HomeMy WebLinkAbout1988-0039.Interest.90-01-15AND:
T/0039/88
IN TEE RATTER OF THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT, R.S.O. 1980, c. 180
AND IN THE MATTER OF AN INTEREST ARBITRATION
BETWBEN: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
THE CROWN IN RIGHT OF ONTARIO
(the q'Employer'l)
AND IN TRE RATTER OF THE GENERAL OPERATIONAL SERVICES CATEGORY
BOARD OF ARBITRATION:
D. Fraser Chairperson Janet Solberg Union Nominee Jacqueline Campbell Employer Nominee
APPEARANCES FOR THE UNION:
Frances Lankin Negotiator Joyce Hansen Researcher
APPEARANCES FOR THE EMPLOYER:
Eileen Hipfner Staff Relations Officer Human Resources Secretariat
BEARING IN THIS MATTER WAS HELD AT TORONTO
ON AUGUST 24, 1989
This matter involves the determination of wage rates and other matters
for approximately 3,300 employees in the General Operational services category
of the Government of ontarlo. That Category is one of eight occupational
categories which bargain separately for wages. It includes employees in four
major service areas: personal service; cleaning, caretaking and security;
supply; and agricultural support. The two largest service areas are personal
service, and cleaning, caretaking and security, which together account for
approximately 78% of the category.
The parties agree that the collective agreement containing the increases
to be awarded herein shall be effective from January lst, 1989, to December
31st, 1989. They have further agreed that increases shall be retroactive to
January lst, 1989, shall be payable on a full or pro-rata basis to all
employees who are or were in the category and shall apply to all paid hours
including overtime worked.
The matters in dispute involve salaries, pension rate increase
protection, implementation, interest on retroactivity payments, and
retroactivity payment by separate cheque. We will consider these matters in
turn.
The union has proposed an increase of $1.75 per hour across the board for
all rates in all classifications in the Category. The Employer has costed that
proposal together with a pension request as constituting an increase of
approximately 15.3%. In support of Its proposal, the Union relies on a number
of factors including a special case argument for the entire Category, the
situation of females in the Category and its relationship to a low-wage ghetto
and the poverty line, growth in the Ontario economy, wage rates and settlements
in the public and prlvate sectors In Ontario and elsewhere, growth in
productivity, changes in the Consumer Price Index, and other matters. However,
the union’s principle case rests on the submission that 70% of the Category, or
97% of the category when historical relationships are heeded, comprises a
special case when compared to similar occupations outside the public service.
That submission 1s founded on a factor to be taken into account by this board,
found in the Crown Employees Collective Bargaining Act. Section 12(2)(b) of
that Act provides that a relevant factor for consideration is:
“the condition of employment in similar occupations
outside the public service, including such geographic,
industrial or other variations as the board may consider
relevant”.
The union has proposed that in view of the reach of the special case
throughout the Category, and in view of wage rates in similar occupations
outside the public sector, an increase of $1.75 across the board for the
Category is appropr late.
The Employer has proposed that the wage increase be within the range of
settlements in 1989 for four other wage categories in the Ontario public
service. Absent ad%stinent for special cases, those increases average out to
5.89% for Administrative Services, 5.916% for Scientific and Professional
Services, 5.94% for Technical Services, and 6.022% for Office Administration.
In support, the employer relies on a number of factors, including the economic
climate as reflected by settlements In the private sector, internal
relationships, recruitment and retention, and other matters. Wlth respect to
the union’s submission respecting a special case for the Category for catch-up,
-i- 4
the employer has relied on settlement levels in the private sector and
elsewhere, rather than the comparable wage rates provided by the union.
We have reviewed all of these factors in detail. submissions in respect
of many of them have been analysed in depth in previous interest awards. We do
not propose to repeat or add to those lengthy considerations In detall, but
will indicate some of the major elements that led to our result.
The special case approach has been used by the parties for some tlme, and
we accept it as an appropriate process provided, of course, that the case is
proven. Furthermore, the evidence generally supports the union position that
it is appropriate to view the entire Category as a special case, given the
reach of the individual special cases which we have referred to above. These
are not the difficult considerations in this case, which is whether the data
prove that catch-up is merited, in the light of other factors we have
considered.
