HomeMy WebLinkAbout1989-1201.Beitler et al.91-08-07 ONTARfO EMPLO¥/~S DE, L~ COURONNE
CROWN EMPLOYEE$ DE L'ONTARiO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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IN ~ MATTER OF AN ARBITRATION
Under
TH~ CROW~ ~,~L01~8 COLLECTIV~ BARGAINING ~CT
Before
TH~ GRIEVANCE SETTLEMENT BOARD
OPSEU (Beitler et al)
Grievor
- a~d -
The Crown in Right of Ontario
(Ministry of Skills Development)
Employer
BEFOR~: S. Stewart Vice-Chairperson
E. Seymour Member
M. O'Toole Member
FOR TH~ R. Anand
GRIEFOR Counsel
Scott & Aylen
Barristers & Solicitors
FOR TH~ C. Peterson
EMPLOYER Counsel
Winkler, Filion & Wakley
Barristers & Solicitors
HEARING June 18, 26, 1990
July 6, 9, 1990
September 6, 1990
January 28, 1991
D ECI SION
The grievances before the Board are classification
grievances filed by approximately ninety employees of the
Ministry of Skills Development employed in the position of
Skills Training Consultant which is classified as
Industrial Officer 2. The position was formerly described
as Industrial Training Consultant. It will be referred to
hereafter as "STC". The position specification, which was
presented to the Board as a generally accurate description
of the duties of the grievors, is appended hereto as
Appendix A. The Industrial Officer 2 class standard is
appended hereto as Appendix B. The Union is seeking a
declaration that the grievors are improperly classified and
a "Berry order", a ~irection that they be properly
classified.
The argument that was advanced by the Union is a
"standards" argument, that is, t-hat the position of the
grievors entails duties and responsibilities beyond those
contemplated by the Industrial Officer 2 class standard.
No "usage" argument was advanced by the Union. There are
two aspects to the Union's "standards" argument. The first
is that there ha§ been an evolution of the duties over the
years to the extent that the August 14, 1979 class standard
no longer adequately captures those duties. The second
aspect of the argument is that there are core duties
.2
performed by the grievors that are not contemplated by the
Industrial Officer 2 class standard.
The grievors are employed in the Field Services Section
of the Apprentice branch ofthe Ministry. In very general~
terms, the duties and responsibilities of the grievors
relate to trades training programs, established pursuant
to the A~prenticeship and Tradesmen's Qualification Act'.
This legislation, and the r~ulations thereunder, provide
for the regulation and certification of trades by
establishing standards with respect to practical and
theoretical training and testing. Section l(b) of the Act
refers to a "certified" trade, which is generally described
as a regulated trade. There are two typ. es of regulated
trades, compulsory and voluntary. Compulsory trades
include trades such as electrician, in which there is a
mandatory requirement for certification in order to perform
this kind of work. An example of a voluntary trade is
carpentry% where it is not a requirement that a person
certified in order to work in this area. There are twenty-
five compulsory and' forty-five voluntary trades.
Regulations under the Act specify the requirements for
certification in regulated trades, which includes a period
of apprenticeship, classroom training and, with respect to
some of the trades, the successful completion of an
examination. There is also a categor~ of "non regulated"
3
trades, involving trades where there are fewer than one
hundred people. There are approximately, seven hundred of
these. There are no mandatory requirements for
certification or schooling for these trades. In very
general terms, the role of the Industrial Skills
Consultants is to promote and provide information regarding
these programs, and to be directly involved in bringing
apprentices and employers into and through programs.
The statement of claim filed by the Un~on identifies
three areas in which it is alleged that the duties of the
grievors have changed in their essential character over the
last ten years. These areas are described ~s:
(a) increase in decision-making authority, and
decentralization of such authority from
management to field staff;
(b) substantial increases in the multiplicity.and
diversity of groups to be assisted;
(c) substantial increases in the multiplicity and
diversity of new programs to be administered;
There are thirteen areas in which it is alleged that
the work performed by the grievors falls outside the
Industrial Officer 2 class standard. These areas are
identified as follows in the Union's statement of claim.
(a) monitoring and enforcement activities;
(b) training of new industrial training consultants
and, 'in some cases, new managers;
(c) assumption of overall responsibility for regional
4
offices;
(d) assumption of supervisory responsibility for the
territory in question, including resolution of
contentious situations, such as failure to issue
Certificate of Qualification;
(e) developing, co-ordinating and maintaining
apprenticeship seat space for non-traditonal
apprenticeship courses, including registering
of apprentices and placing them on a class
list which must be maintained and updated;
(f) acting as registrar for apprentices who attend
normal school intakes called block' release
programs;
(g) at intake, adjudicating between would-be
apprentices where seat space is unavailable
and taking responsibility for such decisions
in response to inquiries, for example, from
members of Provincial parliament;
(h) negotiating seat purchases and raising the number
of seat spaces;
(i) investigating wage complaints between apprentices
and employer~ and negotiating settlements;
(j) investigating complaints from unions and
employers regarding persons operating in a
trade without certification
(k) investigating complaints from unions and
employers regarding' improper ratios of
apprentices to journeymen
(1) acting as mediators in labour disputes between
employers, apprentices and unions;
(m) locating and finding jobs for unemployed
apprentices
The statement of claim also refers to the drafting of a
manual, however Mr. Anand advised the Board that the Union
was not relying on this matter. As well, Mr. Anand advised
the Board that the Union was not relying on the allegation
that the grievors are involved in training managers.
