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HomeMy WebLinkAbout1991-2199.Bell et al.92-11-04- O/Vt',4R/O EMPLOYES DE LA COURONNE CROWN EMPLOYEE$ DE L 'ONTA RIO GRIEVANCE C,OMMiSSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t~O OUNDA$ STREET WEST, SUITE 2100, TORONTO, ONTARtO. MSG ~Z8 TE~E~HONE/T£LEPHONE: (4 T6) 3~6~ ?$0, RUE.DUNDAS OUEST BUREAU 2~00, TORONTO [ONTARIO), MSG 1Z8 FACStMILE/~L~COPIE ,. [4 ~6) 326- 2199/91 UAde~ THE C~OWN EMPLOYEES COLLECTIVE BARGAINING &CT Before THE ~RIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bell et al) ~r~evor - and - The Crown in Right of Ontario [Ministry of Transportation) -. .Employer BEFORe: P. Knopf Vice-Chairperson E. Seymour Member F. Collict Member FOR T~E Ai Lokan UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE A. Rae EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HE~RIN~ September 17, 1992 ' DECISION This is 'a classification grievance. The grievors are employed by the Ministry of Transportation as T~chnicians, Roadside Vegetation Management and are classified as Landscape Workers. They allege that they are improperly classified. They are not seeking to be reclassified into another existing classification but instead are seeking a Berry order. The facts are not in dispute. In a nutshell, the grievors perform all the duties and operate all the equipment related to landscape work for the Ministry. They fell, prune an~d plant trees and spray pesticides and horticultural chemicals along the roadsides to control shrubs, trees and weeds. In the winter, they perform maintenance tasks. The parties agree that the Position Specification dated August 23, 1991 is an accurate reflection of their work duties and ski~ls that are expected. It°ia. attached to this dec~ision as Appendix' "A". The Class Standard for Landscpe Worker is annexed hereto as Appendix "B". The extent of the grievors' duties was more fully explained by the representative grieuor, ~urray Purcell. ~e described in detail the skills required and care taken in the safe application of pesticides and herbicides. He explained the careful record keeping that is expected of him and his colleagues, especially with respect to the meticulous records kept of hazardous materials. He also described his "supervisory" responsibilities with r~Spect to contract crews or other Ministry crews which come and assist at peak d~mand periods for pruning and plaating of trees. At planting time, cre%;s assist with the actual planting of trees for two to thr~ months a year. Mr. Purcell concedes that the planting crews do not perform skilled or semi-skilled labour and need only minimal instruction. On the other hand, tree cutting or pruning is semi-skilled work. This involves about 10% of the crew assistance time offerod. This semi-skilled labour does not require any "instruction" from the grievers, but the grievers do ensure that the work is done in accordance with Ministry standards of safety and.operations. For all the work done with the outside crews, the grievers' supervision consists of directing them on the site, ensuring M.inistry standards are m~t and reporting any problems to the grievers' supervisors. Another aspect of. the work that the grievers emphasized was the use of plans. They receive plans drawn up at the Ministry's Head Office se~ting up the location, numbers and spacing of trees to he'planted along roadsides. The grievers'are required to take these plans, familiarize themselves with the sites, meet 'with officials from Hydro, Bell Telephone,~and gas and water utilities to determine the location of ~heir lines and then to i~plemeht the plahting process itself~ This demands that the grievers be able to read the plans and have an effective liaison with respresentatives of the utilities. It also demands that the grievers be able to a~ply discretion to the implementation of the plans when it is simply physically unfeasible to~ plant the trees in the precise location directed by the plans. There ara times that the plans call for trees to be planted right over power lin~s or where the soil conditions are inappropriate for the trees designated. In these situations it is recognized by the Ministry that the. grievers have the ability and the flexibility to read and adapt these plans as the topography and the practicality dictate. The plans themselves are detailed. However, as Mr. Purcell candidly admits they are not as detailed or complex as blueprints~ A final aspect of the evidence emphasized ~y the grievers had to do with the training and qualifications demanded ~Y the Jo~ Specification. As the Job Specification - 3 ~ i~d~cates, certain specific certificate and licences or equivalents are listed as the skills and knowledge roquired to perform the job. The grievors set forth the explanation of the time required to obtain these qualifications and the natur~ of the instruction involved: 1. Provincial Horticultural Landscape/Greenhouse Certificate or equivalent certificate: This certificate courseLis regulated by the Ministry of Skills Development and Ontario Regulation 656/86 under the Apprenticeship and Tradesmen's Qualificat'ion Act. The Regulation sets forth the units of study and instruction to be given to obtain such a certificate. For the Certificate in question one must complete related training and work experience training of 4,500 hours as set ou~ in the Regulations. Two of the grievors have no such Certificate. Two of the grievors have been "grandfathered" based on equivalent experionce. One grievor has no certificate, but does have an. equivale~nt diploma. 