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HomeMy WebLinkAbout2005-3631.Policy.06-07-24 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2005-3631 2005-3632,2005-3633 2005-3634 2005-3635 2005-3636 UNION# 06-11 06-12,06-13 06-14 06-15 06-16 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CanadIan Umon of PublIc Employees - Local 1750 (PolIcy Gnevance) Union - and - The Crown In RIght of Ontano (Workplace Safety and Insurance Board) Employer BEFORE Manlyn A Nairn Vice-Chair FOR THE UNION Steven M. Barrett Sack Goldblatt Mitchell LLP BarrIsters and SOlICItorS FOR THE EMPLOYER GurJIt Brar Counsel Workplace Safety and Insurance Board HEARING June 26 2006 2 DeCISIon Each of these SIX gnevances relates to the evaluatIOn of certaIn benchmark Jobs for purposes of updatIng the partIes' Job evaluatIOn system whIle maIntaInIng pay eqUIty The partIes have bargaIned an extensIve and complex Job evaluatIOn system. A feature of that process IS the valuatIOn or ratIng of thIrty-two benchmark posItIOns from whIch the larger Job evaluatIOn IS then conducted. Each Job IS assessed agaInst pre-determIned factors The partIes have engaged that process, but In the course of so dOIng have been unable to agree to the final valuatIOn of SIX of thIrty-twO benchmark posItIOns The umon, In filIng the gnevances, seeks to have the Board resolve the valuatIOn of the dIsputed sub-factor(s) In each case The employer has raised a prelImInary obJectIOn to the JunsdIctIOn of the Gnevance Settlement Board (the "Board") to hear and determIne the matters It IS the employer's posItIOn that these gnevances are In substance, classIficatIOn gnevances over whIch the Board has no JunsdIctIOn as a result of sectIOn 51 of the Crown Employees Collective Bargaining Act ("CECBA") The umon dIsagrees wIth that charactenzatIOn of the Issue and asserts that the Board has JunsdIctIOn to proceed. The prelImInary obJectIOn IS the same In respect of the SIX gnevances and they were heard together The partIes provIded me wIth an agreed statement of fact set out below The Job evaluatIOn manual referred to In paragraph 18 of that statement of fact was attached as an appendIX but IS not reproduced here The agreed statement of fact provIdes 1 The Employer IS a statutory corporatIOn contInued under the Workplace Safety and Insurance Act, 1997 (the "Act") It IS responsIble for admInIstenng the Act and claims for benefits filed by InJured workers In Ontano It employs approxImately 4400 employees, a maJonty of whom are represented by the Umon as exclusIve bargaInIng agent. 2 The Employer IS an agency of the Crown for the purposes of the Crown Employees Collective Bargaining Act 3 The Employer and Umon are partIes to a collectIve agreement (the "Agreement") whIch took effect Apnl 1 2005 and expIres on March 31 2008 3 4 All Jobs covered by the Agreement are classIfied accordIng to a salary grade or level They wIll also have an appropnate Job tItle and Job descnptIOn. 5 The Agreement contaInS a "Job LIStIng" that sets out the Jobs covered and theIr assocIated salary grade The salary grades begIn at 815 and end at 890 The Agreement does provIde for two addItIOnal salary grades (805 & 810), however at present, no Jobs are Included thereIn. II. JOB EVALUATION SYSTEM 6 In or about 1997 or 1998 the partIes establIshed and Implemented a Job EvaluatIOn System (JES) Currently It IS enshnned In ArtIcle 18 of the Agreement. 7 The JES Includes the Job descnptIOn process, Job evaluatIOn process, the maIntenance process, commumcatIOn of results and dIspute resolutIOn. A) Job Descriptions 8 Job descnptIOns document the nature and level of the work reqUIred In a partIcular Job They Include a short summary outlImng the purpose of the Job and a lIst of the maJor dutIes, responsIbIlItIes and Job reqUIrements 9 Job descnptIOns are wntten or reVIewed when a) a new Job IS created, b) when the dutIes and responsIbIlItIes have changed due to the IntroductIOn of new technology legIslatIve reqUIrements or restructunng In the orgamzatIOn c) as part of regular maIntenance 10 New Jobs are to be reVIewed wIthIn 12 months of theIr creatIOn to confirm the accuracy of the Job descnptIOn, unless otherwIse agreed to by the partIes 11 SInce approxImately 2002, responsIbIlIty for the content of Job descnptIOns was gIven to management and employees so they could be gIven a more actIve role In the process and to ensure greater confidence In the fairness of Job evaluatIOn. 12 The Employer through ItS management, IS responsIble for collectIng Job InformatIOn, reVIeWIng and wntIng (or re-wntIng) Job descnptIOns The J ob descn ptIOns are valIdated by Incumbents and management. 13 If an employee does not agree wIth the contents of theIr Job descnptIOn, a meetIng IS held between the employee, manager Umon representatIve and Employer representatIve to facIlItate resolutIOn. In the event that resolutIOn IS not possIble, management has the final accountabIlIty for the Job content. The reVIsed Job descnptIOn IS referred to the JOInt Job EvaluatIOn CommIttee (the "CommIttee") for evaluatIOn 4 B) Maintenance 14 The Employer IS responsIble for regularly reVIeWIng aJob In accordance wIth the prescnbed tImeframes (e g. for maIntenance or new Jobs) to determIne If the reqUIred Job dutIes and responsIbIlItIes have changed. 15 The Employer IS responsIble for ensunng that Job descnptIOns accurately reflect the reqUIred dutIes and responsIbIlItIes 16 The Employer IS reqUIred to reVIew all Jobs every four (4) years and submIt the results to the CommIttee for evaluatIOn where reqUIred. 17 The CommIttee IS provIded wIth Job descnptIOns that reqUIre a reVIew WIthIn the twelve (12) months and four (4) year Intervals C) Job Evaluation 18 The CommIttee evaluates all bargaInIng umtJobs USIng the Job EvaluatIOn Plan ("JEP") whIch IS embodIed In the document tItled "JOInt Job EvaluatIOn CommIttee EvaluatIOn Manual - Factors & Sub factors" attached as AppendIx "A" 19 The CommIttee IS compnsed of three Employer and three Umon representatIves The partIes also appoInt three alternatIve members each. A quorum for CommIttee meetIngs IS two members from each party 20 The JEP the POInt Band Model Structure Factor and Sub-Factor WeIghts, and aJob descnptIOn are used for Job evaluatIOn. 