HomeMy WebLinkAbout1988-0809.Baijnauth et al & Bloom et al.91-03-05 ONTA RIO EMPL 0 ¥~-$ DE LA COURONNE
CROWN EMPL 0 YEES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
?80 DUNDAS STRE~=T WEST, SUITE2100, TOI~ONTO, ONTARfQ MSG lZ$ T£LEPHONE/TEL£'PHONE: (47~) 326-~388
780, ~UE DUNOA~ OuEST, BUREAU 2?00, TORONTO (ONTARIO), MEG IZ8 'FAC$1MI£E/TEL~COPlE .- (4 ~61 32S- 1396
809/88, 8[0/88
IN THE MATTER OF AN ARBITRATION
Under
THE' CROWN EMPLOYEES COLLECTI~ BARGAINING ACT
Before
THE GRI~"~NCE SETTLE~NT BO~%RD
BETWEEN
OPSEU (Baijnauth et al/Bloom et al)
Grievor
- and ,-
The Crown in Right Of Ontario
(Ministry of Government Services)
Employer
BEFOR~ M. Watters Vice-Chairperson
I. Free.man Member
D. Walkinshaw Member
FOR THE H. Law
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FORT HE S. Patterson
REBPOND~NT Counsel
Legal Services Branch
Management Board of cabinet
HEARING November 24, 1992
By way of an Award dateO March 5,r 1991, this panel of the
Board ordered the Employer to properly classify Quantity
Surveyors and senior Quantity Surveyors working .in the Design
Services' Branch of %he M~n~stry of Government Services, Pursuant
to our Award, the Employer prepared a new class standard for the
Construction Cost Analyst series. The Union, in this proceeding,
asserted that this new standard does not reflect 'the findings
contained within out'earlier decision. We were asked to declare
that the standard does not adequately describe the nature of the
work performed by these employees. The new class standard is
attached hereto as Schedule
On page one (1) of the class standard, the work of the
Construction Cost Analyst 2 (C.C.A.2) is described as including
the largest and most complex projects. The Union submitted that
this language undervalues the grievors' duties. It proposed that
the class standard should indicate that the responsibilities of
the C.C.A.2 "generally" include such pro~ects. The Employer, in
response, argued that the new language is sufficient for purposes
of the class standards. The additional language suggested was
OescribeO as merely a "semantic proble~ at best." It was
asserted that the class standards, when read in their entirety,
adequately describe the w°rk performed by these g~evors.
The Board accepts the Employer's submission, We note, in
this regard, that the responsibilities of the C.C.A.2 are mode
1
fully described in the opening paragraph on page four (4) of the
class standards. The heading of 'Knowledge' and Skills' on page
five (5) also references "large and complex projects."' The Board
is satisfied that, in an overall sense, the complexity of the
grievors' work is captured by the new class standard when read in
its entirety.
Page two (2) of the class standard contains the following
description of the role of the Construction Cost Analyst 1
(C.C.A.1):
"As members of the design team, they engage in the
cost control process throughout the project design
phase ..........................................
.......... Incumbents are accountable for the accuracy
and quality of cost estimates for design projects."
The Union submitted that, instead, the language should state:
"As cost experts on the design team, they engage in cost
control throughout the project design phase ..........
............ Incumbents are accountable for providing
effective cost control on projects and economy of
design."
It was the position of the Union that the proposed class
standards do not sufficiently recognize the grievors as being the
"cost experts" on the design team. Additionally, we were urged
to conclude that their level of accountability exceeds that
outlined in the standards. In response, the Employer asserted
that the grievors' role as experts is expressly recognized in the
class standards. It was further submitted that their
accountability is adequately described by the current language.
2
Specific reference is made of the grievors' status as cost
experts in the sixth bullet point on page two (2) of the class
standards. Additionally, under the heading of 'Knowledge and
Skills' on page three (3), there is reference to their provision
of advice and consultation on cost and design economy..
