3730-00-G The Residential Low Rise Forming Contractors’ Association of Metropolitan Toronto and Vicinity and Universal Workers Union, LIUNA Local 183, Applicants v. Metro Forming Ltd., Responding Party.
3731-00-G The Residential Low Rise Forming Contractors’ Association of Metropolitan Toronto and Vicinity and Universal Workers Union, LIUNA Local 183, Applicants v. Solid Wall Concrete Forming Ltd., Responding Party.
3733-00-G The Residential Low Rise Forming Contractors’ Association of Metropolitan Toronto and Vicinity and Universal Workers Union, LIUNA Local 183, Applicants v. 1400633 Ontario Inc. o/a Upwall Concrete Forming, Responding Party.
3735-00-G The Residential Low Rise Forming Contractors’ Association of Metropolitan Toronto and Vicinity and Universal Workers Union, LIUNA Local 183, Applicants v. A. C. Concrete Forming Ltd., Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Marcia Kredentser and Tony Pinto for the Universal Workers Union, LIUNA Local 183; Carl Peterson for The Residential Low Rise Forming Contractors’ Association of Metropolitan Toronto and Vicinity; no one appearing on behalf of the responding parties.
DECISION OF THE BOARD; April 23, 2001
These are four referrals of grievances in the construction industry, pursuant to section 133 of the Labour Relations Act, 1995 (the “Act”). The Residential Low Rise Forming Contractors’ Association of Metropolitan Toronto and Vicinity and the Universal Workers Union LIUNA Local 183 have jointly referred grievances with respect of the failure of four contractors to post bonds as required under the parties’ amended collective agreement. None of the contractors participated in the hearing.
The first issue the Board considered was the applicants’ submission that they should be required to pay only a single hearing fee in respect of the four referrals. Counsel submitted that all four grievances involved the same issue, the same facts and the same argument, and for that reason had been listed together for hearing. Since there was in fact, only one hearing counsel submitted, only one hearing fee should be paid. Counsel relied in part on Rule 58 of the Board’s Rules of Procedure:
The Board may consolidate or hear any cases together on such terms as it considers advisable.
Counsel concluded that one of the terms on which these matters should be heard together is to require that a single, rather than four, hearing fees be paid.
The Board ruled that a hearing fee in respect of each of the grievance referrals was required. Without weighing this decision with too much history, the requirement of parties participating in referrals of grievances in the construction industry to pay fees arises out of a Government initiative. Simply put, the Government thinks that parties who choose to use the Board to arbitrate their grievances should pay some of the costs associated with that service. Since parties who use private arbitration incur all the often substantial costs of those services, parties who use the “public” service should not have all those costs borne by all taxpayers, so the thinking goes.
Section 133(10) to (17) provides the statutory foundation for charging fees:
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(10) The Lieutenant Governor in Council may establish a schedule of fees to be charged to parties in proceedings under this section and, without limiting the generality of what can be included in the schedule, the schedule may provide for the following:
Fees payable for referring grievances or participating in proceedings.
Fees payable for each hearing day, including hearing days scheduled by the Board but not used.
Different fees for the referring party and for the responding parties.
A single fee for all the responding parties with the amount to be paid by each responding party to be determined by the Board.
(11) The schedule of fees may also provide for when the fees are due, to whom the fees shall be paid and what the form of payment must be.
(12) A party may participate in a proceeding only if the fees payable by the party are paid in accordance with the schedule of fees.
(13) If an award is made against a party who was given notice of but did not participate in proceedings under this section, the Board may order the party to pay the party in whose favour the award is made, an amount not exceeding the fees paid by the party in whose favour the order is made.
(14) The Board may order a party who participated in proceedings under this section but who was not in a position to participate on a day on which proceedings were scheduled to pay each of the other parties an amount not exceeding the fees paid by that party.
(15) The Board shall not make an order under subsection (14) ordering a party who was not in a position to participate to pay an amount to another party if the other party refused, unreasonably, to consent to an adjournment requested by the party who was not in a position to participate.
(16) Fees payable by a party to the Board shall be paid to the Board for payment into the Consolidated Revenue Fund.
(17) The schedule of fees is not a regulation within the meaning of the Regulations Act.
An Order in Council made pursuant to section 133(10) established the fee schedule, which is reproduced at Rule 144 of the Board’s Rules of Procedure:
The following fees, exclusive of all applicable taxes, are payable in respect of a proceeding under section 133 of the Act:
(a) The fee payable by the referring party for filing a Referral of Grievance of Arbitration (Construction Industry) with the Board is $200.00.
(b) The fee payable by each party for filing a Request for Hearing and Notice of Intent to Defend/Participate (Construction Industry Grievance Referral) with the Board is $200.00.