21 Job evaluatIOn IS the process the partIes have agreed to for measunng the relatIve value of Jobs 22 ThIS process uses the factors of skIll, responsIbIlIty effort and workIng condItIOns, whIch are further subdIvIded Into 18 sub-factors, as they are defined In the JEP 23 The purposes of the J ob evaluatIOn are . measure the nature and level of the work. . group Jobs havIng relatIvely eqUIvalent pOInt values Into pOInt bands . assIgn pOInt bands Into pay grades In the salary schedule . proVIde the basIs upon whIch wage rates are negotIated. 24 When applYIng the JEP the follOWIng rules apply . The nature and level of work IS evaluated, . The performance of an employee IS not consIdered as part of the evaluatIOn, . Jobs are evaluated wIthout regard to eXIstIng wage rates, . Jobs are evaluated based on the level of skIll, responsIbIlIty effort and workIng condItIOns reqUIred, and . The evaluatIOn of each Job IS to be relatIve to and conSIstent WIth, all other Jobs evaluated under the plan. 5 25 Job evaluatIOn IS the responsIbIlIty of the CommIttee The CommIttee reVIews all new and reVI sed J ob descn ptIOns The CommIttee then meets to evaluate the new/revIsed Job descnptIOn. After the meetIng, the evaluatIOn results are commumcated In wntIng to the lIne Manager who then advIses the Job Incumbent(s) of the result, In wntIng D) Job Evaluation Plan 26 The JEP measures the factors of skIll, responsIbIlIty effort and workIng condItIOns Each of these factors are measured through the evaluatIOn of sub-factors 27 The sub-factors are as follows Factor Sub-Factor SkIll Job Knowledge Regulatory Knowledge Interpersonal SkIlls Contacts CommumcatIOn SkIlls Co-ordInatIOn and Dextenty ResponsibIlIty ChOIce of ActIOn Independence of ActIOn Impact of ActIOn Planmng/OrgamzIng AssIstance to Others PhysIcal Resources InformatIOn Resources Effort PhysIcal Demand Sensory Demand WorkIng CondItIOns EnvIronment Hazards Other work demands 28 Each sub-factor IS gIven a correspondIng numencal or alphanumencal ratIng level whIch IS used to evaluate the extent to whIch a partIcular sub-factor IS utIlIzed In a Job 29 The factors and sub-factors are gIven pro-rated weIghtIngs as outlIned In the ExponentIal POInt Plan. 30 Each sub-factor ratIng level IS scored on a pOInts system The pOInts Increase In value correlatIng wIth an Increase In the ratIng level of a sub-factor For example, a ratIng of 1A for the sub-factor "Job Knowledge" equates to 34 pOInts and a ratIng of 1B equates to 38 pOInts 6 31 When the CommIttee reaches consensus on the sub-factor ratIng levels for a partIcular Job the pOInts for all the sub-factors are added together produCIng an overall score for the Job 32 The total score corresponds wIth the classIficatIOn of the J ob on the "POInt Band Model Structure" whIch, In turn, determInes the salary grade for the Job The total score helps to establIsh the value of a Job In companson to other pOSItIOns E) Dispute Resolution 33 Incumbents who dIsagree WIth the evaluatIOn results may ask for reconSIderatIOn WIthIn thIrty (30) workIng days from the date ofwntten notIficatIOn of the deCISIOn, unless otherwIse agreed. ThIS may only happen once and must be done In wntIng. 34 The reconSIderatIOn IS to be heard WIthIn SIxty (60) workIng days from the date of submIsSIOn to the CommIttee 35 If the CommIttee IS unable to reach consensus, the partIes must deSIgnate one representatIve to JOIn the CommIttee to dISCUSS the matter (the "Larger CommIttee") The Larger CommIttee attempts to achIeve consensus, however If there IS only one dIssentIng vote the matter IS taken as agreed. The deCISIOn of the Larger CommIttee IS final and bIndIng. 36 If the Larger CommIttee IS unable to reach an agreement, the Umon IS gIven the nght to apply to the Gnevance Settlement Board ("GSB") 37 If a deCISIOn IS reached and the Job(s) IS reclasSIfied to a hIgher pay scale the partIes apply the rules for salary adJustment set out In Schedule "A" to the CollectIve Agreement. The effectIve date of the reclassIficatIOn IS the date the Manager and employee agree that the change In J ob dutIes occurred. If agreement cannot be reached, the effectIve date IS 20 days before the date the submIsSIOn for reVIew was submItted In wntIng. 38 IftheJob(s) IS not sIgmficantly changed but IS reclaSSIfied to a lower salary grade the only the Income protectIOn proVISIOn In ArtIcle 6 07 of the CollectIve Agreement applIes III. PRESENT DISPUTE 39 In or about 2001 the Employer retaIned an external consultant to reVIew the bargaInIng umtJob evaluatIOn process The purpose of the reVIew was to streamlIne all the processes assOCIated WIth the JOInt Job EvaluatIOn Program RepresentatIves from both the Employer and the Umon were Involved In thIS reVIew 40 In or about early 2002, recommendatIOns were presented by the consultant. The maJonty of these recommendatIOns were accepted IncludIng . to reVIew and, If necessary reVIse the lIst of benchmark Jobs whIch was ongInally establIshed In 1994 The reVIew was done to ensure that the eXIstIng benchmark Jobs 7 were stIll stable and that they represented the level and vanety of work performed by the bargaInIng umt. . management reVIew of Job descnptIOns for accuracy and updatIng of content If reqUIred. ThIS reVIew and update was to be valIdated wIth Job Incumbents to SOlICIt theIr Input and hopefully theIr agreement on the revIsed content. . folloWIng the reVIew and valIdatIOn process, the reVIsed Job descnptIOn was then to be revIewed and re-evaluated, If reqUIred, by the JOInt Job EvaluatIOn CommIttee (JJEC) 41 The lIst of benchmark Jobs was reVIewed and updated by the Employer and Umon representatIves of the CommIttee The CommIttee then asked management responsIble for the benchmarkJob descnptIOns to reVIew update and valIdate the documents as per the recommendatIOns 42 The revIsed Job descnptIOns were submItted by management begInmng In or about late 2003 and contInued through untIl September 2005 ThIrty-tWO (32) benchmark Jobs were reVIewed. Evaluation Process 43 When evaluatIOn of the 32 benchmark Jobs began, each member of the CommIttee was provIded wIth a copy of both the Job descnptIOn eXIstIng at the tIme along wIth the assocIated ratIOnale statement as well as the reVIsed Job descnptIOn. 