p r i v a t e h o s p i t a l s were t h e r e l e v a n t comparable i n s t i t u t i o n s . The u n i o n d i d not r e f u t e t h i s p r e s u m p t i o n . The Board a c c e p t s t h e overwhelming e v i d e n c e at t h e h e a r i n g t o t h e e f f e c t t h a t t h e 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 t h e amount t h a t funds t h e i r p u b l i c c o u n t e r p a r t s . Without g o i n g i n t o e x c e s s i v e d e t a i l as t o t h e 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 t h e 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 a g r e e m e n t s . 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 a r e 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 t h e agreement t h a t t h e 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 c o n c l u d e d 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 t h e 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 t h e Labour Code. ( p . 3) Wherever p o s s i b l e , t h e Board c o n s i d e r e d t h e b a r g a i n i n g p o s i t i o n o f t h e 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 - 116 - ev idence whatsoever of w i l l i n g n e s s to agree , the comparable c o l l e c t i v e agreements were r e f e r r e d t o . 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, Local Union 1731, (Thompson) The Board cons idered a d j u d i c a t i v e theory which "holds that a d e c i s i o n be based on r a t i o n a l , accepted c r i t e r i a , p r i n c i p a l l y o ther se t t lements a r r i v e d at i n the same i n d u s t r y " ; and , adjustment , which " r e s o l v e s a d i s p u t e i n which the members of the a r b i t r a t i o n board agree on a compromise p o s t i i o n acceptab le t o both p a r t i e s " , (p. 3) "with i t s re ference to " 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 , the a d j u d i c a t i v e theory i s an appea l ing one to an a r b i t r a t i o n board , seek ing 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 the s e l e c t i o n of c r i t e r i a or standards on which to 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 not ions of s o c i a l j u s t i c e i n favour of agreements f r e e l y negot ia ted e lsewhere . However, c o l l e c t i v e agreements even i n the same i n d u s t r y , conta in many c lauses i n t e r r e l a t e d i n t h e i r impact on the p a r t i e s as we l l as being the 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 smal l number of c lauses as the bases f o r comparison over looks t h i s f a c t . Another problem i s the s e l e c t i o n of agreements f o r comparison. Onta r io h o s p i t a l s may be s u f f i c i e n t l y homogenous to permit comparisons by a r b i t r a t o r s seek ing d e c i s i o n c r i t e r i a . I f s o , such a s i t u a t i o n i s f a r from common. Moreover , 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 smal l c l a s s of d i s p u t e s . " I t was a s s u r e d , t h a t , when a r b i t r a t i o n takes p lace i n i n d u s t r y segments or f i rms wi thout a s u b s t a n t i a l h i s t o r y of c o l l e c t i v e 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 a r b i t r a t i o n board cannot a d j u d i c a t e the d i f f e r e n c e s between the - 117 - p a r t i e s : " I t may ad jus t these 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 the probable outcome of c o l l e c t i v e b a r g a i n i n g , r e a l i z i n g t h e r e are few, i f any, ' r a t i o n a l ' standards on which t o base i t s d e c i s i o n " . The Board t h e r e f o r e " t r i e d to a d j u s t " the matters i n d i s p u t e , 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, the Board heard e x t e n s i v e evidence of the i n a b i l i t y of the employer to pay more than a minimal i n c r e a s e , due t o the low l e v e l of funding prov ided by the p r o v i n c i a l government to a l l p r i v a t e h o s p i t a l s . 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 the Board ' 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 to see the h o s p i t a l c l o s e . Al though 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 rov ides 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 the Labour Code to 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 the p u b l i c ( i n t h i s case the p a t i e n t s and t h e i r f a m i l i e s ) aga ins t i n t e r r u p t i o n of an e s s e n t i a l s e r v i c e . 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 h o s p i t a l . Moreover i f the employees had wished to c l o s e the 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 the o p t i o n of doing so through a s t r i k e , (p . 5) At the same t i m e , the Board was anxious t o secure f o r the 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 inc reased l i v i n g c o s t s . A s a l a r y s c a l e was dev ised which the Board b e l i e v e d would permit the h o s p i t a l t o o p e r a t e . P o l i c e Board of the D i s t r i c t of Saanich and Saanich P o l i c e A s s o c i a t i o n (S tewar t ) : 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 , the argument of p a r i t y : My award w i l l have more emphasis on the a b i l i t y of a community to pay i t s employees or to p rov ide s e r v i c e s which the 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 se t t lement than on p a r i t y by i t s e l f . I t 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 cons tab le i n Saanich should be pa id 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, the a r b i t r a t o r took i n t o account these f a c t o r s : (pp. 8 - 9 ) : 1 . H i s t o r i c a l r e l a t i o n s h i p w i th employees of the same employer 2 . The p u b l i c i n t e r e s t t o be served by making the award r e l e v a n t to the community i n v o l v e d and the need to make the process work. The words of Da l ton Larson i n the Vancouver Award of September 27 , 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 context only i f i t does not p r e j u d i c e the pol icemen i n r e l a t i o n t o 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 l e g i t i m a t e e x p e c t a t i o n s . At the same t ime those sub jec t t o a r b i t r a t i o n must r e a l i z e tha 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 touchstone i s a s t a b l e r e l a t i o n s h i p w i t h other r e l a t e d b a r g a i n i n g 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 another one may not f a r e as w e l l . I t i s only over the long run tha t a judgment can be made as to the 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 to be remembered that whatever g a i n s , however modest or g r e a t , these have been achieved wi thout 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 evidence of e f f c i e n c y , high mora le , 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 to none i n B r i t i s h Co lumbia . 4 . The f a c t , these employees d i d not slow down, withdraw s e r v i c e s , impede performance or adopt o ther common methods of i n f l u e n c i n g the b a r g a i n i n g r e l a t i o n s h i p . 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 these employees e l e c t e d to 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 wi thout r e s o r t i n g t o s t r i k e . - 119 - 6. Th is award must r e f e r to wage set t lement only and not r e f l e c t my o p i n i o n of the 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 S e n i o r C i t i z e n s ' Homes L t d . and H o s p i t a l Employees U n i o n , Local 180 ( B i r d ) The employer was a n o n - p r o f i t , l ong - te rm care f a c i l i t y . I t was c h a r a c t e r i z e d by the Board as a p u b l i c i n s t i t u t i o n . T h e r e f o r e , " a b i l i t y to pay" and "budget" c o n s i d e r a t i o n s d i d not weigh h e a v i l y . Alhtough the a f f e c t s of a h igher award were s imply unknown, t h a t d i d not act as a major i n h i b i t o r (p. 1 3 ) . In resepct of a p p r o p r i a t e c r i t e r i a i t was s a i d : . . . T h e Board cons idered the approach taken i n s i m i l a r c i rcumstances 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 Un ion , Loca l 180, Dec. 3 1 , 1975, wherein he caut ioned aga ins t t r y i n g to apply not ions of what i s a f a i r wage f o r c e r t a i n k inds 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 to labour 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 tempt ing to s i m u l a t e the agreement which cou ld have been reached by the p a r t i e s under the 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 evidence 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 ther 