HomeMy WebLinkAbout1990-2000.Jones, Halyk et al.94-02-24 ON'RIO EMPLOYES DE LA COURONNE
CR 0 WN EMP~ O YE~ DE L 'ON ~ ~O
GRIEVANCE CQMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 OUNOAS sTREET WEST, SuiTE 2100, TORONTC ONTAR~ MSG IZ8 TE~E~E/T~&EP~ONE: (416; 326-7388
180, RUE OUNDAS OUEST, BUREAU 2700, TORONTO (ONTARIO). M5G rza FACSIMI[~CO~ c [4 ~6] 326- ~396
2000/90, 200[/90, 2068/90, 2107/90, 2110/90, 2112/90,
2117/90, 2118/90, 2121/90, 2122/90, 2134/90, 2158/90, 2160/90,
2286/90, 2287/90, 232!/90, 2322/90, 2349/90, 2350/90, 2351/90,
~2357/90, 2363/90, 2372/90, 2399/90, 2460/90, 2506/90, 2507/90,
2508/90, 2531/90,' 2545/90, 2547/90, 2548/90, 2558/90, 2559/90,
2588/90, 2589/90, 2590/90, 2593/90, 2615/90, 2642/90, 266.5/90,
2680/90, 2704/90, 2705/90, 2772/90, 2775/90~ '2776/90, 2777/90,
2778/90, '2782/90, 2829/90, 2830/90, 2912/90, 2936/90, 2984/90,
2985/90, 2989/90, 2991/90~ 2992/90, 2999/90, 3049/90, 3060/90,
3061/90, 3074/90, 3087/90, 3088/90, 3098/90, 3138/90, 0031/91,
· 0059/91, 0777/91, 1098/91, 1236/91, 1674/91, 1686/91, 1804/91,
1849/91, 2719/91, 2932/9!, 0301/92
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIvE BAR~AININ~ ACT
· Before
OPSEU (Jones/Halyk et al)
Grievor
- and -
., The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE A. Barrett 'vice-chairperson
I. Thomson Member
M. O'Toole Member
FOR THE T. Hadwen
GRIEVOR Counsel -'
Cavalluzzo, Hayes & Shilton
Barristers & Solibitors
FOR THE A. Rae
EMPLOYER Counsel'
Filion, Wakely & Thorup
Barristers & Solicitors
HEARIN~ September 22, 23, 24, 1992
November 26, 1992
FebrUary 10, 12, 17, 18; 1993
DECISION
This is a classification grievance of some 50 biologists
throughout the Province who are classified in the Scientific and
Professional Services category as Biologists 2b. A list of the
grievors covered by this decision is attached as Schedule "A". 'On
consent, we heard evidence from two representative grievors and
their evidence will apply to all. Mr. Jones is the District
Biologist in the Sault Ste. Marie District, which forms part of the
Northeastern Region. Mr. Halyk is the District Fisheries Biologist
in the Cambridge District, part of the Central Region. Although
there are significant similarities in the work of each grievor,
differences arise by reason of geography: Mr. Halyk works in a
populous, highly developed district, and Mr. Jones works in a
bigger, less populous and less commercially developed district. Mr.
Jones is responsible for both fish and wildlife management, whereas
Mr. Halyk specializes in fisheries management. The class standard
for Biologist 2b is set out below:
CATEGORY: Scientific and Professional Services
GROUP: SP-10B Resources Planning & Management
SERIES: Biologist
CLASS CODE: 14024
CLASS STANDARD:
BIOLOGIST 2b
This class covers complex professional biological work
performed under administrative direction and reviewed only on
the basis of results produced and objectives achieved.
Incumbents at this level assume, full responsibility for
a total biological programme of fisheries and/or wildlife
management area and/or other biological programme of equal
comple.xity. They prepare and/or revise the complete long-range
management plans, establish their own internal priorities and
ensure the~orderly execution of such programmes.
They may also be required to . supervise junior
professional staff.
SKILLS AND KNOWLEDGE: .