44 Each member of the CommIttee reVIewed the Job descnptIOn and aSSIgned a prelImInary ratIng level In each of the 18 sub-factors USIng the InfOrmatIOn provIded In the Job descnptIOn and applYIng the descnptIOn of the levels In the plan. 45 The CommIttee members also took Into conSIderatIOn the prevIOUS evaluatIOn of the Job and the prevIOUS applIcatIOn or usage patterns of the sub-factors, as eVIdent by preVIOusly agreed to evaluatIOn of other bargaInIng umt Jobs (i e companng ratIngs from other Jobs) 46 For example, In the case of the Field Auditor Job the CommIttee conSIdered ratIng levels for the Regulatory Knowledge sub-factor In other Jobs such as AdJudIcator Employer Account AdvIsor QI SpeCIalIst, and Workwell Evaluator These ratIng levels were used for companson purposes to assIst In determInIng what level should properly be applIed to the FIeld AudItor Job 47 Each member then shared theIr IndIVIdual ratIngs In each sub-factor 48 If the CommIttee reqUIred clanficatIOn/elaboratIOn on aspects of the Job the Manager of the Job could be asked to provIde further InformatIOn. 49 The CommIttee also relIed on other resources to obtaIn further InfOrmatIOn to assIst WIth evaluatIOn. For example, In the case of the Field Auditor Job the CommIttee 8 requested wntten submIssIOns from employees and FIeld SupervIsors In response to specIfic questIOns 50 The CommIttee dIscussed the ratIngs for each sub-factor based on the InformatIOn provIded untIl consensus on each sub-factor was achIeved. In those Jobs where consensus could not be reached, the CommIttee held numerous dIscuSSIOns to hear and consIder the Umon and Employer posItIOns 51 The evaluatIOn of all the benchmark Jobs were then "sore thumbed" I e compared factor by factor to ensure that the plan had been applIed consIstently across Jobs 52 A "Job EvaluatIOn RatIOnale" was prepared whIch documented the CommIttee's ratIOnale for the ratIng In each of the sub-factors for each Job evaluated. 53 Each sub-factor ratIng level has a set number of pOInts assocIated wIth It. Once consensus was achIeved for a partIcular Job these pOInts were added together to produce a total score for the J ob For example, consensus was reached for the posItIOn of Accounts Payable Payment Processor whIch receIved a total of 474 pOInts 54 The total number of pOInts for a gIven Job falls Into a pOInt band whIch IS represented by a salary grade ThIS salary grade was aSSIgned to the Job In the example of the Accounts Payable Payment Processor the total number of pOInts represented salary grade 830 ThIS was an Increase from ItS prevIOus salary grade of 825 55 Of the 32 benchmark Jobs evaluated by the CommIttee, consensus was not achIeved In SIX (6) Jobs These Jobs were then referred to what IS known as the Larger CommIttee whIch IS created by the addItIOn of one Employer and one Umon representatIve to the ongInal Job evaluatIon CommIttee 56 The Larger CommIttee met on approxImately 2 to 3 occaSIOns to reVIew the areas of dIsagreement concernIng the SIX non-consensus Jobs and to attempt to achIeve consensus The two addItIOnal members were provIded wIth all of the InfOrmatIOn consIdered by the CommIttee along wIth the respectIve posItIOns of the Employer and Umon representatIves The Larger CommIttee was unable to reach consensus 57 The present gnevances anse from the faIlure of the Larger CommIttee to reach consensus on the applIcatIOn of va no us cOmbInatIOns of the folloWIng sub-factors to the SIX Jobs Regulatory Knowledge, Human RelatIOns SkIlls, ChOIce of ActIOn, and Independence of ActIOn. 58 The dIspute IS summanzed as follows A. Field Auditor DIsputed sub-factor Regulatory Knowledge Umon's posItIOn sub-factor should be rated at Level F (240 pOInts) Total pOInts for Job should be 1376 POInt Band Model classIficatIOn range - 1301 to 1501 9 Salary grade 870 Employer's posItIOn sub-factor should be rated at Level E (160 pOInts) Total pOInts for Job - 1296 PBM range - 1133 to 13 00 Salary grade 865 B. Enwnomist DIsputed sub-factor Independence of ActIOn Umon's posItIOn sub-factor should be rated at Level E (200 pOInts) Total pOInts for Job - 1367 PBM range 1301 to 1501 Salary grade 870 Employer's posItIOn sub-factor should be rated at Level D (112 pOInts) Total pOInts for Job - 1279 PBM range 1133 to 13 00 Salary grade 865 C. Adiudicator DIsputed sub-factors Human relatIOns, ChOIce of ActIOn Umon's posItIOn Level G E (140 200 pOInts) Total pOInts for Job - 1603 PBM range 1502 to 1733 Salary grade - 875 Employer's posItIOn Level F D (95 112 pOInts) Total pOInts for Job - 1453 PBM range 1301 to 1501 Salary grade - 870 D. Appeals Resolution Officer DIsputed sub-factor ChOIce of ActIOn Umon's posItIOn sub-factor should be rated at Level F (350 pOInts) Total pOInts for Job - 2310 PBM range - 2302 to 2660 Salary grade 890 Employer's posItIOn sub-factor should be rated at Level E (200 pOInts) Total pOInts for Job - 2160 PBM range - 2001 to 2301 Salary grade - 885 E. Primary Adiudicator DIsputed sub-factor Independence of ActIOn (DecIsIOn-makIng) Umon's posItIOn sub-factor should be rated at Level D (112 pOInts) 10 Total pOInts for Job - 829 PBM range 732 to 844 Salary grade 850 Employer's posItIOn sub-factor should be rated