HomeMy WebLinkAbout1985-0261.Beerthuizen et al.86-10-30IN THE MATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
$ THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Beerthuizen et al)
- And -
The Crown in Right of Ontario
(Ministry of Revenue)
Before: G. Brent Vice-Chairman
M. Perrin Membe’r
I. J. Cowan Member
For the Grievor J. Miko
Classification - Grievance Officer
Ontario Public Servicq Employees Union
For the Employer D. Kirk
Labour Relations Advisor
Personnel Services
Ministry of Revenue
Grievor
Employer
Dare of Hearing:
.J,““,Q’ 17. 1936
January 10, 1986
Junr 9, 1986
2
The grievers are all grieving that they are improperly classified
as Clerk 3 General. The grievandes are dated July 27, 1984 and the
original request was for reclassification to Clerk 5 General. By
agreement of the parties the renedy'sought was amended to
reclassification toClerk General, sublecttothe submissions to be
made regarding the appropriate retroactivity of the remedy should the
grievance succeed.
The position which all of the grievers hold is known as Private
sales Control Clerk. They arepartof the Retail Sales Tax Branch of
the ,Ministry and are located at the!Ministry's office in Oshawa. In
general terms, the work of the grievers can be described as concerning
the enforcement of the Retail Sales Tax Act insofar as private sales of
motor vehicles are concerned.
The unit where the grievers work was established in 1982 when the
district office functions ~nthis connection were centralized and the
position of Private Sales Control Clerk was established. It would
aoaear from the evidence that at c:he time of centralizatlon tsere xere __
no guidelines established specifically for the clerks in the unit. It
would also appear that the work which they did was not exactly identical
to that which was done by the clerks in the district offices.
In the course of the hearing a considerable amount of evidence was
tendered by both larties regaraing the duties and responsibllitias of
i
grievers, there are certain general background matters which we should
set out. The qrievors work in a unit which has a Group Leader whd is
also a bargaining unit member. There was considerable difference in the
evidence concerning the function of the Group Leader in relation to the
qrievors. It is likely that the Group Leader position was established,
among other reasons, to perform spot checks of the qrievors' work. On
the evidence nefore us it is difficult to determine the exfent to which
the qrievors were allowed to perform their work sublect only to the
approval and checks done by their direct supervisor, the SuperVlsOr
a CentralisedPrograms; however, it would appearthatthe grievers had
very little interaction with theGroup Leader in the course of their
work.
It is clear from the evidence before us, though, that the qrievors
composed and signed form letters used in the routine correspondence
connected with their Jobs. It,is also clear that one of the grievers
conpiled a manual of collection procedures (Ex. 4), which was then used
by the qrievors 1i-1 the course of their work. The manual qachered
material from various sources. The qrievors' supervisor was aware of
this work, directed one of the grievers to do it, and approved it after
it was compiled. The supervisor testified that he viewed it as a
tralninq exercise; however, there is no douot..that the manual was seen
by him, and that he vas ailare of its use by the qrievors in the
performance of :heir collection duties.
4
;naterial'suomitredcY those issuers; check It for accuracy; check the
commission calculations, etc.; and communicate with the issuers on
various matters including answering their questions. The grievers were
also requiredtoinvestiqatethe transfer documents submitted by the
issuers to ensure that all possible cases of tax avoidance were caught.
This work required the qrievors to contact potential taxpayers by letter
or telephone and make inquiries regarding the nature of the transaction
to ensure that the proper sales tax was paid. This work aL%! uwolved
the qeneratlngoftax assessments,penalties, andrecordkeepinq. The
qrievors were also required to deal with inquiries from the public and 1
motor vehicle licence issuers and to provide interpretations of
legislation to thei.
The above contains a very abbreviated account of the grievers'
primary dutiespriorto January, 1983. In January,.1983 the unit was
also assigned the duty of collecting tax owing on the deluquent files
of the private.transactions with which they were concerned. This duty
was performed by the Yrivdte Sales Control Clerks or. a rxa:lny beisis.
In additiontothe collection duties, the clerk assigned to that work
also had to perform her usual duties in relationtothe motor vehicle
xsuers on a reducedbasls. By the Employer's own evidence (2% 51 the
collection function comprised 20% of the lob.
