No. 10-Maintenance of Activities or Essential Services Applications

Rules of Procedure

This document outlines the procedure that an employer or bargaining agent (that is, the union) must follow to file an agreement or application concerning the maintenance of certain essential activities—that is, the supply of services, operation of facilities or production of goods—to the extent necessary to prevent an immediate and serious danger to the safety or health of the public during a strike or lockout not prohibited by Part I of the Canada Labour Code (the Code).

To ensure there are no delays in processing your application, please read these rules carefully. Amendments to the Code have led to important changes to the procedure that the Canada Industrial Relations Board (the Board) follows for this type of application. The new provisions of the Code and these rules apply in respect of any collective bargaining if the notice to bargain was given on or after June 20, 2025.

If you have any questions about the Board’s procedure, you can contact a Board officer at 1-800-575-9696.

General

Section 87.4(1) of the Code states that during a strike or lockout not prohibited by Part I (Industrial Relations) of the Code, the employer, the bargaining agent and the members of the bargaining unit have to maintain certain activities—that is, the supply of services, operation of facilities or production of goods—to the extent necessary to prevent an immediate and serious danger to the safety or health of the public. When parties reach an agreement on the maintenance of certain essential activities, they have to file a copy of that agreement with the Minister of Labour (the Minister) and the Board (section 87.4(3) of the Code). When the agreement is filed, it has the same effect as a Board order. If the parties do not reach an agreement within the time limit mentioned in the Code, the Board will consider any application filed by the employer or the bargaining agent (section 87.4(4) of the Code). The Minister can also ask the Board to consider any agreement between the parties (section 87.4(5) of the Code), and this is called a referral.

To ensure the Code’s objectives are met, these kinds of agreements or applications need to be processed quickly. For that reason, the Code mentions that the Board must send a copy of its decision and any order it makes to the parties within 82 days of receiving the agreement, the application or the Minister’s referral. To meet this time limit, the Board can exercise any power allowing it to control its process.

To speed up proceedings, and by using its authority under section 16(m.2) of the Code, the Board has created the procedure below for handling agreements or applications concerning the maintenance of certain essential activities. Section 46 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations) also allows the Board to change time limits and procedural requirements to ensure the proper administration of the Code.

For more information on filing agreements or applications concerning the maintenance of certain essential activities, visit the Maintenance of Activities or Essential Services section of the Board’s website. You can also access copies of the Code, Regulations, rules of procedure, forms and information circulars on the Board’s website.

The process is public

The information provided and any documents submitted to the Board are collected solely for the purpose of administering the Code and will be used to deal with and adjudicate the matters that come before the Board. Parties that engage the Board’s services should be aware that this is a public process. Apart from documents exchanged during mediation, the documents you send the Board are stored in a file that is accessible to the public on request. The Board also posts key decisions on its website, and these decisions may identify parties and witnesses by name and may include information about them that is relevant and necessary to the Board’s decision.

Please let the Board know if you have concerns about sensitive information in your file. You may request that we make this information confidential. The possibility of issuing a confidentiality order to protect your information will then be assessed. For more on this, see the Board’s Information Circular No. 12–Policy on Openness and Privacy.

You need to provide the Board with specific information and documents when filing your agreement or application

When filing an agreement reached by the parties (section 87.4(3) of the Code), the applicant must provide the following information and documents to the Board:

A completed copy of the Filing an Agreement or Application Concerning the Maintenance of Certain Essential Activities form
A copy of the bargaining certificate or the bargaining unit description
The first page of the last collective agreement, in force or expired, that covers the employees of the bargaining unit affected by the application and that states the names of the parties and the term of the collective agreement (if applicable)
A copy of the notice to bargain
Proof that a copy of the agreement has been sent to the Minister at the following email address: MAINTENANCE.ACTIVITIES@labour-travail.gc.ca
Proof that the application has been sent to the other party

When filing an application concerning the maintenance of certain essential activities (section 87.4(4) of the Code), the applicant must provide the following information and documents:

A completed copy of the Filing an Agreement or Application Concerning the Maintenance of Certain Essential Activities form
The bargaining certificate or the bargaining unit description
The first page of any collective agreement, in force or expired, that covers the employees of the bargaining unit affected by the application and that states the names of the parties and the term of the collective agreement (if applicable)
The addresses of the employer’s facilities affected by the application
A copy of the last agreement or the last order affecting the parties regarding essential services (if applicable)
A copy of the notice to bargain collectively
A copy of the notice of dispute (if applicable)
The number of employees in the bargaining unit
A list stating the full names, classifications or position titles and work locations of the employees affected by this application (this list must identify management and supervisory staff, the members of all the bargaining units and, if applicable, the casual and part-time employees)
A job description for the positions that the applicant feels must be maintained to comply with section 87.4(1) of the Code if there is a strike or lockout not prohibited by Part I of the Code
A detailed description of the nature of the business and operations
A description of the order or decision requested
A description of the immediate and serious danger to the safety or health of the public that would arise if the Board does not issue the requested order or decision
Proof that the application has been sent to the other party

If the employer is the applicant, it must also provide the following document:

An organizational chart, if relevant

If the applicant does not have some of this information, it needs to explain why when filing its documentation.

The Board strongly encourages applicants to use the Filing an Agreement or Application Concerning the Maintenance of Certain Essential Activities form. This form asks for the information that the Board needs to consider and decide the application. If you do not fill out this form or provide all the required information and documents, the application might be decided based on the information and documents provided and/or there may be delays in processing your application. For that reason, the parties are responsible for submitting all relevant evidence when the application is filed.