at Level C (63 pOInts) Total pOInts for Job - 780 PBM range 732 to 844 Salary grade 850 F. Desk Auditor DIsputed sub-factor Regulatory Knowledge Umon's posItIOn Level E (160 pOInts) Total pOInts for Job - 952 PBM range 845 to 975 Salary grade - 855 Employer's posItIOn Level D (90 pOInts) Total pOInts for Job - 882 PBM range 845 to 975 Salary grade - 855 59 The partIes agree that the procedure for evaluatIng the Jobs outlIned In ArtIcle 18 of the Agreement was fully followed. * At the heanng the partIes further agreed that out of 806 Incumbents, 509 adJudIcator posItIOns were held by females They also agreed that out of 24 Incumbents, 18 pnmary adJudIcator posItIOns were held by females I was also provIded wIth copIes of the hIstoncal collectIve agreements from and folloWIng the 1980-81 collectIve agreement. The term 'J ob' and 'posItIOn' may be used Interchangeably In thIS decIsIOn. Paragraph 36 of the agreed statement of fact IS somewhat Incomplete Under the provIsIOns of the appeal process In ArtIcle 18 02 of the collectIve agreement, the partIes each rely on the folloWIng provIsIOn If the Larger Committee Calmot agree, the Union may apply to the Grievance Settlement Board. The Employer reserves the right to raise the preliminary objection of arbitrability In the interim the decision of the employer will be implemented. * * * 11 SectIOn 51 of CECBA provIdes 51 (I) An order of the Grievance Settlement Board shall not require the creation of a new classification of employees or the alteration of an existing classification. (2) An order of the Grievance Settlement Board shall not require a change to be made in the classification of an employee. * * * In bnef summary these facts confirm that the Job descnptIOn for each of the dIsputed Jobs forms the basIs of each Job evaluatIOn and IS measured agaInst four maIn factors, skIll, responsIbIlIty effort, and workIng condItIOns Those factors are broken down Into eIghteen sub- factors If a consensus IS reached by the partIes regardIng the applIcatIOn of these factors to the Job descnptIOn, the Job IS gIven a pOInt total That pOInt total wIll fall wIthIn a predetermIned pOInt band, reflectIve of a salary grade The salary grade reflects the claSSIficatIOn of the J ob The SIX Jobs In Issue here have been revIewed by the JOInt Job evaluatIOn commIttee and by the 'larger commIttee' There IS a dIsagreement concernIng the appropnate weIght to be gIven to certaIn sub-factors In evaluatIng those SIX Jobs In each case the umon seeks to assIgn a hIgher weIghtIng to a partIcular sub-factor(s) than the employer IS prepared to recogmze The result of assIgmng the hIgher weIght would be a hIgher overall pOInt total for that Job The umon acknowledged that In four of the SIX Jobs In dIspute that hIgher sconng would correspond to a hIgher salary grade It IS the posItIOn of the umon however that It IS not askIng the Board to place employees In those Jobs In the hIgher salary grade effectIvely changIng theIr claSSIficatIOn. Rather It argues that It IS askIng the Board, as In any dIspute concermng the InterpretatIOn of the collectIve agreement, to be the mechamsm whereby the partIes' dIsagreement may be determIned based on the cntena set out In the Job evaluatIOn system contaIned In the collectIve agreement. It argues that CECBA does not prohIbIt the Board from dealIng wIth the applIcatIOn of the partIes' Job evaluatIOn system at large It argues that there need be clear and explICIt statutory language before the Board IS rendered powerless to assIst the partIes In admInIstenng a JOIntly agreed upon Job evaluatIOn system The umon asks the Board to engage In the InqUIry SImply to determIne the appropnate sconng of the relevant sub-factor(s) for each of the dIsputed benchmark Jobs 12 It IS the posItIOn of the employer that, In substance, the umon IS askIng the Board to engage In an exerCIse that IS prohIbIted by sectIOn 51 of CECBA as any determInatIOn has the potentIal of requmng a change to be made In the claSSIficatIOn, not only of one employee, but of all employees holdIng a dIsputed Job The umon, argues the employer IS assertIng that the employer has mIsapplIed the sub-factors and, although the umon IS not dIrectly seekIng reclassIficatIOn of the dIsputed Jobs, such IS a necessary feature and result of applYIng the sub- factors 'properly' The employer relIes on OPSEU Local 559 v Centennial College (Ng) infra, to hIghlIght the close relatIOnshIp between a Job evaluatIOn system and a claSSIficatIOn system The employer referred me to and I have revIewed the folloWIng deCISIOns OPSEU v Ministry of Education (Foreman) [2005] 0 G S.B.A. No 44 (Abramsky) OPSEU v Ministry of Environment (Dobroif) [2005] 0 G S.RA. No 23 (DIssanayake) OPSEU v Ministry of Labour (Frisken) deCISIOn of Vice-Chair Gray dated June 5 1997 (#2034/94) OPSEU v Ministlyof Health (Aitken et. al.) deCISIOn of Vice-Chair Gorsky et. al dated December 21 1993 (#678/87) OPSEU v Ministry of the Solicitor General and Correctional Services (Knaap) [2000] o G S.RA. No 46 (DIssanayake) OPSEU v Ministry of Transportation (Wilson) [2001] o G S.RA. No 23 (DIssanayake) OPSEU v Ministry of Environment (Boyer) [2001] o G S.RA. No 67 (Abramsky) OPSEU v Ministry of Citizenship Culture and Recreation (Rosamond) deCISIOn of Vice-Chair LeIghton dated December 16 1998 (#2086/96) and OPSEU Local 559 v Centennial College (Ng) [2006] O.L.A.A. No 176 (O'NeIl) The umon referred me to and I have revIewed the folloWIng deCISIOns Workmen s Compensation Board, Ontario and CUPE, Local 1750 an Intenm deCISIOn of ArbItrator Weathenll dated February 4 1980 and hIS final award dated July 4 1980 Workmen s Compensation Board v CUPE, Local 1750 [1981] 0 J No 173 (DIV Ct.) OPSEU v Management Board Secretariat (Collective Agreement Grievance) [2000] 0 G S.B A. No 115 (Petryshen) OPSEU v Ministry of Finance (Lau) [2001] 0 G S.B A. No 27 (Watters) OPSEU v Management Board