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HomeMy WebLinkAbout2017-2073.Policy.2020-02-20 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB #2017-2073 UNION #17-19 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Policy) Union - and – The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Devon Paul Canadian Union of Public Employees - Local 1750 Counsel FOR THE EMPLOYER Doug MacLeod & Fiona Martyn MacLeod Law Firm Co-Counsel HEARING SUBMISSIONS July 27, 2018, May 1 and 16, July 22, and November 19, 2019 December 3, 17 and 20, 2019 - 2 - Decision [1] The Union filed a grievance on April 24, 2017 claiming that the Employer (or the “WSIB”) had modified the Senior Financial Accountant (“SFA”) position such that it should no longer remain outside the bargaining unit, and further, that the Employer had failed to notify the Union about the changes that had been made to the position. By way of remedy, the Union seeks to have this non-bargaining unit (“NBU”) position included in the CUPE bargaining unit, and to be compensated with union dues for all hours worked in the position since the date the job was modified, along with pre-judgment interest. BACKGROUND [2] Initially the Employer challenged the timeliness of the filing of the grievance, and argued as a preliminary matter that the grievance should be dismissed. It also asserted that, in any event, the job had not been changed in any substantive way, and as such should remain as an excluded position. [3] The timeliness issue was addressed in a preliminary decision issued on August 24, 2018 (“the August 2018 decision”). That decision should be read in conjunction with this award as in it I found that the grievance was timely “because the Union could not have known that the Employer had changed the job duties of the Senior Financial Accountant until it received both an old and a current job description in early 2017, and was able to make a comparison” (at para. 38 of the August 2018 decision). [4] In addition, in the August 2018 decision I found as follows: 42. On the evidence before me in this case, I am satisfied that while the Union was aware that the Employer had undertaken the NBU Compensation Review in 2014, to its knowledge, based on what it had been told by the then-Director of Labour Relations and the Director of Benefits, the NBU job descriptions would be put in a different format as part of the Review process, and there was not going to be any job content change. In any event, and despite the established practice and collective agreement provisions regarding notification to the Union, it is clear that if there were job content changes made in the course of the Review, the Union was not notified of any at that juncture. Furthermore, after the completion of the Review, the Union was not provided with any notifications of changes in job descriptions of the sort that it has historically received. 43. According to the Employer’s evidence through Ms. Dymond, since the Review process was one of job evaluation, the Employer did not give the Union notice of specific changes to the format of the job descriptions in accordance with Article 1, because in its view the work being done in each job was not changing. On November 22, 2014 Ms. Dymond advised the Union that the Review process had been completed, and that all job descriptions were being revised. Nothing at that time would have alerted the Union to what it now contends: that the job duties of the Senior Financial Accountant have changed. … - 3 - 45. On the facts before me, I find that that the Union could not be found to have acquiesced to the alleged changes in job duties. At best, the Union had been advised that the format of the job descriptions had been changed, but it was also told that the job duties had not been changed. 46. It was not until in the course of another grievance arbitration in 2017 that the Union received both a 1997 and a 2014 job description for the Senior Financial Accountant position, and upon review of those documents, it came to the view that the job duties had changed to the point that the job should be included in the bargaining unit. Whether that is in fact the case remains to be litigated. However, it is the timing that is important. There is no dispute that after it received the 2017 documentation, the Union filed a grievance that would be timely. [5] This decision addresses the merits of the grievance. [6] In this phase of the case, the parties relied on a “Partial Agreed Statement of Facts” and numerous exhibits. In addition, the Union called two witnesses, as did the Employer. Each witness gave their evidence in chief through a will say statement, and was cross-examined by the opposing party. One Union witness was recalled to give evidence in reply. Abdirashid Warsame and Steve Phillips testified for the Union, and Mr. Phillips was recalled in reply. Jerry Joseph and Zulfiqar Aijaz testified for the Employer. Final arguments were made in writing. [7] The parties each claimed in their final submissions that the other’s witnesses should not be found to be credible for one reason or another, and that their own witnesses’ evidence should be preferred. I have not found that characterization helpful. [8] Having heard and reviewed all of the oral evidence I am of the view that each witness did his best to recall what he could. Mr. Warsame was required to recall what he, or others, had been doing from the late 1990s on. Mr. Phillips was testifying about the period commencing in the Fall of 2001 and up to the present. Mr. Joseph testified about two periods between May 1999 and May 2005, and Mr. Aijaz for the most part testified about the period from August 31, 2009 on. Thus, the witnesses were asked to recall what work had been done, and by whom, over a period of up to 20 years. It should come as no surprise to anyone that the witnesses could not always recall matters precisely. What is remarkable is that overall there was some consistency to the evidence. Where I have had to prefer one witness’ evidence over that of another I have explained why I have done so. THE EVIDENCE The “Partial Agreed Statement of Facts” and relevant provisions of Article 1: [9] The parties’ “Partial Agreed Statement of Facts” states as follows: - 4 - 1. In 2004 the parties negotiated a Memorandum of Agreement (the “2004 MOA”). Appendix A to the 2004 MOA lists approximately 120 positions that the parties agreed would be either included in the bargaining unit, or excluded from the bargaining unit. 2. During negotiations for the 2004 MOA, the Employer provided documentation to the Union in connection with each of the disputed positions. The Employer representatives contacted the various business areas and requested information about each position in dispute. In some cases the business unit provided a job summary, in other cases a job description, and in yet other cases, a job description as well as an update on the position since the job description had been created. If evidence were to have been called on this issue, Harry Goslin, President of the Union would have testified that the Union did not investigate the job duties of the disputed positions beyond the documentation provided by the Employer. At this time the Employer has no reason to believe the Union attempted to independently confirm the accuracy of this information. 3. One of the positions listed in Appendix “A” to the 2004 MOA is the Senior Financial Accountant position. At the current time, neither party knows what information the business unit provided the Employer representatives in relation to the SFA position. 4. The 1997 job description for the SFA position was in effect at the time the 2004 MOA was negotiated, and the parties agreed to exclude the SFA position from the bargaining unit. 5. The 2004 MOA provides in part that “The parties recognize that Article 1 of the Collective Agreement continues to apply when a new job is created or an existing job is modified”. 6. The Union submitted the current grievance, dated April 24, 2017, claiming a contravention of Article 1 of the collective agreement, and alleging that the Employer has modified the SFA position, it did not notify the Union, and the position remains one that is outside the bargaining unit. [10] At the time of the signing of the 2004 MOA, in April 2004, there were four SFAs excluded from the bargaining unit, and two Financial Accountants (“FA”) included in the bargaining unit. It is unclear from the Appendix to the 2004 MOA how many Financial Analysts there were in the bargaining unit as that is not a title that appears in the Appendix. There is a reference to there being six Business Systems Analysts in the Financial Services division, which is where the SFAs and FAs are listed, but there is no evidence before me to confirm whether these six individuals are what the parties were referring to when they talked about Financial Analysts. - 5 - [11] In Article 1.01 of the collective agreement the parties have agreed that CUPE is the exclusive bargaining agent for all WSIB employees “save and except persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act or by virtue of the criteria set out in Appendix 4”. [12] In Article 1.02 the parties note some specific jobs which are excluded from the bargaining unit, none of which are relevant for the purposes of this case. [13] As noted above, in 2004 the parties had reached a Memorandum of Agreement (the “2004 MOA”) regarding “Inclusions/Exclusions” from the bargaining unit, and had attached an Appendix A to that Memorandum that listed all current NBU positions and their incumbents, as well as an Appendix B which contained a list of all current bargaining unit positions and their incumbents. They agreed that these lists would be used for Article 1 purposes. [14] Article 1.04 states that: The following does not constitute Article 1 modification: - A title change without job content change - An increase in complement of positions currently in the non-bargaining unit, and/or - Changes in reporting without job content modification or alteration in authority. [15] Article 1.05 outlines the Employer’s obligations and process to be followed if the WSIB intends to create a new job or to modify an existing job, whether it be a classified or unclassified position, and if the job is to be excluded from the bargaining unit. It is not necessary to outline the details of the process at this juncture. Suffice it to say that in such instances the Employer has undertaken to provide to Union representatives, by email or other written communication method, the job description and/or an explanation sheet in accordance with Appendix 4. [16] Appendix 4 is the form that must be used by the Employer when there is a new or modified NBU job, and/or when, pursuant to Article 1.05, it needs to notify the Union of something. The form lists the various possible exclusion criteria of NBU positions, e.g. if the job requires a member of various professions (not including professional accountants); whether the job requires the exercise of managerial functions, or that the incumbent work in a confidential capacity in matters dealing with labour relations, or has duties or responsibilities that constitute a conflict of interest with their being members of a bargaining unit; an increase in the complement of positions currently in the NBU; agreement between the parties that has addressed a particular exemption; or if there are other reasons for exclusion, or modifications to the job, which then must be specified. - 6 - Review of the 1997 and 2014 Senior Financial Accountant job descriptions: [17] One question in this case is whether the SFA position has been “modified” from what it was when the 2004 MOA was reached using the 1997 job description, compared to the 2014 SFA job description, which was still in use in 2017 when this grievance was filed. [18] From a cursory review of the 1997 and 2014 SFA job descriptions, which were made exhibits in this proceeding, I have noted a few significant differences, each of which will be addressed below. These apparent differences assist in the consideration of the wide-ranging evidence the parties called. [19] The 1997 SFA “Job Summary” provided a precis of what the person in such a position was expected to do: Provide expert advice and direction to staff and management regarding financial transactions, financial reporting, financial systems, planning and broad financial issues; participate and/or manage and direct accounting/system projects; represent management in defining and communicating financial reporting and internal control requirements on projects or initiatives which have Board wide impact operationally and financially. [20] By 2014, the SFA “Job Summary” reads as follows: The Senior Financial Accountant is a professional whose responsibilities focus on the preparation of monthly, quarterly and annual financial statements. These responsibilities are carried out to provide senior management and the Audit and Finance Committee the assurance regarding the quality of the information that underlies the WSIB’s consolidated, subsidiary and WSIB pension plan financial statements. The incumbent also participates/leads corporate projects/initiatives with impacts on financial reporting or financial systems to provide specialized expert advice and recommendations to management and internal clients to ensure financial reporting requirements are met. … [21] As is obvious from the two excerpts above, the focus of the SFA job, as described in the WSIB’s “Non Bargaining Unit Job Description” had changed in one major respect: from the provision of expert advice and direction regarding various financial matters, to one of preparation of monthly, quarterly and annual financial statements. [22] In the 1997 job description one of the “Major Duties & Responsibilities” stated: 2. Review proposed changes and its impact on Board accounting policies and procedures in relation to GAAP, external factors including current legislative requirements, the WSI Act and WSIB objectives. Prepare policy papers on financial reporting and internal control issues with recommendations for - 7 - improvements to be adopted, which may involve Board wide areas and any financial implications to the Board. Develop the recommended policies and procedures for implementation. (Emphasis added) [23] The role of the SFA in the development of policies has been markedly changed in the “Major Responsibilities” as outlined in the 2014 SFA job description. The only reference to policy work is as follows: Review