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 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 scove red by examining what agreements have been concluded under s i m i l a r c i rcumstances to those at K iwanis are the 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 the "cost of l i v i n g " and the s p e c i a l problems to the 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 the Government. Perhaps even growth i n the gross n a t i o n a l product cou ld p roper l y be c o n s i d e r e d . . . - 120 - To f i n d the p a t t e r n of c o l l e c t i v e agreements i n o ther 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 conc luded , i s the task P r o f e s s o r W e i l e r set f o r h i m s e l f and we set f o r o u r s e l v e s . In order to do so we must know the c h a r a c t e r i s t i c s of the sub jec t i n s t i t u t i o n and i d e n t i f y the community before we t r y to f i n d comparable i n s t i t u t i o n s . We would waste our t ime seek ing an i d e n t i c a l i n s t i t u t i o n . Each i s un ique . C o m p a r a b i l i t y i s a matter of degree, (pp. 13-14) i i i A r b i 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 isputes Act The E s s e n t i a l S e r v i c e D isputes Act prov ided f o r the f i r s t t ime i n B r i t i s h Columbia s t a t u t o r y c r i t e r i a to which a r b i t r a t o r s s h a l l have regard i n making an award. The c r i t e r i a are i n s e c t i o n 7 of the 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 the a r b i t r a t i o n board s h a l l have regard to (a) the i n t e r e s t s of the p u b l i c ; (b) the terms and c o n d i t i o n s of employment i n s i m i l a r occupat ions ou ts ide the employer 's employment, i n c l u d i n g such geographic , i n d u s t r i a l , or o ther v a r i a t i o n s as the 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 cons iders r e l e v a n t ; (c) the need to mainta in 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 the 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 occupat ion and as between occupat ions i n the employer 's employment; (d) the 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 reasonable 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 performed, the r e s p o n s i b i l i t y assumed and the nature of the s e r v i c e s rendered; and (e) any other f a c t o r t h a t the s i n g l e a r b i t r a t o r or the a r b i t r a t i o n board cons ide rs re levant to the matter i n d i s p u t e . - 121 - A l l boards of a r b i t r a t i o n appointed pursuant t o the E s s e n t i a l S e r v i c e D isputes Act have of n e c e s s i t y cons idered and i n t e r p r e t e d the s t a t u t o r y g u i d e l i n e s in making t h e i r a w a r d s . 1 5 0 Heal th 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 (Stewart) Th is award r e s u t l e d from the f i r s t a r b i t r a t i o n conducted under E s s e n t i a l S e r v i c e D isputes A c t . The Board d i d not e l a b o r a t e at great length upon the c r i t e r i a , nor was the s a l a r y i n c r e a s e s p e c i f i c a l l y j u s t i f i e d . 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 the end of the d e c i s i o n . In regard to the 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 const rued i n a narrow context t o mean t h a t the 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 the purposes of the p a r t i e s themselves . I t i s c l e a r tha t the express ion of i n t e r e s t of the p u b l i c embraces not only the c o n t i n u a t i o n of work and employment but a l s o the s o c i a l and economic r e s u l t s of set t lement (p. 58) Thus, a l though the i n t e r e s t of the p u b l i c r e q u i r e s tha t work stoppages be a v o i d e d , t h i s goal i s not to be achieved "at any c o s t " . The se t t lement between the p a r t i e s must be f a i r , and the impact on the p u b l i c must be a p p r o p r i a t e , reasonable and j u s t . (p . 60) The Board a l s o compared wage l e v e l s i n other components w i t h i n the i n d u s t r y . D i f f e r e n c e s on a p r o v i n c i a l and geographica l b a s i s were r e c o g n i z e d . I t i s d i f f i c u l t t o a s c e r t a i n the standard deemed a p p r o p r i a t e . The h ighest comparable wage was c l e a r y r e j e c t e d : . . . Looking 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 present c o n t r a c t . I t i s not i n the 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 negot ia ted w i t h i n the i n d u s t r y between a group of employees and t h e i r employer should be copied merely t o a l l o w the p r i n c i p l e of "h ighest common denominator" to - 122 - p r e v a i l . A balance has been sought i n t h i s award, (p. 59) The i n t e r n a l "peck ing o rder " was an important f a c t o r and t h i s c o n c l u s i o n led to i n c l u s i o n of a p r o v i s i o n f o r re -open ing the c o n t r a c t i f a l a t e r wage i n c r e a s e to lower pa id 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 compar isons . Heal th 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 the c o l l e c t i v e agreement between the h e a l t h care workers and the general h o s p i t a l s i n the 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 to the p r i n c i p l e s governing i n t e r e s t a r b i t r a t i o n . In r e l a t i o n to c r i t e r i a , a great deal of t ime was spent d i s c u s s i n g the p a r t i e s p roposa ls i n terms of the p u b l i c i n t e r e s t . As ide from the f a c t t h a t both p a r t i e s agreed tha t the p u b l i c i n t e r e s t 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 , the re was l i t t l e consensus between them. The employer 's arguments regard ing economic c o n d i t i o n s and a b i l i t y t o pay were r e j e c t e d : The combatt ing 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 tha t remain t o be reso lved i n the p u b l i c domain. I t would r e q u i r e express language i n the E s s e n t i a l S e r v i c e Disputes Act t o impose tha t j u r i s d i c t i o n upon t h i s Board . The a b i l i t y of the 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 to be cons idered but i t i s a f a c t o r tha 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 working 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 the economy, (p . 32) I t was s a i d t h a t the 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 the p u b l i c s e c t o r l i e s i n the a b i l i t y of the process to s u c c e s s f u l l y subord inate the r i g h t s of e s s e n t i a l s e r v i c e employees to the r i g h t s of the general p u b l i c . Th is s u b o r d i n a t i o n should i d e a l l y guarantee to - 123 - employees a r e s u l t tha 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 b a r g a i n i n g p r o c e s s . Thus, t h e r e was an o b l i g a t i o n on the Board to demonstrate a f a i r and e q u i t a b l e r e s u l t . The o b l i g a t i o n to 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 par t of the 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 the a p p l i c a t i o n of the c r i t e r i a (pp. 27 -28) In determin ing 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 working c o n d i t i o n s i n any aspect of the 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 the p u b l i c s e c t o r where those wages and working c o n d i t i o n s have been e s t a b l i s h e d through the 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 the wages and working c o n d i t i o n s enjoyed by h e a l t h care components of the p r o v i n c i a l government were cons idered to 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 the de te rminat ion of wages (p . 9 ) , e s p e c i a l l y as i n both cases the p r o v i n c i a l government i s the u l t i m a t e employer (p . 