Ability to analyse, and identify biological problems and
recommend management procedures to solve them; ability to
prepare and develop long-range management plans; ability to
develop and organize a defined biological management
programme; ability to deal effectively with officials of other
agencies and~ industry on biological matters; ability to
initiate projects .and write technical reports.; ability to
train and supervise junior biologists and other technical
staff.
January 1, 1971"
The standard has not'been revised since 1971, and the grievors
say that between 1971 and the Fall of 1990, when these grievances
were filed, the job has changed dramatically such that they now
have significant 'additional duties not contemplated when the
standard was written, which means there is a substantial variation
between the standard and the actual duties of their current job.
These biologists seek a Berry order'requiring the Ministry.to-find'
or create a new classification for them.
It is conceded that' these grievors do the~ type of 'work
outlined in. the class standard, but the addition.of new duties and
new methods has changed the job completely since 1971. The first
significant change is that .there has been much greater public
involvement in environmental issues, particularly over the last
3
decade. In the old days plans and policies were simply explained
to the public after they had been created. Now the public demands,
and is in fact encouraged, to provide input at every stage of the
planning process. Interest groups, 6onservation authorities,
volunteers a~d municipalities are all now involved in the planning
process.
In the early 1980's, the Ministry'introduced an integrated
approach to conservation, so that fish and wildlife biologists now
work closely and in cooperation with foresters, engineers, lands
people and conservation officers. This integrated approach includes
long-range planning and field enforcement. Now'each discipline has
to be aware of, and protect the interests of the others.
Most significantly, environmental protection laws have been
expanded and significant new enforcement tools are available to the
biologists to protect fish and wildlife' habitats. Now, through a
system of approvals, anyone wishing to develop or alter land or
watercourses must satisfy strict requirements that there be no net
loss in fishing habitat as a result of the changed use. Anyone
requesting approval for a plan of subdivision, a zoning bylaw
change or a severance must submit plans, in advance for review by
land use planners, engineers and biologists. The biologists, among
others, also have input now into official plans and amendments to
official plans under the Plannina Act. They can withhold approval
of plans or place conditions upon approval. In the old days the
biologists would not see a plan until~ it had already obtained
several approvals from other environmental professionals. Now, with
the integrated approach, all professionals are invOlVed with input
and review at the very .earliest' stages. At the time of his
grievance, Mr. Halyk was spending as .much as 80% of his time
reviewing development plans for .compliance with the Federal
-Fisheries Act, the Lakes and Rivers Improvement Act and the Public
Lands Act. The biologists do not have as much time now to do deer
and fish surveys, fish stocking and supervising the'mOose hunt,
which used to be a large part. of the job.
Public sPeaking.and public education were always part of the
job, but soliciting public input through open houses, and the
preparation and use of questionnaires.is a newer development....
Province-wide government initiatives .in the early 1980's included
long-term integrated resource planning far into the future. As Mr.
Jones put it: "Our focus changed from gatherers of information to.
strategic planning for the future." The grievors say they are now
required to have cross-disciplinary knowledge in areas Such-as
engineering, hydrology, forestry and land use planning because of
the integrated planning and review process now in place.
There was a revised position specification drawn up for Mr.
Jones' position in i988, and Mr.-Jones concedes that' it accurately
sets out his duties, and the skills and knowledge required'to
perform them. His position description is attached as Schedule
to this decision. Attached as Schedule "C" is Mr. Halyk's 1987
position specification which he says is substantially accurate,
5
except that he spends more time on plan input and review than is
set out in his position specification,· and he also does a small
amount of fish stocking which is not mentioned.
The jurisprudence of this Board relating to class standards
and the appropriateness of Berry orders where there have been
changes over time in job duties is lengthy but consistent. Aird,
GSB #1349/87 (Slone), is often cited with approval for the
proposition that "the addition of new duties may take a job out of
its original classification, but only where those duties are of
such a kind or occur in such a degree as to amount to a different
job altogether .... the propriety of a classification is a factual
issue to be decided on the merits of each case."
"It is recognized that classification standards, by their very
nature, must be drafted in general terms and are intended to
describe only the essence of the work to be performed. They cannot
be expected to detail every specific task which may be involved"
(Brown, GSB 41806/87 et al (Ratushny)).
