A-542-79
United Association of Journeymen and Appren
tices of the Plumbing and Pipefitting Industry of
the United States and Canada Local Union No.
170 (Applicant)
v.
Administrator under the Anti-Inflation Act, and
Construction Labour Relations Association of
British Columbia (Respondents)
Court of Appeal, Thurlow C.J., Urie J. and Kerr
D.J.—Vancouver, February 15; Ottawa, February
28, 1980.
Judicial review — Anti-Inflation — Definition of "party
entitled to express dissatisfaction" to Anti-Inflation Board —
Anti-Inflation Board referred applicant's collective agreement,
one of several forming a comprehensive industry-wide plan, to
the Administrator because of applicant's dissatisfaction with
the Board's ruling — Administrator decided that he was
without jurisdiction to deal with applicant separately as it was
not a party entitled to express dissatisfaction — Appeal from
that decision to Anti-Inflation Appeal Tribunal quashed on
ground that Administrator had made no decision — Adminis
trator, responding to mandamus, found applicant to be a group
within the meaning of the Guidelines — Tribunal allowed
appeal from that decision and referred matter back to
Administrator on basis that the "group" consisted of all
bargaining units represented by the industry-wide front —
Judicial review sought for Tribunal's decision on sole issue of
whether "group" is comprised only of members of applicant
Union or of all employees in all bargaining units in the
common front — Anti-Inflation Guidelines, SOR/76-1 as
amended ss. 38, 43(1) — Anti-Inflation Act, S.C. 1974-75-76,
c. 75, ss. 12(1)(c),(d),(1.2)(b)(ii), 17(1) — Federal Court Act,
R.S.C. 1970 (2nd Supp.). c. 10, s. 28.
This is a section 28 application to review and set aside a
decision of the Anti-Inflation Appeal Tribunal which allowed
an appeal from the Administrator's decision and referred the
matter in issue back to the Administrator for reconsideration.
All the recommendations made by the Anti-Inflation Board
were accepted by all the parties involved in the industry-wide
bargaining with the exception of U.A. Local 170 whose mem
bership refused to ratify a document known as the "Common
Front Industry Bargaining Structure". U.A. Local 170
expressed its dissatisfaction to the Board with the recommenda
tions in relation to the compensation plan in its agreement with
thè Construction Labour Relations Association of British
Columbia (C.L.R.A. of B.C.). The Board referred the matter
to the Administrator who decided that he had no jurisdiction to
deal with the applicant separately since it was not "a party
entitled to exprèss dissatisfaction". The Anti-Inflation Appeal
Tribunal quashed U.A. Local 170's appeal from the Adminis
trator's decision on the ground that no "decision or order" had
been made by the Administrator. The Trial Division, on an
application, granted mandamus and held that the jurisdiction
to determine a party entitled to express dissatisfaction lay with
the Board and that U.A. Local 170 was entitled to notify the
Board of its dissatisfaction. The Administrator, responding to
that order, found inter alia that U.A. Local 170 was a "group"
within the meaning of section 38 of the Anti-Inflation Guide
lines. The Tribunal allowed an appeal from the Administrator's
decision and referred the matter back to him for reconsidera
tion on the basis that the "group" consisted of all employees of
all bargaining units bargained for by the various trade unions,
including U.A. Local 170, which were parties to the collective
agreements with the C.L.R.A. of B.C. in 1976. This section 28
application is brought from that decision. The sole issue is
whether the "group" whose compensation plan has been
referred to the Administrator is comprised only of the members
of the applicant Union employed by member firms of C.L.R.A.
of B.C. or whether such group consists of all employees in
bargaining units bargained for by all the unions which were
parties to collective agreements with the C.L.R.A. of B.C. in
1976.
Held, the application is allowed.
Per Thurlow C.J.: Having regard to the limited subject
matter that had been referred to him, the only possible contra
vention to be considered was that which might arise by increas
ing the compensation as was provided by the agreement in
question and that since the only employees whose compensation
would be increased under the only agreement before the
Administrator were the employees represented by the appli
cant, they alone can fit the description of "all the employees in
a group" in section 43(1) of the Guidelines. In this situation the
definition of "group" in section 38 is relevant only to ascertain
whether, because of its definition, the word must be given some
narrower meaning. The definition, however, is not restrictive. It
includes categories which are alternative. In paragraph (c) it
embraces the employees making up the bargaining units repre
sented by the applicant and composed of employees of one or
more employers that bargain collectively with an association of
employers. In the context of what was before the Administrator
there was no legal basis upon which he could conclude that the
group to be considered for the purposes of section 43(1)
consisted of all employees in bargaining units represented by all
the unions which bargained with C.L.R.A. of B.C.
