Ontario Labour Relations Board

[1980] OLRB Rep. July 1009

1923-79-M Mechanical Contractors Association Ottawa and Mechanical Contractors Association Ontario, Applicants, v. J.G. Rivard Limited and Michel Rivard Plumbing Limited, Respondents.

BEFORE: R.A. Furness, Vice-Chairman, and Board Members C.A. Ballentine and F.W. Murray.

DECISION OF THE BOARD; July 31, 1980

1. The applicants have referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding arbitration under section 1 12a of The Labour Relations Act.

2. In the referral the applicants have stated that the applicants and the respondents are bound by the terms and conditions of the Ontario Provincial Collective Agreement between the Mechanical Contractors Association Ontario and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada which became effective in 1978 and which expired April 30, l980.

3. The text of the grievance is set forth in a letter which was filed with the referral. The relevant part of the letter states:

"J.G. RIVARD LIMITED 1735 Courtwood Crescent Ottawa, Ontario K2C 2B4

and

MICHEL RIVARD PLUMBING LIMITED 1735 Courtwood Crescent Ottawa, Ontario K2C 2B4

Dear Sirs:

Re: J.G. Rivard Limited and Michel Rivard Plumbing Limited, grievance of Mechanical Contractors Association of Ottawa and Mechanical Contractors of Ontario

We are the solicitors for the Mechanical Contractors Association of Ottawa and Mechanical Contractors of Ontario and hereby on behalf of those Associations grieve that J.G. Rivard Limited and Michel Rivard Plumbing Limited have failed to remit and continue to fail to remit In­dustry Fund Contributions in accordance with Schedule G of Appendix 13 of the Collective Agreement between Mechanical Contractors Association Ontario and Ontario Pipe Trades Council. Both Companies are bound by the said Collective Agreement.

The violations commenced on or about June 15, 1978 and continue to date. The Grievors Claim is for:—

(a) All damages occurring as a result of the failure to remit including all past contributions owing and all costs incurred in the collection thereof; and

(b) A direction that J.G. Rivard Limited and Michel Rivard Plumbing Limited henceforth remit Industry Fund Contributions in accord­ance with Schedule G of Appendix 13 of the Collective Agreement."

4. In their replies the respondents did not confirm the text of the grievance and denied any collective agreement between them and the applicants or in which the applicant had any interest and that the applicants as employer organizations or on any other basis did not represent them. In the alternative the respondents adopted the position that the claim of the applicants should be dismissed for the reasons set out in their replies. In their replies the respondents stated:

"1 This is a claim by an employer organization to collect if it can from the Respondent amounts classed as payments for "industry fund" which the Applicant or its successors have been attempting to do since 1973 without success. It will be the position of this Respondent that all or any claims with respect to the industry fund by the Ap­plicants are "res judicata". The Respondent is not and has never been at all material times a member of the Applicant organization.

2. By letter dated June 22nd, 1973, attached hereto as Exhibit "A" the Mechanical Contractors demanded payment for industry fund dues.

3. A joint conference board ruled against them by a decision dated December 11th, 1973, attached hereto as Exhibit "B".

4. The Mechanical Contractors Association then brought an applica­tion before this Board under Section 112(a) of the Act and the reasons of the said Board are hereto attached as Exhibit "C" and the rejection of the Mechanical Contractors Association appeal on November 23rd, 1976 is hereto attached as Exhibit "D".

5. The Mechanical Contractors Association sued J.G. Rivard Ltd. in the Supreme Court of Ontario and attached hereto as Exhibit "E" is the [sic] a copy of the Writ of Summons, Statement of Claim, Statement of Defence, and Reply and Joinder of Issue.

6. The Reasons of the Supreme Court of Ontario in dismissing the claim are here attached as Exhibit "F".

7. The Applicant, Mechanical Contractors Association of Ottawa appealed from the decision and a copy of their notice of appeal is hereto attached as Exhibit "G". The Applicant abandoned its appeal which as a result was then dismissed as an abandoned appeal.

8. The Respondent has made known throughout that the Applicants do not represent it, it is not a member thereof and that the "industry fund" provisions are not properly part of any collective agreement but are simply a method of feathering the nest of the employers organization to which the Respondent does not belong. This issue was brought into contention and dealt with at length by the Honourable Mr. Justice Garrett of the Supreme Court of Ontario and it is respectfully submitted the matter is now res judicata.

