HomeMy WebLinkAbout1982-0327.Barnard.83-03-22Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Before:
OPSEU (D.G. Barnard)
- And -
Grievor
The Crown in Right of Ontario
(Ministry of Transportation
and Communications) Employer
J.W. Samuels Vice Chairman
M. Gibb
T. Traves.
Member
Member
For the Grievor: P.A. Sheppard
Grievance Officer
Ontario Public Service Employees Union
For the Employer: T.W. l~heeler Classification and Pay Administration
Section
Personnel Branch
Ministry of Transportation and Communications
hlarclr 7, 1963
/
CONTENTS
Introduction . . . . . . . . . . . . . . . . . . . . . . . . 1
The Relevant Class Standards . . . . . . . . . . . . . . . . 1
The Grievor's Job . . . . . . . . . . . . . . . . . . . . . 3
The Job of an S.I.O. 3 in another Ministry . . . . . . . . . 6
._
Conclusions . . . . . . . . . . . . . . . . '. . . . . . . . 7
List of Exhibits . . . . . . . . . . . . . . . . '. . . . . . 10
Appendices
1. Class Standard - Safety Instruction Officer 2 . . . . 11
2. Class Standard - Safety Instruction Officer 3 . . . . 13
3. position Specificatiomof the Grievor , . . . . . . . 14
4. Position Specification of Mr. Scott . . . . . . . . . 17
The grlevor is employ& by the MinLstry as a.Staff Safet'y
Officer in the Northwestern Region of the Provi~nce. He works out
of an office=. in Kenora. The headquarters of the Region is in
Thunder Bay, and his supervisor there is ?Ir. Carl Gaebel. The
grievor is classified as a Safety Instruction Officer 2. He claims
that he is improperly classified and should be a Safety Instruction
‘.Officer 3.
The Union argues the improper classification on two grounds
firstly, that A simole reading of the Class Standards and the Positiol
Specification of the griever shows that the proper classification is
S.I.O. 3; and secondly, that the grievor is doing essentially the
same work as a man classified as an S.I.O. 3 by the Ministry of
Government Services.
THE RELEVANT CLASS STANDARDS
The jurisprudence of this Board is clear that the employer
has the power to establish the Class Standards, and that the Board
is confined to a determination of whether or not an employee is
Droperly classified according to these Standards: see, for example,
Brick, 564/80, at page 48 and following.
In this case, the Standards for the Safety Instruction
Officer series orovide, for the second and third levels as is set Out
in P.ppendices 1 and 2 to this award.
',i,
This Foard has recently commented on the distinction
hl?tWeCZil t>~r? t"ir St72?arcl- in L?jLt2c, 38R/R2. In Particular, the
Board w.=+ of the vinw that tha "central core" or "distinctive
character" Of the S.X.O. 3 classification was the supervision and
coordination of rctivlties involved in the jobs so classified (see
pages I.0 and 11). 'Ye do not disagree with this earlier decision,
b\C. ;.: t.?ouSd h? use: 7~1 tn exp.lor? the matter further.
. _
in the f?.rst place, the Safety Instruction Officer 2 is
a full-time staff position with large responsibilities. According
to the Class Definition., the classification covers safety promotion
work in a Ninistry "Idith an extensive well-developed program of
accident prevention through education and instruction". The employee
may be "responsible for the implementation of the complete safety
program in an assigned district", and will be "supervised by a senior
officer at head office or the senior official of the region". The
Class Definition and the Characteristic Duties indicate that the
S.I.O. 2 will he involved in programs designed to teach employees
to preve!nt accidents and to avoid occupational health and safety
problems, end will undertake direct supervision of working conditions,
i'
with some authority to issue safety instructions; The work may
involve contact with subordinates, line supervisors, and members
of the public.
Secondly, the Class Standard for the Safety Instruction
Officer 3 is in many ways similar to the Standard for the S-1.0. 2.
