Service Employees Union, Local 204 v. Broadway Manor Nursing Home, 1982 CanLII 1048

Service Employees Union, Local 204 v. Broadway Manor Nursing Home

[1983] OLRB Rep. January 24

1559-82-R; 1651-82-R Service Employees Union, Local 204 affiliated with S.E.I.U., A.F. of L., C.I.O., Applicant, v. Broadway Manor Nursing Home, Respondent, v. Christian Labour Association of Canada, Intervener; Service Employees Union, Local 210, Affiliated with Service Employees International Union, AFL-CIO-CLC., Applicant, v. Fiddick's Nursing Home Limited, Respondent, v. Christian Labour Association of Canada, Intervener

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members I. M. Stamp and B. L. Armstrong.

APPEARANCES: J. Sack, Q. C., Ethan Poskanzer and Ron Davidson for the applicant Service Employees Union, Local 204; J. Sack, Q. C., Ethan Poskanzer and Jack Nichols for Service Employees Union, Local 210; R. Gordon Spear and Robert Howell for the respondent Broadway Manor Nursing Home; Maxine Fiddick and Sam Mandelbaum for the respondent Fiddick's Nursing Home Limited; Owen V Gray and Hank Beekhuis for the intervener in Board File 15S9-82-R; Owen V Gray and Ed Grootenboer for the intervener in Board File 1651-82-R.

DECISION OF KEVIN M. BURKETT, ALTERNATE CHAIRMAN AND BOARD MEMBER I. M. STAMP; January 31, 1982

1. The Board directs that the above applications be and the same are hereby consolidated.

2. These are pre-hearing displacement applications for certification which were filed on November 16 and 24, 1982. The applications are two locals of the same International Union and the intervener is the incumbent union in both cases. The incumbent trade union takes the position that both applications are untimely under the Labour Relations Act. R.S.O. 1980, c. 228 by virtue of the operation of the Inflation Restraint Act, S.O. 1982, c. 55 (Bill 179) which was passed into law on December 15, 1982. Pre-hearing votes have been conducted in both units. However, the ballot boxes have been sealed pending a determination by the Board in this matter.

3. The Board heard evidence at the outset which satisfies it that both the respondent organizations are nursing homes operating under the authority of a licence issued under the Nursing Homes Act, R.S.O. 1980, c. 320. Furthermore, the evidence establishes that at the time of this application each of the respondent employers was party to a collective agreement with the intervener trade union. Under its terms the collective agreement between the intervener and the respondent Broadway is to run for a term extending from January 1, 1981 to December 31, 1982. Under its terms the collective agreement between the intervener and the respondent Fiddicks is to run for a term extending from November 1, 1980 to December 31, 1982. The Board made these findings of fact orally at the hearing.

4. The relevant provisions of Bill 179 are:

36. This Act shall be deemed to have come into force on the 21st day of September, 1982.

37. In this Part. .

(c) "collective agreement" means a collective agreement as defined in the Labour Relations Act, an agreement referred to in subsection 5(1) of the Fire Departments Act or subsection 29(2) of the Police Act, a decision resulting from arbitration that, by operation of law or agreement, governs working conditions or terms of compensation, and any agreement between a unit of employees established for collective bargaining and an employer or person in the position of an employer for defining, determining or providing for working conditions or terms of compensation;

(d) "compensation" means all forms of payment, benefits and perquisites paid or provided, directly or indirectly, to or for the benefit of a person who performs duties and functions that entitle that person to be paid a fixed or ascertainable amount;

(e) "compensation plan" means the provisions, however established, for the determination and administration of compensation, and includes such provisions contained in collective agreements or established bilaterally between an administrator and an employee, unilaterally by an administrator or by or pursuant to any Act of the Legislature;

6. (1) This Part applies to the compensation plans of employees employed in or by,

(a) any authority, board, commission, corporation, office, person or organization of persons, or any class of authorities, boards, commissions, corporations, offices, persons or organizations of persons, set out in the Schedule hereto or added to the Schedule by the regulations.

11. Every compensation plan that is in effect on the 21st day of September, 1982, to which this Part applies and that expires on or after the 1st day of October, 1982, including every compensation plan extended under section 9, shall,

(a) Where the expiry date is scheduled to occur on or after the 1st day of October, 1982 and prior to the 1st day of October, 1983, be extended for the twelve-month period immediately following the scheduled expiry date;

13. Notwithstanding any other Act except the Human Rights Code, 1981 and section 33 of the Employment Standards Act, but subject to section 14, the terms and conditions of,

(a) every compensation plan that is extended or made subject to this Part under section 9 or 11 and

(b) every collective agreement that includes such a compensation plan,

shall, subject to this Part, continue in force without change for the period for which the compensation plan is extended or made subject to this Part.