9. In the alternative it is submitted that the bringing of this proceeding amounts to an abuse of the process of this Board even if one of the

Applicants was not a party in the Supreme Court of Ontario proceedings."

5. Prior to the hearing of this referral the parties requested and were granted leave of the Board to File written argument with respect to this matter.

6. For the purposes only of making their arguments, the respondents admitted that they were bound by the collective agreement referred to in paragraph two (except for Industry Fund contributions). The respondents drew attention to Schedule G of Appendix 13 of the collective agreement and noted that it provided in effect that every employer bound by the collective agreement was to contribute a number of cents per hour for every hour worked by each employee covered by the agreement to be made to the Mechanical Contractors Associa­tion Ottawa on the forms provided. The respondent asked the Board to note that the Mecha­nical Contractors Association Ottawa was not a party to the collective agreement and stated that the collective agreement was as a result of the designation sections of the Act and in particular sections 125 to 136 thereof.

7. The respondents characterized the grievances as between an employer's organiza­tion and an employer only and that neither an employee nor a union had an interest therein. The respondents conceded that the Mechanical Contractors Association Ontario, pursuant to section 131 of the Act, is the successor of the Mechanical Contractors Association Ottawa so far as industrial and commercial matters in the construction trade are concerned and stated that the Mechanical Contractors Association has since 1973 been attempting to collect "industry fund" dues from J.G. Rivard Limited. It was submitted that if the claim as against J.G. Rivard Limited fails, the claim against Michel Rivard Plumbing Limited would also fail.

8. The respondents stated to the Board that the Mechanical Contractors Association Ottawa previously brought (except for the period of time involved) an identical grievance as against JO. Rivard Limited pursuant to section 1 12a of the Act and that the Board had dismissed that grievance for want of jurisdiction on September 22, 1976. The respondents informed the Board that the Mechanical Contractors Association Ottawa had sued J.G. Rivard Limited in the Supreme Court of Ontario for "industry fund" dues. An appeal taken by the Mechanical Contractors Association Ottawa to the Court of Appeal was abandoned and dismissed as an abandoned appeal. It was the position of the respondents that the "industry fund" provision contained in the collective agreement referred to in paragraph two is the same "industry fund" provision (save for amount) as is contained in all previous collective agreements where J.G. Rivard Limited was pursued by the Mechanical Contractors Association fox payments thereto. It was the position of the respondents that at all material times, as pointed out in the reasons for judgment of Mr. Justice Garrett, J.G. Rivard Limited was not a member of the Mechanical Contractors Association Ottawa, and is not now a member.

9. The respondents submitted that it is still not open to an employer's organization to grieve as against an employer under the provisions of section 112a of the Act and relied on the decision of the Board dated September 22, 1976, which held that section 112a provides that "either party to a collective agreement between an employer or employer's organization and a trade union or council of trade unions may apply for a final and binding determination of a grievance, it is an inescapable conclusion that the section contemplates a grievance as con­stituting a dispute between the employer, etc. on the one hand, and the union, etc. on the other hand.". The respondents further submitted that since that decision the phrase "either party" has been changed to "a party" but none of the other sections of the Act referred to in the decision of the Board dated September 22, 1976, have been amended or changed in any way which would have a bearing on the interpretation previously given. The respondents referred to sections 1(e) and 125(e) of the Act with respect to the definition of a collective agreement and concluded that there are only two protagonists — an employer or an employers' organiza­tion on the one hand and a trade union or council of trade unions on the other hand. It was the position of the respondents that just as section 112a of the Act could surely not be used by an employee to bring a grievance against his own union, then equally that section could not be used by either an employer or an employer's organization to bring a grievance against the other.

10. The respondents adopted the position that if it is argued that section 134(3) of the Act constituted both employer and employer's organization "a party" under section 112a, then it was submitted that this is for the purpose of allowing an employer to grieve against a union or vice verse, and not for the purpose of permitting internal grievances between employers and their own organization. The respondents also submitted that the decision of Mr. Justice Garrett decided that the "industry fund" was not properly part of a collective agreement and that since this point has been put in issue and has been decided adversely to the Mechanical Contractors Association it is now res judicata. In the alternative, it was argued that there is now a binding estoppel as against the Mechanical Contractors Association.

11. In the alternative, the respondents argued that if neither res judicata nor issue estoppel applied then to relitigate the same issue that was formerly decided by the Supreme Court of Ontario is an abuse of the processes of the Board and should be dismissed on this basis. The respondents stated that J.G. Rivard Limited has now been pursued for almost seven years concerning these industry fund dues and that there must surely be an end to the matter.