proposed external accounting policies such as International Financial Reporting Standards (IFRS), the WSI Act and WSIB objectives and legislative requirement changes and their impact on current WSIB accounting policies and work with Manager(s) and Manager Accounting Policy to recommend changes to senior management and develop and implement processes and procedures to capture approved requirements. This includes: … - Work collaboratively with all teams within Corporate Controllership Branch, other WSIB areas of WSIB to implement policies and procedures. (Emphasis added) [24] Thus, it would appear that where the SFAs were expected to prepare policy papers and develop policies pursuant to their 1997 job descriptions, by 2014, they were to work with Managers and the Manager Accounting Policy to recommend policy changes to senior management, and their job appears to have become one of implementing policies and procedures, rather than what was earlier the development of policies and procedures. [25] Another aspect of the “Major Duties & Responsibilities” in the 1997 job description stated: 10. Assist the Manager in defining staff resource needs, co-ordinate staff activities/usage for projects, develop section planning and training needs, recommend changes in procedures to improve efficiency and effectiveness of the section. [26] Related to the above, in the “Responsibility” section of the 1997 job description, it stated that the SFA’s responsibilities included “provide input into performance evaluations for staff assigned to incumbent’s project”. [27] There is no reference in the 2014 SFA job description to any role in assisting the Manager in defining staff resource needs, the coordination of staff activity and/or usage on projects, or developing section planning and training needs. Nor does the 2014 SFA job description make any mention of providing input into performance evaluations for staff who had been assigned to work on the SFA’s project. Thus, it would appear that by 2014, there was nothing in the SFA job description that had a managerial aspect in respect of other staff, or required an SFA to act in a confidential capacity as regards what could be defined as labour relations matters (staffing levels, performance evaluations, the development of section planning and training needs). - 8 - [28] As already outlined in the August 2018 decision, the Union was never advised of these, or any, changes in the SFA job description between the execution of the 2004 MOA and sometime in 2017, when the 1997 and 2014 job descriptions were provided to the Union in the course of another proceeding. The Witnesses’ Backgrounds: [29] Abdirashid Warsame is a Chartered Professional Accountant. He is also a designated Canadian Investment Manager, and he has a Bachelor’s degree in Business and Accounting. [30] Mr. Warsame was first employed by the WSIB in 1991, when he began as an Accounting Clerk in the Finance Division, in what is now known as the Corporate Controllership business area. From 1992 or 1993 to October 1997 he was in the position of Mortgage and Real Estate Accounting Specialist in the Corporate Controllership area. In that role he was a member of the Investment Administration team responsible for accounting for all activities of the WSIB’s investment assets. He prepared accounting entries, financial statements, management reports, and provided investment reporting for the Investment Division. In October 1997 the WSIB outsourced the entire Investment Division, including the Investment Administration, resulting in Mr. Warsame being laid off. [31] When he was recalled to work in July 1998, it was to the position of Investment Accounting Analyst, where he did many of the same investment accounting tasks he had previously done as a Real Estate Accounting Specialist. He was later given additional responsibilities for investment compliance, transaction cost analysis, proxy services, and as well he worked on the budget for the Investment Division, and money market trading. He performed many of these tasks until around 2015. [32] However, in 2004 or 2005 Mr. Warsame’s title changed to Senior Investment Accounting Specialist, and in addition to his regular duties, he began to provide assistance to the Vice President, Investment with the day-to-day management of the WSIB’s investments. The additional tasks included performance analysis, investment relations management, reviewing financial statement disclosure notes, review of compliance reports, and liaison with the W SIB’s Investment Custodian. [33] Although it seems unusual that Mr. Warsame would have been recalled from layoff to a position outside the bargaining unit, the Employer asserted that the positions that he held between 1998 and 2004 were non-bargaining unit positions. The Union believed that Mr. Warsame had a home position in the bargaining unit as an Investment Accounting Analyst, but was temporarily assigned outside the bargaining unit for the period to which the Employer refers. The location of Mr. Warsame’s position was not resolved through the evidence before me. This lack of clarity is emblematic of the problems the parties seemed to have in martialing evidence from a long time ago. - 9 - [34] Mr. Warsame testified that in and around 2000 or 2001 Steve Phillips, a SFA, took over the real estate accounting that Mr. Warsame had been doing up to that point. However, based on Mr. Phillips evidence, he recalls that he took over the real estate accounting work in and around 2003 or 2004. I prefer Mr. Phillips’ recollection as he only became a SFA in late 2001, at which time he was responsible for revenue accounting and analysis. Thus it would not have been likely that he could have taken over the real estate accounting from Mr. Warsame in 2000 or 2001. [35] In 2010 Mr. Warsame was moved back from the Investment Division to the Corporate Controllership area in order to assist in the implementation of a new set of accounting standards that the WSIB was adopting: the International Financial Reporting Standards (“IFRS”). In addition to the investment accounting tasks that Mr. Warsame had been doing all along, he helped with preparing financial statement notes that went to the Investment Division for review, and to be included in WSIB financial statements. [36] In 2015 Mr. Warsame was advised that his position as a Senior Investment Accounting Specialist had been declared redundant. In 2016 he was ultimately moved to a position back in the bargaining unit as a Financial Accountant (“FA”), and that is the position Mr. W arsame currently holds. [37] In cross-examination, the Employer put to Mr. Warsame that his position between January 2006 and October 2016 had been that of an Investment Accounting Analyst. However Mr. Warsame maintained that he had held the title of Senior Investment Accounting Specialist throughout, until he was moved into the FA position in October 2016. I note that the 2014 organizational chart for the Finance Division, entered into evidence by an Employer witness, shows that in 2014 Mr. Warsame was listed as the Senior Investment Accounting Specialist, so Mr. Warsame’s evidence is to be preferred over the Employer’s assertion about what his job title was at the time. [38] There appears to be an individual grievance filed about whether Mr. Warsame’s position was in fact redundant as he disputes that fact. I am advised that in August 2017 the arbitration of that grievance was stayed pending the outcome of this Union grievance. [39] The Employer suggested in cross-examination that Mr. Warsame had a vested interest in the successful outcome of this grievance, but the witness indicated he did not know whether it would help him or not. He conceded that if the SFA position was found to be in the bargaining unit, and if an opening came up, he would apply for such a job. When it was suggested to him that he stood to get a raise if he got a SFA position, Mr. Warsame pointed out that his salary grade as a Senior Investment Accounting Specialist had been equal to or higher than the SFA salary grade, so he was not sure whether he would see any financial gains as it appears that he is still being paid at that level. Having considered Mr. Warsame’s evidence as a whole, I find that nothing turns on his having an - 10 - individual grievance regarding his former position, and I can find no reason to discount this witness’ testimony on that basis. [40] Steve Phillips is a Senior Financial Accountant who was called by the Union as a witness. He currently works in Corporate Controllership Services. Mr. Phillips is not in the bargaining unit, and was summoned to testify. He began working at the WSIB in August 2000 as a Revenue Auditor. In the Fall of 2001 he got a position as a SFA, and has continued in that position ever since. Like Mr. Warsame, Mr. Phillips is a member of Chartered Professional Accountant Canada. He was originally certified as a Certified Management Accountant in 1992. [41] Jerry Joseph testified for the Employer. Mr. Joseph is currently the Manager of Treasury. However, from March 1999, when he first started at the WSIB, to December 2001, and again from March 2003 to May 2005, he managed FAs and SFAs when he was the Manager of Financial Reporting. In cross-examination it was put to Mr. Joseph that he had also managed Financial Analysts during these time periods. The witness could not recall the title of the workers, but he agreed there had been three classes of accounting employees. Mr. Joseph had been Steve Phillip’s Manager when Mr. Phillips became a SFA in late 2001, and again between 2003 and 2005. [42] Zulfiqar Aijaz testified on behalf of the Employer. Mr. Aijaz is currently the Assistant Director of Corporate Controllership. He began working at the WSIB as a Survey Assistant on July 4, 2007; became a Payment Specialist in late April 2008; and then worked as a Financial Analyst from August 31, 2009 to July 2010, at which time he became a SFA until early 2015. He was the Team Lead of Controllership and then the Manager of Corporate Controllership between January 2015 and July 2017, until he assumed his current position. The Finance Division: [43] It is Mr. Phillips’ uncontested evidence that there are essentially two business areas in the Finance Division at the WSIB, along with one smaller subsection. The two main business areas are: Investment Accounting (which may now be known as Subsidiary Accounting and Consolidation), which also has the small subsection for Pension Accounting; and the other business area, Corporate Controllership Services, includes everything else. [44] In 2001, there were three classifications of employees performing accounting work: Financial Analysts, Financial Accountants, and Senior Financial Accountants. In the Investment Accounting area, the WSIB also employed Investment Analysts. [45] SFAs work in specific areas, but are transferred around between all areas. Mr. Phillips has worked in all the areas during his tenure with the WSIB, and it - 11 - appeared that Mr. Aijaz had also done so, albeit over a much shorter period of time. [46] Mr. Aijaz testified that since 2004 there had been a number of business changes within the WSIB that had resulted in the need to hire more SFAs. In particular, since 2004 there has been a change in the financial reporting framework, particularly as there was a switch from Canadian Generally Accepted Accounting Principles (“Canadian GAAP”) to the International Financial Reporting Standards, and new waves of IFRS that were subsequently introduced. The shift from Canadian GAAP to IFRS began in 2011, and was completed in 2012. The IFRS are more complex, require more judgment, and require very lengthy disclosures. [47] The SFAs, according to Mr. Aijaz, were involved with implementing all changes to the IFRS and International Accounting Standards. I note that in 2010, although he was not a SFA, Mr. Warsame was moved back from the Investment Division to the Corporate Controllership area in order to assist in the implementation of the new IFRS accounting standards that the WSIB was adopting. [48] In 2013 and 2014 there were new accounting standards introduced for pension plans. [49] When implementing the new accounting standards, Mr. Aijaz testified that the SFAs had to start tracking information in more detail. In order to accomplish that, the SFAs had to create new ledger accounts, had to figure out how they would get the detailed information they would ultimately need, and on a regular basis collect that information and book it. In addition to booking it, they had to disclose such information in the financial statements, all of which required more, and ongoing, work. [50] Mr. Aijaz testified that the other area of significant change for the WSIB had been that it adopted a new strategy to eliminate its unfunded liability: It decided to diversify its investment portfolio to include investments in real estate and infrastructure. That resulted in a 30% growth in investment assets between December 2004 and 2011. According to Mr. Aijaz, this also resulted in an increase in the number of SFAs in investment accounting increasing from one to four. [51] In particular, Mr. Aijaz indicated that in 2004 the WSIB did not have many investment strategies: it focused on equity and fixed income investments, with a small investment in real estate. It would appear that from 2010 on, the WSIB slowly began to diversify its investments to include absolute return, diversified market and infrastructure holdings, and to increase appreciably its real estate investment. The witness testified that once the WSIB began to acquire private market investments, they had to be held in separate companies. [52] In April 2013 the WSIB contracted with Mercer Canada to conduct a NBU compensation review. As part of that review all SFAs were required to complete - 12 - a Job Information Questionnaire (“JIQ”), which contained questions about the job duties and responsibilities of a SFA. Messrs. Phillips and Aijaz, who were both in the Financial Reporting branch at the time, signed off on the SFA JIQ on June 18, 2013, along with the other two SFAs who were also working in the Subsidiary Accounting and Consolidation division. Number of SFAs, and when work transitioned to them from other jobs or changed: [53] As noted earlier, when the 2004 MOA was reached there were two FAs and four SFAs employed at the WSIB. Those are the numbers listed by the parties in Appendix A to the 2004 MOA. According to Mr. Phillips, in 2004, there were three Financial Analysts. The Financial Analyst