14. (1) Where the parties to a collective agreement,

(a) cannot agree on the amount of the increase in compensation rates to which members of the compensation plan included in the collective agreement are entitled under clause 19(a) or subclause 10 (b) (ii);

(b) cannot agree on the value to be placed on a proposed change to any terms and conditions of the compensation plan equivalent to an increase in compensation rates, but are agreed on all other aspects of the proposed change; or

(c) have agreed on all aspects of a proposed change to the terms and conditions of the compensation plan equivalent to an increase in compensation rates, including the value thereof,

either party may apply to the Board in accordance with such procedure as the Board specifies to have the disputed matters resolved or, in the case of a proposed change referred to in clause (c), to have the proposed change reviewed by the Board, and the Board shall, in accordance with this Act and in its discretion, determine, as the case requires, the amount of the increase in compensation rates to which the members of the compensation plan are entitled or the value to be placed on a propose change referred to in clause (b) or (c), provided that,

(d) for the period referred to in clause 10(a) or subclause 10 (b) (ii), such increase, or the value of such proposed change, does not constitute an increase that is, or that is equivalent to, more than the increase referred to in those provisions; and

(e) for the period referred to in subsection 12 (1), the value of such proposed change does not constitute an increase that is equivalent to more than the increase permitted under section 12.

(2) Where the administrator of a compensation plan that is not included in a collective agreement proposes to change any terms and conditions of the plan, and the change, if made, would be equivalent to an increase in compensation rates under the plan, the administrator shall, before the proposed change may be implemented, apply to the Board in accordance with such procedure as the Board specifies to have the proposed change reviewed, and the Board may, in accordance with this Part and in its discretion, determine the value to be placed on the proposed change and approve, reject or vary the terms thereof as it sees fit, provided that, for the period for which the proposed change (as approved or varied by the Board) is to be effective, the value thereof, together with any other increases in the period in accordance with this Part, does not constitute an increase equivalent to more than an increase authorized by this Part for the period, and the proposed change, as approved or varied by the Board, may be implemented.

(3) The failure of the administrator of a compensation plan to exercise, or to exercise fully, the discretion conferred on him by subsection 12(2) and in accordance with subsection 12(3) is, on the application of the Board of a party affected thereby, reviewable by the Board, and the Board may, in accordance with those subsections, make any decision that the administrator could or should have made, and its decision shall be implemented by the administrator.

15. The parties to a collective agreement that includes a compensation plan that is extended under section 11 may, by agreement, amend any terms and conditions of the collective agreement other than compensation rates or other terms and conditions of the compensation plan.

SCHEDULE

Ministry of Health

1. Any authority, board, commission, corporation, office, person or organization of persons which operates or provides:

(b) A nursing home, under the authority of a licence issued under the Nursing Homes Act, R.S.O. 1980. c, 320;

5. The relevant sections of the Labour Relations Act are:

5. (4) Where a collective agreement is for a term of not more than three years, a trade union may, subject to section 61, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.

6. (1) Where notice has been given, under section 14 or 53, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

7. (1) Either party to a collective agreement may, within the period of ninety days before the agreement ceases to operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or without modifications, of the agreement then in operation or to the making of a new agreement.

8. (1) Where a collective agreement is in operation, no employee bound by the agreement shall strike and no employer bound by the agreement shall lock out such an employee.

(2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this act and,

(a) seven days have elapsed after the day the Minister has released or is deemed pursuant to subsection 113(3) to have released to the parties the report of a conciliation board or mediator; or

(b) fourteen days have elapsed after the day the Minister has released or is deemed pursuant to subsection 113(3) to have released to the parties a notice that he does not consider it advisable to appoint a conciliation board.

The applicant unions also made reference to section 79(1) of the Act which reads:

79. (1) Where notice has been given under section 14 or section 53 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he does not consider it advisable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated, whichever occurs first.

6. In light of the findings of fact which were made at the hearing, it is not disputed between the parties that Bill 179 was in full force and effect at the time of the instant applications and that it applies to the respondent employers by virtue of Section 1(a) under the heading Ministry of Health, of the Schedule appended to the Bill.

SUBMISSIONS

7. The intervener trade union argues that under section 11(a) of Bill 179, the compensation plans covering the employees of both respondents are extended for a period of 12 months past the expiry dates set out in the respective collective agreements. This being the case, the intervener trade union reads section 13 of Bill 179 as continuing the respective collective agreements, which contain the compensation plans which are extended under section 11, in full force without change for the period for which the compensation plan is extended. The intervener maintains that because section 13 of Bill 179, is made to operate "notwithstanding any other Act" it overrides the Labour Relations Act and specifically those sections dealing with the term of operation of collective agreements and the timeliness of representation applications. The intervener takes the position that the legislature did not have to specify in section 13 of Bill 179 that collective agreements would continue in force for the same period as the compensation plan is extended in order to effectuate the overriding purpose of Bill 179. It argues that extension of the compensation plan in and of itself serves to restrain wages and benefits. However, having expressly extended the collective agreements which contain compensation plans which are extended, the intervener argues that this Board must give effect to section 13 of Bill 179 and find that the collective agreements before it are extended for a 12-month period thereby making these applications untimely under section 5 of the Labour Relations Act.

