Labour Lawyer Ray Larkin on Bill 1

Nova Scotia House of Assembly

Bill No. 1

An Act to provide for Health Authorities and Community Health Boards

Submissions of Raymond F. Larkin, Q.C. to the Law Amendments Committee

October 1, 2014

1. Bill 1 will result in a labour relations disaster in the Acute Care Sector in Nova Scotia. It will lead to years of unrest among healthcare workers and produce dysfunctional collective bargaining which will disrupt the orderly and efficient delivery of healthcare services to Nova Scotia.
2. Bill 1 is fundamentally flawed. It gives the District Health Authorities and the IWK Health Centre a say in a mediation process to select the Union in bargaining units of the merged Authority and the IWK, but gives the employees in those bargaining units no say at all.
3. Bill 1 gives the Employers a say in the arbitrator’s decision as to what union will represent what employees in each of the bargaining units but gives the employees no say. It mandates the arbitrator to determine the selection of the union in each of the bargaining units to be conducive to harmonious labour relations between the Health Authorities and their employees but does not mandate or even permit the arbitrator to consider the wishes of those employees as to the selection of the union who will represent them.
4. Bill 1 constitutes a form of conscription to require healthcare employees to accept union representation they did not choose and do not support.
5. This is completely foreign to the labour relations system under the Trade Union Act and in similar legislation across Canada and more broadly in the United States and Western Europe. All of these legal systems prohibit employee interference in the representation of employees by a trade union. Employers do not get a say in the selection of the union to represent employees in bargaining with the employer. If there is a choice to be made, under our system, the employees make that choice.
6. Starting with the Savage Government 20 years ago, there have been many re-organizations in the public sector in Nova Scotia.
7. The Regional Health Board’s Act in 1994 consolidated all of the hospitals in the province outside Halifax into four Regional Health Boards. The Act provided that Section 31 of the Trade Union Act applied to this consolidation and confided the labour relations issues resulting from it to the Labour Relations Board. The Board devised the bargaining units after hearing employers and unions and where there was an issue of representation, the Board ordered votes among the affected employees. The choice of bargaining agent was the employees’ choice.
8. In 1996 the Queen Elizabeth II Health Sciences Centre Act merged the Victoria General Hospital, the Halifax Infirmary, the Nova Scotia Rehabilitation Centre and the Cancer Treatment Centre into one entity. The Labour Relations Board devised four bargaining units and conducted a vote among the employees in each of those bargaining units to determine their issues as to the selection of bargaining agent.
9. During this same time frame, there was legislation which amalgamated municipal units to form the Halifax Regional Municipality and the Cape Breton Regional Municipality. Section 31 applied, the Labour Board determined the bargaining units and, where there was an issue as to which union would represent employees, the employees decided in a vote. The same thing happened in the Community Colleges Act, changes to the Education Act to create the Regional School Boards and later under the Health Authorities Act which divided the Regional Health Boards and created the District Health Authorities and Capital Health. In every case, the Labour Relations Board determined the bargaining units and conducted votes to determine the wishes of the employees. In no case did the Employer have a say in what union would represent employees in bargaining units.
10. Under the Trade Union Act, a union can only be certified as a bargaining agent with the support of a majority of employees voting in favour. To decertify a union, the Labour Board conducts a vote. To authorize a strike, the employees must vote. If one union seeks to displace another, the Labour Board holds a vote.
11. Section 83 of Bill 1 prohibits applications for certification, decertification and displacement of one union by another. Not only will the employees have no say in the selection of the union to represent them. They will never be able to change that union. It can never be decertified.
12. Freedom of association is a precious thing. It is a fundamental freedom. It is embodied in the preamble of the Trade Union Act. If Bill 1 is adopted, as proposed, that freedom will be denied to the employees of the merged Health Authority and the IWK Health Centre.
13. 24,000 healthcare workers will be denied a choice of the union to represent them. Thousands of these employees will be assigned to a union that they did not choose. This will create a recipe for labour unrest for years to come. The only freedom to decide left to these employees will be the freedom to reject collective agreements negotiated by their employers. The unions who are selected will be internally divided and incapable of delivering collective agreements which will be accepted by members conscripted by Bill 1.
14. Bill 1 will be a labour relations disaster. It should be amended to delete the entire mediation/arbitration process. The procedures in the Trade Union Act should be respected where there are genuine issues of representation, the Labour Board will have the employees decide who will represent them.