position was in the bargaining unit, but no longer exists. It is unclear when that position was phased out, although Mr. Aijaz held that title until July 2010. [54] Based on Mr. Aijaz’ testimony and a 2014 organizational chart for the Finance Division, there were 11 SFAs working in three branches within the Finance Division, Corporate Controllership, Financial Reporting and Accounting Policy arm. The three branches are Financial Reporting, Subsidiaries & Consolidations, and Corporate Controllership Services. According to Mr. Aijaz, each branch has a different focus, and the SFAs in each branch have different duties. However, SFAs are moved across branches. [55] In 2014 there were three SFAs working in Financial Reporting; and four SFAs in each of Subsidiaries & Consolidations and Corporate Controllership Services. At that time there was only one FA, who worked in the Corporate Controllership Services branch. [56] According to Mr. Warsame, in 2019, there were still only two FAs, but 12 or 13 SFAs. *** [57] It is worth noting that although Mr. Aijaz did not start working at the WSIB in any capacity until 2007, he testified about the period from 2004 on. He had joined the accounting team as a Financial Analyst in 2009, and became a SFA in 2010. In cross-examination, Mr. Aijaz conceded that he had no personal knowledge of what duties SFAs, FAs, or Financial Analysts had been doing before he joined the department at the end of August, 2009. [58] As a Financial Analyst, Mr. Aijaz had performed journal entries and reconciliations. He conceded that most of the work that he had done as a Financial Analyst in 2009 and 2010 is now done by SFAs and FAs. [59] As a Financial Accountant since 2016, Mr. Warsame’s duties include the posting of journal entries to the general ledgers, preparation of assigned journal entries in - 13 - his own area, and the reconciliation of assigned general ledger accounts. He reviews monthly, quarterly and annual financial statement numbers; provides analysis of variance; prepares HST filings for the WSIB; prepares assigned financial notes for the annual and quarterly disclosures; prepares quarterly forecasts for the WSIB’s fixed assets, and is responsible for accounting tasks associated with maintaining the integrity of the WSIB’s fixed capital assets in the Fixed Asset Management System. [60] According to Mr. Warsame, the FA duties and responsibilities have remained largely the same during his tenure with the WSIB, and certainly since at least 2004. However, the role of the SFA has changed considerably over time. Beginning in and around 1993, in his various accounting roles at the WSIB, Mr. Warsame has worked closely with individuals in SFA positions. In cross- examination Mr. Warsame acknowledged that the basis of his knowledge of what FAs and SFAs were doing until 2014 is based on his interactions with individuals in those roles while he was in his previous positions. [61] At the time of the 1997 SFA job description, in his experience SFAs mainly reviewed the work of other accounting staff, and provided professional help and guidance regarding the technical work of those staff. They were also responsible for new accounting disclosures or standards that were developed, and they took on projects. [62] Beginning in and around 1998, Mr. Warsame observed that SFAs gradually started to take on work that had previously been done by FAs, primarily tasks relating to investment and real estate subsidiary accounting. As already noted earlier, in 2003 or 2004 real estate subsidiary accounting work that Mr. Warsame had been doing was transferred to Mr. Phillips, a SFA. According to Mr. Warsame, the transfer of this type of work accelerated significantly in or around 2004 or 2005. His evidence is consistent with that of Mr. Aijaz that the work of SFAs grew because of the expansion of the WSIB’s investment portfolio in infrastructure and real estate, so that there is now much more work for the infrastructure and real estate subsidiaries than there had been. He testified that the WSIB investment portfolio grew from approximately $6 billion in 1998 to now more than $30 billion. [63] After 2004 the SFAs also took over the preparation of financial investment notes. Mr. Warsame continued to work on disclosure notes for areas like fixed capital assets, but no longer did any relating to investments. [64] Mr. Joseph identified John Filipowicz as a SFA who had done investment note disclosure to the annual report from 2000 on. He testified that Mr. Filipowicz would have prepared the annual report note, which would then have been inserted into the financial statement. The witness conceded that in fact the system generates the page based on the inputs from various people, and is done in conjunction with Actuarial Services, who put the note together working with Mr. - 14 - Filipowicz. Nonetheless, he maintained that Mr. Filipowicz was ultimately responsible for the information contained in the notes. [65] In Mr. Warsame’s view, the work performed by FAs and SFAs is now very similar, albeit in different areas: fixed capital assets for FAs and investment and real estate assets for SFAs. He maintains that SFAs are now doing work that he or people in his FA or Financial Analyst classifications had been doing. According to Mr. Warsame, in their areas of investment and real estate assets, the SFAs prepare accounting journal entries, reconcile general ledger accounts, and provide financial forecast and variance analysis for their assigned accounts. [66] When Steve Phillips became a SFA in 2001, he was replacing another SFA, and his duties primarily related to revenue accounting and analysis. By 2003-2004, he had taken over real estate accounting work that he believed had previously been performed by a Financial Analyst, and pension accounting that had previously been done by another SFA. At that juncture, one of the main functions of the SFAs was to provide accounting expertise and guidance to both management and to the Financial Analysts and FAs. [67] Mr. Phillips noted that providing technical direction to FAs and Financial Analysts was not continuous work as it was only required when there were new accounting processes being put in place. The SFA would provide some assistance during the phase in. If a FA was familiar with the work, the SFA did not have to provide any technical direction on an ongoing basis. [68] While Mr. Aijaz, who became a SFA in 2010, testified that SFAs provide FAs with technical direction and guidance, he conceded that one of the two FAs, Mr. Warsame, required little if any direction or guidance from SFAs. [69] Mr. Phillips testified that the SFAs in his area all perform tasks that in 2004 were performed by Financial Analysts, and not by SFAs. Now, those tasks are generally performed by both SFAs and FAs, and include: - Benefit Analysis: This includes accounting analysis, journal entries, and reconciliation work related to injured worker benefits paid by the WSIB. Some of the tasks are new tasks not performed in 2004, but of those that were performed in 2004, Financial Analysts did the reconciliation work and adjusting journal entries. - Administration: This is accounting work connected to the payment of legislative obligations, and doing journal entries regarding accruals relating to legislative obligations. In 2004, this work was done by Financial Analysts. - Real Estate Accounting: This is the work, described earlier, that Mr. Phillips took over from a Financial Analyst in 2004, and which has - 15 - subsequently grown in volume, and most has been transferred to other SFAs in his business area. [70] According to Mr. Warsame, SFAs took over some responsibilities for claims, premiums and benefit liabilities, which had been performed by FAs prior to 2004. [71] Mr. Phillips was cross-examined about SFAs in 2004 having oversight over benefit analysis. The witness indicated he had not done that work, and as far as he knew, there had been only one FA who was responsible for benefit analysis. That person reported to the Manager at the time, Jerry Joseph, and was not overseen by a SFA. [72] Mr. Joseph testified that SFAs did work relating to claims, premiums and benefit liabilities. He maintained, contrary to Mr. Phillips’ evidence, that SFAs had oversight of benefit liabilities analysis. Mr. Aijaz too believed that an SFA had oversight of benefit analysis in 2014. [73] Mr. Joseph identified a chart with a breakdown of benefit liability by benefit costs and payments in 2003 and 2004. According to Mr. Joseph, the analysis had been prepared by John Filipowicz in February 2005, but he claimed that SFAs had been doing such work in April 2004. However, there is no documentary evidence in this proceeding of such work being done prior to February 2005. Mr. Joseph testified that the FAs would do the day to day work regarding benefit analysis, but the SFAs would look at the overall picture for a month or a year, to ensure there were no issues that needed to be explored. [74] Mr. Phillips did not recall any SFA doing benefit analysis in 2004, and doubted that any did as there was not much benefit analysis being done at that juncture, and, very few people knew how to do it, with the exception of the one FA who was doing it. Mr. Phillips could only recall on two occasions, once in 2004, and then again some years later, when he had been asked to review some of the reconciliations in the benefit analysis area. [75] I am satisfied that there is not a significant difference between Messrs. Phillips’ and Joseph’s evidence as it relates to the SFA role regarding benefit analysis: Both Messrs. Phillips and Joseph agree that in 2004 an FA and Financial Analyst did the day to day benefit analysis work; Mr. Phillips does not recall any SFA doing benefit analysis work generally in 2004; Mr. Joseph has not named any SFA who did such work, but he does recall that SFAs had some oversight over benefit analysis (as for example the chart created by Mr. Filipowicz in February 2005); and, Mr. Phillips recalls having reviewed some reconciliations in the benefit analysis area on two occasions, once in 2004 and again some years later. So it would appear that a SFA did exercise some oversight over benefit analysis in 2004 and after. [76] Mr. Phillips was cross-examined about what “Administration” work entailed, and indicated that it could be reconciliations, paying invoices, preparing journal - 16 - entries, and such. In 2004 that work was not done by SFAs, but now some of it is done by them. His evidence is undisputed in this regard. [77] In cross-examination Mr. Phillips testified that while everyone did journal entries in 2004 (SFAs, FAs and Financial Analysts), the majority were done by FAs and Financial Analysts at that time. After 2004 SFAs began to do far more journal entries than they had done previously. [78] Mr. Joseph testified that, based on his experience prior to the 2004 MOA being reached, SFAs performed accounting journal entries, reconciled general ledger accounts or reconciliations, and provided financial forecast and variance analysis. According to Mr. Joseph, he observed no change in the duties of the SFAs between 1999 and 2001, and between 2003 and 2005. [79] In cross-examination Mr. Joseph conceded that in 2004 employees other than SFAs had the primary responsibility for journal entries and reconciling general ledger accounts, and they did work relating to claims, premiums and benefit liabilities, but he pointed out that the complex aspects of each of these areas were done by SFAs. Thus, while simpler routine journal entries may have been done by Financial Analysts and FAs, the more complex journal entries would have been done by SFAs. [80] When it was put to him that the 1997 SFA job description did not contain a single reference to SFAs being responsible for journal entries, Mr. Joseph agreed that was correct. He indicated that the only journal entries that SFAs would have been doing would have been those based on analyses conducted by the SFA that would result in a journal entry that would be done in the context of preparing financial statements. As an example, Mr. Joseph stated that when the trial balance is done, and the SFA prepares the financial statements, if they find that something was not done correctly, they do working entries to adjust the financial statement. [81] According to Mr. Joseph, the SFAs he managed in 2004 prepared financial statement notes, and one SFA carried out investment note disclosure to the annual report. Mr. Joseph testified about a number of documents which he identified as having been prepared by SFAs. One was of financial notes for an annual report for the year ending December 2004, created in March 2005 by John Filipowicz. It is unclear why Mr. Joseph claimed that was the type of work that SFAs were doing in April 2004 when this was clearly not a document created by a SFA in April 2004. It was for the 2004 annual report, which is prepared after the end of the year. Furthermore, the date on the document itself says it was created in March 2005. As such, I cannot find that this was an example of financial notes for an annual report that a SFA had prepared in 2004. [82] Mr. Joseph testified about a document prepared regarding premium accruals in 2000. He claimed that the document had been created by a SFA, Turi Tang, in March 1999. That seems implausible as the document contains figures for both - 17 - 1999 and 2000 actual payroll numbers, and states in a note that the source of the 2000 numbers had been corporate data as of February 12, 2001. So while perhaps something had been started in March 1999, I cannot accept that the document was prepared then. As with other documents, Mr. Joseph claimed that this was the type of work that SFAs had been doing in April 2004. Despite the inconsistency in Mr. Joseph’s evidence about this particular document, I accept that prior to 2004 a SFA did prepare a premium accrual document. [83] According to Mr. Joseph, the SFAs would do the type of analysis seen in the documents described above, and then at the year end, they would do the journal entry for that particular matter. As such, he testified that in 2004 SFAs did some journal entries. In that regard, his evidence is consistent with that of Mr. Phillips, who also maintained that prior to and in 2004 SFAs did some journal entries. [84] With respect to reconciling general ledger accounts, the SFAs would compare the subledger for such areas as Accounts Receivables or Employee Future Benefits, and then reconcile that back to the Trial Balance