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HomeMy WebLinkAbout1990-2000.Jones, Halyk et al.93-04-30I ONTA R~O EMP).. 0 yk-S DE LA C OURON/vE CROWN EMPLOYEES DE L'ONTARiO GRIEYANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~$0 DUNDAS STREET WE~T, SUITE 21~, ¥ORONTO, ONTAR$O. MSG IZ8 TELEPHONE/~LE~HONE: (4 lEO, RUE OUNDA$ OUEST, BUREAU 2 tO0, TORONTO /ONTARIO). MSG IZ8 FACS~ILEZ~COPIE , ~ ~ 325-I596 ~000/90, 2001/90, 2068/90, 2107/90, 2110/90, 21~2/90, 2113y90, 2117/90, 2118/90, 21~1/90, 2122/90, 2134/90, 2158/90, 2160/90, ~286/90, 2287/90, 23'21/90, 2322/90, 2349/90, 2350/90, 2351/90, 2357/90, 2363/90, 2372/90, 2399/90, 2460/90, 2506/90, 2507/90, 2508/90, 2531/90, 2545/90, 2547/90, 2548/90, 2558/90, 2559/90, 2588/90, 2589/90, 2590/90, 2593/90, 2615/90, 2642/90, 2665/90, 2680/90, 2704/90, 2705/90, 2772/90, 2775/90; 2776/90, 2777/90, 27~S/90, :2782/90, 2829/90, 2830/90, 2912/90, 2936/90, 2984/90, 2985/90, 2989/90, 2991/90, 2992/90, 2999/90, 3049/90, 3060/90, 3061/90; 3074/90, 3087/90, 3088/90, 3098/90, 3138/90,'0031/91, 0059/91, 0777/91, 1.098/91, 1236/91, 1674/91, 1686/91, 1804/91, 1849/9i, 2719/91, 2932/91, 0301/92 IN THE MATTER OF AN, ARBITRATION Under THE CROWN EMPLOYEES'COLLECTIVE B~RGAINING ACT Before . THE ~RIE~-NCE SETTLEMENT BOARD BETWEEN OPSEU (Jones/Halyk et al) ~ievor - and - The Crown .in Right of ontario (Ministry of Natural Resources) Employer BEFORE A. Barrett Vice-Chairperson I. Thomson Member M. O'Toole Member ~OR THE T. Ha~wen GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & SoliCitors FOR THE A. Rae EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HE~RING Septe~uber 22, 23~ .24, 1992 Nove~%ber 26, 1992 February 10, 12, 17, 18, 1993 This is a classification grievance of some 50 biologists throughout the Province who are classified in the Scientific and Professional Services category as Biologists 2b. A list of the grievors covered by this decision is attached as Schedule "A". On consent, we heard evidence from two representative grievors and their evidence will apply to all. Mr. Jones is the District Biologist in the Sault Ste. Marie District, which forms part of the Northeastern Region. Mr. Halyk is the District Fisheries Biologist in the Cambridge District, part of' the Central Region. A~.~hough there are significant similarities in the work of each grievor, differences arise by reason of geography: Mr. Halyk works in a populous, highly developed district, and Mr. Jones works in a bigger, less populous and less commercially developed district. Mr. Jones is responsible for both fish and wildlife management, whereas Mr. Hatyk specializes in fisheries management.·The class standard for Biologist' 2b is set out below: CATEGORY: Scientific and Professional Services GROUP: SP-10B Resources Planning & Management SERIES: Biologist CLASS CODE: 14024 CLASS STANDARD: BIOLOGIST 2b This class covers complex professional biological work performed under administrative direction and reviewed only on the basis of results produced and objectives achieved. Incumbents at this level assume full responsibility for a total biological programme of fisheries and/or wildlife management area and/or other biological programme of equal complexity. They prepare and/or revise the complete long-range management plans~ establish their own internal priorities and ensure the orderly execution of such programmes. They may also be required to supervise junior professional staff. SKILLS AND KNOWLEDGE: Ability to analyse and identify biological problems and recommend management procedures to solv~ them; ability to prepare and develop long-range management plans; ability to develop and organize a defined' biological management programme; ability to deal effectively with officials of other agencies and, industry on biological matters; ability to initiate projects and write technical reports; ability to train and supervise junior biologists and other technical staff. January I,~ 1971" The standard has not been revised since 1971,-and the grievors say that between 1971 and the Fall of 1990, when~these grievances were filed, the job has changed dramatically such that they now have significant additional duties not contemplated when the standard was written, which means there is a substantial variation between the. standard and the actual duties of their current job. These biologists seek a Be~ order requiring the Ministry to find or create a new classification for them. 