The Ontario Nurses' Association is launching a constitutional challenge to strike down the Hospital Labour Disputes Arbitration Act (HLDAA), a 1965 statute that is among the most restrictive labour relations regimes in the world. Enacted before the Canadian Charter of Rights and Freedoms existed, it applies a blanket ban on any form of job action for all nurses and health-care professionals working in hospitals and long-term care homes. This amounts to more than 90 per cent of health-care workers in Ontario.
Nurses and health-care professionals in most of Canada – and in many countries around the world – have the right to take some job action, including a limited right to strike while maintaining essential patient care. For decades, HLDAA has stripped Ontario nurses and health-care professionals of fundamental constitutional rights and has created a system where employers routinely sidestep meaningful collective bargaining.
Arbitrator decisions in Ontario have largely reinforced the status quo and have consistently failed to address systemic issues like understaffing. After endless rounds of negotiations that have failed to deliver the changes we need, we are fed up that our constitutional rights to meaningful collective bargaining are being violated.
The status quo is broken. This is why we are fighting to restore our rights and strike down HLDAA.
HLDAA regulates collective bargaining and prohibits collective job action, including strikes, for hospital employees. HLDAA mandates that collective bargaining impasses be resolved through binding interest arbitration.
HLDAA was first introduced in 1965, at a time before labour rights were recognized as constitutionally protected by the Charter of Rights and Freedoms.
The government of the day selected the most restrictive option to limit health-care workers’ rights through:
HLDAA imposes one of the most restrictive bans on collective job action in the world. HLDAA is an outdated piece of unfair legislation that impacts our members’ bargaining power and the health-care system as a whole.
A Charter challenge is a legal proceeding in Canada where an individual or group argues that a government law, action or policy violates their constitutional rights under the Canadian Charter of Rights and Freedoms. These challenges aim to invalidate laws, secure remedies for rights infringements and/or set legal precedents.
The legislation interferes with the right to collective bargaining under the Charter by removing the right to collective job actions, including even a limited right to strike, for more than 90 per cent of health-care workers in Ontario.
This is a gendered issue, as more than 90 per cent of workers whose right to strike is removed by HLDAA are women, working in historically female-dominated and undervalued professions.
HLDAA removes the motivation for employers to bargain in good faith because they can depend on interest arbitration to resolve disputes. Workers are stripped of their collective power to win important systemic changes that will improve working conditions and health care.
ONA members are calling for HLDAA to be struck down, in order to provide Ontario’s hospital and long-term care nurses and health-care professionals with the same access to meaningful collective bargaining that other workers have, including health-care workers across Canada and around the world.
Nurses and health-care professionals want to fight for better staffing and better care. But without the right to effective negotiations with the right to job action, we can only do so much.
Governments and employers have made it clear they cannot be trusted to protect patient care and do what is in the best interests of our public health-care system. ONA’s Board of Directors unanimously voted to challenge HLDAA in court, supported by a majority of ONA hospital members.
The arbitration system in Ontario is broken. Hospital employers have not reached a negotiated agreement with nurses in many years.
Instead of bargaining fairly, employers have relied on arbitrators to impose contracts that ignore the demands of front-line workers to improve their working conditions and the quality of patient care, such as by mandating minimum nurse-to-patient ratios.
Without the right to effective bargaining backed up by the right to job action, nurses and health-care professionals are stripped of the power needed to fight for better conditions that would retain staff and protect patient care.
It’s time to restore the rights and interests of nurses and health-care professionals to have meaningful collective bargaining and end the current relied-upon system of imposed interest arbitration, which denies the true value of health-care workers and accessible patient care.
ONA surveyed our hospital members about taking this legal action, and an overwhelming majority said they support our Charter challenge.
ONA is blazing a trail with this challenge because standing up for patient care is part of a nurse’s professional accountability to the College of Nurses of Ontario. The Ford government and health-care employers have made it clear over years that they cannot be trusted to listen to nurses and health-care professionals or make decisions in the best interests of patients and residents.
Without the power to take any kind of job action, nurses and health-care professionals cannot exert the pressure needed to win improvements to stabilize the workforce and address critical issues of health care that have hurt patient care and decimated Ontario’s health-care system.
The ability of nurses and other health-care professionals to strike depends on local labour laws.
For example, in British Columbia, Alberta and many other jurisdictions, unions and employers negotiate an “essential services agreement” before any strike can happen. This agreement typically sets out which services need to continue, and the number of nurses and health-care professionals required to maintain patient care.
This balance rights to collective job action with safe patient care.
There are many different types of job actions that our members can take to put pressure on employers, and a strike is just one possible option among several strategies that could be considered.
A Charter challenge is a complex legal process, and timelines can vary depending on the case. For context, a similar challenge to Bill 124 that ONA and other unions initiated took several years to work its way through the courts before a court decision to strike down Bill 124 was reached.
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