Both classifications are involved with "programs designed to oromote
safety meacures in work habits and recreati,on activities." There
.=re ma?!, similarities in the Characteristic Duties of the two
l.ove1.s. The distinctions between the two Standards are more in
,
matt-.r.5 of tdr?orec than in sharp contrasts. From the Class Definition
<or the S.I.O. 3, one develops the impression that this employee
has some specializ~ed training, and, he does "specialized safety
promotion l.rork'". Ilis involvement with P program extends from the
L.planning, through the ewecution, to the evaluation of the results
of the program. He will "co-ordinate all phases of the program
including the evaluation cf eguipment, ~the development of training
manuals, the instruction and supervision of subordinate officers,
and the assessment of results". The employee will rely not only
on prepared, pro-existing ideas and materials, but will be involved
with the "constant development of original and effective promotional
methods, together with re-evaluation of existing methods". The
S.I.O. 3 may be responsible for a program which is in place widely
in the Province. His work may extend to the recommendation of
changes or additions to the legislation.
Searing this in mind,
grievor.
let us turn to the job done by the
THE GRIEVOR'S JOB
In late 1082, the griever's job was re-evaluated, and a
new Position Specification was developed. He had the opportunlty
to comment during the re-evaluation, and it appears that his views
were taken into account. His job is now described accurately in
i
In short, this Position Specification describes the
griever's part in the implementation of the Ministry Directive
conc~3~.nq occupa.tiona- 1 health and safety !Exhibit 5). which gives
.--the. Regional Safety Offices certain responsibilities.
"Each Regional Safety Office is responsible for ensuring the implementation of Ministry health
and safety policies and programs by:-
Providing the Occupational Health & Safety
Office with input into the development of,
policies and programs.
Providing advice and technical expertise to
Regional Managers and Joint Health and Safety
Committees as required.
Implementing within the assigned Region, approved
Ministry health and safety programs.
Providing the instrumentation and expertise
to run medical surveillance and environmental
testing programs.
Providing training in health and safety to all
employees.
Regularly inspecting the work places to audit the
effectiveness of the health and safety program.
Developing and implementing health and safety
programs to meet local needs."
In the -7rea around Xenora, it is the griever who is responsible
for fulfilling these responsibilities, under the supervision of
Mr. Carl Gaehel.
Tn nracticc, because of the distance between the griever
and Mr. gaebel, the griever has very little supervision. In -
- , -
oarticular, when the griever inspects work sites and finds safety
problems, almost invariably he is able to rectify the situation
by consulting with the line supervisor (eg. a construction foreman),
making appropriate recommendations, and then checking back to ensure
that his recommendations are carried out. The Position Specification
may not make this absolutely clear, because.it refers several times
to reporting to the Regional Staff Safety Supervisor in order to
deal with problem situations. The evidence of both the grievor
and Mr. Gaebel is clear that almost always problems are handled
by the grievor on a local level with no consultationwith his
supervisor.
The grievor does not supervise any subordinate safety
officers.
!
The griever's job does not involve any significant' contacts
' with the public. He deals almost entirely with operational staff
in the Ministry.
A significant part of the griever's work is in the area
of audiometric testing. He has taken several one or two-day courses
and is certified to do this testing, as,part of the general program
to prevent hearing loss.
Insofar as instruction is concerned, normally the griever
uses prepared materials. It is fair to conclude from the evidence
that he does not develop programs or instructional material. He is
not responsible for original and effective programs or material.
The gricvor.is not doing "specialized" work, in the sense
that the work he does is of the same type as would be done thro]]ghout
the Province. .The audiometric testing is not "specialized" work,
hut can be done by anyone with the brief training that the griever
has. In our view, the word "specialized" in the Class Standard for
the S.i.0. 3 refers to work which would not be done widely, but
. . only by a few people with special training, requiring a significant
period of time. Such an employee might then be called upon to use
his training over a significant geographical area, spanning several
Regions, and might be called upon to teach others how to do this
"specialized" work.
In sum, the grievor is responsible for the implementation
af the Ministry's broad program for occupational health and safety
in his geographical area.
