Bill 37 was introduced by the Manitoba Government on May 6, 2024. As indicated in our previous blog posts, Bill 37 includes some of the most significant changes to The Labour Relations Act in Manitoba's recent history. In our previous blog posts here and here, we outlined a number of significant changes to labour and employment legislation announced by the Manitoba Government.
On November 7, 2024, Bill 37, The Budget Implementation and Tax Statutes Amendment Act, 2024 ("Bill 37") passed its final vote and became law.
The changes to The Labour Relations Act include:
- Automatic certification when a union establishes that it has the support of a majority (i.e. 50% plus one) of the employees in a proposed bargaining unit;
- Stringent prohibitions on the use of alternate or replacement workers during a labour dispute. If an employer cannot meet the thresholds for establishing that their operations are essential, in whole or in part, then a labour dispute may result in the complete cessation of working activities; and
- The introduction of essential service provisions.
This article will review essential services agreements, which all provincially regulated unionized workplaces in Manitoba will need to consider.
Essential Services Agreements
The Labour Relations Act now requires that any essential service(s) be continued during a legal lockout or strike such that a legal strike or lockout will not be permitted unless an Essential Services Agreement ("ESA") is in place and filed with the Manitoba Labour Board (the "Board").
In addition, employers and unions are required, no later than 180 days before the expiry of a collective agreement, to consider whether there is any essential service(s). The meaning of essential services includes the supply of services, operation of facilities or production of goods to the extent necessary to:
- Prevent a threat to the health, safety or welfare of residents of Manitoba;
- Maintain the administration of justice; and
- Prevent a threat of serious environmental damage.
The parties must advise the Board of their determination, even if they determine that there is no essential service.
If the parties determine that there is essential service(s), then no later than 90 days before the expiry of the collective agreement, the parties must enter into an ESA that outlines:
- The supply of services, operation of facilities or production of goods that the parties consider necessary to continue in the event of a lockout or legal strike; and
- The manner and extent to which the employer, union and employees in the unit must continue the supply, operations and production, including the number of those employees that, in the opinion of the employer and union, would be required for that purpose.
Immediately after entering into the agreement, the parties must file a copy of the ESA with the Board.
If the parties do not agree whether there is an essential service(s) and/or if an ESA is not entered into, then either party may make an application to the Board. The Board may then determine whether there is an essential service(s) or implement the terms of an ESA, as applicable. A party that fails to comply with an ESA, or order from the Board, would commit an unfair labour practice.
Previously, only those in certain prescribed industries, such as the health services sector, firefighters and paramedics, teachers or child and family services employees were considered to be essential services in the case of a lockout or strike. Now, all unionized employers will be required to turn their mind as to whether they provide an essential service.
If the effect of the ESA is that there would be substantial interference in the ability of the parties to meaningfully engage in a lawful strike or lockout, then either the employer or the union may apply to the Board. If the Board agrees that the manner and extent to which essential services must continue substantially interferes with meaningful bargaining, the Board may review, confirm, amend or cancel an ESA or make any order it considers appropriate.
Impact of Essential Service Agreements
Previously, an employer facing a strike or imposing a lockout could contract out services to third-party providers or hire temporary employees to replace employees engaged in a labour dispute. Now, The Labour Relations Act prohibits such contractors and replacement workers during a labour dispute.
Our labour & employment team will be hosting a webinar on November 13, 2024 to discuss essential service agreements, as well as the impending ban on replacement workers during labour disputes and return of automatic certification. Further information regarding the webinar can be accessed here.
If you're interested in learning more about these changes and how they may impact your operations, contact a member of our Manitoba Labour & Employment team to learn how we can help.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