or the General Ledger accounts. According to Mr. Joseph, in 2004 the SFAs did some reconciliations. The SFAs would do financial forecasts and projections, as well as variance analysis looking at year over year results, in order to explain what had changed. Mr. Joseph testified that in 2004 the SFAs did some accounting analysis. [85] There is no dispute that in 2004 real estate accounting work was not a substantial amount of Mr. Phillip’s SFA work. However, between 2004 and 2014, that work increased so significantly that it began to crowd out the performance of Mr. Phillips’ other functions. When Mr. Aijaz became a SFA in 2010, he took over real estate subsidiary accounting work from Mr. Phillips, who he understood had himself taken over some of that work from Mr. Warsame when he had been a Financial Analyst. [86] In cross-examination Mr. Phillips was shown a document that purported to show that he had prepared a balance sheet for a real estate holding for December 31, 2003. Mr. Phillips identified the document as a line by line consolidation of one of the real estate entities that he had prepared sometime in 2004, which was consistent with his evidence in chief. [87] He was also shown two reconciliations for the period that ended December 31, 2004. Mr. Phillips confirmed that he had prepared them from the financial statements for different WSIB real estate investments, comparing what the custodian records for those locations stated and the reports the WSIB had received from the property manager, who produces the financial statements. One document was to show the owner’s equity, the owner being the WSIB. The second document was a check he conducted to see if the findings were consistent. According to Mr. Phillips, that was the work that he was doing at the time regarding the real estate entities as he was just taking over that work and wanted to do an ad hoc analysis. - 18 - [88] It is unclear what the Employer was seeking to prove by these documents as they simply confirmed Mr. Phillips’ evidence that he began to take on real estate accounting tasks in 2004. I have found his evidence credible in that regard. [89] Mr. Phillips testified that he could not recall doing any formal reconciliations in 2004, although that is what he now does. He explained that a formal reconciliation is a process of review in which the accountant reconciles to what is in the general ledger, and it is signed off by a supervisor or manager. As a SFA Mr. Phillips was from time to time tasked with reviewing reconciliations performed by Financial Analysts, and around 2004, was also tasked with reviewing intercompany reconciliations, which were not being performed correctly at that time. [90] With respect to whether SFAs were doing any formal reconciliations up to 2004, I prefer Mr. Phillips’ evidence to that of Mr. Joseph. Mr. Joseph provided no examples of any SFA having performed a formal reconciliation up to and in 2004. Mr. Phillips was a SFA at the time, and had been for three years, and he had not done any formal reconciliations up to and including in 2004. He had reviewed reconciliations performed by Financial Analysts, but had not had to do reconciliations himself. He commenced that work after he took over real estate accounting work. As such, I prefer Mr. Phillips’ evidence. [91] While he was a SFA between 2010 and 2015, Mr. Aijaz testified that his job duties did not change although there were some changes in the way he performed his duties, and there was an increase in the volume of work due to the growth of the WSIB. [92] According to Mr. Phillips, in the last several years the WSIB has hired other SFAs to take over some of the real estate accounting tasks that had been taking up so much of his time. However, he still does a very significant number of account reconciliations, far more than he used to do in 2004, when such reconciliations were substantially performed by FAs and Financial Analysts. [93] During the period between 2004 and 2014 the WSIB acquired a significant number of additional subsidiary companies in order to invest in real estate, going from two or three subsidiaries in 2004 to over 20 now. Since the WSIB subsidiaries were structured with either complete or majority ownership by the Employer, accounting rules required that the financial statements of the subsidiaries must be consolidated with the WSIB financial statements. Hence more and more of Mr. Phillips’ time was spent on real estate accounting functions that had previously been performed by Financial Analysts. [94] In 2004, according to Mr. Aijaz, based on his review of past financial statements in the course of his work, the consolidation work required to be done by SFAs was very limited as there were only four entities, and the accounting requirements were less stringent. In this respect, his evidence is consistent with Mr. Phillips. As the size and complexity of the WSIB’s investment portfolio - 19 - increased, as also did the frequency of financial reporting, and other factors, Mr. Aijaz testified that more SFAs were required. [95] According to Mr. Aijaz, once the WSIB began to diversify its investments in real estate and infrastructure holdings, the SFAs had to therefore consolidate many more entities into the WSIB than they had done before, and all consolidation work is done by SFAs. [96] Mr. Aijaz was cross-examined about the role of the SFA in real estate consolidations. The Union put to the witness that real estate consolidations are conducted based on a method dictated by accounting policy, and that the SFA doing the consolidation simply applies the method. Mr. Aijaz did not agree at all as he testified there was much more to the work involved. When the WSIB purchases an entity, or establishes an investment entity, the SFA, along with others, has to decide what the WSIB’s level of control is in the entity. The Accounting Policy branch and auditors are involved, as it is a big exercise to establish whether the WSIB has control of the entity. There are three or four accounting treatments that are possible. Accounting policy helps the SFA to determine what particular treatment may be appropriate, and that recommendation is made to the Manager. If the manager does not approve the recommendation, the SFA and manager go back and forth until a decision is made about how the entity should be classified. The SFA would then implement the decision by calculating and booking the opening balances, setting up the entity in the system, and then doing journal entries to record information for that entity. [97] According to Mr. Aijaz, from his review of the records, Mr. Phillips had worked on consolidation of real estate entities in 2004. Mr. Aijaz recalled that he and Mr. Phillips worked on real estate consolidations in 2010 when he became a SFA, and as more SFAs were added to the division, they all did the same sort of work as the WSIB real estate portfolio grew. [98] The SFA workload therefore increased as they had to prepare more notes for financial statements, more disclosures, and overall, more financial statements as one had to be prepared for each entity. In 2004 there had been four entities. Of those, the SFAs had to do financial reporting once a year for three of the four, as the fourth was not controlled by the WSIB. By 2014, there were at least eight entities held directly by the WSIB, and approximately 32 subsidiaries, entities held by pooled investment funds, joint ventures and unconsolidated structured entities. In addition, beginning in 2009, and by 2014, the frequency with which consolidated financial statements were required increased from annually to quarterly. [99] Mr. Phillips had created tools and templates to be used by Financial Analysts and FAs, and, as needed, provided technical direction to them on how to perform day-to-day accounting work. That is work that he did in 2004, and continued to do in 2014. - 20 - [100] In cross-examination Mr. Phillips was shown a Journal Entry Cover Sheet which he had apparently designed in July 2015 to improve the journal entry process, and it was put to him that he was still coming up with templates. Mr. Phillips pointed out that it is still one of the SFA duties to provide advice on accounting processes, and this was just an example of that work. He had actually prepared the document in 2015, it had never been used, and then in April 2019 his manager, Ms. Chu, had sent it around to staff. [101] As an SFA, Mr. Aijaz confirmed that he created templates for use by FAs and junior SFAs to complete their work. An example was put in evidence of a template or tool that he had created in March 2014. It was for calculating the allowance for doubtful accounts and bad debts, and would be used by FAs to book monthly journal entries. There was a similar example from April 2014, where Mr. Aijaz had created an Excel file to simplify the process for FAs to record premium and experience rating. [102] In cross-examination Mr. Aijaz conceded that in and around 2010 to 2013, when he was a SFA, he generally created templates for his own use as there was no FA in his particular area. In 2014, when he was in the Corporate Controllership Services branch, there was a FA, and he created templates for that person’s use, as well as for his own use. He conceded that FAs also create their own templates. [103] In 2004, Mr. Phillips testified that SFA work involved establishing and improving accounting policies and processes to ensure that accounting work was performed effectively and in accordance with accounting standards. When new accounting standards were promulgated, the SFAs were responsible for reviewing them, and preparing for the implementation and operationalization of those standards. Once new standards were operationalized, the SFAs directed both the Financial Analysts and FAs in how to follow the new requirements. [104] As such, in 2004, and after that time, Mr. Phillips performed a significant amount of accounting policy work: writing policies and procedures to be followed by FAs and Financial Analysts. By 2014, he no longer performed that work as it was done by the Accounting Policy Manager, who he believed was hired in 2014. Due to his experience, technical expertise, and considerable seniority, Mr. Phillips is still occasionally asked to assist with that work, but no longer has primary responsibility for it. [105] I note that Mr. Phillips’ evidence through his will say in this regard is the sum total of the evidence on what constitutes “accounting policy work”. As will become clear through the Employer’s cross-examination outlined below, it is not obvious that the type of work that Mr. Phillips did after 2014 was “accounting policy work”, as he no longer developed accounting policies but rather either provided information to those who were developing such policies, or he commented on what consultants hired by the WSIB to develop a policy had already prepared. - 21 - [106] According to Mr. Aijaz, as an SFA he performed accounting policy work to assist with the implementation of new accounting standards. Although he had not become an SFA until 2010, he recalled that at that time SFAs were responsible for establishing and improving accounting policies to ensure that accounting work was performed in accordance with the standards. He testified that the significant shift in the accounting standard framework (to IFRS) resulted in more policy work and lengthy financial statement disclosures. Hence, more SFAs had to be hired to keep up with the demand for more comprehensive policies and disclosures. However, Mr. Aijaz admitted that from 2014 on his focus changed, so that he was no longer involved in accounting policy matters thereafter. As had Mr. Phillips, Mr. Aijaz testified that while managers were involved in policy changes after 2014, SFAs were involved in helping Managers interpret standards, and later in implementing policies that had been adopted. In cross-examination Mr. Aijaz admitted that even as an SFA, he had never written accounting policies: rather, he had supported the implementation of accounting policies. [107] The JIQ, completed in April 2013, indicates that the SFAs “implemented new and amended accounting standards…, [and] accounting policies and procedures and accounting system changes due to the new or amended standards” (at p. 7). Mr. Phillips had signed onto this JIQ, as one of the four SFAs affected at the time. As such, the Employer put to Mr. Phillips that, as a SFA, he was still responsible for reviewing and implementing new accounting standards. The witness indicated that was only true to a certain degree. [108] In re-examination Mr. Phillips explained that in the past, prior to 2014, when a new accounting standard was promulgated, as a SFA, he would analyze it, determine what changes should take place to implement it, and would write a policy for it. Since 2014, it is the Accounting Policy Manager who does the initial work, and it is only when it comes to the implementation stage that Mr. Phillips may be consulted. It is the Accounting Policy Manager who decides how the new standard is to be implemented. [109] Contrary to Mr. Phillips’ evidence regarding SFAs having done accounting policy development before the hiring of the Accounting Policy Manager in 2014, and somewhat contrary to his own evidence regarding his role in accounting policy development, Mr. Aijaz maintained that such work had mainly been done by managers or hired outside consultants. [110] The problem with Mr. Aijaz’ evidence in this regard is that he was simply not employed at the WSIB in the Finance Division before 2009, so he is not in a position to testify about what policy development work Mr. Phillips was doing before Mr. Aijaz got there. His limited experience in this respect commenced in 2010, when he became a SFA. He did not develop any policies, but that is hardly material as by that point, Mr. Phillips had been a SFA for nine years, and was far more experienced in that regard. - 22 - [111] Mr. Phillips was recalled to give reply evidence as the Employer had failed to put Mr. Aijaz’ evidence in this regard, and others, to Mr. Phillips when he had testified initially. In reply, Mr. Phillips testified that when he had completed the JIQ in 2013, the part of the questionnaire regarding the development of accounting policy had been correct: As an SFA, at that time he used to “identify and implement required changes in accounting policies and procedures and accounting system changes due to new or amended standards”. However, after the hiring of the Accounting Policy