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HomeMy WebLinkAbout1991-1603.Leach, Bell et al.93-02-23 ONTARIO EMPLOY6~S DE LA COURONNE CROWN EMPLOYEES DE L ~QNTARIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G ;80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO}. MSG IZ$ FACSIMiLEIT¢L~COPIE 1603/91, 1704/91, 2077/91, 2101/91, 2103/91, 2104/91, 2165/91, 2168/91, 2263/91, 2290/91, 2375/91, 2432/91, 2521/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Leach/Bell et al) Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) Employer BEFORE N. Dissanayake vice-Chairperson P. Klym Member I. Cowan Member FOR THE N. Coleman GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE F. Gallop RESPONDENT Counsel winkler, Filion & Wakely Barristers & Solicitors HEARING April 1, 1992 January 7, 1993 2 .DECISION These are similar grievances filed by the following grievors: R. Bell J. Stecko L. Sprague A. Reay R. Orotty G. Corman P. Brunet L Sebasta T. Leach W. Eubank R. Manns 'J. Bernard R. Andrews A. MacEachern I_ O'Reilly C. Vance S. Dixon R. Rasmussen All of these gdevors were employed in the Position of Tobacco and Fuel Tax Inspector. tn or around June of 1991 they grieved that their positions were improperly classified as Financial Officer I (Atypical) in the Administrative Se~ces Category. Following the grievances, the Ministry recognized that the grievors' positions were improperly classified, and' unilaterally reclassified the positions as Office Administration Group 11 (OAG 11) in the Office Administrations Category. The union claims on behalf of all of the 'grJevors that their positions are still improperly. classified because they do not fit within the OAG. The parties agreed that the rote of this Board is restricted to a determination as to whether the positions are propedy classified in the OAG. They further agreed that if the Board finds that the positions are improperly classified within the then the appropriate remedy would be a "Berry order" directing the employer to propedy classify the positions in question. Both pa~ties agreed that 'ff the finding is ihat lhe positions properly Iii within the OAG the Board should dismiss the grievances, leaving 1he grievors tfee, il they so desire, to dispute the appropriate level within the OAG before the special panel of the Grievance Settlement Board entrusted with the responsibility of dealing with OAG classification grievances. The parties made their submissions on the basis of agreed facts. The union made it clear that these facts are agreed to solely for the purposes of arguing the narrow issue of the appropriateness of the OAG, and that it reserved the right to dispute these facts, particularly the accuracy of the position specification, if the parties cannot agree upon a remedy or if the grievor's have to subsequently dispute the appropriate OAG level. The agreed statement of facts filed with the Board reads: The parties agree to the following facts for the purposes of this proceeding before the Grievance Settlement Board or~y: 2. ' The gdevors are field inspection staff. They have designated headquarters but do not work in offices. They may use Ministry offices to drop off and pick up mail and to use photocopy and fax facilities. The grievors complete their paperwork on the road, in their vehicles, at inspection weigh stations and, occasionally, at their own homes. Some of the grievors complete their paperwork at Ministry offices. The grievors devote approximately 2 hours per week to such · paperwork. 3. The grievors wear full uniforms and drive marked Ministry vehicles that are assigned to them. The grlevors are not properly class/lied as Financial Officers, The Ministry maintains that the grievors are propedy classified as OAG 11. The grievors maintain that they are not properly classified as OAG 11 and seek a Be__ff[~ order directing that they be properly classified. The grievors are not seeking an order that they be reclassified to Transportation Enforcement Officer 3 or any other classification in particular. 