Judge reserves decision on labour board ruling allowing workers to strike

A judicial review of a labour board decision that allowed nursing home workers to strike was adjourned Friday until a Court of Queen's Bench justice delivers her ruling in July.

Nursing home workers are prevented from striking until the judicial review is done. Depending on what the judge decides, workers could be barred from striking for up to a year.

On Friday, Justice Tracey DeWare said she will give her decision on the morning of Wednesday, July 5.

The judicial review was requested by the province in challenging a labour board decision by Robert Breen.

Christian Michaud, the lawyer for the attorney general, told the court that Breen's ruling to declare parts of the Essential Services Act unconstitutional was inappropriate.

The Breen decision found the act to be unconstitutional because it limits bargaining power. Michaud argued Breen didn't have the power to do this.

He also said Breen could have ruled on a lower percentage instead of throwing it out.

"He could have crafted a relief, a remedy," he said.

If the judge upholds the Breen decision, Michaud said she should grant a 12-month suspension of the ruling, which would effectively stop nursing home workers from striking for that duration.

He told the judge the New Brunswick court will be one of the first in the country to clarify exactly how much authority an administrative tribunal has.

CUPE looks at ability to bargain

CUPE lawyer Joël Michaud said the Breen decision should be upheld and left alone.

Joël Michaud argued there's jurisprudence that says there's no need for the court to decide whether a labour board has enough authority to make these decisions

Citing case law, he said the board has not only authority, but duty.

On the heels of the the Breen decision, about 4,100 unionized workers employed at the province's 46 not-for-profit nursing homes voted overwhelmingly in favour of a strike in early March.

But shortly after the union gave strike notice, the province went to court to obtain a stay. Despite several twists and turns since, that order has been maintained.

"A removal of that right to strike would weaken the position of the union at the bargaining table to an extent that it would remove its ability to bargain collectively," Joël Michaud told the court Friday.

'No chaos'

DeWare asked him what plan he has if she upholds the Breen decision. She said "we're all in agreement that we do not want chaos."

Joël Michaud said if the Breen decision is upheld, there will be no chaos, because if there were a strike it would be short and effective.

There is no error in Breen's decision that would justify the court to intervene, he said.

During the province's arguments, DeWare noted that if 90 per cent of workers have to stay on the job, there's not much impact on operations. She said it's because that's what's happening in nursing homes on any given day, considering worker shortages.

Christian Michaud pushed back on this point, repeating the point that Breen should have just lowered the percentage.

"Instead of doing that, he chose the path of going deep in the woods … and getting lost in doing so," he said.

Michaud also noted the Essential Services Act is there to protect the most vulnerable in the province.

Saskatchewan precedent?

The Breen decision came after a landmark Supreme Court case striking down an essential services law in Saskatchewan.

Speaking to Christian Michaud, Justice DeWare said the Saskatchewan legislation is very similar to what was being addressed in court Friday.

Michaud said he doesn't agree. In Saskatchewan, the essential services legislation prevented all strike activity from taking place, which is not the case in New Brunswick. Here, there are percentages, he said.

"It's completely, utterly different," he said.

How we got here

In 2013, after the union and employer couldn't agree on which workers should be considered essential in a strike — a requirement of the province's newly introduced essential services legislation — it was up to the labour board to make a call.

The board ruled 90 per cent of licensed practical nurses and resident attendants were essential to the safety of nursing home residents, meaning in the event of a strike, they'd have to stay on the job.

The union was already challenging the constitutionality of the essential service legislation itself, and seeing such a "high" number of employees designated essential ended up playing in its favour.

But it has taken years for these arguments to be heard.

Faced with the possibility of all unionized workers walking off the job, leaving residents' care in the hands of managers and registered nurses alone, the province asked for a judicial review of the labour board decision.