8. The intervener argues that the result of the interpretation of section 13 of Bill 179 which it is proposing, and its effect upon the operations of the Labour Relations Act, is both sensible and reasonable. The intervener argues that if the collective agreements are not extended in full force under section 13 of Bill 179, the result will be to maintain the open period which would exist in the absence of Bill 179. If this is the case, the duty to bargain following notice under sections 14 or 53 of the Act and the option of requiring the appointment of a conciliation officer under section 16 would be triggered and, in turn, the timeliness requirements for a legal strike or lockout could be satisfied. The intervener argues that it makes eminently good sense for the legislature to have eliminated the open period, and with it the possibility of strikes and lockouts, at a time when wages and all types of benefits are restrained and regulated by statute. Furthermore, where the Labour Relations Act contemplates that the collective bargaining process will ultimately result in a collective agreement, but where it is equally clear on a reading of Bill 179 that it is not contemplated that new collective agreements will be entered into during the period of restraint, the intervener argues that the legislature must have intended to close off the open period in order to preserve existing collective agreements. Finally, the intervener argues that if the incumbent bargaining agent is to be hamstrung in what it can accomplish at the bargaining table by the operation of Bill 179, it is not unreasonable to close off the open period in order to prevent the type of disruptive applications which are before the Board in this case.

9. Neither of the respondent employers took a position with respect to the timeliness of these applications.

10. The applicant trade unions take the position that, wherever possible, a statute ought to be construed so as to avoid consequences which are contrary to public policy. The applicants maintain that where the legislature has provided a statutory scheme which allows for employee displacement of a bargaining agent, as it has under the Labour Relations Act, the Board, if at all possible, ought to interpret Bill 179 in such a way as not to interfere with this fundamental right provided under the Labour Relations Act. Where, as in this case, the primary purpose of Bill 179 is to restrain compensation and there is no reference to its effect upon displacement applications for certification under the Labour Relations Act, the applicants maintain that every effort should be made to interpret Bill 179 in a manner which does not interfere with the rights of employees under the Labour Relations Act.

11. The applicants maintain that there is a fundamental flaw in the literal interpretation of section 13 of Bill 179 advanced by the intervener. The applicants do not read section 13 of Bill 179 as continuing in force every collective agreement containing a compensation plan which is extended by operation of the Bill, but rather, as continuing in force "the terms and conditions" of such agreements. The applicants, citing Re Telegram Publishing Co. and Zwelling et al, 1975 CanLII 580 (ON CA), 67 D.L.R. (3d) 404 and relying on the Board jurisprudence under section 79 of the Labour Relations Act, argue that there is a fundamental distinction between the terms and conditions established under a collective agreement and the collective agreement itself. The applicant observes that although section 79 of the Labour Relations Act preserves terms and conditions of employment, it has never been suggested that it somehow interferes with the right of employees to switch bargaining agents at the times stipulated in the Labour Relations Act. The applicants maintain that the intervener has ignored the words "terms and conditions" in section 13 of Bill 79, and argue that when these words are given their normal meaning in the context in which they are used they fundamentally alter the meaning of the section. The applicants urge the Board to draw the necessary distinction between the extension of the terms and conditions of a collective agreement and the extension of the collective agreement itself and find that section 13 of Bill 179 does not interfere with the right of employees to change bargaining agents under the Labour Relations Act.

12. In response to the intervener's submission that because the primary purpose of Bill 179 is addressed with the extension of compensation plans under section 13(a) of the Act, the inclusion of section 13(b), which refers specifically to collective agreement and overriding the displacement and other open period provisions contained in the Labour Relations Act, the applicants argue that section 13(b) was included in Bill 179 for an altogether different purpose. It is the applicant's contention that section 13(b) was incorporated so as to prevent a trade union from relying on Cyprus Anvil, [1976] 2 Can. L.R.B.R. 360 and Libby McNeil [1977] OLRB Rep. Apr. 204; application for judicial review, reversing Bd. (1978) 1978 CanLII 1392 (ON HCJ), 21 OR. (2d) 340 (Div. Ct.) rev'd on appeal 1978 CanLII 1373 (ON CA), 21 O.R. (2d) 362 (C.A.) (these cases deal with the effect of the federal government's 1976 anti-inflation programme on the operation of collective agreements) to argue that a collective agreement has been frustrated by the operation of section 13(a) of Bill 179 thereby allowing it to renegotiate in light of the new statutory framework.

13. Without accepting that Bill 179 interferes with the right to strike under the Labour Relations Act the applicants maintain that employees may wish to displace an incumbent trade union for reasons unrelated to its ability to bargain. In any event, it is the position of the applicant that the same restrictions upon the ability to bargain for improved terms and conditions of employment apply to it as apply to the intervener. In these circumstances, the applicants question the intervener's contention that the legislature would not have wanted to hamstring an incumbent union on the one hand and to have allowed displacement applications to be processed on the other. The applicants maintain, therefore, that even if Bill 179 can be read as abridging the right to strike the result is not to demonstrate a legislative intention to bar displacement applications as provided under the Labour Relations Act.