5
The grievors work in twenty-seven offices divided into
five regions across the province. The twenty-seven officeb
include five regional offices. There are five district
managers. Counsel were able to agree to two representative
grievors, Mr. K. Vardy who is. employed in the London
office, which is one of the regional offices, and Mr. J.
Labrecque, who is employed in the Timmins office. Mr.
Vardy has been employed in his present position or a
predecessor thereof since November, 1980. Mr. Labrecque
has worked as a STC for nineteen years. He works in, or
perhaps more precisely out of, the Timmins office. As
well, the Board heard evidence from Mr. A. Cupido, who is
the district manager for the northern district in the
regional office in S~ult Ste Marie. Mr. Cupido commenced
his employment with the Ministry in 1968, in a Position
which is the predecessor to the position the grievors now
hold. He has been a supervisor since 1972 and has been Mr.
Labrecque's supervisor since Mr. Labrecque commenced his
employment.
Mr. Vardy and Mr. Labrecque both referred in their
evidence to the changes in their functions over the years
which they described as decentralization of decision making
authority, having the effect of requiring them to assume
decision making authority which had previously been
exercised by others.
The first example of this described by Mr. Vardy is a
change in the procedure by which an apprentice is "signed
up". Formerly, he would prepare an application form with
the apprentice, working out credits with respect to
previous work experience and education. The application
was forwarded, to Toronto where a contract of apprenticeship
was produced and signed by the Director of Apprenticeship.
Mr. Vardy would then obtain the signature of the employer
and the apprentice on the contract. ~t took approximately
fourteen weeks for the contract to be returned. Presently,
a combination application/contract is prepared and signed
by the employer and the apprentice at the workplace. It is
then signed by the STC.
Mr. Vardy acknowledged that prior to the change, the
only instances in which a contract was not forwarded in
response to the application that he completed were in
instances where there was an error such as an incorrect
social insurance number, a typographical error or the
Ministry's records showed that the applicant was still
active in another trade. As well, the ISCs had access to
contracts that were pre-signed by the Director and could
just be filled i'n. Mr. Labrecque stated that these
contracts were used about 1% of the time, when time was of
the essence. Mr. Vardy agreed with Mr. Peterson~s
7
suggestion that the Director's signature on these contracts
was a "rubber stamp" of the application that he had
completed and that he was responsible for these contracts '
presently in the same way that he was in the ~ast. Me
stated, however, that he "felt better" when there was
another signature on the contract.
Mr. Labrecque's evidence with respect to this matter
was that prior to 1979 he completed the application for
apprenticeship and made the necessary assessment with
respect to credits for education and work experience. This
was forwarded to the regional administrator. Mr. Labrecque
stated that there were occasions when the applications he
prepared were rejected because of an incorrect date or an
assessment of credit~ that was too high. In the early
198Os the requirement that the applications be forwarded to
the regional administrator was abolished and the
application was completed by the STC and forwarded to
Toronto. A signed contract was returned with the
Director's stamped signature on it. Mr. Labrecque's
understanding was that the involvement of head office in
Toronto in connection with the contract was a clerical role
: for records control.
Mr. Cupido's evidence on this point was similar to that
of Mr. Labrecque. However, Mr. Cupido did not recollect
8
any instances in which an application prepared 'by an ISC
had been rejected. Mr. Cupido stated that the issuance of
a contract in Toronto after the application had been 7.
received was essentially a clerical function and that there
had been no change in terms of the responsibities of the
grievors in connection with this matter since 1979. He
stated that prior to 1979 the requirement that supporting
documentation be attached to the application was abolished.
Accordingly, it appears that Mr. Labrecque's reference to a
rejection of an application for improper calculation of
credits must have been prior to 1979,
The grievors also referred to their involvement in
situations where a person who has not been involved in an
apprenticeship program is able to establish sufficient
qualifications to entitle him to write an examination to
obtain a certificate of qualification as a tradesperson in
a regulated trade. These situations generally arise with
persons who have had work expe. rience in another country..
It is necessary for these persons to provide information
establishing this experience. The grievors are required to
evaluate the courses and work experience to determine if
this person is entitled to write the examination. A change
took place approximately ten years ago whereby it is no
longer the case that the recommendation of the STC is
approved by the regional administrator who executed the
9
document. Presently, the ISCs make the decision and
execute the document that is necessary to entitle the
writing of the examination. Mr. Vardy also referred to
the role of the STC in situations where the person has
failed the examination. There are three opportunities to
write the examination and obtain a passing mark of 60%.
Mr. Vardy referred to a situation where his recommendation
that a person be able to write a fourth time was accepted
by his district manager. If the employee is unable to pass
the examination for reasons such as a reading disability or
a language barrier, an STC who is a tradesperson in the
same area will carry out a practical examination in the
workplace. Mr. Vardy described these situations as
potentially volatile as a person's livelihood is in issue.
In cross-examination, Mr. Vardy agreed with Mr.
Peterson that, like the apprenticeship applications, the
approval of the regional administrator was a "rubber stamp"
and that he continues to make his decisions with respect to
entitlement to write examinations for certificates of
qualifications ~n the same manner as he always has.
Mr. Vardy stated that when he commenced work in this
position ten years ago there was a clearer definition of
trades and the existing trades and their educational
requirements were well established. He stated that with
10
the development of new non regulated trades it is incumbent
on the Skills Training Consultants to find educational
resources while in the past this was not necessary. Mr.'
Vardy stated that if there is not a precedent for training
in a new non regulated trade it is necessary for him to
develop one. Mr. Vardy has prepared a number of schedules
of training for non regulated trades based on precedents
that are available to him. He has prepared one schedule of
training without a precedent. This was in 1981, shortly
after he commenced work with the Minis%ry..
