Nova Scotia Teachers Union, province to face off in court

Teachers staged a march to then-Education Minister Karen Casey’s riding office in Truro in November 2017. – Harry Sullivan

The Nova Scotia Teachers Union is redoubling its push to get school specialists reinstated in the bargaining unit.

“We are going on two years in which the working lives of school psychologists and speech language pathologists have been much in turmoil because the government refuses to respect the law as it relates to arbitration awards,” said union president Paul Wozney.

Before 2018, non-teaching professionals working in the school system were required to obtain a special teacher certification from the province. They were members of the NSTU.

The province struck a committee in 2017 to revamp its policy on inclusive education and, in 2018, the province said it would continue to hire specialists, but would no longer require them to be certified as teachers.

The teachers union filed a grievance over the issue in June 2018, asserting that the government had unilaterally changed the teachers’ certification system to exclude specialists.

A ruling by arbitrator Eric Slone in November 2019 restored the specialists to the NSTU and ordered the government to reinstate specialist certifications and to reimburse the union for lost dues, plus interest.

The union maintains that 60 of the province’s approximately 300 school-based speech language pathologists, psychologists and social workers have been excluded from the NSTU by the government’s action.

In the wake of Slone’s arbitration award, specialists were still being told by their employers that they would remain outside the union.

“We know that if Eric Slone had delivered an arbitration award that really disadvantaged the teachers union and advantaged the government, they (government) would be calling on the union to follow through,” Wozney said.

The province has applied to stay the Slone certificate award pending the education minister’s application for a judicial review of the arbitration awards to be heard on Oct. 8. The stay application will be heard Aug. 5 by Justice Darlene Jamieson and a pre-hearing telephone conference on the stay proceeding will be held Thursday.

Halifax lawyer Gail Gatchalian, representing the union, said if Jamieson decides not to stay the arbitration decision, “then arbitrator Slone’s decision is of legal force and the minister of education should comply with that award.”

“That’s what usually happens, if an arbitration decision goes against an employer, they comply with it,” Gatchalian said.

But the union is taking an additional step.

“Just in case they continue not to comply with it, which would really be unfortunate, we have scheduled an enforcement application,” Gatchalian said.

The enforcement application, if needed, is scheduled to be heard on Aug. 31.

“Because the government is unwilling to honour the terms, this is the only recourse that we have,” Wozney said. “Effectively if we are successful in our application, if the government continues to refuse to implement the arbitration award, they will be in contempt of the Supreme Court of Nova Scotia.”

Wozney said the positions in question have always been bargaining unit positions.

“They must be repatriated to the union and then anybody that has been treated other than that, there has to be a remedy for the harms they suffered because they haven’t enjoyed the benefits of union membership. The longer the government refuses to abide by the arbitration award, the more significant those harms become for each and every member.”

Wozney said specialists working outside the union no longer accrue seniority and their jobs are not permanent positions.

“The government can force regional centres to arbitrarily adjust the working conditions of specialists,” he said. “You can have five people technically doing the same job with five very different sets of working conditions.”

Gatchalian said the 60 or more affected employees “don’t have union representation, access to the grievance procedure, they don’t have just-cause protection, they are not enrolled in the teachers pension plan,” all the  things that go along with being part of a union.

“We want them to be treated as they should be, as part of the union and protected by the collective agreement as we wait for the judicial review decision.”

The teachers union will also be asking a presiding judge this week to set down dates for a hearing related to its charter challenge of Bill 75, the controversial piece of legislation passed into law on Feb. 21, 2017, that imposed a contract on Nova Scotia’s public teachers after a series of unsuccessful and contentious bargaining sessions.

Gatchalian said prior to the COVID-19 pandemic and the backlog of cases it has generated, she had hoped that dates could have been set for that hearing before year’s end.


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