Labour disruptions and essential, excluded, and unrepresented positions
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During a strike, an essential service of the Government of Canada is a service necessary for the safety or security of the public, or a segment of the public, at any time. An essential service could include a(n):
- facility, or
- activity of the Government of Canada
When a service is identified as essential, it means there are reasonable grounds to believe that the safety or security of the public would be at risk if a work stoppage interrupted the duties of the public servants offering the service.
The obligations and responsibilities regarding essential services and positions are set out in the Federal Public Sector Labour Relations Act (FPSLRA) and related case law.
Identifying essential services and positions
The employer and unions work together to negotiate and agree on the positions that are necessary to provide essential services during a strike.
As part of this process, the Treasury Board of Canada Secretariat (TBS) provides advice to departments and agencies of the core public administration (Schedules I and IV of the Financial Administration Act) on identifying and managing their essential services positions.
Negotiations between the employer and union generally end with the signing of an Essential Services Agreement (ESA). An ESA must be in place before a union, or bargaining agent, and its members can be in a legal strike position.
Should a strike occur, the employees who occupy the agreed-upon essential positions are prohibited from participating in the strike and must report to work. No one should impede or attempt to impede access to the workplace by employees who occupy essential positions.
Essential services agreements
An ESA is an agreement between the employer and the bargaining agent for a bargaining unit that identifies the positions necessary for the employer to provide essential services.
Employees in essential positions
If your position is deemed essential, you will receive written notification, either electronically or in person, from an authorized management representative that your position is essential during a strike. This means that, even if your bargaining unit is in a legal strike position, you are required to report to work at your designated time and location. You can however, participate in strike activities outside of your designated hours of work.
During a strike, you may find that some of your duties may be different from what you typically do. If your manager is in a legal strike position, management may decide that your position temporarily falls under another management position that is not in a legal strike position.
An excluded (managerial or confidential) position is a represented position that has been removed from its bargaining unit due to the nature of its duties, with the agreement of the bargaining agent and through an order issued by the FPSLREB.
Should a strike occur, employees who will be performing the duties of an excluded position are prohibited from participating in a strike and must report to work. No one should impede or attempt to impede access to the workplace by employees identified by their department as performing the duties of an excluded position.
A position may be deemed excluded for any of these reasons:
- the position is confidential
- the position is classified as being in the executive group
- the occupant of the position provides advice on labour relations, staffing or classification
- the occupant of the position has substantial management duties,or responds to grievance process on behalf of the Employer
- the occupant of the position is directly involved in the process of collective bargaining on behalf of the employer
- the occupant of the position has responsibilities not otherwise described in this subsection which could create a conflict of interest, or by reason of the person’s duties and responsibilities to the employer
Your manager will inform you if the position you were appointed to is excluded. Should a strike occur, any employee occupying an excluded position should be notified by management.
Unrepresented positions are positions that are in an occupational group or sub-group that is not represented by a union. These include the PE, EX and OM groups. If you occupy an unrepresented position, your letter of offer should reference this. Your manager will also be aware.
Should a strike occur, employees who occupy unrepresented positions are prohibited from participating in a strike and must report to work. No one should impede or attempt to impede access to the workplace by employees who occupy unrepresented positions.
Access to the workplace during a strike
Employees, including those occupying essential, excluded, or unrepresented positions should contact their manager if they encounter issues entering the worksite, including interference, or harassment by picketers.
Employees who do not follow management’s instructions regarding crossing picket lines or who do not report for duty at picketed locations may be considered:
- not entitled to pay
- subject to disciplinary action
- absent without authorized leave
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