Mr. Labrecque also gave evidence with respect to this
matter. He stated that ten years ago a new schedule for a
non regulated trade was drafted by a person from Toronto.
He stated that for t~e last ten years it has been his
responsiblity to prepare these schedules and that.he has
prepared between forty and sixty of them. After they are
prepared they are forwarded to his supervisor for approval.
Mr. Cupido's evidence on this point was that while it is
the responsibility of the STC to prepare these schedules,
assistance is available from head office if it is required.
In relation to the issue of general change in the
nature of their duties, both Mr. Vardy and Mr. Labrecque
made reference to modular training. Unlike traditional
apprenticeship training,' which is time based., modular
11
training is competency based. The various modules
developed for a particular industry are generally developed
by a tripartite committee of management, labour and
government. However, the STC will assist an employer in
determining the modules necessary to deal with its training
needs. This model of training is common in the forestry and
mining industries. When competence is demonstrated in each
level the employee is "signed off" with respect to that
skill. The STC is responsible for making an effective
recommendation with respect to the representative from the
employer who will be responsible to "sign off" the
completed modules. Mr. Labrecque stated that ten years ago
the extent of his responsibility with respect to modular
training was that he would act as as resource to the person
from Toronto who was *responsible for developing the
training program.
Mr. Vardy also gave evidence with respect to changes in
responsibility for classroom training that have taken
place. He stated that formerly decisions with respect to
class intakes were made in Toronto. In the past if there
were an excess number of students scheduled for the
classroom portion of an apprenticeship program the last
students confirming their availability were sent a notice
from Toronto advising them that the class was full. Now,
such as notice is not sent to students and if there is what
12
Mr. Vardy described as an "overcall" it is necessary for
him to deal with the problem. That i's accomplished by
either arranging for extra seats with the educational
institution or, if that is not possible, making a decision
as to which apprentice Will not be able to attend the class
portion of his apprenticeship program at that time. Mr.
Vardy referred to the obvious displeasure of an apprentice
and his employer in such circumstances.
Mr. Labrecque' s evidence was that when he is involved
in a situation where there is excess of students in
relation to seats and it~ is necessary for someone to be
sent away he discusses the matter with his manager,' who
generally agrees with his recommendation. Mr. Cupido
described that decision as one that would have to be made
by Mr. Labrecque. Mr. Labrecque also gave evidence
regarding a change in practice with respect to arrangements
with the educational institutions. Prior to 1980 seat space
was negotiated with the instituiOns by a regional manager
and a person from Toronto. Mr. Labrecque would be present
as a resource person. However, in 1980 or 1981 certain
persons were designated to do college liason work. Mr.
Labrecque is one of those persons. He is required to meet
with a. representative of the college to arrange the number
of seats and the start dates. Mr. Labrecque makes a
recommendation to his manager and Mr. Cupido is responsible
13
for the decision to commit the necessary funds. Mr. Cupido
is directly involved in finalizing the arrangements with
the college.
Mr. Vardy referred to a substantial increase in the
number of apprentices he is responsible for. He testifed
that over the last ten years the number of apprentices he
is responsible for has increased from approximately 350 to
652. He stated tha~ this has meant a dramatic increase in
telephone contacts, interviews and the number of decisions
that have to be made. Mr. Vardy stated that there are a
myriad of problems that arise, including personal problems
of the apprentice, disputes that may develop between the
apprentice and the employer, problems with respect to the
numbers of certified~radespersons in relation to
apprentices, and problems of the apprentices in obtaining
suitable employment. He stated that while there is a
district manager and two assistant district managers, ~he
decisions that he is required to make have to be made on
the spot and consultation is only practically possible with
,respect to major policy issues. Mr. V~rdy also referred to
the fact that he is called upon to determine whether an
apprentice will be. involved in a regulated or non regulated
trade in certain instances. He stated that this decision
requires him to balance the interests of the employer and
the trainee as well as the skills training system.
14
Mr. Vardy also gave evidence with respect to the nature
of the interest groups with which he has contact in his ~
position. He testified that formerly he was. involved with
union groups and trade related groups. However, since 1985
he has increasingly become involved with different kinds of
groups concerned with particular interests such as persons
who are not fluent in English and the entry of women and
members of minority groups, into skilled trades. Mr. Va~dy
is involved in speaking to these groups and providing
information as to how their members may become involved in
trades.
As well, Mr. Vardy gave evidence regarding the kinds'
of programs that are'now in effect and about which he must
be knowledgeable. These are primarily grant progr, ams of
various kinds, such as grants for older persons entering
trades and grants for employers hiring young persons.
A relatively new program is skills updating, whereby funds
are provided so that a tradesperson can obtain retraining.
It is the role of the STC to determine eligibility with
respect to such training.
Mrl Vardy stated that most of these programs have come
into existence in the last ten years, however in cross-
examination he acknowledged that since the commencement of
15
his employment there have always been grant sources
available to employers and employees for apprenticeship
programs. He explained, however, that the number of
programs has increased. Mr. Vardy also agreed that the
provision of information with respect to this kind of
program is a counselling function, the kind of function
which is the essence of his job.
Both Mr. Vardy and Mr. Labrecque made reference to
their roles in invigilating examinations. It is apparent
from their evidence that this is not a frequent occurenceo
They are not required to grade the examinations.