Secretariat (Union Grievance) deCISIOn of Vice-Chair Gray dated Apnl 4 2001 (#0196/00) Rizzo & Rizzo Shoes Ltd(Re) [1998] 1 S C.R. 27 Canada (Attorney General) v Abrahams [1983] 1 S C.R. 2, and Re Service Employees International Union, Local 204 and Broacbtay Manor Nursing Home et. al. (1984) 48 O.R. (2d) 225 (C.A.) I was also referred to the 13 recent text authored by Hadwen et. al Ontario Public Service Employment and Labour LGyt, IrwIn Law 2005 * * * It IS somewhat InstructIve to compare the language of the collectIve agreements between these partIes pnor to and folloWIng the IntroductIOn of sectIOn 51 to CECBA I have no eVIdence of any bargaInIng hIStOry Pnor to the IntroductIOn of sectIOn 51 and gOIng back to 1980 the Job evaluatIOn system contaIned In the collectIve agreements between these partIes expressly provIded that dIsputes concermng the "accuracy of the [job] descnptIOn" and dIsputes concermng the "factor level ratIngs" (see for example, sectIOns 22(e) and 23(e) of Schedule 'A' of the 1980- 81 agreement) were arbItrable and could be submItted to arbItratIOn for determInatIOn. That language was adopted by ArbItrator Weathenll In a follow-up determInatIOn anSIng out of an Interest arbItratIOn. It dIffers from the Instant case In that these gnevances represent nghts dIsputes There appears to be lIttle or no dIspute that an Interest arbItrator would now be prohIbIted from ordenng the InclUSIOn of such a provIsIOn In a collectIve agreement between these partIes gIven sectIOn 52 of CECBA (and see OPSEU v Management Board Secretariat (Union) supra) InterestIngly In these earlIer collectIve agreements, any unresolved dIspute concermng the Job descnptIOn or factor level ratIng for a 'specImen Job' (a benchmark Job) resulted In removal of that Job from consIderatIOn as a specImen Job Although thIS language appears to have contInued folloWIng the enactment of sectIOn 51 the language changes In the 1999-2002 collectIve agreement and the clause from the appeal process In ArtIcle 18 reproduced above appears for the first tIme Any express reference to arbItrabIlIty of eIther the Job descnptIOns or the factor level ratIngs IS elImInated. SpecIfic reference to 'specImen' or 'benchmark' Jobs also appears to have been removed from the collectIve agreement. In the current collectIve agreement there IS a further change, consIstent WIth paragraph 13 of the agreed statement of fact, that, faIlIng agreement as to the contents of the Job descnptIOn, the employer has final accountabIlIty for the Job content In the Job descnptIOn. All of those changes are conSIstent WIth the IdentIficatIOn of a dIspute surroundIng the effect of sectIOn 51 of CECBA on the partIes' Job evaluatIOn process, leadIng to thIS case 14 It was not suggested by the employer that the terms of the Job EvaluatIOn Plan filed as AppendIx A to the agreed statement of fact dId not form part of the collectIve agreement. It IS referenced In ArtIcle 18 02 of the collectIve agreement, although the delIneatIOn of the sub- factors and theIr sconng IS set out In that plan and not In the collectIve agreement Itself One may usefully begIn the InqUIry by reVIeWIng the folloWIng summary from Ontario Public Service Employment & Labour LGyt, supra, at pages 559 566 and 568-570 13) Restrictions of Remedial Authoritv At the present time, CECBA imposes three restrictions on the remedial authority of the GSB The first two restrictions relate to discipline and discharge cases The third restriction is that the GSB Call1lot create, alter or change an employee s classification. No such limitations apply to the remedial authority of arbitrators under the LRA The provision concerning classification is also notable for what it does not do It does not impose a legislatively-prescribed classification system that is thought to be in the public interest. Rather, it limits redress for problems with the Crown s administration of such a system. c) No Creation, Alteration or Change of Classification Section 51 of CECBA prohibits the GSB from requiring the creation of a new classification or the alteration of an existing classification, and from requiring a change to be made in the classification of an employee. (This has not prevented the parties from agreeing that the job evaluation system is outdated and needs to be replaced, although there was no waiver of the management right to manage the system. [OPSEU/MBS Collective Agreement, 2005-2008 Appendix 34] iii) Defining the Scope of the Restriction While CECBA, section 51 generally prohibits the GSB from reclassifying employees, most of the GSB s relevant jurisprudence does not actually deal with section 51 A number of the relevant cases arose under a specific, earlier, agreement between OPSEU and MBS that stipulated that all classification grievances were withdrawn. In other cases, the employer incorrectly relied on section 52 of CECBA without objection from the union. In any event, all the cases discussed below deal with the scope of limitations on classification grievances. Any grievance that involves the reclassification of the grievor at some point in time is a classification grievance In the leading case of 4itken the grievance was not fraIUed as a classification grievance, but as one of proper placement on the salaIV grid. The GSB found that the resolution of the grievance required resolution of a dispute about the grievor's correct classification at an earlier point in time (when she was in a former position) and therefore was inarbitrable. The same rationale has been applied to a requested adjustment of the date of an employer reclassification of employees. The grievances in that case were characterized as claims for retroactivity and compensation, but the GSB held that it was actually being asked to engage in a prohibited comparison of the duties and responsibilities of different classifications for classification purposes. It appears