United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552 v. Board of Education for the City of Windsor, 1995 CanLII 9957

[1995] OLRB Rep. March234

1115-94-G United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, Applicant v. Board of Education for the City of Windsor, Responding Party

BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. A. Ronson and H. Kobryn.

APPEARANCES: Stephen B. D. Wahl for the applicant; Brian P. Nolan and David Musyj for the responding party.

DECISION OF THE BOARD; March 7, 1995

I. Introduction

1. This is an application under section 126 of the Labour Relations Act ("the Act"). This construction grievance raises for consideration the applicability of the Social Contract Act (S.O. 1993, c.5) to collective agreements in the I.C.I. sector of the construction industry.

2. The parties argued this matter on the basis of the following Agreed Statement of Facts

(with exhibit references deleted):

AGREED STATEMENT OF FACTS

1. The Ontario Labour Relations Board ("the Board") issued an industrial certificate to the United Association of Journeymen and Apprentices of the Plumbing and Pipefit­ting Industry of the United States and Canada, Local 552 ("the Union") as the bar­gaining agent for all plumbers and plumbers' apprentices in the employ of the Board of Education for the City of Windsor ("the Windsor Board") on February 27, 1967.

2. From time to time, the Union and the Windsor Board have entered into collective agreements for this bargaining unit. The most recent agreement was for the period commencing May 1, 1992 until April 30, 1994 and continues as extended. The Wind­sor Board employs plumbers performing maintenance work throughout the year pur­suant to this Collective Agreement between the Union and the Board [sic].

3. On May 18. 1983, the Board certified the Union as the bargaining agent for all plumb­ers and plumbers' apprentices in the employ of the Windsor Board:

(i) in the industrial, commercial and institutional sector (ICI sector) of the construction industry; and

(ii) in all other sectors of the construction industry save and except the indus­trial, commercial and institutional sector in the Counties of Essex and Kent.

4. By Operation of Law pursuant to the Labour Relations Act ("the Act") s. 147, the 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 Pipefitting Industry of the United States and Canada ("the Provincial Agreement") is binding upon the Union and the Wind­sor Board.

5. Following the certification of the Union as the bargaining agent for all plumbers and plumbers' apprentices in the employ of the Windsor Board in May, 1983, by arrange­ment between the Board and the Local Union "temporary" plumbers were paid wages and received benefits on a basis that was different from the Provincial ICI Agreement.

This practice was successfully challenged by the Union, resulting in a decision of the OLRB, dated March 4, 1988, subsequently upheld by the Ontario Divisional Court and the Ontario Court of Appeal, which confirmed that the Windsor Board was an employer in the construction industry and subject to the provision of the Provincial Agreement as set Out in paragraph 4 above.

6. The Windsor Board employs plumbers performing ICI construction work on various projects throughout the year. At all relevant times pertaining to this grievance, Charles Ridley ("Ridley") and John Hutton ("Hutton") were employed by the Wind­sor Board as plumbers performing ICI construction work and have and are earning more than $30,000.00 per year. Ridley commenced his employment on May 31, 1988 and began his current assignment on April 19, 1993. Hutton was originally hired on June 7, 1988 and began his current assignment on April 19, 1993. They have been paid at the Provincial rates since 1988.

7. On June 18, 1994, the Board requested that the Union hiring hall provide them with two plumbers for capital projects for the period commencing June 27, 1994 until Sep­tember 1994. The Union referred Tom Nielson ("Nielson") and Bob Leach ("Leach") pursuant to this staff requisition or call for personnel. Nielson and Leach are temporarily employed by the Windsor Board as plumbers in the ICI sector. They will not earn $30,000.00 in the employ of the Windsor Board prior to September, 1994.

8. As of May 1, 1994, the Provincial 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 Pipefitting Industry of the United States and Canada required a wage rate and benefit increase.

9. The Windsor Board has not paid Ridley and Hutton the May 1,1994 increases in the rates of wages, overtime, vacation and statutory holiday pay; and increases in the required contributions, deductions and allowances with respect to Union Dues, Wel­fare Benefits, Pension and Industry Fund required by the Provincial Agreement.

10. The Windsor Board has not paid Nielson and Leach the May 1, 1994 increases in the rates of wages, overtime, vacation and statutory holiday pay; and increases in the required contributions, deductions and allowances with respect to Union Dues, Wel­fare Benefits, Pension, Industry Fund pursuant to the Provincial Agreement.

11. The Windsor Board has posted a programme pursuant to Section 29 of the Social Contract Act applicable to the bargaining relationship between the Union and the Windsor Board.

12. The programme posted by the Windsor Board pursuant to Section 29 of the Social Contract Act was not objected to or grieved by the Union or any bargaining unit employee, and no application was made by the Union pursuant to Section 30 of the Act and the Regulations thereto for appointment of a Social Contractor [sic] Arbitra­tor.