12. The applicants argued that the change in the language of section 112a from "either party" to "a party" constituted a basic amendment and that when that amendment was examined together with the provisions of section 134(3) of the Act, the procedural roadblocks which existed previously to the instant application had been removed. The applicants adopted the position that on the plain meaning of the wording of section 134(3), both the applicants and the respondents are to be considered to be "a party for the purposes of section 112a". In the view of the applicants, this conclusion is reinforced by the fact that the collective agree­ment expressly provides under Article 17.2 that the Association may file a grievance against a contractor and that under Article 18.1, such a grievance may be referred to arbitration. The relevant parts of Articles 17.2 and 18.1 read as follows:

"17.2 Any difference arising directly between the Zone Association or Contractor and the Union, or between the Zone Association and the Contractor, as to interpretation, application, administration or alleged violation of this Agreement, that cannot be resolved by a meeting or conference between the parties involved, shall be submitted by registered mail in writing by either of such parties to the Board within four (4) regular working days of such difference. The written submission shall state the nature of the grievance, and pertinent provisions of this Agreement, and remedy sought.

18.1 In the event that any difference arising between any Contractor and any of the employees, or any direct difference between the Zone Association, or any Contractor and the Union or between the Zone Asso­ciation and a Contractor, as to the interpretation, application, administration or alleged violation of this Agreement, including any question as to whether a matter is arbitrable, shall not have been satis­factorily settled by the Board under the provisions of Article 17 Griev­ance Procedure — hereof, the matter may be referred by the Zone Associa­tion, and Contractor or Union to arbitration for the final binding settle­ment as hereinafter provided, by notice in writing given to the other party within fourteen (14) regular working days from the submission of the matter in writing to the Board."

13. The applicants argued that the doctrine of res judicata did not apply. The appli­cants stressed that the action in the Supreme Court of Ontario turned on the finding that there was no civil contract between the Mechanical Contractors Association Ottawa and J.G. Rivard Limited and that accordingly, there was no obligation for J.G. Rivard Limited to make payments. The applicants contrasted the instant application which is based on a claim that there is an obligation pursuant to a collective agreement and not a civil contract. It was the position of the applicant that the question before the Board had not been decided by the court. The applicants emphasized that by virtue of section 3(3) of The Rights of Labour Act, R.S.O. 1970, c. 416, the Supreme Court of Ontario could not rule upon the interpretation of the collective agreement.

14. In reply the respondents pointed out that the applicants had not addressed them­selves to the point that section 112a, even as amended, does not permit grievances between parties who are really on the same side. The respondents argued that no assistance was to be gained from the collective agreement if section 112a did not apply and pointed out that the applicants are not proceeding under the grievance procedure dealt with in the collective agree­ment but have decided to proceed under section 112a. The respondents disagreed that the action was dismissed in the Supreme Court of Ontario merely because there was no civil contract.

15. The collection of industry fund dues from the respondents has been a matter of contention for some seven years. In 1973 a joint conference board was established under the provisions of a collective agreement between the Mechanical Contractors Association of Ottawa ("MCAO"), an accredited employer organization, and Local Union 71 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("Local 71") effective from May 1, 1973, to April 30, 1975. It was alleged that three employers (including J.G. Rivard Ltd.) bound by this collective agreement had failed to wake certain specified contributions to the industry fund as provided for in the collective agreement. The issue before that board was whether the failure to make the specified contributions could properly be heard and determined in accordance with the grievance and joint conference board provisions of the collective agreement. The chairman of that board concluded that the joint conference board established to deal with a purported grievance by the MCAO against three named employers had no jurisdiction to hear and determine the matter. The chairman reasoned that the board had no statutory power under The Labour Relations Act and did not have power conferred upon it by the consent of those who might be bound by its decision. In addition, the chairman concluded that the purported grievances in question were not "grievances" in the terms of article 17.1 and the Board had jurisdiction only to deal with grievances as defined in that clause. [Article 17.1 defined a grievance as "a signed claim in writing by an employer, by the union or by an employee that this agreement has been violated, misinterpreted or misapplied".] Finally, the chairman concluded that the MCAO lacked standing under article 17. I to initiate grievances on behalf of its employer members.

