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HomeMy WebLinkAbout1988-0039.Interest.90-01-15AND: T/0039/88 IN TEE RATTER OF THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT, R.S.O. 1980, c. 180 AND IN THE MATTER OF AN INTEREST ARBITRATION BETWBEN: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") THE CROWN IN RIGHT OF ONTARIO (the q'Employer'l) AND IN TRE RATTER OF THE GENERAL OPERATIONAL SERVICES CATEGORY BOARD OF ARBITRATION: D. Fraser Chairperson Janet Solberg Union Nominee Jacqueline Campbell Employer Nominee APPEARANCES FOR THE UNION: Frances Lankin Negotiator Joyce Hansen Researcher APPEARANCES FOR THE EMPLOYER: Eileen Hipfner Staff Relations Officer Human Resources Secretariat BEARING IN THIS MATTER WAS HELD AT TORONTO ON AUGUST 24, 1989 This matter involves the determination of wage rates and other matters for approximately 3,300 employees in the General Operational services category of the Government of ontarlo. That Category is one of eight occupational categories which bargain separately for wages. It includes employees in four major service areas: personal service; cleaning, caretaking and security; supply; and agricultural support. The two largest service areas are personal service, and cleaning, caretaking and security, which together account for approximately 78% of the category. The parties agree that the collective agreement containing the increases to be awarded herein shall be effective from January lst, 1989, to December 31st, 1989. They have further agreed that increases shall be retroactive to January lst, 1989, shall be payable on a full or pro-rata basis to all employees who are or were in the category and shall apply to all paid hours including overtime worked. The matters in dispute involve salaries, pension rate increase protection, implementation, interest on retroactivity payments, and retroactivity payment by separate cheque. We will consider these matters in turn. The union has proposed an increase of $1.75 per hour across the board for all rates in all classifications in the Category. The Employer has costed that proposal together with a pension request as constituting an increase of approximately 15.3%. In support of Its proposal, the Union relies on a number of factors including a special case argument for the entire Category, the situation of females in the Category and its relationship to a low-wage ghetto and the poverty line, growth in the Ontario economy, wage rates and settlements in the public and prlvate sectors In Ontario and elsewhere, growth in productivity, changes in the Consumer Price Index, and other matters. However, the union’s principle case rests on the submission that 70% of the Category, or 97% of the category when historical relationships are heeded, comprises a special case when compared to similar occupations outside the public service. That submission 1s founded on a factor to be taken into account by this board, found in the Crown Employees Collective Bargaining Act. Section 12(2)(b) of that Act provides that a relevant factor for consideration is: “the condition of employment in similar occupations outside the public service, including such geographic, industrial or other variations as the board may consider relevant”. The union has proposed that in view of the reach of the special case throughout the Category, and in view of wage rates in similar occupations outside the public sector, an increase of $1.75 across the board for the Category is appropr late. The Employer has proposed that the wage increase be within the range of settlements in 1989 for four other wage categories in the Ontario public service. Absent ad%stinent for special cases, those increases average out to 5.89% for Administrative Services, 5.916% for Scientific and Professional Services, 5.94% for Technical Services, and 6.022% for Office Administration. In support, the employer relies on a number of factors, including the economic climate as reflected by settlements In the private sector, internal relationships, recruitment and retention, and other matters. Wlth respect to the union’s submission respecting a special case for the Category for catch-up, -i- 4 the employer has relied on settlement levels in the private sector and elsewhere, rather than the comparable wage rates provided by the union. We have reviewed all of these factors in detail. submissions in respect of many of them have been analysed in depth in previous interest awards. We do not propose to repeat or add to those lengthy considerations In detall, but will indicate some of the major elements that led to our result. The special case approach has been used by the parties for some tlme, and we accept it as an appropriate process provided, of course, that the case is proven. Furthermore, the evidence generally supports the union position that it is appropriate to view the entire Category as a special case, given the reach of the individual special cases which we have referred to above. These are not the difficult considerations in this case, which is whether the data prove that catch-up is merited, in the light of other factors we have considered. The special case is based on a comparison of seven benchmark classifications within the General Operational Category, which the union submits “are