Per Urie J.: The Tribunal erred in finding that the Adminis
trator should have treated all employees in the bargaining units
bargained for by the common front unions which were party to
the 1976 negotiations with the C.L.R.A. of B.C. as "the group"
and in referring the matter back to him for reconsideration on
that basis. The error stems from the assumption that since the
word "group" is used in the Guidelines rather than "party" or
"employee organization" as in the Act it does not preclude the
Administrator from determining that the "party" or "employee
organization" which advises of its dissatisfaction with the
Board's notification need not constitute a "group" for purposes
of the application of Part 4 of the Guidelines. U.A. Local 170
falls precisely within the definition of paragraph (e) of the
definition of "group". The Administrator must accept a con
struction of section 38(c) of the Guidelines which harmonizes
with the powers and duties conferred on him by the Act. In the
circumstances of this case, he must confine himself to a
"group" which is comprised of those bargaining units which
expressed dissatisfaction with the Board's notification, namely
the U.A. Local 170, and to the "matter" (its dissatisfaction
with the Board's recommendations) which was referred to him
for determination in accordance with the powers conferred on
him by the Act. If the Administrator held that "group" for the
purposes of section 38 of the Guidelines meant all the bargain
ing units represented by the trade unions, he would be enlarg
ing the "matter" referred to him in that he would be investigat
ing the "matter" of the compensation of "employee
organizations" which did not express dissatisfaction with the
Board's notification, and which had not been referred to him.
The conditions necessary for clothing him with jurisdiction
would not be present. No power has been conferred on the
Administrator by the Act to make any determination with
respect to the "party" or "employee organization" involved in
the "matter" referred to him.
APPLICATION for judicial review.
COUNSEL:
M. D. Shortt for applicant.
B. Trevino for respondent Construction
Labour Relations Association of British
Columbia.
W. B. Scarth for respondent Administrator
under the Anti-Inflation Act.
SOLICITORS:
Shortt & Company, Vancouver, for applicant.
Russell & DuMoulin, Vancouver, for
respondent Construction Labour Relations
Association of British Columbia.
Deputy Attorney General of Canada for
respondent Administrator under the Anti-
Inflation Act.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: I have had an opportunity to
read the reasons for judgment prepared by Urie J.
and I reach the same conclusion though by a
somewhat different route.
As he points out, the issue is whether the
"group" whose compensation plan has been
referred to the Administrator is comprised only of
the employees represented by the applicant Union
and employed by members of Construction Labour
Relations Association of British Columbia
(C.L.R.A. of B.C.) or whether such "group" con-
sists of all employees in bargaining units bargained
for by all the unions which were parties to collec
tive agreements with C.L.R.A. of B.C. in 1976.
In the view I take it is necessary to consider
what it was that was referred to the Administrator
by the Anti-Inflation Board, (AIB), and what it
was that he had to determine.
At the relevant time subsection 43(1) of the
Anti-Inflation Guidelines provided that:
43. (1) Subject to subsection (2) and section 44, an employ
er shall not in any guideline year increase the total compensa
tion of all the employees in a group, in relation to the total
compensation of all the employees in the group in the base
year, by an amount that results
(a) in an annual percentage rate of increase that is greater
than the permissible percentage rate of increase determined
for the group under section 45, or
(b) in an increase in the average compensation for the group
for the guideline year that is greater than twenty-four hun
dred dollars,
whichever is the lesser amount.
It will be observed that the word "group"
appears four times in this subsection. I see no
reason to think it has not the same meaning in all
four places. It will be observed, as well, that the
subsection is a prohibition against something that
might otherwise be done by an employer.
The record shows (page 35) that on September
25, 1976, C.L.R.A. of B.C. entered into a memo
randum of understanding with the applicant pro
viding for increases for the employees represented
by the applicant. This was but one of a number of
agreements made by C.L.R.A. of B.C. with the
applicant and other unions as a result of joint
negotiations and which, on being reported to the
Anti-Inflation Board, resulted in recommendations
for roll back of part of the increases as agreed. But
it was only the agreement between C.L.R.A. of
B.C. and the applicant which resulted in a refer
ence to the Administrator. The agreement had
been reported to the AIB separately from the
others (see page 45) (presumably they had all been
reported separately) and it was only with respect
to it that dissatisfaction had been expressed so as
to require under paragraph 12(1)(d.1) that the
"matter" be referred by the AIB to the
Administrator.