16. In 1976 the MCAO referred to this Board under section 1 12a of the Act a dispute between itself and J.G. Rivard Limited which the MCAO alleged arose out of a breach on the part of J.G. Rivard Limited of the terms of a collective agreement between Local 71 and the MCAO effective from May 1, 1975 to April 30, 1977. More specifically the MCAO alleged that J.G. Rivard had not made certain payments to the industry fund as provided for in the collective agreement. In discussing the reference in the J.G. Rivard Limited case, [1976] OLRB Rep. September 540, the Board stated:

"5. The respondent takes the position that the Board does not have jurisdiction under section 1 12a of the Act for the reason that the com­plaint of the applicant is not a grievance within the meaning of section 112a.

6. The respondent further objected to the Board hearing the matter on the grounds that an identical grievance had been instituted in 1973 by Mechanical Contractors Association of Ottawa, the applicant herein, against the respondent herein and two other companies. That grievance was dismissed for lack of jurisdiction by the Joint Conference Board hearing set up under the terms of the then existing collective agreement.

7. In addition, the respondent contended that the Board ought not to proceed, since the matter was presently before the courts and was on the ready list for trial in the Supreme Court of Ontario.

8. One of the reasons given by the Joint Conference Board for dis­missing the "grievance" placed before it was that the Mechanical Con­tractors Association could not, under the terms of the collective agreement as it existed at that time, initiate grievances on its own behalf or on behalf of the employer members. The definition of a grievance con­tained in the collective agreement dealt with by the Joint Conference Board in the above arbitration was that a grievance was a signed claim in writing by an employer, by the union or by an employee, that the agree­ment had been violated, misinterpreted or misapplied.

9. In the agreement presently before this Board, the definition of a grievance was altered by the parties and now reads:

"A grievance within the meaning of this Collective Agreement shall mean a written claim in writing by Local Union 71 on its own behalf, by Local Union 71 on behalf of one or more of its members, or by any member or members of Local Union 71, by the MCA on its own behalf, by the MCA on behalf of one or more of the employers on whose behalf this agreement is signed, or by one or more of the said employers alleging that this agreement has been violated, misinter­preted, misapplied, or has been improperly administered."

10. The new definition, as is plain from its terms, enables the Mechanic-cal Contractors Association to make a written claim on its own behalf and on behalf of its members alleging a breach of the collective agree­ment, a power which it obviously lacked under the former definition. The lack of this power was one of the reasons given by the Joint Conference Board for dismissing the prior grievance, the grounds being that since the Mechanical Contractors Association was not an employer, it did not meet the terms of the definition.

11. As we have already observed, the definition contained in section I 6≤ of the agreement now clearly empowers the Mechanical Contractors Ass 3ciation to process a grievance either on behalf of the Association itself or on behalf of an employer, on whose behalf the agreement is signed. A question remains, however, and it is one central to the respondent's case, and that is whether, even with the amendment, a griev­ance can be instituted by the Association against one of the employers who is covered by the collective agreement for an alleged violation or breach of the agreement. The respondent argues that neither under the collective agreement nor under the provisions of the Labour Relations Act can a complaint of one employer against a fellow employer who are signatories to a collective agreement constitute a grievance. That is to say that in this particular matter, a dispute between the Association and the respondent arising out of an allegation of failure of the respondent to pay dues to the Association is obviously not the kind of dispute to be dealt with as a grievance under the Act or the collective agreement.

12. Section 1(e) of the Act defines a collective agreement as follows:

"collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions, that, represents employees of the employers' organization, on the other hand, con­taining provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees.

13. Section 110, which is applicable in the present case, in providing that under certain circumstances a collective agreement shall be deemed to exist notwithstanding that there were no employees in the unit at the time the agreement was entered into, speaks of a collective agreement as being an agreement in writing between an employer or employers' orga­nization on the one hand and a trade union or council of trade unions... on the other hand.

14. Section 117(2) and section 118 speak of a collective agreement between accredited employers' organizations and trade unions or councils of trade unions.

15. It is plain from the language used in these sections, that the parties to a collective agreement within the meaning of the Act are the employer or employers' organization on the one hand, and the trade union or asso­ciation of trade unions on the other hand, that is to say, the Act recog­nizes a collective agreement as an agreement dealing with the rights of two groups with different interests. Consequently, when section 112a of the Act provides that "either party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions" may apply for a final and binding determination of a grievance, it is an inescapable conclusion that the section contemplates a grievance as constituting a dispute between the employer, etc. on the one hand, and the union, etc. on the other hand. It is therefore, only that type of grievance that permits the parties to a collective agreement to invoke section 112a and which alone gives the Board jurisdiction to act and reach a determination under the provisions of that section.