14. While conceding that we do not have to decide the issue in this case, the applicants, citing Re Bradburn et al and Wentworth Arms Hotel et al, 1978 CanLII 44 (SCC), 94 D.L.R. (3d) 161 and I.B.E.W. Local 1432 v Town of Summerside 1960 CanLII 48 (SCC), [1960] S.C.R. 591 maintain that so fundamental a right as the right to strike, as provided under the Labour Relations Act, ought not to be interfered with by the operation of another statute unless no other result can be arrived at. In the absence of express language abridging the right to strike, in the face of its interpretation of section 13 of Bill 179, and in the face of section 15 of Bill 179, which contemplates some negotiation between the parties to a collective agreement, the applicants suggest that the only impact of Bill 179 on bargaining carried on under the Labour Relations Act is to bring into play the Board's remedial power to deal with breaches of the duty to bargain in good faith where a party attempts to strike or lockout in an effort to exceed the compensation restrictions imposed under Bill 179.

15. Citing excerpts from Maxwell on The Interpretation of Statutes, 12th edition, (1976) N.M. Tripathi Private Ltd., The Construction of Statutes, E.A. Driedger, Butterworths, and Craies on Statute Law, 7th edition, S. G. Gredgar, London, Sweet and Maxwell, (1971), the applicants ask the Board to apply a number of rules of construction which, it maintains, will cause the Board to harmonize the two statutes in the manner suggested by it. The applicants argue that it is a rule of statutory construction that nothing is redundant and that every word must be given a meaning so that the words "terms and conditions" cannot be read out of section 13 of Bill 179 as the intervener has attempted to do. The applicants argue that statutory language is to be read consistent with other statutes in the same field so that the words "terms and conditions" should be given the same meaning in both the Labour Relations Act and Bill 179. The applicants argue that a statute must be read purposively so that Bill 179, whose purpose it is to restrain compensation, should not be read as interfering with the rights of employees to organize under the Labour Relations Act. The applicants maintain that, where statutes are not clear, a presumption exists that one does not override another unless the result would be an absolute repugnancy, a further presumption exists against interfering with vested rights and finally a presumption exists against construing a statute in such a way that it interferes with international obligations. The applicants argue that the interpretation of (Bill 179 urged by the intervener conflicts with the United Nations treaties on Human Rights and the International Labour Organization Convention on Freedom of Association, both of which guarantee freedom of association and both of which are signed by this country.

16. Finally, the applicants rely on the Charter of Rights. The applicants argue that the Charter is the supreme law of the land and, therefore, insofar as Bill 179 abrogates the freedom of association provided in Section 2(d) of the Charter, it is null and void. The applicants take the position that where the interference with freedom of association which the intervener maintains is worked by Bill 179 is not expressly contemplated within the statute, so that the interference can reasonably be termed an incidental effect, it can hardly be said that the interference falls within the provision of section 1 of the Charter which makes the rights enshrined in the Charter "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

17. The intervener argues in reply that the legislature recognized that section 13 would conflict with other statutes including the Labour Relations Act, and, therefore, it prefaced the section with the words "notwithstanding any other Act". Accordingly, the intervener maintains that on the clear direction of the legislature, whatever conflict arises is to be resolved by following Bill 179. In response to the applicants' position that the words "terms and conditions" as a preface to section 13(b) of Bill 179 are designed to prevent a trade union from claiming that its collective agreement has been frustrated, the intervener argues that it is more reasonable to conclude instead that the legislature wanted to pin down the extension of each and every term, not just the monetary terms encompassed by the compensation plan. The intervener argues as well that if the legislature intended to extend only terms and conditions but not the collective agreement, it could have simply said that terms and conditions are extended but not the collective agreement. In any event, the intervener argues that the position advanced between the extension of a collective agreement and the terms and conditions of a collective agreement is self-defeating. The intervener maintains that if the terms and conditions of the collective agreement are extended, as argued by the applicants, the recognition clause under which the intervener is the recognized bargaining agent and the no strike and no lockout clause continue in force. Furthermore, the intervener argues that, on the language of section 15 of Bill 179, it is contemplated that if any changes are made to terms and conditions other than those contained in the compensation plan, they will be made on agreement of the parties to the collective agreement in existence at the time Bill 179 came into force and not by a successor trade union.

18. In response to the position of the applicants that section 13 of Bill 179 is worded as it is for the purpose of preventing a trade union from claiming that its existing collective agreement has been frustrated and that it should be allowed to renegotiate, the intervener argues that if this is the purpose, the legislature, which could have addressed this issue head-on, chose an elliptical way of accomplishing the result suggested by the applicants. The intervener reminds the Board that the legislature seldom attempts to spell out all of the possible effects of a piece of legislation so that the absence from the statute of an effect, otherwise flowing from the plain meaning of the language, should not cause the Board to conclude that the effect was not intended.

19. Finally, the intervener maintains that freedom of association, as referred to in the Charter and in the international treaties cited by the applicants, does not go to the question of who is the legally certified bargaining agent. Where employees continue to be free to associate in a trade union, where, absent Bill 179, the displacement of an incumbent bargaining agent and the replacement of that bargaining agent with another is limited to certain prescribed times, and where the effect of Bill 179 is limited to deferring the open period of one year, the intervener argues that section 13 of Bill 179 is not in conflict with the Charter of Rights.

