Are your members doing too much under essential services orders?

Each time the Supreme Court of Canada issues a new ruling on labour rights, it takes some time for the effects to ripple out through tribunals and courts across the country. One change we're still waiting to see here in BC after the 2015 SFL decision is a restriction on the amount and type of work performed by essential service workers pursuant to the BC LRB's standard Global Order.

Up to now, the usual practice is that workers who are in positions designated essential by the Board show up and do all of their duties. If 90% of a worker's job is something non-essential, like buffing a floor, and only 10% is something essential, like cleaning spills that would otherwise be dangerous hazards, the worker is expected to do the buffing, too.

However, in the SFL decision, the Supreme Court of Canada ruled that requiring essential services workers to perform non-essential tasks unjustifiably infringes their constitutional right to strike: 

[W]here an employee has been prohibited from participating in strike activity, the PSESA does not tailor his or her responsibilities to the performance of essential services alone. ... Requiring those affected employees to perform both essential and non essential work during a strike action undercuts their ability to participate meaningfully in and influence the process of pursuing collective workplace goals.

(para 91)

Workers have a constitutionally protected right to strike. Any intrusions on that right have to be as minimal as possible. The worker responsible for the floors in my example above is entitled to spend 90% of her time on shift waiting for a call about a spill, twiddling her thumbs or playing online bingo or whatever she likes, until she gets a call to do a truly essential task. 

Remember that withdrawal of labour is one of unions' most powerful weapons against the employer. No buffed floors during a strike or lockout -- if the employer wants the floors buffed again, the employer will have to come up with a deal the members can accept.

Our side won SFL. We won a constitutional right to strike. But that right is only an abstract principle until we start shifting labour board jurisprudence and labour relations practices to make that right concrete.