13. School Boards are included in the schedule to the Social Contract Act as a public sec­tor employer. The Mechanical Contractors' Association of Ontario is not included in the schedule as a public sector employer.

14. No "local agreement" pursuant to the School's Sector Non-Teaching Framework Agreement was entered into between the Windsor Board and the Union.

15. Pursuant to Section 35 of the Social Contract Act, the Union served notice on the Windsor Board of its election to extend the current collective agreement until March 31, 1996.

Nine exhibits were attached to the Agreed Statement of Facts. These exhibits will be referred to where appropriate.

3. The parties made reference during argument to the following provisions of the Labour Relations Act:

45.- (8) An arbitrator or arbitration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers:

1. To determine the nature of the differences in order to address their real substance.

2. To determine all questions of fact or law that arise.

3. To interpret and apply the requirements of human rights and other employment-re­lated statutes, despite any conflict between those requirements and the terms of the collective agreement.

4. To grant such interim orders, including interim relief, as the arbitrator or arbitration board considers appropriate.

5. To enforce a written settlement of a grievance.

126.-(1) Despite the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 45. a party to a collective agreement between an employer or employers' 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.

(2) A referral under subsection (1) may be made in writing in the prescribed form by a party at any time after delivery of the written grievance to the other party, and the Board shall appoint a date for and hold a hearing within fourteen days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing.

(3) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and deter­mine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 45 (6.3). (8), (8.1), (8.3) and (9) to (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

(4) The expense of proceedings under this section, in the amount fixed by the regulations, shall be jointly paid by the parties to the Board for payment into the Consolidated Revenue Fund.

148.-(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 141 and 147, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargain­ing agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.

and of the Social Contract Act:

2. In this Act,

"bargaining agent" means a trade union or other organization that, under any Act, has bargain­ing rights in respect of any unit of employees and includes any other organization that is recog­nized under section 5 as a bargaining agent; ("agent negociateur")

"collective agreement" means an agreement in writing between an employer and a bargaining agent providing for compensation of those covered by the agreement; ("convention collective")

"employee" means an employee of an employer in the public sector and includes the officers of employers and, unless exempted by the regulations, the holders of offices elected or appointed under the authority of any Act; ("employe")

"employer" means an employer in the public sector; ("employeur")

4. This Act binds the Crown in right of Ontario and all employers, employees and bargaining agents in the public sector.

23.-(1) This Part applies to,

(a) those bargaining unit employees in respect of whom there is no local agreement that meets the criteria set out in paragraphs 1, 3 and 4 of subsection 14(1); and

(b) those non-bargaining unit employees whose employer has not implemented a non-bargaining unit plan under section 16 by August 1, 1993.

(2) This Part does not apply to employees who earn less than $30,000 annually, excluding over­ttme pay.

24.-(1) The rate of compensation of an employee is, for the period beginning June 14, 1993 and

ending with March 31, 1996, fixed at the rate that was in effect immediately before June 14,

(2) For greater certainty, "compensation" in this section includes,

(a) merit increases;

(b) cost-of-living increases or other similar movement of or through ranges; and

(c) increases resulting from any movements on any pay scale or other grid sys­tem.

(3) Nothing in this section prevents increases in compensation as a result of a promotion or act­ing promotion of an employee to a different position.

(4) An increase in compensation after June 14, 1993 under a collective agreement existing on that date is void.

(5) Despite subsection (4), a bargaining agent, by written notice to the employer, may elect to preserve increases in compensation provided for in a collective agreement existing on June 14, 1993, other than compensation described in clause (2) (a), (b) or (c).

(6) The notice of the election must be delivered to the employer not later than when the bar­gaining agent gives notice to the employer to bargain a renewal or new collective agreement which may extend beyond March 31, 1996.

(7) If an election is made under subsection (5),

(a) any increase in compensation shall be deferred until the third anniversary following the day on which it would have occurred under the collective agreement; and

(b) no increase in compensation, other than those preserved by the election, shall be given before the third anniversary following the day the collective agreement expires, or, if the collective agreement has been extended under section 35, before the third anniversary of the day it would have expired had it not been extended.

(8) An employee is not entitled to any increases in compensation after March 31, 1996 by way of,

(a) merit increases;

(b) cost-of-living increases or other similar movement of or through ranges; or

(c) increases resulting from any movements on any pay scale or other grid sys­tem, except as prescribed by regulation,

in respect of employment during the period beginning June 14, 1993 and ending March 31, 1996.

(9) If a collective agreement has expired before June 14, 1993 and on that date the employees that were formerly bound by it are without a collective agreement, the compensation of these employees is fixed at the amount they were receiving under the last collective agreement in force before June 14, 1993.