The collec:ion function requred the clerk to make coniact iir~h zne
defauicing taxj+yer, to try to enter into an agreement iiith the taxgayer
reyardixj the payment of outstanding tax, to deternune and recommend Lha
appropriate legal actlon to be taken to collec: the tax, :o moni:ar :!I&
~~ro~r~ss of cnllec:lon activity, anti to Irt=r:n~z~ and Lc-i2~...-l.< -5 ~2s r3j_.- -,a.. ,$
su;>rr~~ilsor ~dne;hr: f;?e oe*t , inou1.ci be ~X~~Ltren Off. T.irj -or:< Ir;:,.oi-;e2
:nr -jrLe"ori contacrlny tne :axp.yer, 13CJl shrr~~r~s, etc. i: .'eil'.ll.Ce,Z
them to exercise Judgment concerning the method of collecting the debt
and the circumstances under which the debt should be abandoned. lrior
to the compilation of the collection procedure manual (EX. 4) by one of
the grievers, there was no single consolidated source of informatron and
guidance concerning the collection procedures.
The Class Definitions for the positions of Clerk 3 General and
Clerk 4 General were filed with the ward es Exhibits 7 and 8
respectively. They are reproduced below:
CLERK 3, GENERAL
CLASS DEFINITION:
Employees in positions allocated to this class
as ']ourneyman clerks*,perform routine clerical
work of some complexityaccordingto established
procedures requiring a background knowledge of
specific regulations, statutes or local practices.
Decision-making involves some Judgment in the
selection of alternatives within a comprehensive
framework of guidelines. Initiative is in the forsl
of following up errors or omissions and in making
corrections as necessary. Doubtful matters not
coveredby precedentarereferredto supervisors.
Xuch of the work is reviewed only periodically,
principally for adherence to policy and procedures.,
Typical tasks at this level include the
preparation of factual reports, statements or
memoranda requiring some Judgment in the selection
and presentation of data; assessment of the
accuracy. of statements or elisibllity of
applicants, investigatiny discrepancies and
securing further proof or documentation as
necessary; overseeing, as a Group Leader, the vork
of a small subordinate staff by explaining
procedures, assigning and checking work.
This is a terninal class for many positions
lnvolviny the competent performance of routine
clerical work common to the office concerned.
#ALIFICATIONS:
C
d
2. About three years satisfactory. clerical
experience.
3. ADility to understand and explain clerical
procedures and requirements; ability to
organize and com$ete work assignments within
prescribedtimelimits; ability to maintain
good working relationships with other
employees and the public served.
CLERK 4, GENERAL
CLASS DEFINITION:
employees in positions allocated to this class
perform a~variety of responsible clerical tasks
requiring a good background knowledge of specific
regulations, statutes or local practices.
~? Decision-making involves Judgment in dealing with
variations from established guidelines or
standards. Normally, employees receive specific
instructions only on unusual or special problems as
the work is performed under conditions that permit
little opportunity for direct supervision by
others. natters involving decisions that depart
radically from established practices ar,e referred
to supervisors.
Ta.sks typical of this level include the
evaluation or a**e**OI*nt Of a variety of
statements, applications, records or similar
mater.ial to check for conformity vi:h specific
regulations, statutes oL ad:ainis;rative orders,
resolving points not clearly covered by these
instructions, usually by authorizing adlustments or
recommznding payment or acceptance; superns~ng a
sauli group of "]ourneyman clerks" or a larger
group of clerical assistants by explaining
procedures, assigniny and checking work and
wintaaning discipline.
It is the basic submission of the Union that reference to the above
class standards shows that in view of the work of the position at all
relevant times the grievers are improperly classified as clerks 3
Generaland that they should be classified as Clerks 4 General. The
Employer asserts that the position in question is ;?roperly classified as
Clerk 3 General when reference is had to the class standards. Both
parties also mde ;ubnissions concerning t:he ?rooer approach to t&e to
retroactivity of remedy in view of the amendment of the remedy sought in
the yrievances.
In the course of their submissions on the primary question of
classification both counsel made extensive reference to the evidence of
the witnesses and the twenty-seven exhibits filed. They also referred
us to Goobies& (Gsa Tile 240/Ba) and stocks & Hendrix (GSB Files
1320/84 (r 1325/b4) on the question of the proper classification. N2
have considered the evidence, the submissions of the parties, and the
authorities citedto us, and will limit our decision to those matters
which we consider to oe persuasive. arfore doing so, nowever, we xoulc
like to make a few comments on the two cases cited above.
i;oobie et al isupral was cited to us in part for the evidence --
presented to the Board as expert evidence. That evidence was given by a
professor of Socloloyy from Vanier College 1n.Nontrea.1, and that sane1
of the 3oard naa dn opportunity to hear the opinion evidence of the
expert regarding the skills required by the incumoents in the particuiar
job tne c?asslfrcation of which was in issue. The ]oo in the Goobie ~
case is not the Job in ~Lhr case oafore US. The .op?-nion s‘Jl2ance Of tne
expert presentsa oy fn.2 ilnion deal: x:rn her spiz~~3n sf :x2 3
2042lLVll9lC~t1** SklllS Of Z.282 job 1.3 LjS;* I.7 :::I? GSODl? i-S*?, 3::s 3i32
gave opinon eviaence of a general nature regarding "Invisible skillS"
which she considered to be undervaluedin "female-dominated clerical
occupations".