3 0 ) . The Board d i d not , however, accept the u n i o n ' s submission of p a r i t y w i th the p u b l i c s e r v i c e . The concept of " p a r i t y " was r e j e c t e d as being too s i m p l i s t i c i n favour of the term " c o m p a r a b i l i t y " : I t i s q u i t e p o s s i b l e w i t h i n the concept " c o m p a r a b i l i t y " t o achieve a r e s u l t tha t acknowledges and r e f l e c t s both the d i f f e r e n c e s and the s i m i l a r i t i e s between the two groups, (p. 9) Hea l th Labour R e l a t i o n s A s s o c i a t i o n and Heal th Sc iences A s s o c i a t i o n of B r i t i s h Columbia (Larson) At the beg inn ing of the d e c i s i o n , the Board sought to d e f i n e "the i n t e r e s t of the p u b l i c " , and a number of p r e v i o u s l y a s s e r t e d - 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 canvassed. The Board conc luded , however, tha t . . . the consequence i s that 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 , the 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 lauses ( b ) , (c) and (d) of 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 isputes Act 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 ex te rna l compar isons. Under c lause (e) a board would p roper l y cons ide 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 cost of l i v i n g , i nc reased 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 . I t was noted tha t the E s s e n t i a l S e r v i c e Disputes Act does not i n d i c a t e which comparisons must be given the g r e a t e s t w e i g h t . The Board decided t h a t the re levant f a c t o r s had not been arranged i n descending order of importance . I t was a l s o recognized t h a t c lauses (b) and (c) of s e c t i o n 7 might i n some c i rcumstances be i n e f f e c t , " c o m p e t i t i v e " , (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 the 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 isputes Act are not mutual ly exc I us i v e . Regard i s to be had t o a l l the comparisons s t i p u l a t e d . In so doing we have determined tha t great weight must be given to terms and c o n d i t i o n s of employment i n the 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 p r o v i n c e . Th is i s p a r t i c u l a r l y t r u e where, as here , the terms and c o n d i t i o n s of employment w i t h i n the government s e r v i c e lead the 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 et a l and H o s p i t a l Employees Union (Owen- F lood) 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 employment between the union and severa l " p r i v a t e " h o s p i t a l s , was reviewed by the Supreme Court on a p p l i c a t i o n of the employer . In a very shor t judgment - 125 - the 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 " i t s d e c i s i o n . The reasoning 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 tha t the i n t e r e s t of the p u b l i c i s a r e l e v a n t double-edge sword f o r these reasons: ( i ) The common weal of the p u b l i c good m i l i t a t e s aga ins t any award t h a t w i l l unduly f u r t h e r burden the a l ready beleagured economy. Such awards are s e l f d e f e a t i n g . ( i i ) On the other hand, the p u b l i c i n t e r e s t r e q u i r e s : " . . . t h a t the se t t lement between the p a r t i e s i s f a i r and tha t the impact of tha t set t lement on the p u b l i c i s a p p r o p r i a t e , reasonable and j u s t . . . " (pp. 6 -7 ) In a p p l y i n g the " f a i r and reasonab le" c r i t e r i a , the Board looked at the h i s t o r y 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 those i n the p u b l i c s e c t o r . A gradual t rend towards p a r i t y , however, was d i s c e r n e d . "While there i s no rhyme or reason i n p a r i t y f o r the sake of p a r i t y , the re i s a d e f i n i t e b e n e f i t to the p u b l i c i n an award which recognizes that the eventual aim should be towards equal pay f o r equal w o r k . . . . . . t h i s Board f i n d s tha t both the p r i v a t e h o s p i t a l s and the employees would b e n e f i t i n an award which seeks t o recognize the 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 does, i n c r e a s e s which are phased so tha t the p a r t i e s can make the necessary adjustments to p rov ide f o r those i n c r e a s e s (p . 8) Under s e c t i o n 7(1) (e) the Board cons idered another f a c t o r t h a t " . . . the award must be one which serves the pragmatic needs of both s i d e s " (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 (Maclnty re ) - 126 - At the beg inn ing of i t s award the Board examined i n some d e t a i l i n t e r p r e t a t i o n s of the s t a t u t o r y c r i t e r i a i n four prev ious awards. I t then proceeded to apply the c r i t e r i a to the d i s p u t e before i t . Each standard was d i s c u s s e d g e n e r a l l y and then s p e c i f i c a l l y i n r e l a t i o n to the matters i n i s s u e , f o c u s i n g mainly on monetary concerns . The l a t t e r par t of the Board ' s reasoning under each heading has been omit ted here . (a) The i n t e r e s t of the p u b l i c . Th is i s not a p a r t i c u l a r l y h e l p f u l c r i t e r i o n . There i s an argument tha t the p u b l i c , as t a x p a y e r s , should not be burdened w i t h e x c e s s i v e wage payments to government employees, and a f u r t h e r argument tha t such excess i ve 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 the general economy. On the other hand, there i s the argument t h a t the nurses ' wages are low, 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 to o ther persons , whether i n the p u b l i c or p r i v a t e s e c t o r , and the f u r t h e r argument tha t the p u b l i c i s b e t t e r served by contented ra ther than d i s c o n t e n t e d employees. A l l of these are v a l i d arguments but they do not po in t to 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 " h o r i z o n t a l e q u i t y " . T h i s c r i t e r i o n suggests tha t nurses i n the government s e r v i c e should r e c e i v e remuneration and other 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 ther s e r v i c e s . Presumably comparisons wi th other B r i t i s h Columbia nurses would be the most a p p r o p r i a t e , but nu rses ' abso lu te and r e l a t i v e p o s i t i o n s i n other prov inces 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 " v e r t i c a l e q u i t y " . Th is c r i t e r i o n i s r e l a t e d to the concept that w i t h i n the workplace of the same employer , the re i s a "peck ing o rder " 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 var ious 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 orders 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. - 127 - Whatever t h e i r j u s t i f i c a t i o n the d i s t i n c t i o n s loom l a r g e i n importance to those who work i n c l o s e a s s o c i a t i o n and smal l d i f f e r e n c e s i n pay or o ther 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 Board 's o p i n i o n was tha t i t was not requ i red to c o r r e c t i n t e r n a l anomal ies , but nonetheless i t cou ld not be b l i n d to h i s t o r i c a l 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 reasonable wages". One much-d iscussed concept which might f i n d a p lace 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" . Th is concept i s d i f f i c u l t t o apply to p u b l i c s e c t o r b a r g a i n i n g . In the shor t run , of c o u r s e , the government can pay. I t has the 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 sub ject to c o m p e t i t i o n . I t s d e c i s i o n s , though f i n a n c i a l i n appearance, w i l l be mot ivated 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-guess ing the " 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 secure 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 the d e p r i v a t i o n of c u r t a i l m e n t of the r i g h t to s t r i k e ; the re 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 the p o l i t i c a l p ressure 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 the 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 the 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 tandard i n a sea of v a r i a b l e s . . . ( p . 12) The union p laced c o n s i d e r a b l e r e l i a n c e upon the i n f l a t i o n rate as a minimum standard of s e t t l e m e n t ; the Board took these arguments i n t o c o n s i d e r a t i o n " . . . as of c o n s i d e r a b l e , i f not compe l l i ng s i g n i f i c a n c e " . (p. 1 2 ) . Under the heading of "other re levant f a c t o r s " the Board d i s c u s s e d the ques t ions of delay and b e n e f i t of h i n d s i g h t . Whi le i t cons idered these f a c t o r s r e l e v a n t , the Board was not e n t i r e l y sure how i t should regard them. I t conc luded , w i th some d i f f i d e n c e , t h a t i t " . . . must c o n s i d e r the delay f a c t o r and make some attempt to compensate f o r i t , 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) The Board a l s o - 128 - concluded tha t i t might cons ider events which had occured s i n c e the beg inn ing of the c o n t r a c t . 