2. Ontario D Class Driver's Licenco with Z endorsement and MOT Operator's Permit: ,This driver's licence is required to operate any Ministry vehicle above, the class of a car or a passenger van or half-ton pickup. All the grievors have this. 3. Class 1 and 3 Exterminator's Licence from Ministry of Environment: In order to obtain this, on~ must have a Grad~ 10 education as a minimum. Each licence requires a completion of a one-week course and written examination. Four of the grievors hav~ both licences. One grievor has neither. 4. Workiag knowledge of job related safety requirements as specified by: OccuDational Health and Safety Act Pesticides Act Environmental Protoction Act - 4 - No specific courses are offered, but books are in the office dealing with these subjects.- Trans~ortatioa of Daagerous Goods A~t - (one day course) WHMIS - (one day course) As a final aspect of the presentation of the case, at the conclusion of the evidence, the Union sought to amend its opening position from a request for retroactivity dating 20 days prior to the grievance to a request that retroactivity commence on April 15, 1991. The~basis for the amendement was the fact that the grievers had asked for the matter to be dealt with approximately four months prior to ~he grievance being filed. The Employer Objected to the amendment being granted given the lateness of the request. The'Argument The Union began Dy pointing out that the Class Standards are dated May of 1963. It was submitted that while some jobs may remain static over the decades, this job has ~volved because of the use Of chemicals, pesticides and the heightened sensitivity to safety and environmental elements. This was said to be exemplified by the fact that the Class Standards d0 not contemplate the high level of formal qualifications now required for the job and that are in the Job Specification. Given the high degree of training and the cumulative effect of all t~e courses and qualifications, it was said that this took the job beyond what is currently contemplated in the Class Standards. Secondly, the Union relied on the fact that the Employer now requires the grievers to operat~ machines and equipment requiring the Z endorsement on the driver'~ licence. Further, the Union pointed to the aspects of safety precautions and sophisticated 9aper work r~quired with the use of the - 5 - chemicals in the course of spraying. Further, the Union relied on the aspects of supervision where the grievors are required to supervise semi-skilled tree trimmers and monitor their safety. The Union also pointed to the liaison with utility representatives and tho fact that the-grievors must be able to r~ad, interpret and apply discretion to the tr~e planting plans which appQar to be complex in nature. All these aspects of the grievors' jobs were said to be of such a nature and to amount to such an extent as to change the essence of the job contemplated by the Class Standards. Hence, the grievors ask that the job be reclassified and they seek a Berry order. The U~ion relied on the following cases: Avsec and Ministry of Housing, GSB Fil~ 1589/89 (Low), Cabeza and Ministry of Labour, GSB File 909/86 et al. (Ebstein) and Fenske and Ministry of Government Services, GSB File No. 494/85 (Verity). The Emp!o~er.opposes the reclassification, arguing %nat the current Standards sufficiently describe and contemplate the duties and responsibilities of the grievors. Dealing with the specific training requirements, the Employer answered the Union's claim firstly by arguing that even though the Job Specification may set out certain requirements, the facts disclose that all the grievors do not possess those certificates. Hence, it was said that the Employer'ought not to De bound by this specification. Further, it was said that ther~ was no'~videnc~ that those who do not possess a certificate perform any job duties different than those who do possess them. Thus, the Board was asked to not consider those certificates as "requirements" for the job. With respect to the specific courses such as WHMIS or the Dangerous Goods or DZ licence, it was said that the current standards'contemplate observance of safety precautions and thus encompass this type of training. Addressing the aspect of paper work, the