No. 11-Ministerial Referrals on Essential Services
Rules of Procedure
This document outlines the procedure that the employer and the bargaining agent (that is, the union) must follow when a ministerial referral is made regarding whether an agreement entered into by the parties is sufficient to ensure compliance with section 87.4(1) of the Canada Labour Code (the Code).
To ensure there are no delays in processing the referral, 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 file. 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 referrals regarding 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.
Ministerial referrals on whether an agreement entered into by the parties is sufficient to ensure compliance with the requirements respecting the maintenance of certain essential activities
The Board will send you a letter confirming that it received the ministerial referral
After it receives a ministerial referral pursuant to section 87.4(5) of the Code, 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 ministerial referral 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 receiving a notice of a ministerial referral pursuant to section 87.4(5) of the Code, the employer and the bargaining agent have certain obligations
Once the parties receive notice of the ministerial referral, 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 what the employer and the bargaining agent must do when they receive notice from the Board of a ministerial referral:
- After receiving the Board’s notice, the employer and the bargaining agent will have 5 calendar days to file their written submissions on the referral; and
- After receiving the written submissions, the employer and the bargaining agent will have 5 calendar days to file their respective replies.
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 files before it 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 ministerial referrals regarding 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 a ministerial referral pursuant to 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 will have 5 calendar days to respond to the request.
The Board will investigate the ministerial referral
Once it receives a ministerial referral regarding 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 (or not) 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 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 ministerial referrals regarding the maintenance of certain essential activities under section 87.4(5) of the Code, a meeting date will be determined once the referral 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 will then review the referral and may:
- ask the parties for more information or submissions;
- decide the matter based on the file; or
- schedule a hearing and determine the referral.
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.