4 . Comments on the C r i t e r i a The most obvious quest ion 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 the E s s e n t i a l S e r v i c e D isputes Act has had any e f f e c t on i n t e r e s t a r b i t r a t i o n i n B r i t i s h Co lumbia . The answer can be yes and no. G e n e r a l l y , i n f u l f i l l i n g t h e i r l e g i s l a t i v e mandate under s e c t i o n 7 ( 1 ) , a r b i t r a t o r s s i g n i f i c a n t l y base t h e i r award on the f a c t o r s conta ined i n the l e g i s l a t i o n and e x p l a i n the e f f e c t which the 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 . Beyond t h i s , i t i s d i f f i u c l t to see any s i g n i f i c a n t , s u b s t a n t i a l changes which have been brought about by the E s s e n t i a l S e r v i c e D isputes A c t . The c r i t e r i a conta ined 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 p r i o r to 1977. The c r i t e r i a were: the p u b l i c i n t e r e s t ; comparison w i th o ther c o l l e c t i v e agreements, p r e f e r a b l y f r e e l y n e g o t i a t e d ; some i n t e r n a l compar isons; labour market r e a l i t i e s and the 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 the cost of l i v i n g and the p r o j e c t e d r a t e of i n f l a t i o n ; and the e f f i c i e n c y and morale of the b a r g a i n i n g u n i t . Th is l i s t 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 (e) i n s u b s e c t i o n 7(1) of the E s s e n t i a l S e r v i c e Disputes A c t . The e f f e c t of the s t a t u t o r y p r o v i s i o n s has been the c r e a t i o n of a use fu l " c h e c k l i s t " f o r i n t e r e s t a r b i t r a t o r s . The c r i t e r i a ensure tha 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 the p u b l i c i n t e r e s t , a p p r o p r i a t e compar isons , and so o n . At the same t i m e , however, paragraph (e) means t h a t the i n q u i r y i s v i r t u a l l y open-ended, i . e . , any f a c t o r not - 129 - s p e c i f i c a l l y contemplated as re levant by the l e g i s l a t u r e may be " regarded" by the a r b i t r a t o r . As po inted out i n the awards, no p r i o r i t y need be given t o any p a r t i c u l a r c r i t e r i o n . The r e s u l t i s t h a t , a l though there are o s t e n s i b l y o b j e c t i v e s t a t u t o r y c r i t e r i a , 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 s u b j e c t i v e p r o c e s s . Th is o b s e r v a t i o n i s f u r t h e r r e i n f o r c e d by the lack of unanymity among a r b i t r a t o r s as to how the s t a t u t o r y g u i d e l i n e s should a c t u a l l y be i n t e r p r e t e d - the " p u b l i c i n t e r e s t " i s e s p e c i a l l y p r o b l e m a t i c . 1 5 1 p a r t of the u n c e r t a i n t y no doubt r e s u l t s from d i f f e r e n t c h a r a c t e r i s t i c s as t o the very nature and purpose of a r b i t r a t i o n . 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 the 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 the 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 ) . A n a l y s i s of the c r i t e r i a 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 beginning or at the end of the r e p o r t . Express reasoning f o r a p a r t i c u l a r term of the c o l l e c t i v e attempted only i n the case of wages. Th is br ings to the f o r e a po in t of c o n j e c t u r e . I t i s r e l a t i v e l y 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 , " o b j e c t i v e " c r i t e r i a might be re levant to the es tab l i shment of wage and s a l a r y l e v e l s . I t i s more d i f f i c u l t t o imagine how these c r i t e r i a can d i c t a t e a se t t lement of non-monetary terms of a c o n t r a c t . Y e t , s e c t i o n 7 i s a p p l i c a b l e t o a l l unresov led i s s u e s which go t o a r b i t r a t i o n . Noel H a l l has a l l u d e d to t h i s d i f f i c u l t y : 1 5 2 when the ( 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 d isagreement , I t h i n k i t h i g h l y 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 or two c r i t e r i a by which he can p u l l the whole - 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 wi th 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 c o l l a p s e d . In those c i rcumstances the a r b i t r a t o r must use a wide range of exper ience 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 to r e s t o r e some reasonable balance to the c o l l e c t i v e agreement and the b a r g a i n i n g r e l a t i o n s h i p . He must of n e c e s s i t y t r y t o f i n d an accomodation tha 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 the p a r t i e s . While few of the a r b i t r a t i o n s examined i n t h i s study i n v o v l e d r e l a t i o n s h i p s which had " t o t a l l y c o l l a p s e d " , the i n c r e a s i n g i n c i d e n c e 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 tha t a r b i t r a t o r s are being asked to r u l e on c o n d i t i o n s of employment such as s h i f t r o t a t i o n , s u b s t i t u t i o n procedures , educat ion committees and job e v a l u a t i o n programs. Outs ide of e x t e r n a l comparisons i t i s d i f f i c u l t t o see how predetermined c r i t e r i a can be very u s e f u l . Cont ract n e g o t i a t i o n i s a h i g h l y s e n s i t i v e p r o c e s s , f u l l , of s u b t l e nuances and t r a d e - o f f s . 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 pre ferance i s tha t the p a r t i e s themselves r e s o l v e these terms) a very f l e x i b l e approach must be adopted, r e c o g n i z i n g the requirement of the i n d i v i d u a l employer and u n i o n . The c o n c l u s i o n , that 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 to those 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 Disputes Act do not s i g n i f i c a n t l y i n f l u e n c e the outcome of a r b i t r a t i o n , i s not un ique . In an American s t u d y * 5 3 comparable d e c i s i o n s under Mich igan law (which prov ides s t a t u t o r y c r i t e r i a ) and under Pennsy l van ia law (which c o n t a i n s no such p r o v i s i o n s ) were i n v e s t i g a t e d . Some of the 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.1 5 6 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 decision- making process, it 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 it is probably an illegal delegation of the authority of a public agency. Second, they feel it 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, if only, the limits of the arbitrator's authority is essential if 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 - A l l s a i d and done about a r b i t r a t i o n i n the e s s e n t i a l s e r v i c e s , a wise c o n c l u s i o n i s tha t i t 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 f e a s i b l e . I t would be a great mistake to adopt t h i s procedure as the usual method p r e s c r i b e d i n advance f o r a l l d i spu tes i n the e x p e c t a t i o n tha t i t would s i g n a l an end to labour s t r i f e i n the e s s e n t i a l s e r v i c e s . 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 t h i s 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 . I t must be sought to improve the b a r g a i n i n g process and the s k i l l of the n e g o t i a t o r s t o prevent s t r i k e s . For i n the end, the s o l u t i o n to the wide range of labour problems i n e s s e n t i a l s e r v i c e s i n v o l v i n g the many aspects of a dynamic and compl icated human r e l a t i o n s h i p must depend on the 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 the people who man i t . I t cannot f u n c t i o n a u t o m a t i c a l l y . With s k i l l f u l and r e s p o n s i b l e n e g o t i a t i o n s , no machinery , no o u t s i d e r s , and no f i x e d r u l e s are needed t o s e t t l e d i s p u t e s . Authors and academics have focused 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 the p a r t i c i p a n t s and the p r o c e s s . I t i s t ime t o change t h a t , to seek t o prevent s t r i k e s by encouraging t r u e c o l l e c t i v e b a r g a i n i n g to the f u l l e s t extent p o s s i b l e . For the 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 s a f e t y , the re should be l e g i s l a t i o n a u t h o r i z i n g the p rov ince t o seek an i n j u n c t i o n f o r a s p e c i f i e d pe r iod through procedures f o r d i s p u t e s under the Labour Code. Dur ing 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 cou ld cont inue t h e i r search f o r the b a s i s of accommodation t o end the d i s p u t e . I f these procedures prove u n a v a i l i n g , then the l e g i s l a t u r e cou ld c o n s i d e r means, but not the s p e c i f i c te rms, of s e t t l e m e n t , i n c l u d i n g the p o s s i b i l i t y of s u b m i t t i n g the