'It is conceded that these grievors do the type of work outlined in the class standard, but the addition of new duties and new methods has changed the' job completely since 1971. The.first significant change is that there has been much greater public involvement in environmental issues, particularly over the last 3 decade. In the old days plans and policies were simply explained to the public after they had been created. Now the public demands, and is in fact encouraged, to provide input at every stage of the planning process. .Interest groups, conservation authorities, volunteers and municipalities are all now involved in the Planning process. In the early 1980's, the Ministry introduced an integrated approach to ~onservation, so that fish and wildlife biologists now work closely and in cooperation with foresters, engineers, lands people and conservation officers. This integrated approach includes long-ran~e~planning and field enforcement. Now~ach discipline has to be aware of, and protect the interests of the others. Most significantly, environmental protection laws have been expanded and significant new enforcement tools are available to the biologists to protect fish and wildlife habitats. Now, through a system of approvals, anyone wishing to develop or alter land or watercourses must satisfy strict requirements that there be no net loss in fishing habitat as a result of the changed use. Anyone requesting approval for a plan of subdivision, a zoning bylaw change or a severance must submit plans in advance for review by land use planners, engineers and biologists. The biologists, ~mong others, also have input now into official plans and amendments to official plans under the Planning Act. They can withhold approval of plans or place conditions upon approval. In the old days the biologists would not see a plan until it had already obtained .several approvals'from other environmental professionals. Now, with the integrated approach, all professionals are involved with input and review'at the very earliest stages. At the time of his grievance, Mr. Halyk was spending as much as 80% of his time reviewing development plans for compliance with the Federal ~isheries Act, the Lakes and Rivers Improvement Act and the Public Lands Act. The biologists do not have as much time now to do deer and fish surveys, fish stocking and Supervising the~moose hunt, which used to be a large part of the job. Public speaking and public education Were always part of the job, but soliciting public i~put through open houses, and the preparation' and' use of questionnaires is a newer development. Province-wide government initiatives in the early 1980's included long-term integrated resource planning far into the future. As Mr. Jones put it: "Our focus changed from'gatherers of information to strategic planning for the future." The grievors say they are now required to have cross,disciplinary knowledge in areas such as engineering, hydrology, forestry and.land use planning because of the integrated planning and review process now in place. There-was~ a revised position specification drawn up for Mr. Jones' position in 1988, and Mr. Jones concedes that it accurately sets out his duties, and the skills and knowledge required to perform them. His position description is attached as Schedule to this decision. Attached as Schedule "C" is Mr. Halyk's 1987 position Specification which he says is substantially.accurate, ~except that he" spends more time on plan input and review than is set out in his position specification, and he also does .a small amount of fish stocking which is not mentioned. The jurisprudence of thi~ Board relating to class standards and the appropriateness of B~rr~ orders where there have been changes over time in job duties is lengthy but consistent, bird,. GSB #1349/87 (Slone), is often cited with approval for the proposition that "the,addition of new duties may take a job out of its original classification, ibut only where those duties are of such a kind or occur in such a degree as to amount to a different job altogether .... the propriety of a classification is a factual issue to be decided on the merits of each case." "Itis recognized that cl~assification standards, by their very nature, must be drafted in :general terms and are intended to deacribe only the essence of the work to be performed. They cannot be expected to detail'every specific task which may be involved"~ (Brown, GSB #1806/87 et al (Ratushny)). "Moreover, it must be recognized that the'nature of a job'and the manner in which it is performed may evolve with time: ...nor are class standard~ intended to designate tools or met.hods by which employees are to fulfil thPir duties" (Alexander, GSB 9803/88 (Verity)). , .. Furthermore, percentages of time spent on duties not included in the class standard are not'necessarily helpful to reflect the responsibility, complexity or the degree of skill or training required to perform the duties. "There is no