Update on Health Authorities Act (Bill 1) Arbitration Process

Good afternoon,

As you are likely already aware, the arbitration process for the new Health Authorities Act (more commonly referred to as Bill 1) concluded in mid-December. Arbitrator James Dorsey was granted an extension on his deadline, which means we likely will not receive his written decision until Monday, January 19th at the latest.

In the interim, the NSGEU is currently engaged in the final stages of arguments for the arbitration. Those arguments primarily surround the affidavit of Patrick Macklem, law professor at the University of Toronto. Macklem provided a detailed expert opinion which concluded that Bill 1 contravenes international labour principles. NSGEU requested Professor Macklem prepare an affidavit outlining his expert opinion, which was presented to Mr. Dorsey as part of the union’s case.

Macklem’s opinion states that the Act violates several international agreements to which Canada is a party, including the fact it:

1. “violates the rights of workers to establish and join organizations of their own choosing as guaranteed by International Labour Organization Convention No. 87, to which Canada is a party;”
2. “violates the right to form and join a union as guaranteed by the International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights to which Canada is a party;” and
3. “it is inconsistent with the European Convention on Human Rights and the European Social Charter.”

In mid-December, the NSGEU also provided an opinion by Dalhousie University law professor Wayne MacKay, an expert on the Canadian constitution, which stated that significant aspects of Bill 1 contravened the Canadian Constitution.

The other unions and the District Health Authorities have filed final arguments in December. The Attorney General for Nova Scotia filed its final submission and response to Macklem’s opinion on January 5th. The NSGEU now has until January 12th to make a brief reply to those responses. Mr. Dorsey will render his decision on or before the 19th of January, and the NSGEU plans to immediately make that decision available to all members. (Note: we are trying to find out what time Mr. Dorsey plans to release his decision, so we can arrange to hold a meeting with members as soon as possible. Once we make those arrangements, we will sent a follow-up email with the meeting time.)

During the arbitration hearing, the NSGEU argued that aspects of Bill 1 contravened the constitutional rights of health care workers by not allowing them to choose who would act as their bargaining agents. The NSGEU argued that all health care workers should be given a vote to decide which union will represent them in bargaining. The NSGEU also said throughout the hearing that it would be willing to work in a bargaining association model where all unions maintain their current members, but bargain together.

CUPE and Unifor agreed that the law contravened the constitution, but argued against a vote and said that the arbitrator should create bargaining associations.

The NSNU argued that the arbitrator must follow the law and award the NSNU all the Registered Nurses (RNs) and Licensed Practical Nurses (LPNs) in the province without a vote, as Bill 1 requires.

The provincial government, represented by the Attorney General, initially argued that the arbitrator wasn’t able to determine whether its law breached the constitutional rights of health care workers. The Attorney General disagreed with the experts brought forward by the NSGEU and attempted to argue that the Health Authorities Act did not contravene the constitutional rights of 24,000 health care workers.

Governments are able to contravene the constitutional rights of their citizens in Canada if the breach can be shown to be justifiable and in the interest of the public. It is significant to note that during arbitration, the provincial government declined to make arguments to attempt to demonstrate that breaches of the constitution by the Act were justifiable. In other words, should the arbitrator conclude the Act does breach the constitutional rights of workers, there was no argument put forward by the province that the potential breaches were justifiable.

We understand this is a very stressful time in the workplace, and hope that this information may help to alleviate some of the anxiety you may be feeling. Please share this information with your coworkers, and keep watch for another email as we draw closer to the January 19th decision deadline. If you have any questions or concerns, please contact the NSGEU by calling 902-424-4063 (toll-free 1-877-556-7438) or emailing inquiry@nsgeu.ca.

In Solidarity,

Joan Jessome

President, NSGEU