Just what is an essential service, anyway? BCGEU strike highlights history of made-in-B.C. answer to debate

When union members threw up picket lines outside B.C. Liquor Distribution Branch sites earlier this month, British Columbians may have wondered why the flow of alcohol and cannabis was considered essential during the pandemic — but not in the context of a looming strike.

The answer lies in the very concept of "essential services" and a made-in-B.C. solution to a question at the core of public sector labour relations: How can frontline workers fight for their rights without endangering the people they serve?

It was a puzzle the first chair of the province's Labour Relations Board (LRB) tackled 50 years ago when he developed a new way to deal with disputes involving police officers and hospital workers.

Paul Weiler came up with the so-called "controlled strike," where both sides of the bargaining table agree — prior to any action — on reduced levels of service that might inconvenience the public but won't threaten health and safety.

But just what's essential — and what level of service that involves — has been debated ever since.

"It stands as legal testimonial to the moral principle that there are more important values than the right to strike, than even collective bargaining itself," Weiler wrote in his seminal book Reconcilable Differences.

"Innocent individuals in the community must not be allowed to be injured, even killed, because a union and an employer could not reach a settlement at the bargaining table."

Essential services debated months before action

The B.C. General Employees' Union (BCGEU) is currently seeking a deal that would protect 33,000 of its members who work for direct government against inflation and the rising cost of living. The union, which has 86,000 members in total, has also cited workload and staffing as issues.

The LRB handed down an interim order designating essential services the day before the union issued its 72-hour strike notice; three days later, employees at four liquor and cannabis distribution centres walked off the job.

By law, neither of those things could have happened without the interim order, which the union and the government have been hammering out in front of the board since last February.

It's a living document, one the board can amend as the conflict continues. The order itself is just four pages long, but an appendix with a detailed list of positions and service levels runs to 1,500 pages. It has not yet been publicly released.

Veteran labour lawyer Leo McGrady, who was called to the bar in 1969, recalls wildcat strikes that preceded the introduction of essential services legislation under an NDP government in the 1970s; before then it was illegal for health-care staff to walk off the job.

"Even though these groups were prohibited by law from striking, they still did. And you can imagine the nightmare that presented to the government and to the public," he says.

'Immediate and serious danger'

The Labour Relations Code defines essential services as "facilities, productions and services ... necessary or essential to prevent immediate and serious danger to the health, safety or welfare of the residents of British Columbia."

The BCGEU's website takes pains to point out that those may not be the same services designated by government in the pandemic, when the province's economic health was also a major consideration — which is why liquor distribution branch workers can strike now, but couldn't when B.C. was grappling with a global crisis.

What makes a service essential is a tricky issue.

In 2007 the LRB declined to make a declaration for programs serving lower income children at two East Vancouver community centres in a dispute between the City of Vancouver and its workers.

And in 2015, the board ruled that while the transfer of cancer and dialysis patients by ambulance paramedics was essential, transfers of discharged patients to their homes or long-term care was not.

"The critical point is 'immediate and serious danger,'" the board wrote in the City of Vancouver decision.

"The inconvenience, frustration and hardship caused by public sector strikes or lockouts does not immediately equate to immediate and serious danger."

Not all services proposed as essential have involved dire situations.

In 1994, the City of Victoria argued unsuccessfully to make park maintenance essential during the Commonwealth Games because "the economic importance of tourism ... is such that the welfare of city residents is in danger."

McGrady recalls taking the LRB chair on a tour of restaurants close to a university to counter an academic manager's contention that on-campus food services were essential to pampered students.

"There have been occasions where you think you're in a Monty Python skit," he says.

Management gets to 'walk in their shoes'

McGrady says B.C. was the first province to introduce essential services legislation, but the concept has since spread across Canada.

Weiler was considered one of North America's foremost labour law scholars. He crafted B.C.'s Labour Relations Code and headed the board for five years starting in 1973. He died last year.

A key feature of Weiler's vision was that managers and excluded personnel must work 60-hour weeks performing the tasks of their employees during a strike.

BCGEU president Stephanie Smith told the CBC her members see the burden on management as a chance for education, an opportunity "to walk in their shoes." 

"There is really a wide-held belief that management ... don't understand the day-to-day working life of the members that they supervise," she said.

The government declined comment because of a media blackout around the resumption of negotiations.

In a statement issued last week, the Public Service Agency said the LRB had "ensured we have appropriate essential service levels in place that will allow the government to continue delivering the critical services that people in British Columbia rely on."

Smith agreed to speak to issues outside those under discussion at the bargaining table.

At the end of the day, she says, it's all about leverage.

"It is about applying pressure to those in power," she says.

"The biggest power that workers have is to act collectively ... and it's about applying the pressure to those who actually have the power to make decisions that directly impact workers' lives."