The wording of the reference (page 134) uses
the same terms. It reads:
Accordingly, the Anti-Inflation Board, having received advice
from the employee organization representing the employees
whose compensation is in question that it is dissatisfied with the
Anti-Inflation Board's notification hereby refers the matter to
you for your consideration in accordance with subsection
12(1)(d.1) of the Anti-Inflation Act.
In my view it is apparent from what preceded
this paragraph that the only subject matter that
was being referred was the agreement between
C.L.R.A. of B.C. and the applicant and whether
the implementation of that agreement by the
employers would contravene the Guidelines.
Under paragraph 12(1)(c) of the Act, the
Board's duty had been to identify proposed
changes in compensation that in its opinion, if
implemented, would contravene the Guidelines
either in fact or in spirit, and under paragraph
12(1)(c) its duty had been to endeavour through
consultation and negotiations with the parties
involved to modify such changes so as to bring
them within the limits and spirit of the Guidelines
or reduce or eliminate their inflationary effect.
When the matter was referred to the Adminis
trator pursuant to paragraph 12(1)(d.1), it became
his duty, under subsection 17(1), to make such
investigations within the powers conferred on him
by the Act as in his opinion were required to
enable him to determine whether the employer to
whom the reference from the AIB related was
likely to contravene the Guidelines. The matter to
be determined by the Administrator was thus
whether the increases in compensation provided by
the particular contract between C.L.R.A. of B.C.
and the applicant would contravene the Guide
lines, and more particularly, subsection 43(1) of
the Guidelines.
Having regard to the limited subject matter that
had been referred to him it seems to me that the
only possible contravention to be considered was
that which might arise by increasing the compen
sation as provided by the agreement in question
and that since the only employees whose compen
sation would be increased under the only agree
ment before the Administrator were the employees
represented by the applicant, they and they alone
can fit the description "all the employees in a
group" in subsection 43 (1) of the Guidelines. In
this situation the definition of "group" in section
38, as it seems to me, is relevant only to ascertain
whether, because of its definition, the word must
be given some narrower meaning. The definition is,
however, not restrictive. It is noteworthy that it
includes categories which are alternative. And in
paragraph (e) it appears to me to embrace the
employees making up the bargaining units repre
sented by the applicant and composed of
employees of one or more employers that bargain
collectively with an association of employers. In
the context of what was before the Administrator
there was, in my opinion, no legal basis upon
which he could conclude that the group to be
considered for the purposes of subsection 43(1)
consisted of all employees in bargaining units
represented by all the unions which bargained with
C.L.R.A. of B.C.
Accordingly, I would set aside the decision of
the Anti-Inflation Appeal Tribunal allowing the
appeal against the Administrator's decision and
refer the matter back to the Tribunal to be dealt
with on the basis that for the purposes of subsec
tion 43(1) of the Guidelines the "group" consisted
only of employees of members of C.L.R.A. of B.C.
who were represented by the applicant in the
negotiations that led to the agreement.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside a decision of the Anti-Infla
tion Appeal Tribunal dated September 4, 1979
which allowed an appeal from the Administrator's
decision and referred the matter in issue back to
the Administrator for reconsideration.
The Construction Labour Relations Association
of British Columbia (hereinafter referred to as
"C.L.R.A. of B.C.") has been, since 1969, the
accredited bargaining agent for the majority of
employers in the construction industry in British
Columbia. The United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting
Industry of the United States of America and
Canada, Local Union No. 170 (hereinafter some
times referred to as "U.A. Local 170") is the
bargaining agent for a number of bargaining units
in British Columbia. In September 1976 those two
organizations signed a memorandum of under
standing which was one of twenty-eight agree
ments to which the C.L.R.A. of B.C. was a party,
covering the whole construction industry in British
Columbia. At the meeting at which the memoran
dum of understanding was presented to the mem
bership of U.A. Local 170 for ratification, there
was also presented for approval and ratification a
document known as the "Common Front Industry
Bargaining Structure". The memorandum of
understanding was ratified but the Common Front
Industry Bargaining Structure was rejected by the
membership. The remaining parties to the latter
document ratified it as they did all twenty-eight
memoranda of understanding. Separate collective
agreements were, therefore, signed by the respec
tive parties.
