By Professor Bethany Hastie, University of British Columbia
Amidst collective bargaining negotiations in early 2024, transit supervisors in Vancouver engaged in a two-day strike in late January. In the aftermath of that strike, some transit riders, business owners and politicians took to media to demand that transit be designated an “essential service” to prevent workers from striking. That demand was also echoed by several transit employers, who filed an application for such a designation with the BC Labour Relations Board [BCLRB]. Although further strike action was avoided through mediation, which also averted the need for the BCLRB to decide on the essential service designation, the events nonetheless provide an opportunity to revisit the concept of “essential services” in labour law, particularly given the ubiquity of the term in recent years.
Since the onset of the COVID-19 pandemic in 2020, the term “essential services” has become both more commonplace and expansive in its social use and understanding. The term was used, as many will remember, to enable services like grocery stores to remain open during government-ordered lockdowns in 2020. In this way, the idea of “essential services” became defined by what general members of the public needed access to in order to maintain a basic standard of living. This may be one reason why members of the public were calling for the designation of transit services as “essential” during the labour dispute and strike activity in metro Vancouver in early 2024. Yet, in labour disputes, “essential services” remains a relatively constrained concept, both in definition and application.
What is an “essential service”?
Essential services are those which the withdrawal or interruption of – through a full work stoppage strike – would threaten serious harm to members of the general public (Saskatchewan Federation of Labour, 2015 SCC 4 at para 84). Sometimes, a provincial labour statute will include specific provisions that define, and govern, essential services and their designation. For example, in British Columbia, the Labour Relations Code defines essential services as: “those facilities, productions and services that the board considers necessary or essential to prevent immediate and serious danger to the health, safety or welfare of the residents of British Columbia” (s.72(1)). In other cases, a province may pass special legislation to alter the labour rights of a designated “essential service” sector. However, under both approaches, “essential service” designations have generally been limited to jobs or sectors where the suspension or interruption of services would pose a threat of “serious harm” to members of the general public.
The concept of “serious harm” has generally been limited in its interpretation as harm to life, health or personal safety. This is why, for example, police officers, ambulance drivers, firefighters, nurses and other health care workers have been designated as providing “essential services” under labour laws. These workers provide services to the general public which, if withdrawn through a full work stoppage strike, would pose a threat of serious harm to the life, health or personal safety of members of the general public.
In contrast, the suspension of services like public transit may cause real hardship and inconvenience to the general public, but is generally not considered to pose a serious threat to life, health or personal safety. This is why transit workers are not typically designated as providing an essential service. In fact, the Ontario Superior Court of Justice recently came to this conclusion in its 2023 decision ATU Local 113 v HMQRO. In that case, the Ontario government had passed legislation prohibiting Toronto Transit Commission (TTC) employees from striking, and imposing a mandatory interest arbitration scheme to resolve labour disputes. Justice Chalmers found that the legislation infringed section 2(b), which guarantees freedom of association and include a generally recognized “right to strike” (per SFL¸above). Therefore, the onus fell to the government to justify the infringement under section 1.
The government had stated the objective of the statute, and specifically the prohibition on striking, as to prevent “the public health and safety, environment and economic concerns that flow from a transit strike” (at para 117). Flowing from this, the government was required to establish that “the service provided by the TTC is so “critical” or “essential” that preventing the disruption caused by a strike, is a “pressing and substantial” objective that justifies the removal of the right to strike” (at para119). In other words, the critical question in this case became whether the transit services could be considered an “essential service”, which may justify the prohibition on the right to strike. Again, recall that the definition of “essential services” in Canadian constitutional jurisprudence, as stated above, relates to those which the suspension or interruption of would pose a serious threat to public health or safety. Ultimately, in this case, Justice Chalmers found that the TTC was not an “essential service”, because the government had not proven that suspension of its services posed a serious threat to public health or safety (para 153).
Commuters are understandably frustrated by the inconvenience and hardship caused during a transit strike. For many, the suspension of transit services will create difficulty, and potentially added cost, in getting to work or doing errands. For some, a strike may result in missing work altogether. The economic hardship caused to transit riders during a full work stoppage strike by transit employees, however significant, is unlikely to be serious enough to provide a foundation upon which transit services could be designated as “essential” for labour relations purposes, as the nature of the harm is not directed towards public health or safety. This is not to understate the real difficulties and consequences members of the public face. However, in the context of labour relations, it is not enough to remove the constitutional right to strike from workers, as affirmed in the Ontario decision above.
What are the implications of an “essential services” designation?
Designating a group of workers as providing essential services has serious ramifications to the collective bargaining process, because doing so will necessarily restrict, or remove, their ability to engage in strike activities. Typically, if negotiations during collective bargaining reach an impasse, a strike (by employees) or lockout (by the employer) are seen as powerful tools to exert pressure on the other party to resolve the impasse and conclude an agreement. Where services are designated as “essential”, they must be maintained through a labour dispute. This means that workers may be able to partially strike, or that they may be prohibited from any reduction or stoppage of work activities altogether. The extent to which their ability to strike will be restricted, or removed, will depend on the nature of the services they perform, and which of those services are considered “essential” under legislation or by a Labour Board. In any event, where a group of workers’ ability to strike is limited through an “essential service” designation, the economic pressure traditionally afforded through the use of a full work stoppage strike is reduced, therefore reducing the power of employees during collective bargaining negotiations.
As the Supreme Court of Canada most recently stated in Saskatchewan Federation of Labour, the ability to strike is an “indispensable component” of a meaningful collective bargaining process (para 3). The threat, and ability, to withdraw labour and impact an employer’s operations is a significant and powerful tool that unions wield, one which is foundational to achieving the equality of bargaining positions between employees and employer that labour relations is founded upon. Removing that tool unilaterally from a group of workers removes a significant amount of power in the collective bargaining process, and disrupts the balance or equality of the parties’ positions. This is why restricting or removing the ability for workers to strike through an “essential services” designation must be carefully considered and applied in only necessary circumstances – those where the interruption of such services would pose a serious threat to the life, health or personal safety of the public.
The constitutional benediction given to the right to strike in SFL also likely means that the existing definition of “essential services” will resist expansion, as enabling essential service designations for services that cause economic hardship or inconvenience to members of the public will be even less likely to be seen as proportional or justified to removing the constitutionally protected right to strike from workers in a unionized workplace.