DECISION

20. The issue is whether or not Bill 179 operates to extend the collective agreements before us beyond the time as of which they would otherwise expire. If the collective agreements are extended by the provisions of Bill 179, these applications will not have been made "after the commencement of the last two months of its operation" as is required under section 5(4) of the Labour Relations Act and, therefore, will be untimely. A finding that the effect of Bill 179 is to extend the collective agreements and to thereby close off the open period within which one trade union may seek to displace another has far-reaching ramifications upon the rights of employees, trade unions and employers under the Labour Relations Act. If the open period is closed for purpose of filing a timely displacement application for certification, it must also be closed for purposes of ascertaining the timeliness of an employee application to terminate bargaining rights and for purposes of giving notice to bargain under section 53 of the Labour Relations Act. If notice to bargain cannot be given the precondition to the appointment of a conciliation officer under section 16, of the Labour Relations Act (both sections 53 and 16 of the Labour Relations Act are incorporated mutatis mutandis into the Hospital Labour Disputes Arbitration Act) cannot be satisfied so that the right to engage in a legal strike or lockout under section 72 of the Labour Relations Act and the right to the appointment of an arbitrator under section 5 of The Hospital Labour Disputes Arbitration Act are abridged. Our finding in this matter, therefore, may have far-reaching consequences with respect to the operation of the Labour Relations Act and the Hospital Labour Disputes Arbitration Act in respect of those covered by Bill 179.

21. In light of the foregoing we accept the submissions of the applicants that every effort should be made to interpret Bill 179 in a manner which does not interfere with the rights of employees under the Labour Relations Act. The Labour Relations Act establishes procedures whereby employees may select and be represented by a trade union of their choice, bargain collectively with their employer through their duly certified bargaining agent, and, at certain prescribed times, resort to economic sanctions against their employer in support of improved terms and conditions of employment, or, if covered by the Hospital Labour Disputes Arbitration Act, apply for the appointment of an arbitrator. The rights established under the Labour Relations Act and the Hospital Labour Disputes Arbitration Act ought not to be interfered with by the operation of another statute unless it is manifestly clear on a reading of the other statute that such a result is intended. Even if we accept, as clearly we must on a reading of Bill 179, that compensation is to be regulated during the period of its operation, it does not necessarily follow that Bill 179 abridges the right of employees under the Labour Relations Act to choose a bargaining agent at the times prescribed in the Labour Relations Act or to bargain collectively in respect on non-compensation matters. This tribunal, with its special expertise in labour relations, recognizes the importance of non-compensation terms and conditions of employment such as seniority, layoff and recall (especially in a time of recession), health and safety, grievance procedure and management rights. Notwithstanding the regulation of compensation, meaningful and substantial collective bargaining is nevertheless possible. We begin our analysis of the statutory language of Bill 179, therefore, from the perspective that, where the purpose of the Bill is to restrain compensation and where there is no language in the Bill expressly abridging the right of employees to choose a bargaining agent, to request conciliation or to engage in a legal strike under the Labour Relations Act, every effort should be made to harmonize the two statutes so as to preserve intact as much of the Labour Relations Act as is possible.

22. The critical language of Bill 179, for purposes of deciding the issue before us, is contained in section 13. The section continues in force without change "the terms and conditions of (a) every compensation plan that is extended or made subject to this part ... (b) every collective agreement that includes such a compensation plan," and is made to operate "notwithstanding any other act except the Human Rights Code, 1981 and section 33 of the Employment Standards Act. The submissions of the parties with respect to the purpose and meaning of section 13 of Bill 179 have been set out. These submissions deal not only with the impact of Bill 179 on the timeliness of representation applications but also with the impact of the Bill upon the collective bargaining process established under the Labour Relations Act. It is important, for purposes of interpreting the relevant provisions of Bill 179, to recognize the strong nexus between representation rights and collective bargaining under the Labour Relations Act and the manner in which representation rights, collective bargaining and the right to resort to economic sanctions fit together as part of an integrated whole. Notwithstanding our natural attraction to the interpretation of Bill 179 advanced by the applicants, there would be little point in straining the language of the Bill to preserve the open periods provided under the Labour Relations Act if the Bill could not also be interpreted as preserving some form of meaningful collective bargaining. More importantly, if the effect of preserving the open period allows the parties to reach a legal strike or lockout position at a time when they can not engage in collective bargaining the result is one that the legislature would not have intended.

23. The applicants, relying on the jurisprudence under section 79 of the Labour Relations Act and the judgment of the Ontario Court of Appeal in Re Telegram Publishing Co. Ltd. and Zwelling et al, supra, ask us to distinguish between the continuation of the terms and conditions of a collective agreement, as is provided for in section 13 of Bill 179, and the continuation of collective agreement, which it maintains is not provided for in section 13 of Bill 179. We start by observing that the statutory language found in section 79 of the Labour Relations Act, is markedly different than that which the applicants ask us to give the same meaning to in section 13 of Bill 179. Section 79 of the Labour Relations Act speaks of freezing any "term or condition of employment" at a time when there is "no collective agreement in operation". Section 13 of (Bill 179, on the other hand, speaks only to continuing in force "the terms and conditions of every collective agreement. . . ." When reference is had to the definition of "collective agreement" in section 4(c) of Bill 179 as "a collective agreement as defined in the Labour Relations Act . . ." and to the obvious interrelationship between the two statutes, one would have expected the legislature to have used the statutory language of section 79 of the Labour Relations Act in sections 13 of Bill 179 if it has intended to accomplish the same result. In our view, the failure of the legislature to speak in terms of continuing in force the terms and conditions of employment during the period when a collective agreement ceases to operate supports the conclusion that a different result was intended. The decision of the Court of Appeal in Re Telegram Publishing Co. Ltd. and Zwelling, supra, deals with what terms and conditions of employment are preserved after a collective agreement ceases to operate. The continuation of the terms and conditions of employment which were embodied in the collective agreement does not support the conclusion that statutory language extending the terms and conditions of a collective agreement does not also extend the agreement.

