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HomeMy WebLinkAbout2010-2688.Union.12-01-26 DecisionCrown 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#2010-2688 UNION#10-24 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 (Union) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Marilyn A. Nairn Vice-Chair FOR THE UNION Jim Morrison Canadian Union of Public Employees Local 1750 National Staff Representative FOR THE EMPLOYER Gurjit Brar Workplace Safety and Insurance Board Counsel HEARING October 18 and 19, 2011. - 2 - Decision [1] This is a policy grievance challenging the posting of vacancies for a new position titled Work Transition Specialist (“WTS”). Two postings (dated July 8, 2010 and September 20, 2010) identified minimum requirements for the job. The applications of approximately 21 bargaining unit employees were screened out as a result of not meeting these minimum requirements. In total the employer filled some 220 WTS positions. Individual grievances are being held in abeyance pending the outcome of this proceeding. [2] The Canadian Union of Public Employees, Local 1750 (the “union”) asserted that the Workplace Safety and Insurance Board (the “employer” or the “WSIB”) acted in violation of the collective agreement, contrary to past practice, and in bad faith by requiring formal “credentials” in circumstances where there was no legal requirement for a licence or certification. The union asserted that the employer must consider “equivalency” to those formal credentials before ‘screening out’ a bargaining unit employee from the testing and interview process. [3] It was the position of the employer that the collective agreement confirmed its right to set minimum requirements for the position. As those requirements reasonably related to the job and as the employer had not acted in a manner that was arbitrary, discriminatory, or in bad faith, the employer argued that the grievance ought to be dismissed. [4] The impugned requirement set out in the job postings provides as follows: In order to screen into this job competition, applicants must meet the following minimum levels set for this position: Certification is required in this field. An undergraduate degree from a related post secondary program (community rehabilitation, disability studies, special education, kinesiology, nursing, occupational therapy, psychology, physiotherapy, rehabilitation counselling, social work, vocational counselling) plus 24 months current experience working with persons who have a disability or who are disadvantaged, or, an undergraduate degree in an unrelated field of study in combination with 48 months experience working with persons who have a disability or who are disadvantaged. Canadian Certified Rehabilitation Counsellor (CCRC) or a Registered Rehabilitation Professional (RRP) designation, or ability to meet the minimum requirement to acquire these designations. [5] There was little dispute about the organizational changes that led to the creation of the WTS position. Prior to 1998, WSIB employees working as Vocational Rehabilitation Case Managers provided certain labour market re-entry (LMR) services. At that time a formal educational qualification was required for the position, although the union’s Chief Steward, Beth Harris, testified that she screened into a competition for that job based on an ‘equivalency’ assessment. In or about 1998 the service delivery model changed, placing responsibility on the injured worker and accident employer to work together to ensure a timely return to work. In that context, LMR work was contracted-out to private Primary Service Providers (“PSPs”). Twelve years later, that work has been brought back in-house in response to further change to the service - 3 - delivery model. That history is summarized in a memo to all staff from the Chair and the President of the WSIB dated June 23, 2010, which states: … the WSIB has decided to begin providing Labour Market Re-entry (LMR) case management services internally later this year and, over time, phase out the use of external LMR Primary Service Providers. The change is part of a new Work Reintegration Program the WSIB is developing with stakeholder and CUPE input, which will provide significant improvements in sustainable return to work (RTW) for injured workers - either with their original employer or in the open labour market… In 1990, provincial legislation introduced stronger vocational rehabilitation provisions, a more prescriptive role for the WSIB, and obligations for certain employers to offer re- employment to injured workers for up to two years following their injury. In 1998, the legislation changed to provide for a “self-reliance” model that gave responsibility for return to work to the workplace parties. The WSIB assumed a monitoring and dispute resolution role. Management of injured workers’ LMR assessments and retraining was outsourced to LMR Primary Service Providers. They, in turn, referred workers to various Secondary Service Providers to deliver academic, language, vocational or job search training. Over the last 12 years, retraining programs have not produced the desired results… In 2008, we implemented our new Service Delivery Model with a strong focus on RTW. RTW Specialist and Disability Prevention Specialist roles were introduced to provide RTW support in the workplace. However, LMR remained disconnected from the RTW process. Primary Service Providers have, for the most part, met the terms of their service level agreements with the WSIB. They have not, however, met expectations regarding employment outcomes… To get at the root of these problems and identify solutions, the WSIB conducted a Work Reintegration Model Review and commissioned a Value for Money Audit of the LMR program in 2009. Both of these reviews found there is a need for significant changes to the WSIB’s approach to supporting injured workers as they re-enter the workforce. Under the new Work Reintegration Program, direct case management and support will be provided by WSIB employees for injured workers as they go through assessments, engage in work reintegration pathways and, if necessary, retraining… Exercising direct oversight for the providers who are delivering training and education services to injured