Mr. Labrecque carries out his duties in an extensive
geographical area, w~ich involves a round trip of
approximately 1400 kilometers. There was some discrepancy
in the evidence of Mr. Labrecque and Mr. Cupido with
respect to how often there is contact between them. It was
Mr. Labrecque's evidence that they have contact every two
or three months while it was Mr. Cupido's evidence that his
contacts with Mr. Labrecque vary from two or three times a
week to once every two weeks.
There is however, no dispute that Mr. Labrecque works
with substantial independence in carrying out his duties.
We think it probable that Mr. Labrecque was referring to
discussions with respect to substantive problems when he
referred to contact every two or three months. Mr.
Labrecque forwards weekly work sheets to his supervisor
detailing the nature of the work that he has been
performing.
Mr. Labrecque is one of three Skills Training.
Consul%ants employed in the Timmins office. The other two
have been employed there for ten years. Mr. Labrecque
testified that he was involved in training these persons
when they commenced work. He stated that the training
consisted of these employees working side by side with him
for three months. As well, he spent some time simply
providing them with information. He stated that their' only
additional training fnvolved them being s~nt to Toronto for
a couple of days. Mr. Labrecque stated that there are
times When Mr. Cupido suggests to these employees that they
discuss a particular problem with him. In addition to the
training Mr. Labrec que provided to the employees in the
Timmins office, he provided training to two other employees
in 1975. As well, he assisted with training of an employee
in Sudbury, spending one day a week about every two weeks
for approximately six monthS.
The Union adduced evidence with respect to the
history of enforcement functions by the STCs, as well as
~7
preceeding job specification and class standards. Mr.
Peterson objected to this evidence and the Board ruled that
it would hear the evidence, reserving its decision as to
the relevance and weight to be attached to such evidence.
Both Mr. Labrecque and Mr. Vardy stated that they
perform the enforcement duties outlined in the second
paragraph of the class standard except that they do not
audit books or payrolls or serve summonses. Mr. Labrecque
testified that prior to 1974, employees in the position
that is the predecessor to his current position were
involved in the enforcement types of duties referred to in
the second paragraph of the Industrial Training Officer 2
class standard. In particular, they possessed warrants
that authorized them~o audit boo~s and payrolls and were
involved with prosecutions. However, in approximately
1974, other employees were assigned enforcement functions
and Mr. Labrecque and other employees in his position were
advised at a meeting that enforcement matters would be
dealt with by these other employees. They were no longer
required to possess warrants.
Mr. Labrecque stated that in the early 198Os there was
an attempt by management to have the STCs work more closely
with employees in the enforcement positions. Mr. Labrecque
stated that the instructions that he and other employees
18
received from Mr. Cupido were that when they were attending
at business premises, to regulate apprentices, some aspects
of enforcement were also to be carried out. For example,
they were to ensure that proper ratios of tradesmen to
apprentices were being observed.' According to the evidence
of both Mr. Vardy and Mr. Labrecque, the role of the ISC in
this regard is to advise the employer that he was in
violation of the ra~io requirements and to provide
counselling with respect to the requirements of the
regulations. Mr. Labrecque stated' that he also became
involved in investigating matters along with enforcement
officers.- For example, if an apprentice claimed that he
was not properly paid, .he would obtain the details of that
person's claim and forward it to the enforcement officer in
North Bay. Mr. Labr~cque stated that he has assisted in
prosecutions on one or two occasions by gathering
information for one of the enforcement officers. 'He stated
that his involvement in the preparation of cases consists
of providing information contained in his file. Mr.
Labrecque was aware of one instance in which a STC was
required to give evidence in court. The warrants that they
previously possessed have not been returned to them.
Also in support of their position that there had been a
material evolution in the nature'of the duties that they
perform the Union referred to various job advertisements
19
for the position between 1980 and 199o.
Prior to directly addressing the particular issues in
this case we wish to refer in a summary manner to the
appropriate approach to be taken in classification cases in
which it is alleged that the position grieved is improperly
classified. As has been noted in many decisions of this
Board, class standards are, by their nature, very general
descriptions. They are not intended to be detailed job
descriptions. In order to establish that a position is
wrongly ¢lass'ified the Union is obliged to establish that
the essence or the core duties of the job do not fit within
the class standard to which it has been assigned.
We turn first tq the issue of whether there has been
an evolution of the duties and the responsibilities of the
positions to the extent that it must be concluded that the
job no longer "fits" the Industrial Officer 2 class
standard. In this r~ard we have considered the matters
set out in the Union's statement of claim, reproduced
above, as amplified at the hearing. After a careful review
of the evidence and the submissions of counsel it is our
conclusion that we must reject the Union's submission that
there'has been an evolution of the duties to the extent
that we should conclude'that the grievors are improperly
classified.
While there'have been changes in the manner in which
the apprenticeship contracts and the approval for
examinations for the obtaining of certificates of
qualification are dealt with administratively, it is
apparent from the evidence that as a practical matter the
ISCs have had the real responsibility with respect to' these
matters since the time the class standard under which they
are currently classified came into existence. The evidence
did not establish that these decisions are inherently
complex or are made in the absence of established criteria.
While the previous role of the STCs was somewhat more
limited with respect to educational institutions and
dealing with problems.resulting from excess enrollment, the
class ~tandard specifically contemplates liason with
training institutions and the resolving 'of problems in
those situations. The evidence with regard to the
evolution of duties is simply not of such a nature that we
can conclude that there has been a significant change in
the nature of the duties performed by the grievors such
that we should conclude that they are not properly
classified. We are compelled to reach the same conclusion
with respect to groups to be assisted and programs to be
administered. 'While there have been changes in both of
these areas, these changes have not substantively altered
the role of th~ grievors. They still provide counselling,
21
liason and dissemination of information with respect to
these groups and programs. While the determination of
eligibility for skills updating is somewhat of a different
role with respect to programs, it is a duty which involves
the assessment of qualifications, something the grievors
have always done.