Manager in 2014, Mr. Phillips has a far more limited role in that he no longer identifies required changes in accounting policy: he can only recommend changes in procedures and processes. [112] Mr. Aijaz testified that an Accounting Policy Manager was hired in and around 2014. It was their job then to interpret new accounting standards and the different options under the standard; help management with interpreting the standard and choosing the right option for the WSIB; and once that interpretation was completed, then SFAs would implement the standard. [113] In his reply evidence, Mr. Phillips did not agree with Mr. Aijaz in respect of the limited role he ascribed to the Accounting Policy Manager. According to Mr. Phillips, the Accounting Policy Manager’s role includes development and documentation of accounting policies which will be adhered to by accounting staff in accounting for and reporting of accounting transactions and events. Mr. Phillips tendered as an example of an accounting policy that he had developed before 2014 one that was written in and around 2011: It was with respect to “Fair Value of Investment Property”. He testified that an accounting policy is an official document that follows a specific format and that is approved by management. [114] In cross-examination the Employer asked Mr. Phillips about whether what he had indicated was an accounting policy was being described as such because of the particular format used. Mr. Phillips indicated that had been the format for accounting policies at that juncture. He testified that every policy may not be identical, but at that time his was the format used, and it would have been approved by the Corporate Controller. [115] When the Employer showed Mr. Phillips a document called “Real Estate Accounting Policies” which was in a different format, the witness recognized it as a document he had prepared to be sent to the WSIB’s real estate subsidiaries. It was based on two policies designed for WSIB staff, both of which Mr. Phillips had drafted in the first instance for the WSIB. He testified that this document had been created as an Appendix to a Property Management Agreement that was signed by the real estate entities, and it was not meant for WSIB staff at all, but for property managers who would be reporting back to the WSIB. As such, it was not an accounting policy as used by the Finance Division staff. [116] Counsel for the Employer persisted in cross-examining Mr. Phillips about the document, suggesting to him that the property managers were managing WSIB investment properties, so they too had to follow WSIB accounting policies. Mr. - 23 - Phillips did not agree with counsel, and pointed out that it depended on the WSIB’s percentage of ownership: if the WSIB held a majority ownership, it would get the document into the Property Management Agreement. However, some properties are jointly owned and if the other investors do not follow IFRS, they would not necessarily agree to the Appendix. [117] The Employer put to Mr. Phillips that even after the hiring of the Accounting Policy Manager that some SFAs did policy work. Mr. Phillips testified that there were not many SFAs at the time; that he was not aware of any SFA doing policy development work after the Accounting Policy Manager was hired; and that it was highly unlikely that an SFA was doing policy development as by that time everything went through the Accounting Policy Manager. The WSIB did not put any names to Mr. Phillips as examples of SFAs who had done policy development work after 2014. [118] The Employer suggested to Mr. Phillips that he had been involved in the development of accounting policies related to the implementation of IFRS 16 in 2019. It was Mr. Phillips undisputed evidence that he had given guidance to the Accounting Policy Manager, who had considered the matter, and then had been involved in getting the policy approved. Mr. Phillips had developed templates to implement the policy once it had been approved. As an SFA he implements the policies adopted. Employer counsel put to Mr. Phillips that he had input a formula into a workbook. The witness told counsel that required him to know how to use Excel. He had simply improved on the formulae in the workbook (that had been created by the accounting implementation team) to make them more flexible and easier to use. [119] Mr. Aijaz testified about a memo he had prepared in May 2013 for his manager regarding accounting for equity transactions of the investment companies and trusts, as the then-current treatment was not in line with the accounting standards. In the memo, he outlined his recommendations for what should be done. [120] A March 2013 email from Mr. Aijaz to the Manager of Financial Reporting, who was apparently working on revised International Accounting Standard (“IAS”) 19, addressed how the SFAs should account for unfunded liability and employee benefit plans for the previous year. [121] In a September 2011 email discussion with another SFA, Sara Liu, who was working with the Manager of Financial Reporting on a team implementing a new IAS, Mr. Aijaz had suggested some changes to a draft policy regarding cash and cash flow. I note that the policy had been written by the Manager of Financial Reporting, not by the SFAs. According to Mr. Aijaz, the SFAs would make proposals for changes to policies based on the incoming IAS, and then managers would decide whether they wanted to implement the SFA recommendations or not. - 24 - [122] Mr. Phillips, in his reply evidence, testified that the three documents that Mr. Aijaz had testified about were not accounting policies: they were recommendations for the implementation of changes to existing accounting processes. [123] The Employer put to Mr. Phillips that before the hiring of the Accounting Policy Manager that, in addition to SFAs, managers had also drafted policies. The only manager who Mr. Phillips could recall having drafted a number of policies was Para Hristov, when the WSIB had implemented IFRS accounting standards. She had been the Manager of Financial Reporting, and had been on the project team that implemented the IFRS. The witness thought it was possible that one other manager may have written a couple of policies, but it was Ms. Hristov, as part of the IFRS implementation, who he most recalled having done that work. [124] He was shown a March 2019 email and document (a “799 consolidation/elimination workbook updated for IFRS16 actual numbers”) and was asked who had created it since Mr. Phillips had emailed the document to a number of people. The witness indicated that some consultants to the WSIB had created the document, and he had then reviewed it and made some corrections. He indicated that the document related to a change in one particular standard for leases; the changes had been recommended by the Accounting Policy Manager; the Accounting Policy Manager determines what the new method of accounting should be; in this instance, a project team had been struck to do the implementation (of which Mr. Phillips had not been a part), and the consultants had been on that team and had prepared the document. Thus, Mr. Phillips’ limited role had been to provide information in the process to the project team, and then to assist in the implementation. He had reviewed the consultants’ work product to see if it was feasible, and had made some recommendations for changes to make it more applicable to their work. [125] A memo that Mr. Phillips had sent to John Filipowicz on September 6, 2013 was put to the witness as an example of his continuing to perform policy development work after 2004. Mr. Phillips testified that it had not been his direct function by 2013, but that he had been asked to consider how the WSIB would account for a particular acquisition, and he had recommended the most appropriate accounting treatment for that particular entity. [126] It is not clear how this is policy development work, rather than, as Mr. Phillips described it: it was how the WSIB would account for a particular acquisition through what he recommended would be the most appropriate accounting treatment. In re-examination, Mr. Phillips confirmed that this was not a policy document: it was about implementing a current procedure at that time. In any event, since Mr. Phillips had testified that he did in fact do policy development work until 2014, and since the memo in question had been written in 2013, even if it was “accounting policy development” work, I find that writing it would have been consistent with his evidence. - 25 - [127] It was Mr. Phillips’ evidence that based on his experience, the day to day tasks performed by SFAs in general are now in many ways similar to those of FAs: they both prepare accounting journal entries, reconcile general ledger accounts, and provide financial analysis and variance analysis of their assigned accounts. His evidence is consistent with that of Mr. Warsame. [128] Mr. Phillips’ immediate supervisor is Carol Chu, the Assistant Director in Controllership, who directs his tasks and duties, and is responsible for his regular performance evaluation. [129] As an SFA, Mr. Phillips has no role in hiring or firing employees for the WSIB; he has never imposed discipline of any magnitude on another employee. He also has no access to information relating to labour relations between the WSIB and any of its unions. He has never been asked to represent the WSIB in any meeting with any union, or in the collective bargaining process; nor has he been asked to provide management with information for use in the collective bargaining process. [130] There appears to be no dispute that SFAs do not assign work to FAs, as that is the task of the manager. [131] Mr. Warsame has never been directed by an SFA regarding what work he is to do. He too is supervised by the Assistant Director of Controllership, as are the SFAs in the Controllership area. She assigns him his work, and conducts his performance evaluations. ARGUMENTS [132] It is not necessary to reproduce in detail the parties’ respective final submissions, but a general outline will be provided. [133] The Union submits that it has established through the evidence that the Employer has made multiple changes to the job content and authority of the SFA position. The starting position is the 1997 SFA job description, which was the basis upon which the parties had agreed in the 2004 MOA to exclude this position. In 2014 the Employer instituted a new job description for the SFA. According to the Union, there are significant differences between the two job descriptions. [134] In addition to the areas of the two job descriptions that I had identified from my own review as having changed, the Union asserts that it is important to note the change in focus of the SFA job so that the 2014 job description estimates that 50% of a SFA’s time is to be spent on preparing comprehensive financial statements, notes, and variance analyses within prescribed deadlines prior to the release of information to external stakeholders. While preparing comprehensive financial reports and analyses was one among many of a SFA’s major - 26 - responsibilities in the 1997 job description, at that time such work was being prepared for senior management. [135] Based on the evidence called, the Union asserts that the work of the SFA changed between 2004 and 2014 such that an increasing proportion of the SFA’s time was spent doing work that had previously been performed by Financial Analysts. FAs also took over some of the work that Financial Analysts had done before the Employer eliminated that position. Specifically, the Union relies on Mr. Phillips’ evidence that in or around 2003 or 2004 he took over real estate accounting work from a Financial Analyst; and that since then, and up to 2014, such work has increased so significantly that it has crowded out the performance of aspects of his previous SFA functions. [136] The Union points to the Employer’s hiring of an Accounting Policy Manager in 2014 as the point at which SFAs no longer performed accounting policy development work, and were only required to assist the Accounting Policy Manager from time to time. It relies on Mr. Phillips’ evidence of the distinction between accounting policy work and the work that SFAs still do improving accounting processes and implementing WSIB accounting policies. [137] According to the Union and its witness, Mr. Phillips, in many respects the day-to- day tasks of SFAs are now similar to the work that FAs do: prepare journal entries, reconcile general ledger accounts, and provide financial and variance analyses of their respective assigned accounts. Both report directly to the Assistant Director of Controllership, and have their work assigned by that manager. [138] The Union asks that Mr. Phillips’ evidence be accepted and preferred over that of any of the Employer witnesses as he has been an SFA during the entire time in question as he has been employed as a SFA since 2001. [139] The Union contends that Mr. Joseph’s evidence should not be given much, if any, weight as his recollection of what anyone was doing, whether SFAs or Financial Analysts (a classification in his department that he did not recall at all) was very limited for the period up to the 2004 MOA. [140] With respect to Mr. Aijaz’s evidence, the Union takes the position that his evidence should also be accorded limited weight, as he had very limited knowledge of who was performing what accounting work prior to 2009, when he first joined the Finance Division. As regards SFAs doing accounting policy development work prior to Accounting Policy Managers being hired in 2014, the Union asserts that Mr. Aijaz’s evidence should not be accepted over that of Mr. Phillips. [141] Ultimately, the Union argued that its evidence establishes that over time there was a gradual but persistent change in the job duties and authority of the SFA position, so that they began to do more and more work that had previously been - 27 - done by Financial Analysts and FAs, both of which were bargaining unit positions, and at the same time any duties that SFAs had that had a managerial component, such as making determinations regarding staffing needs, and writing accounting policies, were removed. [142] Relying on arbitral jurisprudence regarding contract interpretation, the Union argues that the Employer modified the SFA job description without notice to the Union, and that by doing so, it has changed that position so that it no longer meets the definition for exclusion from a bargaining