This panel cannot accept or re3ect evidence which was not tendered
before it. In evaluating the evidence before us we cannot apply the
opinion evidence of experts called in connection with another matter.
The Goobie case did set out some general principles whrch have
arisen frown the XaA"s ]urisprudence (see aages 28 ff.). we ayree ;iit!l
the general proposition which has been set out in previous cases Defore
this Board that in viewing the Clerk 3 Genergl and Clerk 4 General 100s
what is significant is the degree of "responsibility, complexity,
knowledge, authority, ]udgment, autonomy and discretion" (Goobie at
p. 29) which is required to be exercised by the person performing the
lob.
asserts, the Job in question meets the Clerk 4, General class stanaard
.a* se: out in EX.-.l31~ 3. in co!134rl.,g tne e'*o ss2naar;s ;i 323 32 sz2?8
that the ClerX 3 General is required to aerfsrm "rou?ine clerical ,work
af some complexity according to es-ablished procedures requiring a
oackground knoxledge of specific regulations, statutes . .." while the
Clerk 4 General's work is described as "Variety of responsible clerical
tasks requiring a good neckground kno;rledqe of speslflc regnlatlons,
st3tutes . ..I'. There arz aspects of ihe ]ob before us which clearly
fall into the uroutlne" category. In particular, most of the xork .d-r.;ch
?
good background knowledge of specific regulations, statutes . ..'I. In
addition to their "routine" duties the grievers are called upon to make
determinations concerning exemptions from t&xation in areas' where the
legislative intent may not be clearly defined and where there are no
established procedures, such as the cases of settler's effects, for
example. They are also-requiredto attempt to collect taxes owing by
entering InLo agreements iiith individual t%u?ayers, to Investigate the
various avenues of collecting the dent, and to make recommendations to
tie supervisor regarding the method of collection. This requires them
to be aware of matters which are not r'elated to retail sales tax but
which are related to methods of collection, agencies used in collection,
etc. We consider that the ability to deal 'with taxpayers directly and
to enter into negotiationsand agreements with those taxpayers regarding
the payment of taxes owing is ,t responsiole tax. we alsO c3nsi~~er t.hat
the ability to remmrnend -tie paper nethog sf sollection or the :rrice
]udyment required of a Clerk 4 General is greater thaa :hat re;uired of
a Clerk 3 General. In reviewing the degree of ]udyfnent re.;ilired in
decision making requiredof the grievers in doing their Job, 'we would
have ta agree that for the mostpart they are dealing with situations
xhere they are requred to select Ero!n alternatives w:zhin TA&lines.
The exception to this is again in the area of collections, xhere they
are required to exercise mdependent Judgment III deterxxn;ng XQW beat :S
collect aeuts from tamavers .who are In defsult, and ;f2re ::>e:i d:3 wt _ -
ai>paar tO b2 ,3i’Jerl any llr2Ct ;Uid2Ll>rS resjdLZ;linj t.?? ndC’AT+ Sf C’?.?
d j r 2 e A2 n c ‘4 n 1 :: : I t 2 e >, can -’ r, c 5 r i.TLJ riltn i3.<?3y2T* far z>?J;,‘=e:i;. 3 0
supervrsory ai)2rovai appears to nave 5een necessary of any agreements
which the clerks made ,with taxpayers regarding the payment of taxes
It would appear from the evidence that the grievers performed their
work by and large in a situation where there was little direct
supervision.
In viewing the typical tasks set out in the class definitions, it
can be seen that the lob does rnvolve the sort of preparation of
reports, etc. and the other tasks contemplated in the Clerk 3 Generai .
description. It can also be seen that the ]ob requires a review of
exemptions claimed to determine if they conform with the statute and
regulations. In the course of this they may have to resolve questions
regarding settler's effects claims, for example, which are not clearly
determined by legislation or regulation, and recommend a course of
a.zsisn ~~SS'J on iheir o.*tdrnrnation. "hey 3153 are r*;"ired :., ae=L
with debt collec:ion, enter into aqreenents with taxpayers, d n -i
rezo.xineni a cw~rse sf a..;tion to 02 cs-;.en ;:I r*iari.or, 2,3 ;~*.:-=ic-lir
debts.
