CUPE takes province to court over back-to-work emergency order

The Canadian Union of Public Employees is taking the province to court for ordering more than 3,000 striking, non-essential workers back to work using emergency legislation.

In a filing for a judicial review Monday, CUPE alleges the emergency order is unconstitutional. CUPE is asking a judge to quash the emergency order, which they allege contravenes the workers' right to freedom of association or to belong to a certain organization.

Last week, Public Safety Minister Ted Flemming said cabinet was using the Emergency Measures Act to issue an order forcing the health-care workers to go back to their jobs. The order says if a person fails to comply with it, the "employee organization" they're a member of would be fined a minimum of $100,000, with no maximum limit, for each day they don't comply.

CUPE application says the fines exceed what's allowed through the Emergency Measures Act, and constitutes "cruel and unusual punishment", which also contravenes the charter. 

Health authority CEOs said order was necessary

The CEOs of the two health authorities said the system had reached a breaking point with not enough custodians and workers to keep the trash cans empty and the bed sheets clean.

Several COVID-19 testing and vaccination centres were also closed because of lack of staff, according to the province.

One local has about 70 per cent of its workers designated essential and therefore not on strike, but the province and health authorities said that number was still not enough to keep the system functioning and people safe.

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

The board dismissed the complaint, saying there wasn't enough evidence to prove the province broke the law by forcing workers off the picket lines.

The next day, CUPE filed the lawsuit.

The province has not filed a statement of defence and no date has been set to hear the case. 

'We will defend it fully in court'

Premier Blaine Higgs said Monday the province is prepared to spend as much money as it needs to in order to "keep the health and safety of our citizens first and foremost."

"It's just unfortunate that it would continue to challenge us in court when we have an emergency measures act in place, when we have a pandemic on the fourth wave and we have situations in our hospitals that need to be addressed," he said in a news conference Monday. "We were cancelling, you know, elective surgeries and starting to get to a point where we could go beyond that.

"It's kind of hard to imagine that the CUPE leadership would take a position that they are, but I assure you, we will defend it fully in the courts."

The remaining locals not involved in the back-to-work order remain on strike, including certain school staff and transportation workers.