The Anti-Inflation Board ("the Board") made
recommendations to each of the parties by means
of separate notifications in respect of each agree
ment and, in each case, directed attention to the
particular benefits and monetary package provided
in each agreement. The recommendations resulted
in roll-backs in the monetary package from $1.26
to $1.17 per hour. In addition, in particular con
tracts some increases or decreases in benefits were
allowed or ordered. All of the recommendations
were accepted by all of the parties involved with
the exception of U.A. Local 170 which, in writing
to the Board, expressed its dissatisfaction with the
recommendations in relation to the compensation
plan in its agreement with C.L.R.A. of B.C.
The Board then referred the matter to the
Administrator pursuant to sections 12(1)(d.1) and
12(1.2)(b)(ii) of the Anti-Inflation Act, S.C.
1974-75-76, c. 75. He decided that he had no
jurisdiction to deal with the applicant separately
since it was not "a party entitled to express dis
satisfaction". On June 15, 1978, the Anti-Inflation
Appeal Tribunal ("the Tribunal") quashed U.A.
Local 170's appeal from the Administrator's deci
sion on the ground that no "decision or order" had
been made by the Administrator pursuant to sec
tion 20, 21 or 22 of the Act from which to appeal.
On an application to the Trial Division [supra,
page 166] for a writ of mandamus, Collier J. held
that the jurisdiction to determine who is a party
entitled to express dissatisfaction is that of the
Board, not that of the Administrator. In determin
ing whether the relief sought should be granted he
found that U.A. Local 170 was an "employee
organization representing employees whose com
pensation is in question" within the meaning of
section 12(1.2)(b)(ii) of the Act and thus it was
entitled to advise the Board of its dissatisfaction
with the Board's notification. He then ordered a
writ of mandamus to issue directed to the
Administrator [at page 172]
... commanding him to make, pursuant to subsection 17(1) of
the ... Act, such inquiries and to undertake such investigations,
within the powers conferred on him by the said Act, to deter
mine whether the compensation provided for in an agreement
dated September 25, 1977 between the applicant and the
Construction Labour Relations Association of British
Columbia has contravened, is contravening or is likely to
contravene the Guidelines established under the Anti-Inflation
Act.
The Administrator, responding to this order,
found that U.A. Local 170 was a "group" within
the meaning of section 38 of the Regulations or
Guidelines issued pursuant to the Act, that it was
constrained by the limit of 8% under the Guide
lines and that a total of 31¢ per hour (distributed
11¢ for its welfare plan and 20¢ for its pension
plan respectively) was exempt.
The Tribunal allowed an appeal from the
Administrator's decision and referred the matter
back to the Administrator for reconsideration on
the basis that the "group" consisted of all
employees of all bargaining units bargained for by
the various trade unions, including U.A. Local
170, which were parties to collective agreements
with the C.L.R.A. of B.C. in 1976.
It is from that decision that this section 28
application is brought.
For a proper understanding of the sole issue the
relevant sections of the Act should first be set out:
Section 12(1)(c)
12. (1) The Anti-Inflation Board shall
(c) identify the causes of actual and proposed changes in
prices, profits, compensation and dividends identified under
paragraph (b) that are, in its opinion, likely to have a
significant impact on the economy of Canada, and endeavour
through consultations and negotiations with the parties
involved to modify such changes so as to bring them within
the limits and spirit of the guidelines or reduce or eliminate
their inflationary effect;
Section 12(1.2)(b)(ii)
12....
(1.2) For the purposes of paragraph (1)(d.1), the parties
entitled to advise the Board of their dissatisfaction with a
notification from the Board and thereby entitled to require the
Board to refer a matter to the Administrator for consideration
by him are,
(b) where the notification relates to compensation,
(ii) the employee organization representing employees
whose compensation is in question or, if there is no such
employee organization, the designated employee of those
employees; and
Section 12(1)(d. 1)
12. (1)...