16. The present "grievance" is clearly not one brought by a party "on the one hand" against a party "on the other hand" as those terms are used in the Act to distinguish between the points of view or interests of the protagonists of the employer and of the union under a collective agreement. The Mechanical Contractors Association and the respondent are virtually the same party in that context. The union is obviously the party "on the other hand." Section 112a, in referring to "either party", obviously refers to the distinction between the employer's interest and the union's interest as represented by employers on the one hand and unions on the other.

17. The present dispute, notwithstanding the fact that it arises out of the wording of a collective agreement, is clearly a matter arising between two entities of like interest and constitutes an internal dispute between them, and not a dispute between "either party" to the collective agree­ment within the meaning of section 112a. The "grievance" is therefore not a grievance within the meaning of section 112a, and the Board has no jurisdiction to deal with the matter.

18. The referral is accordingly dismissed."

19. The decision of the Board was taken before the Divisional Court in the Supreme Court of Ontario by the MCAO. In a decision which was released on November 23, 1976, the Divisional Court dismissed the application and stated that it was in complete agreement with the Board's decision to decline to hear the referral made to it and the reasons set forth by the Board in declining jurisdiction.

20. On March 18, 1975, the MCAO commenced an action in the Supreme Court of Ontario against J.G. Rivard Limited and stated that its claim was "against the defendant for monies owing and due to the plaintiff pursuant to the terms of a collective agreement, for the operation and management of an Industry Fund, during the period April30, 1969, through to April 30, 1971, inclusive, and for the period May 1, 1971 through to April 30, 1973, inclusive, and for the present period commencing May 1, 1973, to April 30, 1975." The sum claimed by the MCAO amounted to almost twelve thousand dollars. Mr. Justice Garrett released his decision on March 25, 1977, and held that there was no contract between the MCAO and J.G. Rivard Limited as to the payment of the industry fund charges and that the MCAO well knew at all times that J.G. Rivard Limited did not agree to pay such charges and the fact of its accreditation under The Labour Relations Act did not really bestow upon the MCAO any rights to recover the industry fund charges that it did not have before its accreditation. Mr. Justice Garrett did permit recovery on a claim for quantum meruit for a much smaller amount with respect to the negotiation of collective agreement by the MCAO on behalf of J.G. Rivard Limited. The MCAO filed a notice of appeal on April 7, 1977, and on April 25, 1978, the appeal was dismissed as an abandoned appeal. The MCAO and the Mechanical Contractors Association Ontario (the "applicants") made the instant referral to the Board on January 15, 1980.

21. The applicants seek to recover industry fund dues under the provisions of section II 2a of the Act. Since the decision of the Board in the J. G. Rivard Limited case, supra, certain changes have occurred. It appears that the MCAO has been supplanted in its position as bargaining agent for the respondents by Mechanical Contractors Association under a scheme of provincial bargaining and that the collective agreement which contains the provision respecting the industry fund is now a provincial collective agreement. In addition, there has been a change in the wording of section 1 12a and section 134(3) has been added to the Act. The change in the employer bargaining agent and the appearance of a provincial collective agree­ment are not of any significance to the issue of the Board's jurisdiction. The Board now considers whether there has been a statutory change of such significance to the Act that a grievance within the meaning of section 1 12a includes a grievance between parties of like interest. The relevant sections of the Act are:

"134.(3) Any employee bargaining agency, affiliated bargaining agent, employer bargaining agency and employer bound by a provincial agreement shall be considered to be a party for the purposes of section I la.

112a. (1) Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 37, a part)' to a collective agreement between an employer or 9mployers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, ad­ministration or alleged violation of the agreement including any question as to whether a matter is arbitrable, to the Board for final and binding determination." [Emphasis added]

