Unions slam binding arbitration changes for police and firefighters as 'unconstitutional'

New Brunswick Labour Minister Trevor Holder has introduced legislative amendments to the binding arbitration process for police officers and firefighters that would take into consideration a municipality's ability to pay for any increases.

The province's eight cities have been calling for the change, arguing the existing process is "broken" and has created a financial burden for them.

"Municipalities have observed that the wages and awards determined through arbitration are higher than wages and awards arrived at through the free collective bargaining process," Holder said in a statement Friday.

Bob Davidson, a labour analyst with the New Brunswick Police Association, called the bill "unconstitutional." He pointed to the New Brunswick's Court of Appeal's recent decision that could allow 4,100 nursing home workers to go on strike in January.

"The Supreme Court has ruled that freedom of association includes the right to strike or fair independent binding arbitration," Davidson told reporters outside the legislature.

"This is not fair independent binding arbitration. This is about suppressing and denying police and fire fair wage increases."

Under the Industrial Relations Act, police officers and firefighters do not have the right to strike and their employers do not have the right to declare a lockout.

When negotiations fail, arbitration is used to reach a new collective agreement.

The proposed amendments to the Industrial Relations Act would require the arbitrator to, among other things, take into consideration:

• The results of a comparison of the terms and conditions of employment of the police officers or firefighters to other employees in the public and private sectors.

• The results of a comparison of collective bargaining settlements reached by the same local government and comparable local governments, including those reached by employees in bargaining units to which the act applies, and the "relative economic health of the local governments."

• The "economic health" of the province and the local government, including, but not limited to, changes to labour market characteristics, property tax characteristics and socio-economic characteristics.

• The employer's ability to attract and retain qualified police officers or firefighters.

• The interest and welfare of the community served by the police officers or firefighters.

• "Any local factors affecting the community."

"We saw all these politicians with crocodile tears when two of our members got shot and killed," said Davidson, referring to Fredericton Police Force constables Robb Costello and Sara Burns, who were gunned down on Aug. 10, 2018, along with citizens Donnie Robichaud and Bobbie-Lee Wright.

"Now they want to screw … the binding arbitration process that gets fire and police fair wages."

Davidson said the unions were blindsided by the bill because they were not consulted.

But Holder said he met with labour leaders on Thursday to advise them the legislation would be introduced on Friday and say there would be a public consultation process.

"This is not being rammed through," he said. "This is not happening overnight. This is going to be a thoughtful, respectful conversation."

The bill will be referred to the standing committee on law amendments to provide the public, municipalities and the fire and police unions the opportunity to comment on the proposed amendments, likely in January or February, he said.

"This is an opportunity for all of us as New Brunswickers to have an open honest and respectful debate on this issue."

'Not good governance'

Davidson argued the government put the "cart before the horse."

"The proper way of parliamentary procedure is you have an all-stakeholders committee, you have discussions. Then after that, if you need, you introduce legislation."

Asked whether the union would consider court action if the bill is adopted as is, Davidson said, "We will be looking at every avenue."

Glenn Sullivan, president of the Atlantic Provinces Professional Fire Fighters Association, agreed stakeholder input should not occur at the law amendments stage.

"It needs to be done prior to, to actually determine if there's any issue that should be brought forward as legislation," he said. "To come forward with legislation now with only listening to one side, I think is not good governance."

Both union leaders contend the existing process allows municipalities to argue ability to pay and that "most" collective agreements over the past 20 years have been reached through negotiation, not binding arbitration.

"So to indicate that the system is broken doesn't hold true with us," said Sullivan.

Miramichi Mayor Adam Lordon, who got into a terse exchange with Davidson following the tabling of the legislation, disagrees.

"We [the municipalities] obviously have a difference of opinion with the union reps and we hope we can have a civilized and fact-based discourse," Lordon told reporters.

"Our position as municipalities across this province is that the current criteria is not fair and balanced.

"We believe that for the province to grow and to thrive we need communities across the province that are doing the same. So this was one of a number of priorities that we've been advocating for over the last year-plus now."

PCs opposed Liberal bill 3 years ago

Liberal MLA Keith Chiasson said he thinks "there's good arguments on both sides."

"Obviously the first [responders] they give essential service. We understand the municipalities have to juggle rising costs, but they do have a responsibility to offer that service on their territory. So we're looking forward to see what both sides are going to say during committee," he said, adding his party is not ruling out supporting the bill.

The previous Liberal government abandoned plans to implement changes to binding arbitration in 2016 amid labour opposition.

The Progressive Conservatives also opposed the changes at the time. Holder said he spoke against the changes in 2016 because there was no consultation. His party's approach will allow for a "robust, open public debate," he said.

Discretion will be 'severely limited'

The Canadian Union of Public Employees New Brunswick and the New Brunswick Committee of Municipal Employees issued a joint statement Friday, opposing the bill.

"The neutral third party's discretion will be severely limited to compensate for municipal councillors' fiscal blunders," said CUPE NB president Brien Watson.

"This is what is happening in Saint John, where they want to make front-line workers pay for council mistakes in issuing massive corporate tax exemptions."

Marc Doiron, a CUPE Firefighter and Municipal Committee representative, described the bill as an "unnecessary remedy to an imagined problem."

The legislation will have "a perverse effect, because municipalities will have zero incentive to negotiate fairly," he said.

Other proposed changes

Under the amendments, the binding arbitration process would be conducted by a single arbitrator instead of the current three-member board that includes representatives of the union and municipality.

In addition, the parties would be required to provide the arbitrator with documentation of their issues in advance of the hearing, and the arbitrator would be required to, upon request of either party, provide written reasons to show how various criteria were considered.

More details on the process to be used by the standing committee on law amendments will be available in the coming weeks, Holder said.

Councils in Fredericton, Edmundston, Campbellton, Bathurst, Dieppe, Miramichi, Moncton and Saint John all voted earlier this month to support the changes for when a municipality and fire or police union can't reach a negotiated contract.

Contracts with firefighters in Fredericton, Moncton and Saint John are set to expire at the end of the year.

The province committed to consider reform as part of a report on Saint John's fiscal sustainability earlier this year.