Labour board dismisses CUPE complaint after some workers ordered back to work

A New Brunswick labour tribunal has dismissed an emergency complaint filed by the Canadian Union of Public Employees after the province used a COVID-19 emergency order to force health-care workers off the picket line.

On Friday, Public Safety Minister Ted Flemming said cabinet was using the Emergency Measures Act to issue an order forcing more than 3,000 striking health-care workers to go back to their jobs.

Over the weekend, the affected custodians, patient services workers and laundry workers went back to work while their union challenged the order with the New Brunswick Labour and Employment Board.

According to board ruling filed Sunday, CUPE alleged the province was trying to "compel, by intimidation or threat," employees who are not designated essential to stop striking.

In its response, the province first said the labour board lacked the jurisdiction to consider the mandatory order. The province also said the order is lawful and denied CUPE's allegations.

The order does not note the reasons why the complaint was dismissed, except to say the chair was not satisfied that the province violated the Public Service Labour Relations Act.

The full written reasons are typically completed weeks after the decision itself is made.

On Saturday, CUPE president Steve Drost said the union's lawyers are looking into how they could challenge it.

"It's simply a tool that was used to interfere with these members' legal rights," Drost said of the back-to-work order.

Higgs ready to defend use of emergency act

Asked how the province would respond if CUPE went to court over use of the emergency act, Premier Blaine Higgs said the province would continue to defend the "health and safety of our citizens."  

"It's just unfortunate that CUPE would continue to challenge us in court when we have an Emergency Measures Act in place, when we have a pandemic [in] the fourth wave," Higgs told reporters Monday.

"We have situations in our hospitals that need to be addressed and we were cancelling elective surgeries and starting to get to a point where we could go beyond that.

He said he found CUPE's position hard to understand, but if the union continues to challenge the back-to-work order, "we will defend it fully in the courts."

Offer, counteroffer, pension impasse

On Thursday night, the province made CUPE officials an offer that's closer to what the union has been asking for when it comes to wage increases.

The offer includes a two per cent increase over five years, plus a 25 cent increase per hour over the same number of years. 

The province's offer also includes a memorandum of agreement, where to move forward, both sides would have to agree to allow pension representatives to find a "new retirement vehicle" for two locals. 

Higgs said Monday that the government proposal of wage increases totalling 15 per cent over five years reflected the  good work of employees.

"This offer reflects what people have done throughout the pandemic," said Higgs.

The two locals, one representing school support staff such as bus drivers, and the other representing educational and clerical assistants, are the only ones remaining with no shared-risk pension plan.

READ: The province's new emergency order forcing health-care workers back to work

The transition to shared-risk pension plans has been contentious. In 2016, CUPE joined a lawsuit against the "unilateral conversion" of the province's public service pension plan into a shared-risk plan.

A shared-risk plan means an employee's retirement payout could increase or decrease depending on how their pension plan is performing.

"The rights of CUPE members and many other public-sector workers were violated when the government unilaterally imposed pension changes on workers, in violation of their right to free collective bargaining," Daniel Légère, then-president of CUPE New Brunswick, said in 2016.

Drost posted a video on Sunday explaining the counteroffer CUPE submitted in response. In it, he outlined wage increases that are almost identical to the ones the province was offering. However, the retirement-plan point in the province's offer would be "major concession" by the union.

Back-to-work emergency order and impact on strike, health care

The health-care workers were ordered back to work Friday after a full week of striking.

In one group, Local 1252 representing support staff and maintenance workers in hospitals, 70 per cent were designated essential and were still working.

However, the CEOs of the province's two health authorities said the system is close to a breaking point, and the remaining 30 per cent were needed urgently.

Over the week of the strike, COVID-19 testing and contact-tracing capacity was significantly reduced, with multiple vaccination clinics cancelled.

If workers don't report to work once ordered, the province could fine them between $480 and $20,400 for each day they don't comply, according to the new emergency order.

On Monday, a few days after the emergency order was enacted, Higgs said he's been impressed with the returning employees' work ethic.

"I've been so impressed with the people that have come back to work and have done so and integrated right back into the workforce as we thought or hoped they would, because they are our friends and neighbours."

That doesn't mean they're content, according to the union. Chris Curran, the president of Local 1251 representing laundry workers, said earlier that members were frustrated and angry with the use of the emergency order.

"Members feel like they've been cheated of their right to strike."