Nevertheless, we think that insufficient emphasis is given in the
class standards to the grievors.' role as cost experts on the
design team. In our judgment, this could be corrected by
amending this part of the class standards to include a specific
reference to this role, as suggested by the Union. With respect
to the second objection, the Board concludes that a more accurate
description of the level of the 9rievors' accountability would be
achieved Dy adding the Union's proposed wordin9 to that advanced
by the Employer. The provision would then read:
Incumbehts are accountable for the accuracy.and
qualit~ of cost estimates for design projects and
for providing effective cost control on projects
and economy of design.
In our judgment, this language better reflects the nature of the
grievors' accountability, particularly as it relates to the cost
control process. We do not wish to suggest, however, that these
grievors are solely accountab]e for cost contro] and design
economy. Our ear]ier award recognizes that the design team is
also involved in this process. The Board there notes that the ,
Quantity Surveyors play "an integral, albe~t not exclusive role"
· in matters of cost control.
3
The first characteristic duty of the C.C.A.1 listed on page
two (2) of the class standards is described as follows:
"Analyzing written 'reports outlining proposed
building functions and accomodation requirements and
developing concept of probable building configuration,
design complexity, site servicing problems, work to
protect adjoining properties, etc., and preparing cost
estimates."
The Union proposed that this statement be replaced by the
follow~ng description:
"In the absence of so]id design data, they analyze
available written reports outlining proposed building
function and accomodation requirements; develop concept
of probable building design, such as building
configuration, design complexity, site servicing
problems, work to protect ad~oining properties, etc.,
project costs on the basis of the design; prepare
budget estimates."
It was submitted by the Union that the class standards do
not capture the extent of design knowledge which is integral to
the performance of the job. The Union's representative
emphasized that such knowledge is particularly important at the
commencement of a project given the lack of solid design data.
He suggested that the scarcer the data, the more the C.C.A.1 must
extrapolate ~ase~ on their knowledge of design..
The Employer acknowledged %hat the C.C.A.1 must have a
working knowledge of architectural.and engineering design
principles and techniques. Counsel noted that such knowledge is
expressly provided for under the heading of 'Knowledge and
Skills' on page three (3) of the class standards. He further ,
4
agreed that relatively little information is available in the
"early going of a project". Counsel suggested that this fact is
also contemplated by the class standards, as presently worded.
The Board has been persuaded that the knowledge required of
a C.C.A.1, specifically with respect to design, is adequately
captured by the class standards, We accept the Employer's
submission that it is expressly incorporated into the 'Knowledge
and Skills' portion of the standard. The first two (2) bullet
points on page two (2) of the class standards suggest that the
initial work on a project is performed in the absence of solid
data. After considering the point, we conclude that specific
mention should be made of that fact. The Board finds that
otherwise, the present language is consistent with the tenor of
our earlier award.
The third characteristic duty of the C.C,A.1 is described in
the class standards as: "Examining completed working drawings and
specifications,and preparing detailed pre-tender estimates." The
Union proposed that this language be' replaced by the following
sentence: "Examining completed working drawings and
specifications, determining fair market value of construction
projects by preparing detailed pre-tender estimates," It was the
position of the Union that the grievors, as part of their cost
control function, must ensure that the Ministry is obtainin9 fair
value for the monies expended. The Union representative asserted
5,
that the assessment of fair'marKet value is a critical component
of the grievors' respons'ibi]ity. In response, it was submitted
by the Employer that the addition of the proposed language is
unnecessary. Counsel appeared to agree that a pre-tender
estimate, based on working drawings and specifications, should
normally ref]ect fair market value. He argued, however, that Jt
would be inappropriate to ]nc]ude the proposed language in a
class standard. Rather, we were urged to conclude that it would
be more appropriate for inclusion in a. position specification.
The Board has not been convinced that.the additional
language should form part of the class standards. The subject of
fair market value was not addressed in any depth at the original
hearing. Further, it was not a crucial factor in our assessment
that the grievors were improDer]y classified under the former
standards. In the f~na] ana]ys4s, we find the language in the
new class standard, to be an adequate description of the task.
The fourth characteristic duty listed on page two (2)' of the
'class standards reads: "Analyzing variances between pre-tender
estimates and actual bids reCeived... The Union proposed that the
words "to determine the reasonableness of the Did" be added. Its
representative submitted that this would better describe the
nature of the task. Counsel for the Emp]°yer argued that the
proposed wording is unduly narrow and "potentially 3ust wrong."
