Three unions representing nursing home workers in New Brunswick have filed a court challenge to legislation they say places unfair limits on their ability to strike and access binding arbitration.
The lawsuit was filed on Friday in Fredericton by the New Brunswick Council of Nursing Home Unions (NBCNHU), the New Brunswick Union and the New Brunswick Nurses Union.
It alleges that 2019 amendments to the Essential Services in Nursing Homes Act (ENSHA) limits their ability to effectively strike, while also putting in place a process that makes binding arbitration nearly impossible to access.
“The ESNHA’s restrictions on access to interest arbitration are designed to maintain an imbalance in negotiating power in favour of nursing home operators,” the lawsuit says.
“In turn, this imbalance favours the province, which is a principal source of funding for salaries paid to nursing home workers.”
Simon Oullette, a spokesperson for the Canadian Union of Public Employees (CUPE) New Brunswick, which represents the NBCNHU, says they are hoping for the courts to either declare the law invalid or provide an interpretation that gives workers easier access to binding arbitration.
“The process is so wonky and so badly written, to be frank, it’s not clear how we get there, and it appears to us in practice that we’re denied, in practice, access to binding arbitration,” he said.
The act sets out the process for determining what number of workers are deemed essential and must stay on the job in the event of a strike.
The amendments to the ENSHA were put in place in 2019 after the courts found the previous version of the legislation unconstitutional. The courts ruled that the high level of essential designation did not allow workers to stage effective job action and that it lacked another dispute-resolving mechanism, such as binding arbitration.
The amendments overhauled the essential worker designation process and added binding arbitration. At the time, unions opposed wording that asked an arbitrator to consider the employer’s ability to pay. But Oullette said that, as workers have entered bargaining once again, it has become clear that access to the arbitration process in general is severely lacking.
“They made some cosmetic changes to the law to make it appear that we did have access to binding arbitration, but in practice, after all these years, we find out this makes no sense. We cannot get timely access to binding arbitration compared to if we just had the regular right to strike,” he said.
The lawsuit alleges that the process to qualify for binding arbitration is unreasonable. It says the ENSHA only allows the union to apply for binding arbitration if the parties are unable to reach an agreement on essential services designations.
If they agree on a designation and are later unable to reach a contract at the bargaining table, they are unable to file for arbitration.
“There is no rational connection between access to interest arbitration and the question of whether designation levels were set by agreement or determined by the Board,” the lawsuit says.
“Indeed, in no other province does access to interest arbitration for essential workers depend on whether their designation levels are set by agreement or otherwise.”
Global News requested comment from the province but did not receive a response.
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