A Major Blow to the Right to Strike in Nova Scotia

The immediate context was a looming strike by nearly 2400 nurses in the Capital District Health Authority (CDHA). The nurses, members of Nova Scotia Government Employees Union (NSGEU) Local 90, were asking for mandatory nurse-to-patient ratios to deal with their excessive workloads and to provide better care. The CDHA and the Liberals said that the expense of hiring more nurses would be too much; they claimed it would run them close to 60 million dollars. The union argued that CDHA’s numbers were overinflated, that the nurse-to-patient ratios would require hiring 150 more staff and that some of the costs would be offset by reducing overtime pay. The government sent signals that it was going to introduce some sort of essential service legislation at least two months prior to the negotiation deadline. The CDHA took the hint and stopped negotiating on the substantive issues. As the April 3 strike deadline approached the government introduced Bill 37.

The battle over Bill 37

Bill 37, the “Essential Health and Community Services Act,” turned out to contain much more than just back to work legislation for 2400 nurses. The bill virtually stripped the right to strike from nearly 40 000 workers in the health sector, including home care workers, nurses, hospital workers, 9-1-1 operators and paramedics. In total over half of all union members in the province will be affected. Bill 37 makes striking virtually impossible for those covered by this law, as workers are now forced to negotiate essential service agreements with their employers that allow them to continue service in the event of a strike or lockout. Unions and employers must come to an agreement on who is essential before striking; if not, all strikes will be deemed illegal and subject to heavy fines.

The mechanisms for these negotiations are clearly weighted to favour employers, the main employer being the very government that passed the legislation. For instance, the head of the CDHA deems that about 80% of nurses in his jurisdiction should be seen as essential. These essential service provisions force unions to negotiate with a gun to the head. The end result will be to take away the right to strike from nearly all healthcare workers in the province. Ray Larkin, probably the most prominent labour lawyer in Nova Scotia, declared that Bill 37 would be the most far-reaching change to labour relations in the province since the 1972 Trade Union Act was introduced.

When the bill was introduced on March 31, nurses from NSGEU Local 97 decided to go on a wildcat strike the very next morning. Nurses and their allies marched on the provincial legislature demanding that Bill 37 be withdrawn. During their speeches at the protest workers talked about how understaffing was affecting their ability to provide the level of patient care that is needed. Nurses who had been hired just six months earlier told stories of being the most senior persons on their floors and of feeling overwhelmed with the amount of work. The message was clear: they were striking for improved working conditions, which means better patient care.

Nurses, other workers in the healthcare sector and allies proceeded to give testimony at the Law Amendment Committee in effort to slow down the passage of the bill. After almost two full days of testimony — which went on day and night — the nurses went back on strike on Thursday. The bill was passed before dawn on Friday morning. Bill 37 came with substantive penalties for unauthorized strikes: for union officials, a $100 000 fine for breaking the law and $10 000 fines for each subsequent day on strike, and for union members $1000 and an additional $200 dollars per day. On Friday the union called off the strike. The morning the legislation passed trade unionists occupied the office of Kelly Regan, the Minister of Labour, demanding to speak to her. The day before, the office of the Minister of Health, Leo Glavine, had been occupied.

The political background

To understand how over half of the province’s unionized workforce lost their right to strike we need to look at the political context in Nova Scotia. Last summer the NDP government of the day revoked the right to strike from 800 of the province’s paramedics. The NDP’s move to preemptively strip the right to strike from paramedics who work for a private company was highly contentious amongst the province’s labour leaders. Some supported it while others firmly rejected it as an attack on fundamental labour rights. Both Joan Jessome, the president of the NSGEU, and Rick Clarke, the president of the Nova Scotia Federation of Labour, favoured the NDP move, citing the lack of a contingency plan by the paramedics to ensure some level of service in the event of a strike. Sensing an opportunity to beat-up on the NDP from the left, the Liberals opposed the bill, calling it an anti-strike bill. The NDP’s legislation and the divided labour response to it created the conditions for the Liberals to more aggressively attack labor rights once they formed government.

The Nova Scotia Liberal Party is fundamentally an opportunist party. Their positions on issues when they are out of power drift like sand in the wind. When they are in power, however, there is absolutely no difference between them and the Tories. In 2007 the governing Tories introduced an essential service bill that aimed to strip the right to strike from many healthcare workers. It was quite similar to Bill 37. Liberal leader Stephen MacNeil opposed the legislation, stating at the time “it has been proven from one end of this country to the other, this legislation will not work.” The minority Conservative government never brought the bill to a vote because both the Liberals and the NDP opposed it.

