In a filing for a judicial review Monday, CUPE alleges the emergency order is unconstitutional. CUPE is asking a judge to quash the emergency order, which they allege contravenes the workers' right to freedom of association or to belong to a certain organization.

Last week, Public Safety Minister Ted Flemming said cabinet was using the Emergency Measures Act to issue an order forcing the health-care workers to go back to their jobs. The order says if a person fails to comply with it, the "employee organization" they're a member of would be fined a minimum of $100,000, with no maximum limit, for each day they don't comply.

CUPE application says the fines exceed what's allowed through the Emergency Measures Act, and constitutes "cruel and unusual punishment", which also contravenes the charter. 

Health authority CEOs said order was necessary

The CEOs of the two health authorities said the system had reached a breaking point with not enough custodians and workers to keep the trash cans empty and the bed sheets clean.

Several COVID-19 testing and vaccination centres were also closed because of lack of staff, according to the province.

One local has about 70 per cent of its workers designated essential and therefore not on strike, but the province and health authorities said that number was still not enough to keep the system functioning and people safe.

Over the weekend, the affected custodians, patient services workers and laundry workers were back on the job while their union challenged the order with the New Brunswick Labour and Employment Board.

The board dismissed the complaint, saying there wasn't enough evidence to prove the province broke the law by forcing workers off the picket lines.

The next day, CUPE filed the lawsuit.

The province has not filed a statement of defence and no date has been set to hear the case. 

'We will defend it fully in court'

Premier Blaine Higgs said Monday the province is prepared to spend as much money as it needs to in order to "keep the health and safety of our citizens first and foremost."

"It's just unfortunate that it would continue to challenge us in court when we have an emergency measures act in place, when we have a pandemic on the fourth wave and we have situations in our hospitals that need to be addressed," he said in a news conference Monday. "We were cancelling, you know, elective surgeries and starting to get to a point where we could go beyond that.

"It's kind of hard to imagine that the CUPE leadership would take a position that they are, but I assure you, we will defend it fully in the courts."

The remaining locals not involved in the back-to-work order remain on strike, including certain school staff and transportation workers.

Higgs made the comments to reporters after the Opposition Liberals questioned whether he plans to keep the emergency order in place in perpetuity, even after COVID-19 hospitalizations fall below the threshold for lifting restrictions.

"If the CEOs [of the two regional health authorities] and Public Health were to say, 'Okay, we're good to go,' then we'd be in a situation where we could say, 'Okay, we don't need to maintain this regulation about back to work," he told reporters.

"Workers could go back on strike if they chose to do so. I would like to think that during this time frame that they will have a chance to vote on the offer that's on the table, and all of this would be unnecessary."

Use of emergency powers

Last Friday the province used the same emergency powers to order striking hospital workers back on the job. Most of them are members of the 9,000-strong Canadian Union of Public Employees Local 1252. 

The province declared a new COVID-19 state of emergency on Sept. 24 under the provincial Emergency Measures Act and issued a new mandatory order on masks and other measures.

At the time they said that order would be lifted when fewer than 10 New Brunswickers were hospitalized for COVID-19. 

Hospitalizations peaked at 68 on Oct. 13 and have been trending downward since then. On Tuesday there were 16.

That trend prompted the Liberal Opposition to ask Tuesday what will happen to the order applying to health workers if that number dips below 10.

"Premier, are you going to have a state of emergency forever, as long as you're premier?" Liberal Leader Roger Melanson asked during question period.

Justice and Public Safety Minister Ted Flemming pointed out that the back-to-work order is separate from the COVID-19 restrictions order.

But Higgs acknowledged to reporters that it is linked to the pandemic.

"It is a separate document, but it is allowable because of the province being under an emergency order, so the two are tied in that sense, because it is health and safety." 

At first he refused to answer questions about what will happen when hospitalizations dip below 10, calling them hypothetical.

He then said he wouldn't necessarily keep the back-to-work order in place.

"I'm not saying that would be the case at all. We would decide at that point at time based on the Public Health assessment and the CEOs' assessment about what would be the next step." 

Thousands of striking and locked-out public sector workers and supporters gather at the Legislature in Fredericton on Nov. 2, days before striking health-care workers were ordered back to work. (Jacques Poitras/CBC News)

He pointed out that it was the health authority CEOs who asked for the order last week based on hospitals reaching the breaking point.

He said any decision to lift the order would be based on the same consideration, not the state of the labour dispute.

Green Party Leader David Coon, who called the use of the emergency order "autocratic" last week, said he was not reassured by Higgs's comments. 

"I guess I don't buy it. I don't see that happening. I think that's just politics." 

Green Party Leader David Coon said on Twitter the Higgs government's use of the Emergency Measures Act powers to order public sector workers back to work is "unacceptable" and "circumvents the democratic process of the Legislature." (Ed Hunter/CBC)

Current status on negotiations

The order signed last Friday applies only to health-care workers. About 70 per cent of CUPE Local 1252 members had been designated essential and were still working despite the strike.