He suggested that it ignores the invo]vement of the design team
in issues relating to cost.
After considering the submissions, the Board has not been
persuaded that the current language is materially deficient or
that a statement of purpose is necessary.
The sixth characteristic duty listed on page two (2). of the
class standards reads:
"Monitoring project design development, deciding on
potential for budget over-runs; and as cost experts,
recommending to the multi-disciplinary design team less
costly design a]ternatives (e.g. determining cost of
alternative building configurations, materials, systems
etc.); consulting with designers and professionals to
effectively complete their responsibilities."
The Union suggested that this language be amended to state:
"Monitoring project design development, deciding on
potential for budget overruns; providing more economic
design solutions to design team architects and
engineers (e.g .... ), and provides remedial cost
reduction strategies in order to keep the project
within the budget as initially estimated."
It was the position of the Union that the current language
does not adequately'depict the grievors' role within the design
team. The Union's representative submitted that they have
primary responsibility to generate, assess and provide the most
economic design solution. These efforts require that they deal
wit~ architects and engineers on the Oesign team. It was
submitted that the C.C.A.I's provide leadership on this issue
given their status as cost experts. In response, it was asserted
by the Employer that the present language fully captures the work
performed by these employees. Counsel stated that there is
little difference in substance between this language and that
proposed by the Union, He further suggested that the grievors'
recommendations are directed to the design team and not merely to
architects and engineers.
The Board concludes that the Employer's position is to be
preferred. We think that the current wording of the class
standards is a sufficient description of this aspect of the work
of the C.C.A.I's. We find that the phrase "designers and
professionals" adequately covers the nature of their contacts.
The seventh characteristic duty of the C.C,A.1 is described
in the first bullet point on page three (3) of the class
standards. It provides as follows: "Analyzing project costs by
building elements and systems to evaluate economy of design
sotutions.".The Union proposed that this language be amended to
read: "Analyzing project to evaluate design solutions in order to
ensure economy of design". It advanced the same supporting
arguments as made with respect to the sixth characteristic duty.
The Employer argued that this proposal was misleading as it
suggests final authority rests with the C.C.A.1 for ensuring
economy of design. Counsel submitted that it ignores the
involvement of the design team, the Project Coordinator and the
Project Manager in this process. He acknowledged, however, that
the 9rievors have an integral role to playlin this area.
8
The Board is not convinced that the present language
misinterprets or undervalues the grievors' role vis a vis design
economy. Our award expressly states that the grievors work
together with the design team to bring an excessively costly
venture back within budget. Ultimately, we have not been
persuaded that the Employer's ]anguage should be changed.
The 'Knowledge and Skil]s' requirements set out on page
three (3) of the class standards reads, in part-
"Work requires a thorough knowledge of and skill
in applying construction estimating techniques and
practices and providing advice and consultation on cost
and design economy."
The Union proposed the fo]lowing addition .to the class
standards:
"Incumbents must have successfully completed the
curriculum of the Canadian Institute of Quantity
Surveyors or an equivalent comDination of training and
exper'ience.
..... Work requires a thorough knowledge of and skill in
apptying construction estimating and cost control
techniques and practice8 ....
It was the position of the Union that the class standards
should indicate that the C,C,A.1 has successfully completed the
curriculum of the Canadian Institute of Quantity Surveyors or an
equivalent combination of training and experience,· Its
representative submitted that this level of knowledge is an
essential foundation for the performance of the job. We were
asked to find that failure to include this requirement in the
class standards would leave the grievors' wrongly classified as
9
their knowledge would remain undervalued. It was notea that the
specifications for the Quantity Surveyor and Senior Quantity
Surveyor positions-require "graduation from an accredited
institute of technology with major courses in quantity surveying
and construction estimating, preferably with membership in
Canadian Institute of Quantity Surveyors or an equivalent
combination of training and experience," The Board was provided
with the curriculum of the aforementioned Institute. We were
told that it takes four (4) to five (5) years of part-time study
to complete same. It was further submitted that the class
standards should specifically mention Knowledge and skill in cost
control techniques as this is one (1) of the core functions of
the job,
The Employer, in response, described this issue as one of
credentialism, It was submitted that it is government policy
that selection criteria should be "free of credentials except
where requireU by statute, regulations or where a credential is
the sole means of acquiring the skills, Knowledge and aDility
necessary for e~fective performance." Counsel argued gnat these
preconditions do oot exist in this case. He noted that even the
Union conceded that the knowledge and skills may be obtained
through equivalent training and experience. It was the position
of the Employer that, ultimately, the Union's proposal adds
nothing to the class standard.
