New Brunswick

Nursing home workers file court challenge of N.B. law restricting strike ability

Unions representing thousands of New Brunswick nursing home workers are going to court to challenge a provincial law they say unfairly restricts their ability to strike.

3 unions challenge constitutionality of law passed in 2019

A clenched yellow fist sign held aloft.
A person holds a CUPE NB sign during a rally in Moncton this week. (Shane Magee/CBC)

Three unions representing thousands of New Brunswick nursing home workers are going to court to challenge a provincial law they say unfairly restricts their ability to strike.

The legal challenge filed Friday in Fredericton court alleges the Essential Services in Nursing Homes Act is unconstitutional by denying the right to strike and limiting access to binding arbitration.

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 filing states the law's "restrictions on access to interest arbitration are designed to maintain an imbalance in negotiating power in favour of nursing home operators. In turn, this imbalance favours the province, which is a principal source of funding for salaries paid to nursing home workers."

The New Brunswick Council of Nursing Home Unions represents 4,600 Canadian Union of Public Employees members in 51 nursing homes across the province. The other two unions represent about 1,000 other nursing home employees. 

Simon Ouellette, a spokesperson for the Canadian Union of Public Employees in New Brunswick, said in an interview that they hope the court expedites the case. 

The Essential Services in Nursing Homes Act originally passed in 2009, setting out that some workers would be designated essential and unable to strike.

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

After workers voted to strike, the province secured a court order blocking it from happening.

Court challenges unfolded which resulted in a 2019 court decision that found the law unconstitutional because it imposed unjustifiable limits on the ability to strike. The decision gave the province six months to amend the law. 

Amendments passed at the end of 2019 created a new mechanism to determine what percentage of a home's employees should be deemed essential.

It also added a binding-arbitration clause which says an arbitrator must take into account the government's ability to pay. 

The filing argues the amendments make binding arbitration available in theory, but not in practice. 

"Amending the Act in this way was clearly wrong, in bad faith, and an abuse of power," the filing says. 

The unions allege they weren't consulted in advance of the 2019 amendments. 

"The result is an amended Act which, in purpose and effect, continues to substantially interfere with a meaningful process of collective bargaining," the filing states.

Various people in red scrubs hold signs with "SCFP" and statements in French as others in the background wave flags.
Nursing home workers rallied outside the constituency office of Ernie Steeves, the New Brunswick finance minister, earlier this week. (Shane Magee/CBC)

The filing comes just days after union members rallied in Moncton, saying the contract they've been offered is insulting. 

The union members said management's proposal was for a five-year contract with hourly increases that total $1.24 for most workers. The union is seeking a three-year contract with increases totalling $13 per hour.

ABOUT THE AUTHOR

Shane Magee

Reporter

Shane Magee is a Moncton-based reporter for CBC.