Reasons for decision
Marine Atlantic Inc.,
employer,
and
Public Service Alliance of Canada,
bargaining agent.
CITED AS: Marine Atlantic Inc.
Board File: 26252-C
Decision no. 386
July 4, 2007
Response to a referral from the Minister of Labour, pursuant to section 87.4(5) of the Canada Labour Code, Part I.
Ministerial referral—Maintenance of services—Joint maintenance of activities agreement—Practice and procedure—The Minister is asking the Board to determine what action, if any, is required in order for the employer, the union and the bargaining unit employees to comply with section 87.4(1) of the Code, in the event of a work stoppage—The dispute concerns the employer’s operation of a ferry service between Nova Scotia and Newfoundland and Labrador— Section 87.4(1) establishes the overriding principle, whereby employers, trade unions and bargaining unit employees must ensure that a strike or lockout does not cause an immediate and serious danger to the safety or health of the public—Since there is no evidence either party gave the notice required under section 87.4(2), section 87.4(6) governs this process and obliges the Board to provide the parties with an opportunity to agree—The parties filed a joint maintenance of activities agreement with the Board—An agreement between the parties at this stage does not, upon its mere filing, become an order of the Board the way it does under section 87.4(3)—Section 87.4(6) does not reproduce the language found in section 87.4(3) that an agreement filed with the Board “has the same effect as an order of the Board”—The Board reviewed the agreement and informed the Minister that the agreement between the parties ensures that the ferry service between Newfoundland and Labrador and Nova Scotia will continue to operate as it currently operates without interruption, as well as have a number of employees who will remain on the job, in order to ensure the uninterrupted ferry service.
This matter was heard by a panel of the Board composed of Mr. Graham J. Clarke, Vice-Chairperson, sitting alone pursuant to section 14(3)(f) of the Canada Labour Code (Part I–Industrial Relations) (the Code).
Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed the Minister’s referral (see Appendix A), the employer’s and bargaining agent’s submissions and the investigating officer’s report, the Board is satisfied that the documentation before it is sufficient for it to decide the matter without an oral hearing.
Parties’ Representatives of Record
Mr. John F. Roil, Q.C., for Marine Atlantic Inc.;
Ms. Lisa Rossignol, for the Public Service Alliance of Canada.
I–Introduction
[1] These reasons for decision respond to a referral from the Minister of Labour, pursuant to section 87.4(5) of the Code. The Minister is asking the Board to rule on the application of section 87.4(1) (maintenance of activities) to a dispute between Marine Atlantic Inc., (Marine Atlantic) and the Public Service Alliance of Canada (PSAC). That dispute concerns Marine Atlantic’s operation of a ferry service between Nova Scotia and Newfoundland and Labrador. The bargaining unit in question covers supervisory positions. The Board has previously described the ferry service in Marine Atlantic Inc., [2004] CIRB no. 275.
II–Facts
[2] Marine Atlantic and the PSAC have been in a legal strike/lockout position since April 20, 2007. On December 12, 2006, the PSAC sent a notice of dispute to the Minister of Labour, in accordance with section 71(1) of the Code. A notice of dispute starts the conciliation process. It is an essential step in the process leading up to the right to strike or lockout.
[3] On April 20, 2007, the Minister of Labour referred this matter to the Board. For ease of reference, the full text of the Minister’s reference is attached to these reasons for decision. The Minister is asking the Board to determine what action, if any, is required in order for the employer, the trade union and the bargaining unit employees to comply with section 87.4(1) of the Code, in the event of a work stoppage. That section ensures that a work stoppage does not cause an immediate and serious danger to the safety or health of the public.
[4] On April 23, 2007, the Board provided Marine Atlantic and the PSAC with a copy of the Minister’s referral and asked them for their responses. While their positions initially differed, they later filed a joint maintenance of activities agreement (the Agreement) with the Board.
[5] In the May 8, 2007 Agreement, Marine Atlantic and the PSAC agreed that the continued full operation of the ferry service was essential to prevent an immediate and serious danger to the safety and health of the public.
[6] The PSAC also agreed with Marine Atlantic’s original proposal, dated May 1, 2007, regarding the number of employees who would remain at work to keep the ferry service running. Thirteen of the thirty-six bargaining unit employees would not be required to work under the Agreement. The parties further agreed that neither would engage in a lockout or a strike until the PSAC had had an opportunity to file an application with this Board pursuant to section 87.4(8). That section allows an employer or a trade union to request that the Board impose a binding method of resolving the collective bargaining issues in dispute.
[7] These reasons deal with how the Board treats a maintenance of activities agreement negotiated following a section 87.4(5) referral from the Minister.
III–Section 87.4 of the Code
[8] Section 87.4 reads as follows:
87.4(1) During a strike or lockout not prohibited by this Part, the employer, the trade union and the employees in the bargaining unit must continue the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public.
