The Higgs government has introduced legislation to fix legal flaws in the law that establishes how many nursing home workers can strike in the province.

The bill, introduced Tuesday by Social Development Minister Dorothy Shephard, adds binding arbitration to the process, but with conditions that an arbitrator must consider — including the province's ability to pay.

The proposed amendments are designed to address a court ruling earlier this year that the Essential Services in Nursing Home Acts is unconstitutional.

Justice Tracey DeWare upheld a Labour and Employment Board ruling to that effect, giving the province six months to pass changes to comply with her ruling.

Shephard told reporters that the new legislation creates new mechanisms to decide what percentage of a home's employees should be deemed essential.

"We recognize that those levels were not fair to unions and they needed to have a mechanism by which they could have meaningful negotiation and strike effort," she said. "So this legislation will address those numbers."

DeWare's ruling last July, and the earlier labour board decision, looked at a 2014 ruling by the Labour and Employment Board. Made under the existing act, the 2014 decision declared 90 per cent of employees at York Care Centre in Fredericton to be essential.

The board found that eliminated the possibility of a meaningful strike as part of the collective bargaining process, but there was no provision in the existing law for binding arbitration to balance the loss of that right by protecting the union.

The proposed amendments lay out a more elaborate mechanism for setting the percentage, including adding the role of a mediator. Each home will establish its own number.

It also adds binding arbitration as a recourse if the two sides can't reach a collective agreement, though it attaches conditions, including the ability of the nursing home to pay.

"We have to take measures first off to protect our residents," Shephard said, but "whatever agreements we come to must be affordable to New Brunswickers."

Tight timeline

Opposition Liberal MLA Gilles LePage said that clause concerned him because it was a sign the province did not want to pay the workers a fair wage.

"I'm very scared of those conditions," he said.

He didn't say whether the Liberals would support the bill.

Non-profit nursing homes are funded by the province so the bill says the home's ability to pay should be considered "in light of the fiscal situation of the Province."

The government is under a tight timeline to pass the amendments because 4,100 unionized workers in 46 non-profit care homes, represented by the New Brunswick Council of Nursing Home Unions, voted to strike earlier this year.

Should the Jan. 2 expiry of the old law arrive without a new law to replace it, it would remove a legal barrier to a walkout.

Greens, Alliance non-committal

The Progressive Conservative minority government will need at least one other party in the legislature to help pass the legislation, and it wasn't clear Tuesday whether that would happen.

Green Party Leader David Coon called the ability-to-pay clause "an attack on labour," while People's Alliance Leader Kris Austin was non-committal.

"I've got to look at the bill, get our research team to go through it and the implications of it, and go from there," Austin said.

In May, the Liberals, the Greens and the Alliance passed a symbolic motion calling for the government to send the dispute to binding arbitration without conditions.

"We hope that MLAs who voted in the majority for free, unfettered binding arbitration on May 30 of this year are going to be the same MLAs who vote this down," said Simon Ouellette, a spokesperson for the Canadian Union of Public Employees, which includes the nursing home unions.

The province declared in September it was making a final offer to the union in the wage dispute. That triggered applications by the New Brunswick Association of Nursing Homes for votes on the offer at several homes.

Because each nursing home is considered an individual workplace, separate votes must take place in each one.

But last week the association withdrew its requests for final-offer votes in several homes after workers at three homes overwhelmingly rejected the offer.