Employer argued that tho paper work required of 'the grievors was not substantial nor requiring e~tensive time or complexity.. Further, the Employer described the monitoring of contract compliance with the outside cre%~s as simply amounting to working with the crews in.the field, noting their problems and reporting any to supervisors. This was not said to be sufficient to go beyond the current Class Standards. Finally, the Employer argued that the plans that the grievors work from could not be described as complex because they do not show elevations or fences nor require work to be done with exact measurements. They were said to not be rigid and that they ought to be considered as general guidelines for plan'ting. In conclusion, the Employer said that the definition of the Class Standards does capture the essence of the job and that none of the grievors' current duties are of such a. kind o~ degree as to amount toga different job altogether. .Hence, it was said that a Berry order would be inappropriate. The Employer relied on ~he follo.win~ cases:. Blomme ~n.d Ministry of Hou~'ing, GSB ~ile 547/91 .(.Go,sky), Evans and Ministry of Transportation, GSB File 1531/90 ISamuels), Donnelly and Ministry of Transportation, GSB'Fil'e 456/91 (Kaplan), White/Foster/Kellar and Ministry of Transportation, GSB File 670/30 et al. (Stewart), Booth and Ministry of Transportation, GSB File i92/90 (Low), Aird et al. and Ministry of Consumer and Commercial Relations, GSB File 1349/87 (Slone), Roy and Ministry of Natural Resources, GSB File 946/89 (Knopf) and Dumond and Ministry of Transportatioq, GSB File 1822/90 (Kaplan). The Decision In a case such as this, the onus is ugon the Union to persuade the Board that the gri'evors are actually performing a jo~ and undertaking duties the essence or core of which does not fit within th~ Class Standards to whic~ they ~ave been'assigned by the Employer. Their duties and expectations must be of such a kind or occur to suc~ a degree as to amount to a different job altogether. See Fenske, supra, Roy, supra, and Aird, supra. The determination of this is a factual matter. The'facts of this case indicate that the Class Standards which have been applied to the grieVors were drafted in 1963. There is no question that two decades ago the Ministry and indeed the world was not as sophisticated about the use of herbicides} was not as conscious about safety and operated in a much less formalized way with respect to record keeping and equipment usage as we do now. While we were given no evidence as to how these types of workers operated throughout the last tWo decades, it is easy to imagine that their methods of operation, record keeping and equipment have evolved significantly over the last number of years. However, an evolution in a job is.not sufficient to warraflt 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. Hence, we shall analyze this-grievance by turning to the Job Standards and to the aspects of the job which the grievors now say take them beyond the current definitions. First, the grievors assert that the type of supervision they now perform is not contemplated in the Class Standards. The Class Standards do indicate that Landscape Crewmen "supervise a small group of unskilled labourers and operators of light mechanical equipment." The facts reveal that the grievors do supervi'se planting crews of unskilled labourers. This is contemplated by the Class Definition. The grievors also do supervise outside contractors and crews f£om the Ministry who perform some tree pruning functions. These are semi-skilled functions and this degree of - 8 - supervision is not contemplated by the Class Definition. However, as the facts reveal, tree pruning only amounts to 10% of.two to three months'out of the year and the use of outside crew members for this would even be less than tha~. Another aspect of the grievers' work i-s that of ~record keeping. We were shown extensive evidence of the type of record keeping that the grievers must maintain with the use of pesticides, hired equipment, dangerous goods and other equipment. T~is is necessary botherer fiscal and environmental concer~s. There is no specific mention of record k~eping in the Class Definition. However, as detailed as the records may be, they are not complex nor do the grievers pretend that they are difficult or amount to a significant amount of time. Another aspect of the job to be addressed is the -. use of plans. T~e plans themselves .cannot be descriD%d as complex. They are directory in nature. The grievers are credited with the ability to use their discretion in the application of these plans. But the discretion involved is something quite different than an ability to work from "complex" plans. The Job Standards contemplate an "ability to work from simple plans and instruct others." The discretion the grievers use indicates that the plans are directory rather than dictatorial in