workers will make a difference in long-term cost containment, program quality, efficiency, effectiveness and overall customer service. [6] The WTS position was created as part of the Work Reintegration Program in order to re- integrate the LMR service work into the overall return to work process to be supervised internally by the WSIB. The job summary anticipates that the WTS will assist workers, employers, and WSIB case managers to facilitate work transition and case resolution at the workplace or with a new employer when efforts are not resulting in an early and safe return to work plan. That may include arranging for a vocational assessment, identifying available suitable employer or business options, creating a work transition plan, and supporting the injured worker in fulfilling the plan. In that context, the WTS is expected to provide expert advice, direction, vocational rehabilitation counselling, education, and support to injured workers and employers. - 4 - [7] An internal online question-and-answer reference, available at the time of the postings, provided some further explanation with respect to the WTS role in the context of the Work Reintegration Program: [question 1] This change is part of the evolution of the WSIB’s Service Delivery Model. RTW Specialists will continue to engage workplace parties to co-ordinate return to work with the original employer. The new professional Work Reintegration role will be engaged when there is a need to assess pathways that may go beyond accommodation or transitional work arrangements. The new role will support work reintegration planning and provide case management for the work reintegration process. … [question 5] The new Work Reintegration Program will have a number of key differences from both the old VR [vocational rehabilitation] model and the LMR/RTW model that has been in place since 1998… The new program will be less prescriptive than the old VR model. It will allow injured workers to have more input and choice into their vocational goals and provide employers with enhanced support to accommodate injured workers. The new program will also operate under a policy and legislative framework that has changed to meet changes in Ontario's demographic, employment, and economic environments. The WSIB has already moved away from the “self-reliance” model introduced in 1998. The design of the Work Reintegration Program will ensure that injured workers and employers receive the WSIB’s specialized help to achieve successful employment outcomes. … [question 12] … The experience of the last 12 years has shown that the separation of RTW and LMR has not improved worker re-employment and wage restoration… The WSIB has modeled its new approach to work reintegration on the best benchmark practices in other jurisdictions. The WSIB's internal review and the value for money audit looked at leading practice for successful work reintegration outcomes in British Columbia and Alberta, along with jurisdictions in Australia, New Zealand, Switzerland and the United States. The audit also looked at the root causes for the deterioration in employment and earnings restoration for injured workers. In addition to this comprehensive research and comparison, the WSIB considered feedback from worker and employer stakeholders with experience in the LMR program, the 2008 Morneau Sobeco report on Experience Rating, and the results of Chair Steve Mahoney's 2009 Stakeholder Consultation sessions. [8] A Value for Money audit report (“VFM”) dated December 3, 2009 and prepared by KPMG identified a number of leading practices used in other jurisdictions to “address systemic barriers and enhance work re-integration outcomes” [page 9]. Those practices were categorized into major themes. Theme #8 is identified as the “[p]rofessionalization of staff responsible for work re-integration services to injured workers”. [9] Beginning at page 30 of the report there is an articulation of the report’s key observations of the eight leading practices. “Professionalization of staff” is described at page 35 as a: - 5 - Focus on professionalizing and improving training of staff with responsibilities for providing service to disabled workers - e.g., claims case managers and vocational rehabilitation specialists - up to and including developing formal professional certification and/or degree programs. [10] The key attributes to this leading practice are identified as the: Creation and achievement of professional standards, credentials and certifications for work re-integration professionals (vocational rehabilitation, disability management and return to work) Requirement for staff and service providers to hold these credentials Requirement for continuing professional education and training [11] By way of example the report notes that: Germany currently requires their employees to obtain relevant credentials. Australia has developed a specialized personal injury management program to educate workers compensation and insurance staff on a range of system design and disability management topics. Switzerland placed heavy emphasis on the professionalization of its case managers as part of the introduction of its revised case management model [12] As a result of soliciting input from stakeholders, the KPMG report also notes (at page 37) that with respect to vocational rehabilitation, concerns were raised by various stakeholders that: …although all parties were acting in good faith, the professional qualifications and abilities of WSIB and PSP staff were uneven. This issue was exacerbated by turnover of staff at the PSPs and transfer of files at the WSIB. In addition, stakeholders indicated that the current strategies and practices between the WSIB and the PSPs are not aligned. [13] The KPMG report recommended that the WSIB create and implement a single work re- integration model and governance framework based on leading practices. It also recommended that the WSIB acquire the internal expertise to manage the work re-integration program. The WSIB adopted this recommendation and committed to becoming a leading practice organization in work re-integration including acquiring the necessary expertise to manage the program. [14] Judy Geary is currently the Vice-President responsible for the employer’s Work