Ordering CUPE back to work will not be an easy process for Higgs, says labor lawyer

The Higgs government will face legal and procedural obstacles if it tries to force striking civil servants back to work when the New Brunswick legislature meets again on Tuesday.

Prime Minister Blaine Higgs says he is looking at back-to-work legislation that will order some or all of the striking members of the Canadian Union of Public Employees to stop their strikes.

But that route is not easy. Nor is it the prime minister’s second option: to use the province’s COVID-19 state of emergency.

No government in Canada has used back-to-work legislation since 2015, when Canada’s Supreme Court ruled that the right to strike is protected by the Constitution, says Ottawa’s Labor Attorney Paul Champ.

“No one has tried it,” he says. “I’m sure government lawyers across the country have looked at it and decided to step down, and I would be interested to see if New Brunswick somehow thinks they can get away with it. . ”

Paul Champ, an Ottawa lawyer who specializes in labor law, says no government in Canada has sought back-to-work legislation since the Supreme Court in 2015 ruled that the right to strike is protected. (Jean Delisle / CBC)

The 2015 ruling annulled the Saskatchewan government’s attempt to unilaterally decide which trade unionists were important and then ban them from striking.

“The right to strike is an essential part of a meaningful collective bargaining process in our system of employment,” it said. “It’s an indispensable part of that right.”

Champ says it means any government seeking to restrict this right “will have a fight uphill to try to justify it.”

Another obstacle is timing.

The government swept away a time-consuming obstacle Monday by canceling the speech from the throne scheduled for Tuesday.

In 2015, the Supreme Court overturned an effort by Saskatchewan to unilaterally declare striking workers essential. (Justin Tang / The Canadian Press)

It also means there is no official response from the opposition to the speech on Thursday, freeing up two days for regular business.

“Not having a trontale gives us additional flexibility that allows us to move faster as needed,” Higgs said Monday, though he said no bill would be tabled Tuesday.

Nevertheless, every bill must be read and voted on three times and must also undergo a committee review.

And according to the rules of the legislature, each of these four steps must take place on a different meeting day.

The only way the timeline can be further compressed is if all MLAs give unanimous consent to circumvent the rules, something Green Party House leader Kevin Arseneau says will not happen.

The Green Party’s leader, Kevin Arseneau, says his party would not agree to speed up the process of a back-to-work law. (Jacques Poitras / CBC)

“Absolutely not,” he says. “There will be no unanimous consent to back-to-work legislation. Absolutely not.”

Arseneau says that in addition to refusing to give consent to speed up the timeline, the Greens are also looking at other procedural tools to slow it down.

“There are many different ways to slow down or put pressure on bills,” Arseneau says.

If a bill is eventually passed, it will likely be the subject of a legal challenge based on the 2015 Saskatchewan case, Champ says.

Higgs said Monday that a back-to-work bill would also include a “wage mandate” to impose CUPE wage increases instead of sending this issue to binding arbitration.

Prime Minister Blaine Higgs says his government can use the emergency order to force striking workers back to work if the strike affects health care. (New Brunswick Government)

He also said another option is the Emergency Measures Act, which says the province can “provide maintenance and restoration of essential facilities” during an emergency.

That would only apply narrowly to “more specific” situations affecting pandemic efforts, he said.

The emergency order is also subject to the Charter of Rights and Freedoms, and Champ says it would be the only way it would have a chance of surviving a trial, to apply it to only a very narrow number of health workers.

But even then, he says, the province may be having a hard time.

Pastoral and household staff who had worked at regional health authority clinics are members of CUPE Local 1252, but were not designated as essential so that they are able to strike.

Norma Robinson of CUPE says the province has had plenty of time to seek to relocate workers as essential, but has never done so. (CBC)

The appointment of significant workers took place before the clinics began to operate, and CUPE has not agreed to change the designation now that the strike is underway.

CUPE 1252 president Norma Robinson said the dispute had been on the horizon for several months and that the province had not approached the union about relocation until the last few days.

“They had plenty of time,” she said.

The government could also have asked the New Brunswick Labor and Employment Board now for a new appointment, Champ says.

“If New Brunswick ran into a potential labor dispute some time ago and they had a designated workers’ list that was pre-COVID, I would think it would have been incumbent on the government to bring such an application to the Labor Board before they reach a crisis situation. “

Because it has not done so, he says it will be difficult to argue under any legal challenge that the province had no choice but to use a back-to-work bill or the emergency order to force these workers back to work.

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