Negotiating Essential Services Agreements: Case studies from experienced negotiators

Seasoned negotiators from both sides of the table will review examples of successful and unsuccessful essential services negotiations, pointing out the key features of each, and identifying strategies for increasing the odds of successfully concluding an essential services agreement. Issues to be addressed include:

• Is the task of identifying "essential services" primarily a legal one or a practical one? That is, should parties be more concerned with legal justification of their positions, or with presenting evidence that shows how their decisions preserve public health and safety?
• When should parties negotiate an essential services agreement (e.g. before the collective agreement expires, when negotiations for a collective agreement reach an impasse, etc.)? Should the same people be responsible for negotiating both the essential services agreement and the collective agreement?
• Is there a preferred process to follow? For example, does it matter who makes the first proposal? Should the first proposal concentrate only on reaching a "framework agreement"? If so, what should be in a framework agreement?
• How can parties make the most effective use of the umpire they choose?
• How careful should parties be in negotiating their first essential services agreements? Will they later be bound by decisions regarding which services are essential and what level of services are essential?
• What factors are relevant to determining the type, scope, and level of services that are essential? What type of information or studies might be necessary to determine the nature and level of essential services necessary to prevent a risk to public safety? Should unions and employers jointly undertake to obtain such information/conduct such studies?
• How can parties negotiate an essential services agreement that effectively takes into account the fact that some non-essential services may become essential if they are not provided for an extended period of time? In the words of the Alberta legislation, how do parties take into account "foreseeable changes to the essential services that need to be maintained during a strike or lockout"?
• How should parties determine how essential services should be provided? How should they gauge the degree to which non-bargaining unit members can meet the need for an essential service?
• What are the most frequently-encountered obstacles to successfully concluding an essential services agreement? What strategies can parties use to overcome these obstacles?
• Are there any essential services agreements in Alberta now or in recent history that parties might use as a precedent?

MATERIALS
Includes materials, with case summaries and analyses, prepared by Lancaster's legal staff.