School staff, jail guards, court stenographers and other CUPE members on strike were not affected by the order and continue to walk picket lines.

Higgs continued to insist Tuesday that CUPE leaders put what he called a new offer to members for a vote, though union officials argue that's not possible unless they and the province reach a tentative agreement.

The premier has claimed there was a deal last Thursday night that union leaders would take to workers. CUPE denies that, saying it responded to the government's proposal with a counter-proposal in the wee hours of Friday morning.

The two sides were not far apart on wages but Higgs is insisting that two CUPE locals agree to look at a new pension system.

The province has the power to declare a "final offer" and ask the New Brunswick Labour and Employment board to order union members to vote on the proposal. 

"We are looking at that, because it is an option," Higgs said Tuesday.

On Friday, Public Safety Minister Ted Flemming said cabinet was using the Emergency Measures Act to issue an order forcing more than 3,000 striking health-care workers to go back to their jobs.

Over the weekend, the affected custodians, patient services workers and laundry workers went back to work while their union challenged the order with the New Brunswick Labour and Employment Board.

According to board ruling filed Sunday, CUPE alleged the province was trying to "compel, by intimidation or threat," employees who are not designated essential to stop striking.

In its response, the province first said the labour board lacked the jurisdiction to consider the mandatory order. The province also said the order is lawful and denied CUPE's allegations.

The order does not note the reasons why the complaint was dismissed, except to say the chair was not satisfied that the province violated the Public Service Labour Relations Act.

The full written reasons are typically completed weeks after the decision itself is made.

On Saturday, CUPE president Steve Drost said the union's lawyers are looking into how they could challenge it.

"It's simply a tool that was used to interfere with these members' legal rights," Drost said of the back-to-work order.

Higgs ready to defend use of emergency act

Asked how the province would respond if CUPE went to court over use of the emergency act, Premier Blaine Higgs said the province would continue to defend the "health and safety of our citizens."  

"It's just unfortunate that CUPE would continue to challenge us in court when we have an Emergency Measures Act in place, when we have a pandemic [in] the fourth wave," Higgs told reporters Monday.

"We have situations in our hospitals that need to be addressed and we were cancelling elective surgeries and starting to get to a point where we could go beyond that.

He said he found CUPE's position hard to understand, but if the union continues to challenge the back-to-work order, "we will defend it fully in the courts."

Offer, counteroffer, pension impasse

On Thursday night, the province made CUPE officials an offer that's closer to what the union has been asking for when it comes to wage increases.

The offer includes a two per cent increase over five years, plus a 25 cent increase per hour over the same number of years. 

The province's offer also includes a memorandum of agreement, where to move forward, both sides would have to agree to allow pension representatives to find a "new retirement vehicle" for two locals. 

Higgs said Monday that the government proposal of wage increases totalling 15 per cent over five years reflected the  good work of employees.

"This offer reflects what people have done throughout the pandemic," said Higgs.

The two locals, one representing school support staff such as bus drivers, and the other representing educational and clerical assistants, are the only ones remaining with no shared-risk pension plan.

READ: The province's new emergency order forcing health-care workers back to work

The transition to shared-risk pension plans has been contentious. In 2016, CUPE joined a lawsuit against the "unilateral conversion" of the province's public service pension plan into a shared-risk plan.

A shared-risk plan means an employee's retirement payout could increase or decrease depending on how their pension plan is performing.

"The rights of CUPE members and many other public-sector workers were violated when the government unilaterally imposed pension changes on workers, in violation of their right to free collective bargaining," Daniel Légère, then-president of CUPE New Brunswick, said in 2016.

Drost posted a video on Sunday explaining the counteroffer CUPE submitted in response. In it, he outlined wage increases that are almost identical to the ones the province was offering. However, the retirement-plan point in the province's offer would be "major concession" by the union.

Back-to-work emergency order and impact on strike, health care

The health-care workers were ordered back to work Friday after a full week of striking.

In one group, Local 1252 representing support staff and maintenance workers in hospitals, 70 per cent were designated essential and were still working.

However, the CEOs of the province's two health authorities said the system is close to a breaking point, and the remaining 30 per cent were needed urgently.

Over the week of the strike, COVID-19 testing and contact-tracing capacity was significantly reduced, with multiple vaccination clinics cancelled.

If workers don't report to work once ordered, the province could fine them between $480 and $20,400 for each day they don't comply, according to the new emergency order.

On Monday, a few days after the emergency order was enacted, Higgs said he's been impressed with the returning employees' work ethic.

"I've been so impressed with the people that have come back to work and have done so and integrated right back into the workforce as we thought or hoped they would, because they are our friends and neighbours."

That doesn't mean they're content, according to the union. Chris Curran, the president of Local 1251 representing laundry workers, said earlier that members were frustrated and angry with the use of the emergency order.

"Members feel like they've been cheated of their right to strike."