10
The Board, after considering the conflicting submissions,
has not been persuaded that the class standards should refer
specifically to successful completion, of the curriculum in
question. We think that, subject to one (1) caveat, the
Employer's language adequately encompasses the knowledge and
skill required in the position. In our judgment, it would be
preferable to clearly indicate that the advice and consultation
is with respect to "cost control and design economy." This would
more aptly describe the type of knowledge and skill demanded of
the C.C.A.1.
The fifth characteristic responsibility of the C.C.A.2
listed on page four (4) of the class standards reads: "Liasing
with other disciplines and ministry officials to obtain costs for
items outside own area of responsibility, reviewing same against
historical records to ensure accuracy and completeness of project
estimates." The Union proposed that the words "other
disciplines" be replacee by a specific reference to "engineers
and architects".. It was the Employer's response that this
proposal would "overly narrow" the potential group of persons
being liased with. From its perspective, the words "other
disciplines" capture the broad field of individuals who are
consulted by the grievors.
The Board does not see a real need to add the language
advanced by the Union. We conclude that the Employer's wording
11
constitutes sufficient recognition that other professionals, such
~ ,. as engineers and architects, may be consulted and liased with by
the C.C.A.2's. "
The Construction Cost Analyst classifications have been
placed within the Technical Services Category. It was the
Union's position' that they should have been placed in the
Scientific and Professional Services Category. The award in
Carlson/Mayes, 596,601/90 (Kirkwood) was filed in support of the
argument that the Grievance Settlement Board can look to whether
a position has been placed in the correct category in deciding
whether a grievor is properly classified. Reference was made to
a 1989 job posting for a Senior Quantity'Surveyor. This EmploYer
stated therein that it required a"professional Surveyor/Estimator."
The Board was also prQvided with excerpts from the Ontario Manual
of Administration which describe the positions falling within
both the Technical Services Category and the Scientific And
Professional Services Category. It was asserted by %he Union
that the latter category provides the "best fit" for the
Construction Cost Analyst positions. We were urged to conclude,
in this regard, that the grievors are requireO to continually
exercise the professional discipline of cost control. Reference
was also made to a position specification, dated May, 1987, for
an Estimating Officer in the Ministry of Transportation And
Communications. The position was classified ~s Engineering
Services Officer 4 (Atypical) and was assigned to the Scientific
And Professional Services Category. It was further noted that the
12
supervisor of this position was assigned to the same category.
This Board was asked to follow this "practice".
In response, the Employer advised that the positions filled
by these grievors have historically been assigned to the
Technical Services Category. Counsel noted that the issue of
placement in this category was not raised at the first hearing.
He, therefore, submitted that the Union should be barred from
contesting the issue in this proceeding. He also filed a letter
dated August 15, 1991 in which the Union, in the context of
another dispute, suggested to the Director, Management Board of
Cabinet, that issues of category placement should be held in
abeyance pending the negotiation of an entirely new
classification system for the Ontario Public Service. It was the
Union's assertion in this correspondence that, "It makes no sense
to lift one job class out of an existing category and place in
another in the face of the projected overall review." Counsel
argued that, in view of that position, the Union should be
estopped from arguing the issue of category in this case.
Alternatively, it was submitted on behalf of the Employer
that the descriptions of the respective categories should be
flexibly construed. It was argued that the Technical Serv. ices
Category best captures the tasks performed by this group of
employees. Counsel asserted that their job does not require "the
exercise of a scientific or professional discipline normally
13
acquired through university graduation or professional
designation in which membership is controlled by recognized
associations or licensing bodies,..., "so as-to fall within the
scope of the Scientific And Professional Services Category.
