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The drama continues in Nova Scotia this week, after the provincial Liberals announced plans to create new legislation that would reassign health-care workers to unions not necessarily of their choosing.
In a last-minute upset, the Nova Scotia Minister of Health and Wellness, Leo Glavin, announced last week that the provincial government will fire arbitrator Jim Dorsey, after he rendered an unsatisfactory decision in the dispute over the controversial Health Authorities Act, Bill 1.
“I don’t know what to call this,” said NSGEU president Joan Jessome, whose union is one of four affected by the bill. “It’s quite the theatre.”
Dorsey was hired as the government-appointed mediator/arbitrator in October 2014 to determine what union representation would look like after Nova Scotia’s 49 existing health-care bargaining units were streamlined into four province-wide units — one each for nurses, health-care, clerical, and support workers.
Bill 1 would have assigned one union to represent each unit, requiring a major reshuffling of union members. In the process, some unions would lose members while others would gain.
Dorsey: “The mediator-arbitrator is not simply an usher showing everyone pre-assigned seating.”
While the unions supported the government’s call for more streamlined labour relations, they objected to the way the Liberal government’s Bill 1 proposed to achieve that goal.
“The unions proposed a bargaining association, the council of unions — we would have delivered all of the goals that the government said it wanted,” said Atlantic Regional Director of Unifor, Lana Payne. “We said there’s a way to do this, to get these goals achieved without throwing workers’ rights under the bus.”
Dorsey agreed, writing in his January 19 decision that the government “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.”
Dorsey’s job was to figure out how this reshuffling — itself a legal and administrative nightmare — could be done in a fair and equitable way without violating union members’ Charter right to free association.
Due to the language of the Trade Union Act and the highly circumscribed language of Bill 1, which rules out the possibility of run-off votes, Dorsey had to be creative in his ruling.
For one union to be the sole representative for a bargaining unit, it had to have a majority of members in both the regional health authorities and IWK Health Centre, which is a separate entity jointly administered by the three Maritime provinces.
In his initial decision, release January 19, Dorsey stated that none of the unions had the necessary “double majority” in any of the four units. Due to some vague language in the bill, Dorsey determined that the fate of these units would need to be determined at a later date through an arbitration process.
Early in February, the unions urged the government to re-enter mediation, hoping to achieve a union council model for representing the four units. That would have allowed all the unions to retain their current membership.
“Unfortunately the employer wouldn’t agree, which meant the provincial government didn’t want to agree,” Payne explained. “The unions ended up talking to each other between hearings to see if we could get there.” Ultimately, Payne explained, the unions could not reach an agreement on how to implement the council model.
“When you are trying to create something that new and that innovative you really do need the help of a mediator to get there. This was not an easy process,” said Payne.
One particularly contentious issue to be determined in arbitration was whether or not the Licensed Practical Nurses (LPNs) would be grouped in with the nurses or the health-care unit. Hoping to intervene on the matter, the government introduced a set of regulations to accompany Bill 1 which would have clustered LPNs with the Registered Nurses for the purpose of negotiations.
In a second ruling rendered on February 19, Dorsey ruled that the new regulations reached beyond the authority of the legislators and were invalid. He also found that the Nova Scotia General Employees Union (NSGEU) had achieved a double majority in both the clerical unit and health-care units, ruling that employee’s union choice needed to be used to determine the outcome in the still unsettled nursing and clerical units.
Early on in the Bill 1 saga, it appeared as if the NSGEU stood to lose the most members, and many speculate that the actual intent of the bill was to break the negotiating power of that union. However, in an unpredicted turn of events, Dorsey’s decision has moved 4,000 new members from CUPE and Unifor to the NSGEU.
Dorsey’s careful and creative rulings may not matter. After reading Dorsey’s February 20 decision, the N.S. government announced that it would not accept the arbitrator’s report, and that Dorsey would be relieved of his duties. While they accepted that the NSGEU did have a majority in the health-care workers unit, they plan to introduce new legislation to determine which union will represent each of the three remaining bargaining units.
Leo Glavine revealed that his government wanted the NSNU and not the NSGEU to represent the nurses, and suggested that they may not even pay Dorsey in full — a move which former NDP MLA Graham Steele called “banana-republic type stuff.”
“This is unprecedented on almost every level,” said Payne. “Why put in place a mediation-arbitration process if the outcome is already determined?”
But Dorsey wasn’t quite ready to recede into the shadows. On Tuesday, days after the government announced its intent to fire Dorsey, the arbitrator released a second order in which he confirmed that the NSGEU had achieved a necessary merger of two locals and was thus fully entitled to both the clerical and health-care units.
“It is gratifying this additional closing piece in this complex labour relations landscape restructuring has been completed,” Dorsey wrote in that order, also writing that he urges the unions to find some collaborative solution for representing the support and nursing units, which he did not render a decision on.
Dorsey issued his last set of directives after his dismissal was announced. However, the cabinet had not yet reconvened to fire him officially.
It is also unclear whether the government even has the authority to be able to fire Dorsey. It is highly unusual to be able to dismiss an arbitrator, whose decisions are usually binding. Bill 1 itself stipulates that:
“Where the mediator-arbitrator is unable to begin, carry on or complete the duties prescribed by this Act, the Minister shall, after consulting with the district health authorities and unions, appoint a new mediator-arbitrator in his or her place and, unless the district health authorities and unions agree to do otherwise, the mediation or arbitration, as the case may be, must begin de novo.”
The Minister can only dismiss the arbitrator or begin the arbitration process again with the consent of the unions and the district health authorities.
“The government is all over the map on this,” said Jessome. “I can’t figure out what they are doing. And in fact, the bill states that he can’t be fired without consultation from all parties. And there’s been no consultation with the unions.”
Jessome says that if government tries to take the two units that Dorsey has awarded the NSGEU away, she will take them to the courts.
“We would most likely look at an injunction and apply that the Charter rights of our members have been violated.”
None of the unions holds a clear a majority with regard to the two outstanding units: support and nursing. Jessome says that the NSGEU “would be quite willing to sit down and talk to those other unions,” to achieve a collaborative solution for representation, as Dorsey recommended.
During a media scrum yesterday, Health and Wellness Minister Leo Glavine stated first that the government would accept some of Dorsey’s decisions, then saying that they also felt as if they had to start from scratch.
“It’s been a really hard for health-care workers here,” said Payne. “We are going to be back in the same place we were back in October, with a piece of legislation that pits worker against worker and union against union. At the end of the day we need to have a strong, vibrant labour movement in the province of Nova Scotia and this is making it really challenging. This is having an impact on the movement here.”
When asked what she thought would happen next, Jessome told rabble.ca that “your guess is as good as mine.”
In order for this new legislation to pass, the House needs to be reconvened. NDP leader Maureen McDonald has said that her party will not give consent to call the House to order early.
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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