most representative of the category and which have easily ldentlfiable outside comparisonP. They are (a) Cleaner l-3; (b) Buildings Caretaker 1, 2, 6; (c) Cook l-3; (d) Laboratory Attendant 1, 2; (e) Security Officer l-3; (f) Clerk, Supply 1-7; and (g) Aqrlcultural Worker l-4. The data indicate that these benchunrks include 758 of the population of the Category, which is in excess of the 70% submitted at the outset. The inclusion of historically-related classifications, such as Cleaner, Office Buildings, Hospital Housekeeper 1 and 2, and Laundry Worker 1-5 in the Cleaner l-3 benchmark classification, results in benchmark and historically-related 5 classifications totalling 99.2% of the Category. The inclusion of some of those historically-related classifications may be an arguable matter, but we conclude overall that the benchmarks are well-representative of the entire Category. Benchmark (a) cleaner 1-3 vas compared in respect of vage rates with C.U.P.E. and S.E.I.U. hospital rates in Ontario, with municipal rates in Ontario, with Ontario and Toronto Hydro rates, and with rates at General Motors In Oshava. Contracts in effect at various times in 1988 and 1989 were examined for that purpose, and the resulting wage differentials range from 9.5% to 45.18 in excess of rates in the Category. There were substantial submissions and other material in support of these comparisons, which we shall not replicate here. We would note, however, in evaluating the material here, as also below for the rem&ring six benchmarks, that wages in Toronto, and wages paid by municipalities and Hydra must be viewed with caution, as the data indicate that they reflect to some extent the higher end of the scale. Benchmark (b) Buildings Caretaker 1, 2, 6 was compared wlth wage rates for boards of education and municipalities in Ontario, and Toronto Hydra. Again, as In all cases of cornparables for all benchmarks, contracts in effect at various times In 1988 and 1989 were examined for that purpose. The resulting wage differentials range from 9.9% to 56.3%. Benchmark (c) cook 1-3 was compared in respect of wage rates In the Federal government and Ontario Hydra, with differentials ranging from 14.4% to 39.8%. Penchmark (d) Laboratory Attendant 1, 2 was first analysed In terms of a proposed historical relationship with Medical Laboratory Technologist In the Ontario public service. That latter classification Is the one with which the Laboratory Attendant works most closely, and from which the Laboratory Attendant frequently receives instruction. A comparison of 1984 to 1988 years shows a comparative historical wage relationship Increase of 8.4% for the Medical Laboratory Technologist. A comparison of the Pen&mark was also made with Hospital Technicians In O.P.S.E.U. hospitals In Ontario, showing wage differentials of 19.9% to 31.6% In favour of the latter group. Benchmark (e) Security Officers l-3 was compared with counterparts In the federal House of Commons, Ontario Hydro, and the Liquor Control Board of Ontario, with wage differentials ranging from 8% to 54.2%. Benchmark (f) Supply Clerk l-7 was compared with wage rates of counterparts in Ontario municipalities and boards of education, Ontario and Toronto Hydra, the Liquor Control Board of Ontario, General Motors of Oshawa, Continental Car, Stelco and Into. The resulting differentials ranged from 10.5% to 55.1%. Benchmarked Agricultural Worker l-4 was reviewed by taking the Agricultural Worker I level, as it is the working level; and comparing it with the QKden.2 vorking level In Ontario municipalities, a limited number of Ontario hospitals, boards of education, and universities (three In each case), and General Motors of Oshawa. The resulting differentials ranged from 7.7% to 34.6%. 7 To support the comparisons to the various Benchmarks, the union described sImIlarItIes between Category classifications and the outside comparables. working level In one job function was compared to a similar working level In another job function, principal tasks were compared, or other primary slmIlarItIes were described. Neither the data on differentials, nor the comparison of job functions were seriousiy challenged by the employer, which rested Its case largely on current settlement levels, rather than wage disparities (as we have noted earlier). What weight should this extensive data be given? There Is no doubt of its relevance as a factor, as we noted in our earlier reference to C.E.C.B.A. Comparable data from both Inside and outside the Ontario public service has had a mixed reception. In an interest award for the General Operational Services Category dated 16th September 1980, Chairman Brandt found such data from a Civil Service commission Survey in 1978 to be unreliable because It was out of date and not a “precise instrument for matching jobs In the public sector against other jobs” (pp 16-17). In an Interest award for the same Category dated 11th December 1980, Chair Betcherman suggested that special case adjustments based on tnterMl equities, require job evaluations to be done first (at p. 6).: In~an interest award made the next year for the same Category (dated 10th Cctober 19851, Chairman Kennedy commented on external comparisons of wage rates provided by the union. In so doing, he said (at