that the GSB will maintain that position even when there is no real dispute about the comparison. The GSB has declined to adjust the date on which the employer chooses to move an employee from an under fill" or entry-level classification, to the nonual classification, even though the grievor had finished the entry-level training and 15 orientation and the employer agreed that the work being done by the grievor was the SaIUe as that of the higher-rated classification. Other attempts to re-characterize classification claims have been resolved the same way The GSB has refused to accept that a grievance was, in pith and substance about the grievor s bumping rights after being surplused. The grievor wanted to return to a prior position, but her classification had been downgraded and the collective agreement did not penuit bumping her up a classification. The GSB concluded that the grievance was, in essence, a classification grievance, as it would require an eXaluination of the job that the grievor was doing before her classification was downgraded in order to decide the second issue of whether or not the grievor had been denied her bmnping rights. The same approach has been taken concerning temporary-assigmnent grievances. Under the OPSEU/MBS Collective Agreement Article 8 6 1 there is an entitlement to acting pay where an employee is assigned temporarily to perfonn the duties of a position in a classification with a higher salary maximum for a period in excess of five consecutive working days. In order to be entitled to the acting pay the grievor must prove an assignment to do all the significant duties" and not just some of the duties, of another higher-classified job This could involve some of the same kind of analysis as would take place in a classification grievance. So the focus of the inquiry must be whether the work of the claimed classification is being done and not the appropriateness of the classification. The GSB has declined to deal with a claim for acting pay where there was a dispute about the appropriate classification of the duties in question. It has been usefully clarified that the prohibition on reclassifications only applies to the reclassification of a position, and not to deciding whether a grievor should be in the position. In a job-competition grievance, the GSB held that the remedy of assigning the grievor to a new position that had a higher classification did not involve classifying a position and that CECBA did not preclude the GSB from requiring that the employer put a grievor in a particular position. The umon argued that sectIOn 51 of CECBA IS a remedial lImIt and cannot be compared WIth those deCISIOns such as OPSEU v Ministry of Health (Aitken) supra, whIch flowed from an OPSEUIMBS agreement to WIthdraw claSSIficatIOn gnevances In those cases, argued the umon, there was no JunsdIctIOn to entertaIn the InqUIry as opposed to merely lImItIng the avaIlable remedy The umon IS correct In notIng that many of the cases reflected by the passage CIted above arose under an agreement between dIfferent partIes and dId not speCIfically deal WIth sectIOn 51 and as a consequence, one must be careful before adoptIng them WIthout further conSIderatIOn. However what thIS summary does reflect IS the fact that the Board wIll look to the substance of the dIspute In determInIng whether or not the Issue IS one In whIch the Board's authonty has been lImIted by the statute In OPSEU and Management Board Secretariat (Union) supra, the Board concluded that sectIOn 51 of CECBA IS a remedIal lImItatIOn only one whIch does not otherwIse preclude the Board from enforcIng collectIve agreement proVISIOns concermng or InvolVIng claSSIficatIOn matters In that case the umon gneved that the employer had Implemented a new Job descnptIOn 16 format and re-Introduced aJob evaluatIOn decIsIOn-makIng process In vIOlatIOn of AppendIx 7(1) of that collectIve agreement. That appendIx confirmed the agreement of the partIes that the classIficatIOn system overhaul was to be deferred for the duratIOn of the collectIve agreement, and for the penod of ItS operatIOn. The Issue was whether or not that agreement prohIbIted the employer from changIng any aspect of the then eXIstIng classIficatIOn process, or whether only the eXIstIng classIficatIOn standards and the values attached by the partIes to the outcomes of applYIng those standards were frozen. In findIng that the employer had not changed the classIficatIOn system or breached ItS agreement to defer ImplementatIOn of the overhaul process, and therefore dISmISSIng the gnevance, Vice-Chair Gray noted [28] The employer does not dispute that by agreeing to defer the classification system overhaul it agreed to retain the existing classification system. The parties dispute is about what classification system embraces in this context so as to preclude its change It certainh emhraces the standards h" which OP'lE[ hargaining unit johs are evaluated in order to classifi them. That is clearh the core of the classification svstem (emphasis added) The Vice-Chair also dealt wIth the employer's alternatIve argument that had It breached AppendIx 7 or otherwIse purported to change the classIficatIOn system, the Board would be wIthout JunsdIctIOn to remedy the breach because of sectIOn 52 of CECBA The Vice-Chair revIewed that provIsIOn, concludIng that It was not applIcable to the Board. He then went on to dISCUSS sectIOn 51 [38] The emplover s assertion that [CECBA] permits it to unilaterall" alter the classification svstem with total imp un in is certain to have adverseh affected the parties labour relations, and unnecessarih so if it is untrue .Having concluded that section 52 of CECBA does not have as broad a reach as the employer suggests, I think it is important to say so in this decision. [40] The scheme of CECBA is that rights disputes - that is, disputes arising from the interpretation, application, or