We take a similar view with respect to the involvement
of the grievors in preparing schedules of training. The
class standard specifically refers to the "drafting of
schedules of training". The mere fact tha~ employees
perform new or different duties does not mean that they are
improperly classified, as long as such duties reasonably
fall within the class standard.
It is our view that the evidence before us simply
cannot support Mr. Anand's submission that the position of
the grievors has changed from a position that was primarily
involved in the dissemination of information to a position
whose dominant characteristic is decision making in the
adjudicative sense. A review of the position
specification which indicates the percentages of time
allocated to various functions simply does not support this
conclusion. The postion of the grievors has always
entailed some responsible decision making and the nature
and degree of the changes in this regard are simply not of
sufficient substance that we can conclude that there has
been a real change in this regard.
We turn now to the Union's submission that there are
matters which fall outside the Industrial Officer 2 class
standard. We will initially address the matters other than
the duties characterized as enforcement duties.
One of the overall thrusts of Mr. Anand's submission
was that the'class standard simply does not contemplate the
significant decisions that are made by the'grievors. He
emphasized that the kinds of decisions that the grievors
are routinely involved in are decisions which affect the
livelihood of people and which often result in inquiries
from members of parlSament. Mr,.Anand also referred to the
provisions of the provisions of the Apprenticeship and
Tradesmen's Qualifications Act and the regulations
thereunder with respect to their reference to decisions to
- be made by the Director. In particular, he referred to s.
14 of the Act which requires that every contract of
apprentice shall be approved by the Director. Mr. Anand
argued that the Board should ndt conclude that the class
standard contemplates decisions made by the grievors which
the governing legislation contemplates will be made by the
Director.
23
While there can be no doubt that the decisions made by
the grievors are significant, we are not convinced that the
kind of decisions that they are involved in go beyond that
contemplated by the class standard. The class standard
refers to "employees who are responsible for performing
promotional, consulting and counselling functions in
relation to the development, implementation and delivery
[emphasis added] of industrial training programs". In our
view, the reference to implementation and delivery is an
emphatic indication that the positions entail direct,
"hands on" involv6ment in effecting the programs. It is
precisely in the context of the implementation and delivery
of industrial training programs that the grievors make the
decisions referred to. The reference in the skills and
knowledge portion of,the c. lass standard to "proven
analytical and problem solving skills" reinforces the
notion that it is contemplated that the class standard
covers positions in which problematic matters will have to
be resolved. The skills and knowledge portion of the class
standard also refer to "thorough knowledge of the technical
skills required in an industrial setting" and "thorough
knowledge of the Apprenticeship and .Tradesmen's
Qualification Act". It is precisely these skills and
knowledge that the grievors employ when they are involved
in matters which entail ratios of journeymen to
apprentices, the assessement of qualifications in carrying
24
out assessments with respect to the applications for
apprenticeship, determining 'eligibility to write
examinations and giving practical examinations.
Moreover, the Industrial Training Officer 1 class
standard, the level in the series below Which the grievors
are classified, contemplates some responsible decision
making at that'level.. Persons in those'positioqs are
expected to "evaluate qualifications" and to "place
registered apprentices in employment available". They are
also required to "check that all the terms' of the contract
are being carried out" and to "monitor apprentices'
progress,, investigate complaints, counsel when necessary
and resolve minor differences between employer and
apprentice". The deqision making responsibilities of the
grievors in relation to the Industrial Officer 2 class
standard, viewed in light of the nature of decision making
responsibilities of persons classified at a lower level in
the same class series, supports the conclusion that the
types of decisions made by the ISCs.refe~red to above, as-
well as their involvement in mediating and resolving the
other matters referred to in the Union's statement of
claim, are contemplated by the Industrial Officer 2 class
standard.
The reference in the legislation to decisions to be
25
made by the Director referred to by Mr.. Anand does not
compel us to conclude that the types of decisions in which
the grievors are involved are not contemplated by the class
standard. While s. 14 of the Act refers to the approval of
the contract of apprenticeship by the Director, and s. 19
of Regulation 36 refers to the involvement of the Director
in decisions with respect to writing examinations, the
powers that are also described as duties of the Director in
section 6 of the Act encompass the entire spectrum of the
duties of the grievors that clearly fall within the class
standard. The references in the Act and regulations to the
involvement of the Director in the matters referred to does
not lead us to conclude that the involvement of the STCs in
these matters falls outside the contemplation of the class
standard where, for ~he reasons outlined above, it is our
view that the language of the class standard contemplates
the involvement of the STCs in these kinds of decisions.
It is also our view that the work performed by the
grievors in connection with negotiating space for
apprentices for the academic portion of their training and
resolving any issues that arise in this context, for
example in an overcall situation, are matters which are
contemplated by the class standard. The class standard
refers to liasing with training institutions and resolving
problems. Given the general tenor of the class standard,
26
and in particular, the reference to the 'implementation and
delivery of industrial training programs in the first
sentence of the class, standard, we cannot conclude that
· these duties fall outside the class standard.
While there is no reference in the class standard to
training functions, it is our.view that this has not been
established as a core duty of the grievors. While Mr.
Labrecque has been 'involved in the training of five persons
over his nineteen years of service, it is clear that the
primary thrust of the training he providesl is the
opportunity to observe him performing his work. While
there is some direct teaching in the traditional sense
provided by him, this must be characterized as. a very minor
.part of his duties. ,The kind of day to day advice that Mr.