THE JOB OF AN S.f.0. 3 IN ANOTHER MINISTRY --
The Union argues that the gri~evor's job is substantially
the same as the job done by Mr. W. Scott, who is a Regional Safety
Officer Queen's Park, in the Ministry of'Government Services, and
who is classified as a Safety Instruction Officer 3.
Mr. Scott testified concerning his job, and we received
two versions of his Position Specification (Exhibits 10 and 11).
We are satisfied that Exhibit 11 is the current one, and it is Set
ollt in Appendix 4 to this award.
- ‘3 -
In,short, "r. Scott spends most of his time on fire safety.
HP instructs the occupants of government-leased and government-
owned buildings on fire precautions and emergency procedures. His
contact is with building occupants, owners, contractors and other
Ministries involved. He develops training materials and evacuation
plans specially for each building concerned. He has the authority,
under contracts between the Provincial Government and building _.
owners or contractors, to issue orders to rectify hazardous situ-
ations. He has completed four parts of the Ontario Fire College
Fire Prevention Course --which took-eight weeks to accomplish.
While Mr. Scott is currently classified as an S.I.O. 3,
the evidence at our hearing disclosed that the Ministry of Government
Services reviewed his position 'in 1982 and concluded that it should
be classified as an S.I.O. 2. However, that Ministry is n,ow under-
going a reorganization and no change in the classification has been
made in fact.
CONCLUSIONS - -
The grievance in Maitland and the grievance.here arise
out of the fast that there appears to be some difference in the waY
in which the various Ministries have classified their safety
officers. In the Northwestern Region, for example, the safety
officer on the spct for the Ministry of Government Services is
classified es an S.I.O. 3, and so iS t, he man from the Ministry of
Natural Resources. The grievor is an S.I.O. 2, and so is the man
from the Ministry of the Environment ( it was' this Ministry which
- 10 -
was involved in Maitland). There may indeed be differences in
the jobs done by these various employees. However, there is a
perception that the classification has not been done in the same
fashion. In Maitland, the grievance was denied.
Turning first to the comparison between the griever's
'-. job, and that of Mr. Scott, we do not think that they are suffi-
ciently similar to compel the same classification. In particular,
Mr. Scott's primary function involves fire safety and he has had
considerable special training in order to fulfil this responsibility.
He must do considerable original work in the development of emergency
plans and instructional materials for particular buildings. He must
pull together material from a variety of sources in order to develop
what is needed for the particular situation with which he must deal.
In general, one is left with the sense that his job does involve
greater individual initiative and special expertise than does the
grievor's. Therefore, it is unnecessary for us to consider the
relevance of the suggestion that Mr. Scott is improperly classified.
While both the Standard for the S.I.O. 2 and the S.I.O. 3
suggest that the employee in the classification will train sub-
, ordinates and deal with members of the public, it is clear that
neither of these characteristics is critical. We heard no evidence
about any Safety Instruction Officers who trained subordinates or
dealt with the public. Doubtless there are some who have these
characteristics, but clearly it is not necessary to have either one
in order to be an S.I.O. 2 or an S.I.O. 3.
s
.’ - 11
On behalf of the grievor, Mr. Sheppard urged this Board
to find that the S.I;O. 3 Standard was the "best fit" for the
griever's job. With great respect, we suggest that this is not
the approach to be taken. The first issue for us is whether or
not the grievor is properly classified as an S.I.O. 2. If we
decide that he is not properly classified as an S.I.O. 2, then we
must go on to determine whether he would be properly classified in
-'the classification suggested by the grievor.
The Ministry argued, by means of an exhaustive analysis
of the griever's Position Specification in light of the Class
Standard for the Safety Instruction Officer 2, that the griever's
job was encompassed by this Standard.. We agree with this analysis.
The S.I.O. 2 covers positions involving the full-time administra.tion
of a general safety program in a geographical area, under the super-
vision of a senior official at head office, or the senior official
in the region. This is precisely the case of the griever: His job
does not involve the degree of individual responsibility and origi-
nality which appear to be significant in the Standard for the
S.I.O. 3.