(10) Despite subsection (1), if employees are represented by a bargaining agent that,

(a) was certified or recognized as the employees' bargaining agent before June 14,1993; or

(b) applied for certification as the employees' bargaining agent before June 14, 1993, and a first collective agreement comes into force on or after June 14, 1993, the rate of compensation of an employee to whom the first collective agreement applies is, for the period beginning on the day the first collective agreement comes into force and ending with March 31, 1996, fixed at the rate first payable under the first collective agreement.

(11) The compensation of an employee who starts employment after June 14, 1993 is fixed at the starting amount until March 31, 1996 and the employee is bound by the program established under section 27 if the program is applicable to that employee.

29.(1) The summary of the program and a copy of this Part shall be posted in such a manner that they are likely to come to the attention of the employees affected by the program

(2) The summary of the program shall not be posted before August 2,1993.

(3) An employee or bargaining agent who objects to the program because it fails to meet the cri­teria set out in section 27 may within ten days of the summary of the program being posted request in writing that the employer amend it.

(4) The request for amendment shall set out the reasons for the objection.

(5) The employer shall, within ten days after the objection period has expired, review the objec­tions and post in the same manner,

(a) a notice of confirmation of the original program; or

(b) a summary of the amended program.

(6) The program may take effect on the day the summary is posted under subsection (1) and shall remain in effect even though a request for amendment has been made under this section or a request for a review has been made under section 30.

(7) If at any time during the currency of the program the employer considers it necessary to fur­ther amend it, the amended program shall be treated as a new program and this section and sec­tions 30 and 31 apply with necessary modifications.

30.-(1) If following the employer review under subsection 29(5), an employee of a bargaining agent considers that the program or amended program still does not meet the criteria set out in section 27, he, she or it may, within ten days after the posting under subsection 29(5), request a review of the program by the person or body designated in the regulations as an adjudicator for that purpose.

(2) The request shall be in writing and shall specify the grounds for the objection to the pro­gram.

31.-(1) Subject to the regulations, if any, the adjudicator may establish procedures for carrying out the review.

(2) The adjudicator shall review the program and shall,

(a) confirm the program if it meets the criteria set out in section 27; or

(b) amend the program so that, in the opinion of the adjudicator, it is consistent with the criteria set out in section 27.

(3) The adjudicator may make the decision based on the written submissions of the employer, bargaining agent, if any, and employees and is not required to hold a hearing.

(4) The adjudicator shall make only one decision on the program irrespective of the number of requests made for a review.

(5) The decision of the adjudicator is final.

33.-(1) An employee to whom a collective agreement applies may use the grievance or arbitra­tion procedures under the collective agreement to decide any difference between the employee and his or her employer arising out of the interpretation, application, administration or alleged contravention of a program developed by the employer under this Part.

(2) In a grievance or arbitration under subsection (1), the arbitrator or board of arbitration shall not make any decision that an adjudicator is entitled to make under subsection 31(2).

52. The provisions of this Act and the regulations prevail over the provisions of any other Act and the regulations thereunder but only to the extent necessary to carry out the intent and pur­poses of this Act.

SCHEDULE

1. The public sector in Ontario consists of,

(c) every board as defined in the Education Act (R.S.O. 1990, c. E.2), the Metropolitan Toronto School Board and the Ottawa-Carleton French-language School Board, including its public sector and its Roman Catholic sector; .

(j) 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 Appendix to this Schedule or added to the Appendix by the regulations made under this Act.

APPENDIX

MINISTRY OF HEALTH

1. The Hospital Council of Metropolitan Toronto.

II. Positions of the Parties

4. The applicant submits that all four of the individual grievors were, at all relevant times, performing ICI construction work, and that the Social Contract Act does not apply to individuals performing work under ICI. agreements. Accordingly, all four of the grievors ought to have been provided with compensation increases contained in the Provincial Agreement. Counsel referred the Board to the definitions of "bargaining agent" and "employer" in the Social Contract Act and acknowledged that the applicant was a bargaining agent and that the responding party was an employer for the purposes of that Act. However, counsel submitted that, because of the definition of "collective agreement" contained in the Social Contract Act, and in light of the Schedule to the Act and the Appendix to that Schedule, the I. C. I agreement applicable to the applicant and the responding party is not captured by the Social Contract Act.

5. The term "collective agreement" is defined in section 2 of the Social Contract Act to mean "an agreement in writing between an employer and a bargaining agent providing for com­pensation of those covered by the agreement". The term "employer" is defined to mean "an employer in the public sector". Accordingly, submitted counsel, the I.C.I. agreement which binds the applicant and the responding party is not a "collective agreement" for the purposes of the Social Contract Act because the agreement is between the Mechanical Contractors Association of Ontario (hereinafter "M.C.A.O.") and the Ontario Pipe Trades Council, and the M.C.A.O. is not, either in the Schedule to the Social Contract Act or the Appendix to the Schedule, designated as ''an employer'' for the purposes of that Act.