Re- integration program. She has been employed with the WSIB for 32 years and has held a variety of positions over that time. Within her area of responsibility is a division that provides practice leadership, including process design, guidance to staff with respect to best and industry practices, and quality management. A work reintegration division is also responsible for monitoring and measuring programs. Service delivery falls within a service delivery systems division; all of which work collaboratively. She noted that work reintegration encompasses both RTW and LMR services. - 6 - [15] Ms. Geary described that the success of the work reintegration program contributes substantially to the overall success of the WSIB program, including its reputation with stakeholders. The reviews, research, and audit done identified leading and best practices in both program design and staffing. Historically, according to Ms. Geary, the WSIB had been criticized quite strongly by those performing system reviews for inconsistent/uneven qualifications of vocational rehabilitation staff and their lack of professional qualifications. Recommendations to work towards establishing a certification program for staff were made in 1997, 2002, and in 2009. Ms. Geary testified that the WSIB had lost any expertise in work reintegration and the program was in jeopardy as it lacked credibility with stakeholders and service providers. The audit by KPMG confirmed that a leading practice involved the upgrading of qualifications of persons working with disabled persons to ensure professional standards, codes of practice and ethical practices; matters usually associated with professional accreditation. That recommendation was supported by ILO convention and the United Nations in respect of rights for persons with disabilities. [16] The audit recommended that the WSIB acquire the internal expertise to manage the work re-integration program and adopt leading practices, which included the professionalization of staff. According to Ms. Geary, the inclusion of the degree and certification requirements in the posting flow from those recommendations. Ms. Geary noted that the requirement falls short of requiring actual certification. Ms. Geary noted that the employer has established a professionalization strategy, whereby staff are working towards certification. [17] Ms. Geary testified that the VFM audit noted that concerns had been raised by stakeholders about uneven qualifications and abilities of WSIB and PSP staff. According to Ms. Geary, PSP staff, for the most part, had degrees and had undergone certification, but their work was being reviewed by case managers who, for the most part, were not certified, leading to friction. In the current delivery system, the WTS had more decision-making authority and worked more collaboratively with the case manager. In addition, the profit motive had been eliminated and Ms. Geary felt that there was generally much less friction and staff were now operating under the same polices and philosophies to a common goal. [18] Ms. Geary described that vocational rehabilitation covers a lot of territory and includes quite sophisticated functions. The undergraduate degree provides exposure to a broad range of topics and knowledge, particularly if in a related field. That academic training is not easily acquired in-house. Counselling, planning, problem-solving, negotiating, communication, assessment, and critical thinking skills are all required, as well as an understanding of human behaviour and work environments. In the context of starting a new program, hiring approximately 220 WTS, the employer felt it needed to be able to rely on and have confidence in those employees, as there would not be a lot of time to make a positive impression with stakeholders. [19] According to Ms. Geary the minimum requirement for “Rehabilitation” on the job posting refers to vocational rehabilitation, a distinct field of knowledge, standards and practice. By responding to this minimum requirement, according to Ms. Geary, an applicant can explain their experience in that area and how it was acquired. - 7 - [20] The Vocational Rehabilitation Association of Canada (“VRACanada”) is a long-standing national voluntary association of rehabilitation professionals. According to its application guide [at page 2], members come from a diversity of disciplines and are employed in a variety of settings. A rehabilitation professional is described as one who: …work[s] with persons with disabilities and disadvantages and their families to provide services and supports such as assessment, affective/adjustment counselling, vocational counselling, case management and job placement services. They facilitate, manage and implement individual rehabilitation plans to ensure effective vocational and vocational outcomes [sic] in the most integrated setting possible. [21] Members are employed as rehabilitation counsellors and consultants, vocational counsellors and consultants, case managers, vocational evaluators, and job placement specialists. Members also work in medical rehabilitation and include rehabilitation nurses, occupational therapists, physiotherapists, chiropractors, kinesiologists, psychologists, medical doctors and other medical specialists. [22] According to the application guide, membership is open to anyone working in the field of rehabilitation and to those who are interested in furthering the cause of the Association. However, VRACanada also provides certification whereby “professional members” will hold a Registered Rehabilitation Professional (RRP), Canadian Certified Rehabilitation Counsellor (CCRC) and/or a Certified Vocational Evaluator (CVE) designation. [23] VRACanada provides this certification process as a means of ensuring professional standards for its members and as a vehicle to communicate to those persons receiving services, payors, industry agencies, and the public, that members have achieved and demonstrated a recognized level of professional competence in the field of rehabilitation. [24] VRACanada’s National Registration Review Committee, a subcommittee of its National Standards and Credentials Committee, grants the designation. An applicant must be a member in good standing of VRACanada in order to be