"Moreover, it must be recognized that the nature of a job and
the manner in which it is performed may evolve with time: ...nor
are class standards intended to designate tools or methods by which
employees are to fulfil their duties". (Alexander, GSB %803/88
(Verity)).
Furthermore, percentages of time spent on duties not included
'in the class standard are not necessarily~helpful to reflect the
responsibility, complexity or the degree 'o'f skill or training
required to perform the d~ties. ~"There is no reason, in our view,
to interfere-with the longstanding jurisprudence of this Board that
a substantial difference between the job being performed and the
job described in the Class Standard is a pre-requisite to a Berry
Order~ Whether or not there is a 'substantial difference' and what
constitutes a "substantial difference' will be'a matter for the
BOard to ~determine on the facts of each case" (Dumond, GSB ~1822/90
(Kaplan)).
In McIntyre, GSB #1280/86 (Fraser), it was found that
computerisation had changed the job to the· extent that the class
standard was insufficient in failing to refer at least in a general
way to this added, complex responsibility. There it was noted, at
page 12: "It is Clear from this and other evidence'we have reviewed
respecting this program that from one perspective, therov~rall job
of d~tail design in this area may be said to be simplified to the
extent that manual calculations and consequent revisions are done
automatically by the computer. However, it is also clear that
operating the program, particularly in view of its 'bug' ridden
design, is a significant and reasonably complex new skill, whic~
does not ease the life of the technician, and~which is difficult
to the extent that suck operation is generally limited to those
technicians at the working level who can learn to work around the
bugs."
7 ~
Even if a person performs most, if not all, of the core duties
of the class standard, he or she could still be said to be
improperly classified if the grievor "has acquired a degree of
expertise through ~ualitative changes in his job" (Fenske, GSB
#494/85 (Verity)).
"An evolution in a job is not sufficient to warrant a
reclassification. The task of the Board is to look at the Class
Standards applied to the grievors and see if they still capture the
essence or the nature of the job" (Bell, GSB #2199/91 (Knopf). In
that case, landscape workers were required by their class standard
only to have a Grade 8 education and no specific certifications.
On the other hand, the job specification demanded certificates
which carried with them a minimum of Grade 10 education and some
extensive training. There the Board took note of a requirement in
the position specification that incumbents have a working knowledge
of job-related safety requirements as specified by the Occupational
Health and Safety Act, Pesticides Act, Environmental Protection
Act, Transportation of Dangerous Goods Act and WHMIS. The Board
found, at pages 10 and 12: "At the most,, these involve one day in-
service training and/or the use of manuals available to the
grievors in the office. In fairness, it is our conclusion that this
is contemplated by the Class Standard requirement of 'working
knowledge of the Department's horticultural methods and practices,
and the.tools and equipment used'. It is further contemplated by
the phrase 'they are required to observe Certain safety precautions
in climbing, and felling trees, running equipment and using
horticultural 'chemicals'. The standard itself thus contemplates
safety requirements which are now articulated and set out in the
Acts'listed in the Job Specification and thus fall Within the Class.
Standard. ..-..The .more heightened 'qualifications. demanded of
incumbents reflect society's current concerns and 'sophisticated
knowledge.of the. use of hazardous chemicals and equipment~ But,
thi~ is not reflective of a change in the.nature~of the job so as~
to take it outside of. the general ~ature of the Class Standards.
Class Standards are, bydefinition, general in nature and allow for
the type of flexibility necessary to cover a variety of duties and
tasks in a large-Ministry. They are not expected to be detailed or ·
so specific that they cannot adapt to difference in the delivery
of services that is inevitable over time."
Even where employees classified under the same' class standard
have jobs that are substantially dissimilar in their distinctive
and essential elements,' they can still comfortably fit within the
same class standard "so long as they satisfy the~broad criteria set
forth therein and do ~not differ from each other in a leVel of
initiative, responsibility, skill and ability required to Perform
the work". (Kernick, GSB #509/89 (Roberts),~ at page 5).
In this case, the union argues that the class standard
requiring the incumbent to "assume full responsibility for a total.
biological programme of fisheries and/or wildlife management area"
is geared to the programmes that were in existence in 1971, that
is; monitoring, surveying, limited enforcement duties and fish
stocking. Now, in 1990, they have three~ new categories of duties.