alleged violation of a collective agreement - are to be referred to the Grievance Settlement Board CGSB") for final and binding settlement by arbitration. CECBA, subsection 7(3) In the result, the GSB is the only tribunal to which such rights disputes may be referred. Matters relating to the GSB s jurisdiction in such matters are addressed in Part V of the Act, where section 51 is found. Section 51 imposes limits on the remedies that the GSB may order if it finds that the employer has breached the provisions of the collective agreement. It does not otherwise preclude enforcement of collective agreement provisions concerning or involving classification matters. [42] Accordingly I agree with the union s submission that neither section 51 nor section 52 of CECBA would preclude the GSB from making an order requiring that the employer comply with [Appendix] 7 if such remedy were warranted. Enforcing the parties own agreement on a classification system does not amount to detenuination. of a 17 classification system in the sense intended by section 52 of CECBA. 'luhject to section 51 and to the provisions of the collective agreement itself the GSB does have jurisdiction to enforce provisions that the parties have made in their collective agreement prescrihing the classification svstem to he used in determining compensation for hargaining unit emplovees (emphasis added) The umon relIed on Vice-Chair Gray's comments above to argue that, In the Instant case a negotIated claSSIficatIOn structure eXIsted, and that the Board was not precluded from ordenng the employer to comply wIth ItS rules Its goal was SImply to ensure that the bargaIn made voluntanly to Implement that Job evaluatIOn scheme was fulfilled. It sought an order as to the appropnate pOInts to be accorded to the dIsputed sub-factor(s) for each dIsputed benchmark Job The umon acknowledged that the partIes have already agreed to the consequences of any assessment of pOInts to each Job However the umon argued that If the employer refused to place an employee In the salary grade reflected by the pOInt total IncorporatIng the Board's assessment of the sub-factor(s) It would be precluded from comIng to the GSB to complaIn. The Issue, It asserted, centred on the partIes' agreement to JOIntly assess benchmark Jobs I note that benchmarkJobs are treated no dIfferently In theIr evaluatIOn than any other Job UnlIke sectIOn 52 of CECBA, sectIOn 51 lImIts remedy only It does not lImIt the Board's JunsdIctIOn to engage an InqUIry ThIS lesser restnctIOn must be In recogmtIOn of the fact that the Board IS the tnbunal entrusted wIth determInIng dIsputes ansIng out of the InterpretatIOn, applIcatIOn, and admInIstratIOn of collectIve agreements between partIes subJect to CECBA. That IS, It IS the entIty charged wIth enforCIng the partIes' own agreements It IS also the case that many matters anSIng under the terms of a collectIve agreement, IncludIng for example, wages, hours of work, Job postIngs, even dIsCIplIne have the potentIal to be charactenzed as gIVIng nse to a 'claSSIficatIOn' Issue To preclude the Board from havIng the JunsdIctIOn to entertaIn a 'classIficatIOn' Issue would have the potentIal of sIgmficantly lImItIng the Board's JunsdIctIOn far beyond any Issue of management's nght to determIne Job content and a claSSIficatIOn system, and as Vice-Chair Gray noted, would have a senously adverse Impact on the partIes' labour relatIOns To take perhaps an extreme example of the potentIal effect of lImItIng the Board's JunsdIctIOn, suppose partIes bargaIned a 3% wage Increase In theIr collectIve agreement. However follOWIng ItS ImplementatIOn, the employer umlaterally downgraded the claSSIficatIOns of all employees (whIle makIng no changes to any Job content) such that the wage Increase was effectIvely elImInated. PrecludIng the Board from takIng JunsdIctIOn to enforce the partIes' 18 agreement because It Involved the 'classIficatIOn system' IS a result that could not have been Intended by the statute SImIlarly If an employee were dIscIplIned for poor performance but the tasks assIgned were asserted to be beyond the Job descnptIOn and outsIde the classIficatIOn of that Job one would expect that the Board would contInue to have JunsdIctIOn to InqUIre whether or not the employer had cause to dIscIplIne the employee These are, perhaps less ObVIOusly the kInds of Issues dealt WIth by the Board In two cases relIed on by the umon. In the case of OPSEU v MinistlY of Finance (Watters) supra, the gnevances asserted that InvestIgators In the Mimstry of FInance should have receIved the same classIficatIOn adJustment provIded to Tax AudItors The Board took JunsdIctIOn and awarded a complIance remedy In that case as the Issue was the proper InterpretatIOn to be gIven to a Letter of UnderstandIng reached between the partIes, that IS, whether the InvestIgators were part of the deal As Vice-Chair Watters noted at the end of paragraph 96 .A decision in the Union s favour would not be tantamount to this Board creating a new classification or altering an existing one The parties themselves did this by way of the Letter of Understanding. Rather such a decision would simph give effect to the intention of the parties as reflected in their Letter of [Tnderstanding (emphasis added) In OPSEU v Management Board Secretariat (Petryshen) supra, the Board also proVIded a remedy notWIthstandIng sectIOn 51 of CECBA In that case the umon asserted that the employer had faIled to fulfill ItS oblIgatIOns under AppendIx 8 to that collectIve agreement whIch reqUIred the partIes to establIsh a JOInt 'Semor Persons CommIttee' to examIne the workIngs of the JOInt System SubcommIttee ("JSSC") and to "make recommendatIOns to Improve ItS operatIOn" The commIttee had been struck, It had met, but had been unable to reach a consensus on ItS recommendatIOns Therefore It faIled to make any The Board dIrected the partIes to