nature and is exemplary of the general nature of the plans vis-a-vis detailed blueprints. Hence, the use of plans as the grievers d~scribe does seem to be contemplated by the Class Standards. Taking all the grievers' actual work and duties, only the supervision of the semi-skilled tree pruning contract crews and the record keeping are things that could be said to be outside the specific nature of the current Job Specifications. However, the tree-pruning aspect of supervision is a very small amount of the time required of - 9 - these grievers 0uer the course of the year and the record keeping also must De described as incidential. Together, they cannot be said to be of such a significant degree or nature to be something that would change the essence of the job itself. This takes us to the final aspects of the grievers' case. This involves the difference in qualifications contemplated by the Class Standards and those set out in the Job Specification. The Class Standards only contemplate a Grade 8 education and does not set out any specific certificates. On the other hand, the Job Specification demands certificates which carry with them a minimum of a Grade 10 education and some extensive traininG. The Employer invites us to accept an argument that it ought not to be bound by the Job Specification, especially because the facts reveal that not all ~t~e grievers possess all the requirements listed in t~e specifications. This Board has a g~eat deal of trouble with that argument. The Job Specifications are drafted by the Employer. If the Employer were to hit9 a new person into this position, the Employer would be expected to demand these qualifications of the hiree and presumably would defend a lob competition decision based o~ those specifications. Certainly the Board is able to treat the specifications lightly when the facts of the case reveal that the grievers are not doing the job as set out in the Specification. See Fenske, supra. However, job requirements ought to be treated more strictly. In ~rafting Job Specifications, employers should be cautious of the Job Standards and where they a~e prepared to accept "equivalents" of certain certificates based on extensive experience, the Job Specifications should so state. Where specific job requirements are set out in the Specifications, employers . should recognize this by their amending or updating the Job Standards and keeping current with the situation. Failure to do so invites grievances such as this. Having indicated Our view, we now turn these principles to the situation at hand and analyze it in the light of the Class Standard. The Specification speaks of working knowledge and job-related safety requirements as specified by the Occupational Health and Safety Act, Pesticides Act, Envir0neental Protection Act, Transportaion of Dangerous Goods and WItMIS. At the most, thes~ 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 o~s~rve certain safety precautions in climbing and felling trees, running equipment and using hor~'icultural c~emicals." The Standard itself thus " 6ontemplates. safety requirements which are now a~ticulated and set out in the Acts listed in the Job Specification and thus fall within the Class Standard. We reach the same conclusion with respect to the Class DZ driver's licence which, although not specified in the Class Standard, is co~ered by the expectation that the crewmen have the required working knowledge of the equipment necessary for the job. This takes us to the more difficult aspect of the Provincial Horticultural Landscaper/Greenskeeper Certificate or equivalent certificate and the Class 1 and 3 Exterminator's licence from the Ministry of the Environment. The Board would have easily concluded that these could be contemplated by the qualification "must pass test set by the Department's Chief Arbourculturist" had any evidence been led to convince us of this. Without such evidence, we cannot reach that conclusion. It is true that we have evidence that for both the Certificate and the Licence, one grievor does not have any of these qualifications and is presumably performing the exact same work and undertaking 'the same - 11- responsiDilities as the representative grievor and his colleagues. Thus, the Certificate and the Licence cannot be said to be true qualifications for the job's practice. But, they remain the qualifications set out in the Employer's Job Specification and thus have significance. However, as stated at the outset, in order to qualify for a Berry order, the grievors must convince us that the essence of their job duties and responsibilities and expectations take them outside of the current Job Standards. We are very troubled by the fact that the job qualifications that the EmplOyer currently demands are aot included in the qualifications set out in the Job Standards. In some circumstances, this would be sufficient to convince a Board that a reclassification