considered for the designation. In order to qualify for the RRP designation, a minimum of an undergraduate degree is required, and, depending on the nature of that undergraduate training, whether related or not in subject matter, either two or four years of related work experience. Virtually identical requirements are reflected in the minimum requirements for the WTS position at issue here. [25] VRACanada is the voluntary association created to serve as the voice of those working in vocational rehabilitation and as their advocate, including “services to ensure recognition as a ‘professional’ group”. The College of Vocational Rehabilitation Professionals and Vocational Services (the “College”) is a non-profit national organization that seeks to act as the regulatory entity for the profession, acting in the public interest. At the time of these postings, and at the hearing of this grievance, no legislative and/or regulatory framework similar to those that exist for regulated health professions was in place. - 8 - [26] Ms. Harris has been employed with the WSIB since 1987. She has held a number of positions, including Case Manager and Adjudicator. She has also been involved with the union in various capacities for more than twenty years and was a member of the union’s bargaining committee in the negotiations leading to this collective agreement. [27] She described her understanding that in the mid-1990’s there were a number of disputes regarding qualifications and that there was recognition of the value of education balanced with internal knowledge and experience. As a result, according to Ms. Harris, the employer thereafter posted vacancies such that if it included an educational qualification, the posting would also indicate “or equivalent skill and ability”. Although in chief she testified that this applied to all postings where there was a benefit from formal education but no legal requirement for it, in cross-examination she was unable to confirm that equivalency had been considered by the employer in respect of all such jobs. She could point to no express agreement between the parties on this issue. [28] A posting for a temporary Ergonomist position in July 2008 stipulated minimum requirements that included a completed university science degree, as well as certification as a Certified Canadian Professional Ergonomist, or the ability to meet that certification requirement. The job description for the RTW Specialist position dated September 2008 stipulates that minimum job knowledge includes “analytical, problem solving and critical thinking skills normally acquired through successful completion of a post-secondary degree or equivalent experience”. [29] Ms. Harris described how there was a long history of the employer providing return to work services internally prior to 1998. Other jobs are also involved in vocational rehabilitation, including RTW Specialists, Ergonomists, Case Managers, and Nurse Consultants. Quality Management Specialists were responsible for auditing the services provided by the PSPs. [30] The job description for the RTW Specialist position indicates that it is the role of the RTW Specialist to ensure the full exploration of all opportunities to enable a worker and employer to successfully accomplish a return to work. A comparison of the two job descriptions indicates that the primary difference between the roles of a WTS and the RTW Specialist is that the latter focuses on a return to work with the pre-accident employer, whereas the scope of the WTS will encompass broader return to work possibilities. Under job requirements in the job description for the RTW Specialist, analytical, problem solving and critical thinking skills are identified as required and recognizes that these skills are “normally acquired through successful completion of a post-secondary degree or equivalent experience”. [31] The collective agreement places significant weight on experience acquired as a WSIB employee and the parties commit at the outset of Article 5 of the collective agreement to supporting recruitment from within the organization. Pursuant to Article 5.11 they have a complex process to assess and recognize knowledge, skills and abilities obtained through employment in positions within the WSIB. - 9 - [32] Ms. Harris described her understanding of the process that occurs under Article 5 of the collective agreement. Article 5.01 requires that every posting include information as to the “established minimum requirements” of the position. When a new position is created, a job description is prepared by the employer and sent to a joint job evaluation committee established under Article 18 of the collective agreement to set a salary grade for the position. That assessment is made based on maximums that are determined by applying 14 criteria and the use of a point band system. The focus of that job evaluation process is pay equity. [33] Once the maximum job requirements are established, the job description is sent to the template committee established under Article 5.11 of the collective agreement to establish an “Article 5 template minimum” for the position. Exhibit 6, dated June 6, 2011, is an internal online question and answer communiqué that provides information regarding the template process and its consequences. It notes at page 1 that the “template” is a “description of the minimum requirements and the maximum levels or full proficiency” for seven factors required for each bargaining unit job. The communiqué identifies six of those seven job requirements as common to all bargaining unit positions. It recognizes that the remaining requirement, job knowledge, is unique to each job. [34] The template process is a standardized method for capturing the knowledge and skills required in the performance of WSIB bargaining unit jobs. As a result of the template process, if an employee has held a job that has been ‘templated’ as having the same knowledge and skill requirements as a job applied for, the employee need not demonstrate that he or she has met that requirement. Providing information as to the jobs held is sufficient as both the employer and the employee can determine what level of proficiency will be attributed to each factor based on the template. It is therefore also the