Treasury Board retreats on health union strike policy
Treasury Board has backed down on a decision that would have forced federal doctors, nurses and other medical professionals working in the public service to go on strike in the event of a breakdown in contract talks.
The Professional Institute of the Public Service of Canada (PIPSC), which represents 3,400 health professionals across the country, returns to the bargaining table this week with Treasury Board’s agreement that it will allow these workers access to arbitration if needed, rather than pushing them into striking against their will.
Most of these employees work for Health Canada, the Public Health Agency of Canada, Correctional Services Canada and the Department of National Defence in areas of public health, or provide care for inmates, veterans and northern communities.
PIPSC president Debi Daviau said she believes Treasury Board reversed its position because of a recent Supreme Court of Canada decision that changed the landscape for labour rights and collective bargaining in Canada. The ruling also calls into question the constitutionality of the Conservatives’ sweeping reforms in Bill C-4 to collective bargaining in the public service.
“We welcome the government’s decision to step back from the absurd position in which they had placed public health professionals. It’s unfortunate it took a ruling by the Supreme Court to get this result,” Daviau said.
“This decision should spell the beginning of the end for this government’s wrong-headed labour relations agenda.”
In this case, the two sides were at loggerheads over Treasury Board’s interpretation of a “transitional” provision in the legislation the Conservatives passed to revamp bargaining in the public service.
PIPSC rejected Treasury Board’s position that because of the “transition” rules governing this round of bargaining, these professionals — who are largely considered essential workers and have never been on a picket line — must follow the strike route if contract talks hit a stalemate.
PIPSC argued these workers should have access to arbitration, rather than being pushed into a strike they don’t want. Treasury Board finally agreed.
Although Treasury Board changed course for health workers, the government still hasn’t indicated whether it intends to amend its Bill C-4 reforms in light of the Supreme Court decision, or whether it will continue fighting the constitutional challenge previously filed by the giant Public Service Alliance of Canada (PSAC).
In a recent ruling, the Supreme Court affirmed workers’ right to strike when it granted an appeal by the Saskatchewan Federation of Labour of the province’s controversial essential-services law, which restricted which workers could strike.
The federal Conservatives’ own massive changes to collective bargaining in the public service, passed in Bill C-4, are almost identical to the Saskatchewan legislation that the Supreme Court overturned — particularly the provisions dealing with essential services.
Until now, Treasury Board President Tony Clement has said the government is still studying the Saskatchewan decision and has not commented on its impact on the look-alike federal legislation.
“Hopefully, the government will act responsibly and not put unionized employees and taxpayers to the expense of defending principles already well-established by the courts,” Daviau said.
The top court said the Saskatchewan law, which gave the government the unilateral right to decide which employees are essential, is unconstitutional.
The decision also found that employees can’t effectively bargain if there isn’t a fair and impartial dispute-resolution mechanism — such as arbitration — to help solve negotiating impasses.
Unlike Saskatchewan, the federal law allows unions access to arbitration, but only in cases where 80 per cent of employees have been designated essential. The government also has the “exclusive” right to decide which workers are essential. Since the ruling, the 17 federal unions have assembled a joint defence fund and hatched a plan on how they will challenge the Conservatives’ legislation in light of the Supreme Court ruling, said Isabelle Roy, PIPSC general counsel.
They have agreed to file a formal complaint to the International Labour Organization (ILO) challenging the legality of the Conservatives’ carte blanche power to determine which workers are essential.
The ILO had previously ruled that workers cannot mount an effective strike when more than half of them are designated essential.
The two big unions, PIPSC and PSAC, are each launching separate but “complementary” lawsuits to challenge the constitutionality of the C-4 reforms, Roy said.
That’s because the impact of the reforms varies among unions depending on the type of workers they represent, the work they do and whether they historically opted for arbitration or strike to resolve past contract disputes.
The showdown between health workers and Treasury Board highlights some of those differences, said Roy.
PIPSC represents professional workers, many of whom have never been on a picket line and don’t want to strike. In the past, the health workers have largely been essential workers and unable to legally strike, so opted for arbitration to resolve labour disputes.
Before C-4, the union could pick whether it wanted access to arbitration or conciliation and strike in the event of an impasse. The government took that away and it now decided who would have access to strike or arbitration. PSAC generally picked the strike route as its chosen way to resolve disputes.
Border guards have always opted for strike but the government will likely designate 80 per cent of them essential and they will have to seek arbitration if talks break down.
With the new rules, however, the arbitrator must consider the government’s economic and fiscal policy as the “predominant factor” when proposing settlements.
This is the first round of bargaining with the new legislation and the big issue is sick leave. The Conservative government wants to replace the existing sick leave with a short-term disability plan.