The special case is based on a comparison of seven benchmark
classifications within the General Operational Category, which the union
submits “are most representative of the category and which have easily
ldentlfiable outside comparisonP. They are (a) Cleaner l-3; (b) Buildings
Caretaker 1, 2, 6; (c) Cook l-3; (d) Laboratory Attendant 1, 2; (e) Security
Officer l-3; (f) Clerk, Supply 1-7; and (g) Aqrlcultural Worker l-4. The data
indicate that these benchunrks include 758 of the population of the Category,
which is in excess of the 70% submitted at the outset. The inclusion of
historically-related classifications, such as Cleaner, Office Buildings,
Hospital Housekeeper 1 and 2, and Laundry Worker 1-5 in the Cleaner l-3
benchmark classification, results in benchmark and historically-related
5
classifications totalling 99.2% of the Category. The inclusion of some of
those historically-related classifications may be an arguable matter, but we
conclude overall that the benchmarks are well-representative of the entire
Category.
Benchmark (a) cleaner 1-3 vas compared in respect of vage rates with
C.U.P.E. and S.E.I.U. hospital rates in Ontario, with municipal rates in
Ontario, with Ontario and Toronto Hydro rates, and with rates at General Motors
In Oshava. Contracts in effect at various times in 1988 and 1989 were examined
for that purpose, and the resulting wage differentials range from 9.5% to 45.18
in excess of rates in the Category. There were substantial submissions and
other material in support of these comparisons, which we shall not replicate
here. We would note, however, in evaluating the material here, as also below
for the rem&ring six benchmarks, that wages in Toronto, and wages paid by
municipalities and Hydra must be viewed with caution, as the data indicate that
they reflect to some extent the higher end of the scale.
Benchmark (b) Buildings Caretaker 1, 2, 6 was compared wlth wage rates
for boards of education and municipalities in Ontario, and Toronto Hydra.
Again, as In all cases of cornparables for all benchmarks, contracts in effect
at various times In 1988 and 1989 were examined for that purpose. The
resulting wage differentials range from 9.9% to 56.3%.
Benchmark (c) cook 1-3 was compared in respect of wage rates In the
Federal government and Ontario Hydra, with differentials ranging from 14.4% to
39.8%.
Penchmark (d) Laboratory Attendant 1, 2 was first analysed In terms of a
proposed historical relationship with Medical Laboratory Technologist In the
Ontario public service. That latter classification Is the one with which the
Laboratory Attendant works most closely, and from which the Laboratory
Attendant frequently receives instruction. A comparison of 1984 to 1988 years
shows a comparative historical wage relationship Increase of 8.4% for the
Medical Laboratory Technologist. A comparison of the Pen&mark was also made
with Hospital Technicians In O.P.S.E.U. hospitals In Ontario, showing wage
differentials of 19.9% to 31.6% In favour of the latter group.
Benchmark (e) Security Officers l-3 was compared with counterparts In the
federal House of Commons, Ontario Hydro, and the Liquor Control Board of
Ontario, with wage differentials ranging from 8% to 54.2%.
Benchmark (f) Supply Clerk l-7 was compared with wage rates of
counterparts in Ontario municipalities and boards of education, Ontario and
Toronto Hydra, the Liquor Control Board of Ontario, General Motors of Oshawa,
Continental Car, Stelco and Into. The resulting differentials ranged from
10.5% to 55.1%.
Benchmarked Agricultural Worker l-4 was reviewed by taking the
Agricultural Worker I level, as it is the working level; and comparing it with
the QKden.2 vorking level In Ontario municipalities, a limited number of
Ontario hospitals, boards of education, and universities (three In each case),
and General Motors of Oshawa. The resulting differentials ranged from 7.7% to
34.6%.
7
To support the comparisons to the various Benchmarks, the union described
sImIlarItIes between Category classifications and the outside comparables.
working level In one job function was compared to a similar working level In
another job function, principal tasks were compared, or other primary
slmIlarItIes were described.
Neither the data on differentials, nor the comparison of job functions
were seriousiy challenged by the employer, which rested Its case largely on
current settlement levels, rather than wage disparities (as we have noted
earlier).
What weight should this extensive data be given? There Is no doubt of
its relevance as a factor, as we noted in our earlier reference to C.E.C.B.A.
