Judge to rule Monday whether CUPE nursing home workers can strike

A judge will rule Monday on whether to grant an order that could prevent thousands of New Brunswick nursing home workers from striking over the next few months.

Members of the Canadian Union of Public Employees at 46 non-profit nursing homes voted overwhelmingly in favour a strike mandate March 7. The province received a 10-day stay on March 9, a court order that effectively prevented a strike.

The province asked Court of Queen's Bench Justice Paulette Garnett at a Friday hearing in Fredericton for an order extending the stay until a judicial review of a contested labour board ruling is complete.

The union representing 4,100 licensed practical nurse, resident attendants and support workers opposed the stay. Joël  Michaud, a lawyer for the union, argued it would remove its ability to strike. 

"Without a right to strike, collective bargaining becomes collective begging," Michaud said.

Garnett told the lawyers she intends to issue her decision Monday afternoon.

The court wrangling goes back to the province's 2009 Essential Services in Nursing Homes Act, a law that deems the workers an essential service.

The hearing delved into a December 2018 labour board ruling and whether it would allow workers to walk off the job. The ruling by board chair Robert Breen called the law unconstitutional and resulted in the union saying its members could all strike.  

New Brunswick Association of Nursing Homes lawyer Justin Wies said it could result in "chaos" at the homes as registered nurses and managers, who aren't part of the union, would be left to care for residents.

"We're asking this court to maintain legislation, to maintain stability," said Christian Michaud, a lawyer for the province.

The essential services law called for the Association of Nursing Homes and union to agree on how many workers would remain on the job in the event of the strike. The province's labour board settles disputes.

York Care Centre in Fredericton was picked to serve as a template for the 45 other homes. The labour board ruled 90 per cent of licensed practical nurses and resident attendants would be essential in 2014. But the union challenged the law's constitutionality, resulting in the board's December decision.

As the sides reached a deadlock in collective agreement talks last month, Breen was asked to clarify the effects of his decision. In an order issued last week, Breen essentially tossed out the York Care Centre case. The union said this clarification would allow all 4,100 workers to strike.   

'Significant errors in law'

Following Breen's clarifying order, the province announced it would seek the judicial review and a stay of its effects. The judge indicated the judicial review may be heard in May. 

The province's lawyer argued Breen made "significant errors of law," such as not delaying the effect of his ruling to give the legislature time to address the constitutionality issue.

Joël  Michaud said if the judge does decide to grant the province's request for a continued stay, it should be as short as two weeks.

The union also sought to have a 10-day stay granted by Chief Justice David Smith rescinded. The union has decried the interim stay, which was granted without a lawyer present for the hearing.

CUPE's lawyer told reporters the judge's ruling coming Monday, hours before the 10-day stay expires, makes the request to rescind the order moot.

Talks paused

This week the sides returned to the bargaining table. Talks stopped Thursday with the union rejecting what the province called an "enhanced offer." The union said the employer offered a three-year contract that included a one per cent annual wage increase, similar to a tentative agreement rejected last year.

Dorothy Shephard, the province's minister of Social Development, said she wants an agreement that's fair to workers and to taxpayers. She said the union's initial's proposal seeking a 20 per cent wage increase over four years was too high. CUPE confirmed it was part of an initial proposal from its bargaining team.

A spokesperson for her department said a one per cent increase in wages would cost the province an additional $1.43 million per year.

CUPE spokesperson Simon Ouellette said an increase of five per cent a year would be "a real wage increase," when the inflation rate is factored in. The one per cent a year proposed by the nursing homes would not amount to a real increase, he said.

The inflation rate, which is a measure of the cost of living, was 1.4 per cent in January. Last year, it was above two per cent and as high as three per cent at times.