p.6) that: “On the evidence and arguments made to us, we would find that there Is one significant additional factor that was not present In the Administrative Services case, and that relates to the external comparisons of wage rates provided by the union. whlle~ those comparisons are In no sense precise, they are In our view sufficient to give a general Indication that the wages In this category are J 8 falling behind the wages paid to comparable employees elsewhere.” In the present case, the benchmarks are well-chosen and representative and the cornparables represent similar working levels of jobs in their essence and are taken from a comparatively wide background of employees outside the public service. Neither the comparable jobs nor the wage differentials they produce have been seriously challenged by the employer, and It is our view that they represent an appropriate exercise vhlch gives a reliable general indication that wages In this category are significantly below wages paid In comparable jobs elsevhere. The comparison Is, however, Imprecise In some respects and not completely reliable, although it would be difficult to see how the union could do a significantly better job within the context of the constraints of an interest arbitration. In some cases, the evidence of job similarity is not wholly satisfactory, nor are the outside employers chosen In every case, the most appropriate ones. However, these and other concerns all combine to require that the final results be viewed with some caution, In terms of the total reach of the disparities. They do not affect the reliability of our general conclusion, which Is that the Category is significantly behind when compared to the Vondltlons of employment In similar occupations outside the public service”. The case has been made, and we give it substantial weight as a factor. There are other factors which need to be brought in. We also give substantial weight to settlements In the four other wage categories in the Ontario Public Sector, as they have been freely negotiated, as they represent a collective bargaining response to many factors which are also before us, and as 9 they are close to home. Settlements In other sectors have been reviewed and provide general guidelines for us, but they are not quite as determinative as the factors reviewed above. Growth In productivity Is also a factor, as Is change in the C.P.I., but those are subsumed In some degree in the settlements we have reviewed. Of the further factors we have considered, we would comment In some detail about recruitment and retention. They are not simple factors to deal with. There Is some evidence from the employer that there Is no particular difficulty In recruiting and retaining employees in the Category, but the submIssIons on this are a relatively new matter, and the data must be regarded with care. In particular, we would note that there are problems with retention data. For example, exit surveys (to find reasons for leaving) are an Important element of any submission on the validity of retention data, but, as the union has pointed out, reasons given for leaving will very often be masked for unspoken reasons, such as a desire not to “burn one’s bridges”. We can, however, conclude that recruitment and retention Is not a significant problem in the Category, as it has, perhaps, been In other categories (such as those including Registered Nurses). I The effect of such a conclusion Is limited. Where recruitment or retention Is a problem, the response Is reasonably straight-forward. Benefits are Increased until a satisfactory recruitment or retention percentage is achieved, or other changes are made involving such things as better job advertising, recruitment bonuses, or enhanced working conditions. But where recruitment or retention Is not a problem, the opposite response, In some form or other, may not be appropriate for a category in the 10 Ontario Public Service. The factors provided in cXSA, section 12(2), Illustrate why. Section 12(2)(a) refers to the need for qualified employees. However, the folloving subsections refer to such matters as conditions of employment In similar occupations, malntalnlng appropriate relationships between classifications, and fair and reasonable terms and conditions relative to such things as qualifications, work performed, responsibility assumed, and so on. Those latter factors are almost all comparative factors, In one sense or another, making comparisons with other occupations or classifications, or comparing terms and conditions with such things as work performed or responsibility assumed. So there is a large, inter-related web of factors used to suggest an appropriate wage level which have little or nothing to do with recruitment OK retention on their face. It would be an unusual and unbalanced result, if the results of all such mandated comparisons were then down-graded, or reduced in effect, because, as found in section 12(2)(a), “the needs of the Crown and Its agencies for qualified employees” was being easily met. Such certainly could be done, but the circumstances would have to be quite unusual for the other “comparable” factors, In effect to be given less weight. We think that In view of the size and diversity of the occupations In the Ontario Public