unit in s. 1.1(3) of the Crown Employees Collective Bargaining Act (“CECBA”). The Union points out that since 2004 the WSIB has not added a single FA position, but has added seven SFA positions, despite the fact that NBU SFAs have been and are performing many of the same functions that had been performed by bargaining unit Financial Analysts and FAs. It argues that the loss of work to the SFA position has not been of a minimalist nature, but rather has brought the bulk of the daily work performed much closer to that performed by FAs. [143] Ultimately, the Union argues that the SFAs are not persons exercising managerial functions or employed in a capacity confidential to labour relations, and there is no conflict of interest with SFAs being members of the bargaining unit. As such, there is no reason why the job, as modified in 2014, should continue to be a NBU position. The Union seeks as remedies a declaration that the Employer has breached Art. 1.05 of the collective agreement; an order that it comply with Art. 1.05; a declaration that the SFA position falls within the bargaining unit; an order that the Employer pay to the Union an amount equal to the union dues that should have been paid from the date that the 2014 job description went into effect; and, pre-judgment interest in accordance with the Courts of Justice Act. [144] The Employer argues that the Union has not proved that the WSIB modified the SFA position within the meaning of the 2004 MOA and Article 1.05 of the collective agreement. In particular, it submits that any change to the SFA position has been minimal and does not constitute a modification within the meaning of either the 2004 MOA or the collective agreement. If the arbitrator finds that there is no modification within the meaning of the 2004 MOA, the Employer maintains that the Union is precluded from making the CECBA argument. [145] According to the Employer, in the negotiation of the 2004 MOA, the Union was aware of section 1.1(3) of CECBA, and it agreed that the SFA position would be excluded from the bargaining unit. Furthermore, in the 2004 MOA the parties agreed that Art. 1 of the collective agreement continued to apply when “an existing job is modified” and “they also agree that job modification is directly related to alterations in job content” (at para. 3 of the 2004 MOA). The parties defined what did not constitute Art. 1 modification as follows: - A title change without job content change - 28 - - An increase in complement of positions currently in the non-bargaining unit, and/or - Changes in reporting without job content modification or alteration in authority. [146] According to the Employer, “modification” must be interpreted within the scope of labour relations common sense, and cannot mean “any modification” as the Union argues. The Employer submits that the Union’s dictionary definition of the word “modification” should not be accepted, and that partial or minor changes should not require the WSIB to comply with the language that the parties have bargained. [147] In particular, the WSIB asserts that the Union is attempting to resile from the 2004 MOA through this, and other grievances. The Employer goes further and claims that should the Union’s interpretation of the 2004 MOA and the collective agreement be accepted, and this grievance be successful, it would lead to the unravelling of the 2004 MOA. [148] The Employer argues that there is little evidence regarding changes in the SFA’s managerial functions between 2004 and 2014. According to the Employer, the two job descriptions for the SFA position, from 1997 and 2014, cannot be relied upon because no one testified specifically about them. Furthermore, the job descriptions should not be viewed as reliable evidence of a shift in the job content and authority of SFAs. It also maintains that since there was no reference to NBU job descriptions in the 2004 MOA, they cannot be considered. [149] The WSIB maintains that since Mr. Warsame was never a SFA, and his observations come from having worked alongside SFAs in the Financial Reporting branch only, his evidence is not based on direct knowledge, and should be given little weight. According to the Employer, SFAs working in different departments would have a different focus to their work, and may not complete all the SFA tasks outlined in their job description. As well, the Employer maintains that Mr. Warsame has a vested interest in this proceeding and therefore his evidence should be given less weight. [150] With respect to Mr. Phillips, the Employer argues that his evidence should be accorded limited weight, and that the WSIB’s witnesses’ evidence should be preferred. It maintains that Mr. Phillips provided inaccurate and misleading oral evidence regarding his duties as a SFA. [151] According to the Employer, its evidence has established that the job duties of a SFA have not been modified between 2004 and 2014. [152] It claims that its two witnesses, Mr. Joseph and Mr. Aijaz, had longer tenure than did the Union’s witnesses. It is worth noting that the Employer is incorrect in this regard and I have therefore dismissed this assertion from the outset. Mr. Joseph began working for the WSIB in 1999, and Mr. Aijaz in 2007. However, Mr. Aijaz - 29 - did not start working in the Finance Division until 2009. By contrast, Mr. Warsame began working at the WSIB in the Finance Division as an Accounting Clerk in 1991, and alongside SFAs by 1993. Mr. Phillips began working as a SFA in 2001, and continues in that role to the present. [153] It is the Employer’s position that while the 2004 MOA states that job modification is directly related to alterations in job content and authority, it does not say that a job modification occurs where there is simply a change in the way in which a job is performed. According to the Employer, the change in accounting standards from the Canadian GAAP to IFRS simply resulted in a change in the way that SFAs carry out their work. Since SFAs are professional accountants, they are expected to work in a different way than they had before, which does not amount to a job modification. [154] As well, the Employer argues that the change in the volume of work being done in investment accounting does not mean there has been a modification of the job itself. It points out that the parties to the 2004 MOA had agreed that an increase in the complement of positions would not amount to an Art. 1 modification. In this instance, the change in number of SFAs was due both to the significant growth in the WSIB’s investment portfolio into real estate and infrastructure, and to the greater complexity of the IFRS accounting requirements for financial statement disclosures. [155] In the event that the arbitrator finds that there have been changes to the SFA position, the Employer argues that the de minimis principle must be applied to the alleged changes to the SFA position. [156] The Employer argues that by 2004 SFAs were doing real estate accounting, and that by 2014 they were still doing that work, but were simply doing more of it. It also maintains that by 2000/2001 SFAs had begun to do investment accounting work that had previously been done by Mr. Warsame, when he was doing Investment Accountant work, and they continued to do that work. According to the WSIB, SFAs were also doing investment note disclosure before 2004. That evidence is based on Mr. Joseph’s evidence that when he had been the manager between 1999 and 2001, and again from 2003 to 2005, he had one SFA who carried out investment note disclosure to the annual report. That work continued between 2004 and 2014. [157] With respect to the Union’s assertion that SFAs are no longer developing accounting policies when there are new accounting standards, the Employer argues that Mr. Phillips’ evidence in that regard should not be accepted. It asserts that the witness contradicted himself when he testified that he had provided information and assisted with the implementation of a policy. It also maintains that Mr. Aijaz testified that he had been involved with the implementation of an accounting policy. - 30 - [158] Finally, the Employer argues that any changes to the SFA position have been minimal and do not constitute a modification within the meaning of the 2004 MOA or the collective agreement, and the grievance should therefore be dismissed. [159] The Union filed reply submissions in response to the Employer’s argument. It argues that it is not permissible for the arbitrator to give a “common sense” interpretation to Articles 1.04 and 1.05, and the 2004 MOA, unless the plain wording of the parties’ bargain is inconsistent with prevailing legislation. [160] With respect to the Employer argument that the job descriptions cannot be relied upon, the Union asserts there is no jurisprudential basis for that position as they are in evidence before the arbitrator. Simply because no oral evidence was called about them does not negate that they are properly in evidence and they speak for themselves. [161] In particular, in this regard, the Union points out that the 1997 job description, which was relied upon by the parties when they reached the 2004 MOA, included significant managerial duties which appear to have disappeared in the 2014 job description. Yet the Union was never advised of this stripping of managerial duties from the SFA job description, and the Union argues that was a modification to the job description by any standard. [162] In addressing the Employer’s argument that Mr. Warsame’s evidence should be discounted because he only observed what SFAs were doing, and was not himself involved in the work, the Union asserts that is much more than Mr. Aijaz was able to do: he had given evidence about periods when he had not even been employed by the WSIB. [163] The Union notes that the Employer has falsely asserted that both Mr. Joseph and Mr. Aijaz had more tenure than did the Union witnesses. It points out that while Mr. Joseph commenced employment with the WSIB before Mr. Phillips, he did not start before Mr. Warsame. As well, both Messrs. Warsame and Phillips had started at the WSIB long before Mr. Aijaz. [164] Both parties relied on a number of decisions in support of their respective arguments. Only if jurisprudence is relied upon in reaching a decision will it be cited. DECISION [165] In reaching a decision in this case I have reviewed all of the evidence, the submissions and the jurisprudence relied upon by the parties. The questions that are raised in the grievance are whether, considering Articles 1.04 and 1.05 of the collective agreement, the SFA position has been modified; if modifications are found, whether, in accordance with Article 1.05, the Union was notified of those modifications; and, if modifications are found, whether as a result the SFA position should remain outside the bargaining unit. - 31 - [166] The key provisions of the collective agreement for the purposes of this case are Articles 1.04 and 1.05. For ease of reference, I reiterate the relevant parts of these provisions here: 1.04 The following does not constitute Article 1 modification: - A title change without job content change - An increase in complement of positions currently in the non- bargaining unit, and/or - Changes in reporting without job content modification or alteration in authority. 1.05 When the Employer intends to create a new job(s) or modify an existing job, (classified or unclassified) and the job is to be excluded from the bargaining unit, the Employer will follow the process below: [Process provisions not reproduced] (Emphasis added) [167] The starting point is the interpretation of these provisions of the collective agreement. I agree with the Union that, since there appears to be no arbitral jurisprudence regarding the words “modify” or “modified”, I must apply the basic principles of arbitral contract interpretation. In C.E.P., Local 777 v. Imperial Oil Strathcona Refinery, 2004 CarswellAlta 1855 (Elliot), at paragraph 40, the arbitrator stated as follows: The modern Canadian approach to interpreting agreements (including collective agreements) and legislation, is encompassed by the modern principle of interpretation which, for collective agreements is: In the interpretation of collective agreements, their words must be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object, and the intention of the parties. The Grievance Settlement Board has expressed the proposition in similar terms in Re OPSEU and Ontario (Liquor Control Board of Ontario) (Butters), (J. Carrier), 2018 CarswellOnt 11245, at paragraph 34: It is important to note that there have been no prior decisions of this Board dealing with the meaning or application of that document [a letter of agreement]. Furthermore, it is important to note that the meaning of such provisions must be viewed in their entirety and in the context of the Collective Agreement as a whole. The other key principle of contract interpretation is that words or terms may not be read into the collective agreement unless it is absolutely essential to give effect to the clearly expressed mutual intent of the parties or to make the collective agreement consistent with overriding law, such as the Labour Relations Act, 1995. This principle was expressed by Arbitrator Surdykowski in Re Ontario Power Generation and Society of - 32 - Energy Professionals (OPGN-2010-5706/1538), 2013 CarswellOnt 17912, at paragraph 32, as follows: The parties to a collective agreement are deemed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the clear mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of. [168] The relevant definition of the word “modify” in the Canadian Oxford English Dictionary is as follows: Modify v.tr. 1. make partial or minor changes in; alter without radical transformation. … [169] In Black’s Law Dictionary, the word “modify” is not included, but the relevant definition of “modification” is as follows: Modification. (17c) 1. A change to something; an alteration or amendment <a contract modification>. … [170] Thus, in these parties’ collective agreement, they have agreed that when the Employer intends to modify (i.e. make partial or minor changes, or to alter without radical transformation) an existing job, whether NBU or in the bargaining unit, it will follow a detailed process outlined in Art. 1.05. Furthermore, the parties have agreed at Art. 1.04 what does not constitute an Art. 1 modification (i.e. a change, alteration or amendment). [171] Contrary to the Employer’s argument, there is nothing in the collective