The Board has an e-filing Web Portal (Portal) service that allows you to file your PDF documents in the Board’s centralized document filing system. If you choose to file your document electronically using the Portal, you should not forward a hard copy of the same document to the Board. The electronic version will be considered the original copy.

You can also file your application by courier, mail, registered mail or in person at the Board’s Ottawa office. The application will be considered filed as of the date the Board receives it or, if you use registered mail, the date the application was mailed to the Board (see the Board’s Regulations).

An application is also considered filed with the Board on the day that the completed application pursuant to section 41.1 of the Regulations is received.

The Board does not need to hold an oral hearing and may decide your application without one.

The Board will send you a letter confirming that it received the agreement or application

After it receives the agreement or application concerning the maintenance of certain essential activities, the Board will send a written notice to the employer and the bargaining agent.

The Board’s letter will also inform the parties of the name and contact information of the officer assigned to the file. The officer is responsible for managing the file and helping the parties reach a settlement. For more information, please see the Board’s webpage on the role of industrial relations officers.

A meeting date will be determined once the application has been received, and an officer will communicate with you to discuss the investigation and a resolution process. You may also contact the officer if you have any questions during the process.

After an agreement under section 87.4(3) of the Code is filed, the Board considers whether to accept the agreement

Once the Board sends its notice to the parties, it receives the file, the copy of the agreement and the relevant documents for its consideration. Once the Board accepts the filing, it has the same effect as a Board order.

After an application under section 87.4(4) of the Code is filed, the employer and the bargaining agent have certain obligations

Once the parties receive notice of the application, the employer cannot change the terms and conditions of employment of the bargaining unit members, except in certain circumstances (see section 87.5(1) of the Code). For more information on this, you can contact the Board’s officer.

Here is a list of what the employer and the bargaining agent must do when they receive notice from the Board of an application concerning the maintenance of certain essential activities.

The party affected by the application (the employer or the bargaining agent) must file its response within 5 calendar days of receiving the Board’s notice.
If the employer is the party affected by the application, it must also provide the following documents with its response:
- an organizational chart as of the filing of the application; and
- an up-to-date job description for the positions that either party considers necessary to comply with section 87.4(1) of the Code if there is a strike or lockout not prohibited by Part I of the Code.
Once the party affected by the application files its response, the applicant has 5 calendar days to file its reply.

If you want the Board to hold an oral hearing, you need to explain why

Even if you ask for a hearing, section 16.1 of the Code gives the Board the power to decide any matter before it without one. The Board regularly decides applications based on the written submissions from the employer and the bargaining agent. For that reason, it is in your best interests to file complete, accurate and detailed submissions and include all relevant information and documents in support of your position.

Time limits can only be extended in certain situations

To ensure that applications concerning the maintenance of certain essential activities are processed quickly, and to promote the objectives of the Code, the Board usually does not extend the time limits for filing responses and replies, except in exceptional circumstances.

Documents you file with the Board need to be sent to the other party

Please note that all documents you submit to the Board will be placed on the public record and that, in accordance with section 23 of the Regulations, you are required to send the other party a copy of any response, reply or other document you file with the Board. You must also tell the Board, in writing, when and how you sent the document to the other party.

You can request the production or disclosure of documents

In accordance with section 21(1) of the Regulations, if you want the other party to disclose documents that are relevant to the file before the Board, you need to ask the other party to do this first, before you ask the Board for a production order.

Interested parties can ask to intervene in the file

In an application under section 87.4 of the Code, all requests to intervene must outline compelling reasons why the intervention would help the Board, and these reasons must be clearly linked to the issue of the level of activity necessary to prevent an immediate and serious danger to the safety or health of the public (see Canadian Pacific Railway Company (now known as Canadian Pacific Kansas City Railway), 2024 CIRB 1144). Interested parties have 5 calendar days to file a request to intervene. The employer and the bargaining agent have 5 calendar days to respond to the request.

The Board will investigate the application

Once it receives an application concerning the maintenance of certain essential activities, the Board may appoint an officer to investigate. During their investigation, the officer may communicate with the employer and the bargaining agent to verify information or obtain certain specific documents to ensure the proper administration of the Code.

The Board’s officer can also send the parties a letter setting out their understanding of the nature of the employer’s business and operations, the parties’ positions on the maintenance of certain essential activities and the immediate and serious danger to the safety or health of the public that, in the parties’ view, could arise if the Board does not grant the application.

If applicable, the parties must provide their written comments on the letter of the Board’s officer within 24 hours of receiving it.

The Board’s officer will schedule a meeting with you

For applications concerning the maintenance of certain essential activities under section 87.4(4) of the Code, a meeting date will be determined once the application has been received, and an officer will communicate with you to discuss the investigation and a resolution process.

The Board will make its decision

One or more Board members (or an external adjudicator) will then review the application and may:

ask the parties for more information or submissions;
decide the matter based on the file; or
schedule a hearing and determine the application.

If the Board decides that a strike or lockout could pose an immediate and serious danger to the safety or health of the public, it can issue an order:

identifying the activities that it considers necessary to continue to prevent the danger;
specifying how and to what level the employer, the bargaining agent and the members of the bargaining unit must continue those activities; and
imposing any measure that it considers appropriate for meeting the requirements of section 87.4 of the Code.

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