Comparable data from both Inside and outside the Ontario public service has had
a mixed reception. In an interest award for the General Operational Services
Category dated 16th September 1980, Chairman Brandt found such data from a
Civil Service commission Survey in 1978 to be unreliable because It was out of
date and not a “precise instrument for matching jobs In the public sector
against other jobs” (pp 16-17). In an Interest award for the same Category
dated 11th December 1980, Chair Betcherman suggested that special case
adjustments based on tnterMl equities, require job evaluations to be done
first (at p. 6).: In~an interest award made the next year for the same Category
(dated 10th Cctober 19851, Chairman Kennedy commented on external comparisons
of wage rates provided by the union. In so doing, he said (at p.6) that:
“On the evidence and arguments made to us, we would find
that there Is one significant additional factor that was
not present In the Administrative Services case, and that
relates to the external comparisons of wage rates
provided by the union. whlle~ those comparisons are In no sense precise, they are In our view sufficient to give a
general Indication that the wages In this category are
J 8
falling behind the wages paid to comparable employees
elsewhere.”
In the present case, the benchmarks are well-chosen and representative
and the cornparables represent similar working levels of jobs in their essence
and are taken from a comparatively wide background of employees outside the
public service. Neither the comparable jobs nor the wage differentials they
produce have been seriously challenged by the employer, and It is our view that
they represent an appropriate exercise vhlch gives a reliable general
indication that wages In this category are significantly below wages paid In
comparable jobs elsevhere.
The comparison Is, however, Imprecise In some respects and not completely
reliable, although it would be difficult to see how the union could do a
significantly better job within the context of the constraints of an interest
arbitration. In some cases, the evidence of job similarity is not wholly
satisfactory, nor are the outside employers chosen In every case, the most
appropriate ones. However, these and other concerns all combine to require
that the final results be viewed with some caution, In terms of the total reach
of the disparities. They do not affect the reliability of our general
conclusion, which Is that the Category is significantly behind when compared to
the Vondltlons of employment In similar occupations outside the public
service”. The case has been made, and we give it substantial weight as a
factor.
There are other factors which need to be brought in. We also give
substantial weight to settlements In the four other wage categories in the
Ontario Public Sector, as they have been freely negotiated, as they represent a
collective bargaining response to many factors which are also before us, and as
9
they are close to home. Settlements In other sectors have been reviewed and
provide general guidelines for us, but they are not quite as determinative as
the factors reviewed above. Growth In productivity Is also a factor, as Is
change in the C.P.I., but those are subsumed In some degree in the settlements
we have reviewed.
Of the further factors we have considered, we would comment In some
detail about recruitment and retention. They are not simple factors to deal
with. There Is some evidence from the employer that there Is no particular
difficulty In recruiting and retaining employees in the Category, but the
submIssIons on this are a relatively new matter, and the data must be regarded
with care. In particular, we would note that there are problems with retention
data. For example, exit surveys (to find reasons for leaving) are an Important
element of any submission on the validity of retention data, but, as the union
has pointed out, reasons given for leaving will very often be masked for
unspoken reasons, such as a desire not to “burn one’s bridges”. We can,
however, conclude that recruitment and retention Is not a significant problem
in the Category, as it has, perhaps, been In other categories (such as those
including Registered Nurses).
I The effect of such a conclusion Is limited. Where recruitment or
retention Is a problem, the response Is reasonably straight-forward. Benefits
are Increased until a satisfactory recruitment or retention percentage is
achieved, or other changes are made involving such things as better job
advertising, recruitment bonuses, or enhanced working conditions.
But where recruitment or retention Is not a problem, the opposite
response, In some form or other, may not be appropriate for a category in the
10
Ontario Public Service. The factors provided in cXSA, section 12(2),
Illustrate why. Section 12(2)(a) refers to the need for qualified employees.
However, the folloving subsections refer to such matters as conditions of
employment In similar occupations, malntalnlng appropriate relationships
between classifications, and fair and reasonable terms and conditions relative
to such things as qualifications, work performed, responsibility assumed, and
so on. Those latter factors are almost all comparative factors, In one sense
or another, making comparisons with other occupations or classifications, or
comparing terms and conditions with such things as work performed or
responsibility assumed. So there is a large, inter-related web of factors used
to suggest an appropriate wage level which have little or nothing to do with
recruitment OK retention on their face. It would be an unusual and unbalanced
result, if the results of all such mandated comparisons were then down-graded,
or reduced in effect, because, as found in section 12(2)(a), “the needs of the
Crown and Its agencies for qualified employees” was being easily met. Such
certainly could be done, but the circumstances would have to be quite unusual
for the other “comparable” factors, In effect to be given less weight.