agreement provisions before me to require that the modification be significant, or indeed for the modification to meet any threshold other than what they have already agreed would not qualify as a modification (in Art. 1.04 and in Appendix 4). Since the language is clear on its face, there is no basis upon which I may read in language that is expressly not there. [172] I am bolstered in this view as on a reading of the collective agreement as a whole, it is clear that when the parties wish to introduce conditioning words, they have done so. As examples, in Articles 5.02(a), 5.06(a), 5.14, 6.05 and Appendix 1, the parties have used “significant change” or have referred to a job as being “significantly changed”. In Article 16.09(4) they reference a “significant risk of death”. [173] The Employer relied on a number of arbitral decisions for the proposition that there had to be substantial alteration or modification in order to trigger the Art. 1.05 requirements. None of that case law was helpful in reaching this decision as in each case the collective agreement language itself led to the particular result. In N.S.G.E.U. v. Nova Scotia (Department of Human Resources), 2001 CarswellNS 582 (B. Outhouse), the language of the collective agreement - 33 - required that “when a new or substantially altered classification” covered by the collective agreement was introduced, the rate of pay was subject to negotiations between the employer and union (emphasis added, at para. 2). The arbitrator in that case had to describe a test for “substantially altered” (at para. 43). In the case before me there is no such descriptive or qualifying language in the collective agreement provision I am required to interpret. [174] In Ottawa Hospital v. OPSEU, 2003 CarswellOnt 5765 (W. Kaplan), the union claimed that over a number of years the job of a Diet Technician/Technologist had changed such that they should be paid at a higher level. The collective agreement provided that if “the Hospital makes a substantial change to the job content of an existing classification” it had to advise the union, tell the union the rate of pay that it had established, and that began a process to allow the union to make representations (at para 4, emphasis added). The arbitrator found that the onus was on the union to establish that there had been substantial change, and that the mere addition of a duty or change in an existing duty does not necessarily result in a new job classification (at para. 23). As with the Nova Scotia decision cited above, in the case before me, there is no collective agreement requirement that there be “substantial change” in the SFA job. [175] Similarly, in St. Lawrence Lodge v. CUPE, Local 2107, 2010 CarswellOnt 6090 (G. Luborsky), the collective agreement stated that if “a position changes significantly, the Employer agrees to discuss with the Union” the contents of a new job description or a revised one in the case of reclassification (at para. 2, emphasis added). All of these cases cited by the Employer are immaterial to my consideration of the situation before me because the WSIB and this Union did not agree that a position had to be substantially altered, substantially changed, or changed significantly in order to trigger Art. 1.05. [176] In ONA, Joseph Brant Memorial Hospital v. Joseph Brant Memorial Hospital, 1972 CarswellOnt 1445 (K. A. Hinnegan), the union grieved that the employer had created a new classification of team leader. The collective agreement stated that “in the event that a new or changed occupational classification” was decided upon by the hospital, a wage rate would be determined, and then the union was to be notified, and a further process potentially engaged (at para. 1). The arbitrator held that the language contemplated “an occupational classification different from existing classifications in a substantial and qualitative way” (at para. 22). At para. 23 of the decision the arbitrator noted as follows: 23. This board must look at all of the tasks performed by the relevant employees over an extended period to see if there is a substantial, qualitative change in their actual job function. The obligation of the board under this article is to decide if an employee’s total job has changed in fact, even if not in name. In order to constitute a “changed occupational classification” within the meaning of this article, it must be found that there has been more than merely a change or addition to the job content of the classification … - 34 - [177] While the Employer relied on the above decision, it is unclear how relevant it is to the issue before me. In that instance the question was whether there was a new or changed occupational classification because the employer had created a team leader position. The WSIB has not created a new occupational classification, and the language of Art. 1 is quite different from what was before Arbitrator Hinnegan. In any event, in this case the Union has led evidence that covers a significant period of time; the evidence relates to the tasks performed by SFAs and others and how the SFAs work has changed from when the parties agreed that that it was a NBU position; and I will address the significance of the changes below. [178] On a plain reading of Articles 1.04 and 1.05, and reading the words “modification” and “modify” in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, I must therefore consider whether changes, amendments, or alterations have been made to the job content or authority of the SFA position. I note that the parties themselves have agreed in the collective agreement that if there is no job content change or alteration in authority in an existing position, then the Union does not have to be notified through the elaborate process outlined in Art. 1.05. [179] In this case, there is evidence regarding the SFA job descriptions over a long period of time, and evidence regarding the job itself over a considerable period of time. Both have been helpful in reaching a decision. [180] As already outlined earlier, I have reviewed the 1997 and 2014 job descriptions for the SFA position. The Employer argued that I should not consider the 1997 job description. There is simply no reason why I would not do so. The parties’ Partial Agreed Statement of Facts states at para. 4: 4. At Tab 4 of the Agreed Book of Documents is a copy of a 1997 job description for the SFA position. This job description was in effect at the time the 2004 MOA was negotiated. [181] Thus the parties have specifically agreed that the 1997 job description for the SFA is before me, that it was in effect at the time they reached the 2004 MOA, and they provided it to me in this proceeding as part of an Agreed Book of Documents. As such, whether anyone testified about the job description or not is immaterial. In any event, based on the evidence outlined above, it is clear to me that the Union’s witnesses had in fact testified to some of the contents of that job description, and had been cross examined about those aspects, as had one of the Employer’s witnesses. In cross-examination it was put to Mr. Joseph that there had been no mention of journal entries being part of the 1997 SFA job, and he agreed it was nowhere in the 1997 SFA job description. [182] Based on the review of the 1997 and 2014 SFA job descriptions, as outlined earlier, there is no doubt that modifications have been made. - 35 - [183] Pursuant to Art. 1.04, while there has not been a title change for the position, and while there has been in increase in the complement of SFA positions, these two aspects on their own do not constitute Art. 1 modifications. [184] What the parties have agreed however is that if there is a title change, without job content change, then it is not a “modification”. They have also agreed that if there is a change in reporting without job content modification or alteration in authority, that too will not amount to an Art. 1 “modification”. Hence, in order to decide whether there has been any modification within the meaning of the language of the collective agreement, it is necessary to consider whether there has been job content change or alteration in authority. [185] One major modification that was made between the 1997 SFA job description and the 2014 job description was that one of the “Major Duties & Responsibilities” in the 1997 job description was removed entirely in the later job description. In 1997, it was a major duty and responsibility of the SFA to: 10. Assist the Manager in defining staff resource needs, co-ordinate staff activities/usage for projects, develop section planning and training needs, recommend changes in procedures to improve efficiency and effectiveness of the section. [186] As well, in the “Responsibility” section of the 1997 job description, it stated that the SFA’s responsibilities included “provide input into performance evaluations for staff assigned to incumbent’s project”. This is no longer included in the 2014 SFA job description. [187] It is difficult to see how this is not a major modification as these two aspects of the SFA job would have been reasons why this job would have been excluded from the bargaining unit pursuant to the CECBA exclusions. By 2014 there was nothing left in the SFA job description that had a managerial aspect in respect of other staff, or required an SFA to act in a confidential capacity as regards what could be defined as labour relations matters (staffing levels, performance evaluations, the development of section planning and training needs). [188] At the time that the Union agreed in the 2004 MOA that the SFA job was excluded from the bargaining unit, the 1997 job description, which included these responsibilities, was in effect. Whether SFAs were fulfilling those responsibilities or not at the time is not a consideration since the parties have agreed in their Partial Agreed Statement of Facts that: they don’t know what information the business unit provided to the Employer representatives regarding the SFA position at the time that the 2004 MOA was negotiated; the Union did not investigate the job duties of the disputed positions beyond the documentation provided by the Employer; and the Employer has no reason to believe that the Union attempted to independently confirm the accuracy of the information that the Employer had provided to the Union. - 36 - [189] What is clear is that at no time between the 1997 SFA job description coming into force and the 2014 SFA job description being adopted, or after that and until 2017 when this grievance was filed, did the Employer advise the Union of this particular modification to the job content and authority of the SFA. This is a significant change to the SFA job description as it removed all managerial or confidential aspects of the position, and can in no way be described as a de minimus change, as asserted by the Employer. It would on its own be enough to support a finding of breach of Art. 1.05 of the collective agreement. [190] Another significant change to the 1997 SFA job description is in the area of development of accounting policies. While, pursuant to the 2014 job description, SFAs still have as one of their “Major Responsibilities” to review proposed external accounting policy changes and their impact on current WSIB accounting policies, their role otherwise regarding policy development has changed. As outlined earlier, in the 1997 job description SFAs were expected to “prepare policy papers on financial reporting and internal control issues, with recommendations for improvements to be adopted” and to “develop the recommended policies and procedures for implementation”. [191] By 2014, that had changed. It is now a SFA’s major responsibility to “work with Manager(s) and the Manager Accounting Policy to recommend changes to senior management and develop and implement processes and procedures to capture approved requirements”. Their job is now to develop and implement procedures, rather than what was earlier the development of the accounting policies as well as the procedures. [192] This change was amply borne out in the evidence, which showed that while Mr. Phillips had been responsible for the development of accounting policies before 2014, and had had a much more robust role in recommending policy changes to management, after 2014 his SFA role was to assist the Accounting Policy Manager, or a team working on policy development, through the provision of information or feedback. After 2014, SFAs have been primarily responsible for implementing policies and procedures. Mr. Aijaz, who had become a SFA in 2010, had not developed accounting policies at all, but had worked on the implementation of policies and procedures. [193] It is not surprising that in Mr. Aijaz’s experience, his job as a SFA as it related to accounting policy development work had not changed much between 2010 and 2015: He was a junior SFA, with very little experience in the Finance Division as he had only joined that area in 2009 as a Financial Analyst, became a SFA in 2010, and by 2014, the Accounting Policy Manager had been hired, so that no policy development work was done by SFAs thereafter. By contrast, Mr. Phillips had been a SFA since 2001, and had been and was still doing accounting policy development work when Mr. Aijaz became a SFA. He continued to do that work until the hiring of the Accounting Policy Manager. In my view their evidence is not inconsistent, but rather is a reflection of their respective levels of experience. Mr. Phillips had been working as a SFA during the entire time in question in this - 37 - case: prior to the 2004 MOA when the 1997 SFA job description was effective; when the 2014 SFA job description came into effect; following the hiring of the Accounting Policy Manager in 2014; and even beyond the date of the filing of this grievance in 2017. As such, his evidence in this regard is to be preferred. [194] It was clear from the evidence that the development of accounting policy at the WSIB is now the exclusive purview of managers, and to the extent that SFAs have any role, it is to support the process thorough the provision of information or experience. [195] In my view this is another significant modification in the SFA job content and alteration in SFA authority, and is not a de minimus change as asserted by the Employer. [196] The modifications to the SFA position are best reflected in the changes made in the 1997 and 2014 “Job Summary” sections of the SFA job descriptions, which have been reproduced earlier. The SFA job has changed from the