6. In further support of this argument, counsel noted that the Appendix to the Schedule of the Social Contract Act contained, as an "employer", The Hospital Council of Metropolitan Toronto, an association of employers which negotiates collective agreements in the public sector. Counsel submitted that the Legislature had turned its mind to which employer associations would be deemed to be "employers" for the purposes of the Social Contract Act and, when it desired one to be included, it did so. Counsel submitted that the absence of the M.C.A.O. from the Schedule or Appendix to the Schedule of the Social Contract Act reflects a legislative determination that the M.C.A.O. ought not to be considered an "employer" for the purposes of the Social Contract Act.

7. Counsel for the applicant addressed the jurisdiction of the Board to entertain this griev­ance in light of the provisions of the Social Contract Act which establish adjudication of disputes under that Act. Counsel noted that, pursuant to section 126(3) of the Act, the Board has exclusive jurisdiction to determine a grievance concerning the interpretation, application, administration or alleged violation of the collective agreement applicable to the parties. This specifically includes the power to "interpret and apply the requirements of human rights and other employment-related statutes" as provided by section 45(8)3 of the Act.

8. Counsel reviewed section 33 of the Social Contract Act which delineates the jurisdiction between arbitrators and adjudicators under the Social Contract Act. Once again, counsel noted that the section makes reference to the concept of "collective agreement" which is defined nar­rowly by the legislation. Counsel reviewed with the Board the cases of Porcupine Area Ambulance Service v. Canadian Union of Public Employees, Local 1484 (Dumoulin, January 10, 1994), Leamington District Memorial Hospital v. Service Employees Union, Local 210 (Samuels, Novem­ber 12, 1993), Association of Allied Health Professionals: Ontario v. The Eastern Ontario Health Unit (Eberlee, October 29, 1993), The Etobicoke General Hospital v. The Association of Allied Health Professionals: Ontario (O'Shea, January 31, 1994) and Strathmere Lodge v. London and District Service Workers Union, Local 220 (Barton, July 4, 1994) in support of his proposition that the Board had jurisdiction to entertain this grievance.

9. Counsel also reviewed section 52 of the Social Contract Act, which he referred to as a "restrictive priority clause". Counsel submitted that it is not necessary for the Board to interpret the Social Contract Act to determine this application, as the collective agreement in issue is not subject to the Social Contract Act. Alternatively, even if the collective agreement is affected by the Social Contract Act, counsel submits that the jurisdiction of an adjudicator under the Social Con­tract Act is limited to reviewing an expenditure reduction program for compliance with section 27 of the Social Contract Act, which is not in issue here. Counsel further argued that section 148(2) of the Act, which prohibits other agreements or arrangements from affecting provincial agreements, was a "sign post" which should lead the Board to not apply the Social Contract Act in the circum­stances, and that the sanctity of the provincial I.C.I. agreement could be maintained by the Board in compliance with section 52 of the Social Contract Act.

10. Counsel for the applicant proceeded, in the alternative, to consider what result should occur should the Social Contract Act apply to the fact situation at hand. The parties have agreed that Part VII of the Social Contract Act, the "fail safe provisions", apply in the circumstances of this case. Accordingly, counsel points to section 23(2) of the Social Contract Act which makes Part VII inapplicable to employees who earn less than $30,000 annually, excluding overtime pay. Two of the grievors, submitted counsel, are excluded from the terms of the legislation by this provision and ought to have received compensation increases in May, 1994. With respect to the other griev­ors who would earn more than $30,000 annually, counsel, in accordance with his earlier argument, noted that section 24(4) of the Social Contract Act voids only increases in compensation under "collective agreements" which, he submits, did not occur here because of the definition of the term "collective agreement" contained in the Social Contract Act.

11. The responding party submits that the Board lacks the jurisdiction to entertain this application on the grounds that the Social Contract Act provides a statutory procedure for grieving the actions of the employer. Counsel noted that the responding party had, pursuant to section 29 of the Social Contract Act, posted a program outlining the Board's obligation to reach its expendi­ture reduction target, and that the union had not objected to that program as is permitted by the legislation. It was counsel's position that, if such an objection had been made and not addressed to the satisfaction of the union, the union could then have applied under section 30 of the Social Con­tract Act for the appointment of an adjudicator or it could have grieved to arbitration any differ­ence between the parties arising out of the interpretation, application, administration or alleged contravention of the program.

12. Counsel submitted that section 33(2) of the Social Contract Act precludes an arbitrator from making a decision that an adjudicator is entitled to make, and posits that adjudicators have broad jurisdiction which includes answering the issues raised by the union's grievance.