(2) An employer or a trade union may, no later than fifteen days after notice to bargain collectively has been given, give notice to the other party specifying the supply of services, operation of facilities or production of goods that, in its opinion, must be continued in the event of a strike or a lockout in order to comply with subsection (1) and the approximate number of employees in the bargaining unit that, in its opinion, would be required for that purpose.
(3) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer enter into an agreement with respect to compliance with subsection (1), either party may file a copy of the agreement with the Board. When the agreement is filed, it has the same effect as an order of the Board.
(4) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer do not enter into an agreement, the Board shall, on application made by either party no later than fifteen days after notice of dispute has been given, determine any question with respect to the application of subsection (1).
(5) At any time after notice of dispute has been given, the Minister may refer to the Board any question with respect to the application of subsection (1) or any question with respect to whether an agreement entered into by the parties is sufficient to ensure that subsection (1) is complied with.
(6) Where the Board, on application pursuant to subsection (4) or referral pursuant to subsection (5), is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public, the Board, after providing the parties an opportunity to agree, may, by order,
(a) designate the supply of those services, the operation of those facilities and the production of those goods that it considers necessary to continue in order to prevent an immediate and serious danger to the safety or health of the public;
(b) specify the manner and extent to which the employer, the trade union and the employees in the bargaining unit must continue that supply, operation and production; and
(c) impose any measure that it considers appropriate for carrying out the requirements of this section.
(7) On application by the employer or the trade union, or on referral by the Minister, during a strike or lockout not prohibited by this Part, the Board may, where in the Board’s opinion the circumstances warrant, review and confirm, amend or cancel an agreement entered into, or a determination or order made, under this section and make any orders that it considers appropriate in the circumstances.
(8) Where the Board is satisfied that the level of activity to be continued in compliance with subsection (1) renders ineffective the exercise of the right to strike or lockout, the Board may, on application by the employer or the trade union, direct a binding method of resolving the issues in dispute between the parties for the purpose of ensuring settlement of a dispute.
[9] Section 87.4, added to the Code in 1999, is commonly known as an “essential services” provision. Federally, it is known as a “maintenance of activities” provision. The time limits and conditions set out in section 87.4 often create inter-related stages in the pre-lockout or pre-strike period. The Board’s role differs depending on the particular stage of the process.
[10] Section 87.4(1) establishes the overriding principle, whereby employers, trade unions and bargaining unit employees must ensure that a strike or lockout does not cause an immediate and serious danger to the safety or health of the public. The stages section 87.4 creates all focus on ensuring compliance with this principle.
A–Stage 1: An employer’s and a trade union’s right to negotiate a binding maintenance of activities agreement (MOAA)
[11] Subject to certain strict time limits, sections 87.4(2) and (3) of the Code give the employer and the trade union an initial opportunity to negotiate their own MOAA without outside interference. This entitlement, however, must be acted upon quickly.
[12] Section 87.4(2) demands that an employer or a trade union give the other party notice “no later than 15 days after notice to bargain collectively has been given.” This MOAA notice requires the notifying party to set out the supply of services, the operation of facilities or the production of goods needed to comply with section 87.4(1). The MOAA notice must also indicate how many bargaining unit employees will be required to remain on the job. If the parties conclude a MOAA, then either party may file a copy of the agreement with the Board. When the MOAA is filed, it has the same effect as an order of the Board (section 87.4(3)).
[13] Unless the Minister of Labour asks the Board, pursuant to section 87.4(5) of the Code, to review a freely negotiated MOAA, the Board does not intervene. Upon application, the Board can review the effectiveness of a MOAA once a strike or lockout has commenced (section 87.4(7) of the Code).
[14] In the instant case, there is no evidence either party gave the notice required under section 87.4(2). This stage has now passed.
B–Stage 2: The parties can ask the Board to determine the required maintenance of activities
[15] If the parties have respected the section 87.4(2) 15-day notice requirement, but have not concluded an agreement, then they can apply to the Board to determine what must be done to comply with section 87.4(1). However, a new key time limit applies to this stage. A party must make an application to the Board no later than 15 days after the notice of dispute has been given under section 71(1).
[16] If the parties do not comply with section 87.4(4)’s 15-day time limit for filing an application, then the parties’ access to the Board under that section ends. The Board expresses no opinion in these reasons whether or not section 16(m.1) could be used to extend the time limit for filing an application.
[17] In the instant case, because it appears that no MOAA notice was ever given under section 87.4(2), this stage is also not applicable. Had the appropriate time limits been met, the Board would hear the application in conformity with section 87.4(6).
C–Stage 3: The Minister may refer any question to the Board
[18] Even if the parties did not apply to the Board within the time limits applicable under section 87.4(4), the Minister of Labour can, pursuant to section 87.4(5), ask the Board to intervene. The Minister can refer any question to the Board regarding section 87.4(1), at any time after receiving a section 71(1) notice of dispute. In addition, the Minister can ask the Board to review any MOAA freely negotiated between the parties under section 87.4(3), in order to ensure its compliance with section 87.4(1).
