Graham Steele: Dorsey ruling unexpected by government, unions

The Dorsey arbitration decision was hugely anticipated. Both the McNeil government and the four health-care unions had a lot riding on the outcome.

For the government, reform of health–care administration is its signature initiative. It's what the first year of the McNeil government was all about. The reform has three parts:

• Lessen the impact of strikes by passing essential-services legislation.
• Streamline administration by merging the nine district health authorities.
• Simplify contract negotiation by reducing the number of health–care bargaining units.

This arbitration decision was the first independent ruling on any part of the reform package.

Thousands of members

For the unions, the law said the existing dozens of health–care bargaining units would be reduced to only four. It also said each union could represent only one of the bargaining units.

Depending on how Dorsey ruled, each union stood to gain or lose thousands of members. Over 24,000 workers were involved, making this the biggest union shake–up in a long time, maybe ever. The Nova Scotia Government and General Employees' Union, in particular, stood to suffer.

The government hoped, and the unions feared, that the legislation pretty much fixed who would get which bargaining unit. But Dorsey early asserted his independence: in a memorable phrase from his mediation report, he wrote "the mediator-arbitrator is not simply an usher showing everyone preassigned seating." 

So nobody knew exactly what would happen when the decision came down on Monday.

But nobody expected what did happen.

No decision

Jim Dorsey's ruling is 192 pages and 632 paragraphs long. It is not especially well written, even rambling in parts, with more typos than you would expect from a guy being paid $275 per hour.

I was with a group of reporters when they got the decision, and we did what reporters (and lawyers) always do: we flipped to the back page to see the bottom line. There wasn't one. We kept flipping, looking for something resembling a decision. We never found it.

The governments and the unions got the ruling ninety minutes before we did, and I imagine a similar scene played out in their offices.

No decision. No certainty.

Contrary to what everyone expected, Dorsey rejected any simple path to get to the four bargaining units. He'll keep working.

We still don't know, and may not know for quite some time, who will be in which union.

Politics abhors a vacuum

Politics abhors a vacuum, and so into the empty space rushed the combatants.

In the absence of an actual decision, everybody could see what they wanted.

The government quickly issued a news release claiming victory, but the release was simply wrong in its summary of what Jim Dorsey had just ruled.

The unions, too, said they were pleased with the result.

Despite the lack of clarity, the government can be satisfied with two aspects of Dorsey's ruling:

• The Health Authorities Act is constitutional. A finding of unconstitutionality would have been disastrous for the government. Yet even this ruling was not straightforward. The act is constitutional only if read the way Dorsey reads it, and his reading is not at all what the government intended.
• The basic legal structure laid down by the Health Authorities Act will be respected. There will be, when all is said and done, four bargaining units, each represented by one union.

But that's as far as the government's satisfaction can go.

A sharp reminder

Jim Dorsey is an experienced arbitrator. He has been around labour relations for a long time.

Reading between the lines, his essential message to the McNeil government is that he sees what they’re trying to do —assign all nurses to the Nova Scotia Nurses Union, and give the NSGEU a kick in the pants — and he won't let them do it.

His essential message to the unions is that they aren't being nearly creative enough.

It's almost like Dorsey's still mediating, even though the mediation phase is supposed to be over.

The McNeil government thought it had outfoxed the unions, and was waiting for Jim Dorsey to agree. Instead, Dorsey delivered a sharp reminder to both the government and the unions that there’s nothing simple about public sector labour relations.