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HomeMy WebLinkAbout1975-0018.Rounding et al.76-04-2318/75 CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARO 416/965/1410 Oueen’s Park Toronlo. Onlerlo M?A 125 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLDYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mrs. G. Rounding, Mrs. G. Wiseman R Mrs. J. Carnegie (The Grievors) And Southwestern Regional Centre Ministry of Community & Social Services Cedar Springs, Ontario (The Employer) Before: 0. M. Beatty - Chairman Mary Gibb - Member Harry Simon - Member For the Grievor Mr. G. Yemec - Ontario Public Service 'Employees Union For the Employer Mr. Georqe Campbell - Civil Service Commission Hearinqs Westbury Hotel, Toronto, Ontario, February 12, 1976 Park Plaza Hotel, Toronto, Ontario, March 8, 1976 1. In the grievance brouqht before this Board, Mrs. 6. Roundinq, Mrs. G. Wiseman and Mrs. J. Carnegie, each of whom is presently employed by the Ministry of Community and Social Services at the Southwestern Regional Centre as a Seamstress 1, grieve that they have been improperly classified. More specifically the qrievors claim that so classified, the employer has violated 5.33 of The - Employment Standards Act S.O. 1974, c.112; s;4 of The Human Rights Code R.S.O. 1970, c.318 as amended and that in any event, on the evidence adduced they should more properly be included in the classification of Tailor. Although Mr. Yemec, for the grievors, pressed this Board strongly to accept the conclusion that the classification of Seamstress as it is presently established and applied in The Ontario Public Service, offends the statutory provisions referred to above, (which generally prohibit, inter alia, the discrimination in employment on grounds of sex),for the reasons that follow we have not found it necessary in the circumstances of this case to pursue those assertions in any detail. In the first place, and for the future reference of the parties, this Board would not be willing, in the absence of the presentation of careful and reasoned briefs on this matter, to assume jurisdiction, on its own initiative, to positively supervise the substantive provisions of those pieces of legislation. Particularly is that so where, to this Board at least, each of these statutes themselves provide for unique and quite distinct enforcement procedures for violations of the substant, in this grievance. (See Prinqle et al V 28 (S.C.C.)) ive provisions referred to Fraser (1972) 26 8.L.R. (3d) 2. Further, and although it is manifest that arbitrators may, in ap- propriate circumstances, make reference to overriding legislative enactments of the character of the two statutes referred to above, (see United Steelworkers of America, Local 2894 v.Galt M&\ Industries Ltd. (1974), 46 D.L.R. (3d) 150 (S.C.C.); Re Board of Education for the Borough of North York and Canadian Union of Public Employees (1972), 31 D.L.R. (3d) 385 (Ont.Div.Ct.)), it is not at all clear or free from doubt whether the arbitra! function would go so far as to warrant the kind and character of arbitral intervention reauested by these grievors. (See Neiler, P.C., "The Arbitrator, The.Collective Agreement and the Law" (1972) 10 Ospoode Hall L.J. 41.) However and apart from those considerations, it appears to this Board that although the arguments advanced by the grievors as to the impropriety of the present classification are in one sense separate and distinct, to the extent that the evidence reveals that these three grievors were properly classified their claims based on sex discrimination must also fail. That is, and apart from the assertion that at present all of the seamstresses employed by the Government are female, while the four or five tailors employed throughout the service are male, there was simply no evidence addressed to this Board, other than relating to the respective duties of the seamstresses and tailors, which would support the conclusion that the maintenance of two separate classifications of tailor and seamstress offend the legislation noted above. Thus, although this Board heard evidence with respect to the duties of one of the tailors 3. emploved in the public service which we shall examine below, there was, for example no evidence before this Board that any person had been classified either as a tailor or as a seamstress simply on the basis of their sex. Very simply the assertion that the present employee complement in each classification is entirely of one sex would not, standing alone, justify the finding that there had been a breach of either of those pieces of leoislation. Particularly is that so where, as here, the evidence with respect to the duties performed by the two groups of employees amply supports and justifies the establishment and maintenance of these two separate classifications. In reachino this latter conclusion however, it is important for this Board to set out precisely what it conceives to be the scope of its jurisdiction in assessinq the merits of a claim that an employee has been improperly classified. In the first place it is readily apparen~t that the methods and principles by which positions are to be classified is, as a result of the most recent set of amendments to The Crown Employees Collective Rarqaininq Act, a barqainable issue between the various employee representatives and the employer. However, by virtue