They manage public input into district planning; they manage some
of the work of outside parties such as volunteers and conservation
authorities; and they have input and control over the plans of
outside developers. The union says these duties were not
contemplated when the class standard was drafted, because they were
not performed at that time, and they require more complex skills.
Union counsel also says there is no mention in the standard
of handling and managing public input, nor of the public relations
duties involved in attending public meetings to explain the work
of the Ministry. In this regard, we note that the class standards
for Biologist 1 and Biologist 2a require them to: "Attend local
sportsmen's associations and other functions to explain wildlife
conservation or public health practices; generally acquaint the
public with ministry policy pertaining to fish and game management
or pollution control...". "...ability to work with technicians.and
members of the public in an advisory capacity...". We also note
that the Biologist 2b must have the ability "to train and supervise
junior biologists and other technical staff". We assume that the
ability to train and supervise people performing those duties must
subsume the ability to do them oneself.i As well, public speaking
and public education have always been ~part of the job of these
biologists and would appear to be encompassed in their
responsibility to "assume full responsibility for a total
biological programme". With respect t° the difference between
giving information to the public and receiving it, we are unable
to conclude that the. latter~ .requires greater skills than the
former.
The real issue here is whether or not the changes
manner in which these biologists manage the fish and wildlife
resources in their districts are Gualitative changes requiring
complex new skills.
The employer acknowledges the changes in biologists' duties
that have. evolved over time but says the .duti%s are no more
complex, nor are-the skills required to perform them, than those'
of a professional biologist responsible for "a total biological
programme". Peripheral knowledge of other disciplines does not'turn
a person into an expert in that discipline. They are not taking the
place of those experts or doing their work for them. The ability
to participate with other professionals does not require.a.separate
skill other than the "ability to analyse problems" set out in the
class standard. With respect to the broadened legislation and much
stronger enforcement tools, employer counsel suggests that the job
is easier now than it used to be. Whereas before the biologists had
to use coercion 'and persuasion to conserve habitats, now with
"teeth.' in the en£orceme~t tools, it is easier to manage the
resources..The requirement in the class standard to "organize and
initiate projects" covers a wide yariety of'duties performed in a
wide variety of ways. Employer counsel urges us t° read the class
standard holistically to find that these biologists are responsible
for "complex professional biologica! work...to assume full
responsibility for a total biological programme...to prepare and/or
revise the complete long-range management plans...have the ability
to deal effectively with officials of other agencies and industry
on biological matters...ability to initiate projects and write
technical reports...ability to analyse and identify biological
problems and recommend management procedures to solve them."
Counsel argues that all of this planning, analyzing and problem-
solving referred to in the standard covers all of the duties
performed by these biologists.
Given the very high requirements of the Biologist 2b class
standard for independence, initiative and professionalism, we
cannot find that there has been such a qualitative change in their
job duties over the last 20 years that they now require more
complex skills to perform those duties~. Professionals, by their
very nature, are required to keep abreast of and adapt to change
in their field. Integration with other disciplines is expected of
professionals ~who work in an inter-disciplinary mitieu.-A lawyer,
for instance, may have to learn a lot about particular aspects of
plumbing in order to effectively represent a plumber alleged to
have performed incompetent work, but that does not make the lawyer
an expert in plumbing, nor even competent to change a washer on a
tap.
We cannot find on the evidence that the grievors no longer fit
within their class standard, nor that their duties now involve any
more than responsible, complex biological work, Therefore these
grievances must.be dismissed.
Dated at Toronto this 3.0th day of,AptlY+ 1993,
A. Barrett, Vice-Chairperson
"I Dissent" (dissent attached)
I. Thomson, Member
M. O Toole,. Member
Dissent
RE: 2000/90 etc. OPSEU (Rietveld et al) and the Crown in Right
of Ontario (Ministry of Natural Resources)
I have read the reasons for the majority and I must
regretfully dissent.
We are all aware of the concerns of the parties over the
damage we have done and are still doing to the environment. As a
result our concerned governments have become, more aware of our
problems. The job of the Biologistslhave become more important.
