Province says essential services law constitutional, in reply to nursing home workers lawsuit

The New Brunswick government says an essential services law is constitutional and that a lawsuit by nursing home workers challenging it is premature.

In August, three unions representing thousands of workers filed a lawsuit alleging the province's Essential Services in Nursing Homes Act is unconstitutional by denying the right to strike and restricting access to arbitration.

The law, originally passed in 2009, sets out how some workers would be designated as essential and unable to strike. 

The challenge centres on amendments passed in the wake of an attempt by nursing home workers to strike in 2019.

The three unions allege the law and its amendments were designed to maintain an imbalance in negotiating power in favour of nursing home operators, which are funded by the provincial government. 

The province didn't comment on the case when the case was launched, but has laid out its position in a five-page statement of defence filed Dec. 4.

"The Province denies that the amendments are constitutionally invalid and states that the amendments are compliant with the Canadian Charter of Rights and Freedoms," the statement says. 

It says that in the event a judge finds the law infringes on the charter, it is a reasonable infringement allowed by Section 1 of the charter which sets out that rights are not absolute.

The law sets out how the sides establish how many workers will be deemed essential.

If they can't reach an agreement, the law calls for mandatory mediation. If that is unsuccessful, the New Brunswick Labour and Employment Board will consider the issue and establish essential service levels.

The case was filed by the New Brunswick Council of Nursing Home Unions, the New Brunswick Union, and the New Brunswick Nurses' Union, which together represent about 5,000 workers. 

The province's filing says the lawsuit is premature because some of those steps have yet to occur, and the nurses union collective agreement has yet to expire. 

The 2019 amendments came after nursing home workers represented by the Canadian Union of Public Employee voted to strike. 

The province secured a court order preventing a strike. A series of court hearings led to a ruling calling the original law unconstitutional because it imposed unjustifiable limits on workers' ability to strike.

The provincial government then amended the law, amendments the unions allege were in bad faith.

The unions asked the court to rule the law of no force and effect.

The province asks for the case to be dismissed.

The allegations in the case remain untested in court. It's unclear when the case will be heard in court.

The province declined to comment on the case Tuesday.