of s.l7(l)(a) of that same Act, it is manifest that havino settled on a particular clas- sification and job evaluation system, the actual classification of positions is within the exclusive prerogative of the employer. In the result and for purposes of entertaining grievances under s.l7(2)(a) of the Act, in which an employee alleges that he or she has been improperly classified, it necessarily follows that this Board must take as a given and can not interfere either with the classification system 4 . agreed to and adopted by the parties or the application of that system to the various positions within the public service. Rather this Roard's sole function in the resolution of grievances alleging an improper classification, is to determine whether the employer is conforming to the classification system as it has been established and/or agreed to. That is and more particularly,!when faced with a claim that a position is improperly classified,and assuming those classifications conform to the general law of this jurisdiction,this Roard is limited by the express provisions of legislation to deter- mining whether or not on the system employed and the classifications struck, the employee in question is actually performing the duties assigned to that position or even assuming that to be the case, whether that employee is nevertheless being required to perform virtually the identical duties which, the class standard notwithstanding, are being performed by employees whose position has been included in some other more senior classification. In short, it would, under the present statutory scheme, only be in those or analagous instances that an employee's grievance under s.l7(2)(a) would be entitled to succeed,. In the result it is simply of no relevance to a determination that is being made under s.l7(2)(a) that this Board is, or indeed the grievors are,firmly convinced that there are not sufficient differences between two classifications to warrant their separate identities or that the difference in wages that are appended to each do not fairly or accurately reflect the differences in skill and job duties that are required in each. Rather, and subject to such classifications conforming to the general law of this jurisdiction, to repeat, the 5. former is by virtue of s.l7(l)(a) of the Act within the exclusive prerogative of management while the latter is a matter which may properly be the subject of negotiation between the parties. Ne believe that it is important to set out the scope of our jurisdiction in such grievances not only for the future reference of parties who will come before this Board, but also so that these three grievors will understand why we can not afford them the relief that they seek in their grievances. That is, from the evidence, it appears that at the source of the grievors' complaint is the present disparity that now exists in the wages being paid to a Seamstress 1 and the wages being paid to a Seamstress 2. More specifically,it would appear both from the audit report done on their job and from Nrs. Carnegie's own testimony that when,following an audit which was done on various positions in the service,the grievors' supervisor, who is classified as a Seamstress 2, received an increase in wa,ges ' such that she received the same rate of pay as a Tailor, these grievors, who did not receive a similar increase felt themselves aggrieved. However from what we have said above as to the scope of our juris- diction and regardless of how much sympathy we may have for their claim, this Board is simply not competent to establish a rate of pay for their work which we might believe more accurately reflects their skills and duties unless they are able to affirmatively prove, in the manner described above, that they have been improperly classified. On the evidence before this Board, as stated above, the qrievors have not been able to discharge that onus. In the first place, it is I 6. beyond dispute from their own evidence that the functions and duties that they daily perform fall squarely within the job standard (Exhibit 6) drawn up by the employer pursuant to their powers in s.17(1) of the Act. Indeed both these grievors, who stated that their most difficult and complex task was the making of restraininq clothing out of heavy material, conceded that such a task fell within the job of cutting and sewing "institutional clothing" as described in their job standard. Put somewhat differently neither of the grievors who testified before us claimed that any of the tasks they regularly perform fall outside the job standard for their position. Although ;it is true that these three employees have in the past performed in- cidental duties such as the repair of upholstery which is not specifically described in their class standard, it is a matter of record that such tasks were performed infrequently and in any event were not alleged to fall within the duties ever assigned to the tailor classification. Further and although these three employees apparently work with less direct supervision of their work than is anticipated by the~composite job standard, that fact does not assist them, for the reasons described below, in establishing that they are performing the duties of the Tailor classification. Although obviously relevant to matters of remuneration and the principles by which their position should be classified, such