Labrecque provides to the other employees in the office,
albiet at the request of his supervisor, is clearly the
kind of assistance that is all experienced employees are
inevitably called upon to provide to their less experienced
colleagues. While this is an area in which' Mr. Labrecque
apparently excells we do not think that training can be
characterized as a core function of his position which
ought to lead us to conclude that he is improperly
classified.
As 'well, we cannot accept that the advice that he
27
provides to his colleagues and the assumption of
responsibility for a particular territory constitutes
assumption of overall responsibility in such a manner that
we should conclude that he is improperly classified° While
it is apparent that Mr. Labrecque carries out his duties
with a substantial degree of independence the evidence
established that guidance is available to him and is
sometimes sought from his regional administrator° The
class standard specifically refers to responsibilities
"within a designated district".
With respect to the enforcement duties performed by the
STCs, it was Mr. Anand's submission that although the
enforcement duties carried out by the grievors clearly fall
within the second paragraph of the Industrial Officer 2
class standard, the two paragraphs of the class standard
contemplate two distinct types of duties, and that the
Board should find that the grievors are improperly
classified if they perform duties that fall outside the
ambit of the first paragraph and within the second
paragraph of the class standard.
This argument was considered in the context of somewhat
similar language in Ministry of Transportation &
Communications & OPSEU (Williamson 133/81 (Samuels). In
that case the class standard for Technician 3, Survey
28
referred to certain kinds of duties and then referred to
other duties prefaced by the words "OR" [emphasis in the
original]. At p. 4 of this decision the Board states:
The Union .argues that the use of "OR" is disjunctive
in this standard, and that an employee's "double
competence" calls for a reclassification. We do
not agree. The grievors do the first two types
of job described in the first paragraph... All that
was needed was a short period of familiarization
for the grievors to take on the "engineering" side of
the job. Therefore, the "double competence" does
not have. a significant bearing the responsibility
involved in the job. The standard must be taken to
mean that, if an employee does at least one of those
types of job, then the employee should be classified
as a Technician 3, Survey. But this does not mean
that doing two of the. jobs calls for a different
classification. The grievors' job, whether they are
doing "legal surveys" on a day or "engineering
surveys", is properly classified as Technician 3,
Survey.
The same matter was considered by the Board in
Ministry of TranspOrtatioh & Communications & OPSEU
(Hobman) (Roberts) 471/81 where other persons in the same'
positions raised the same issue that had been decided by
the BOard in the Williamson case. The Board rejected 'the
Union's submission that they were wrongly classified and
stated that it was not e~tablished that the previous
decision was manifestly wrong.
It was Mr. Anand's submission that the facts of this
case are distinguishable from the Williams case. In
support of that position he relies on Ministry of
· Transportation & OPSEU (Blackwood) 1507/88 (Epstein).. In
29
that decision the Board found that the use of the word "or"
in the class standard refDrring to different duties was
used in the disjunctive sense. The reasons of the Board
are set out at p. 4 of the decision. The Board found that
the kinds of duties described were necessarily mutually
exclusive. The Board states~
It seems to us that the two standards 'cannot stand .
together since the first talks about activities
in which the employee.is required, in conjunction
'with a small group, to deal with problems that are
above average in scope and complexity whereas the
second has employees dealing on their own, with
problems of limited complexity.
Mr. Anand argued that the duties are set out in the
two paragraphs of the Industrial Officer 2 class standard
are similarly intended to refer to separate duties. It was
his submission that ~n light of the removal of enforcement
duties from the STCs and the change in classification in
1979 from a previous class standard that referred to
enforcement duties without a disjunctive phrase, the
reference to "other positions" of the second.paragraph of
the class standard is a clear indication that this
paragraph was i~tended to refer to separate and distinct
duties.
Even accepting that it is appropriate for us to hear
and consider this extrinsic evidence and we were to
conclude that there is an intentional separation of the
duties in the class standard to deal with two different
types of positions, it is our view that this evidence does
not advance the Union's case. If the Union is to be
successful in its argument that the grievors are improperly
classified on this basis it must establish that the
grievors perform core duties that fall outside the first
paragraph and within the second paragraph. In our view,
the evidence cannot support such a finding. The grievors
are not required to carry out all enforcement functions.
'In particular, they are not required to carryout functions
involving the use of warrants. The involvement of the
grievors'in matters such as attending court and direct
liason with the enforcement personnel are two of seven
duties referred to in the position specification which, in
total, involve 5% of,their time. The manner in which Mr.
Labrecque described the enforcement duties makes it clear
that the role of the grievors with respect to enforcement
is one of support to provide a cohesion of services with
those of the enforcement officers. The requirement that
the grievors check to ensure that the appropriate ratios
are being maintained when they are at the premises of the
employer in connection with apprenticeship and training
matters and that they pass on information and provide
assistance to the enforcement officers is consistent with
their consultation role in relation to the delivery and
implementation of industrial training programs. The
31
grievors are obliged to be knowledgeable with respect to
ratios and other matters under the Apprenticeship an~
Tradesmen's Qualification Act and, accordingly, there is no
issue of additional knowledge required to carry out these
duties.
We are satisfied that the limited enforcement kinds of
duties that the grievors perform'on a regular basis are
reasonably encompassed by the first paragraph of the
Industrial Training Officer 2 class standard. To the
extent that the grievors are involved in direct enforcement
duties, these cannot be characterized as a core duty of
their position.