5, Reclassification, if any, will be made effective January 1, 1991. 6. the parties have not agreed that there have been significant changes to the duties and respons{bilities of the grievors since 1988 so this issue may remain in dispute between the parties. The position specification for Fuel and Tobacco Tax Inspector is attached to this decision marked as Appendix "A". The thrust of the union's case is that, a review of the purpose of the position and the duties and responsibilities of the position, as set out in the position specification, and the agreed to facts show that the o~rievors aLre "i.r~speCtiO~ ~d enforcement officers working in the field," and that they do not provide office services ,as contemplated by the Office Admi,~istration category. The employer did not dispute that in a dass'rtication grievance appropriateness of the category itself may De disputed. See, Re Carlson & Mares, 596/90, 601/90 (Kirkwood). The employer's method of classification is described In the Ontario Manuar of Administration - Position administration policy, as one based on the use of the "Grade DeScription System". That method is described as consisting of fo!dr steps (a) Category Selection. (bi Occupationar Group Selection (c) Class Series Selection (d) Ctass Level Selection. Thus it is clear that In classifying a position, the first step is to select the appropriate category. Or,ce that is achieved, the employer proceeds to the next step of selecting the appropriate gr, :.~p, the appropriate class series w~thin that group and finally the appropriate class level within the ~;lass series. The cia ~ standards for the OAG were filed with the Board. These inctude, inter alia, a category definiti ~ and a group definition. The category definition for Office Administration reads: This Ca': 3ory covers positions in which the primary duties and responsibilities involve ! ; following functional areas: (a) I sitions which provide office services in support of office a ~ninistration functions as defined in the group definition for the ( ice Administration Greup series; (bi ~. itions which provide services in a number of data processing fl ~'tions including the operation of large-scale equipment d 'gned for automated data processing purposes, related s~ :duling and expediting functions, quality control services and 5 also maintenance services intended to ensure the appropriate custody and up-dating of operating Instruction files; (c) positions which involve the verbatim reporting of court proceedings or quasi-judicial proceedings using shorthand, stenotype machine, or stenomask, and producing sustained and accurate high-speed recordings of such proceedings under courtroom conditions; (d) positions involved in microfilming and whitepiint equipment operations including related quality control services, associated equipment operation services. A position should not be allocated to this category if the primary duties and responsibilities are more appropriately covered by the definition of another category. This category contains four groups, which are: Group I - Office Administration Group II - Data processing Group III - Court Reporting Group IV - Microfilm and Whiteprlnt Operation The group definition for office administration provides: The Off[ce Administration Group covers positions in which the pdmary duties and responsibilities involve one or more of the following: (a) the preparation, collection, transcription, recording, filing, cataloguing, maintenance, examination and verification of records, reports, applications, and other documents. These functions are performed either manually or by electronic processes involving the operation of equipment such as type-writers, dictating machines, word processors, micro-computers, and computer term{halS; (b) the investigation, analysis and evaluation of situations involving interpretation and/or application of rules, regulations, policies and/or practices in order to establish eligibility and/or compliance, and/or to support specialized or semi-professional