24. The difficulties inherent in the interpretation of section 13 of Bill 179 advanced by the applicants become apparent if we accept, without finding, that section 13 means what the applicants say it means. Even if we accept that a collective agreement covered by the Bill ceases to operate on its expiry, as it ordinarily would, there is no question that the terms and conditions contained in the agreement continue in effect by virtue of section 13 of the Bill. If all of the terms and conditions contained in the collective agreement are continued there is nothing to negotiate and the distinction which the applicants seek to draw between the continuation of the terms and conditions of a collective agreement and the continuation of the agreement itself, insofar as the distinction results in some semblance of collective bargaining, is meaningless.

25. It is not surprising, therefore, that the applicants rely heavily on section 15 as providing the vehicle by which a trade union gets itself out from under the strictures of section 13 in order to seek, by agreement, to amend the non-compensation terms and conditions which would otherwise be continued under section 13 of Bill 179. The applicants maintain that following the expiry of the collective agreement (which they argue is allowed to happen under section 13) the amendments "by agreement" contemplated under section 15 of Bill 179 may be brought about by recourse to the procedures for collective bargaining, including strike and lockout, provided under the Labour Relations Act. However, the plain language of the section does not support this result. The section applies to "the parties to a collective agreement" and speaks to the amending of "any terms and conditions of the collective agreement other than compensation. . . ." Only the parties to a collective agreement may rely on the section and it clearly contemplates amendments being made to an existing collective agreement. In the result section 15 does not provide a vehicle for the renegotiation of the terms and conditions which are continued under section 13 after the time when the collective agreement would be allowed to expire. There is no provision in Bill 179 which facilitates the renegotiation of these terms and conditions after the expiry of a collective agreement. Therefore, even if it could be held that the collective agreement is allowed to expire under section 13, there is no mechanism to facilitate the renegotiation of the terms and conditions which are continued. If, in the face of the clear limitations upon access to section 15, we were to adopt the applicants' interpretation of section 13, collective agreements could expire, representation applications could be processed and legal strikes and lockouts could occur at a time when no collective bargaining could take place. As we have observed this is a result that the legislature would not have intended.

26. If we go one step further and assume, again without finding, that the applicants can somehow rely on section 15, at a time when they maintain that there is no collective agreement in operation, collective bargaining as envisaged under the Labour Relations Act with resort to strike and lockout cannot, as suggested by the applicants, take place. Even if the collective agreement ceases to operate its terms and conditions continue in force under section 13. Under section 42 of the Labour Relations Act "every collective agreement shall provide that there will be no strikes or lockouts so long as the agreement continues to operate" and if a collective agreement does not contain such a provision it is deemed to contain one. We would be hard pressed to find that the no strike/no lockout provision (because it may be expressly tied to the continued operation of the collective agreement) does not continue in force along with all of the other terms and conditions of the collective agreement which would normally expire at the same time by virtue of the termination clause. The continuation of the no strike/no lockout provision during the bargaining contemplated under section 15 of Bill 179 would deprive the parties of the right to force agreement by means of strike or lockout. Even if section 13 is read as allowing collective agreements to expire when they otherwise would and section 15 is read as permitting the parties to an expired collective agreement to utilize the collective bargaining procedures established under the Labour Relations Act, the parties would nevertheless be unable to resort to strike or lockout as a means of securing agreement on revised terms and conditions of employment.

27. The language of section 14 of Bill 179 also supports the conclusion that the legislature, when it provided that the "terms and conditions of every collective agreement ... shall continue in force" in section 13, intended to continue the collective agreement. Section 14 of Bill 179 establishes the procedures to be followed in order to ensure that increases in compensation are within the statutory guidelines whenever a compensation plan is changed. There are two distinct procedures outlined. Under article 14(2), where "the administrator of a compensation plan that is not included in a collective agreement proposes to change any term or condition of the plan" the administrator shall apply to the Inflation Review Board to have the proposed change reviewed before it is implemented. Section 14(2) is clearly designed to regulate the unilateral decisions of an employer who is not party to a collective bargaining relationship in respect of any modification to a compensation plan. (An employer may be an administrator within the meaning of that term as defined in section 4(a) of Bill 179.) Indeed under section 14(2) the employer's decision to change the compensation plan is required to trigger the review procedure and to thereby allow for implementation. Subsection (1) of section 14, on the other hand, deals with the procedure to be followed where "the parties to a collective agreement" cannot agree on the amount of the increase to, or the value of a compensation plan, or agree to change the compensation plan. The section, however, is expressly limited to "the parties to a collective agreement". If we accept the applicants’ interpretation of article 13 and find that collective agreements are allowed to expire the parties to an expired collective agreement would be unable to bring themselves within either section 14(1) or section 14(2). There are no other procedures under Bill 179 to monitor changes to compensation plans which are negotiated after a collective agreement has expired. Given the comprehensive monitoring procedures which are established and the general scope of the Bill, we cannot accept that the legislature intended such a result.