Service, that a factor of recruitment and retention would be most significant when it also enters the web through the “comparable” route. In other vords, If there Is a downturn in the economy reflected, for example, In conditions of employment outside the public service, or In other classifications, It may be that ease of recruitment and retention changes the comparable conditions of employment to the extent that those changes In turn are seen as affecting conditions of employment in the category in question. We would conclude for these reasons that ease of recruitment and retention 1s certainly a factor to consider as we have here, but its weight depends in large ,i, 3 , 11 part whether it has affected the large list of other comparable factors in the legislation. Evidence of that will be found directly in such things as comparable wage and settlement data. Thus, in conclusion, difficulties in recruitment and retention may produce a direct increase in benefits and working conditions. In a process of wage determination weighed heavlly to comparables, B of recruitment and retention must be viewed in light of the comparables, and it will have most effect when it is reflected by them. Of all the matters considered, both conditions of employment in similar occupations outside the public service, and settlements in the four other wage categories have been given substantial weight. The economic climate and other settlements have been given weight, and a number of other factors have been reviewed, including recruitment and retention. We conclude that a special case that a catch-up increase for the entire Category has been made which should be above the average range of settlements in the Ontario Public Service, but the case should be modified in view of certain of Its characteristics which we have noted, in view of the range of settlements within and without the public service, and the other factors referred to. For these reasons, we award an increase of $1.30 across the board in the Category-for all classifications and rates effective January lst, 1989, for all paid hours including overtime worked for all employees in the General Operational Services Category in 1989. The union has requested a 1% increase in wages to protect such wages from any increase in the employee’s contribution to the pension fund. In view of 12 the fact that this issue has been raised in all the wage categories negotlated to date, but forms no part of any of the four negotiated settlements, we decline to make an award on this matter. The union has requested that we order this award to be implemented within thirty days of its date. The employer has responded by noting dlfflculties in the implementation of an arbitration award, and proposed that the board order that the employer endeavour to implement the board’s award within fifty days of receipt, but in any event no later than sixty days of receipt of the award, and that the order be made a term of the agreement. We adopt the reasoning of prior boards on this matter, artd order that the employer endeavour to implement this award within fifty days of receipt, but in any event no later than sixty days of its receipt, and we further order that this requirement be made a term of the agreement. vltv PW The union.has requested that the board order interest to be paid on the wage retroactivity to January lst, 1989, and it has submitted a statistical summary prepared by the Ontario Ministry of Labour respecting delay caused by compulsory arbitration. In view of the special circumstances and nature of this case, we decline to make an award on this matter. :. 13 The union has asked that we require retroactivity to be paid on a separate cheque, as the majority of employees prefer this method. The employer has responded that such payments are separated out In any event in the information on the cheque stubs in which they are included, and that good reason has not been given for the requirement of separate cheques. We are of the vie*$ that this matter has not been thoroughly enough explored at this tlme, and decline to make such an award. Dated at Ottawa this 15bh day of , A.D. t’=?qO D. Fraser, Chairpersbn. c "I dissent" (Dissent attached) Jacqueline Campbell, Employer Nominee DISSENT I strongly disagree with the majority decision of this Board. While the award makes reference to careful consideration of all the legislated criteria, in my opinion, undue weight has been given to the external comparable wage data. The recruitment and retention information provided by the Employer, as well as the pattern of settlements, both within and outside the Ontario Public Service, should be given equal consideration in determining the appropriate level of increase -- even more so given the nature of the comparable data provided by the Union, which to quote the award, "must be viewed with caution as the data indicate that they reflect to some extent the higher end of the scale". This award provides for an increase which is approximately 50% above the going level of settlements in the OPS and substantially higher than those achieved in other public sector and private sector jurisdictions. It is beyond the. realm of if 'ied. reasonabIeness.even if some form of catch-up can be just Jac&linebG. Campbe Employer Nominee