Dispute Resolution in Healthcare and Community Services Collective Bargaining : NS Labour and Workforce Development, Unionized Workplaces

The Nova Scotia government has drafted legislation which protects the health, safety and well being of the public while preserving the collective bargaining process.

For further information, the following link includes:

  • Minister's Video Message
  • Plain Language Guide to Proposed Amendments
  • Draft Legislation
  • News Release

Proposed Trade Union Act Amendments

This information is available in PDF format (Adobe Acrobat required).

Summary Report: Dispute Resolution in Healthcare and Community Services Collective Bargaining (PDF: 58k)

Copies of the written submissions are available by request at policy@gov.ns.ca, or by phoning 902-424-2366

Information Sheet: Dispute Resolution in Healthcare and Community Services Collective Bargaining

Introduction

On May 15, 2007 the Premier asked the Minister of Labour and Workforce Development to develop a dispute resolution model which protects public health and safety while ensuring fair and free collective bargaining.

Although the Premier stated that binding arbitration is the preferred option, he has directed the Minister to be open to a compelling alternative, if one comes forward.

The information on this webpage is intended to help everyone interested in this issue to become better informed for the purpose of participating in the discussions that will take place on this important issue.

Which Organizations and Workers Will Be Affected?

Everyone who works in the health care and community services sector including acute care, long term care and continuing care, as well as ambulance services (including air and ground transport).

There are approximately 200 collective agreements in place which cover approximately 32,000 employees who are represented by various unions.

This issue affects all Nova Scotians.

How Does Collective Bargaining in Nova Scotia Work Now?

There are five statutes that regulate collective bargaining in Nova Scotia: the Civil Service Collective Bargaining Act, the Highway Workers Collective Bargaining Act, the Teachers’ Collective Bargaining Act, the Corrections Act and the Trade Union Act.

Four of the statutes relate to specific employee groups: civil servants, highway workers, correctional workers, and teachers. The majority of unionized employees in the para-public (including health care employees) and private sector of Nova Scotia are covered by the Trade Union Act.

Under the Civil Service Collective Bargaining Act, the Highway Workers Collective Bargaining Act and the Corrections Act, binding arbitration is the mandatory dispute resolution mechanism. There is no right to strike or lockout under these statutes.

Under the Teachers’ Collective Bargaining Act, teachers are permitted to strike on issues that are negotiated at a province wide level with the Department of Education. There is however no right to strike for issues that are negotiated locally with the school boards in the province and binding arbitration is the dispute resolution mechanism.

With respect to the Trade Union Act, there is a right to strike or lockout, except for police officers and firefighters, who must go to binding arbitration.

Have There Been Work Stoppages in These Sectors in the Past?

Since 1969, when tracking was started by the Department of Labour, there have been approximately 100 work stoppages in the health and community services sectors.

There have been 20 strikes since 1997; 15 legal and 5 illegal.

Dispute Resolution Processes under the Trade Union Act

Several options exist to assist the union and the employer once they have reached an impasse in their face-to-face bargaining. These processes are summarized below:

  1. Conciliation

    The conciliation process culminates in a Conciliation Officer’s report to the Minister when the Union and Employer have reached an impasse in their bargaining. The Officer’s report triggers a mandatory 14 day countdown period before a strike or lockout can commence. In addition, a party that intends to strike or lock out must submit 48 hours written notice to the Minister of their intention to do so (there are other requirements which are set out in s. 47 (3)(a) of the Trade Union Act). Once these preconditions are met, the Act imposes no limit on the extent or scope of the strike.
  2. Conciliation Board

    The Union and Employer may request the Minister to appoint a three person board (one union nominee, one employee nominee and a neutral chair) provided they do so during the countdown period following conciliation and prior to a legal work stoppage. The Board’s decision is not binding unless the union and employer agree to accept it as binding.
  3. Mediation

    The Minister has the discretion to appoint Mediators under the provisions of the Trade Union Act. The Mediator does not have the authority to make a binding decision upon the union and employer, unless s/he is given that authority by mutual agreement of the union and the employer. The Mediator’s role ends with a report to the Minister. Mediators are not normally appointed in work stoppages, except in high profile, complex cases where there is a significant public interest.

