HomeMy WebLinkAbout1990-1774.Page et al.92-09-27 ONTARIO EMPLOY~:$ DE LA COURONNE
CROWN EMPt. OYEES DE L 'ON TA RiO
GRIEVANCE C,OMMiSSION DE
SETI'LEMENT REGLEMENT
BOARD DES GRIEFS
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IN THE MATTER OF AN ~%RBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE EARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Page et al)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General)
Employer
BEFORE: W. Low Vice-Chairperson
T. Browes-Bugden Member
A. Merritt Member
rFOR THE N. Roland
GRIEVOR Counsel
Cornish, Roland
· Barristers & Solicitors
FOR THE D. McKeown
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Solicitors
HEARING May 22, 1992
DECISION
Mike Page, the Grievor, is employed by the Ministry of
the Solicitor General as a caretaker. He is classified as a
Buildings Caretaker 1. He grieves tl~at he is improperly
classified. In setting out the settlement desired, Mr. Page
requests "that I be re-classified so that my wage rate in relation
to those of Caretakers 2 and 3 is set at an appropriate level.
This payment should be retroactive to January 1, 1990.".
The facts leading to this grieval~ce are not in dispute.
The Grievor was hired in November 1981 as a Caretaker and was
classified as a Buildings Caretaker 1. He worked alone as the
caretaker at the Guelph detachment of the Ontario Provincial Police
headquarters. In October 1987, Herbert Barefoot was hired on a
part-time basis for a short period to as~ist the Grievor. Mr.
Barefoot was classified as a Cleaner 2. In January 1988, Mr.
Barefoot went from being a part-time employee to a full-time
employee but kept his classification of Cleaner 2. There was a
wage difference between Building Caretaker 1 and Cleaner 2, with
the Cleaner 2 attracting a lower wage. This changed in January
1990 when the pay equity plan which was negotiated between the
Employer and the Union came into effect.
The pay equity plan increased the wages of certain
classifications of employees, among them Cleaner 1 and Cleaner 2,
2
with the result that persons holding classification of Cleaner 2
came to have a higher wage than persons holding the classification
of Building Caretake~r 1. More specifically, Mr. Barefoot, who held
and holds the position of "assistant caretaker" and has a
classification of Cleaner 2, came to have a higher wage than the
Grievor who holds the position title of "caretaker" and has a
classification of Buildings Caretaker 1. Mr. Page grieves, in
essence, because his "assistant" is being paid more than he, and
because he is, in relative terms, falling further behind.
It is agreed on the part of the Union that the position
specification for the Grievor's position, caretaker, accurately
sets out the duties and skills related to the Grievor's job. It is
also agreed on the part of the Union that the class standard
covering Buildings Caretaker 1 accurately describes the role and
functions performed by the Grievor. We are asked, however, to find
that the Grievor is improperly classified, and to make a Berry .
order to reclassify him in order to restore an historical wage
relationship as between the Grievor and Mr. Barefoot, the assistant
caretaker.
The Employer has raised a preliminary argument that this
Board has no jurisdiction to entertain this grievance. It is
argued on behalf of the Employer that the gist of the dispute is an
allegation that the relative pay as between the Grievor and the
3
assistant caretaker is inequitable, 'and that the use of the
classification grievance is merely an artifice to seek an order
which would in essence undo or re-write the pay equity plan that
the parties have negotiated.
The pay equity plan, once negotiated and agreed to, is
deemed to be approved by the pay equity co~mission, and pursuant to
s. 13(9) and (10) of the Pay Equity Act, 1987, as Amended, becomes
part of the Collective Agreement. S. 13(9) and (10) provide as
follows:
"13 (9) A pay equity plan that. is approved under this
Part binds the employer and the employees to
whom the plan applie:~ and their bargaining
agent, if any'.
(10) A pay equity plan that. is approved under this
Part prevails over all relevant collective
agreements and the adjustments to rates of
compensation required by the plan shall be
deemed to be incorporated into and form part
of the relevant collective agreements."
It is the contention of the Employer that we have no
jurisdiction to entertain this grievance because if we were to make
the order requested, it would in effect undermine the agreed pay
equity plan and would be contrary to the general principle that
arbitration boards, in interpreting and applying collective
agreements, must apply the general law of the land.
The Employer makes an alternative argument that the Union
4
should be estopped from proceeding with this classification
grievance as the issue has already been visited in the course of
negotiating the pay equity plan, 'and the Union must now accept the
result of its bargain, notwithstanding there may be individuals,
like the Grievor, who will not be happy with the result.
In our view, this Board does have jurisdiction to
entertain this grievance. The Crown Employees Collective
Bargaining Act expressly confers a right to grieve classification.
This Board's jurisdiction to hear a classification grievance is not
circumscribed by the nature of the remedy which the Grievor seeks.
It is the jurisdiction of the Board to decide grievances and to
determine an appropriate remedy. While the Employer's argument is
.based 6n an interpretation of the grievance statement inferring
that what the Grievor's seeks is an amendment to the Collective
Agreement which this Board does not have jurisdiction to grant,
there is nevertheless a prime facie arbitrable grievance of
improper classification.
