The provincial government violated the rights of the Nova Scotia Teachers Union when it took steps that effectively removed new school psychologists, social workers and speech-language pathologists from the union, an arbitrator has ruled.

In an award released this week, arbitrator Eric Sloan said the decision by the Education Department to no longer require that specialists obtain a special teachers certificate before taking a job in a school, which meant they would not be part of the NSTU, was made unilaterally and "breached the collective agreement in numerous respects."

"It is also in violation of some of the regulations and statutes," Sloan wrote.

He ordered any specialists hired after the change be put into the union and for the government to cover the outstanding union dues those employees would have paid.

Union leader welcomes ruling

In an email to union members on Wednesday, NSTU president Paul Wozney called the ruling good news and proof the government acted in bad faith when it made the change in 2018 as it announced six new specialist job postings. The change was also applied to any existing specialists who worked on contracts and had to apply for jobs each school year.

"This decision confirms the government's unilateral actions did not respect the rights of teachers and specialists or comply with longstanding mutual agreements or labour law principles."

The government announced the change in the spring of 2018. The union grieved the matter, saying it violated the Teachers' Professional Agreement.

In his ruling, Sloan agreed.

"Eliminating special certificates was merely a means to an end. What was intended, and is most objectionable, was an attack on the integrity of the bargaining unit, and the siphoning off of what used to be union jobs into a new category of individually negotiated, non-union employment contracts."

Education Minister Zach Churchill told reporters on Thursday the decision was made to reflect the fact that the needs of students who require psychological services or other specialist help doesn't end with the school year.

The change meant an additional 300 students were able to receive specialist services last summer.

"We know that mental-health needs do not stop in the summertime," he said. "We know they don't stop in the holidays."

Churchill said the government was acting "in the interest of students" when it made the change, which he said stemmed from a recommendation the inclusive education report to make specialist services more available. He said the arbitrator's decision negatively affects student services.

The Education Department was ordered to pay the outstanding union dues the specialists would have paid. (Robert Short/CBC)

Sloan said the issue at hand wasn't department policy about when people worked, but whether specialists are considered teachers in the context of the professional agreement. He said history, and the evidence presented during hearings, showed they are.

"For the department now to take the position that special certificates were not 'teachers certificates,' that the specialists were not working as 'specialist teachers' or simply 'teachers,' is a total about-face from what had been the common understanding for decades."

In his email to NSTU membership, Wozney said the union is "committed to working with government towards meeting the needs of all students."

"Now that this issue has been resolved, I hope we can engage collaboratively to address many of the challenges facing our public education system."

Labour Relations Minister Mark Furey said the government is reviewing its options, although he wasn't sure what they are. He wasn't sure if it's possible to appeal an arbitrator's ruling, and while legislation could be an option, Furey said it's not one he's interested in pursuing.

The two sides are currently in contract talks and Furey said the issue is something that could, in theory, be discussed discussed at the bargaining table.

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