case that, with the template process, staff receive equivalent recognition for each factor when they have performed the same job, thereby eliminating subjectivity in making those assessments, resulting in a more transparent posting process. These template levels are based solely on experience gained in WSIB bargaining unit positions. If the template levels do not match, an employee has the opportunity to explain in their application how other experience, whether WSIB non-bargaining unit work or external experience, meets the minimum level required. For example, Ms. Harris agreed that the position of Nurse Consultant was not “templated”, and that any Nurse Consultant applying for another position would have to explain how their experience matched the requirements for the position applied for. [35] Underlying the evidence is an assertion by the union that the parties jointly set the “established minimum requirements” for a position through the template process. The employer drew a distinction between template minimums and minimum requirements for a position. Ms. Harris disagreed with the proposition that the employer had the right to unilaterally set minimum requirements for a position. In her view, the template process was a joint process and, while the employer could make a decision if there was no agreement, the union had a right to challenge that decision. [36] Article 5.11(c) of the collective agreement provides: - 10 - Where the committee cannot reach agreement on an Article 5 template minimum the Employer’s decision will be implemented. Such disputes will be considered in accordance with the grievance procedure. [37] One of the questions in the communiqué asks how “the minimum levels of the job requirements” are determined. The communiqué states: …the Template Committee met with representatives from the operating area…to jointly review and finalize the minimum requirements. Where there was disagreement, the Employer could set the minimum requirement. [38] Ms. Harris acknowledged that, at the behest of the union, the employer had reviewed the applications of internal candidates who had been screened out. Six employees who appeared to be eligible to obtain VRACanada designation because they were close to achieving the educational requirements and were actively engaged to that end were screened in as a result. According to Ms. Harris, this appeared to be based on VRACanada’s willingness to provide a conditional certification provided the educational component was completed. Ms. Harris noted that VRACanada certification is not a legislative or regulatory requirement in Ontario and that a number of WSIB jobs, including, for example, Case Manager, RTW Specialist, and Mediator, were involved in providing return to work services and did not require this designation. When jobs changed as a result of the changes in the service delivery model in 2008, Article 6 of the collective agreement was applied and job matches were identified. No lay-offs occurred. [39] In the most recent round of bargaining the employer sought to eliminate the threshold ability clause in Article 5 of the collective agreement and proposed promotion based solely on merit, without regard to seniority. Ms. Harris recalls David Marshall, WSIB President, attending negotiations and being quite complementary about staff. On the other hand, Wayne Weatherby, WSIB Vice-President, articulated a view, according to Ms. Harris, that the culture had to change. She understood the employer to be saying that senior staff should not be promoted as their skills were mediocre. She acknowledged that Mr. Weatherby referred to the existing process as “breeding” mediocrity and agreed that he expressed the view that there was no incentive for less senior employees to excel when postings were awarded solely on seniority. The parties eventually agreed to amend the collective agreement from the ‘threshold ability’ clause to a ‘relative ability’ clause. * * * [40] It was the position of the union that the employer improperly inflated the minimum requirements of the position in order to screen out members of the bargaining unit who do not have an undergraduate degree and/or certification, in circumstances where those formal qualifications are not necessary to do the work and were not, therefore, reasonable requirements of the position. The union noted that, if screened in, candidates would still be required to submit a work sample and be interviewed and meet a 70% threshold before it was determined that they were “qualified’ for the position. However, having set this formal requirement as a minimum requirement, employees have not been allowed even that opportunity. - 11 - [41] While formal education and certification might be an asset to the employer, argued the union, this was an ‘optics’ issue; the employer had imposed these requirements as a result of a recommendation contained in a consultant’s report. Although there was some lobbying with a goal of regulating the WTS role, such had not happened to date, noted the union, and there was no guarantee that it would occur. The work in issue had been contracted out to “professionals”, argued the union, and that work was brought back in-house as a result of dissatisfaction with the manner of its completion. Therefore, argued the union, the sought-after ‘professionalism’ did not fall to be determined based on paper qualifications. [42] The union argued that provisions in Article 5 of the collective agreement expressly require that knowledge and skills obtained on the job be recognized in the posting process. Any ambiguity, argued the union, was resolved by reference to past practice wherein credentials were required only where they were legally required in order to be able perform the work. The union argued that there was agreement between the parties to consider ‘equivalency’, and that the employer had failed to do so in respect of the WTS position. [43] The union also asserted that there appeared to be some inconsistency in the running of the posting in that it appeared that the employer allowed some to obtain training while in the job while others were screened out, and that this inconsistency was sufficient to warrant running a new process. [44] The union referred me to and I have reviewed: Mohawk