(d.1) where consultations and negotiations under paragraph
(c) have resulted in a notification from the Board to the
parties involved that a change in prices, profits, compensa
tion or dividends that varies from a change, if any, specified
in the notice would not, in the opinion of the Board, be within
the limits of the guidelines and would not otherwise be
justified, and any party referred to in subsection (1.2), within
thirty days after the later of the day on which this paragraph
comes into force and the day on which the notification is
given by the Board, advises the Board in writing that it is
dissatisfied with such notification forthwith refer the matter
to the Administrator for consideration by him; and
Section 17(1)
17. (1) Where the Anti-Inflation Board, pursuant to para
graph 12(1)(d) or (d.1) refers a matter to the Administrator, or
the Governor in Council advises the Administrator that he has
reasonable grounds for believing that a supplier, employer or
other person other than an employee to whom the guidelines
apply has contravened, is contravening or is likely to contravene
the guidelines, the Administrator shall make such inquiries and
undertake such investigations within the powers conferred on
him by this Act as in his opinion are required in order to enable
him to determine whether the supplier, employer or other
person to whom the reference from the Anti-Inflation Board or
the advice from the Governor in Council relates has contra
vened, is contravening or is likely to contravene the guidelines.
Section 38 of the Regulations defines "group"
and in 1976, the applicable year in this case, it
read as follows:
38....
"group" means
(a) a bargaining unit,
(b) two or more bargaining units composed of employees of
the same employer, that, in association with one another,
bargain collectively with the employer,
(c) one or more bargaining units composed of employees of
one or more employers that bargain collectively with an
association of employers,
(d) a group of employees the composition of which is unilat
erally established by the employer for the purpose of deter
mining or administering the compensation of the employees
in the group,
(e) a group the composition of which is determined in
accordance with paragraph 39(b), or
(f) an executive group;
The sole issue in this application is whether the
"group" whose compensation plan has been
referred to the Administrator is comprised only of
the members of the applicant Union employed by
member firms of C.L.R.A. of B.C. or whether
such group consists of all employees in bargaining
units bargained for by all the unions which were
parties to collective agreements with the C.L.R.A.
of B.C. in 1976.
I think that it is important to observe at the
outset that the basic thrust of, the Act is that the
Board should not resort to enforcement proceed
ings before having endeavoured by consultation
and negotiation, both with employers and
employees, to obtain voluntary compliance with
the Board's recommendations, issued as they are
within the standards set by the Regulations or
Guidelines as they are termed. Section 12(1) (c) is
illustrative of that idea. Thus, in construing the
Act and its Guidelines this basic precept should be
borne in mind and a construction which in any
way tends to impede it should be avoided.
The first question to which attention must be
directed is whether or not either the Administrator
or the Tribunal is empowered by the Act or the
Regulations to determine that the party which
advises the Board of its dissatisfaction with the
notification by the Board that a proposed change
in compensation would not be within the limits
imposed by the Guidelines, is not a "group" within
the meaning of the Guidelines. Collier J. in the
Trial Division, in his reasons for judgment had the
following to say [at pages 169-170] :
The scheme of the Act, as I see it, is that the Anti-Inflation
Board, not the Administrator, has the duty of determining
whether an applicant, such as the one here, is a party referred
to in subsection (1.2). If the Board determines that matter
affirmatively, then it is required to refer the matter to the
Administrator for his consideration.
The Anti-Inflation Board may come to an erroneous conclu
sion that a particular party is one falling within subsection
(1.2). But there is nothing in the statute, as I interpret it,
permitting the Administrator to overturn or vary that
determination.
Counsel for the respondent argued it was implicit in subsec
tion 17(1) of the legislation that the Administrator, before
undertaking the required inquiries and investigations, must first
come to a decision that the so-called "dissatisfied party" is one
falling within subsection 12(1.2). I set out subsection 17(1).
Reliance was placed on the words:
... the Administrator shall make such inquiries and under
take such investigations within the powers conferred on him
by this Act ....
It is said those words confer a power in the Administrator to
determine whether he has jurisdiction in respect of the com
plaining party and his status to express dissatisfaction. I am
unable to so interpret subsection 17(1).
That subsection, in its plain meaning, requires the Adminis
trator, once a matter has been referred to him, to make
inquiries and investigations, using the powers of inquiry and
investigation given to him by the statute, to enable him to
determine whether there has been contravention or likely con
travention of the Guidelines.
The Administrator has ventured here, by his letter of Octo-
ber 21, into the legal quagmire of determining the jurisdiction
to enter upon his jurisdiction. As I see it, the statute does not
permit him to do this. [The following cases, cited by the
applicant, are of some assistance on this point: Attorney Gener
al of Canada v. Cylien [1973j F.C. 1166. B.C. Packers Ltd. v.
