Essential services law in Nova Scotia should be repealed, group says

The Nova Scotia Federation of Labour will ask the province to repeal its essential services legislation after the Supreme Court of Canada ruled a similar law in Saskatchewan was unconstitutional.

Local labour representatives view the 5-2 majority ruling, which was released Friday, as a "historical decision," said the federation's president.

"We're hoping that the government will take a realistic read of this and look at revoking Bills 30 and 37 that we have before the courts," said Rick Clarke.

"If not, then I guess we'll be going ahead through to the courts, arguing that the Saskatchewan decision be given weight."

Kelly Regan, Nova Scotia's Minister of Labour, rejected that call on Friday and said Nova Scotia's laws are different from Saskatchewan's and she expects them to stand up in court. 

Legislation in the two provinces isn't identical, but each gives government the power to force workers into negotiations over which services are essential, limiting their right to walk off the job.

Nova Scotia's Bill 30, passed last March, ended a strike by hundreds of home-care workers after they were declared essential. A month later, Bill 37 ended a strike by nurses at the Capital District Health Authority while extending the essential services law to a much wider group of unionized health-care workers.

The province's health-care unions challenged the bill in court, arguing it interfered with their right to bargain collectively.

At the time the bills passed, Premier Stephen McNeil argued the right to strike was intact and that the changes were needed to protect patient safety.

'That's the game changer'

Nova Scotia's legislation has significant differences from Saskatchewan's, said Regan.

"Our legislation is limited to just the health and community services sector, but Saskatchewan's was applied to the entire public sector," she said.

"It was a very broad bill by comparison, and in terms of Saskatchewan's legislation, it allowed employers to dictate which employees would have to work, but in Nova Scotia we want both parties to agree on which parties are essential."

Involving third parties to settle outstanding disputes is also built into the Nova Scotia laws, Regan said.

Friday's ruling said Saskatchewan's law gave employers overly broad powers with little impartial review, but it upheld the principle of essential services.

"We have confidence in our legislation," Regan said.

There are some differences between the laws in Saskatchewan and Nova Scotia, said Clarke, but "we believe it's close enough that this is going to be very supportive to our case."

The decision clarifies that striking is a key part of freedom of association, requiring governments to impair that right "minimally," said lawyer Ron Pizzo of the Pink Larkin law firm, which is representing the Federation of Labour in its court challenge.

"They're telling you to analyze each situation, but they're telling you that in each situation the right to strike is fundamental," said Pizzo.

"Now that you have this very strong precedent which gives the unions a stronger hand, where now you're talking about a constitutionally protected right … that's the game changer."

The Nova Scotia court challenge, filed last spring, has been on hold pending the Supreme Court decision.

Newfoundland and Labrador and British Columbia also have essential services legislation.