Three things that tipped the scale for Nova Scotia's health-care unions

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Earlier this month, Nova Scotia's four major health-care unions announced that they would be forming bargaining councils to negotiate under a newly streamlined provincial health-care system, which comes into effect today.

For anyone who has been following this roller-coaster of a story, the announcement may have come as a surprise.

In a decision rendered only a few weeks earlier, arbitrator-mediator James Dorsey had awarded NSGEU two of four possible bargaining units. Unhappy with this decision, Health Minister Leo Glavin then announced that he would fire the arbitrator.

Then, after a weeks-long media blackout, on March 13, Nova Scotia's four health-care unions emerged from negotiations with the Province to announce that each of the four unions -- NSGEU, NSNU, CUPE and Unifor -- would continue to represent their members, but would bargain their agreements jointly using a council model.

In the end, after major protests, an arduous mediation-arbitration process, and media flurry, the worst parts of Bill 1, the Nova Scotia Health Authorities Act, which would have reassigned health-care workers to unions not necessarily of their own choosing, was more or less scrapped by the government.

The council model that has now been put in place looks a lot like the bargaining association model originally proposed by the unions, a model that the provincial government had initially rejected as unworkable. This is undoubtedly a win for labour.

So what the heck happened?

1. Jim Dorsey happened

The two parties agreed to appoint mediator-arbitrator Jim Dorsey, who is known for brokering deals between health-care unions and governments in other provinces.

In the two decisions he rendered, Dorsey made it painfully clear to the government that, as he put it, "the mediator-arbitrator is not simply an usher showing everyone pre-assigned seating."

Instead of doing the government's bidding which, in his opinion, would have violated workers' right to choose their own union, Dorsey looked for alternatives that would have remained true to the letter of the law.

When the government decided that they did not like those alternatives, they tried to fire him, and that turned out to be a big mistake. Huge.

"We had a Minister that fired an arbitrator; our lawyers could not find one place where the law allowed them to do that," said Unifor's Atlantic Director Lana Payne.

At the best of times, the ins and outs of this kind of legislative battle are difficult to follow. In this case, Nova Scotians were left scratching their heads, unsure of whether or not it was even legal for the government to fire Dorsey. Even Health and Wellness Minister Leo Glavin seemed to be confused about his own pronouncements.

"Mr. Dorsey is very respected and arbitration is a very respected process," said NSGEU President Joan Jessome. "The mess that the Minister of Health made of it, they really lost a lot of public support."

"The only person in the process that seemed to be not reasonable, was the Premier. But at the end of the day they came to their senses and saw the value of it," said CUPE Nova Scotia president Danny Cavanagh.

2. Supreme Court rulings happened 

From the moment that Bill 1 was introduced, the health-care unions denounced the legislation as unconstitutional. During the arbitration process, all four unions challenged the Bill, arguing that it was in violation of union members' Charter right to freedom of association.

In January, two significant Supreme Court rulings were made that enshrined union affiliation under the Charter of Rights and Freedoms.

Dorsey's rulings took heed of those rulings, acknowledging that workers had a constitutional right to choose which union represented them. He wrote that "while the government has the right to wind up district health authorities and dismiss executives and managers in restructuring, it cannot reach across the table and assign new representational rights and responsibilities for independent trade unions or tell employees who will be their bargaining agent." 

"The Liberals looked at the courts and realized they might win today but not in the long run, not with two Supreme Court cases talking about workers' rights," said Jessome, who thinks that the Supreme Court rulings ultimately helped to tip the scales in their favour.

"We knew that we had picked up momentum with those two rulings."

3. Solidarity happened

What ultimately changed the game was union solidarity, hard-won though it may have been.

"I had been involved in these kinds of restructurings before," explained Unifor's Atlantic Director, Lana Payne. "I was president of the Newfoundland and Labrador Federation of Labour when it occurred in health care in Newfoundland, and it really did pit two big health-care unions against each other when it occurred there.  And it doesn't end well -- workers are pitted against workers and unions are pitted against unions."

Anticipating the major changes were coming their way, Nova Scotia's four health-care unions started to discuss alternative arrangements for the restructuring and ultimately agreed upon the bargaining association model, which would have allowed each union to keep its members while meeting the government's restructuring goals for the health-care system.

But tension arose between the unions, who all had different stakes in the outcome of the rearrangement. 