For all of the foregoing reasons, it is ou~ conclusion
that the evidence does not establish that the grievors are
improperly classified. Accordingly, the grievances are
dismissed.
Dated at Toronto, this 7t-h da~f August,-1991
S.L. Stewart - Vice-Chairperson
E. Seymour - Member
M. O'Toole - Member
.. Position* Speclflcatlun & ss Alloca
APP~END.TX A. (Refer to t)~ck of fo~ ~or compiedon inst~ions)
only
Oivhion
To .p=omo~e ~tea~e~ ~mp~o~eg participation.
~sslsC ~div~ua~s tK~ouga ocCUpational
=7 do,Ag so s~dLflg the ava~zabL1it
employe~ c[ien~ lroups through Apprenticeship
~n a (medlm-sL~ed) .~lnlst~ responsible for tncreasLng the provincets
contribute ~o On~a:~o 8. economic g~o~th th~oug~ a network o~ other sk~l[s
sC~eholdecs. The ~c~nen~: ' ' -
1. Fosters ~ increased a~a~eness of the,Appgenticeship ~ranch p~ogr~s as a skills
tratn~s concept
, addressing employers, ~ade a~d business. Stoups or o~8~iza[[oas, such
Ch~be~ cf Code=ce, C.[.T.C.s. L.A.C,'s to p~omoce fomal ~ga[nin~ as a
me~s of skills develo~en~ t~cough emplo~enC, and specifically the
, availab[I[~ ~d advocates of the Apprenticeship Progr~; ....
m~ng .p~esen~aCions us(aS a~ailable resources auc~ as pr~ot[ona[ ~tsplays,
diverse ~n~eres[s such as educa[[ona~ i~ticu~ions, boards ~d school groups,
native, e~Ac, ~om~u amd . yo~ grou~, service .clubs, home ~d school
assoc~aC/on~, _secoaaar~. SC~OOA .~ ?~$~ge career ua7 preStOS,
exercises, c=aae occup~ona~ or ~nGUS~ClS~ exp?s~kions, C~unlty
ne~o=KLn~ ~i~h oChe~ ski(is t~a~ning s~ake~o~ders, ~uch as Futures.
Offices, ~y calZe~e~. ~ZC, to c~ati~ pco~c~ g~L~elL~es 8s woll
acting ~s ~ ~egou~ce ~ ~n~o~u~on o~o~er CO busines~, Jndu~cc~, labour,
edu~a~i~nal ~s~CuC~o~ b~. ~aSnta~n~n3 contact ~h ~he~e ldea~ed
~xo~at&an on other skills t=azntng pcagr~$. .
2. Provides. ~e~ advice to ~ploye~s, on a one-to-one basis 'as well a~
associations, off~ee requ~r~n~ ufl~que. ~d [~ovat[ve solutions to
acc~p[~s~eflt of Identified ob3ect[ves
. gathering c~un~t~ ~d c~p~Tespec~f/c da~a; (cost'd)
Regulations_ as well as a familiarity w/th ocher ralevaflC lestslation such as
[mploy~ent xta~dsrds Act, ~tc.; thorou~ undecst~dl~8 o~ ~hp Ap~en~iceship B~anch
~rades-~raIntn$ bo~2 p~ovinctally and federally~ ~conc d)
[. S;gna~r~ ]mm~tste Su~ Oa~ Mlni~ Offl~a[
' ~ Eff~five Cate
I
Dectslon-makin~ involves t~t~ employer's tratntn~ needs, lncludln~ the analysis
1. of occupational res~onsibili~tes, identification of vocational deficiencies and the
d~velopm~n~ o~ det. a~led ~ca[nins plans to meet employer requirements.
Repor~in~ to t~a Aastztan~ H~et and/or Dis~ric~ Hanaser, posiCtan rocks under
teneral direct[on ~d Is re~ponsible for cou~s~lli~t p~spec~ivo and active
apprentice trainees, p~ovidi~ advice and ~uldance and as~essia~ credentials.
~on!~ors ,th! .~{~ere~ce .to proi=~ 8~Lidql/nes ~ithln the Apprenticeship and
[EG~esm~n s q~allJlc~tlon
identifyi~.c~u~ity trsini~ ~?~?~; im-lica~io~ of factors a~f~c~ln~
· snalyztn~ ~e n'um~, resource ~eve,o~ .
the buszness community such as znterest ra~es, $over~ent policy, new
technoIcs£es;
· assisting em~loxers to snalyze the traintn$ implicatton~ ~f corporate
decisions, i.e[, introductioa of new equipment, intro~uculon o~ new
produc~-line~ ......... ~ann£n~ b~ revie~i~ current
advisin~ P Y ....... . ~h~ sk' led labour Eorce i~ the
~mployer s ~o~kplac~;
assessin em loyer s tralnin~ needs, including: analyzing
~eco~eng~ -~ ....... - ...... ~-ess the identified emploTl~
~ n~e~s i.~. ~o cec~ificatlon, ~ ~ ce
pa~icipa~ing__!~ .a ~embe~..~n -il';il~liil Tcaiain- ~o~it~ees ICITC's), in
otde~ ~o ~o la 8 ......... ~ .~ rtassu~inc~ that direction is
provide bot~ prooe~ GiIec~lon ~ w~ --- . .....
