N.B. moves to give nursing home workers conditional binding arbitration rights

The New Brunswick government has moved to give nursing home workers access to binding arbitration subject to “ability to pay” criteria.

The amendments to the Essential Services in Nursing Homes Act were introduced Tuesday afternoon by Minister of Social Development Dorothy Shephard and include changes to the process by which workers are determined to be essential. The act was deemed unconstitutional due to its severe limitation of workers’ right to strike and the government was given until Jan. 1 to amend the legislation.

The ability to pay criteria echo similar amendments to the Industrial Relations Act introduced last week that would mandate that arbitrators take into account the ability of an employer to pay when awarding contracts to police and fire services in the province.

Shephard says the criteria are essential to ensure New Brunswick practises fiscal restraint.

“We have to take measures first off to protect our residents, which is most importantly what this is all about, and secondly, that whatever agreements we come to must be affordable for New Brunswickers,” Shephard told reporters after Tuesday’s sitting of the legislature.

A spokesperson for the Canadian Union of Public Employees (CUPE) said the union is disappointed with the amendments and said the government is trying to pay for corporate welfare on the backs of the province’s workers.

Earlier this year, opposition MLAs from the Liberals, Greens and the People’s Alliance of New Brunswick passed a symbolic motion calling on the government to enter into unrestricted binding arbitration with nursing home workers. The union is now calling on the MLAs that supported that motion to vote against the new amendments.

The province’s nursing home workers have been without a contract since 2016 and labour tensions with the New Brunswick Council of Nursing Home Unions (NBCNHU) and CUPE have become increasingly heated over the last year.

The Essential Services in Nursing Homes Act was found unconstitutional by the labour board in 2018, a decision later upheld by the Court of Queen’s Bench and the Court of Appeal. Premier Blaine Higgs has yet to say if he will seek to appeal to the Supreme Court of Canada with the deadline for such an application quickly approaching.

The amendments also look to address how workers are deemed essential, laying out a process where the union and employer look to determine what percentage of workers are essential. If an agreement can’t be reached, the labour board makes the decision. A similar process existed under the previous legislation, leading the board to rule that 90 per cent of workers in one Fredericton home were essential.

Green Party Leader David Coon said the amendments dealing with ability to pay criteria are a clear attack on labour.

“The second part, however — they’re calling meaningful process for collective bargaining — is just an effort by this government to undermine collective bargaining by redefining, for example, binding arbitration, to create conditions like the government’s ability to pay, which is meaningless,” Coon said.

“That’s just a political clause being put into legislation. I have great difficulty with the second part. It’s an attack on labour. The first part is really just a question of getting the details right to ensure that what the court ordered is done appropriately.”