"Everybody knew that CUPE, Unifor, and NSGEU were going to lose members, whatever came out of it, but our members weren't as engaged as the others because they probably weren't going anywhere," explained Nova Scotia Nurses Union (NSNU) president Janet Hazleton. 

As Hazleton acknowledges, her union was more likely to gain members, as they were the government's favoured union for representing nurses.

The other major union representing nurses in the province is the NSGEU, and many have speculated that breaking the NSGEU's bargaining power was one of the unstated goals of Bill 1.

In the spring of 2014, the NSGEU faced off with McNeil's Liberal government on two separate occasions. 2,400 NSGEU nurses were legislated back to work when the Liberals implemented an essential services law, Bill 37, which imposed harsh bargaining restrictions on all health-care workers in the province. NSGEU home-care workers were also legislated back to work in March 2014, after the Liberals passed Bill 30, which was opposed by both the NDP and the Progressive Conservatives in the province.

"They went in to destroy us," said NSGEU President Joan Jessome. "That was their objective and everyone figured it out by the end."

If things had unfolded a different way, the NSGEU could have lost as many as 9,000 members. That is why, unlike the other unions, the NSGEU pushed for run-off votes when they thought the bargaining association option was no longer viable. 

During those times, "the relationship was very frigid," Jessome admits, "but we're resilient creatures."

Cavanagh says that he holds no hard feelings over what happended during the arbitration-mediation process. 

"There is great respect for the arbitration-mediation process," said Cavanagh, "and when you get in there it's kind of every union for itself and we respect each other for the decisions that we have to make internally. We worked together extremely hard and sometimes through the process you get to the point where someone has to make a decision that is best for their organization."

Things took an unexpected turn when, in a surprising ruling on February 19, Mr. Dorsey awarded both the clerical and health-care workers to NSGEU -- a move which the government had not thought possible given the stipulations of the bill. Instead of losing members, this decision would have granted the NSGEU more members, who would have come from Unifor and CUPE.

Jessome said that on the day she heard the ruling, she made a call to CUPE provincial president Danny Cavanagh. "My message was that NSGEU was not sitting in our office gloating about getting CUPE members. That was never our intent, we wanted to represent our own members."

As the drama over Dorsey's firing started to unfold, the unions started talking to each other and, with the help of the Nova Scotia Federation of Labour, started to hash out terms for the potential implementation of a bargaining association model.

"Solidarity doesn't naturally happen," said Payne. "You have to work at it. I'm not saying that this was easy, because it was not."

"If we look at the history in Nova Scotia, there's always been a pretty good solidarity between all the unions in the province," said Cavanagh. "We recognized in particular the benefits of everyone coming together to do what's best for all of our members." 

At a critical moment, when the unions could have been at each other's throats, some communication and trust was rebuilt between the unions. Premier McNeil had been out of the province during the height of the Dorsey firing scandal. Soon after his return, the government reached out the unions in hopes of ending the dispute once and for all. 

"There comes a time when governments have to decide 'is this fight worth it,' and I guess the Premier decided that it wasn't," said NSNU President Janet Hazleton. "The Premier reached out to the four union leaders and asked if we could come together and sent us something to consider. We looked at it and made some changes, sent it back and he agreed."

"Obviously I haven't had this discussion with the premier," adds Payne, "but I think that it was in such a mess after Bill 1, in terms of Mr. Dorsey not doing the biddings of Bill 1 and standing up, it quickly became clear that they had a problem on their hands. This wasn't going to be as simple and as easy as they thought. But ultimately they got everything that they wanted, in terms of streamlined bargaining -- and there was no need to overreach."

Changes come into effect April 1 but bargaining under the new model will probably be delayed until next year. In the meantime, some of unions are undergoing internal restructuring to accommodate these big changes. They are also planning to do consensus trainings to improve the bargaining process.

"With the damage done to the labour movement under any other structure, we'd have probably never been able to repair it," said Jessome. "There will be tensions, we all have different ways of doing things, different structures, different priorities. It won't be for the faint of heart, but we are in it now and we have our members' best interests at heart."

Ella Bedard is rabble.ca's labour intern and an associate editor at Guts Canadian Feminist Magazine. She has written about labour issues for Dominion.ca and the Halifax Media Co-op and is the co-producer of the radio documentary The Amelie: Canadian Refugee Policy and the Story of the 1987 Boat People.

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