HomeMy WebLinkAbout1991-1283.Bors et al.92-03-26?
' ONTARIO EMPL 0 YES DE LA COuRONNE
· f'~ CROWN EMPL 0 YEES DE L 'ON TARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
iBO DUNDAS. STREET WEST, $O]TE ZIO0, TORONTO, ONTARIO· MS0 7Z8 TELERHoI~.'E ?E~.E.~O~E
180, RUE DUNDAS OUEST, rtUREAU 2100, TORONTO (ONTARiO). MSG IZ8 ~AC.$1!.4~LE F_L~COp:
1283/91, 1397/91
IN THE MATTER OF ~%N ~EBITRATION
Under
TH~ CRONN EMPLOY~B~ COLL~TZF~ B~INING ~CT
Before
OPSEU.(Bors et al) ·
The Cro~'in'R~ght of Ontario.
(Minist~,of Gover~ent SedUces)
BEFOg= A. Barrett .. -Vice-Chai~erson
H..Lyons Me. er
D. clark ~ [ Me.er
FOR THR ~ C. DasSios. --
GRI~OR Counsel -
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE B. Humphrey.:
EMPLOYER Counsel
Stringer, Brisbin & Humphrey
Barristers & Solicitors
HEARING December 6, 1991
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Luz Fresneua,Duar:a btndo, Rngela' Rtzzo, Hatia Vasi[opoulos,
Elizabeth Bo:s, Maria Kou:elis, ~enny. Mala~ski, Sally ~asterna~,
Ch:is:ina ~olakow and Giuseppina Vaval~. ~he case proceeded on
an agreed statement of facts as follows:
"The parties hereto agree to the following set of facts
in respect of the grievances of those persons classified as
Cleaner 1 in respect of this case; such facts being accepted
as correct as at the dates of the grievances herein:
1. The Grievors classified as Cleaner i ("the Grievors")
are employed by the Ministry of Government Services and work 40
hours per week. They work eight hour shifts five days a week.
Some work the night-shift,.but most work only during the day.
2. There are persons classified as Cleaner Office Building
("COB") in the employ of the Ministry who work 27.5 hours per
week. They work only on the night-shift.
3. The duties of those persons classified as COB and those
persons classified as Cleaner 1 are identical, except for the
differences in work week and shifts set out above. Both groups
are paid a shift premium under the collective agreement when they
work during the night-shift.
4. The parties agree that the position specification an~
class allocation forms of the positions classified as COB and
Cleaner 1 are generally accurate.
5. The partie~ agree ~hat there has been no change to the
duties of those persons classified as Cleaner 1 or COB. The
individuals under each classification continue to perform the
same duties that they have performed for years".
Thus, we have two groups of'employees performing essentially
the same work, operating under different class standards, both of
which accurately reflect their duties. But the COB group earns
74 cents per hour more than the Cleaner 1 group. The Cleaner 1
employees wish to fit themselves within the COB classification in
order to get the higher pay.
There has always, been a differential in pay between the two
groups, but until February, 1990 it was reversed: the Cleaner
l's earned 16 cents per hour morq than the COB's. That state of
affairs was neve~ chall'enged. ~Between July, 1988 and February,
1990, the Parties negotiated a Pay Equity Plan for bargaining
unit emplO~es"in which, for some unknown reason, the two Groups
of cleaners were compared With different male .job classes and as
a result the 74'cent differential arose and was agreed to by the
parties.
The union argues, that the grievors can fit themselves into
the COB classification based on:the "usage" argument: that. is,
'they are performing-the same-~work as others in a high_er....~
classification'>and therefore deserve to be classified in the
preferred claS~ification,'' The union says'it is irrelevant that
each grOup 'fits neatly within its own class standard, rely%ng
upon Beals and~Cain (GSB 30/79)i The union argues that it is an
abuse of the classification system and unfair to employees where
the'Posit~ions of ~mp'loYees who are performing substantially
similar work are placed in-different classifications. In that
case a panel' of this Board, chaired by Mr. Draper, found that the
Positions Classified bas Driver 1 and'Motor Vehicle Operator were
essentially the same jobs. At page 13 of the decision the Board
Said:
"In our view the grievor's position is improperly classified
if it is not placed in the highest classification in the
system hierarchy to which his work, measured against the
work of employees whose positions are in related
classifications, entitles him".
Also, at page 12, the Board said:
"It is well established that in position classification
cases, the Board must direct its inquiry to the questions,
first, whether or not the work actually performed by the
employee is that set out in an appropriate class standard
and, second, whether or not he is performing work
substantially similar to that being performed by an employee
whose position has been placed in another classification.
In the first instance the employee's work is measured
against clas~ standards and in the second it is measured
against that of an employee in a position that has been
differently classified. The purpose is to establish either
that the employer is conforming to its classification
standards or that the employer haS, in effect, modified
those standards".
