An employer is not entitled to use the services of replacement workers to perform bargaining unit work during a strike, pursuant to section 68(1) of the Labour Relations Code (the "Code").

By definition, replacement workers include any workers that have been hired by the employer after notice to bargain has been given. This restriction prevents employers from flooding their workforce with new hires, typically outside of the bargaining unit, to pick up the workload during the strike. However, section 68(1) of the Code does not distinguish between new hires within the bargaining unit and new hires outside the bargaining unit. Therefore, arguably, replacement workers include employees hired into the bargaining unit after notice to bargain.

When a strike threatens essential services in British Columbia, section 72 of the Code provides that the Minister of Labour may direct the Labour Relations Board to make an order designating the level of essential services for the purpose of eliminating an immediate and serious danger to the health, safety or welfare of the residents of British Columbia as a result of the strike.

The Ambulance Paramedics of British Columbia, CUPE Local 873, have been on strike against their employer, the Emergency and Health Services Commission, since April 1, 2009. The parties are subject to an essential services order from the Board and one of the main effects of the essential services order is that the union members are required to perform essential service levels of work during the strike.

What if the employer needs to use the services of the union members hired after notice to bargain in order to maintain designated essential service levels? What if resignations and attrition during the course of an extended strike require the employer to hire new employees to fill vacancies in order to maintain essential service levels? Since section 68(1) prohibits employers from scheduling workers hired after notice to bargain, how can essential services be maintained in such situations?

Shortly after replacement worker legislation was introduced in British Columbia in the early 1990s, in a case known as Chantelle Management Ltd., the Labour Relations Board established that there needs to be a balance between section 68 and section 72 of the Code. Up until April 1, 2009, it was generally understood that the section 68 restrictions on use of replacement workers and rights to refuse to work could be restricted as required in order to maintain essential services.

On April 1, 2009, the Board decided in Compass Group Canada (Health Services) Ltd. that it could not order managers who were hired after notice to bargain to perform work during an essential service strike, on the premise that the Board could not order a contravention of section 68 of the Code. This decision appeared to reverse the precedent set in Chantelle Management, hampering the Board's flexibility to restrict the application of section 68 in the interest of maintaining essential service levels for the citizens of British Columbia.

In the paramedics strike, the union relied on Compass Group as the basis for an application to the Board for a determination that the Emergency and Health Services Commission was acting in contravention of section 68 of the Code by scheduling paramedics who were hired after notice to bargain. Their employer opposed the application on various grounds, including an argument that Compass Group was wrongly decided and should not be followed.

The Board dismissed the union's application in Emergency Health Services Commission and Ambulance Paramedics of British Columbia, CUPE Local 873. The Board found that Compass Group was wrongly decided, largely because the facts in Compass Group did not provide the Board with a context where essential services would be threatened if post-notice hires could not be utilized. The Board concluded that an essential services order displaces section 68(1) of the Code: once there is an order designating essential services, section 68 no longer applies.

The Board stated that under an essential services order, "all bargaining unit employees may be used to provide essential services, whether they were hired before or after notice to bargain was issued, and all management and excluded personnel must be used to the best extent possible," even if hired after notice to bargain.

As such, managers hired after notice to bargain must work the 60-hour week found in a standard essential service order, and all union members can be scheduled to work in accordance with the essential services order, regardless of whether they were hired after notice to bargain. Any question of who must work (and who is or is not essential) in order to meet essential service levels is to be addressed by the Board pursuant to its broad jurisdiction under section 72.

Although this has likely settled the matter, an application for reconsideration of the Compass Group decision has been filed.