Lastly, we were asked not to follow the example cited from the
MiniStry of Transportation and Communications. Counse) suggested
that such example might be nothing more than "a single, small
error" which should not be compounded.
The Board agrees that this issue was not raised during the
course of the earlier hearings which led ultimately to the
issuance of our award. We are inclined to agree with the
Employer that it should have been addressed therein.
Nevertheless, in an effort to expedite the final resolution of
these grievances, we are prepareU to speak to this aspect of the
dispute. The Board has not been persuaded that the doctrine of
estoppel is applicable here so as to preclude the Union from
advancing a claim of improper placement in the Technical Services
Category.-
The Board has reviewed the descriptions of the two (2)
categories of relevance tO this case. We have not been satisfied
that the grievors'.responsibi}ities in respect of cost control
bring them within the Scientific And Professional Services
Category. We agree with the Employer that the positions are not
caught by the preamble thereto. More specifically, we are unable
to find that the grievors exercise a scientific or professional
14
discipline normally acquired through university graduation Or
professional designation. Fumther, the Board concludes that the
various positions described in the Scientific And Professional
Services Category are unlike the technical positions which are
the subject of this case. In the final analysis, we are
satisfied that the best fit is the Technical Services Category.
That category includes positions where incumbents are engaged in
"the review and recommendation on types of construction,
materials, etc., add the preparation of estimates and
specifications for tendering purposes." We accept the suggestion
of the Employer that the review referred to therein could include
an economic review such as would occur in the cost control
process. We also think that the review and recommendations could
have a design element. In summary, the Board finds that the
above-language, while not totally descriptive of the grievors'
job, provides a substantially better fit than the language useO
to describe positions in the Scientific And Professional Services
Category. For these reasons, we have not been persuaded that
positions in the Construction Cost Analyst series more properly
fa]] within the aforementioned category. We note that the Union
representative state~ that he was not asking for a Berry type
order in respect of this aspect of the case. Lastly, the Board
is not convinced that there is sufficient evidence before us
relating to the practice in the Ministry of Transportation And
Communications to'justify the adjustment'sought. In any event,
we would be reluctant to follow, these precedents given our
15
reading of the language used to describe the two (2) categories
which are of relevance to this case.
The BoarO declares that,.suDject to the caveats referred to
in this Award, the new class standards capture the core
duties performed by'these grievors. Further,-we declare that the
level of knowledge and skill required is sufficiently described.
We trust that our findings will permit the parties to finally
resolve this long standing dispute.
Dated at Windsor, Ontario this gth day of February ,1993.
M.V. Watters, Vice Chairperson
D~ ~a[kin~haw, ~mber
16
CONSTRUCTION COST ANALYST
The Cons~c~on Cost,Analyst series covers those posi~ons whose primary responsibi~es incJude f~ciiitat~ng
the economic construction, renovation and maintenance of new or existing public buildings.
There are two levers w~in this series as follows:
CONSTRUCTION COST ANALYST 1
This is the ~lJ wo~ng level. Responsibili~es are of vadecl scope and moderate complexity and require
the application of considerable initiative and judgement,
CONSTRUCTION COST ANALYST 2
This is a senior working tevel. Responsibilitias include the largest and most complex projects.
Effective Date ;ssuecl Page
of
1 $
08o8 (08/89)
~CONSTRUCT[ON COST ANALYST 1
Posi~ons in this class prepare cost estimates for a variety of construdion projects at the preliminary planning
stage and for tender, including estimating quantities of labour, materials, equipment, overheads etc., developing
unit prices and developing projected cash-flow requirements, AS members of.the design team, they engage in
the cost control process throughout the project design phase. They are iavolved in projects such as new office
buildings, laboratory buildings, renovations to office buildings and and leasehold
garages,
improvements.
The prdiminary cost estimates serve as the basis for establishing project budgets for approvat a~d for
subsequent program and ministry financial planning. Incumbents are accountable for the accuracy aha clual~
of cost estimates for design projects.