20. Prior to 1977 section 112a read "either party" where it now reads "a party" but was identical in all other respects. Before the amendment to section 112a in 1977 the Board held in a series of cases that only an accredited employers' association or a council of trade unions could properly bring a grievance or reply to a grievance under section 112a. See, for example, The Lummus Company of Canada Ltd. case, (Board File No. 1304-75-M, unreported decision), The Electrical Power Systems Construction Association case, [1976] OLRB Rep. December 825; and the Ainsworth Electric Co. Limited case, [1977] OLRB Rep. July 399. These decisions were based on the fact that neither the individual employers nor the local trade unions were actual parties to the signing of the agreement though they were both bound by it. The only parties to the agreement were the accredited employers' association and the council of trade unions which bargained on behalf of both their members and the entities which they represented by virtue of the scheme of accreditation under the Act. This meant that the persons who were most directly affected by the collective agreement were unable to directly make a referral under section 112a. It may be argued that section 134(3) was enacted to meet these circumstances. Section 134(3) makes it clear that any employee bargaining agency, affiliated bargaining agent, employer bargaining agency (such as the Mechanical Contractors Association Ontario) and employer (such as J.G. Rivard Limited) bound by a provincial agreement shall be considered to be a party for the purposes of section 112a. In conjunction with the addition of section 134(3) to the Act, section 112a was amended so that "either party" was changed to "a party". "Either" implies one of two whereas after the amendment one of many may refer a grievance to the Board under section 112a. While it may not now be disputed that the Mechanical Contractors Association Ontario and J.G. Rivard Limited are now to be considered as parties to the provincial collective agreement, the question to be answered is whether this entitles one of them to refer a grievance against the other under the provisions of section 112a. The previous decision of the Board in the J. G. Rivard Limited case, supra, did not turn on the fact that J.G. Rivard Limited was not technically a party to a collective agree­ment. The basis for that previous decision makes it clear that in numerous sections of the Act a collective agreement is between parties of opposing interests and that only grievances between parties in either column might be referred to the Board under the provisions of section 112a. In our view, the amendment to section 112a and the enactment of section 134(3) did not affect anything more than a procedural change to ensure that all persons bound by a provincial collective agreement would have direct access to section 112a. The earlier reasoning of the Board in the J. G. Rivard Limited case, supra, was affirmed in the Divisional Court and, despite the amendments to The Labour Relations Act, the reasons set forth in that decision are still correct with respect to the substantive matters considered by the Board in that case.

21. The Board now considers the other arguments which were raised by the parties. The defence of res judicata and issue estoppel is not available to the respondents because the earlier referral to the Board was between different parties and did not involve claims for industry fund dues under the same collective agreement. Reference is made to the Canadian General Electric Company Limited case, [1978] OLRB Rep. April 384. The decision of Mr. Justice Garrett did not decide that the industry fund was not properly part of a collective agreement. Section 3(3)

of The Rights of Labour Act, R.S.O. 1970, c. 416, provides:

"A collective bargaining agreement shall not be the subject of any action in any court unless it may be the subject of such action irrespective of any of the provisions of this Act or of The Labour Relations Act."

22. The Supreme Court of Ontario is without jurisdiction to determine a dispute which involves the interpretation of a collective agreement by virtue of section 3(3). See Re Polymer Corporation and Oil, Chemical& Atomic Workers, 1961 CanLII 152 (ON HCJ), [1961] O.R. 176; Drogt et al. v. Robson ­Lang Leathers Ltd. et al., 1971 CanLII 728 (ON HCJ), [1971] 3 O.R. 488; and The Ford Motor Co. of Canada et al. and Facchinato et al. (1978), 1978 CanLII 1287 (ON HCJ), 18 OR. (2d) 581. The Board does not agree that the applicants' referral to the Board constitutes an abuse of process because the applicants in referring this grievance have relied on amendments to The Labour Relations Act and are claiming industry fund dues under different collective agreements. The fact that J.G. Rivard Limited is not a member of either the Mechanical Contractors Association Ontario or the MCAO is immaterial to a referral under section 112a where a scheme of provincial bargaining and a provincial collective agreement form the basis of a referral. The Mechanical Contractors Association Ontario represents the respondents as a result of the operation of The Labour Relations Act rather than as an incident of a consensual arrangement.

23. Are the applicants foreclosed from pursuing their claim against the respondents? In the Imperial Tobacco Products (Ontario) Limited case, [1974] OLRB Rep. July 418, the Board referred to the decision of the High Court in Regina v. Ontario Labour Relations Board ex parte Genaire Ltd., 1958 CanLII 130 (ON HCJ), [1958] OR. 637, and commented that the courts have directed the Board to construe liberally the substantive and remedial bases to the matters before it. At page 433 the Board stated:

"Furthermore, the fact that the complainants failed to "plead" these sections or any of the others mentioned in the preceding paragraph is not determinative. In this regard the courts have admonished the Board to "exercise any jurisdiction given to it under the Act, notwithstanding that a particular section of the Act is referred to in the formal application."