Hospital Services Inc. and CUPE Loc. 1605, (1993) 38 L.A.C. (4th) 53 (Kilgour); Cape Breton District Health Authority #8 and C.A.W. Locals 4600 & 4603, (2003) 125 L.A.C. (4th) 331 (Veniot); Re City of Edmonton and Civic Service Union No. 52, (1991) 20 L.A.C. (4th) 445 (Power). [45] The employer argued that management has the right to set minimum requirements for a position and to establish the content of job descriptions. The only limit on that prerogative, argued the employer, would have to be found in express language in the collective agreement. Alternatively, noted the employer, although the reasonableness of the requirement could be challenged on the basis that it was arbitrary, discriminatory, or in bad faith; it was not. [46] The inclusion of these requirements was reasonable, argued the employer. They were not arbitrary as they had been instituted after research, an independent audit, and comments from stakeholders, and included the identification of leading practices in the consultant’s report and recognition of the 12-year gap in the provision of the WTS services by employees. Certification was not an issue, argued the employer, as it was not required in order to be screened into the competition. The posting spoke to eligibility to be certified based on an undergraduate degree and experience. There was no dispute that the WTS role was fundamentally important to how the employer carried out its statutory mandate. The requirement was reasonable in all of these circumstances, argued the employer, and was not inflated in the context of the work. [47] The employer was not, it argued, obliged to include or consider ‘equivalency’ because of past practice. There was no ambiguity in the language of the collective agreement, argued the employer. It stipulated that the posting must include minimum requirements. The collective - 12 - agreement does not, argued the employer, stipulate that the employer must include consideration of equivalency. The evidence relied on by the union, argued the employer, did not amount to an agreement between the parties to include ‘equivalency’ in all postings. Nor was there any basis on which to found an estoppel, argued the employer, as there was no evidence of a clear and unequivocal representation by the employer concerning any commitment regarding the inclusion of ‘equivalency’ in job postings. At its highest, argued the employer, the evidence indicated that there was some understanding that equivalency would be accepted for some jobs, although not all. The employer had, it argued, acted in accordance with that understanding as it accepted ‘equivalency’ with respect to the RTW Specialist position but not the WTS position. In any event, argued the employer, any estoppel would have ended with the posting of the ergonomist position in 2008 when the employer identified degree and certification credentials as minimum requirements of that job and the union did not file a grievance in response. [48] There was no evidence, argued the employer, that the employer included these qualifications as a means of defeating seniority rights under the collective agreement. To the extent that the union asserted that the requirements were imposed in bad faith, relying on comments made in bargaining, and even assuming those comments, argued the employer, they supported the decision for increased qualifications and noted that the union had agreed to a job competition system incorporating performance in that round of bargaining. There was no basis, argued the employer, from which to conclude that the employer’s decision was inappropriate. The challenged requirements, argued the employer, were reasonable as they reasonably relate to the actual performance of the job. [49] The employer argued that, with respect to Article 5 of the collective agreement, the experience and knowledge gained in a job is taken into account through the template matching process and there is, argued the employer, also an opportunity to show other experience obtained outside the employer. That consideration, argued the employer, satisfies any requirement under Article 5 of the collective agreement. [50] The employer referred me to and I have reviewed: Brown & Beatty, Canadian Labour Arbitration (4th ed.), chapters 2:2200; 2:2210-2:2211; 2:2213; 2:2221; and 3:4430; and Canadian Union of Public Employees, Local 87 v. Schreiber (Township), [2003] O.L.A.A. No. 674 (Dissanayake). [51] In reply, the union noted that there was no evidence that the job was more complex than when previously performed. It noted that bargaining ended in March 2008 and that a September 2008 posting contained reference to ‘equivalent’ experience. There has been nothing from the employer, argued the union, to put the union on notice that it ought to have taken any position in bargaining to seek to preserve the employer’s practice and therefore the union may continue to rely on that practice. The union relied on Ms. Harris’ uncontradicted evidence as to what was said in bargaining as evidence that the employer did not want its senior employees in these jobs. - 13 - Decision [52] The evidence before me does not establish that there was an agreement between the parties to use ‘equivalency’ for assessing qualifications for all job postings. In terms of practice, the evidence before me establishes that the employer has considered ‘equivalency’ with respect to some but not all postings. [53] Article 5.01 of the collective agreement makes reference to “established minimum requirements”. While there is no management rights clause in this collective agreement, Ms. Harris acknowledged that if there is no agreement between the parties, the employer may set those minimums. However, she asserted that any such decision was open to challenge. I agree. There can be no doubt that, irrespective of any template process, the union has a right to challenge minimum job requirements set by the employer. [54] However, the starting point for that analysis is the test established in Re Reynolds Aluminum Co. Canada Ltd., (cited indirectly in Schreiber (Township), supra, at paragraph 10, by reference to the decision in Re Hydro-Electric Commission of Ontario). The decision in Cape Breton District Health Authority, supra, cites the award at paragraph 18 and