Ordering CUPE back to work won't be a simple process for Higgs, says labour lawyer

The Higgs government will be facing legal and procedural obstacles if it tries to force striking public-sector workers back to work when the New Brunswick Legislature reconvenes Tuesday.

Premier Blaine Higgs says he's looking at back-to-work legislation that would order some or all striking members of the Canadian Union of Public Employees to end their walkout.

But that route is not a simple one. Nor is the premier's other option: using the province's COVID-19 state of emergency.

No government in Canada has used back-to-work legislation since 2015, when the Supreme Court of Canada ruled that the right to strike is protected by the Constitution, says Ottawa labour lawyer Paul Champ.

"No one has tried it," he says. "I'm sure government lawyers across the country have looked at it and decided to step away, and I'd be interested to see if New Brunswick thinks somehow that they can get away with it." 

The 2015 ruling quashed the Saskatchewan government's attempt to unilaterally decide which unionized workers were essential and then ban them from striking.

"The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations," it said. "It is an indispensable component of that right."

Champ says that means any government seeking to restrict that right "is going to have an uphill battle to try to justify it."

Another obstacle is timing.

The government swept away one time-gobbling obstacle Monday by cancelling the speech from the throne scheduled for Tuesday.

That also means no Official Opposition reply to the speech Thursday, freeing up two days for regular business.

"Not having a throne speech does give us additional flexibility that allows us to move quicker as needed," Higgs said Monday, though he said there would be no bill introduced Tuesday.  

Still, any bill must be read and voted on three times and must also go through a committee review.

And under the legislature's rules, each of those four steps must happen on a different sitting day.