(c) If the matter proceeds to a hearing, the fee payable by each party is $500.00 per hearing day or part of such a day scheduled by the Board.
The fee schedule is simple. The fee payable for a Referral of a Grievance is $200.00; the fee payable for each party who wishes to respond to that referral (by filing a Request for Hearing and Notice of Intent to Defend/Participate) is $200.00. “If the matter proceeds to a hearing, the fee payable by each party is $500.00 per hearing day or part of such day scheduled by the Board”.
In this case four matters proceeded to hearing; the applicants properly brought individual grievances against four separate contractors who the applicants allege had each violated the collective agreement in failing to post a bond. Since each of the four matters proceeded to hearing, a hearing fee in respect of each must be paid. In the Board’s view, this case is no different from the common practice of a trade union “bundling” a number of delinquent collections cases together and filing them at the same time, so that the union can deal with a number of virtually identical matters at the Board on the same day. Although similar, they are each individual referrals.
The simplicity of the fee schedule has the consequence that it does not consider the different circumstances of each case. Applicants do not pay a sliding scale of filing fees based on the complexity of the grievance referred and parties do not pay different hearing fees based on how many hours of hearing time they use. Similarly, the fee schedule does not charge a daily fee that is divided among the participants.
It is useful to remember that the goal of the fee schedule is an administrative system to recover some of the costs of adjudication. A uniform fee schedule achieves that goal without requiring adjudicators to engage in the intrusive exercise of determining how much each party ought to pay, depending on the services they use in each case. In my view, the twin goals of cost recovery and simplicity should be the guiding principles when questions arise around when fees must be paid.
We note that the applicants did not each pay a filing and hearing fee. While that issue was not raised by the Board, in another case, each applicant in a referral of a grievance may be required to pay a filing and hearing fee.
Turning now to the merits of the grievances, the applicants established that each of the four responding parties is bound to the collective agreement between the Residential Low Rise Forming Contractors’ Association of Metropolitan Toronto and Vicinity (the Association) and the Universal Workers’ Union, LIUNA Local 183 (Local 183), effective until April 30, 2001 (the Collective Agreement).
I heard that the applicants were looking for ways to stabilize the industry, and prepare for the inevitable economic downturn. Both the Association and Local 183 wanted to take advantage of the good times to prepare for the bad times. The Association and Local 183 negotiated a Letter of Understanding, dated May 4, 2000 with which they proposed to amend their Collective Agreement. The Letter of Understanding required all employers bound by the Collective Agreement who performed or intended to perform work to post a bond of not less than $100,000 with Local 183 by July 1, 2000. In the event the employer fails to pay wages, vacation pay, or make contributions for welfare benefits, industry funds or union dues, then upon notice to the employer, and after an opportunity to resolve the non-payment, the union may resort to the posted bond to make good the delinquency.
After the Letter of Understanding was proposed, but before it was finalized, all employers bound to the Collective Agreement, including these four responding parties, were invited to a meeting to discuss the industry bond. After the meeting, the Letter of Understanding was approved by the Association’s Board of Directors. Employers bound to the Collective Agreement were advised in writing of the approval and the effective date. In addition, they were told that it was possible to acquire the bonding protection, by paying as little as $1000.00 to $1,500.00. Finally, on June 29, 2000, the Association wrote to all employers bound by the Collective Agreement reminding them to have the bond in place by July 1, 2000. I understand from the applicants’ counsel, that the four responding parties are the only employers who have not posted the bond or made other arrangements satisfactory to Local 183 and the Association, as the Letter of Understanding contemplates.
There is no doubt that the Association and Local 183 have the ability to amend the Collective Agreement, and they have done so, after providing information and advice to the employers bound to the Collective Agreement. The Letter of Understanding amends Schedule A of the Collective Agreement by adding Article XIV titled “Industry Bond”.
Based on the information provided by the applicants, I find that the responding parties have violated the Collective Agreement in not complying with the Letter of Understanding.
Having regard to the findings I have made, I make the following declarations and orders:
that the responding parties are bound to the collective agreement between the Residential Low Rise Forming Contractors’ Association of Metropolitan Toronto and Vicinity (the Association) and the Universal Workers’ Union, LIUNA Local 183 (Local 183), effective until April 30, 2001 (the Collective Agreement);
that the responding parties have violated the Collective Agreement, in particular Article XIV of Schedule A, titled “Industry Bond”;
that the responding parties comply with Article XIV of Schedule A by posting a bond payable to Local 183 for a sum of not less than $100,000 or to provide to Local 183 such other form of security that is acceptable to Local 183 and the Association;
that the responding parties reimburse the applicants’ filing and hearing fees.
Mary Ellen Cummings”
for the Board