programs; (c) the provision of office administration services including secretarial services; (d) the transfer and/or processing or information and internal communications including the provision of internal mail services and the operation of office equipment for these purposes. This equipment includes: electronic date entry/keypunch equipment, telephone switchboards, teletype machines, photocopying, 6 duplicating, and mai~ing equipment, calculating and bookkeeping machines and the like; (e) where required, the provision of any of the above services to clients/public in a language other than Engrish. ' A position should not be allocated to this group if the primary duties and responsibilities are more appropriately covered by the definition of another group. It is common ground that for office administration the relevant category definition is that contained in paragraph ia) which reads: Positions which provide office services in support of office administration functions as defined in the group definition for the office administration group series. The material before us indicates, and the employer did not dispute, that the OAG when first introduced was intended to include two groups (1) office services and (2) cledcal services. The er~ployer does not contend that the Tobacco and Fuel Tax Inspector position comes within either the office or ciefic~[ services. Nevertheless it is argued that the fact.that the OAG was originally composed of those two groups does not establish an intention to freeze the OAG to those two groups and preclude the subsequent Jnclusi0n of positions outside those groups. Counsel submits that the category definition is so brief and vague that it is really of no assistance. She says that the category definition simply, has the effect of "kicking over the issue" to the group definition. She then points out that paragraph ia) of the group definition refers to the preparation, collection, transcription and verification of records,' reports etC. and further that paragraph (bi refers to investigation of situations involving and/or application of rules, regulations etc. to establish compliance, and submits that these are functions which are within' the grievors' position specification. Counsel submits that the group definition is so broadly worded that it means "any services pedormed !n aid of what the Ministry is doing". 7 Counsel further reviewed the gAG "points rating" system. She submits that. that system is capable of faidy compensating the grievers tot their work and that in the circumstances there are policy reasons for not interfering with the classification assigned. While we have set out counsel's submissions in some detail, the Board's role is to determine whether the. grievers' position rs properly classified in the gAG. In making that determination the Board must examine the grievers' duties to see whether they adequately fit within the Office Administration category and group definitions. Having done that, we have concluded that the positions are not propedy classified within the gAG. As already noted the first hurdle in propedy classifying a position is to comply with the category definition. The Office Administration category definition is s~id to cover "positions which provide office services" [n support of office administration functions as defined in the group definition. In our view, in order to satisfy this category definition there are two requirements: (a) The positions must provide office services and.. (b) Those office services must be in support of the office administration functions in the group definition. It is agreed between theparties that the griever's spend very little.time in an Office. To the contrary they spend the great bulk of their time in the field. While their duties may Include dealing with functions mentioned in the group definition, it is clear that they do not provide office services in support of those functions, as contemplated by the category definition. To illustrate,-the group definition refers to investigation, analysis