“The fundamental democratic value that no union is ever certified to be an exclusive bargaining agent for a group of employees if it cannot demonstrate majority support among the group of employees must prevail." — Arbitrator James Dorsey
Ottawa (20 Jan. 2015) – Arbitrator James Dorsey’s interim decision on the restructuring of health care unions in Nova Scotia is best described as a “strong defence of labour rights,” according to James Clancy, National President of the 340,000-member National Union of Public and General Employees (NUPGE). The restructuring is the result of the Health Authorities Act (Bill 1) that was passed by the Liberal government of Stephen McNeil in October 2014.
Dorsey reinforces the fundamental principle of majority representation in collective bargaining
In his 192-page decision, Dorsey addressed at great length how the freedom of workers to participate in choosing their union and the concept of majority representation are fundamental principles and values of both democracy and Canada’s system of collective bargaining.
“The fundamental democratic value that no union is ever certified to be an exclusive bargaining agent for a group of employees if it cannot demonstrate majority support among the group of employees must prevail,” noted Dorsey. “In a democracy, legislative assemblies do not simply shuffle constituency boundaries or reallocate votes among constituencies to meet some desired goal and defeat the majoritarian principle. What cannot be done directly cannot be done indirectly by fashioning limitations and eligibility rules to dictate an outcome that supersedes the wishes of a majority of employees.”
Dorsey declared, “It is as a consequence of a majority choice that the Liberal Party as provincial government has the legitimacy to decide on acute health care restructuring in the manner it has and that the House of Assembly passed the Health Authorities Act.”
He also advised the government that he refuses to interpret Bill 1 as “a backhanded way to disqualify and diminish one union, enhance the presence of another or deny employee choice.”
Legislation may restructure but cannot tell workers who will be their bargaining agent
Dorsey wrote in his decision, “The legislation must not be read as intending to benefit NSNU, CUPE and Unifor and their local unions with an endowment of hundreds of new dues paying members at the cost of NSGEU with total disregard for the wishes of employees. 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.”
“This decision by one of Canada’s most skilled labour relations practitioners is a strong defense of labour rights,” noted Clancy. “His thoughtful statements are a clear message to the Nova Scotia government, and to all governments in Canada, that legislatures cannot ride roughshod over the fundamental rights of working people. Mr. Dorsey has laid out a process where the government’s policy objectives of health care restructuring can be accomplished while the constitutional rights of workers can be respected.”
No final decision on structure of health care bargaining units
In his interim decision, Dorsey made no final decision on the structure of health care bargaining units. He did, however, imply that the unions could establish multi-union entities to bargain on behalf of health care employees. This concept is similar to the bargaining association model that the Nova Scotia Government and General Employees Union (NSGEU/NUPGE) and the other three unions proposed to the government prior to the introduction of Bill 1.
The final determination of the composition of the bargaining units, and of the bargaining agents to represent them, will be subject to further mediation and arbitration that Mr. Dorsey has scheduled for the week of February 2-6.
Joan Jessome, NSGEU President, also welcomed the decision, saying “it was a direct rejection of the government’s cynical attempt to force thousands of health care workers from their chosen union and gave the unions an opportunity to work together to bargain collective agreements.”
“Mr. Dorsey's decision lays out a path forward that will allow NSGEU/NUPGE members to stay with NSGEU/NUPGE,” said Jessome. “All unions will have to work together with Mr. Dorsey to ensure this happens. NSGEU/NUPGE has always been prepared to do just that.”
The National Union of Public and General Employees (NUPGE) is one of Canada's largest labour organizations with over 340,000 members. Our mission is to improve the lives of working families and to build a stronger Canada by ensuring our common wealth is used for the common good. NUPGE