quotes from it as follows: In the ordinary exercise of management functions employers may determine in the first instance what specific qualifications are necessary for a particular job and what relative weight should be given to each of the chosen qualifications. After the employer has made the determination, arbitrators should honour the managerial decisions except in one or both of two circumstances: First, the employer in bad faith manipulated the purported job qualifications in order to subvert the just claims of the employees for job advancement under the terms of the collective agreement…Secondly, whether or not the employer has acted in good faith, the chosen qualifications bear no reasonable relation to the work to be done… [55] In other words, an employer has the right to introduce additional or different qualifications, even though that may have the effect of eliminating some employees from consideration for that position, provided those qualifications reasonably relate to the job and the employer’s decision was not made in bad faith. To those employees who are thereby eliminated from consideration, it may appear an inescapable conclusion that the decision was taken to subvert their claim to job advancement. However, that result, in and of itself, is insufficient to establish bad faith. [56] There is ample evidence from which to conclude that the stated minimum requirements of an undergraduate degree and an ability to become certified as a CCRC or RRP are qualifications that reasonably relate to the job of the WTS. The employer engaged in an extensive program review in anticipation of this work returning, which included a review and analysis of best practices in respect of not only program elements, but also staff training and qualifications. The ability to become certified reflects a move to an identifiable professional standard in vocational rehabilitation work, even though no professional regulatory mechanism has as yet been instituted. Seeking to establish and/or build the credibility and competence of its staff and program within the stakeholder community is a legitimate employer goal, even if such - 14 - might be achieved through other means. I have no difficulty in reaching a conclusion that the impugned minimum requirements reasonably relate to the WTS job. [57] Nor am I persuaded that the employer imposed these requirements in bad faith. The evidence directed at bad faith was the evidence of communications in bargaining. The employer was seeking to negotiate a change to the posting language to move from a threshold ability clause to, initially, promotion based solely on qualifications. In the first instance, seniority determines the successful candidate, provided the applicant meets the minimum qualifications for the job. The employer’s proposal would have seen seniority become largely irrelevant. The parties ultimately compromised and agreed to a relative ability clause, where both seniority and qualifications are taken into account. [58] In attempting to persuade the union as to why the employer wanted to move away from a threshold ability clause, Mr. Weatherby expressed his view that such a clause “breeds mediocrity”. Whether one agrees or not, that comment reflects a legitimate opinion and rationale for pursuing a change to the collective agreement language. Even assuming that the employer’s comments went further and included the expression of a view that staff were mediocre, that too is an opinion underlying the rationale for seeking a change. One may disagree and may find the view offensive, but it is not evidence of employer bad faith. [59] In the context of the approach taken in Schreiber (Township) supra, those conclusions would end the discussion in this case and the union’s grievance would be dismissed. However, although the employer has the right to establish minimum qualifications, that does not end the matter. The decision in Schreiber (Township) dealt with a question of whether the employer could amend a job description to require a higher level of educational qualification. Applying the test in Re Reynolds the arbitration board concluded that an arbitrator may only intervene where the qualification selected by the employer cannot be seen to have any relation to the work to be done and concluded: 23 … Under such a test, even if it is established that the employer could have achieved its goal of having competent and skilful workers through alternate means, such as an equivalency based on experience, that does not justify arbitral intervention…. 24 … perhaps the employer could have managed without requiring a college diploma. However, even if we were of that view, it does not make the employer’s decision to require a college diploma arbitrary and unreasonable. [60] It does not appear that the arbitration board had reference to the decisions in Re Sunbeam Home and Toronto Public Library, both cited in Cape Breton Health Authority, supra, issued only a month after the decision in Schreiber (Township). Nor, therefore, did the arbitration board in Schreiber (Township) have the benefit of the review of those cases and the excerpt in Brown & Beatty, Canadian Labour Arbitration, conducted by the arbitrator in Cape Breton Health Authority. [61] Arbitrator Burkett in the Toronto Public Library case, concluded (reproduced at paragraph 50-51 of the Cape Breton Health Authority award): - 15 - We start by addressing the distinction that the union seeks to make as between the setting of qualifications and the application of these qualifications in any given job posting; a distinction the employer asserts cannot be made…the object of any job posting…is to identify the applicants who have the ‘ability’ or are qualified to perform the job that has been posted. Accepting that the employer…has the right to establish relevant qualifications it would be a strange result indeed, given the overriding purpose of any job position procedure, if an individual who possesses equivalent qualifications is nevertheless declared unqualified…. … It is common ground between the parties to this matter that the employer has the right to establish the qualifications required of any bargaining unit position so long as such qualifications are not established in an arbitrary or discriminatory