[19] The instant case involves a ministerial referral.
D – Stage 4: Board inquiry into compliance with section 87.4(1)
[20] At this stage, whether the parties submitted the issue to the Board within the applicable time limits set out in section 87.4(4), or the Minister referred the matter pursuant to section 87.4(5), the Board considers the actions required to ensure compliance with section 87.4(1). Section 87.4(6) governs this process and obliges the Board to provide the parties with an opportunity to agree.
[21] However, an agreement between the parties at this stage does not, upon its mere filing, become an order of the Board the way it does earlier in the process at stage 1. Section 87.4(6) does not reproduce the language found in section 87.4(3) that an agreement filed with the Board “has the same effect as an order of the Board”. This distinction is important. At this later stage, the Board must take into account the public interest. Despite an agreement between the parties, if the Board is of the opinion that a strike or lockout could cause an immediate and serious danger to the safety or health of the public, the Board can issue orders to the parties to ensure compliance with section 87.4(1).
[22] Regardless of the route followed to obtain a decision from the Board under section 87.4(6), an employer or a trade union may apply to the Board under section 87.4(8) if compliance renders ineffective the exercise of the right to strike or lockout. The Board may then direct a binding method of resolving the issues in dispute.
IV–Section 87.4(7): Board role during a strike/lockout
[23] The stages described above take place before a strike or lockout has occurred. During a strike or lockout, the Board can, on application by the employer or the trade union or via ministerial referral, and if circumstances in its opinion warrant, review a previous agreement or order made during the section 87.4 process. Similarly, again during a strike or lockout, an employer or a trade union could, pursuant to section 87.4(8), apply for a binding method of resolving the issues in dispute if compliance with section 87.4(1) renders ineffective a strike or lockout.
[24] These are different situations from the one before us in the instant case.
V–Decision
[25] Stages 3 and 4 described above apply to the case before the Board. The Minister has asked the Board to determine what action, if any, is required in order for the parties to comply with section 87.4(1) of the Code.
[26] Given the Minister’s referral, the Board followed the process set out in section 87.4(6).
[27] The Board accordingly provided Marine Atlantic and the PSAC with an opportunity to agree. They have in fact come to an agreement, as described previously.
[28] The Board has reviewed the May 8, 2007 Agreement. It ensures that the ferry service between Newfoundland and Labrador and Nova Scotia will continue to operate as it currently operates without interruption. The parties have also agreed on the number of employees who will remain on the job, in order to ensure the uninterrupted ferry service.
[29] In light of the Agreement between Marine Atlantic and the PSAC, and following the Board’s consideration of section 87.4(1) of the Code, the answer to the Minister’s referral is as follows:
The Board is satisfied that the Agreement between Marine Atlantic and the PSAC, entered into as a result of the Minister referring this matter to the Board, is sufficient to ensure compliance with section 87.4(1) in the event of a work stoppage. The ferry service will continue to operate without interruption. Moreover, the number of employees remaining on the job is sufficient to ensure continued ferry service. No further action is required at this time.
[30] This decision constitutes the Board’s determination of the section 87.4(5) referral for the purpose of section 89(1)(e) of the Code.
APPENDIX A
IN THE MATTER OF THE CANADA LABOUR CODE (PART I–INDUSTRIAL RELATIONS) AND A DISPUTE BETWEEN MARINE ATLANTIC INC., SYDNEY, NOVA SCOTIA (HEREINAFTER CALLED “the employer”) AND THE PUBLIC SERVICE ALLIANCE OF CANADA (HEREINAFTER CALLED “the union”)
WHEREAS subsection 87.4(5) of the Canada Labour Code (Part I–Industrial Relations) provides that the Minister of Labour may refer to the Canada Industrial Relations Board any question with respoect to the application of subsection 87.4(1) at any time after a notice of dispute has been given; and
WHEREAS on December 12, 2006, a notice of dispute was given to the Minister of Labour by the union pursuant to subsection 71(1) of the Canada Labour Code, in relation to a dispute between the above-cited parties.
AND WHEREAS the Minister of Labour is of the opinion that a question exists with respect to the application of subsection 87.4(1) to the above-cited parties;
NOW THEREFORE the Minister of Labour, pursuant to subsection 87.4(5) of the Canada Labour Code, hereby refers to the Canada Industrial Relations Board the question of the application of subsection 87.4(1) to the employer, the trade union and the employees in the bargaining unit and asks that the Canada Industrial Relations Board determine the action, if any, that is required in order for the employer, the union and the employees in the bargaining unit to comply with subsection 87.4(1) in the event of a work stoppage.
IN WITNESS WHEREOF the Minister of Labour has hereto set his hand this 20th day of April 2007.
(s) Minister of Labour