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Bill 148, the Public Services Sustainability (2015) Act.
We know many union members and others have been following the news and have heard about Bill 148 imposed on 75,000 public sector workers. The union members affected are from;
- IUOE 727
Bill 148 was passed, not proclaimed, by the legislature back in late December of 2015. The passage of Bill 148 occurred at about 7:30 am in the morning after another all-night sitting of the House of Assembly, I remember I was there in the house.
Steven McNeil was clear that they would proclaim Bill 148 and that happened on August 22, 2017, when the NSGEU challenged them by asking for arbitration. So, for many months it was held over our heads until it was actually proclaimed.
Bill 148 the Public Services Sustainability (2015) Act does a few things:
- Imposes a non-negotiated wage settlement and restricts collective bargaining on wages and salaries by imposing maximum increases.
It freeze’s wage rates from the expiry of the current collective agreement. The freeze at 0% in year one and year two, 1% in the third year, and 1.5% in the fourth year, with an additional 0.5% on the last day of the fourth year. It Imposes a four-year term on the renewal of expired collective agreements. So essentially if you have an expired agreement you may go without an increase for 5, 6 or 7years, maybe. The exception is the collective agreements of municipalities and universities. Remember the university sector had Bill 100 imposed on them.
- Bill 148 also prohibits interest arbitrators from awarding rates of pay inconsistent with the four-year restraint scheme.
- Bill 148 also unilaterally removes long-standing articles from collective agreements.
That means that something like 40,000 public sector workers will not get further accrual of retirement allowances after April 1, 2015. Bill 148 ends the benefit altogether for new hires after April 1, 2015. Bill 148 prohibits the crediting of any service after April 1, 2015, in calculating the payment of a payment on a resignation or retirement which is based on service.
Bill 148 requires the amount of the payment must be based on service before April 1, 2015, to be paid at the wage rates in effect immediately before April 1, 2015. No employee hired on or after April 1, 2015, will be eligible for a payment on resignation or retirement based on service.
Bill 148 also says that unions may not negotiate any new service award on retirement or resignation which is inconsistent with the Bill.
Once it was proclaimed the Liberals said they would ask the Nova Scotia Court of appeal to look at the constitutionality of Bill 148. The Premier and his Minister said numerous times, they will send Bill 148 to the Nova Scotia Court of Appeal for a legal opinion on its constitutionality. An opinion they said with confidence would come back in their favour.
However, some 48 hours later we found out this was just not true. The McNeil Government only sent sections 7 through 19 of the Bill to the court. They did not submit the section that strips union members of retirement allowances.
The Nova Scotia Court of Appeal is a lower court then the Supreme court and It must be noted that no matter what this lower NS court of appeal may say in the end, there is no remedy. So essentially either party can continue to proceed as it wishes because neither party is being forced to abide by the court’s decision. It’s really important to note that actions in the supreme court are different than those of the lower court of appeal in Nova Scotia.
To prove our case is unconstitutional we must prove that bill 148 substantially interfered with the collective bargaining process. That’s why it’s important to have the Court of Appeal to look at the whole bill, governments limiting the sections of the bill will advantage them.
To be clear each union has been in bargaining to some degree and that both the civil service and the CUPE highway workers do not have the right to go on strike. That alone poses a whole different argument before the courts. Union members had given up the right to strike many years ago for the right to interest arbitration. Essentially that means when the parties reach an impasse in bargaining they head off to arbitration, each side presents its case and the arbitration process rules and the parties must live with that ruling. Limiting the arbitrator’s hands in the arbitration process with Bill 148 is another wrinkle in the big picture, and this will only affect the civil service and CUPE 1867 members who have the right to arbitration.
The civil service and its members are and where heading to arbitration when bill 148 was proclaimed and their legal challenge to the Supreme Court is on their membership in the civil service. CUPE 1867 was not at the point of appointing arbitrators for arbitration but will get there at some point. It’s thought to be more winnable if a union proceeds to do its filing to the supreme court before going to arbitration of in the mix of filing for intervener status at the lower court, the court of appeal in Nova Scotia. Two distinct different courts and legal actions.
I think it’s fair that given the complications of the two courts and where each union and its locals are at in bargaining stages make this both complicated and confusing for many members affected by Bill 148. Most of the others affected by Bill 148, who do have the right to strike are in a much different place and remember it needs to be argued before the court how these legislative bills have interfered with collective bargaining. It sounds good to say we are confident but the fact is there is never a slam dunk on any of these cases in the end.
Sure, we believe we have a good case, some unions and locals are in a better place than others in the mix of bargaining so we must be strategic in the big picture to position ourselves in the best way to be successful. The NSGEU and soon followed by CUPE 1867 are best positioned at this time, others will eventually fall into line through the bargaining process.
Another argument will be that just having Bill 148 over our heads unproclaimed interfered in bargaining. I am not a lawyer and I am only trying like you to make sense of it all and explain why it fell into place as it has. Yes, it’s complicated and we must remain solid in our resolve by standing in solidarity as one because together we are stronger.
Another complication in the game of chess is the acute care sector, which had essential services legislation thrown into the mix, another complication and is also in the bargaining process, but in a much different place in the process than either the civil service or CUPE 1867. They do have the right to strike so that’s why the Liberals imposed essential services on them. That means they are supposed to provide a level of services and agree to that before bargaining begins or be close to that in the event they strike.
Back to the lower court of appeal in Nova Scotia, all the unions affected by 148 can and will be seeking what’s called intervener status at the court. That doesn’t mean we will get that, we will argue that and that all of Bill 148 must be looked at, not segregated out pieces to advantage one party over the other.
The Federation of Labour pulled the heads of unions together on August 23rd and we heard from legal counsel on the proclamation of Bill 148 on all unions. Remember up until now, no one knew if bill 148 would be proclaimed on just one union or two unions or all of them. We all had a good idea that when one of the unions hit the arbitration button the bill would be proclaimed. We had a good idea that would likely be either the civil service or CUPE 1867.
We met a week after the August 23rd meeting and discussed other actions we can do together, and it was decided that we would do a rally against Bill 148 which will happen on September 21st at noon. When Premier McNeil opens the Legislature on September 21, organized labour and other coalition partners from across Nova Scotia will be there.
On September 6th, 2017, the Federation and the leadership of the affected union held a press conference when we released that together we would seek intervener status at the Court of Appeal in Nova Scotia. It remains to be seen if we will be granted intervener status or not. The legal team is pulling together all the documents and expert witness and preparing our case. Doing these legal actions are a must and when we do them together it’s just better from all aspects including cost sharing based on member proportions. When it comes to the higher court as each union gets there so they have the best possible arguments it makes sense that those will be folded into one proceeding at the supreme court. That’s where the court looks at all aspects of substantial interference of our charter rights to our right to strike and fair and free collective barging.
We think we have a good case but are cautious that each case is different and many points of the BC and other cases are similar, there is no assurance this is a slam dunk. That’s why it’s important that we ramp up other actions like rallies and knocking on Liberal MLA’s doors, because 15 of those MLA’s scraped by a narrow win by less than 1000 votes, at least five of them by less than 100.
Let’s stay focused and be strategic and do what is best for our collective membership. McNeil is an expert at playing divide and conquer so let’s not get caught up in that game. The union leadership in our province is a well-oiled machine and are working well together because we all know that Together We Are Stronger.