(, For these reasons, the grievance is dismissed.
Done at London, Ontar
"l~artial Dissent" (see attached)
T. Trnves ~Member
5.: 2400
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LIST OF EXHIBITS
Class Standards - Safety Instructional Officer
Position Specification - Staff Safety Officer
Proposed Position Specification - Staff Safety Officer
Extract from Application for Employment
I'Administrative Safety" - Directive A-l
Building Fire and Safety Inspection Report
Back Care Programme, Instructor's Manual
Organization Chart
Memorandum,'December 7, 1982
Position Specification - Regional Safety Officer, Ministry
of Government Services (date uncertain)
m, 1978
Position Description - Staff Safety Supervisor
Memorandum,of September 29, 1992
3 >.I -
Appendix 1
SAFETY INSTRUCTION OFFIC'ER .2
CLASS DEFINITION:
This class covers full-time safety promotion work in a
Department with an extensive well-developed program of accident
prevention through education and instruction. These programs ,are
designed to promote safety measures in work habits and recreational
activities. Employees in this class may be in charge of one spe-
cialized activity of a program such as Hunter Training for the
province with responsibility for securing compliance. In these
positions, duties include the evaluation of equipment, the develop-
ment and distribution of safety materials and the training of
departmental personnel and members of interested groups. It may
also cover technical supervision of other safety instructors. In
other positions, such as those,of the Accident Prevention Organizers
in the Department of Transport, the employee is responsible,for the
implementation of the complete safety program in an assigned district.
They publicize and promote interest in all aspects of the program
by~distributing safety materials, addressing groups, arranging for
any.demonstrating equipment, and inspecting areas requiring spec.ial
measures. These employees are supervised by a senior officer at,
head office or the senior official of the region.
CHARACTERISTIC DUTIES:
Train and supervise subordinate officers in all phases of the
program.
Contact line supervisors, educational groups, municipal councils
and other specialized groups to publicize the program, promote
interest and secure compliance or co-operation; provide infor-
mation and material: 'address interested groups.
Lecture departmental personnel and others in the fundamental
~principles and methods of accident control, first aid, resusci-
tator and artificial respiration, fire prevention, driver
education and traffic safety.
Demonstrate the proper use of equipment and provide instruction
to specialized groups such as gun clubs and sports groups.
Investigate accidents and prepare analytical reports.
Compile statistics on accidents; recommend changes in work
methods or legislation and may revise training manuals.
Inspect departmental establishments and equipment for conformance to safety standards: issue safety instructions.
Prepare or assist in the preparation of bulletins, circulars,
training manuals and demonstration sets.
Arrange special competitions.
Attend conferences and refresher courses.
- ,s -
Appendix 2
SAFETY INSTRUCTION OFFICER 3
CLASS DEFINITION:
This class covers specialized safety promotion work in
a Department with an extensive, well-developed program of accident
prevention through education and instruction. These programs are
designed to promote safety measures in work habits and recreation
activities. Employees in this class co-ordinate all phases of the
-program including the ev.aluation of equipment, the development of
training manuals, the instruction and supervision of subordinate
officers, and the assessment of results. The work requires constant
development of original and effective promotional methods, together
with re-evaluation of existing methods. In some positions employees
are responsible for the implementation of a program which covers a
variety of activities in a large area of the province. This 'class
also includes positions of directors of programs such. as the
Director of Safety Education, Department of Transport who supervises
a number of field officers in assigned districts throughout the
province.
CHARACTERISTIC DUTIES:
Train and supervise subordinate field safety instruction
officers in all phases of the program..
Supervise the development and preparation of training .manuals,
bulletins, demonstration sets, and methods'of presentation.
Lecture departmental personnel and others in the fundamental
principles and methods of, accident control, first aid, resus-
citator and artificial respiration, fire prevention, driver
education and traffic safety.
i Contact line supervisors, educational groups, municipal councils
'and other specialized groups to publicize the program, promote interest and secure compliance or'co-operation.