From a situation where they could only try and minimize damage
after the damage was done they are now. able to prevent any possible
damage before it takes place. Because of this new focus their job
has become more of an "office" job than a "field" job.
The Class Standard was written in 1971 and has not been
changed since. It is so broadly worded it is tempting to say that
it could last forever. However the emphasis on different issues
has changed so much there is very little similarity between the job
today and that of 1971. The drafters!of this class standard could
in no way have contemplated the jobs now being done by such persons
as Larry Halyk and Scott James.
It is too bad that some recognition of the changes would not
be acknowledged by the Ministry and the dedication, hard'work and
increased knowledge of the grievors be given proper recognition.
.I'. Thomson, Member
April 28, 1993
Evan Wellington Armstrong
Lesley E. Barnes
David A. Bell
Karen Bellamy
Ron Black
Barry Corbett
Dianne M. Corbett
Daryl P. Coulson
Robin E. Craig
Peter Davis
Nell Dawson
John Dobeli
Vincent Ewing
David Ferguson
Mark Ferguson
Rick Gollat
· Larry Halyk
Donald Hector
B~ce Hood
Glen L. Hooper
Edward Iwachewski
Scott L. Jones
Robert W. 'Lewies
Scott Lockhart
DaveMaraldo
Michael Malhiot
2
Steve McGovern
David A. McLeish
Harry A. McLeod
Linda Melnyk-Ferg~son
Ed Paleczny
Alex Palilionis
R. Dean Phoenix
Daniel Puddister
Peter R. Purych
Norman Quinn
Charles Timothy Rance
David J. Reid
David M. Reid
John Seyler
Barry Snider
Robert Swainson
Lloyd Thurston
Merilyn Twiss
Mike Vukelich
Peter Weilandt
Randy Wepruck
Dennis Wilson
~..,. , , -~ %,. ..
· . Instructions for completing form C$C-b..J
Claaelf]~ Full and Pa.-time ~litlonl: F~ =o'~ ~piet~ in Itl enlire~ e~ceffi [Or Ihs Fu~ne ~ ~x in ~t~n 1.
lion rsl~naJe ~ $~ O.
1 .
UnctaMifl~ P~ ~M. Feb. ~y ~. · N~,
G~p 3 '
_
~her Cron ?
Instm~iona for ~[ng ~. Hm. Wo~ 1. In~mte ~,
3. Duties and related tasks ...
3) Supervises subordinate sa&so,al s:af[
- assigning work and evaluating performance,
5% scheduling work, autho~iaing overtime if necessa£y, .
-.providing advice/guidance and training as necessary.
4) Performs other related duties such
5% - assisting Conservation Officers as r~aulted, -'' F'
-'as assigned, --' ,
3. ikiJIs end Knowtedge
An a.arsness ot fisheries related commercial and recreational pursuits.
^ valid NTC d~ive~s ~icence.
~o~king k~o~]e~ge of the 0ccup~[lonal
~egula~tons made unde~ ~he act that apply ~o the work supervised o~ controlled.
Duties and ~e]ated ~asks (continued} :
, Ensure that ~o~ke~s take p~ecautfons to p~otect ~he health and safety of'
themselves and others by complying wfth such acts, codes, policies, p~ocedu~es
or accepted p~ac~fces as may be' appropriate. Ensure [~at ~ocker$ a~e advfied
of known hazards and the ~equt~ed Precautions.