13. With respect to the applicability of the Social Contract Act to the employer, counsel referred the Board to section 4 of that Act, in which the legislation is said to bind all employers, employees and bargaining agents in the public sector. Quite simply, its position is that the four grievors in question are "employees" of the employer and that they, just like all other employees of the Windsor Board, are bound by the provisions of the Social Contract Act.

14. With regard to the application of the Social Contract Act to individuals earning less than $30,000 per year, it is the employer's position that this determination must take into account all of an employees "personal income" earnings from all employers during the year. On such an inter­pretation, counsel submitted that the determination of whether an individual is protected by sec­tion 23(2) of the Social Contract Act cannot occur until after the fiscal year of the employer has been completed. At that time, should the Board be required to do so, compensation increases to the maximum $30,000 threshold would be made. Counsel referred to Diane Whiteside v. The City of London (Swimmer, Social Contract Adjudicator, August 12, 1994) and O.P.S.E. U. v. Ontario Council of Regents for Colleges of Applied Arts and Technology (McKechnie, Social Contract Adjudicator, July 13, 1994).

III. Decision

(a) Jurisdiction of the Board

15. It is appropriate to commence our decision by determining the extent of the Board's jurisdiction to hear and decide this application. As noted above, it is the responding party's posi­tion that the remedy requested by the applicant is beyond the jurisdiction of the Board to order.

16. Part VII of the Social Contract Act contains the "fail safe provisions" of that Act. Sec­tion 24 of the Social Contract Act fixes the rate of compensation to be paid to employees and addresses particular scenarios through to March 31, 1996. Should the fixing of compensation under section 24 not result in an employer achieving its expenditure reduction target, the employer is to make all reasonable efforts to achieve its target by utilizing unpaid leaves of absence or special leaves and, as well, is to develop a program setting out the manner in which these leaves are to be implemented. A written summary of the program is to be prepared and posted in the workplace (see sections 25 to 29 of the Social Contract Act). These steps were adopted by the responding party before us.

17. Section 29(3) of the Social Contract Act provides a bargaining agent which objects to a posted program ten days to request in writing that the employer amend the program. If the employer reviews the program but determines not to change it, or changes it but the bargaining agent is still of the view that it does not satisfy the statutory criteria under which the program must be determined (i.e. section 27(2)), the bargaining agent may request a review of the program by an adjudicator under that statute. Section 31(2) of the Social Contract Act sets out the powers of an adjudicator under that legislation:

31(2) The adjudicator shall review the program and shall,

(a) confirm the program if it meets the criteria set out in section 27; or

(b) amend the program so that, in the opinion of the adjudicator, it is consis­tent with the criteria set out in section 27.

Furthermore, section 33 of the Social Contract Act speaks to the role of grievance arbitration:

33(1) An employee to whom a collective agreement applies may use the grievance or arbitration procedures under the collective agreement to decide any difference between the employee and his or her employer arising out of the interpretation, application, administration or alleged con­travention of a program developed by the employer under this Part.

(2) In a grievance or arbitration under subsection (1), the arbitrator or board of arbitra­tion shall not make any decision that an adjudicator is entitled to make under subsec­tion 31(2).

It will be recalled that the applicant focuses much of its argument on the definition of "collective agreement" contained in the Social Contract Act. For the purposes of this aspect of the decision, we will assume that the collective agreement which affects the applicant and the responding party is a "collective agreement" for the purposes of the Social Contract Act.

18. It was the responding party's argument that the applicant ought to have challenged the program posted by the responding party and requested an adjudicator to review the program if it had concerns about the treatment of the four grievors. Additionally, counsel submitted that the issues in dispute before the Board were decisions "that an adjudicator is entitled to make under subsection 31(2)" of the Social Contract Act and, therefore, that we were without jurisdiction to rule on the grievance. Counsel submitted that adjudicators had "broad jurisdiction" under the Social Contract Act.

19. We disagree with counsel's submissions regarding the Board's jurisdiction to entertain this grievance. It is evident to the Board that the Legislature anticipated that there would be dis­putes of a "jurisdictional-type" nature resulting from the passage of the Social Contract Act between adjudicators appointed pursuant to that legislation and boards of arbitration appointed pursuant to the terms of a collective agreement or, possibly, pursuant to (sections 46 and 126 of the Act, for example). In our view, section 31(2) of the Social Contract Act, in conjunction with sec­tion 33(2) of that Act, makes it quite clear that a board of arbitration may determine any dispute regarding the interpretation, application, administration or alleged contravention of a program except to the extent that such a determination would require the board of arbitration to assess whether the program meets or is consistent with the statutory criteria contained in section 27 of the Social Contract Act. That latter authority is vested in an adjudicator appointed pursuant to the Social Contract Act. This conclusion is consistent with the thrust of the arbitral authorities cited by the applicant in argument, reproduced above at paragraph 8.