Inspect departmental establishments and equipment for conformance
to safety standards; issue safety instructions.
Advise on use of new or existing equipment to reduce accident
hazards.
Assess departmental accidents, compile statistics and develop
preventive procedures; follow up to ensure instructions are
being enforced.
Recommend changes or additions to legislation.
Attend conferences and refresher courses for the purpose of
updating methods and manuals; assist in planning and conducting
conferences.
Appendix 3
Position Specification for
Staff Safety Officer
Northwestern Region
Ministry of Transportation and
Communications
,
. . Prepared in late-1982
Purpose of Position
To organize and conduct an effective safety program of
health monitoring and comprehensive safety training within an
assigned area of the Region. To~ensure all work is performed in
a safe manner and in compliance with applicable legislation and
ministry policy to prevent injuries to employees and damage to
ministry property.
Summary of Duties and Responsibilities
1. Under the general supervision of the Regional Staff Safety
Supervisor, plan and conducts a comprehensive Health & Safety
training program for District and.Regional staff located in the
assigned area by:
50% --
--
--
conducting, promoting and maintaining Health '& Safety
training programs in motor vehicles and industrial
accident prevention, industrial health, first aid, environ-
mental hazards, etc., for attendance by assigned ~staff.
preparing and giving lectures regarding the safe and efficient operation of motorized equipment ,(e.g., Defensive
Driving Course) miscellaneous equipment such as chain saws,
etc. and on work practices such as blasting, traffic
control,'etc. u
conducting courses and instructing District and occasional
Regional staff in first aid.
lY
obtaining educational material including audio-visual ._ - I presentations and other tralnlng aids for use In tne courses.
distributing training manuals to staff, recommending manual revisions as necessary to the Regional Staff Safety Super-
visor.
- 17 -
--
--
--
--
--
2.
keeping familiar with and instructing assigned staff as
to requirements and revisions to the Occupational Health
and Safety Act, Highway Traffic Act, Explosives Act and
other provincial and federal statutes related to accident
prevention.
Co-ordinating the Regional Safety Program within the
assigned area and the overall Ministry program under the
direction of the Regional Staff Safety Supervisor.
Promotes accident prevention and safety measures within
an assigned area of the Region personally by:
providing on-the-job training for District staff and
Regional staff located in the assigned area, and working
with Supervisors to ensure they are aware of their
responsibi1itie.s for the saf.ety of their employees.
maintaining records for courses so that refresher
courses can be conducted within pre-determined time
limits.
promoting accident prevention educational programs
initiated by Staff Safety Section through display of
posters, distribution of pamphlets, bulletins and other
related materials.
20% --
--
--
(
--
3.
5% ~--
i
motivating supervisors and employees to follow safe
working practices.
conducting' audiometric testing of all employees and
conducting back fitness tests of all assigned employees
and giving advice to seek medical assistance when necessary
and reporting findings to Head Office.
acting as,adviscr in all matters of safety to the Area
Joint Health and Safety Committee and District supervisory
staff and Regional supervisory staff located in the
assigned area.
maintaining liaison by meeting and reviewing specific
problems with the O.P.P. detachments, municipal police departments and other public and private organization
interested in accident prevention.
enforcing through supervisory staff applicable safety
regulations imposed by outside authorities and those of
the Ministry.
Investigates major accidents by:
providing advice and assistance to the District and Regional
staff located in the assiqned area in the investigation of all Ministry fatal accidents and other major mishaps in-
volving Ministry personnel and equioment.
- 16
--
--
--
4.
reviewing accidefit reports prepared by supervisors to
ensure that,corrective measures are taken to prevent
accidents.
maintaining a standard record system for all District
accidents and related material.
ensuring that supervisors take corrective action to
prevent recurrences.
reviewing resulting W.C.B. cases and visiting injured
employees to discuss and advise on their proper course
of action.
Inspects all assigned buildings, trailers, patrol offices,
other construction and maintenance operations and installations
within ass.igned area for potentially unsafe conditions involving
fire and first aid protection, machine guarding, electrical wiring,
tools and equipment, contamination from fumes, dust, paint, noise,
etc.