In summary, it can be seen t:hat in this case, as in ai:;lsst every
other classification case which coines before thi1s aoard, the class
definitions are not "watertight conpartments". The lob must be assessed
in order to determine in .x.hich classification it Troperly oelsngs. Tile
deyrea of overiap always makes for a difficult aetereUnation. in this
CaS2,
'were ;t not for tne collection responsibilities and t?.e amount of
responsibillfy ana ]udg!nent xiich tne grievers are requirsd ta exer=~se
rn connection with colle~r~ons, t .'I 2 n '3 n 5 ..< a ?I L -' n a" e t3 a ;ree .;,>a: :T.z
,73 is grsoaoiy inore ~ro~eri:, 313:.3,1 I.2 tne c1er:r 3 ;s2.2ri;
c?asslElcatlon, e.ve.-: rnouyh r.berr aa:, 3e j*:!i2 ;tjUZ-‘fj 3f t12 j,j~ '~:~;C,~
7) ?$.
11
could be cnaracterized as being an overlap into the Clerk 4 General.
However, when the ]ob is looked at as a whole, including the collections
responsibility, then the deyree of )udgme&, responsibility and decision
making required of the grievers on the whole appears to be beyond that
required of a Clerk 3 General as set out in the class definition.
Accordingly, we must agree with the grievors that at the time of the
grl*Vanca cilelr ,130 xas n3C properly ciassified a.5 ClerX 3 Gener.51. :i e
consider that the appropriate classification must therefore be Clerk 4
General.
In the course of the hearing we happened to learnthatthe lob no
Longer reqilires the clerks to perform the collection function. That
information, quite properly, was not pert of the case or the ,submissions
of the parties since it is irrelevant to the issue before us, which
deals rrth t.le ]ob du‘ci?s as of the date of the grievance. since the
inforsation did slip out, though, k'e sirn2ly m:* ~c and un&eriine cn2.t
‘?: ‘. 45
12
(G;Sd File 23/dl) and Iyyers et al (GSB Flies lti7/84, 188/?4, ld$/84,
190/84 and 220/84). The Union referred us to the decision of the
Divisional Court in Ontario Public Service Union and Carol Serrv 2t al
v, The Crown in Right of Ontario (Minrstry of Connunitv and Social
Services) (unreported Iudgment released March 73, lY861, and argued that
the Board's remedial powers are not limited when the grievers have been
improperly classified, end also argued that the employer was not
prejudiced by the change in rem$dy requested.
In a grievance where it is alleged that a 3oD has beeniolproperly
classif+d, the essence of the complaint, as in our vie,x the Court
emphasized iwthe Berry case (supra), is the alleged imp:oper
classification. In that case the Board determined that the grievor*
were improperly classified but that they did not merit the
classification set *ut as the remedy sought 12 ihe grievance. The
Jivisronal C3vrt sai:z, et ?ar* 13, "if tile So3rd con,Zl'dtiPd CLlsC til?
clas*iEication was wrong, its :nanda:e was t3 effect a Iroser
~:13sslflcatlon. Its Jurisdiction is unros:riztrA its nanda:? 29
remedial." In so deciding, the Court considered the ?uriidic:ion of
this Board as compared to that of a board of arbitration under a
collective agreement governed by the Labour Relations Act and concluded -
that this Board had a statutory obligation to decide the matter of an
. .
alleged improper classification and grant a re.aedy 1f it coul. oe skioji~
thaf there was ari improper classification.
AS we read this decision, it is Probably not necessary for someone
alleging an improper classification to allsge 32ytr?xlg nor? tnar. char.
i f tne yr12vancr 5ilcceec.3, tnrn tno:e 13 .?a r>slL;;ls;sn r.2 ZL35SIT... Eke
*grl?"or iorrk?ct1,. If Lnat 1s the 3;s:~ of r:le II:;, <*es iz x12.2 se352
co prejudice a ,r;e-ior ,iio s?ec~fies ,:3 rr-ned:, L.? :.-,e jl-;?'~a?.ce ad t;?e:.
informs the Employer that it is no longer seekinq'the specific remedy
stated? Clearly, given tbe m decision, the grievers need not have
amended the remedy which they sought, and were entitled to Succeed so
long as they could show that they were improperly classified. AS a
consequence, even though there is authority which predates the
Divisional Court's decision in the ferry case, we believe that such
authority is no longer persuasive in view of the aerry decision.
we find, therefore, that the grievers' Job was improperly
classified as of the date of the grievance and that as of that it should
have been classified as Clerk 4 General based cn the duties which were
required as of the date of the grievance. We therefore order the lob to
be reclassifiedas a Clerk 4, General effective Ju.ly 1, 19d4 and order
that the grievers be cornsensated at the appropriate level as of July 1,
19d4. We will leave it to the parties t? ceternine the ar?oilnt Of
compensation to be pa-d to the qrievors and willrenain seizedof cha
matter in the Iwent that they cannot agree.
DATED AT LONDON, ONTARIO THIS 30th DAY OF Cctober , 1’3%.
- CT. arent, Vice-Chairman