'Unclear' labour board decision could affect potential nursing home strike
Union says ruling means workers aren't an essential service and could all strike
A disputed New Brunswick labour board decision could determine whether thousands of nursing home workers can go on strike.
The December 2018 decision considered whether the province's Essential Services in Nursing Homes Act violates collective bargaining rights under the Canadian Charter of Rights and Freedoms.
The law passed in 2009 was meant to ensure some staff would remain on the job in the event of a strike.
Labour board chair Robert Breen's 42,000-word decision concludes the law does violate the charter.
However, since the board doesn't have the power to strike down a law, Breen narrowed the ruling to one section of the act affecting one Fredericton nursing home.
The union representing the employees says the decision related to the charter means the entire law is invalid.
"Our position still is that, until we hear differently, we're taking it as if there is no essential services, so we're going forward with the strike vote," said Patrick Roy, the Canadian Union of Public Employees co-ordinator for the council.
Jodi Hall, executive director of the New Brunswick Association of Nursing Homes, said in an email the "decision was unclear."
The association is the employer of the workers but is funded by the provincial government.
CBC News requested an interview with the provincial government about the decision. No interview was provided. Erin Illsley, a spokesperson for the Department of Social Development, said questions about the decision should be sent to the association.
The two sides have sought to clarify the decision.
Clarifying order coming 'soon'
Lise Landry, CEO of the labour board, said the sides took part in a conference call Feb. 27 and an order will be issued "soon."
Roy said the results of the strike vote will likely be made public in a news release Friday.
He said a strike could legally take place by Saturday morning if members are in support of the move. But he reiterated no final decision on whether to go on strike has been made.
The workers include licensed practical nurses, resident attendants, support services such as dietary and laundry workers, and some clerical workers. They have been without a contract since October 2016.
Some nursing homes have contacted family members about helping care for residents if a strike occurs.
Ronald LeBlanc, president and CEO of Comfort Living Network, told Radio-Canada that if a strike occurs, patient care would inevitably suffer.
The essential services legislation set out a process to designate a minimum number of workers as essential to provide stable care.
Case dates back to 2011
If the union and the employer can't agree on how many workers should be deemed essential, the labour board acts as the third party.
The association went to the labour board in 2011, when the sides couldn't agree on the numbers for a Fredericton nursing home.
That case triggered a years-long process, leading to the December ruling.
The decision determined the law amounts to "substantial interference" with the right to collective bargaining. But because the board doesn't have authority to strike down legislation, the ruling said the section that allows the labour board to set the number of essential workers has no force in the Fredericton case.
Roy said that simply means there's no third party to settle disputes about who should be considered essential if the sides can't agree.
"Then really, it doesn't make sense to say the whole legislation is valid," he said.
Hall said the association is awaiting a decision from the board clarifying the effect of the ruling.
With files from Radio-Canada