As to the merits of the grievance, it is contended on the
part of the Union that, notwithstanding that the class standard and
the position specification fit, the Grievor is improperly
classified. The ground upon which the Union relies is that the
Grievor is paid a lower wage than his assistant, a circumstance
which, it is argued, constitutes a classification problem. The
5
Union relies on the case of Anstett. et al and The Ministry of
Correctional Service~ (5/85, 8/85, 15/85, 7/88, 318/88, 360/88,
1433/88) a decision of vice-Chairman Knopf dated January 4, 1991.
Our attention was drawn to the following at p. 22 of the Decision:
"...While it is true that wage scales are not
determinative in classification cases, the purpose of a
classification scheme is to ensure the proper internal
integrity and hierarchy of jobs.. It makes no sense in
any kind of a classification scheme to have someone being
supervised by another who is in a lower wage scale. Wage
scales are supposed to reflect the reporting hierarchy.
As said by Professor Swinton in Edwards and Malonev,
supra, at page 11: " .... the classifications have been
designed for a purpose .... the aim being to preserve the
morale and status concerns of those more highly qualified
in a particular field of endeavour." In the facts of the
case at hand, we have skilled Journeymen Foremen
supervising the work of non-skilled Industrial officers
who are classified higher than their supervisor. The
fact that a "supervisor" is paid lower than his supposive
"subordinate" indicates that there is a classification
problem. This was accepted in the Heslinga case. Hence,
we are persuaded by the Union's argument that the
Maintenance Foremen Class Standard cannot properly be
applied to the Repair Shop Foremen."
We note, however, that in the Anstett case, the evidence
disclosed that the class standard did'not fit. That fact is the
classic component of misclassification. I take the comments in
relation to wage scales in the Anstett decision to be an
observation of another fact which sezwed to reinforce the
correctness of the finding that the class standard was
inappropriate in that case, and as such I would consider the
comment of Vice-Chairman Knopf to be obiter.
It is urged upon us that the fact that the person holding
the position of assistant caretaker and classified as Cleaner 2 is
earning a higher wage than the Grievor who holds the position of
caretaker is sufficient in and of itself to lead to a finding that
he is improperly classified notwithstanding that the class standard
fits. With respect, we cannot accede to this proposition. While
it may be desirable in the interests of hierarchical consistency to
have wage structures which are consistent with title or position
hierarchies, we are not prepared to accept the universal
proposition that where such consistency does not occur, there is a
misclassification. A classification problem, in the sense that
certain persons may view the system as unfair, cannot be equated
with a misclassification. These parties when striking their pay
equity bargain made a determination between themselves that a
Cleaner 2 should be paid more than a Buildings Caretaker 1. The
parties had their reasons for coming to this conclusion and while
the bargain may have led to a classification "problem" in the
colloquial sense, we have no jurisdiction to re-write the bargain.
It is a matter for the parties when next at the bargaining table to
amend the agreement if they are of a view that this particular
aspect of the pay equity plan was misconceived.
It strikes us that the source of the problem lies in the
preamble to the Buildings Cleaner and Helper, and Buildings
Caretaker class series. In the preamble for the Buildings
7
Caretaker series we find the following:
"In some situations, this series may be used to cover
positions ~f caretakers who work on a shift basis, i.e.
where more than one caretaker i~ employed in order to
assure that the building is maintained during the evening
and/or night. However,. in these cases the personnel
concerned must perform all the duties normally required
of the caretaker, e.g. checking the furnace, minor
maintenance and repairs, building security and
requisitioning supplies. Where more than one employee is
employed on the same shift, or where the shifts overlap
on more than one employee's position cannot be allocated
to this series."
Mr. Barefoot's and Mr. Page's shifts do overlap, and it
would appear that it is because of the above provision in the
preamble that Mr. Barefoot, notwithstanding his position title of
assistant caretaker, was assigned to the Cleaner series. The logic
of relegating a person who is a caretaker to the Cleaner series
simply by reason of the fact that he works an overlapping shift
with another caretaker, does not leap out at one. Here it appears
to have created the anomaly in wages with which the Grievor is
understandably unhappy. The gist of the grievance appears,
however, to be not that the Grievor is not being properly paid but
that another employee is being paid too much in relation to what he
is paid.
The foregoing does not, however, lead us to the inference
that the Grievor is improperly classified. On the agreed facts,
Mr. Page is properly classified, and while ti~ere is some appeal to
the argument that as a matter of policy, persons designated as
assistants should not be paid more than persons holding the
position title simpliciter, we do not have jurisdiction to rewrite
the bargain that the parties have made in order to give effect to
such a policy. That Mr. Page has a "grievance" in the colloquial
sense is unquestionable. Regrettably, his remedy, if any, is not
to be found in this classification grievance. We would strongly
recommend that the parties negotiate a method to eliminate this
anomaly. The grievance will accordingly be dismissed.
DATED this 2?ch day of August- , 1992.
'
W. a i rpe r son----~
~embers comments to follow.
#
T. BROWES-BUGDEN- Member
A. MERRITT- Member