20. In this case, we are not being asked to assess the responding party's program which was posted pursuant to section 29 of the Social Contract Act. Indeed, the applicant's position from the outset has been that the program does not apply to its employees performing I.C.I. work for the responding party. The issue before us is just that - does the Social Contract Act apply to the factual circumstances outlined above in paragraph 2 and, in either case, have the terms of the Provincial I.C.I. Agreement been violated by the responding party. These issues are entirely within our juris­diction as a board of arbitration convened pursuant to section 126 of the Act, and we hereby so determine.

(b) Application of the Social Contract Act to the Responding Party

21. We have considered the arguments of both counsel quite carefully and we conclude that the terms of the Social Contract Act apply to the members of the applicant performing work in the I.C.I. sector of the construction industry for the responding party. We set out our reasons for this conclusion below.

22. We commence our analysis by considering the provision of the Social Contract Act which delineates those persons bound by the legislation, that being section 4, which provides as fol­lows:

This Act binds the Crown in right of Ontario and all employers, employees, and bargaining agents in the public sector.

It is manifest from the terms of section 4 (subject to the discussion below regarding the definition of some of the terms contained therein) that the Legislature intended the Social Contract Act to have broad application to public sector employers, employees, and bargaining agents. No specific exclusions from the scope of the legislation are readily apparent from the terms of section 4.

23. As noted above, counsel for the applicant constructed an elaborate argument, based upon the definition of the terms "employee", "employer", "collective agreement" and "bargain­ing agent", as well as the structure of the Schedule and the Appendix to the Schedule of the Social Contract Act, to support his view that the I.C.I. agreement governing the parties is not subject to the Social Contract Act. This argument, although ingenious, must, in our view, fail. The argument, in essence, pivots upon the definition of "employer" which reads as follows:

"employer" means an employer in the public sector.

The Schedule to the Social Contract Act defines the "public sector" in Ontario and includes:

every board as defined in the Education Act (R.S.O. 1990, c. E.2), the Metropolitan Toronto School Board and the Ottawa-Carleton French-language School Board, including its public sec­tor and its Roman Catholic sector

as well as:

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 Appendix to this Schedule or added to the Appendix by the regulations made under this Act.

There is no dispute that the responding party, as a Board of Education, is encompassed by the Schedule to the Social Contract Act. There is also no dispute that the M.C.A.O. is not located in the Schedule or the Appendix to the Schedule of the Social Contract Act. The essence of the appli­cant's argument is that the Provincial Agreement is not a "collective agreement" for the purposes of the Social Contract Act because the M.C.A.O. is not "an employer" in the public sector.

24. We agree that the M.C.A.O. is not, for the purposes of the Social Contract Act, "an employer". But this does not end our inquiry, because the legislation provides that a "collective agreement" exists, for the purposes of that legislation, if it is an agreement in writing between an employer in the public sector and a bargaining agent. In our view, the Provincial Agreement is such an agreement.

25. It is, perhaps, helpful at this point to briefly outline the province-wide bargaining struc­ture which is characteristic of the J.C.I. sector of the construction industry in the Province of Ontario. Sections 139(1), (2), 144 and 145 of the Act read as follows:

139.-(1) In this section and in sections 137 and 140 to 155,

"affiliated bargaining agent" means a bargaining agent that, according to established trade union practice in the construction industry, represents employees who commonly bargain sepa­rately and apart from other employees and is subordinate or directly related to, or is, a provin­cial, national or international trade union, and includes an employee bargaining agency; ("agent negociateur affilie")

"bargaining" except when used in reference to an affiliated bargaining agent, means province-wide, multi-employer bargaining in the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 119; ("negociation")

"employee bargaining agency" means an organization of affiliated bargaining agents that are subordinate or directly related to the same provincial, national or international trade union, and that may include the parent or related provincial~ national or international trade union, formed for purposes that include the representation of affiliated bargaining agents in bargaining and which may be a single provincial, national or international trade union; ("organisme negociateur syndical")

"employer bargaining agency" means an employers' organization or group of employers' orga­nizations formed for purposes that include the representation of employers in bargaining; ("or­ganisme negociateur patronal")

"provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that rep­resents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial an institutional sector of the construction industry referred to in the definition of "sector" in section 119. ("convention Provinciale")

(2) Where an employer is represented by a designated or accredited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents represented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the purpose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry, referred to in the definition of "sector" in section 119, except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights.

144. Where an employee bargaining agency has been designated under section 141 or certified under section 142 to represent a provincial unit of affiliated bargaining agents, all rights, duties and obligations under this Act of the affiliated bargaining agents for which it bargains shall vest in the employee bargaining agency, but only for the purpose of conducting bargaining and, sub­ject to the ratification procedures of the employee bargaining agency, concluding a provincial agreement.