etc. of situations involving interpretation of rules, regulations etc. in order to establish eligibility and/or compliance". The grievers do not provide office services in supporl o~ that investigation function, Quite in contrast, they aclually perform the investigations in the field. We are satisfied that the category definition by restricting itself to positions providing office services, excludes positions which are essentiaity field positions such as the position of Tobacco and Fuel Tax Inspector. This definition therefore is consistent with the fact that the OAG was created to encompass office type positions in office and clerical services. For afl of those reasons we find and hereby declare that the grievors' positions of Tobacco and Fuel Tax Inspector are improperly classified within the OAG. Accordingly the employer is directed to propedy classify the said positions. We remain seized In the event the parties have difficulty Implementing this award. Dared Chis 23rd day o£ February I993 ~n Toronto, Ontario N. Dissanayake Vice-Chairperson P. ~ym 1. uowan Member 10 back of form for complehon ingtruchon$) Orq .'¥ ,c, I ~ :"' .... ) '. ; ]'-~ I-....',.- ..... F:' , ' ;,~r~,. , '.,., '.;t',?~ ?:'?.~' MOLOr Fucls and Tobacco Tax ~3 King S~tcet Wcs~, Oshawa under Ihe Fuel Tax Ach 1981; by physically inspecting co]ouring mechanisms at petroleum refineries, pipeline an~ marl ~erminals; inspecl all terminals for importation oF petroleum products; attend border crowings iBto Onlario to imporladon of [~x exempI petroleum p~oducts by Railway containers; a~is~ ~nadian Customs Officers in the collectic ot luxes for importation of pc~rolcum~roduct~ from the U.S.A.: monilor iUicil ac[irides (core,hue, [. Withi~ a~ a~igned area under Iimhed supervision, deicers and initiates pro~cudoa against illetai u~ of [ax exemps {co]oured) fuel and contraventions of inlet jurisdictional die~t ~rrier re~ist~don requiremeats under ~uel Tax Aci, 19~1, ~, slopping vehicles for inspection a~ srr;ce~Jc poims a;on~ at~ rozd aa~ ~i~bway~ by usie~ a ~pproprl~eJy ~atTOI ,s~o~ and inYesti~alc ve~icJes a~ Pro¥inCia~ weig~ .slaHons an~ 3t various provJnc~eJ and U.S.A. bo~er , questioning ~rivcrs of Oniario-base~ ~e~l vehicles ~o asccr~i~ if ~e~icie [[ ~ei~ ope~ate~ i~terjuris~icdonall? ] ~ · dfLainEng ~rivers of interjur(sdiclion~l die~] vehicles registered under Ihe Fuel Tax Acl, 1981 1o produce evidence  produced as required b~ the Act; · du[erminin~ whether a vehicle is p~opcrly registered under ~he Hijhway T~ffic Act an~ the Fuel T~x Act anti ~ · calculatin~ and cotlcctin~ fees oP all OnLario Lrip rcgislraLion certificates per~all~' ~ld, m3inLaining'an accounli~ of all certificates handled, fees collected ane remitted up to 510,0~ per year; ~ , ~akin8 ~mples fIom fuel taoks of ~lected die~l vehiclesand pe~formia$ a r~dside test for the detection of ~ye marker (subsiance~ ad,ed Io mx exempt fuel which will show a reaciio~ ~ben mixed wi[b a reageat), ia~ing a ~co~ ~mple for further laboratory analysis if roadside [est proves positive, an~ questioning the driver !o ob[aia information regarding the ~urce of the fuel for pro~cution and futare aUiil purpo~s; ~, ~elaining of any motor vehicle c~pable of transporting fuel, examining ~ocumems of the ~r~n in c~atie to ascertal stated contenls of tanks, visually checking each compartment to ensure consistency wilh the documentation, an~ ~'he~ cotoured fuel is being carrict, taking a ~mplc for ~ye quality con~rol (coniinue~ j]n-dup~h knowledge u~ thc ~ro~ck'uling ~rovi~ion~ or ~hc FucJ Tax Act. lgX], Gasoline. ~nd Tobacco Tax Ac~s and relcv=: 'CffcCtiVL'Ix ifla courtroom (cortinu~ Oeurg~ Duri3vi~ ~ L ~'~' 't[',um~. instructions lot compleling to~) CSC-6150 - {gAG) Group 3 weeks ~ mo~e Dui ~ss ~han 4 monies 3 Buil~ ~e ~ foll~t: months ~ more but ~ Ih~n 1~ m~hs 4 · S~ ~isOn. i.e., Spring ,Ezem~le~ G~p ~er Cron InstruCtiOnS tO'~ COding Sch. H~s. Work NOTE: Tbs must ~JncJde ~h t~ ~he~ule~ H~ ~ Wo& ~n~iried for p~RPOSEO~POSlTION (Continued) fo~ t~n~-a~on [~ports ~nd e~pott~: document [~bo~atory a~alys~s; report ~nd[a~s of (ue[ ~rce. desdnzdon, etc,; ensure compJiance gE ~he Tobacco Marking Program by conduc~in~ inspections of ~anufactuters, whole~le~s. retailers. Ita~s~oy:~rs and slampcrs; cnsurc compJJance wj~ [ue~ and ~3~line [~x tegisrraz~on re~uircmems JOt inmrjurisdiction~t carriers, importers. C~gorJ~,r~ and transporters; adm~nisler ibc Propane Retail Operator Program; perform an ~nspccdon of r~cords on r~fund c'ta~man~s =~U; perform an~ assis~ app~opr~ale io~.cs~J~a~on and enforcement functions, incluOing assisting thc Special ~x, esti~atio~s BTa~cb, the O,P.P,, t~e R,C.