provision of expert advice and direction regarding various financial matters, to one of preparation of monthly, quarterly and annual financial statements, with all the attendant work that entails. [197] For all of the reasons outlined above, I find that there have been meaningful modifications made to the SFA NBU position, and that those modifications have been in the job content as well as in the authority of the SFA. *** [198] The next question is whether the Union was notified of the modifications to the SFA position in accordance with Art. 1 of the collective agreement. This issue was addressed in the August 2018 decision. In the Employer’s preliminary motion regarding the timeliness of this grievance, the parties called evidence about what the Union had known by the time it filed the current grievance in 2017. I have addressed this in the “BACKGROUND” section of this decision, and noted that the August 2018 decision should be read in conjunction with this decision. [199] Based on the evidence in the first phase of this case, I found that the Union had no knowledge of what were at that juncture “the alleged changes in the job duties of the position in question in November 2014” (August 2018 decision, para. 47). That was because the Employer had not provided the Union with any notifications of changes to the job description of the sort that it had historically received (August 2018 decision, para. 42). As well, the Director of Labour Relations and the Director of Benefits had told the Union that the NBU job descriptions would be put in a different format as part of the NBU compensation review process, but that there were not going to be any job content changes (August 2018 decision, para. 42). - 38 - [200] I note again the importance of notice to a union, as it was articulated by Arbitrator Schiff in the Georgian College of Applied Arts & Technology v. O.P.S.E.U., 1997 CarswellOnt 6301, decision at para. 26: 26. We see problems with this analysis. It rests on the assumption that a party union as an organization and the leadership of the union always knows, or ought to know, precisely how the party employer is acting to implement every provision of the agreement and know, or ought to know, what action relates to which provisions. More than that, the analysis assumes that, with knowledge, the union and the leadership assess or at least always should assess the fit between the action and the particular provisions. As we see it, the ordinary understandings of the labour relations world lead to different conclusions. Employers commonly have various full-time personnel charged with implementing the employer’s side of the agreement. Human relations, benefits and accounting departments are what we have in mind. Contrast local unions. The leaders are amateurs elected from the employees in the bargaining unit for fixed terms. While some may take on the jobs full-time during the term, often not. Professional representative from the umbrella district or national union give help. But even they will not supply to the local union the resources or expertise to keep a constant eye on everything the employer and its specialized departments are doing. The local union cannot check everything against what the agreement says. It must, for the most part, trust that the employer is doing things right and wait for complaints of the contrary as they come in from rank and file employees. These serve to focus the union’s attention and resources. Once considered, the complaints may issue out as formal grievances to inform the employer that its action in some respect is challenged under the agreement. To use a couple of similes, the party union is not like a police department sending out constables on patrol looking for lawbreakers to charge. It is more like a fire department: the firemen wait in the station for the calls and then go to put out the fires as, when and where they are reported. [201] In this collective agreement the parties have agreed that the Employer will provide the Union with certain information regarding certain types of modifications in both bargaining unit and non-bargaining unit jobs, so that the Union would not have to wait to find out later about changes. The WSIB used to provide the Union with all the requisite information, in writing, but then changed its process for sharing information regarding changes to jobs and job descriptions. In this case, the Employer failed to provide the requisite information when it should have, and the Union did not therefore find out about modifications that had been made in 2014 to the SFA job description until it was in grievance arbitration in 2017. [202] For all of the reasons outlined above and in the August 2018 decision, I find that the Employer has violated Art. 1.05 of the collective agreement. It cannot rely on Art. 1.04 as a basis for a finding that there has been no modification or change to job content or alteration of authority of the SFA position from the 1997 job description to the 2014 job description, and it failed to follow the process outlined in Art. 1.05 to notify the Union of the changes that had been made. *** - 39 - [203] The final question to be answered is whether, having found that modifications had been made to the SFA position, the SFA position should remain outside the bargaining unit. [204] Art. 1.01 of the collective agreement was outlined generally earlier in this decision, as was Appendix 4. However, for ease of reference, Art. 1.01 states as follows: 1.01. The Employer recognizes the Ontario Compensation Employees Union (Canadian Union of Public Employees Local 1750) as the exclusive bargaining agent for all its employees, save and except persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act or by virtue of the criteria set out in Appendix 4. [205] Section 1.1 of the Crown Employees Collective Bargaining Act is the relevant provision, which is referenced in Art. 1.01 above. It states as follows: 1.1 (1) This Act applies with respect to the Crown, Crown employees and the bargaining agents of Crown employees. … (3) This Act does not apply with respect to the following: … 9. Employees exercising managerial functions or employed in a confidential capacity in relation to labour relations. … 15. Other persons who have duties or responsibilities that, in the opinion of the Ontario Labour Relations Board, constitute a conflict of interest with their being members of a bargaining unit. [206] Appendix 4 is the form that must be used by the Employer when there is a new or modified NBU job, and/or when, pursuant to Article 1.05, it needs to notify the Union of something. I have already found that the Employer did not notify the Union at all, and as such, it is clear that it did not use the Appendix 4 form in relation to the SFA position between 2004 and 2017. [207] As outlined earlier, Appendix 4 lists the various possible exclusion criteria of NBU positions, e.g. if the job requires a member of various professions (not including professional accountants); whether the job requires the exercise of managerial functions, or that the incumbent work in a confidential capacity in matters dealing with labour relations, or has duties or responsibilities that constitute a conflict of interest with their being members of a bargaining unit; an increase in the complement of positions currently in the NBU; agreement between the parties that has addressed a particular exemption; or if there are other reasons for exclusion, or modifications to the job, which then must be specified. [208] The Appendix 4 exclusion for certain professions is not applicable here as there is no exclusion for professional accountants. - 40 - [209] The exclusion from the bargaining unit on the bases of the exercise of managerial functions; acting in a confidential capacity in relation to labour relations; or, having duties or responsibilities that constitute having a conflict of interest with being members of a bargaining unit, are common to subsections 1.1(3)(9) and (15) of CECBA, and Appendix 4, and are addressed below. I note that while the CECBA provision references the Ontario Labour Relations Board as the arbiter of subsection 1.1(3)(15), these parties have incorporated the same exclusion language into the collective agreement, so as an arbitrator duly appointed under the collective agreement, I have the jurisdiction to address that question. [210] SFAs have no managerial authority over FAs, and there is no evidence that they have managerial authority over any other staff. Neither Mr. Phillips nor Mr. Aijaz, as SFAs, had assigned work to any FA, and there is no evidence before me that they had assigned work to anyone else in the bargaining unit. Mr. Warsame testified that he is supervised by the Assistant Director of Controllership, as are the SFAs in the Controllership area. She assigns him his work, and conducts his performance evaluations, as she does for the SFAs. [211] It is Mr. Phillips uncontested evidence that as a SFA he does not work in a confidential capacity in matters dealing with labour relations. [212] No SFA who testified suggested that he had responsibilities that could constitute a conflict of interest with their being members of the bargaining unit, and no manager testified in that regard. [213] Based on the evidence given in this proceeding and outlined earlier, I find that the SFA job does not require the exercise of managerial functions, or that a SFA work in a confidential capacity in matters dealing with labour relations, or that a SFA has duties or responsibilities that constitute a conflict of interest with their being members of a bargaining unit. [214] As Messrs. Phillips and Warsame testified, both of whom have been with the WSIB and working in the accounting areas during the periods in question in this arbitration, the jobs of SFAs and FAs are now much more similar than they were prior to 2004. As well, as even Mr. Aijaz confirmed, along with Messrs. Phillips and Warsame, SFAs and FAs now do all the work that Financial Analysts used to do until that bargaining unit position was eliminated. Whereas FAs and Financial Analysts used to do accounting in the areas of Investment and Real Estate, that is now the purview of SFAs, and FAs are responsible for accounting relating to Fixed Capital Assets. [215] The evidence shows that the growth in number of SFAs has in part been due to the significant increase in the number of WSIB real estate and infrastructure subsidiaries. However, the real estate accounting work had been done by Financial Analysts in the past, and had therefore been bargaining unit work. On the evidence before me it appears that approximately three Financial Analyst - 41 - positions were eliminated from the bargaining unit, and there was no concomitant growth in any other accounting bargaining unit positions. [216] There is no doubt that the move from Canadian GAAP standards to IFRS also had a considerable impact in the expansion in the number of SFAs hired, as the latter standards require more rigorous reporting and disclosure. As well, the WSIB’s move from requiring only annual financial statements to the requirement for monthly, quarterly and annual financial statements, greatly increased the amount of consolidation and disclosure notes work that had to be done. [217] In my view it is not the growth in the number of SFAs that is the issue in this case. Rather, it is the modification to their work and the alteration in their authority, as has already been addressed. [218] Both SFAs and FAs prepare journal entries in their respective areas; they both reconcile general ledger accounts; they both do reconciliations; they both do variance analysis; SFAs prepare financial disclosure notes and FAs prepare financial notes for the quarterly and annual financial statements; they both provide financial forecasts; they both create tools and templates for their own use, and SFAs create templates and tools for use by both junior SFAs and FAs; and each in their respective areas are responsible for accounting tasks associated with maintaining the integrity of the WSIBs investment and real estate assets or fixed capital assets. [219] There is no doubt that SFAs have more responsibilities than do FAs. According to Mr. Phillips, SFAs provide accounting expertise and guidance to management and to FAs. They provide FAs with technical direction when needed, although both Messrs. Aijaz and Phillips indicated that very little is required, and usually when there is a change in accounting policy that is being implemented. The SFAs are responsible for all consolidation work required as the financial statements of the now-numerous subsidiaries have to be consolidated into the WSIB financial statement. Finally, it appears that since the elimination of the bargaining unit position of the Financial Analyst, the SFAs are responsible for more work related to benefit analysis, administration, and as already noted, real estate accounting. [220] As such, based on the evidence before me, and for all of the reasons that have been outlined, I find that the SFA position should be included in the bargaining unit. [221] I am not persuaded by the Employer’s argument that such a finding would effectively end the comprehensive 2004 MOA that the parties had bargained regarding the scope of the Union’s bargaining unit. Quite to the contrary, the parties at that juncture contemplated and agreed that Art. 1 of the collective agreement would continue to apply; that job modification was directly related to alterations in job content; and they reiterated the language of Art. 1.04. - 42 - [222] This decision addresses the Union’s contention that in respect of only the SFA position, Art. 1 had been breached, and that there had been job modifications in the SFA position such that the position was no longer properly excluded from the bargaining unit. *** [223] The grievance is upheld. To summarize, based on the findings outlined above, I make the following orders and directions: 1. The Employer has violated Article 1.05 of the collective agreement; 2. The Employer is directed to forthwith move the Senior Financial Accountant position into the bargaining unit; and, 3. The Employer is ordered to pay to the Union all union dues from the date of adoption of the 2014 SFA job description. [224] I remit to the parties the calculation of union dues owing, and remain seized to address any issues that may arise out of the implementation of this award. Dated at Toronto, Ontario this 20th day of February, 2020. “Gail Misra” Gail Misra Arbitrator