28. It is implicit in the applicants' submissions that the words "the parties to a collective agreement", which limit access to sections 14(1) and 15 of Bill 179, were intended to encompass the parties to a collective bargaining relationship regardless of whether or not party to a subsisting collective agreement. This interpretation would allow the parties to the collective agreement which the applicants maintain are permitted to expire under section 13 of Bill 179 to nevertheless amend non-compensation terms and conditions "by agreement" under section 15 and to obtain approval for compensation plan increases under section 14(1) of Bill 179. The only reason one would strain the plain meaning of sections 14(1) and 15 in this way would be to provide some practical labour relations purpose for interpreting section 13(b) as the applicants have interpreted it. However, on the one hand, the applicants' interpretation of section 13 suggests that the Legislature was acutely sensitive to the effect of contract expiry under the Labour Relations Act, while, on the other hand, the interpretation of sections 14(1) and 15 which is implied in the applicants' submissions suggests that the Legislature was content to make a hazy and ill-defined distinction between the parties to a collective agreement and the parties to the collective bargaining relationship which continues after the collective agreement expires. In our view, the Legislature would not have been so inconsistent. The better approach, and the one we have followed, is to interpret section 13, which could be termed equivocal, in light of the plain words and clear meaning of sections 14(1) and 15.

29. The language of section 13 of Bill 179, when read in the context of the Bill as whole, forces us to the conclusion that it was intended to extend the collective agreements brought within its ambit. The effect of this interpretation is to close out the open periods provided in the Labour Relations Act at the commencement of the last two months of the operation of a collective agreement. This interpretation has a dramatic effect upon the operation of the Labour Relations Act in respect of representation applications, notice to bargain, appointment of conciliation officers and the right to strike or lockout. However, section 13 of Bill 179 is expressly made to operate "notwithstanding any other Act". These are forceful words which, in the face of the definition of a collective agreement contained in Bill 179, as including a collective agreement under the Labour Relations Act, and the interrelationship between the two statutes, and in the absence of any saving language as is used in respect of the Human Rights Code and the Employment Standards Act, speak to the awareness of the legislature of the conflict between the two statutes and its intention that Bill 179 prevail.

30. The rules and presumptions used in the construction of statutes relied upon by the applicants, apply where the language at issue is open to two interpretations. In our view, the relevant language of Bill 179 does not admit to more than a single reasonable interpretation. The Bill extends the operation of collective agreements which would otherwise cease to operate and, in so doing may render untimely a representation application or prevent the appointment of a conciliation officer and consequently abridge the right to strike or lockout under the Labour Relations Act or the right to an arbitrator under the Hospital Labour Disputes Arbitration Act.

31. We now turn to the final leg of the applicants' argument. The applicants argue that insofar as Bill 179 abrogates the freedom of association provided in section 2(d) of the Charter of Rights, it is null and void. Even if we accept, without finding, that freedom of association includes the freedom to be represented by a bargaining agent of one's choice, we are not convinced on the submissions before us that Bill 179 abrogates that freedom in a manner that contravenes the Charter. Where, as in this jurisdiction, the right to be represented in collective bargaining by a trade union of one's choice is circumscribed by the statutory application of the majority principle, applied in respect of those in a bargaining unit found to be appropriate by this Board, and by the timeliness requirements under the Labour Relations Act, and where it is not, nor can be suggested, that these restrictions upon the freedom to be represented in collective bargaining by a trade union of one's choice are contrary to the Charter, we are not convinced that the fixed period extension of collective agreements under Bill 179, with the attendant impact upon the timeliness of representation applications under the Labour Relations Act, as in contravention of the Charter. It is to be observed that the extension of the instant collective agreements under Bill 179 does not suspend the right of the employees covered by them to terminate bargaining rights or to choose another bargaining agent beyond the maximum 35 month period (section 5(5) of the Labour Relations Act) during which these rights may be suspended under the Labour Relations Act.

32. Having regard to all of the foregoing, we find that the collective agreements in the instant case are extended beyond their normal expiry dates by the application of section 13 of Bill 179 so that these applications are untimely. We wish to make it clear that our analysis and conclusion in this case pertain to the effect of Bill 179 on an existing collective agreement. We do not speak to the effect of Bill 179 on the negotiation of a first agreement. In any event, these applications are hereby dismissed.

