Stephen McNeil’s Collective Bargaining Game

The thing about this game — as the government demonstrated last week when it changed the law to take away Crown prosecutors’ collective bargaining rights — is that McNeil always wins. That’s the way the game works. Always.

Let’s play a game. A shell game. You say it’s not a game to you. I say it’s always a game, and I always win. That’s the game.

You say no one told you we were even playing. That’s part of the game too. I get to decide when it’s game on.

So take that shell in your hand — the one that says “Arbitration” — and hand it over. Right now.

Don’t worry, I have another, shinier shell for you to replace it with. It says, “Right to Strike.”

Now isn’t that better? Much more impressive?

But no! Don’t even think about trying to use it. If you do, I’ll magically transform your “Right to Strike” shell into an “Essential Services” shell. Do not pass “Go.” Do not collect a penny more than I say you’re entitled to.

That’s my game. What do I call it? Why, “Stephen McNeil’s Collective Bargaining Game,” of course. Did I mention I always win?

It might be amusing if it weren’t so consequential. Premier Stephen McNeil is once again using his yes-master Liberal legislative majority to attack yet another group of public sector workers’ collective bargaining rights. This time it’s the province’s 100 Crown prosecutors, the overworked, under-resourced “drowning” men and women responsible for bringing criminal cases — murder, sexual assault, child pornography, fraud — to court every day in Nova Scotia.

Last week, without bothering to consult, or even notify, the prosecutors, the McNeil government introduced Bill 203. It will unilaterally amend the Crown Attorneys’ Labour Relations Act to replace the prosecutors’ right to binding arbitration with a new right to strike, which is not really a “right” at all since the government will almost certainly declare their jobs essential if they ever try to use it.

In fact, Martin Herschorn, the director of public prosecutions, took the unprecedented step of testifying against the bill at a legislative committee last week, calling the government’s claim the prosecutors still had a right to strike “meaningless … misleading and disingenuous… What Crown attorneys would be able to strike?” he demanded. “What murders, child pornography or sexual assault cases would be left unprosecuted?” If Bill 203 proceeds, he added, it will be a “disaster” for the prosecution service, which will have difficulty attracting and retaining staff.

First, a little context may be helpful. The government, which racked up a $120-million surplus last year, isn’t worried about the $2.6-million extra it would cost to meet the prosecutors’ demands. Instead, it’s afraid of what giving them what they want because it could set a precedent for other public servants. Which is a fair concern. But rather than trying to come to an agreement that is fair to both sides at the bargaining table, the government decided to simply eliminate the table altogether and dictate the solution it wants.

A little history might be useful.

In January 2016, the province and the Crowns reached their last contract with no fuss, no muss. That’s because the Crowns meekly went along with the McNeil government’s draconian wage dictates — no wage increases for the first two years (in the lead-up, it should be noted, to the last provincial election) with a total wage raise of three per cent, which was below the cost of living, over the four-year life of the agreement. Since the Crowns hadn’t threatened to take the government to arbitration, the government didn’t bother to take away their right to arbitration. At the time, in fact, the McNeil government even agreed to extend the Crowns’ right to binding arbitration for another 30 years.

Six months after they reached that deal, however, the Supreme Court of Canada changed the game for what constituted a fair trial in Canada. And changed the daily lives of prosecutors in the process. In the Jordan case, our top court ruled that trials had to happen within a reasonable time period — 18 months from the laying of a charge to the conclusion of a trial in provincial court cases, 30 months in Superior court cases. Any delays beyond that would be considered “presumptively unreasonable” and an accused might walk as a result of the violation of their right to speedy justice. From then on, the court declared, the onus was on the Crown to prove any delays were caused by circumstances beyond their control.

While other provinces moved quickly to increase the number of judges and Crown attorneys to cope with the new requirements, “the government of Nova Scotia has yet to promise anything,” the then-head of the Crown Attorneys’ Association told the CBC six months after the Supreme Court decision. “It seems they’re ignoring the Jordan problem.”

While the province eventually did appoint two “term” Crowns and an intern to deal with pressures from the Jordan decision, Rick Woodburn, a member of the Crowns’ current bargaining team, said last week that prosecutors are still “brushing up against those [Jordan] timelines as we speak. It’s exactly why we want binding arbitration. We want to make sure that the courts move forward in a smooth fashion.”

When its contract with the McNeil government expired Mar. 31, the Crowns’ opening ask was for a 17 per cent salary increase over four years, which would have made them the highest-paid prosecutors in Atlantic Canada but merely put them in the middle of the salary pack among prosecutors in Canada. The government countered with a 7.2 per cent offer over the same time frame. Since June, there had been four face-to-face collective bargaining sessions, including two with a conciliator this month, without much progress. It appeared inevitable the Crowns would ask for binding arbitration.

So when the going got tough, the tough got going. “This legislation is not a step we take lightly,” Finance Minister Karen Casey declared, insisting that the government couldn’t be bound by an arbitrator’s decision it couldn’t dictate. “We have never backed away from the tough decisions.”

Uh, earth to Karen. Aren’t you forgetting the $20 million you just poured into the Bay of Fundy this year for a ferry that didn’t ferry anyone anywhere?

In that case, when the going got tough, the tough got giving. And giving. And giving…

Let’s play a game. A shell game. You say it’s not a game to you. I say it’s always a game, and I always win. That’s the game.

And so it goes.

This column first appeared in the Halifax Examiner October 21, 2019.

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