    (Note: In the recent strike at the IWK Health Centre, the union and employer agreed to a form of binding mediation to resolve the dispute)

  4. Industrial Inquiry Commission

    The Minister has the discretion to appoint Industrial Inquiry Commissions. Historically, it has been rarely used. The Commission has broad powers to investigate and recommend solutions, but it does not have the authority to make a binding decision upon the union and the employer. Its role ends with recommendations to the Minister. This is the final option available to the Minister under the Trade Union Act and as a result, if it fails, there is no “next step”.
  5. Arbitration

    The Trade Union Act only includes binding arbitration for police officers and firefighters. It should be noted, however, that the union and employer may agree to take their dispute to binding arbitration because this is not prohibited by the Act. In the past, it has been used successfully by several groups including ambulance, health care, police officers (pre 2004) and firefighters (pre 2006).

What is Binding Arbitration?

“Binding Arbitration” (as distinguished from rights or grievance arbitration) is a tool used to resolve collective bargaining disputes whereby a neutral third party renders a decision which is binding on the union and the employer. The new collective agreement will then include the issues agreed to between the parties, together with the issues resolved by the Arbitrator’s decision.

Binding arbitration may be conducted by a sole arbitrator chosen by the union and employer or alternatively, may be conducted by a Board of three persons in which the union and employer may nominate their representative to the Board.

Under this model, strikes and lockouts are prohibited. Binding arbitration is also known as interest arbitration.

What Statutes in Nova Scotia Require Binding Arbitration?

Binding arbitration is currently not mandatory under the Trade Union Act except for firefighters and police officers. It is mandatory, however, under the other four statutes that regulate collective bargaining for highway workers, correctional workers, civil servants and teachers (local bargaining).

In addition, contract negotiations between doctors and the Department of Health are settled by binding arbitration when an impasse results (as required by the Canada Health Act)

Binding Arbitration: What Do Other Jurisdiction Have?

Three provinces (Ontario, Alberta and PEI) as well as the federal government have legislation prohibiting the right to strike or lockout and binding arbitration is mandatory in the healthcare sector when the union and employer are unable to reach a negotiated settlement on their own.. In Ontario, this applies to hospitals and homes for the aged. In Alberta, this applies to hospitals and employees under the Regional Health Authorities. In PEI this applies more broadly.

In Alberta, the Government may also declare a strike a public emergency when the health and safety of the public are at risk and force the parties to binding arbitration to resolve the dispute.

Nova Scotia is one of two jurisdictions in Canada where employees in the health care sector have a right to strike or lockout without some kind of essential services limitation set out in legislation. Every province except Saskatchewan, has laws that either substitute the right to strike/lockout with binding arbitration or restrict the right to strike/lockout by requiring the provision of “essential services”.

What Does “Essential Services” Mean?

Under an essential services model, a staffing level is established to ensure an adequate level of services are maintained, while workers take part in a work stoppage in order to resolve their bargaining disputes. In other words, when strikes are permitted, essential service provisions compel the union to provide a certain level of emergency service during a strike.

Is There Essential Services Legislation in Nova Scotia?

No, there is currently no essential services legislation in this province.

Unions and employers may, however, agree to negotiate some form of “essential services” prior to a work stoppage to ensure that a minimum level of service is provided.

Essential Services: What Do Other Jurisdiction Have?

All provinces with the right to strike in the health care sectors have essential services legislation, except Nova Scotia and Saskatchewan.

Ontario also has essential services legislation, an essential services agreement must be negotiated for ambulance services prior to a strike.

The nature of “essential services” provisions and the process to determine the level of service varies by jurisdiction. In some jurisdictions (for example, British Columbia and New Brunswick), the union and employer first attempt to negotiate an essential services plan by designating which employees will stay on the job during a strike. If the union and employer cannot agree, an independent third party decides (Labour Relations Board or Arbitrator). In other provinces, (Manitoba and Newfoundland), the employer designates “essential”employees and if the union disagrees, it appeals to the Labour Relations Board . In Quebec, the law fixes a percentage range as “essential” depending on the type of healthcare institution.