The employer urges us to decline jurisdiction to interfere
in this situation. P~rsuant to section 18(1) of the Crown
Employees Collective Bargaining Act it is the exclusive function
of the employer to determine classification of positions. In
this unusual case the employer has created two "Darallel"
classification systems, but it is entitled to do so without
interference by this Board. Rates of pay are proper subjects of
collective bargaining and that is where the anomalous pay
differential in this case should be negotiated. It is not the
ProPer subject matter of a grievance before this Board. The
employer says this case is really about rates of pay and not
about classification at all. The employer cites RQundin~ (GSB
18/75) as authority for the limitation of our jurisdiction in
classification grievances. At page 3 of that award the Board
said:
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"In .reaching this latter conclusion however, it is
important for this Board to set out precisely what'it
conceives to he the scope of its jurisdiction in assessing
the merits of a claim that an employee has been improperly
classified. In the first place it is readll~ aPparent that
the methods and principles by which positions are to be
classified is, as a result of the most recent set of
amendments to The Crown Employees Collective Bar~ainin~ Act,
a bargainable issue between the various employee
representatives and the employer. However, by virtue of
s.17(1) (a).[now s.18(1)(a)] of that same Act, it is manifest
that~having settled on a particular classification and job
evaluation system, the actual classification of positions is
within the exclusive prerogative of th~employer. In the
result and for purposes of entertaining grievances under
s.17(2)(a) [now s.18(2)(a)] of the Act, in which an employee
· alleges that he or she has been improperly classified, it
necessarily folloWs-that this Board must take as a.given and
can not interfere either With.the classific~ti°n system
agreed to and adopted by the parties or the application of
that system to the various positions within the public
service. Rather. this Board's sole function in the
resolution of grievances alleging an improper
classification, is to determine whether the employer is
conforming to the'classification system as it has b~en
'established and/or agreed to. That. is and more
particularly, when faced with a claim that 'a position is
improperly classified, and assuming those classifications
conform to the qeneral law of this jurisdiction, this Board
is limited by the express provisions of legislation to
determine whether or not on the system employed and the'
classifications struck, the employee in question is actually
performing the duties assigned to that position or even
assuming that to be the~ case, whether that employee, is
nevertheless be%Dg required to perform virtually the
identical duties which, the class standard notwithstanding,
are being performed by employees whose position has been
'included in some other more senior classification. In
short, it w~uld, under the present statutory ~scheme,'~only be
in those or analagous instances that an employee's grievance
under.s.17(2)(a) would be entitled to succeed.
In the result it is simply of no relevance to a
determination that is being made under s.17(2) (a) that this
Board is, or indeed the grievors are, firmly convinced, that
there are .not sufficient~differences between two
classifications to warrant their separate identities or that
the difference in wages that are appended to each do not.
fairly or accurately reflect the differences in skill and
job duties that are required in each. Rather, and subject
to such classifications conforming to the general law of
this jurisdiction, to repeat, the former is by virtue of
s.17(1)(a) of the Act within the exclusive prerogative of
management while the latter is a matter which may properly
be the subject of negotiation between the parties".
The employer argues further that in order to be successful
on the usage argument, the grievor must aspire to a more senior
classification, not a "parallel" one. In Mont~gue (GSB 110/78)
a panel of this Board chaired by Professor Swiriton said:
"The Board is not direc=ly concerned with discrimination
between employees in the application of the classification
system, unless the differential treatment demonstrates a
change in the classification system from the written
standards. The Board's concern is with the question of
whether the grievor's job has been improperly classified,
when that job is measured against absolute standards".
In this case, argues the employer, the employer's
classification practices do not differ from the written
classification standards. Although the two class standards under
scrutiny here are worded differently, they essentially describe
the same work. The difference in pay is the only real
difference, and that cannot properly be attacked in a
classification grievance under s.18(2)of the Crown Employees
Collective Bargaining Act. Employer counsel argues that in order
to succeed in a classification grievance, a grievor must show
that his or her actual classification is at odds with reality. A
grievor must prove first that she is wrongly classified before
she can fit herself into another classification.
In our view, that line of rpasoning applies to "standards"
cases, but not "usage" cases, which this is. Underpinning the
"usage" test of the appropriateness of a person's classification
is the concept of fairness and equality of treatment, both in
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status and in wages, of people Performing essentially the same
work.
~mptoyer counsel asserts that Beals and Cain (supra)' was
wrongly decided' if it purports to stand for the proposition that
an employee can insist on being reclassified to a "Parallel"
classification,(as opposed to a higher classification) if he or
she can show the duties of each classification are virtually
identical.
..... We are of the view that Deals and Cain was correctly decided
and that it stands .for the proposition, as clearly stated at page
13, that a "grievor's position is improperly classified if it is
not placed in the hi~ghest classification in the system hierarchy
to which his work, measured against the work of employees whose
positions are in related classifications, entitles him". We
agree with the comments of that Board, at page 11, about the
objectives of the ~mployer'S classification system:
~-~It may be assumed that among the objectives of the
\ employer's classification system are the achievement of
l uniformity in policy and consistency in practice throughout
/ the public service,"and equitable treatment of individual
( employees. It follows that It is an abuse of the system and
· / unfair to employees where the positions of employees who are
performing substantially similar work are placed In
different classifications. By intervening where that
condition is found to exist the Board, rather than
frustrating the intent or undermining the operation of the
classification system, is preserving the legitimacy and the
credibility of that system".
Accordingly, the grievances'are allowed and the grievors
shall be re-classified as Cleaner Office Buildings effective 20
days before the date of their grievances. Each shall be
compensated with full retroactive pay and benefits and interest.
We will remain seized of jurisdiction for a period of 60 days
following release of this award in the event there is any
difficulty in its implementation.
We are .also seized of jurisdiction of eleven similar Cleaner
2 grievances which may well be settled as a result of this
decision. We will deem them settled and relinquish our
jurisdiction 60 days after release of this award unless we hear
from one of the parties that they wish to have those grievances
heard. ,
A. B~[RRETT, ~airperson
D. Clark, Member