15% -- conducting sound level surveys in buildings, equipment
and the environment.
-- ensuring that fire protection equipment is suitable and
in good operating order, conducting yearly physical
inspections and auditing monthly visual inspections of all
fire extinguishers.
-- reporting to the Regional~Staff Safety Supervisor and
appropriate supervisors on completion of inspections with
recommendations as to how unsafe conditions can be elimi-
nated.
5. 5% Submits report,s as requested on accident experience and
the status of preventative measures in the assigned area ,to the Regional Staff Safety Supervisor: recommending any changes in legis-
lation or Ministry policy to the Regional Staff Safety Supervisor
deemed necessary to improve accident prevention methods.
6. Performs other related duties; .such as:
5% -- assisting Districts in conducting their Annual District
Roadeo competitions.
-_ attending coursesofinstruction to up-date knowledge on
preventative measures as assigned.
-- assisting the Regional Staff Safety Supervisor periodically.
Appendix 4
Position Specification for
Regional Safety Officer Queen's Park
Ministry of Government Services
Prepared in April 1978
Purpose of Position
To administer a regional program of safety inspection
and instruction for all MGS construction sites and provincially
owned or leased buildings. To assist Safety Supervisor in co-
ordination of Provincial Safety Programs.
Summary of Duties and Resoonsibilities
1. Administers the regional safety .inspection and instruction
programs covering fire, construction and any other areas which may
constitute a safety hazard by performing tasks such as: -
40% --
--
--
--
2.
assessing requirements, reviewing and assessing results
to facilitate program improvements;
conducting investigationsof all significant ~accidents;
developing regional safety instructional programs, including
the provision of job safety meetings, lectures, etc. and
devising appropriate lecture methods for the various
special regional courses including the determination of
educational literature and visual aids;
arranging and conducting meetings with officials of
municipalities and other government departments to co-
ordinate safety activitiesanddefine areas of responsi-
bility.
Inspects regional buildings and construction sites to
ensure conformity with safety requirements:
55% -- issuing comply orders to building superintendents, owners
of leased premises, M.G.S. supervisors and contractors'
representatives, directing the discontinuanceof safety
violations and arranging' for appropriate remedial measures
-- issuing stop work orders when necessary.
3. Performs other auxiliary duties such as:
5% -- preparing and submitting reports to supervisor: .
-- as assigned.
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While I concur in the final decision to deny the grievance and the general
grounds advanced for this decision, I wish to enter a partial dissent respecting
two parts of the award.
First, I do not accept the interpretation placed upon the term "specialized
work" at p.6 of the award. On the basis of the evidence advanced I see no reason
to accept the proposition that "specialization" entails a consideration of the
nu+er employed in a task or the geographical extent of the area in which the
service is offered. A lawyer, for example, performs specialized work and neither
the numbers pursuing this vocation nor the extent of their practice detracts from
the validity of what I would take to be a widely held view that this is a
specialized occupation. Furthermore, I am disturbed that the emphasis upon
"special training, requiring a significant period of time" is imprecisely worded
and is therefore susceptible to misinterpretation in. future grievances of a
similar character. what constitutes "special training", and what is a "significant"
training period? We did not hear evidence or argument On these points and under
the circumstances I do not feel that this Board is in a position to offer any
views on the subject.
Second, I would go beyond the conclusion advanced on p.8 that "it is
uimecessary for us to consider the relevance of the suggestion that Mr. Scott ~,
l&e S.I.0.3 to whom the grievor was compare27 is improperly classified". In
my view, the practice of discrediting class .comparisons by claiming that the
higher ranked employee is misclassified is too frequently advanced as an argument
in cases such as this. Given the Employer's acknowledged right to classify its
employees, it seems to me to be a most curious and completely unacceptable
argument to advance the claim that such comparisons are invalid on the basis of
.so-called past err& by the hnployer in this area.
Board Member
td
17/3/P3