In the run-up to the last provincial election the Liberals polled people’s responses to banning strikes in the healthcare sector, even though they were trying to run on a progressive platform. .The last time the province was under a Liberal government, in the mid 1990s, there was  an uptick of labour strife as the government attempted to curb the right to strike, forced unpaid days off for public sector workers and imposed aggressive concessions on teachers and nurses. During the most recent election campaign MacNeil stated that in principle he supported the right to strike. However, it was clear to any observer that the Liberals were looking to make major changes to the healthcare sector by amalgamating districts and forcing workers to take concessions.

The NDP in office had made attacks on the public sector easier for the Liberals by not only attacking the right to strike of paramedics but also by their inaction in making Nova Scotia more labour-friendly. During its term in office the NDP passed only one major pro-labour bill, first contract arbitration (which already exists in seven other provinces and at the federal level). The NDP didn’t make any substantive legal changes to strengthen unions, such as anti-scab legislation, giving associations and minority unions legal protection, strengthening successor rights, card-check neutrality, or even reform of the province’s labour board to make union certification votes more timely. It was not as if unions under the NDP were making big gains at the bargaining table or in organizing new workers.

By trying to take the middle of the road approach, the NDP disoriented their traditional supporters. This allowed the Liberals to occupy space on their left flank. When the NDP took away the right to strike from paramedics they opened the door and the Liberals walked right through it. The Liberals in their first months in power contracted-out paving operations in the province and attacked first contract arbitration. They then set their sights on the healthcare workers. First, in February they stripped 700 home care workers of their right to strike. Now they have passed Bill 37. The state of labour rights in Nova Scotia’s public sector, especially in the health sector, has taken on an air of permanent exceptionalism. Over the last twenty years, all three parties have, to different degrees, attacked the collective bargaining process by introducing legislation to strip or temporarily suspend free and fair collective bargaining..

Bill 37 and the effects on workers

There is a gendered aspect to this government intervention, as most of the workers affected by this interference are women. Home support workers, for instance, face physically and emotionally exhausting work and are paid precious little. The government and those in administration positions rely on the structural wage disparity in the sector.  Consistent government action prevents these workers from achieving real gains at the bargaining table by taking away their major source of power, the right to strike. Bill 37 will not simply perpetuate the gender pay gap in the province, it will most likely further widen it.

Laws like Bill 37 are not new or unique to Nova Scotia. Across Canada, governments are looking to put the squeeze on public sector workers, Bill 115 in Ontario circumvented free and fair collective bargaining for teachers and other school workers. Bills 45 and 46 in Alberta aim to strip public sector workers of their right to strike.Bills 5, 6 and 85 in Saskatchewan have similar goals. Nova Scotia, like so many other provinces, is facing declining revenues and mounting deficits.

The neoliberal policies that governments are pursuing necessitate a more aggressive anti-union legislative agenda. Instead of trying to find ways to generate new revenue, governments are trying to balance the books on the backs of workers. Not only do these laws tip the scales of collective bargaining further in favour of employers and governments, but they also have the added effect of making collective bargaining a more bureaucratic process over which workers have even less influence.

As it stands now the NSGEU is likely to challenge the law in court. The Supreme Court is actually set to hear a similar case, launched by the Saskatchewan Federation of Labour, about essential service laws passed in Saskatchewan. It is unclear what the next steps by NSGEU officials or rank and file workers will be, but one thing is certain: the battle over Bill 37 is far from over. As Larry Haiven, a professor of industrial relations, recently stated about Bill 37: “when you poke a bear in the eye with a stick, the bear is going to eventually swat back.” Taking away healthcare workers’ right to strike is not a guarantee that those workers won’t strike. There are many examples of healthcare workers striking in defiance of such laws, the most notable being the 19-day wildcat strike by the United Nurses of Alberta in 1988.

As a Halifax nurse recently wrote, “Bill 37 is not only an attack on organized labour, but also an attack on the Nova Scotians that need us most. Our right to strike protects patients. It’s that simple.” When the stakes are the life and death of patients it is quite unlikely that this issue is going away anytime soon. For the Left in Nova Scotia and elsewhere that means figuring out a strategy  that aims to roll back regressive labour legislation and also put real alternatives to neoliberalism on the table.

David Bush is a co-editor of rankandfile.ca, a Canadian labour news and analysis website.