After a months-long complicated legal process, New Brunswick’s Court of Appeal has upheld a lower court’s decision allowing the province’s unionized nursing home workers the right to strike.
The ruling, which will be followed by a written decision, upholds a 2018 labour board decision that the province’s Essential Services Act is unconstitutional and violated workers’ right to strike.
That decision was already upheld by Court of Queen’s Bench Chief Justice Tracey DeWare earlier this year, who ordered that the government amend the law to bring it in line with the Charter of Rights and Freedoms by January 2020 and granted a stay of any strike action until that time.
Members of the New Brunswick Council of Nursing Home Unions (NBCNHU) and the Canadian Union of Public Employees (CUPE) were in attendance for the ruling and are pleased with the result.
“We’re happy with the decision, that workers rights have been restored and this government will now be forced to do what it should have done in the first place and it will now have until January the second to do that,” said NBCNHU president Sharon Teare.
Lawyer Christian Michaud argued on behalf of the province that the labour board overstepped its jurisdiction in its ruling and that Justice DeWare made errors in her decision.
Michaud also suggested that the effectiveness or impact of a strike action has yet to be seen, so the board erred in its determination that the act unfairly impacts workers ability to collectively bargain.
The Essential Services Act sets out that certain essential employees be designated as such and that “no employee who is employed in a designated position shall participate in a strike.”
The labour board previously determined that about 90 per cent of employees in one Fredericton nursing home are essential. Across the province, 72.5 per cent of nursing home workers are designated as essential.
CUPE lawyer Joël Michaud pointed to a recent Supreme Court of Canada decision on a similar law in Saskatchewan, where it was decided that it was unconstitutional to prevent public sector workers from striking.
Michaud also argued that the act needs some sort of mechanism to ensure effective collective bargaining in the face of the union’s weakened strike capacity, which it does not currently possess.
The appeal was heard by justices Ernest Drapeau, Kathleen Quigg, Bradley Green who sided with the two previous rulings and the union.
The lawyer for the New Brunswick Nursing Home Association, which is the organization responsible for operating the province’s non-profit nursing homes, says their priority throughout this process has been the safety of residents.
“This is and has always been about protecting the safety and security of residents and we will continue to work in those efforts regardless of the decision that came out today,” said Justin Wies.
“The mission and value of the operators of nursing homes is exclusively to provide the best possible care to a group of people who are among the most vulnerable in our society.”
In March about 90 per cent of nursing home workers voted in favour of a strike, but the province was granted a temporary stay while its legal challenges worked their way through the court.
The stay imposed by Justice DeWare will remain in effect meaning workers will not be able to strike until January.
Nursing home workers without a contract since 2016
The union renewed its calls for the government to adopt binding arbitration, a move that was supported by opposition parties in a non-binding motion passed in the legislature earlier this year.
“Justice DeWare’s decision was an order to the provincial government, to the attorney general to return to the legislature to change the law, because the law was unconstitutional,” said union first vice president Roland Cormier.
“Let’s hope that the government now listens to Chief Justice DeWare and listens to the majority of the legislature and does the right thing.”
New Brunswick’s nursing home workers have been without a contract since 2016 and over the last year have been locked in a bitter labour dispute with the provincial government.
In September, the government presented the union with its final offer, which is one-time mechanism that puts the offer to the membership for a vote. The union says six of the 46 non-profit homes have voted on the deal.
The union also revealed that it has launched a labour board challenge over the process surrounding the offer.
“We got an email on Thursday afternoon saying this is the final offer and on Friday we’re going to the labour board to force a vote. That’s the respect this government has for nursing home employees. That’s why we’re in front of the labour board,” Cormier said.
Province prepared to appeal to Supreme Court
In a statement issued on Tuesday, Premier Blaine Higgs said he was “disappointed by the decision” and that his government is “prepared to appeal this to the Supreme Court, if necessary to do so.”
“We want to conclude this issue but any agreement must be fair to taxpayers and nursing home workers,” he wrote, adding that he remains committed to reaching a new collective agreement.
“The health and safety of nursing home residents remains our government’s primary concern.”