~.P. a~d Customs ao~ Exci~ Officers. PUTi. I:S AND RELAT£D TASI~.(i (Con,in,ed) ,~-ri~ing up and issuin.~ of(e~cc not~ces to vehicte operators tefu~[~ to answer questions or produce required documentation, refusing to pcrmh ibc :aking of fucl ~mpies and failing to stop Yehicle for inspection x'i~iting, v[suatl~ chccLing ~d I:,kir~ ~:mple~ of fu~.l from h~k pZants, se~'Jc'c Slalinns. consumer tanks for dxc qualiz~ ['~,nt:ol al:¢ tc';:m~. PU:I,(:~<~. t~tifl~' thc full ~C:pic~ taken: rcporl]ng Lo Hcadqua:tvT~ U~der Ibc Icrm~ nf :Ih' ~'cd[ raj ~')Ova~;'~al hordt'~ t'otlt, t'llO~ a~r~cmefl~ (Oclobcr ]989), asds~ Canadian Customs Officer~ in the lave~tl~a~on of ]Hcgal Identifying illcgat [dcnlif) lng mi~lccla red J~:u~,J :,~,;~ ..: ·; :.. ' ' ' ~' PO.%ITll)N',NPt:L'iYICATI()N t()~(~t : PONITION VOD£: ,t2-aeOS-0f PAi';[ $ lPOSITII).'~'lrJTLE: FUEL AND TO,~,~U('OTAX tNSPE2CTO,~ Ioadi~g * On direction, a~ding sufficient dye or dye mix ~o stored fuel in order To b~ing ~he fuel to proper dye/fuel ratio; , in,petting, a: sc~e~u[e~ iamrvats, t. he emire ~erminal d)'e injector sysle~ for afrtfgfl~ness, calibca]ion, ~ats and for Obvious deficiencies to such components as ~ctaini~g valves, automaHc shut-off, Cie, . make periodic reconciliation of inventory of ~ye mix a; terminal . visit marine an6 rail terminals for importation or pettoleum products, complele inspection ~epon. for head Per{arms admJ~isLraTi~c dudes b)'; I Obtaining current retail prices of die~l fuel ~he vatiou~ gtades of gamiine and various tObaCco products ~n assigned basis. preparing and submitting inspection and activity reports, wceUy al[endance regismrs and expenm personally making assigned compliance calls in own area to effect collection of outstanding taxes and/or delinquent returns wi~h respecl to the Acts administ¢red by the Braach; ensuring prop~ maintenance or Minmry patrol cars, i.e. oil changes, lubrication, tire inflation, caz washes, mechanical retiaOiliO' etc., preparing and forwarding monthly vehicle ze~ns on a lime~y basis; ~esponsibte for maintaining a neat an~ tidy uniform an~ 8~a permnal appearance; maintain good working relationship wi~h O.P.P. local police, Ministry of TransporlaHon, ~aada Customs reta~io~ ~o enCorcemenc aetiv/tfes; participates in pubNc awareness programs in informatio~ ~ion and training pzograms for industry and consumer~ ~eographic cove~, J,e, besf/worsl ~raffic fJOa, mosLtleast productive hours, etc.; idcmifying, recording, packing and shipping fuel ~mptes Lo the laboratory; ~rficipates in taking legal action against off,~dgrs ~rvicing summonses m individuals and/o~ companies as identifying tax evasion cases on petroleum and ~obacco products for ~ub~quent referral ~o ~he Spec/a[ Investigations Branch, appearing before justices of Ihe peace to s~'ear the ~rvin$ or summon~s; appearing ~cfotc jusHccs of thc peace or c~mmissioncrs for oa:hs in swear ev/den~ia~ affidavits; supN3Jng ~ccc~sar~ ~ocumcm;~l) proof of of[cflcc, requiring easic kBoalcO~c of the rules of as au~hotizc~ activv~ par~iCipac:ng in Iht umering and ~3tchigg of buildings designated ih a search warfare il: orclct I<, cJOL~ia ~ viJu:~:~ i c r~,~d, ~ti~~ ~? t't,t,2,, rc}~z;n~ to (ontla~c~liOn Of Fuel Ta~, G~sohnc T~. or perform othc~ ~otk as a~ig~ed such as ~otking irrcgula~ hours away from home on ~htzes as scheduled: ~cprc~o~l ~hc ~:n}~l~) in puhb~ 3%3TL'BL'X% pH)gram.~.'ahil~3~ IO exam/ne ~ccord; a~d make SOund conclu;lc)n~ a~ m