reason,· in our vieW, to interfere with the longstanding jurisprudence of this~Board that a substantial difference between the job being performed and the job described in the Class Standard is'a pre-requisite to a Berry Order. Whether or not there is a 'substantial difference' and what constitutes a 'substantial difference' will be a matter for the Board to determine on the facts of each casa" (Dumond, GSB #1822/90 (Kaplan)). In McIntvre, GSB ~1280/86 (Fraser), it was found that computerisation had changed the job to the extent that the class standard was insufficient in failing to refer'at least in ageneral way to this added, complex responsibility. There it was noted, at page 12: "It is clear from this and other eVidence we have reviewed respecting this program that from one perspective, the overall job of d~tail design in this area may be said~to be simplified to the extent that manual calculations and consequent revisions are done automatically by the computer. However, it is also clear that operating the program, particularly in view of its 'bug' ridden design, is a significant and reasonably complex new.skill, which does not ·ease the 'life of the technician, and which is difficult to the extent that such operation is generally limited t° those technicians at the working level who can learn to work around the bugs." Even if a person performs most, if not all, of the core duties of the class standard, he Or she could still .be.said to be improperly classified if the grievor "has acquired a degree of expertise through qualltative changes in his job" (Fenske, GSB #494/85 (Verity)). "An evolution in a job is not sufficient to warrant a reclassification. The task of the Board is to look at the Class Standards applied to the grievors and see~ if they still capture the essence or the nature of the job" (Bell, GSB #2199/91 (Knopf). In that case, landscape workers were required by their class standard only to have a Grade 8 education and no specific certifications. On the other hand, the job specification demanded certificates which carried with them a minimum of'Grade 10 education and some extensive training. There the Board took note of a requirement in the position specification that incumbents have a working knowledge of job-related safety requirements as specified by the Occupational Health and Safety Act, Pesticide~ Act, Environmental Protection Act, Transportation of Dangerous Goods Act and WHMIS. The Board found, at pages 10 and 12: "At' the most, these involve one day'in- service training and/or the use of manuals available to the grievors in the office. In fairness, it is our conclusion that this is contemplated by 'the Class Standard requirement of .'working knowledge of the Department's horticultural methods and practices, and the tools and equipment used'. It is further contemplated by the phrase 'they are required to observe certain safety precautions' 8 in climbing and felling trees, running equipment and using horticultural chemicals'. The Standard itself thus contemplates safety requirements'which are now articulated and set out in the Acts listed in the Job. Specification and thus fall within the Class Standard .... The more heightened qualifications demanded of incumbents reflect society's current concerns and sophisticated knowledge of the use of hazardous ~hemicals. and equipment. But, this is not reflective of a change in the nature of the job so as to take it outside of. the general nature of the Class Standards. Class Standards are, by definition, general in nature and allow for the type of flexibility necessary to cover a variety of duties and tasks in a'large Ministry. They are not expected to be detailed or so specific that they cannot adapt to difference in the delivery of services that is inevitable over time." Even where employees classified under the same class standard have jobs that are substantially dissimilar in their distinctive and essential elements, they can still comfortably fit within the same class standard "so long as they satisfy the broad criteria set forth therein and do not differ from each other in a level of initiative, responsibility, skill and ability reqdired to perform the work" (Kernick, GSB #509/89 (Roberts), at page 5). In this case, the union argues that the class standard requiring the incumbent to "assume full responsibility for a total biological programme of fisheries and/or wildlife management area" is .geared to the programmes that were in existence in 1971, that 'is; monitoring, surveying, limited enforcement duties and fish stocking. Now, in 1990, they have three new categories of duties. They manage public input into district planning; they manage some of the work of outside parties