Nursing home workers barred from strike until court hears province's appeal

New Brunswick's premier rejected calls by opposition parties for binding arbitration to settle a contract dispute involving thousands of nursing home workers hours after a court granted an order preventing union members from striking in the near future.

A Court of Appeals judge decided the court will hear a case about whether a lower court judge wrongly denied the province's request for an order effectively preventing the workers at 46 nursing homes from striking.

Justice Raymond French ruled he had sufficient doubt about the correctness of a decision by Court of Queen's Bench Justice Paulette Garnett. The lower court judge ruled Monday against the province's request for a stay of a disputed labour board ruling until a judicial review can be completed.

French also agreed to a requested order that continues to keep the province's Essential Services in Nursing Homes Act in force until the appeal is heard April 17. 

"I am convinced that a stay is appropriate," French said.

• Nursing home workers barred from strike until after Thursday 
• Hundreds of nursing home workers, supporters demonstrate

He said if Garnett's decision is upheld by the appeals court, the order will end. If it is overturned, the stay order will continue until a judicial review of the 2018 labour board ruling is done. 

Jodi Hall, executive director of the New Brunswick Association of Nursing Homes, said she was pleased with the outcome. The group represents the homes involved in the contract dispute.

"It's critically important to us that we put the residents first in this matter, and we feel that the decision allows that," Hall said.

The court ruling leaves the sides awaiting the outcome of another court hearing with no collective agreement negotiations scheduled.

Union leaders expressed frustration following the ruling.

"This can't go on forever," said Sandy Harding, the regional director of CUPE Maritimes. 

The union, together with the Liberals, Green Party and People's Alliance called on the Higgs government to support binding arbitration to settle the labour dispute.

"We want to take the extraordinary step of coming out with the Greens on this and saying the government has to move on this," People's Alliance Leader Kris Austin said at a joint news conference Thursday with Green Party Leader David Coon.

Blaine Higgs rejected the idea, saying it wouldn't make financial sense given how many other union contracts are up for renegotiation. 

"That's not going to fix this," he said. 

The workers, which include licensed practical nurses, resident attendants and support service workers, have been without a contract for more than two years.

They voted overwhelmingly in favour of a strike two weeks ago and gave strike notice. This was followed just hours later by a temporary court order making a strike illegal.

What has followed since has been a back-and-forth court dispute between lawyers for the union and those for the province as well as protests by union members. 

In a nutshell, the union argues that going on strike is a constitutional right, without which effective collective bargaining cannot happen. The province argues nursing home workers are essential, and the risk they'd go on strike could cause harm to residents.

Garnett had sided with the workers, based on the no-strike order having been obtained without the union lawyers present.

She also reasoned that while the question of how many nursing home workers are essential is still one that has to be resolved in the courts, it could take years and would be unfair to deprive workers before then from going on strike.

Monday's court victory was short-lived though. Almost immediately after the decision, the province served the union papers, saying it was seeking to appeal the decision.

French granted another stay, preventing a strike before he heard arguments for the leave to appeal.

"I feel he made the decision he felt was accurate in the circumstances," Joël Michaud, lawyer for the union, said outside the courthouse. "It's certainly not the decision CUPE was looking for."

The province had requested an extended stay until a judicial review set for May 24 in Moncton of a labour board ruling. The board decision called the province's law deeming nursing home workers an essential service unconstitutional. 

'Desperate'

The union's lawyer said it's been frustrating to be forced back to court repeatedly by the province.

"They're sort of desperate to have the courts stop the union and its members from engaging in strike action," Joël Michaud,

Michaud has been arguing the right to strike is mostly a bargaining tool. Without it, the union would be powerless at the table, and the province would have no reason to give in to union proposals.

"In this context, there could never be an end in sight," he said.