DECISION OF BOARD MEMBER B. L. ARMSTRONG;

1. The purpose of the Inflation Restraint Act can be ascertained from its full title which is "An Act Respecting the Restraint of Compensation in the Public Sector of Ontario and the Monitoring of Inflationary Conditions in the Economy of the Province" [emphasis added]. The Legislature of this Province passed an act to restrain the compensation of a large segment of the working people of Ontario. The act contains a number of provisions which deal directly and explicitly with this objective. Indeed, the government can, without recourse to the Legislature, enact by regulation pursuant to section 25 that "any person, or class of person, or any agency, authority, board, commission, corporation, or organization of any kind" may be made subject to this Act, retroactive to September 21, 1982, provided such a regulation is "necessary for the restraint of public sector expenditure". It is clear to me that the Legislature intended by this Act to control or reduce inflation by controlling compensation.

2. Nevertheless, I am reluctantly driven to the same conclusion as my colleagues as to the meaning of the Inflation Restraint Act and its impact on collective bargaining. The language of section 13, when read together with sections 15 and 14 has forced this Board to find that the Inflation Restraint Act has not only purported to reduce compensation but has suspended collective bargaining for all of those employees and their unions who have been, or who might be, by government fiat, swept under its coverage.

3. Prior to the enactment of the amendments to the Constitution of Canada which enshrined the Canadian Charter of Rights and Freedoms as part of that Constitution and made it the supreme law of this country, our conclusion as to the interpretation of laws passed by our Provincial Legislature would have ended our inquiry. That is not the case now. This Board, which is required to administer and interpret the law as it impacts upon our proceedings in labour relations matters has both the right and the duty under section 52(1) of the Charter of Rights to determine whether the Inflation Restraint Act .... . is consistent with the provisions of the Constitution" including the Charter of Rights, and if it is inconsistent, not to have regard to it, since the Inflation Restraint Act no longer would be of any force or effect.

4. The majority have found that the Inflation Restraint Act, by extending collective agreements, prevents two groups of employees from attempting to change the trade union which represents them in collective bargaining. In my opinion, the freedom of association recognized and protected by section 2(d) of the Charter must include the freedom to be represented in collective bargaining by a freely selected trade union. Any restriction on that freedom is prima facie contrary to section 2(d). Indeed, the examples of my colleagues which set out various provisions of the Labour Relations Act that impact on that freedom may well interfere with employees' freedom of association but are nevertheless necessary for stable and healthy collective bargaining. Since they are clearly reasonable limitations prescribed by law on the freedom of association, they are lawful and not contrary to the Charter of Rights in light of section 1 of the Charter.

5. While the limitations of the freedom of association set out in the Labour Relations Act are both reasonable and necessary, can the same be said for the impact of the lnflation Restraint Act on that freedom? In my opinion, the answer is clearly no. One need look no further back than 1975, when the national anti-inflation program came into effect. Under that scheme employee compensation was restricted, and there was a limited impact on collective bargaining, but it did not end collective bargaining, nor did it eliminate the right to strike or lockout or the right to resort to interest arbitration or the right to change trade unions. My recollection is that inflation at that time was much higher than inflation is now; yet, collective bargaining was permitted to continue then but not now. Furthermore, I fail to see why the right to change trade union representation needs to be suspended in order to reduce compensation. The practical elimination of collective bargaining over the non-compensation provisions in a collective agreement was not then considered necessary to effectively complement the anti-inflation program in 1975 and is clearly not necessary now.

6. The wholesale gutting of the collective bargaining portion of the Labour Relations Act by the Inflation Restraint Act represents an unwarranted and totally unnecessary abrogation of the collective bargaining rights of a large segment of employees. The Legislature could have restrained compensation without suspending the rights of employees to select which trade union they wish to be represented by and without denying those employees the right to bargain effectively with their employers over non-monetary provisions in a collective agreement.

7. Given our unanimous interpretation of the meaning of the Inflation Restraint Act, it seems to me that the Legislature has attempted to piggy-back the elimination of collective bargaining rights for many workers of this province under the guise of restraining compensation. The government is both legislator and employer. As legislator, it could have accomplished its objective of restraining compensation without affecting the basic rights of workers in this province. It seems to me in this case that the government used its role as legislator to make its role as employer much easier. As employer, the government need not now engage in collective bargaining. It seems patently obvious to me that the government has used the current economic situation and the laudable objective of reducing inflation to unilaterally rob its employees and any other groups of workers it may choose to designate, of their collective bargaining rights.

8. It appears that the government has selected public sector employees to bear the brunt of its fight against inflation. Were those employees chosen for economic reasons? I think not. There are many sectors of our economy which have as much, if not more of an impact on inflation. The government could have imposed restraint not just on employees and the price of their labour, but on manufacturers for the price of their products, on landlords and builders for the price of accommodation, on lawyers, doctors, and dentists for the price of their services, and on financial institutions for their interest rates. I am convinced that the government choose to attack the collective bargaining rights of its employees as a matter of political expediency. That motivation does not, in my opinion, justify this suspension of free collective bargaining by public sector employees. The right of the provincial government to pass this kind of regressive anti-labour legislation is not unlimited. Its right to do so is limited, in this case, by the Charter of Rights, and generally by the will of the people of this province as expressed at the next provincial election.

9. I therefore find that the Inflation Restraint Act, to the extent it denies employees their freedom of association, is inconsistent with the constitution of Canada and is therefore, to that extent, of no force or effect. In my view, both of these applications for certification are timely, the ballots already cast ought to be counted and the matters referred to the Registrar.