Canada Labour Relations Board [1973] F.C. 1194. Toronto
Newspaper Guild Local 87, American Newspaper Guild
(C.I.O.) v. Globe Printing Co. [ 1953] 2 S.C.R. 18.]
The Administrator had, on the facts here, a duty to proceed
with the investigation and inquiry prescribed by subsection
17(1). He refused to do so. His refusal was not, as I have said
earlier, a decision or order within the ambit of section 38. Nor
was the basis of his letter a "jurisdiction" given to him by the
legislation. The jurisdiction to determine who is a party entitled
to express dissatisfaction is that of the Board, not that of the
Administrator.
I am in full agreement with the learned Judge
and nothing would be accomplished in my
endeavouring to elaborate on what he said in the
quoted portion of his judgment. He then went on
to find that U.A. Local 170 was, in fact, an
"employee organization representing employees
whose compensation is in question ..." within the
meaning of section 12(1.2)(b)(ii) of the Act. As
such it was entitled to advise the Board of its
dissatisfaction with the Board's notification. The
Board, having concluded that U.A. Local 170 was
a party so entitled, referred the matter to the
Administrator for consideration pursuant to sec
tion 17. He refused to proceed. He did not have
the right to refuse. Mandamus was, therefore,
granted. Again, I fully agree with Collier J. and I
cannot usefully add to what he said.
However, counsel for the C.L.R.A. of B.C.
argued in this Court, as he did before the Tri
bunal, that the learned Judge's conclusion did not
go to the question of whether the employees bar
gained for by U.A. Local 170 were to be treated as
a "group" within the Guidelines under the Act.
The "group" for such purposes, in his submission,
was composed of all those parties who bargained
with C.L.R.A. of B.C. for an industry settlement
of the employees' compensation not simply U.A.
Local 170 by itself. Acceptance of this view would
necessarily result in a reference back to the
Administrator leaving the whole industry settle
ment in limbo until the Administrator's decision
was made. The undesirability of such a result, as a
practical matter, is, of course, obvious. Neverthe
less, the Tribunal agreed with counsel's submission
and referred the matter back to the Administrator.
The basis upon which the presiding member of
the Tribunal did so is revealed in the following
passages from his reasons:
In my opinion the scheme of the Guidelines generally and the
graduation through paragraphs (a) to (c) in the definition of
"group" from the smallest group of unionized employees to the
largest suggests that in the circumstances before the Adminis
trator the proper "group" was the largest one; that is all the
bargaining units that bargained collectively with the C.L.R.A.
of B.C. Moreover, the definition of "group" in the Guidelines
suggests that the legislators of the anti-inflation controls were
sensitive to the existence of employer association bargaining
and intended to take it into account. This apparent intent would
be largely defeated by interpreting the Guidelines and the Act
in such a way that each individual union dealing with an
employer association could have its collective agreement ruled
upon separately by the Administrator. The essence of associa
tion bargaining is the power of the association to deal uniform
ly, or on the basis of rational differentials, with the various
unions with which its members have collective bargaining
relationships. If possible the Guidelines should be interpreted to
ensure that the Administrator deals with such multi-party
arrangements as a whole. Then if a roll-back is called for it can
be a roll-back that maintains, rather than destroys, the internal
consistency of any such arrangement.
To achieve an evenhanded administration of the Anti-Infla
tion controls and to be consistent with what I think to have
been the intention of the legislators, the Administrator should
have treated all employees in the bargaining units bargained for
by the common front unions who were party to the 1976
negotiations with the C.L.R.A. of B.C. as "the group". I must
therefore refer the matter back to him for reconsideration on
this basis.
In my opinion, he erred in so finding. The error
seems to stem from his assumption that since the
word "group" is used in the Guidelines rather than
"party" or "employee organization" as in the Act,
it does not preclude the Administrator from deter
mining that the "party" or "employee organiza
tion" which advises of its dissatisfaction with the
Board's notification need not constitute a "group"
for purposes of the application of Part 4 of the
Guidelines. Since, as has already been found, the
Administrator is not empowered by the terms of
the Act to determine who is a party entitled to
express dissatisfaction, it would be, to say the
least, incongruous to hold that he may accomplish
what he cannot do under the Act by saying that
such a "party" is not a "group" within the mean
ing of that term in the Guidelines.
