No magic wand to deal with health care strikes

May 16, 2007

After the recent 15-hour strike at the IWK Hospital (the first there since 1981), the Nova Scotia government is once again considering legislation to "deal with" strikes in health care. But Premier Rodney MacDonald will look in vain for a magic wand to wield.

Health care, full of skilled and specialized employees whose work has greatly intensified, has long been highly unionized. Better wages and conditions beckon elsewhere and some Nova Scotia health workers leave the province. But we’re all lucky that most stay and fight for better terms. And when nurses, technologists, therapists and other staff become sufficiently frustrated with their inability to negotiate those, they go on strike.

Of course, strikes cause disruption, inconvenience, the cancellation of elective services and uncertainty. That is their purpose. The issue is more emotive when children are involved. But all health care strikes involve vulnerable people.

Governments across Canada have devised three approaches to the problem. Some, like Alberta and Ontario outlaw health care strikes. Some, like British Columbia and New Brunswick, legally specify that a proportion of workers must work during a strike. Still others, like Nova Scotia and Saskatchewan, leave strikes and emergency services up to unions and employers.

No doubt, some in the Nova Scotia cabinet wish they could ban health strikes entirely. But there are two big problems.

First, there must be a substitute mechanism to settle bargaining disputes – usually arbitration. However, that leaves settlements to a third party and both sides are skittish about that as a permanent solution. Since 2000, when an arbitrator awarded provincial ambulance workers a (much-deserved) 20 per cent raise, Nova Scotia governments have hesitated to enshrine arbitration.

Second, outlawing strikes does not guarantee compliance. For example, Alberta allowed health care strikes until 1983, then outlawed them. Yet the threat of heavy fines and other penalties didn’t stop nurses in 1988, hospital laundry workers in 1996, and licensed practical nurses in 2000 from walking out. All three precipitated political disasters for the government when public support favoured the strikers.

Ontario threw union leaders in jail when health support workers defied the law in 1981, but it was a public relations nightmare for the government. And who can forget the threatened mass resignation of Nova Scotia nurses in 2001 when the government made their strike illegal? It was as if the government were following a textbook on how to make a bad situation worse.

Having turned law-abiding citizens into criminals with one stroke of the legislative pen, government spokespeople try to insist that "the law is the law." But the public isn’t buying. Canadians are deeply uneasy about the future of medicare, and union slogans such as "bargaining for the future of health care" (used so effectively by Manitoba nurses in 2001) resonate deeply.

Outlawing strikes is asking for trouble and governments should refrain for the same reason they recognized the right to strike in the first place: the threat of withdrawal of labour is the only threat that many employers take seriously and workers have traditionally used this weapon whether it was legally sanctioned or not. Experience shows that it’s voluntarism that works best to resolve disputes.

But what about "essential services" legislation? That, too, is full of problems. Quebec law, for example, specifies a certain percentage of workers who must work during a strike. The number is deliberately set high, so high that often more people must work during a strike than under normal conditions! Health care workers cynically treat the legislation like a permanent strike ban. Quebec nurses have walked out several times, including the longest nursing strike in Canadian history in 1999.

Some provinces give the final, binding decision to a third party, like an arbitrator or the labour relations board. But even this is a problem. Knowing a third party will eventually decide, administrators invariably exaggerate the harm a strike will do and the proportion of workers they consider "essential." As non-experts in health care, third parties invariably err on the side of caution, robbing unions of any real clout. Ironically, this prolongs the strike, embitters the parties, and actually increases the probability of continued rancour.

In fact, in Nova Scotia and Saskatchewan, where the system is voluntary, the level of emergency services is always high. Previous to the IWK strike, union and management agreed to voluntary third-party help to negotiate an emergency services agreement. A significant proportion of the "strikers" were inside the building looking after their patients or "on call." If anything, left to their own devices, unions themselves err on the side of caution. The key here, again, is voluntarism.

We have been studying health care labour relations for over a quarter century. Given the increasing stresses of health care work and the glaring salary disparities for many health occupations, what impresses us is how seldom strikes happen, how seriously workers take their duty to their patients and how reasonable unions are – perhaps too reasonable for the good of their members.

The exact wrong response is for governments is to infantilize otherwise dedicated health care workers by taking important decisions out of their hands. As one of the only provinces without centralized bargaining, Nova Scotia already guarantees a reduced impact of health care strikes. The best way to ensure that mature labour relations continue is to accept the possibility that strikes will occasionally and briefly occur, to weather the disruption and inconvenience and to know that, given real choices, health care workers and their unions act responsibly.

Judy Haiven and Larry Haiven teach in the Sobey School of Business at Saint Mary’s University and are research associates with the Canadian Centre for Policy Alternatives. They are authors of The Right to Strike and the Provision of Emergency Services in Canadian Health Care.