'~n & Class Aliocatlon.C$C
\.. -. (Reler to b~.~ ,. form ~or completion inslrucitons
t Otstrict Fisherien 81ol~ls~ / 09-7200-1~
of the Cambridge D~s~rLc~ Fisher,es Hanage~nt program (,~rt and bait-fish). Plans,
public re[a[tonl
[) P~ans, revises and p~epare~ ~he flahe~ea program ~or the D~striCt by~ ·
- or,seizing and budgeting ~o: f~shertes projects vt[htn the framework of the
Ftsher~el.~naqemen~ Plan, the DistriCt ~nd Use Gui~de[ine.a, Reg~ona~ and Provincial
- pre.ring de,ailed: docv=entatton on all ~i'sheries ~nage~n~ projects undertaken,
6Or. design/hq and tmplemem~tn~ a fisheries &eaeaa~ pzo~z&~ ~hioh studies fish co~un/ty
preparing re~=tl of a high professional standard,
· u~ve[ f~sherte8 ~nagemen~ Ln~ereat; coordinates ~o/nt coope=a~ve projects,
- providing professional ex~t~ile to technical ita~ as re.ired to imple~en[
goals and obJeFctve8, budget ltmttattons,~ HtnL~try ~ltcy and procedures and pro~essiona[
2) Performs public relations duties
- di~cusmin~ fish~ries issues with interest ~oupe, public ~o explain aim,and objectives
30t the p~oqram and to receive feedback. "
- aaSia~in~ wi[h and participating in educational workshops ps,raining to fisheries. '
Continued ...
An hono~=~ ~egzoO f~om a ~n~verl~ty of reco~zo~ l~and~ng ~n ~shez~a8 b~o~o~ or re~&ted
discipline, De.narrated Rerfor~nce~ as a profems~0nal biologist, nervily obtatfled throuqh
~eld existence in the application of standard inventory and ~nagement techniques, Ab$ILCy
~o co~=ntca[e ~ vi=bally and tn v=t~tnq, using go~. ludga~n[ and [ac~ .... /eve=
C. ~elby , ~ H, R. Cattofl, otmtrLct Kaflager
6io~ogisf ~ 14024 SP-106 01 I 04 ~ 87
A. Position lflvolvel professional biological ~ock perfor~d under administrative
where work Is reviewed fo~ ~esults produced and objectives ac~ieve~,
i. Position .assumes full ce'$~oasIbitity for designing and ]mpl. e~ntlng a fls~erfes assessment
program.
C. Position Is required to supervise seesonei staff.
/
for completing forest C$C.~150
~e8~c~ ~~enC ~=og~ c~n~ pea~ pe=
~iSt~g in ~ain~g o~ st~t/g=~te b~l~is~ ~ t~hnici~ wi~out fiel~
e~rLe~;
c~esen~tive. ..
pcoj~.
~ ~c~ is :evi~ ~ly ~ ~e ~a~s of ~ea~ pr~uc~ '~ ~J~tivea achieve,
~o~e~i~al biol~iat. ~tlt~y to o~g~ize a~ ~cy ~t 6t~ic~t projec~ ~
p=~ures, k~l~e of ~e ~ ~ Fish ~t, ~=io Fishery ~ula~i~s, e~
~ k~l~e o~ fLs~riea a~ wi~/~e ~~n~, e~r~ in uae of wi~life
ADDENDUM
This decision was originally issued in April, 1993, under the
name Rietveld et al. The decision concerned the classification
grievances of a large number of Biologist 2b's throughout the
Province. A large number of classification grievances of Biologist
3's had been consolidated with the BiolOgist 2b grievances, and we
were seized of jurisdiction with respect to those grievances. Due
to the operation of the social contract legislation and the
agreements negotiated between OPSEU andManagement Board of Cabinet
pursuant to that legislation, the Biologist 3 grievances will not
be proceeded with.
Mr. Rietveld is a Biologist 3 and now objects to his name
being used as the identifier of a decision that relates only to
Biologist 2b's. He asserts that the fact that his name is
associated with the decision has led many of his Biologist 3
colleagues to conclude that the Biologist 3 grievances were also
adjudicated, which they were not. He has asked that we change the
identifier of this decision to the names of the representative
grievors who testified, Mr. Jones and Mr. Halyk.
The union and Messrs. Jones and Halyk support this name
change, but employer counsel resists on the basis that a name
change would result in great inconvenience both to the Ministry's
computer filing system and the filing system of the Grievance
Settlement Board.
We have decided to re-name the decision to accommodate Mr.
Rietveld's concerns because we are unable to imagine that modern-
day computer systems cannot cope easily with such a change
Dated at Toronto this 24th day of February,1994,
A. Barrett, Vice-Chairperson
I .~T~om~on, Member
M. O'Toole, Member