N.S. Liberals leave out contentious portion of Bill 148 in request for constitutional review
A Liberal government promise to have the courts test Nova Scotia’s wage legislation against the constitution won’t include one of the bill’s most controversial sections.
On Tuesday, the government announced it was proclaiming Bill 148. The act includes a three per cent cap on wage increases in the public sector over four years and freezes the long service award.
Since the bill was introduced in December 2015, unions and opposition parties have warned that it won’t hold up to a charter challenge.
In response to those warnings the government said it would ask the Nova Scotia Court of Appeal to review the bill’s constitutionality.
“We are referring the act to the Nova Scotia Court of Appeal under the constitutional questions act,” Labour Relations Minister Mark Furey said Tuesday. “To obtain the court’s opinion on the now proclaimed law.
“We have confidence in the legislation, we believe in the best interests of all parties that the question requires clarity and we’re prepared to ask that question,” Furey added.
But the question sent to the Court of Appeal limits the court’s review to sections seven through 19 of the act. Those sections cover the creation of a board to oversee the implementation of the wage bill and the wage pattern that mandates a two-year wage freeze followed by a three per cent wage increase over two years.
Furey was not available for an interview on Tuesday but a copy of the referral to the Court of Appeal was provided by the province.
The government is not asking the court to review the subsequent sections of the bill including the part that freezes the long service award retroactive to April 1, 2015 and strips it from future employees.
That area is what the province’s unions have long pointed to as the most likely to fail a constitutional test.
Nova Scotia Government and General Employees Union president Jason MacLean said he interpreted Tuesday’s announcement to mean the entire bill would go under a constitutional test.
“It’s important because nobody ever challenged the wage restraint piece. The only challenge that’s there is removing provisions from the collective agreement and Stephen McNeil is well aware that, that’s been our issue,” MacLean said in an interview Thursday.
“(McNeil) and I have had many conversations that, that is the issue.”
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Tina Thibeau, Nova Scotia’s acting director of media relations, said in an emailed statement that the government would not speak to the details of the referral as it was now before the court.
“While specific sections form the basis of the reference case, the government is confident of the constitutionality of all sections of the Act and remain prepared to defend all sections of the Act in any future court proceeding. This court process is public and documents filed will be available to the public,” wrote Thibeau.
MacLean said the government’s decisions to not subject the entire bill to a constitutional test from the Court of Appeal suggests the Liberals have their doubts about the bill.
“It shows me that (McNeil) actually believes that the other piece is unconstitutional,” said MacLean.
The New Democrats are also questioning the government’s motives.
“If Stephen McNeil has nothing to hide here, than why did he mislead Nova Scotians on the government’s plan to send this bill to the courts?” NDP labour critic Tammy Martin asked in an emailed statement.
The NSGEU is calling on the government to change its request to the appeals court to include the entire bill, otherwise MacLean said his union will move ahead with its own charter challenge.
Nova Scotia Progressive Conservative Leader Jamie Baillie said he too has concerns about how the premier is handling the situation.
“I think it’s an admission by Premier McNeil that he knows deep down that this bill is not constitutional and at the end of the day, maybe long after he’s gone, it’s going to cost us millions of dollars to fix,” he said.
“Every minute that is wasted on these kinds of legal games is time that is not spent on getting more doctors and making health care better.”
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