Essential service legislation, Sections 72 and 73 of the Labour Relations Code, is supposed to protect the public by assuring that essential services are provided during a strike or lockout. Staffing levels are negotiated between the parties and where agreement cannot be reached, the Board appoints a mediator and may incorporate the mediator's recommendation into its order. The Campbell government campaigned on making education an essential service. It amended Section 72 of the Code to include a threat to "the provision of educational programs to students and eligible children under the School Act". Nevertheless, it promptly resorted to legislating a contract for teachers.

On April 22, 2004, the Labour Relations Board issued an interim order designating essential services for the "facilities sector".. (See http://www.lrb.bc.ca/decisions/B143$2004.pdf) Between the time of the interim order and the passing of Bill 37, the Health Employers Association did not go to the Labour Relations Board in order to argue for higher levels of essential service staffing. That could be because they knew legislation would be introduced, or it could be because they were satisfied with the essential service levels. Which answer explains their behaviour is important. In the first case they could be accused of bad faith bargaining, in the second they could deflate the government's claim on the extent of the inconvenience to patients.

The Campbell government is behaving as if it doesn't believe in essential service legislation. The alternative is to completely ban strikes and lockouts in specified sectors. The Fire and Police Collective Bargaining Act bans strikes and lockouts if the minister directs that a dispute be resolved by arbitration. The closest one comes to simply banning the right to bargain is the case of the RCMP where the Canada Labour Code prohibits them from engaging in collective bargaining; however, the RCMP Pay Council was established in 1996 to provide an alternative to bargaining that is "consultative and consensual". Even in the case of the RCMP, it is recognized that there is a need to be fair in determining pay and benefits. If the Campbell government is going to reject essential service legislation provided in BC's Labour Code, then it needs to specify the model it will use in its place. The government appears unwilling to trust an arbitrator with the province's finances. The public appears unwilling to trust the Campbell government to determine what is fair. Something needs to change. An informed discussion of alternatives to strikes and lockouts needs to review what works rather than engaging in a war of words over the latest dispute.

A review of some of the fundamental issues should begin with a reading of the Supreme Court of Canada's 1987 decision on the Public Service Employee Relations Act (Alta.). It is clear that the issue of bargaining rights is a matter of provincial government policy. The debate, and responsibility for any policy, cannot be transferred to the courts.