145. Where an employer bargaining agency has been designated under section 141 or accredited under section 143 to represent a provincial unit of employers,

(a) all rights, duties and obligations under this Act of employers for which it bargains shall vest in the employer bargaining agency, but only for the pur­pose of conducting bargaining and concluding a provincial agreement; and

(b) an accreditation heretofore made under section 129 of an employers' orga­nization as bargaining agent of the employers in the industrial, commercial and institutional sector of the construction industry, referred to in the defi­nition of "sector" in section 119, represented or to be represented by the employer bargaining agency is null and void from the time of such designa­tion under section 141 or accreditation under section 143.

The effect of these provisions was outlined by the Board in Beckett Elevator Company Limited [1982] OLRB Sept. 1244, at paragraphs 14 and 15:

14. For some years commentators have suggested that instability in construction industry labour relations could be attributed to an unstable economic environment, and to unduly fragmented collective bargaining institutions. (See, generally: H. Carl Goldenberg, Q.C. and J. H. G. Crispo, Editors, Construction Labour Relations, Canadian Construction Association 1968; H. D. Woods "Memorandum on the Industrial Relations Features of the Problem" in H. Waisberg J. Report of the Royal Commission on Certain Sectors of the Building Industry, Queen's Printer, Toronto, 1974; J. B. Rose, Public Policy Bargaining Structure and the Construction Industry, Butterworths, Toronto, 1980; and specifically, D. E. Franks, Report of the Industrial Enquiry Commission Into Bargaining Patterns in the Construction Industry, 1976.) The proposed solution was extended area bargaining, and the new province-wide bargaining scheme reflects a legisla­tive acceptance of that prescription. In 1978, the Legislature fundamentally altered the structure of collective bargaining in the construction industry by introducing a system of province-wide bargaining, by trade, through employer and employee bargaining agencies designated by the Minister of Labour. Previously, the only way that an employer association could acquire bar­gaining rights was through the acquiescence of the employers concerned, or through the process of "accreditation" (sections 125 to 134 of the Act). In order to be accredited, the employer asso­ciation had to show that it represented the majority of the employers, employing a majority of the employees represented by a particular trade union. In this respect, the procedure was roughly analogous to the certification of a trade union. Under the new system, however, there is no requirement for a showing of support. The Minister is given a broad authority to designate such employer or employee bargaining agencies as he sees fit in accordance with his own assess­ment of the requirements of the situation (which may, of course, include the representatives of the employer association). But having endorsed the proposition that extended area bargaining is more conducive to industrial relations stability, the Legislature has also sought to protect the individual employer's authority to deal with his own employees, subject to the terms of the province-wide collective agreement. The employer's rights are vested in the designated bargain­ing agency only for the purpose of collective bargaining and concluding a provincial collective agreement. The day to day relationships between the employer and his employees, the adminis­tration of the collective agreement, and the application of that collective agreement to the cir­cumstances of individual employers, are all left for resolution at the local level - subject only to the injunction that there cannot be a local arrangement inconsistent with the provincial agree­ment (see section 146 of the Act). Thus, while recognizing the necessity of vesting considerable authority in the employer association for the purposes of collective bargaining, the Legislature has sought to limit that authority to the conduct of bargaining. In addition, the designated bar­gaining agencies are both under a statutory obligation to represent their constituents in a man­ner that is neither arbitrary, discriminatory, nor in bad faith (see section 151).

15. The new province-wide bargaining scheme is an attempt to reconcile different and poten­tially competing concerns: the need for extended area bargaining in order to promote industrial relations efficiency; and the desire to recognize, to some degree, the autonomy of the individual employer. Both objectives are important, and it is hardly surprising that the Legislature should attempt to strike a balance between them - especially since, on the "employer side", the inter­ests at issue may be much more diverse than on the "union side" where, by definition, all of the union locals represented by the designated employee bargaining agency must be affiliated to a common trade union parent (although even on the "union side" there is sometimes competition between locals and friction with the employee bargaining agency). The employers represented by the designated employer bargaining agency may be active competitors in the market-place, with diverse and conflicting interests, and may not even be members of the employer association with the statutory right to represent them. Thus, the Statute provides that the employer associa­tion has the right to negotiate the agreement in the first instance, there is a prohibition against local arrangements, and the employer association has access to this Board under section 124/or section 89 in order to ensure that the system is being maintained and the agreement is being uni­formly administered. By the same token, however, the local union (affiliated bargaining agent) and employer have access to this Board under section 124, the Statute restricts the role of the designated bargaining agents to "conducting bargaining and concluding a provincial agree­ment, 'and there is a statutory duty of fair representation.