In the light of this admonition, are there any substantive and remedial bases in The Labour Relations Act which the Board might construe liberally with respect to the referral before it? In our opinion this question must be answered in the affirmative.

24. In the Imperial Tobacco Products (Ontario) Limited case, supra, the Board noted that the company, the union and all of the individuals named as respondents are bound by the terms of a collective agreement as a matter of statute by section 42 of The Labour Relations Act which reads:

"A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement."

The Board reasoned in that case that if a deviation from the terms of a collective agreement can be substantiated it could be argued that the company, the individuals and even the trade union are in violation of section 42 of the Act and that this substantive section is available to com­plainants thereby grounding a request for relief under sections 79(1) and 79(4)(a) of the Act.

25. The Labour Relations Act contains certain provisions (sections 106 to 136) which specifically concern the construction industry. The counterpart of section 42 with respect to the construction industry is to be found in section 134(2) which provides:

'A provincial agreement is, subject to and for the purposes of this Act, binding upon the employer bargaining agency, the employers represented by the employer bargaining agency, the employee bargaining agency, the affiliated bargaining agents represented by the employee bargaining agency, the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and insti­tutional sector of the construction industry referred to in clause e of section 106, and upon such employers, affiliated bargaining agents and employees as may be subsequently bound by the said agreement."

Section 134(2) is substantially to the same effect as section 42 and the reasoning of the Board in the Imperial Tobacco Products (Ontario) Limited case, supra, with respect to section 42 is equally applicable to section 134(2). Following the reasoning in that case, the non-payment of industry fund dues by an employer (which is provided for in a collective agreement) is a deviation from the terms of a collective agreement and an employer who is bound by such a collective agreement is in violation of section 134(2). The substantive provisions of section 134(2) are available to the applicants thereby grounding a request for relief under sections 79(1) and 79(4) of the Act.

26. The provision for the payment of industry fund dues is well established in the con­struction industry. The Board notes that the payment of such dues is based upon from seven to ten cents per hour for every hour worked by each employee covered by the collective agree­ment. Such payments are therefore based upon the degree of business activity of each employer who is bound by the collective agreement. In any event, section 136(2) of the Act a designated or certified employer bargaining agency is under a duty not to act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers in the provincial unit of employers for which it bargains, whether members of the designated or accredited employer bargaining agency or not. The Board is therefore in a position to exercise a general supervisory role with respect to such representation.

27. More recently, but in the same vein as in Regina v. Ontario Labour Relations Board exparte Genaire Ltd., supra, Brooke, J.A. in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486(1976), 8 0, R. (2d) 103, when discussing a board of arbitration stated at page 108:

"Certainly, the Board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions and this whether by way of declaration of rights or duties, in order to provide benefits or performance of obligations on a monetary award required to restore one to the proper position he would have been in had the agreement been performed."

28. The provision for the payment of industry fund dues in Schedule G of the collective agreement is very much a right, privilege or duty of an employer or an employers' organiza­tion within the meaning of section l(l)(e) of the Act which provides:

"collective agreement'' means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement;" [emphasis added]

The provision for the payment of industry fund dues is analogous to a provision in a collective agreement for the check off and payment of dues to a trade union. There is a labour relations interest in ensuring the viability of employers' organizations and employer bargaining agencies. The payment of industry fund dues to such organizations and agencies provides a basis for their viability in the process of collective bargaining and in the administration and policing of collective agreements.

29. In the decision of the Supreme Court of Canada in Syndicat Catholique Des Employes de Magasins de Quebec, Inc. v. Compagnie Paquet Ltee (1959), 1959 CanLII 51 (SCC), 18 D.L.R. (2d) 346, Judson, J. speaking for the majority stated:

"The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations. When this collective agreement was made, it then became the duty of the employer to modify his contracts of employment in accordance with its terms so far as the inclusion of those terms is authorized by the governing statutes. The terms of employment are defined for all employees, and whether or not they are members of the union, they are identical for all."

While Judson, J. was speaking about the relationship between an employer and its employees, in our view, his observations are equally applicable by analogy to the relationship between an employers' organization or an employer bargaining agency on the one hand and an individual employer on the other hand.

30. The matter is referred to the Registrar for continuation of hearing.