Arbitrator fails to choose which unions will represent which workers
Nova scotia's Bill 1, also known as the Health Authorities Act, will be tabled once again in the legislature after an arbitrator failed to assign a representative union.
Intended to streamline the collective bargaining process and cut costs, the legislation has faced significant setbacks. Most recently, the arbitrator assigned to resolving the legislation’s implementation was dismissed.
The legislation — passed on Oct. 3, 2014 — will see the province’s nine district health authorities merged into one provincewide employer and one standalone entity (the IWK Health Centre, as a regional facility supported by other provinces, will remain separate).
Nova Scotia’s 50 bargaining units will be reduced to four, with each unit representing all health-care employees in each of the nursing, health care, clerical or service staff factions.
Unions representing the provinces’ approximately 24,000 health care workers — the Nova Scotia Government and General Employees Union (NSGEU), the Nova Scotia Nurses’ Union, the Canadian Union of Public Employees (CUPE) and Unifor — represent the same occupations. This has created issues in the process of carving up membership for Bill 1.
"For a long time, labour relations has been a barrier to the changes we need to make in Nova Scotia’s health care system," said the province's health minister Leo Glavine. "This legislation will ensure that representation is clear as we move forward into the new provincial health authority."
James Dorsey, an arbitrator for 37 years, was recommended by the four unions to resolve the issues surrounding the legislation and accepted by the employer, the Health Authorities of Nova Scotia.
On Feb. 20, Dorsey’s decision named NSGEU as the official representative for the health care bargaining unit.
Dorsey did not assign the nursing or support units, but he did suggest NSGEU represent the clerical unit following a pending union merger. Dorsey said he would return in April to address the remaining bargaining units.
But according to Glavine, Dorsey’s services won’t be necessary.
The same day of Dorsey’s decision, Glavine announced plans to introduce additional legislation to determine union representation for the three remaining bargaining units.
"Our new provincial health authority begins operation April 1," Glavine said. "We need a streamlined labour relations system in place, so that the health authority can focus on making the changes needed to improve health care and reduce wait times. The arbitrator’s mandate has expired; we need a decision on representation, and the arbitrator did not provide it. That’s what legislation will do."
This new legislation will not affect the April 1 launch date, he said.
Dorsey’s orders about the health-care bargaining unit, seniority, the number of bargaining units and collective agreements, however, will all be respected.
According to Glavine, the government is considering all options for the new legislation, which will be introduced in the spring sitting of the legislature.
Less than a week later — on Feb. 25 — Dorsey issued another order, awarding the clerical bargaining unit to NSGEU.
"This respected arbitrator has had the courage to stand up in the face of a government that is bound and determined to undermine the constitutional rights of workers," said NSGEU president Joan Jessome in a statement.
"We hope that… government will finally focus their energies and efforts on improving health care, rather than meddling in labour representation."
And while the government’s decision to introduce additional legislation is uncommon, Peter McLellan said, that’s not to say it can’t be effective.
"It’s unique legislation," said McLellan, a partner at Stewart McKelvey in Halifax. "The prospect of new legislation here is most unique because the arbitrator that was agreed to by the parties under the legislation to attempt to mediate — and then failing mediation, to arbitrate — created a couple of unexpected and perhaps unsupportable conclusions."
Furthermore, McLellan said, Dorsey failed to establish union representation for all four bargaining units within the allotted time period.
"Absent the agreement of the parties," he said, "there’s no authority for the arbitrator to do anything beyond the expiry date. Just like the milk in my fridge."
The government’s response to these issues was to address them through legislation.
All four unions involved have expressed or reserved the view to challenge Bill 1 under the freedom of association rights clause in the Charter of Rights and Freedoms, McLellan said.
NSGEU has also spoken out against the government’s proposed additional legislation, saying, "The NSGEU is prepared to take such unconstitutional legislation to the courts immediately."
The irony, McLellan said, is that the government’s efforts to streamline and cut costs could lead to a convoluted and expensive court battle. And while McLellan admitted there is "lots to be said by both sides," he believes the controversy surrounding the legislation is leading to misinformation.
"Under this health care legislation — under the existing form and what’s likely to come — it suspends the right of employees to choose alternate unions only really for the period of the first collective agreements," he said.
"Come three years down the road if the health care employees prefer to be represented by CUPE, they have the right to go through the process with the labour board the change to CUPE, or to any other union. And that applies to all four of the bargaining units."
McLellan continued, "I think the government objective here was to create a period of stability to get things started. Then, after that period of time, the otherwise normal processes would apply to employee and unions."