manner… It is our view…that absent express language to the contrary, [an] employer, in determining whether an applicant is, in fact, qualified…must consider whether equivalent qualifications are brought to the competition by the individual. [62] There is also reference to chapter 6:3320 of Brown & Beatty in the Cape Breton Health Authority decision. The current 4th edition of that reference text notes that an employer may set requirements for a position but goes on to state: However if an employee is able to demonstrate that his or her personal qualifications and abilities are such that he or she can do all the work competently, without the requisite academic standing…the employee will be entitled to the job. In such cases, arbitrators have to evaluate the equivalency of different qualifications in order to determine whether an employee meets the substantive requirements of the job. [63] Had the employer only introduced a requirement for an undergraduate degree in a related or unrelated field I might well have concluded that the employer would be required to consider equivalency before screening out applicants who did not hold the specific academic qualification. However that issue becomes subsumed under the second requirement in the particular circumstances of this case. In order to be designated as a CCRC or RRP, the undergraduate degree is a requirement. That is a requirement set by VRACanada, not the employer. Any issue of whether equivalency may be or ought to be considered in that certification process is one to be taken up with VRACanada. [64] Does the employer thereby get to do indirectly what it may not be able to do directly? Unlike the skills and knowledge acquired through an undergraduate degree, a designation reflects those skills and knowledge, but also the professional designation. It may reflect ‘credentialism’ and/or ‘optics’ but many jobs require some form of accreditation. The fact that it is not legally required does not detract from the fact that the holding of the designation reasonably relates to the job of the WTS. And any assessment of ‘equivalency’ may become less a comparison of skills and knowledge and more an inquiry into equivalent credentials. [65] For purposes of this posting process, two facts become relevant. First, the only evidence of equivalency to the CCRC or RRP designations are additional CVE and CRC designations referred to in the VRACanada application guide at page 9. There was no evidence that the employer had screened out applicants who held either of these alternate designations. Second, - 16 - the employer did not require that applicants hold the designation in order to be screened in. It required that applicants have the designation or the ability to meet the minimum requirement to acquire these designations. In that context, if someone were close to completing the academic qualification and held sufficient and appropriate experience for purposes of the certification process, I would expect the employer to have screened in that individual for further consideration. Or, similarly to Toronto Public Library, if someone held the academic requirement but fell shy of the stipulated amount of experience, consideration would be given as to whether that individual’s circumstances effectively met the threshold. That requires a case- by-case consideration of relevant individual circumstances and is beyond the scope of this policy grievance. It does reflect an assessment akin to whether qualifications and experience may be said to be ‘equivalent’ to the holding of a designation. [66] I am satisfied that the template process set out in Article 5 does not affect this assessment of the stated minimum requirements for the position. There is no doubt that the parties to this collective agreement have recognized and committed to the value of experience acquired while working in bargaining unit positions, and have established a complex process to assess and credit that experience. There is ambiguity in the language used throughout Article 5 and in the communiqué that could reasonably lead one to conclude that template minimums and minimum job requirements are the same thing. However, having carefully considered the evidence and the language of the collective agreement, I am not so persuaded. The mandate of the template committee is to review and update template minimums “to recognize internal job experience”, not to set minimum job requirements. If the parties had intended that “template minimums” were to reflect the job’s minimum requirements, they could have used that term in Article 5.04. Rather, they used the term “established minimum requirements”. Similarly, the “Article 5 Templates” Letter of Agreement attached to the collective agreement states: The template is intended to credit internal work experience in order to help establish preliminary status for internal job competitions. To “help” establish suggests that the template minimums do not provide definitive preliminary status; further suggesting that other requirements might exist. The collective agreement does not say that the template is intended to credit experience in order to establish preliminary status. [67] In conclusion, I find that the employer was entitled to set an undergraduate degree and the ability to meet the minimum requirement to acquire designation as a CCRC or RRP as minimum requirements of the WTS position. The evidence does not establish that the employer set these requirements in bad faith. The requirements reasonably relate to the work of the WTS position. Even assuming that the employer is required to consider equivalency, in the particular circumstances of the certification aspect of the requirements, equivalency in academic qualifications is a matter for VRACanada. There is no evidence that the employer failed to consider equivalency with respect to the various specific designations. In any event, the employer did not impose a strict requirement for the designation, but incorporated a kind of ‘equivalency’ assessment by virtue of including the ability to meet the minimum requirements to acquire the designation. - 17 - [68] Having regard to all of the above, this grievance is hereby dismissed. Dated at Toronto this 26th day of January 2012. Marilyn A. Nairn, Vice-Chair