Hay River health authority, union in rare ‘unlawful strike’ argument

Hay River’s health authority and the Union of Northern Workers are in a legal dispute that one expert says is without precedent after the union declared a strike, but did not strike, while the town was evacuated.

The union had held strike votes in late June and early July, securing what it characterized as “overwhelming” backing from members for strike action over issues like pay increases for the 240 staff the UNW represents.

But Hay River evacuated on August 13 in the face of an oncoming wildfire, and the 60-day window in which to strike after holding such a strike vote was set to expire with the health centre still closed and thousands of people displaced.

Seeking to avoid having the ability to strike simply time out with everyone evacuated, the union issued a declaration of strike in early September, before the evacuation order had lifted, but staff did not actually go on strike – and nor have they since.

The health authority says that move was unlawful and had the effect of artificially prolonging the threat of strike action beyond the usual 60-day limit. The union says the health authority is using “labour relations dollars to fight with us instead of focusing on coming to a fair deal.”

The Canada Industrial Relations Board must now decide which party is correct.

“This is not a step we took lightly. Because this is in front of the board right now, I don’t believe it would be appropriate for me to comment further at this time,” health authority chief executive Erin Griffiths said in a Tuesday statement.

All the while, negotiations are ongoing and the two sides may yet reach a settlement before the board’s verdict becomes a factor.

The health authority says it is now offering a five-year “attractive deal” to workers. The union says the latest offer “represents an improvement” but “falls short of keeping pace with all other NWT healthcare and social services workers,” who are served by a separate collective agreement with the territorial government.

“The amended offer also still contains unacceptable concessions which would negatively impact the pay of some employees,” the union stated on its website last week.

‘Never faced before’

At the Canada Industrial Relations Board, the question of what happens to the ordinary strike process mid-evacuation may be a novel one.

“I don’t think we’ve ever had a situation where a strike vote has been taken in the conventional fashion and then the parties were forced to suspend bargaining because of a fire – what they call in law the force majeure,” said Mark Thompson, professor emeritus at the UBC Sauder School of Business, who has spent more than 50 years studying Canadian industrial relations.

“If you take the strict reading of the Canada Labour Code, the life of the strike notice has expired. But on the other hand, both parties were unavailable to bargain because of the evacuation,” Thompson said by phone on Wednesday.

“So the Canada Industrial Relations Board has to decide whether to go by the strict letter of the law or to consider the extenuating circumstances, and I don’t think that’s ever faced them before.”

Thompson suspects the board will be inclined to err on the side of a strict interpretation “and say, well, 60 days is 60 days, and you’ll have to go through the secret ballot vote again.” He thinks a decision is likely within days.

Issuing a declaration of strike, Thompson said, doesn’t necessarily “mean much of anything.”

“I doubt that just saying, ‘Hey, this is a strike,’ is going to fly,” he told Cabin Radio.

But he said the most important aspect of the current situation is that the parties are still talking.

“If the parties are bargaining, that’s the best situation,” Thompson said.

“They can battle these things out in the labour board, but the real decisions are going to be made at the bargaining table.”