16. The M.C.A.O. was designated by the Minister of Labour as an Employer Bargaining Agency on April 3, 1978. It represents a number of employers performing mechanical work in the I.C.I. sector of the construction industry (including, of course, the responding party: see The Board of Education for the City of Windsor [1983] OLRB Rep. May 831). However, as is clearly evident from sections 139, 144 and 145 of the Act, the M.C.A.O. is vested with all of the rights, duties and obligations of the employers which it represents, but only for the purpose of conducting bargaining and concluding a provincial agreement. Once the Provincial Agreement in question was concluded, the M.C.A.O. largely exits from the picture for the purposes of day-to-day employ­ment relationships, and the Provincial Agreement becomes one which binds all of the individual employers, individually, for which the M.C.A.O. bargained. In fact, article 25 of the Provincial Agreement specifically provides that ". . . contractors prior to hiring U.A. members will be bound by this Agreement.. .".

17. In these circumstances, we are of the view that the Province-wide I.C.I. agreement which binds the applicant and the responding party is a "collective agreement" for the purposes of the Social Contract Act. The M.C.A.O. Provincial Agreement is an agreement in writing "between an employer in the public sector" (i.e. the Windsor Board) and a bargaining agent as defined by the Social Contract Act. We do not believe that this result leads to the conclusion that section 148(2) of the Act has been violated. There still is only one Provincial Agreement which affects the parties to this grievance. No one has made more than one. In any event, to the extent that the result could be interpreted to be in violation of section 148 of the Act, it would be permitted by section 52 of the Social Contract Act. In our view, the provisions of the Social Contract Act apply to the four employees.

(c) Application of the "Fail Safe Provisions" to the Employees in Question

28. As noted above, the parties disagree on the applicability of the "fail safe provisions" of the Social Contract Act to the four employees in question. On the basis of our conclusion above, and the terms of paragraph 6 of the Agreed Statement of Facts, there is no dispute that the provi­sions of the Social Contract Act apply to Messrs. Ridley and Hutton, as they have earned in excess of $30,000 per year while employed with the Windsor Board. The remaining dispute lies with the status of Messrs. Nielson and Leach, who have not earned $30,000 while in the employ of the Windsor Board.

29. Section 23(2) of the Social Contract Act provides that the "fail safe" provisions of the legislation do not apply to "employees" (which we have found both Mr. Nielson and Mr. Leach to be, for the purposes of the Social Contract Act) who earn "less tan $30,000 annually, excluding overtime pay". The narrow question before us is whether that reference applies to earnings from public sector employers only, or includes, as well, the earnings of Mr. Nielson and Mr. Leach from other employment sources. In our view, such other personal income earnings should not be a factor in determining the legislated $30,000 threshold.

30. Without a doubt, the intention of the Legislature as reflected by the wording of the Social Contract Act is far from clear. The preamble to the Social Contract Act focuses on a legisla­tive desire to achieve significant savings in public sector expenditures, with "protection for those earning less than $30,000 a year". The term "year" is defined in the legislation as meaning the period beginning in April and ending with March 31 in the following year, unless otherwise pro­vided by regulation. The corresponding provision of the legislation which reflects this goal, section 23(2), speaks of individuals earning less than $30,000 "annually" - which is not a defined term in the legislation and which could, arguably, be intended to have meant something different than "year", as the Legislature could easily have otherwise substituted that word for the word "annu­ally" in section 23(2).

31. Nonetheless, it is apparent to the Board that the Legislature, when enacting the Social Contract Act, did not intend to include in the $30,000 threshold those sums of employment com­pensation earned beyond the scope of the public sector. The legislation does not in any way permit for or require the disclosure of this information to an employee's public sector employer, nor does it provide a method for resolving disagreements or differences regarding the value of such "private sector" compensation. It is apparent to us that, when the legislation refers to $30,000 "annually", it does so with the intention of referring solely to the compensation earned by an "employee" under the Social Contract Act - that is, to "an employee of an employer in the public sector", and therefore would encompass only income earned in employment with the public sector, on an annual basis. It is unnecessary for us to determine what the proper "annual" period is as, on the agreed upon facts, it is clear that neither Mr. Nielson nor Mr. Leach earned $30,000 with the Windsor Board prior to September, 1994, the anticipated completion date for the capital projects, and therefore they ought to have been provided with the increases provided for in the Provincial Agreement effective May 1, 1994. The applicant ought to have been provided with any corre­sponding increases in contributions, deductions and allowances provided for in the Provincial Agreement. To the extent that neither the grievors nor the applicant have been provided with these increases under the Provincial Agreement, the Windsor Board is in violation of the Provin­cial Agreement.

32. Accordingly, this grievance is allowed, to the extent referred to above. We anticipate that the parties should be able to agree on the quantum of damages. However, this panel of the Board shall remain seized of this matter should the parties not be able to reach an agreement regarding compensation.