Characteristic responsibilities may include the following:
· Analyzing written reports o~ining proposed building functions and accommodation requirements and
developing concept of probabte building configuration, des!gn complexity, site servicing problems, work
to protect adjoining properties, etc., and preparing cost estimates.
· Interpreting preiiminan/sketches and repo~, deciding on probable final construction details and
requirements and preparing detailed defini~ve cost estimates.
· Examining completed working drawings and specifications and preparing detailed pre-tender e~mates.
· Ahab/zing variances between pre-tender estimates and actual bids received.
· Developing project cash-flow projections by deciding on effect of factors such as project size, complexity,
location, sequence of construction operations, seasonal productivity etc,
· Mon~dng project design development, deriding on potential for budget over-runs; and as cost experts,
recommending tothe mul~-disdptinao, design team less costly design aJtemafives (e.g., determining cost
of alternative building configurations, materials, system? etc.); consulting with designers and
professionals to effectively complete their responsibilities.
Effective Oate '- t$$uect Pa~je
i of
(':.',', ':_.ASS
~erv,¢e
~"~0 rn .rn,~s~ ~c r, '~'
Onlar~o ,, ~
Catego~ I Groun
I"ECI~C&I. SB:MC~ i ~ DI:UFTING, DE$1GI; At~D
iSones
Class Code
, AnatyzJng project costs by buitding elements and systems to evaluate economy of design solu~ons.
· Performing analysis and checks on cia[ms for extras and dedu~ons from original contract Prices;
recommending a~on on the claims; generally the recommendation forms the basis for ~e negotiated
resolulion.
· Chec~ng estimates, prepared by consultants, identifying errors and omissions and resolving same with
appropriate pa~.
Knowledge and SkJlfs
Work requires a thorough knowledge of construction materials, quantity requirements, methods and building
systems and a working knowledge of architectural and engineering design pdndples and techniques. Ability to
understand and apply the content of design drawings and reports. Work requires a thorough knowledge of and
skill in app~ng constru~on estima~ng techniques and practices and providing advice and consultation on cost
and design economy. Good problem-solving, anaty'dcal, interpersonal and communications s~its.
'Effective Date Issuect Page
of
o8oe
CONSTRUCTION COST ANALYST 2
Posi~ons in this cass am responsible for the largest and most intricate projects. While they may perform all of
the d~es of level 1, they deal with added complexities arising from the types of projects assigned, such as
~fficult mnova~ons; e.g. historical buildings or large new construc~on projects with complications due to
complexity of design, overlapping of cost responsibitifies, lack of precedents.
Other characterisl~c responsibi~it/es may incJude the following:
· Estimating costs by ant~dp~ng nature, scope and quality of design from limited design informalion
available and by determining costs allowances for many variables and unforseen problems and design
developments.
· Preparing tender estimates from almost completed working drawings and developing cash-flows for
same.
· Developing mu~-year cash-flow projects.
· Utilizing life cycle costing methodologies to provide specialized insights into design economies.
· UaJsing wilh other disdplines and ministry officials to obtain costs for items outside own area of
responsibir~ty, reviewing same against historical records to ensure accuracy and completeness of project
e~mates.
· Recommending sol~o~s for contract.disputes.
· Provic~ng technical coordinal~on and guidance to level 1 cost analysts assigned to assist on very large
projects or working in an underfill capacity.
Effective Date Issue(3 Page
of
4 S
o8o8 (08~9)
(C;v:: CLASS STANDARDS
Service
Commission
Ontario "
-Category Group
~¢,AL SERV~I~ TS-02 D~ DESIGN AND
Knowledae and Skilfs -
In addition to the knowledge and skill required at level one, this work requires extensive knowledge of and skill
in applying constru~on e~ma~ng, techniques and prances in order to provide appropria/e advice and
consuP~alion to the design team and senior officials on large and complex projects. Good technical knowtedge
of architectural and engineering design. Thorough knowledge of life cycle costing and value management
methodo~. Good leadership, coordina~on, interpersonal and communication skills. Excetler~ analytical and
pmblem-soMng skills to deal with many variables and design developments.
Effective Date tssuecl Page
o808