remaining i ssues t o - 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. In a p a r t i c u l a r s i t u a t i o n , w i t h i s s u e s sharp ly 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 a r b i t r a t i o n imposed as a l a s t r e s o r t by the l e g i s l a t u r e can e f f e c t i v e l y p r o t e c t the p u b l i c wi thout l e a v i n g them f e e l i n g t h a t the c o l l e c t i v e b a r g a i n i n g process i s a hoax. The primary r e l i a n c e would then be p l a c e d , as i t must i f s t r i k e s are t o be p revented , on j o i n t de te rminat ion 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 . In an environment conducive t o rea l b a r g a i n i n g , s t r i k e s w i l l be fewer and s h o r t e r than i n a system where employees are i n e f f e c t i n v i t e d to defy the law i n order to make rea l the promise of j o i n t d e t e r m i n a t i o n . In a rea l b a r g a i n i n g environment, the employee r e p r e s e n t a t i v e s can more e f f e c t i v e l y meet t h e i r dual r e s p o n s i b i l i t y t o n e g o t i a t e and to l e a d . Only i f leaders do both can there be c o n s t r u c t i v e labour r e l a t i o n s h i p s i n p lace of d i s o r d e r r e s u l t i n g when agreements reached i n n e g o t i a t i o n s 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 subter fuge forms of s t r i k e such as working t o the r u l e . These suggest ions 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 . I t i s suggested tha t 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 , p e n a l t i e s , and e l a b o r a t e t h i r d - party recommendations has not worked p r o p e r l y , and tha t before t u r n i n g i n desperat ion to t h i r d party d e t e r m i n a t i o n , which cannot serve s t e a d i l y , c o l l e c t i v e b a r g a i n i n g should be given a chance. The most e f f e c t i v e techn ique to produce acceptab le terms to r e s o l v e d i s p u t e s i s vo luntary agreement of the p a r t i e s , and the best system that there i s f o r producing 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 - even - 136 - though it involves conflict and the possibility of a work disrupti There is no alternative. - 137 - C. F i n a l O f f e r A r b i t r a t i o n Thus f a r the paper has examined convent iona l a r b i t r a t i o n , i . e . , a system i n which the a r b i t r a t i o n award may be anywhere between (o r , 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 ) the p o s i t i o n s submitted t o the 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 . Th is i s i n c o n t r a s t t o f i n a l o f f e r a r b i t r a t i o n (with which the t h e s i s w i l l now dea l ) i n which the a r b i t r a t o r must s e l e c t e i t h e r the u n i o n ' s or management's proposal - the t h i r d party i s not g iven the oppor tunt i y 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 to l i m i t the 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 exer t on c o l l e c t i v e b a r g a i n i n g system. The premise advanced i s t h a t , by compe l l i ng 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 reasonab le , the l i k e l i h o o d of vo luntary se t t lement i s i n c r e a s e d . Because the a r b i t r a t o r ' s award may n e i t h e r omit nor change anyth ing i n the f i n a l o f f e r , the prospect of being h i t c h e d up w i th the other p a r t y ' s o f f e r tends to c o n s i d e r a b l y enhance the reasonableness of the proposa ls made by both s ides and thus enhance the chances of a reasonable s e t t l e m e n t . There are two types 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 i s s u e - b y - i s s u e . 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 the a r b i t r a t o r must choose e i t h e r the u n i o n ' s or the employer 's c o n t r a c t proposal i n i t s e n t i r e t y . When the techn ique 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 quasi -compromise i s reached, w i th 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 proposal f o r each i s s u e . Th is reduces the r i s k element c e n t r a l to f i n a l o f f e r a r b i t r a t i o n s and ignores t r a d e - o f f c o n s i d e r a t i o n s which go i n t o the f o r m u l a t i o n of a p a r t y ' s o v e r a l l - 138 - p l a t f o r m . On the other hand, under t o t a l package a r b i t r a t i o n what i s o therwise the " b e t t e r " proposal 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 to be unreasonable . Worse y e t , i s the prospect of a " s l e e p e r " c l a u s e being a c c e p t e d . That i s , e i t h e r par ty 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 accepted by the 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 long r u n , to the c o l l e c t i v e b a r g a i n i n g r e l a t i o n s h i p . 1 5 8 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 to b a r g a i n i n g and are ab le to judge the reasonableness of t h e i r own p o s i t i o n i n r e l a t i o n t o the standards l i k e l y to be a p p l i e d by the a r b i t r a t o r . A l though 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 i t d e l i v e r s , 1 5 9 i t has been shown to overcome the n a r c o t i c and c h i l l i n g e f f e c t s . Downie exp lo red 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 order to specua l te on the probable impact of var ious types of a r b i t r a t i o n . I t 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 igher under convent iona l 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 Secondly the data suggested tha t p a r t i e s come much c l o s e r to n e g o t i a t i n g a set t lement 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 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 or convent iona l a r b i t r a t i o n , 1 6 1 and t h a t the former techn ique d e f i n i t e l y prov ides i n c e n t i v e s to b a r g a i n . Downie cons idered 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 lowed 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 the evidence a v a i l a b l e , would probably lead to a l l but 5 t o 10 percent of a l l d i spu tes i n a s e c t o r being resov led 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 convent iona l a r b i t r a t i o n would probably lead to a l l but 10 t o 25 percent being reso lved shor t of - 139 - an a r b i t r a t i o n award. These ra tes are comparable to the frequency of s t r i k e u s a g e . 1 6 3 However he observed: . . . 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 wi th respect to the c h i l l i n g e f f e c t may be o f f s e t by the no t ion tha 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 convent iona l a r b i t r a t i o n because of the oppor tun i t y on the part of the t h i r d par ty i n the 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 techn ique was used i n I n t e r n a t i o n a l Typographical Union and Vancouver I s l a n d P u b l i s h i n g Company.165 I t was a f i r s t c o n t r a c t a r b i t r a t i o n , the a r b i t r a t o r hav ing been appointed by the Labour R e l a t i o n s Board a f t e r a long and b i t t e r c o n f l i c t between the company and the n e w l y - c e r t i f i e d u n i o n . F i n a l o f f e r a r b i t r a t i o n was chosen by the p a r t i e s to be the means of s e t t l e m e n t . As w i th o rd ina ry i n t e r e s t a r b i t r a t i o n , the a r b i t r a t o r was r e q u i r e d t o formulate some bas is or s tandard f o r h i s d e c i s i o n : While the 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 the 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 to d i f f e r w i d e l y , i . e . , more reasonable of the two proposals 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 process 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 near l y l i k e c i rcumstances e lsewhere . In order to determine what i s more reasonab le , one must have a po in t of re fe rence which s u r e l y i s what o ther 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 imply 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 the p a r t i e s agree tha t there 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 to each other that reason can be s u b s t i t u t e d f o r f o r c e , the obvious s t r e s s and waste caused by s t r i k e or lockout can be avo ided . The more reasonable 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 the more s e n s i b l e o f f e r i n the c i r c u m s t a n c e s . I conc lude the c i rcumstances to be examined are i n the main those d e s c r i b e d a l r e a d y , being the p a t t e r n of development of c o l l e c t i v e - 140 - agreements in o ther comparable p laces of work. However, because the p a r t i e s cou ld 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 , courses of a c t i o n not open to the 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. 