ought to be ordered. Quite often, job qualifications will reflect the nature and the exteat of the.duties expected of ~rievors and heightened qualifications will. De a signal that a job has evolued'beyond what was. originally contemplated in the Class Standards. However, despite the sophisticated qualifications now demanded, this Board cannot escape the conclusion that the nature and extent of the duties now performed by the grievors still fall within the Class Definition set out in the Class Standards. Employees are classified on the basis of their skills and responsibilities, not their knowledge alone. The grievors do perform semi-skilled manual tasks relating to landscape work and tree culture. Th~ grievors do work under the supervision of a foreman and work in accordance with the Ministry's horticultural practices. The grievors are involved in pruning, spraying~ planting and removal operations. The grievors are required to observe the Ministry's safety ~recautions while climbing and felling trees, running equipment and usin~ horticultural chemicals. Finally, the ~rievors do operate the power-driven equipment associated with the work an~ supervise a small ~roup of - 12- unskilled labourers and operators of light mechanical equipment. As stated above, the record keeping and supervisory work that they do beyond those contemplated i~ the Standards are not of a sufficient degree or kind to take them outside'of the Standards. The more heightened qualifications demanded of incumbeats reflect society's current concerns and' soDhisticated knowledge of the use of hazardous chemicals 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 tyDe of flexibility necessary ~o 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. The facts in this case 'convince this 8oard that the grievors' duties and responsibilities have evolved. However, we are not convinced that they have evolved to the extent that they are not covered by the nature and essence of the Class Standard that is currently being a~plied to them. Let us conclude by emphasizing this panel's chagrin over the Ministry's failure to update the qualifications in' the Class Standards or to keep the qualifiCations consistent with the s~ecification by allowing for .equivalencies. The Ministry's practice should be in line with its documentation so as to indicate some ~espoct for its workers and to avoid the aeodless type of ~xDenses associated with grievances such as this. - 13- ttowever, for all these reasons, we must dismiss the grievance. DATED at Toronto, Ontario this &th day of November, 1992. P ula Kn~hai E. Seymour - Member · ,F. ~ct - MemDer APPENDIX v~e~a~on aa~e~~ 06-5335-36 L~sco~ ~rk~r 1~8~0 DiaL. 3, S~t[o~ - Semite. ~ion S~raLFord To per~ a v~rJe~F~.duL~eg ~d operate ~l~ ~ui~enL. r~i~d L9 preserve. pr~icto. · ~r[o~ ~ o~.J~fl~ durJof Vinker h/flken~e ~per~k~ouo. I. Carrier out the ~s[de Vefe~akloQ X~mn~ P~fro ~or ~he OjsLr~ct }~: - es~ieh~p~--~ ~inkaiai~f fmuflo cover, h,cl~inf prepGrtnf .~e, sero- , tar, [er~iL~siai, ~d~nf tar erosion.~L~i~ ....... · -'prtmjfl~ a~/or lelAlnf Lmr~ ~r~es; . ... ~ .... - . _ ' 'pro~te heml~h~ f~ of ~ur~ SJl~ ~ trees. ' ' 2. ~rote~.& varle~Z o~ e~u/~nk ~n c&rrTin~ auk ~v~ ~tivl~ies such - ~ke~ ~PC~C, k~ aOr~%or, ~r~ie sprG%er for oppiicaLio~ o~ I,~rb~- . cioes/~s~ic~ue~; - ~,cket. t~s, c~ln~, b~h cbi~ ;or IA~e t~ uinkea~c~ 3, P~videe ~hn~l tnfomk~on ~d ~viee ~ c~e o~ unakille~ 4nd semi- -tyrF. ~ng~n~.~ ~iflken~ce; pI~ting ~d ~iflkenance ?[ kris ami ~os~ ~&icl~e application, tree tri~in~ ~or re~x, equipment p~fid~f iafo~tLo~ ~ the e~ia~ ~olo~, p~ures ~d safetT 4. Per[orn o~er duties such ~: ~Gnusc~ or~lfl~s~ s~%~zcac]o~s~ apecL~ ~nu~Lious ~ conkrac~d~unenLG~ofl u required; V~lid Provincitl Horticultural L~dscape/Greenskeeper Certificate or Certificate. ~d skills & knowledge ~o operate e~u~menL used ~, ronda&dc endorsement & ~0 0~rators Pern~t. CLGSs I & 3 ~k~niRa~o~'s ~LCC,~c ~iRist~ of ~nvir~ment, ~orkiflR knowledge of job related s~fety (over) Instructions for completing form ¢ -6160 Admb~afkw CImup. ~ S.. PerFo~ da~lu mf~ durf~ Wln~er Nain~u~ ~raClons. .~ ~eqyl~.~ as ~peef~l~ ~ ~pa~/oa~ ~ea/th ~d S~eCyAc~, PeoPle/de Act~ c~ioa~i~ ~AAs, P~I~ oa~il/~y ~o perLora.requ/rea APPENDIX ~B~ ~' 12820 CLASS DEFINITION: Under ~he su~sion o~.a Hi~F ~1 Fo~ ~d ~ accosts ~d impro~ ~blic l~ds. ~eF ~ ~~d co obse~ · Pr.me; treat, remove ~d ~ p~r che~s. S~ '~ss seed, s~sd ~d fe~er ~d ~ · eeder ~d stray ~~ As mq~d, suW~se e ~i n~r of ~s~ed ~o~rs ~d o~cors ee~o~ mla~ed du~es as assi~ed. ' ~UA~TION3: , ~rade 8 education; nuisc 9aas tests 'sec by the Depar~nen~s Chief trboric~lCuri~C. least one year of e~rience ~ ~e ~ r 'Of hoaicul~nl vor~ taxied out bF the De~nt. ~cr~n~'~led~e of ~he ~~nt~e ho~icul~ural ~thods and prac~icee~ ~d ~he ~oo~ and e~n~ used; abili~ ~o ~o~ fr~ e~ple .plus ~d to ~c~ or. rs; [ood p~sical condition. ~s~ ~ able to ~o~ duties at heights up to 75 feet. I May, 1963.