We think that In view of the size and diversity of the occupations In the
Ontario Public Service, that a factor of recruitment and retention would be
most significant when it also enters the web through the “comparable” route.
In other vords, If there Is a downturn in the economy reflected, for example,
In conditions of employment outside the public service, or In other
classifications, It may be that ease of recruitment and retention changes the
comparable conditions of employment to the extent that those changes In turn
are seen as affecting conditions of employment in the category in question. We
would conclude for these reasons that ease of recruitment and retention 1s
certainly a factor to consider as we have here, but its weight depends in large
,i,
3 , 11
part whether it has affected the large list of other comparable factors in the
legislation. Evidence of that will be found directly in such things as
comparable wage and settlement data. Thus, in conclusion, difficulties in
recruitment and retention may produce a direct increase in benefits and working
conditions. In a process of wage determination weighed heavlly to comparables,
B of recruitment and retention must be viewed in light of the comparables,
and it will have most effect when it is reflected by them.
Of all the matters considered, both conditions of employment in similar
occupations outside the public service, and settlements in the four other wage
categories have been given substantial weight. The economic climate and other
settlements have been given weight, and a number of other factors have been
reviewed, including recruitment and retention.
We conclude that a special case that a catch-up increase for the entire
Category has been made which should be above the average range of settlements
in the Ontario Public Service, but the case should be modified in view of
certain of Its characteristics which we have noted, in view of the range of
settlements within and without the public service, and the other factors
referred to. For these reasons, we award an increase of $1.30 across the board
in the Category-for all classifications and rates effective January lst, 1989,
for all paid hours including overtime worked for all employees in the General
Operational Services Category in 1989.
The union has requested a 1% increase in wages to protect such wages from
any increase in the employee’s contribution to the pension fund. In view of
12
the fact that this issue has been raised in all the wage categories negotlated
to date, but forms no part of any of the four negotiated settlements, we
decline to make an award on this matter.
The union has requested that we order this award to be implemented within
thirty days of its date. The employer has responded by noting dlfflculties in
the implementation of an arbitration award, and proposed that the board order
that the employer endeavour to implement the board’s award within fifty days of
receipt, but in any event no later than sixty days of receipt of the award, and
that the order be made a term of the agreement. We adopt the reasoning of
prior boards on this matter, artd order that the employer endeavour to implement
this award within fifty days of receipt, but in any event no later than sixty
days of its receipt, and we further order that this requirement be made a term
of the agreement.
vltv PW
The union.has requested that the board order interest to be paid on the
wage retroactivity to January lst, 1989, and it has submitted a statistical
summary prepared by the Ontario Ministry of Labour respecting delay caused by
compulsory arbitration. In view of the special circumstances and nature of
this case, we decline to make an award on this matter.
:. 13
The union has asked that we require retroactivity to be paid on a
separate cheque, as the majority of employees prefer this method. The employer
has responded that such payments are separated out In any event in the
information on the cheque stubs in which they are included, and that good
reason has not been given for the requirement of separate cheques. We are of
the vie*$ that this matter has not been thoroughly enough explored at this tlme,
and decline to make such an award.
Dated at Ottawa
this 15bh day of , A.D. t’=?qO
D. Fraser, Chairpersbn.
c
"I dissent" (Dissent attached)
Jacqueline Campbell, Employer
Nominee
DISSENT
I strongly disagree with the majority decision of this Board.
While the award makes reference to careful consideration of
all the legislated criteria, in my opinion, undue weight has been
given to the external comparable wage data. The recruitment and
retention information provided by the Employer, as well as the
pattern of settlements, both within and outside the Ontario Public
Service, should be given equal consideration in determining the
appropriate level of increase -- even more so given the nature of
the comparable data provided by the Union, which to quote the
award, "must be viewed with caution as the data indicate that they
reflect to some extent the higher end of the scale".
This award provides for an increase which is approximately
50% above the going level of settlements in the OPS and
substantially higher than those achieved in other public sector
and private sector jurisdictions. It is beyond the. realm of
if 'ied. reasonabIeness.even if some form of catch-up can be just
Jac&linebG. Campbe
Employer Nominee