evidence simply does not warrant the con- clusion that they should more properly be,classified as Tailors. Indeed the same could be said of much of the evidence adduced by the grievers which established a close similarity of functions between the Seamstress and Tailor classifications. Although obviously relevant to a claim, made &negotiations that the grievers should be 7. paid a wage which more closely conforms to the Tailor classification, that evidence will not support the conclusion that these grievors should be classified as tailors where other evidence reveals that there are other skills and duties required of~the tailor which these grievors do not and have not performed. For example these grievors expressly conceded that they do not and have never performed the'more complex tasks which the class standard and the evidence of Mr. Joachim indicated are required of a person who performs the duties of a tailor. More specifically these qrievors do not, as Mr. Joachim testified a tailor would, actually measure, fit and adjust patients and/or staff for particular pieces of clothing. Rather these grievors, although regularly measuring particular garments or other articles they are required to make, have never actually measured a patient or member of the staff and fitted and adjusted a particular garment for them. To the contrary Mrs. Rounding expressly stated that when a particular patient or member of staff had to be fitted and measured for a particular garment, other staff would perform those tasks. In such circumstances Mrs. Rounding conceded the garments would come to their work area already pinned and with instructions included. Further and although Mr. Joachim testified that the tailor working in his facility would not regularly be required to rip apart, fit and adjust ,a tailored suit for a particular patient, he did state that a regular part of the tailor's job would include the measuring, fitting and adjusting of various pieces of clothing for such persons. That such tasks are relevant to and indeed would warrant the maintenance of separate classifications for the positions of Seamstress and Tailor is confirmed by Mr. Joachim’s ,i 8. evidence that the critical distinction between a tailor and a seamstress is that the former but not the latter would be required to measure, fit and adjust tailored clothing and on occasion government issued apparel. A careful review of the class standards of the tailor and seamstress I classifications confirms that those functions of measuring, fitting and adjusting are a significant and relevant difference between those two posi~tions. Unless evidence were adduced, and it was not in the grievance before us, that in fact the persons presently performing the job of Tailor in the public service never, or only infrequently perform such duties, this Board must, in light of Mr. Joachim's testimony and the class standards in evidence before us, assume that such functions are indeed integral to and serve to distinguish the tailor classification from that of the seamstress. Only in the event that it were established that these duties were not required of the tailor classification and that to the contrary the two classifications performed virtually the identical functions, would this Board be warranted in concluding that the grievors had been improperly classified. Indeed and even assuming we seized jurisdiction of the issue, it is that character of evidence which this Roard would require and then only if it had reference to the tailor and seamstress classifications across the service rather than to one or two particular tailor or seamstress positions,to substantiate a claim that the present classification scheme of tailors and seam- stresses offended the legislation described above. Where however . 2 7 . 9 . T the grievors could not point to any of the major components of their work which was not covered in their class standard and where it was established that they do not perform those tasks required of the tailor which involved a higher skill component, both their claim that their present classification offends the equal employment legislation as well as their demand to be classified as tailors mus be denied. i To repeat, against that evidence, the.mere assertion that all of the government's seamstresses are ~femal~e while all of the tailors are male and the proof that they perform many of the same 'tasks, simply does warrant the conclusion either that their clas- sification offends the equal rights legislation referred to above or that they should be classified as tailors. While such evidence may support a strong moral claim for a higher rate of pay, a different classification system or indeed some new intermediate classification, at least the first two claims are properly a matter the union may raise during negotiations and in all events are beyond the competence and jurisdiction of this Board. Very simply, and although it may strike these grievors as inequitable, this Board simply has no power or authority to inquire into or act upon such considerations. Rather such issues are, under the present legislative scheme, matters which may only be raised between the parties in direct negotiation. In the result, and for the reasons given, these grievances must be denied. Dated at Toronto this 23rd day of April 1976. D. M. Beatty Chairman Mary Gibb Member H. Simon Member