13-14) In t h i s case , the 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 i n d e c i d i n g which of the two proposa ls were more reasonab le . A f t e r exhaust i ve a n a l y s i s of the two c o n t r a c t s (pp. 1 5 - 2 6 ) , i t was h i s op in ion tha t . . . t o award the Company's proposal would s e r i o u s l y undermine the s e c u r i t y of the c r a f t u n i t and would probably cause the c o l l a p s e of the 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 the union s proposals would be to saddle the 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 contravene the Labour Code. (p. 3 0 ) . In the end, the u n i o n ' s c o n t r a c t proposal was s e l e c t e d as being the more reasonable of the two. The a r b i t r a t o r found a passage from Cashman, "Current 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 to be p r o p h e t i c : The s imple " f i n a l o f f e r " technique i s q u i t e u n r e a l i s t i c . In p r a c t i c e i t might we l l make f o r a t o t a l l y unacceptable a r b i t r a t i o n award and never r e a l l y serve to narrow the i ssues at the b a r g a i n i n g t a b l e . In rea l l i f e proposals made by unions at the outset 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 na tu re . That i s , such proposa ls are intended to s a t i s f y the union membership even though the judgment of the union o f f i c e r s i s t h a t such proposals 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 set 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 mod i f ied i n the course of b a r g a i n i n g but the 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 proceeds. Normally management makes a package proposal which may c o n t a i n no re fe rence to 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 to 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 the management proposals wi thout 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 the " 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 the t a b l e i t s " f i n a l o f f e r " . There w i l l be a number of proposals which - 141 - union o f f i c i a l s cou ld n o t , as a p r a c t i c a l mat te 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 adopt ing the management o f f e r i n such a context would be extremely d o u b t f u l , (p . 2 8 ) . I t was the a r b i t r a t o r ' s o p i n i o n t h a t the 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 Rai lway and Un i ted T r a n s p o r t a t i o n U n i o n 1 6 7 the p a r t i e s had at t h e i r op t ion the a l t e r n a t i v e of f i n a l o f f e r a r b i t r a t i o n . In t h i s r e g a r d , the a r b i t r a t o r s t a t e d : 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 process 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 the t h i r d par ty s e l e c t s the o f f e r that most c l o s e l y approximates what he cons ide rs 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 law 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 the c o l l e c t i v e agreement o ther than money, i s t h a t the p a r t i e s are s t i l l welded to 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 wi th 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 to the doctor and wi thout drawing upon the d o c t o r ' s knowledge and e x p e r t i s e demands t h a t the remedy f o r the 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) Qui te a few c r i t i c s are uncomfortable wi th f i n a l - o f f e r a r b i t r a t i o n . Proponents of t h i s method of impasse r e s o l u t i o n admit t h i s w i l l o f ten be the c a s e , but po in t t o the a n t i c i p a t e d v i r t u e s of f i n a l o f f e r 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 convent iona l a r b i t r a t i o n i s tha t i t may have a negat ive 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 party s o l u t i o n s t o t h e i r d i s p u t e s (the " n a r c o t i c " e f f e c t ) or they may avoid the t r a d e - o f f s of good f a i t h b a r g a i n i n g and c l i n g to u n r e a l i s t i c p o s i t i o n s i n the hope of g e t t i n g more from the a r b i t r a t i o n than from a negot ia ted se t t lement (the " c h i l l i n g " e f f e c t ) . F i n a l o f f e r a r b i t r a t i o n attempts t o overcome these problems by adding a g reate r element of u n p r e d i c t a b i l i t y and r i s k - 142 - to the a r b i t r a t i o n p r o c e s s . Each party runs the r i s k of i t s whole proposal being thrown out because of the unreasonableness or 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 . The p a r t i e s are thus induced t o develop even more reasonable p o s i t i o n s i n the hope of winn ing the award, and these mutual attempts to win neut ra l approval should r e s u l t i n the p a r t i e s being so c l o s e toge ther they w i l l c rea te t h e i r own s e t t l e m e n t s . 1 6 9 S tud ies have shown t h a t under f i n a l o f f e r procedures p a r t i e s do reduce the number of d i sputed i ssues and move c l o s e r together to a g reate r extent than under convent iona l a r b i t r a t i o n . I 7 0 - 143 - D. I n d u s t r i a l Inqui ry Commission Under the Labour Code, an ad hoc dev ice f o r heading o f f p u b l i c i n t e r e s t d i sputes has been the use of an i n d u s t r i a l i n q u i r y commisison. Th is i s an e x t r a o r d i n a r y remedy, and i t i s only a v a i l a b l e at the d i s c r e t i o n of the M i n i s t e r . S e c t i o n 122 of the Labour Code s t a t e s : 1 . 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 mot ion , make or cause t o be made the i n q u i r i e s he cons iders a d v i s a b l e r e s p e c t i n g i n d u s t r i a l matters and sub jec t to t h i s Act and r e g u l a t i o n s , may do the t h i n g s he cons ide rs necessary to main ta in or secure i n d u s t r i a l peace and promote c o n d i t i o n s favourab le t o se t t lement of d i s p u t e s . 2 . For any of the purposes of subsec t ion ( 1 ) , or where i n an i n d u s t r y 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 to a r i s e , the m i n i s t e r may r e f e r the matter to an i n d u s t r i a l i n q u i r y commission f o r i n v e s t i g a t i o n and r e p o r t . 3 . The m i n i s t e r s h a l l f u r n i s h the i n d u t r i a l i n q u i r y commission w i th a statement of the matters to be i n q u i r e d i n t o , and where an i n q u i r y i n v o l v e s p a r t i c u l a r persons or p a r t i e s , s h a l l adv ise them of the appointment. 4 . An i n d u s t r i a l i n q u i r y commission s h a l l i n q u i r e i n t o the matters r e f e r r e d t o i t by the m i n i s t e r and endeavour to c a r r y out i t s terms of r e f e r e n c e ; and i f a se t t lement i s not e f f e c t e d i n the meantime, s h a l l repor t the 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 the 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 ime 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 report of an i n d u s t r i a l i n q u i r y 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 p u b l i s h i t i n the manner he cons iders a d v i s a b l e . 6 . An i n d u s t r i a l i n q u i r y commission s h a l l c o n s i s t of one or more members appointed by the m i n i s t e r . 7 . An i n d u s t r i a l i n q u i r y commission s h a l l , d u r i n g i t s p e r i o d fo appointment, have the power and a u t h o r i t y of a commissioner under s e c t i o n s 12 , 15 and 16 of the Inqu i r y A c t . 