C0~C2 on issues-re: Agprentice~hiP; reco~ena[nS al=erna~ive prog~s aha
A rentlceship tden~[iied as inaop~opeia~.
incentives, ~hen P~ ..... c,~--*- -~ exis[ln- reeula~ions ~o dete~fne
cap~btlf~y ~oP~ee~ or exceed provincial ~ratntnS s~anda~ds,
3. Ac~s as a counssllo~ by obiectivelY p=ovidinS Info.etlon and guidance
varlet7 of ~dividuals blt
relevan~ .Gna ac~a~a~l~ goal_~j~zv,,..~-.cac~ca-i~ e~erlence; advis~nS
~uallflcaclons, as!~sin~ a~a~_~-,,~.r :m.~;caCio~i' I e. financ~ai
rmilicaCions, such as u.I. oefle~ltS, slgn-up, ~av~n$ ~- ,
. laencltyl~ c~olu~efi ...... ~:.. -Iterna~ives or re~errln~ appiican~
l~in~, up~radin~ eauca~lon o~ o~oupa~on
abilities ~.~ect!_. l-.~ .... to' active apprentices' expe=ie~ci~
. covidtn iavlce ~u_ '~ ..... thtnktn~ abou~ quittin~
need tot ~fo~ation ~d pcovidtn~ in~omaCion accuracely~ sutzzc~enc~7 aha
in ~ ~nde~sC~dab~e.m~er; _._~ ._ Cac~ii[caCa oi Qualilice~Lo~ ~pplicants,
assassin c~e~entL~LS, pgasan~ vi ...... t.~de of Ontarid; validatin~
' o~tefl ~iSr~C .... ~.. .... nd co--art.- a~ains~ available p;gqe~eflcs~
doc~efltaclon oy ~nvea~!,,~ ~_ ~e~e~/e~ce' advtsin~ c~dl~aces cz
, deci~ions, ~o~encs ~r oa~e~ v~-.~' ~[/ble e~inactons as ~ell as
- ay n c~didate~ --. r ..... .
sc~ooks, cordley ~u~ ~=.... or vocations' available cmtou~n..~gu
advise ~e~raln~ .posm~ ~"~em ~o disseminate lnfo~a~io~
' Oevolopmeflc O~i _ ~ .... ---:-=stlon'e~c Co pcoviae,ini ...
Futures, u~a.~mpio~n~ a~u= ~ of 'ces-~usib/liCies an~ pcov~ln~
order ~? tastily I~Ae~_.,~. o~.~...ticall~ ad~isin~ delivery asents ot
~Ae lR~ri~e~ -.~. ' 9 . ~ .- ' r~ links es
4. Honitors the.. erie u'reme~ts withi~ ~e ATQ~ by:
$uideltnes, HlnisC~ at.deeds ~d lesislaced fei ~
2~ assessln academic and pcac~ical e~etience;
ze~ig~ering appren~i!as bY ..... ,-~- --a -u--~[m~ al~a~na~iva sources
t=ainin~ ........ ---J ~ a T -.. ~Lternat~ve such as night
¢ounsell~=~ c~d~aaces wmo ~ave zaz~ -.~
schoo~ u rad~n~;. ,- ........ t~. achievemen~ tests") in codec to assess
qualiti ' ; ........ ~ -- ~nsucin- employa: kas
~nsu=in~__p__}._ a--to-ciat~ train~q~ equtpmen~ an~,__} ,- ~he'resolu~io~
concenCl?us ~s~ae~ ~.; -~?;:-~-~tfl-~ln mind the
ns~ot[~t K in i~ovflCive solutions, lan ~
individuals; realstratiofl, renewn[ fee, ex~iflation
en~urin~ p~oper a~i~is~a~?~ oi fln~ncial transac~icns such as ap~Iic~ble
' lees collected and ~oc~en~e~
fees;
monitoring prozress of apprentice through reaular- follow-up visits or
monitoring o~ doc~e (~'d)
APPENDIX B ~-- ~ ~
05355
~NDUST~A~ ~NZNG OFFICER
porfornttng p=ouo~Lond~t, c~sul~q ~d ~sell~g f~c~Eogs related ~o
~zOgr~. g~ a des~nated d~r~C~ ~ey v~zt employers ~ pro. re
~6 expl~ various ~n~nq pt~r~ ~d ~n~ci~ ~s~st~ av~e.
rant ~d oaq~nq ope~a~s o~ va~ tr~ng adviso~ hero,ks. ~e~
~u~8 ~d o~he~ a%~led p~lLc agencies ~nvo~ed tn indus~zi~
~so ~u~d ~ ~s class a~ pos~ons o~ e~loyees who enforce
~e p~ovLsEons of ~e ~p~n~cesh~p ~d Tra~sMn's 0ua~Ef~ca~on Act
assoc~a~d ~tLons ~Ln a de~gna~d ~eg~on o~ ~e pr~n~'.
a=~qe ~e se~ng o~ s~s, asses2 En ~e p~eparat~on of ~e case
~e pEosecu~ng at~y ~d p~vi~ evE~n~ ~ ~ ~ a c~n wi~ess.
~ese empl~euo also E~n~ sLtua~o~ wh%~ in~Ca~ ~ss~ble v~o~ation
pr~ ~~ca ~d Ln~e~ ~e p~v~s~ns ~d ~tent of ~a ~ ~d
~oro~h ~ledge o~ ~e ~n~caZ sk~lls req~ed tn ~ tnduStrLal
t~ing needs ~d ~lop ~q~d proqr~ ~ho~ough ~owledge of ~e ,
av~l~le tnd~tr~ t~nq p=~z~ ~d ~ades ~=~n~nq ~thodo!og~es~
ex~Zen~ ~nte~e~Scfl~ ~ns~nq ~d c~ca~on sk~ls~ pto~n
~c~ ~d p~en sc~v~g sk%lls.
AUgust ~4,~979