Not only does it not appear to me to be a
sensible interpretation that accords with the ordi
nary rules of statute interpretation in that it
appears to hold that a regulation may have the
effect of overruling provisions in a statute under
which the regulations are made, it does not appear
to accord with the plain meaning of the definition
of "group" in section 38 of the Guidelines.
Paragraph (c) of the definition as it read in
1976 is the applicable clause in this case. To
reiterate, it reads as follows:
38....
(c) one or more bargaining units composed of employees of
one or more employers that bargain collectively with an
association of employers,
The clause can have several applications. On the
facts of this case U.A. Local 170 represents the
employees of more than one bargaining unit, in the
employ of more than one employer which bargain
as part of an association, (the C.L.R.A. of B.C.),
with which the employees bargain collectively.
U.A. Local 170 thus can fall precisely within the
definition. By the same token the wording is suf
ficiently broad in its scope to encompass the bar
gaining units represented by more than one trade
union, all of which bargain collectively with an
employers' association on behalf of all of the
employers of the employees in the respective bar
gaining units. Therefore, the clause also would
have enabled the "group", for purposes of the
Guidelines, to have included all of the unions if the
Common Front Industry Bargaining Structure had
been ratified by all, and that "group" had
expressed dissatisfaction with the notification.
That having been said, the question now must be
asked does the Tribunal on the facts of this case,
have the power to decide that U.A. Local 170 is
not a group although it is the only "employee
organization" which has advised the Board of its
dissatisfaction with the notification and that "mat-
ter" has been referred to the Administrator for
decision? The answer to that question must lie in
the powers accorded the Board and the Adminis
trator by the Act.
Section 12(1)(d.1), supra, provides that if any
party referred to in subsection (1.2) within the
time noted therein, advises the Board of its dis
satisfaction with the notification, the Board shall
refer "the matter" to the Administrator. Section
12(1.2), supra, defines the "party" entitled to so
advise the Board as "... the employee organiza
tion representing employees whose compensation is
in question ...." In this case clearly that organi
zation is U.A. Local 170. Section 17(1), supra,
provides that when the Board refers a matter to
the Administrator (the compensation plan in the
collective agreement between U.A. Local 170 and
C.L.R.A. of B.C. in this case), the Administrator
will make such inquiries and undertake such inves
tigations within the powers conferred on him by
the Act to determine whether there has been, is, or
is likely to be a contravention. The only "matter"
referred to the Administrator was the dissatisfac
tion of the U.A. Local 170 with the Board's deci
sion. As I have said previously, no power has been
conferred on him by the Act to make any determi
nation with respect to the "party" or "employee
organization" involved in the "matter" referred to
him.
If the Administrator held that the "group", for
purposes of section 38 of the Guidelines, meant all
the bargaining units represented by all the trade
unions, he would be enlarging the "matter"
referred to him in that he would be investigating
the "matter" of the compensation of "employee
organizations" which did not express dissatisfac
tion with the Board's notification, and which had
not been referred to him. The conditions precedent
for clothing him with jurisdiction would not be
present. For these reasons I am of the opinion that
in order to comply with the statutory framework of
the reference, the Administrator must accept a
construction of section 38(c) of the Guidelines
which harmonizes with the powers and duties con
ferred upon him by the Act. To do so, in the
circumstances of this case, he must confine himself
to a "group" which is comprised of those bargain
ing units which expressed dissatisfaction with the
Board's notification, namely U.A. Local 170, and
to the "matter" (i.e. its dissatisfaction with the
Board's recommendations) which was referred to
him for determination in accordance with the
powers conferred on him by the Act.
Such an interpretation, moreover, accords with
the basic precept of the Act to which I referred
earlier, namely that the Board's basic duty is, if
possible, to obtain the voluntary compliance of the
parties to the Board's recommendations. When
twenty-seven parties agree voluntarily to comply it
is not reasonable, in my opinion, that one dissent
ing group should be permitted to delay the whole
settlement process if, on a reasonable construction
of the Act and its Regulations, such a delay is not
necessary.
Accordingly, for all of the foregoing reasons, I
am of the opinion that the section 28 application
should be granted. The decision of the Anti-Infla
tion Appeal Tribunal dated September 4, 1979
should be set aside and the matter should be
referred back to the Tribunal for disposition on the
basis that the decision of the Administrator dated
October 27, 1978 as to the limitation of the matter
referred to him was correct.
* * *
KERR D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.