8 . Where e i t h e r before or a f t e r the report the p a r t i e s agree i n w r i t i n g to accept the repor t i n respect of the matters r e f e r r e d t o the i n d u s t r i a l i n q u i r y commission the p a r t i e s are bound by the report i n respect of those m a t t e r s . P r i o r to the pass ing of the Labour Code of B r i t i s h Co lumbia , i n 1972 the l e g i s l a t i v e machinery f o r t h i s k ind of i n t e r v e n t i o n e x i s t e d , but i t was never used . S i n c e the making of the Labour Code the i n d u s t r i a l i n q u i r y commisison has been employed on var ious o c c a s i o n s . Desp i te the h i s t o r y of M e d i a t i o n Commisison A c t , and the a t tack on compulsory a r b i t r a t i o n by the u n i o n s , a s u r p r i s i n g development has been the s u b s t a n t i a l number of t imes that labour and management have both agreed to be bound by the d e c i s i o n s of an i n d u s t r i a l i n q u i r y commission. In major d i spu tes i n 1973 and 1974 both p a r t i e s agreed i n advance to 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 i n q u i r y commission.171 Voluntary b i n d i n g a r b i t r a t i o n was the r e s u l t . T h i r d - p a r t y i n t e r v e n t i o n must be f l e x i b l e i f i t i s t o be e f f e c t i v e . For t h i s reason a new techn ique c a l l e d 'med-arb ' has been used by i n d u s t r i a l i n q u i r y commissioners i n B r i t i s h Co lumbia . Th is process b a s i c a l l y i n v o l v e s the commisson's mediat ing the d i s p u t e and - 145 - encouraging the p a r t i e s to a r r i v e at t h e i r own set t lement under p ressure of knowing tha t i f they do n o t , then the 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 , e x p l a i n e d : ' In the past y e a r , as an I n d u s t r i a l Inqu i ry Commissioner , I have experimented wi th t h i s technique and have found t h a t my exper ience ranged, a l l the way from a p o s i t i o n where I was l e f t w i th no a l t e r n a t i v e but to w r i t e a b i n d i n g award to a p o s i t i o n of j u s t keeping the pendulum i n motion w h i l e the 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 , mediator , a r b i t r a t o r t h i s i s the system of d i s p u t e r e s o l u t i o n tha t I advocate . Vo luntary ' m e d - a r b . ' I 7 2 The 'med-arb ' techn ique i s an in formal a d m i n s i t r a t i v e p r o c e s s , sharp ly d i f f e r e n t from the l e g a l i s t i c procedures which were f o l l o w e d by the M e d i a t i o n Commisison. The ad hoc approach under the Labour Code has gained the conf idence of labour and management where permanent machinery under the Med ia t ion Commisison d i d not . One reason i s tha t the chairman cou ld 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 exper ience i n the area of the d i s p u t e . The ad hoc cho ice of commissioner does not a l l o w s t u l t i f y i n g precedents to be made. The a i r of u n c e r t a i n t y tha t r e s u l t s , g ives everyone the f e e l i n g s tha t they have a chance. Th is exper ience underscores the c r i t i c i s m d i r e c t e d aga ins t a permanent mechanism or t r i b u n a l - l i k e the Med ia t ion Commission - as a guardian of the p u b l i c i n t e r e s t s . The method of improving 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 s t r u c t u r e f o r ' m e d - a r b ' . Mr . Ed Peck used the 'med-arb ' technique to reach a vo luntary set t lement i n the 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 requiring adjudication. 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, if 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 it 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; it 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. 1972, (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 it 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 it 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 - 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. S.B.C. 1976, c. 21. (See Appendix C, infra). Labour Code of British Columbia (Amendment) Act, 1976, (B.C.), c. 26. S.B.C. 1976, c. 48. (See Appendix D, infra). The Act has not been repealed, although it is regarded as "obsolete" and has not been included in the latest consolidation: Revised Statutes of British Columbia, 1979. B.C. Legislative Assembly Debates, First Session, 31st Parliament, June 14, 1976, p. 2579. Ibid. 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. See In the Matter of an Arbitration between the British Columbia  Railway Company and the United Transportation Union, Locals 1778"  ana Wd6, September zi, 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; 31. 32. 33. 34. 35. 36. 37. 38. - 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. See Legislative Series (Geneva ILO), 1947 '- U.S.A. 2. 56. Id., Basic agreements and joint statements... . 57. Section 10. See Legislative Series (Geneva ILO), 1926- U.S.A.- 1. 58. Supra, note 47 at 170. 59. Supra, note 46 at 257. - 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 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 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 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. 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, it 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 if 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; it 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, it 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. January 31, 1977 (Bird) A-45/77. 166. 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); A- 221/78. 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 - A P P E N D I X 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 the firefighters* 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. 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. Constitution o l Council . - 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. Interpre- tation. 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 a firefighters' 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 u continuing to occur, the minister may recommend that the Lieutenarjt- Govemor 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 in respect of the same dispute. - 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» 1. (1) Commencing 48 hours after the coming into force of this Act, tries and . services Act, resumed. (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 lockout first occurred, (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 con- travention 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. W e m . 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 - Applica-tion of Labour Cod: increase in wages in respect of the retroactive period determined under paragraph (a) at a rate fixed in the order. 7. Unless inconsistent with this Act, the labour Code of British Columbia applies, with the necessary changes and so far as it is applicable. Regulation*. C o m m i n c f m i n t 8. The Lieutenant-Governor in Council may make regulations. 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 and recommendations, 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. 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. Review and variation at collective agreement. 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. HotpiUl •ervtcet continued. 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 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. Limi t on n 4 . 5. Section 4 ceases to apply upon the expiration of the collective agreement constituted under section 2. Special fund. 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. Other Act . 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*. 8. The Lieutenant-Governor in Council may make regulations. A p p r o p r u u o n . 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. MxOmtu, 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 Cor- poration, 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. 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 be filled by the appointment, by the Lieutenant-Governor in Council, of a person to hold office for the remainder of the term of that member. PART I - 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. 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. Powers of Special Commission, 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 represen- tations. 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 implemen- tation 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 Interpre- tation. 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 Lieutenant- Governor in Council. Railway torvicea to be resumed. 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 &- 0) The term of every collective agreement to which this Part applies t ^ c n M n t a ? 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 Arbitrat ion. 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. 10. The employer and the trade-unions affected shall, upon the appoint- ment 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. Duty of Board of Arbitrat ion. 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 be final and 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 - Applicat ion 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. P A R T III Interpre- tation. 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. Coolinf-off period. 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 medi- ators 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. - 183 - I PART rv Other Act*. 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. 20. The Lieutenant-Governor in Council may make regulations. Appropri - ation. 