fulfill the oblIgatIOn In the collectIve agreement to make recommendatIOns At first blush, the Impasse reached by the partIes In that case seems SImIlar to the one before me The partIes engaged an agreed upon process but were SImply unable to agree to ItS outcome The Board Intervened. However there IS an Important dIStIngUIshIng feature In that case The Board dId not Intervene to determIne the appropnate recommendatIOns It Intervened to dIrect the partIes In respect of, and to complete theIr process Although so couched In argument, the umon IS not askIng me to dIrect the partIes to properly engage theIr process It IS, In my vIew effectIvely seekIng a result, even In CIrcumstances where there IS no oblIgatIOn In thIS collectIve agreement requmng the partIes to agree In the evaluatIOn of the sub-factor(s) 19 There IS a dIfference, to borrow Vice-Chair Gray's words, between "enforcing provIsIOns" that the partIes have made In theIr collectIve agreement "prescribing the claSSIficatIOn system to be used" In determInIng compensatIOn, and actually applying the terms of that prescribed claSSIficatIOn system If the Board were to hear thIS dIspute, two possIbIlItIes anse The Board could determIne that the employer's ratIng of a sub-factor IS correct and effectIvely confirm what already obtaIns (as the collectIve agreement reqUIres that the employer's decIsIOn be Implemented whIle any dIspute IS outstandIng) AlternatIvely the Board could declare that the umon's ratIng of the sub-factor IS the correct one and make no further order It IS the case that any determInatIOn as to the appropnate pOInt level to be aSSIgned to a sub-factor wIll reqUIre a reVIew of the dutIes and responSIbIlItIes of the Job In relatIOn to ItS hIstoncal dutIes and responSIbIlItIes, In relatIOn to the reqUIrements of the partIcular sub-factor and potentIally In relatIOn to levels aSSIgned to other Jobs tYPIcally exercIses In 'classIficatIOn' However and more to the pOInt, It IS also the case that any such determInatIOn wIll have as ItS only purpose the confirmatIOn of one or other of the partIes' vIew as to the appropnate weIghtIng to be accorded the vanous sub-factors and Inherently thIS Board's VIew as to the appropnate claSSIficatIOn of the Job The total pOInts aSSIgned to a Job determIne ItS salary grade Under the terms of ArtIcle 18 02 1 (a) and 'Schedule A' of thIS collectIve agreement, the salary grade represents the claSSIficatIOn of the Job WhIle such a lImIted determInatIOn would not, stnctly speakIng, 'reqUIre the alteratIOn of an eXIstIng claSSIficatIOn' or 'reqUIre a change to be made In the claSSIficatIOn of an employees' the umon IS, In effect, askIng the Board to do IndIrectly what It cannot do dIrectly The umon IS seekIng a persuaSIve Influence, whIch purpose can only be to generate an 'alteratIOn of an eXIstIng claSSIficatIOn' or 'a change to be made In the claSSIficatIOn of an employee' somethIng whIch CECBA prohIbItS thIS Board from ordenng dIrectly That persuaSIve Influence IS also beIng sought through the applIcatIOn of a standard of reVIew that holds there IS a 'correct' valuatIOn of the sub-factor(s) There IS no suggestIOn that the employer has acted In a manner that was arbItrary dISCnmInatory or In bad faith In ItS partIcIpatIOn In thIS process Such an assertIOn, If establIshed, mIght well be subJect to remedy WIthIn the confines of sectIOn 51 The agreed statement of fact however confirms that the partIes 20 fully engaged the process but have sImply (and ImplIcItly reasonably) come to dIfferent VIews In respect of theIr assessment of partIcular sub-factor(s) In relatIOn to SIX Jobs These Job evaluatIOn standards are at the core of the classIficatIOn system The employer says that the dIsputed sub- factors are less Important. The umon would assIgn them greater Importance Arguably to accept the umon's posItIOn would be to alter the Job content. Generally speakIng, the employer has the nght to determIne what It wants done The employer must then also lIve wIth the consequences of assIgmng less weIght to these sub-factors should that Issue anse In a Job competItIOn or In a dIscIplIne context. HavIng regard to all of the above, I am persuaded that, In the partIcular cIrcumstances, the umon seeks to have the Board engage In an InqUIry for the purpose of determInIng the very thIng whIch the legIslature dId not want the Board to remedy and for whIch the Board, by vIrtue of sectIOn 51 has no JunsdIctIOn to remedy I am also not persuaded that there IS any labour relatIOns value In otherwIse purSUIng the InqUIry I therefore declIne to engage the InqUIry The umon also argued that the Board may take JunsdIctIOn In thIS matter under the Pay Equity Act In order to maIntaIn pay eqUIty gIven sectIOn 48 of the Labour Relations Act, 1995 As the employer noted, Just because a certaIn Job tItle may currently be filled by a maJonty of female employees, one does not therefore necessanly conclude that It IS a female-domInated posItIOn for purposes of pay eqUIty It IS not at all clear to me that any determInatIOn of the appropnate ratIng of these sub-factors In relatIOn to these SIX Jobs has anythIng to do wIth maIntaInIng pay eqUIty across thIS bargaInIng umt and I declIne to take JunsdIctIOn under that statute The umon may advance any such concern In the appropnate forum I note that the umon has reserved ItS nght, In the alternatIve, and wIthout obJectIOn from the employer to argue that the provISIOns of CECBA contravene the Charter 21 HavIng regard to all of the above I find that, In the CIrcumstances, sectIon 51 of CECBA lImIts the Board's remedial authonty In respect of the gnevances before me and I see no labour relatIons value In otherwIse engagIng the InqUIry Nor am I persuaded to take JunsdIctIon under the Pay Equity Act. AccordIngly I declIne to entertaIn the gnevances and they are herby dIsmIssed. Dated at Toronto Ontano thIS 24th day of July 2006