such as volunteers and conservation authorities; and they have input and control over thespians of' outside developers. The union says ·these duties were not contemplated when the class standard was drafted, because·they were not performed at that time, and they require more complex skills. Union counsel also says there'is no mention in the standard of handling and managing public input, nor of the public relations duties involved in attending public meetings to explain the~work of the Ministry. In this regard, we note that the Class standards f0r Biologist 1 and Biologist 2a require them to: "Attend local sportsmen's associations and other functions to explain wildlife ~conservation or public health practices; generally acquaint the public with ministry·policy pertaining to fish and game management or pollution control...". "...ability to.work with·technici&ns and members of the public in an advisory capacity...". We also.note that the Biologist 2b must have the ability "to train and supervise junior biologists and other technical staff". We assume that the ability to train and·supervise people performing those duties must subsume the ability to do them oneself. As well,~public speaking and public education have always been part of the job of these biologists and would appear to be encompassed in their responsibility to "assume full responsibility for a total biological programme". With respect to the difference between giving information to the public and receiving it, we are unable to conclude that the latter requires greater skills than the former. ~ The real issue here is whether or not the changes in the manner in which these biologists manage the fish and wildlife resources in their districts are Qualitative changes requiring complex new skills. The employer acknowledges the changes'in biologists' duties that have evolved over time but says the duties are no more complex, nor are the skills required to perform them, than those of a professional biologist responsible for "a total biological programme"..Peripheral knowledge of other disciplines does not turn a person into an expert in that discipline. They are not taking the place of those experts or doing their work for them. The ability to participate with other professionals does not require a separate skill other than the "ability to analyse problems" set out in the class standard. With respect to the broadened legislation and much stronger enforcement tools, employer counsel suggests that the job is easier now than it used to be, Whereas before the biologists had to use coercion and persuasion to conserve habitats, now with "teeth" in the enforcement tools, it is easier to manage the resources. The requirement in the class standard to "organize and initiate projects" covers a wide variety of duties performed in a wide variety of ways. Employer counsel urges us to read the class standard holistically to find that these biologists are responsible 11 for "complex professiona! biological work...to assume full' responsibility for a total biological programme...to prepare and/or revise the complete long-range management.plans..'.have the ability to deal effectively with officials of other agencies and industry on biological matters...ability to initiate projects and write technical reports..~ability .to analyse and identify biological Problems and recommend management procedures to solve them." Counsel argues that all of this planning, analyzing and problem- solving referred to in the standard covers all of the duties performed by these biologists. Given the very high requirements of the Biologist 2b class standard for~ independence, initiative and professionalism, we cannot find that there has been such a qualitative change in their job duties over the 'last 20 years that they now require more complex skills to perform those duties. Professionals, by their very nature, are required to keep abreast of and adapt to change in their field. Integration with othe~ disciplines is expected of professionals .who work in an inter-disciplinary milieu. A lawyer, for instance, may have to learn a lot about particular aspects of plumbing in order Co effectively represent a plumber alleged to have performed incompetent work, but that does not make the lawyer an expert in plumbing, nor e~en competent t© change a washer on a tap. We cannot find on the evidence that the grievors no longer fit within their class standard, nor that thei~ duties now involve any 12 more than 'responsible, complex biological work. Therefore these grievances must be dismissed. Dated at Toronto this 3otb day Of TApril"~ 1993. A. Barrett, Vice-Chairperson ,,I Dissent" (dissent attac'hed) I. Thomson,~ Member M. O'Toole, Member