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. Commence- ment. 22. (1) This Act, except Part II, comes into force on a day to be fixed by Proclamation. (2) Part II comes into force on June 15, 1976. Printed by K. M . MA C DO N A L O , Printer to the Queen's Most E icel lcnt Majesty in right of the Province of Brit ish Co lumbia . 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 the fire-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 Lieutenant- Governor 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 1 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. Duties of acency. 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. Fect- f l n d i n c 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 6. (1) Where a fire-fighters' union, policemen's union, or health care Sy uoitrm- union and an employer or a representative authorized by the employer have U o n - 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. Arbitrat ion. 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 arbi- tration 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 oper- ations 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 em- ployees of that employer immediately prior to the pre- scribed 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 employ- ment of the employer, and (vii) the employer and the trade-union shall continue or com- mence 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 Lieutenant- Governor 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. 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. Election to arbitrate. 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. Special mediator. 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. Report. 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 Fi l in 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, file in 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 Co lumbia . 1977 APPENDIX F S.B.C. 1978, c. 42 West Kootenay Schools Collective Bargaining Assistance Act [Assented to December 9 , 1 9 7 8 . ) HER MAJESTY, by and with the advice and consent of the Legislative Assem- bly of the Province of B r i t i s h Columbia, enacts as follows: Interpretation r 1. In this 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 is en t i t l e d to bargain with the employer; "employer" means Selkirk College and the boards of school trustees of school d i s t r i c t s number 7, 9, 11 and 12; "minister" means the Minister of Labour; •parties" means the unions and the employers and includes, where applicable, the B r i t i s h Columbia School Trustees Association as accredited bar- gaining agent for the employers; "union" means a trade union that, on the coming into force of this Act, is c e r t i f i e d under the Labour Code of B r i t i s h Columbia for the employ- ees. Resumption of services 2. (1) Within 48 hours after this Act receives Royal Assent (a) each employer sha l l resume f u l l operations and shall resume the employment of every employee required for i t s f u l l operations, and (b) each employee shall resume the ordinary duties of his employ- ment with his employer. (2) On the coming into force of this Act (a) every person who is 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 is author- ized to bargain that a notice, declaration, authorization or direction to go on s t r i k e , declared, authorized or given to them before this Act comes into force is can- celled , and ( i i ) inform the employees of their obligations under this Act, .. (b) every person who is authorized on behalf of an employer to bar- gain 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 notice, declaration, authorization or direction to lock out employees is can- ce l l e d , and - 194 - ( i i ) inform the employer of i t s obligations under the Act, (c) every col l e c t i v e agreement between an employer and i t s employ- ees, or their union, that (i) l a s t expired before this Act conies into force, and ( i i ) has not been renewed is extended and sha l l be deemed to be in effect for 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 revised c o l l e c t i v e agreement between, the employer and i t s employees, or their union, comes into force, and (d) no employer or person acting on behalf of the employer shall (i) refuse to permit, or authorise or direct another person to refuse to permit, an employee, who is on strike or locked out on the coming into force of this Act, to resume the duties of his ordinary employment, or ( i i ) suspend, discharge or in any manner d i s c i p l i n e , or author- ize or direct another person to suspend, discharge or in another manner di s c i p l i n e an employee described in subpar- agraph (i) because the employee was on strike or locked out before this Act comes into force. (3) Nothing in this section affects the right of an employer to sus- pend, discharge or d i s c i p l i n e an employee for just and reasonable cause. (4) Where an employee complies with this Act, his union sha l l not d i s - c i p l i n e him for his compliance. Special mediator 3. (1) On the coming into force of the Act, (a) the parties sh 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 revise their c o l l e c t i v e agreements, and (b) the minister sh a l l forthwith appoint a special mediator for a term of 30 days to confer with the parties to assist them in 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 this section is unable to enter on or complete his duties the minister may appoint another person to act in his place. (3) The special mediator may determine his own procedure and the par- ties s h a l l comply with that procedure, and where the special mediator re- quests information from a party i t shall provide the special mediator with f u l l and complete information. (4) The special mediator s h a l l , no later than a date specified in his appointment, make a report to the minister setting out the progress of the mediation including the matters on which agreement has or has not been reached. (5) The" minister may, on the request of a special mediator, extend the term of his appointment. (6) A special mediator shall be paid remuneration and expenses deter- mined by the minister. - 195 - Board of arbitration 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 com- plete 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 submis- sions.. (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 r 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 par-ties 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 is 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 pre-pared 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 min- ister, 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 interpre-tation 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. r (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. 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 Rela- tions Board under the Labour Code of British Columbia. - 197 - (2) The Labour Relations Board may, on i t s own motion, and s h a l l , on receipt of proof that i t s order has been disobeyed, forthwith f i l e the order in the Supreme Court and the order shall be f i l e d as if i t were an order of the court and, on being f i l e d , the order shall be deemed for a l l purposes, except for the purpose of an appeal from i t , to be an order of the Supreme Court effective 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 Relations Board may, at any time by further order, amend, substi- tute, replace or withdraw a l l or part of an .order, and shall forthwith f i l e a copy of the subsequent order in accordance with subsection (1). (4) A person who contravenes section 2 or 3 (1) commits an offence and is l i a b l e to the penalties provided in section 138 of the Labour Code of B r i t i s h Columbia. S.B.C. 1977, c. 83 11. The Essential Services Disputes Act is amended (a) in section 8 by adding "or" at the end of paragraph (b) and adding the following paragraph: (b.l) a substantial disruption in the delivery of educational services", '(b) by adding the following 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 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 in section 8 (c) l i n e 5 thereof atter the word "c i t i z e n s " the words "or a substantial disruption in the delivery of educational services in the Province,". Commencement 12. Section 11 comes into force on a day to be fixed by proclamation. Printed by K.M. MacDonald, Printer to the Queen's Most Excellent Majesty in right 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 m r . 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 International Labour Review, Vol. in Essential 119, 1980. Services",

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