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HomeMy WebLinkAbout1991-1283.Bors et al.92-03-26? ' ONTARIO EMPL 0 YES DE LA COuRONNE · f'~ CROWN EMPL 0 YEES DE L 'ON TARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS iBO DUNDAS. STREET WEST, $O]TE ZIO0, TORONTO, ONTARIO· MS0 7Z8 TELERHoI~.'E ?E~.E.~O~E 180, RUE DUNDAS OUEST, rtUREAU 2100, TORONTO (ONTARiO). MSG IZ8 ~AC.$1!.4~LE F_L~COp: 1283/91, 1397/91 IN THE MATTER OF ~%N ~EBITRATION Under TH~ CRONN EMPLOY~B~ COLL~TZF~ B~INING ~CT Before OPSEU.(Bors et al) · The Cro~'in'R~ght of Ontario. (Minist~,of Gover~ent SedUces) BEFOg= A. Barrett .. -Vice-Chai~erson H..Lyons Me. er D. clark ~ [ Me.er FOR THR ~ C. DasSios. -- GRI~OR Counsel - Gowling, Strathy & Henderson Barristers & Solicitors FOR THE B. Humphrey.: EMPLOYER Counsel Stringer, Brisbin & Humphrey Barristers & Solicitors HEARING December 6, 1991 - i - Luz Fresneua,Duar:a btndo, Rngela' Rtzzo, Hatia Vasi[opoulos, Elizabeth Bo:s, Maria Kou:elis, ~enny. Mala~ski, Sally ~asterna~, Ch:is:ina ~olakow and Giuseppina Vaval~. ~he case proceeded on an agreed statement of facts as follows: "The parties hereto agree to the following set of facts in respect of the grievances of those persons classified as Cleaner 1 in respect of this case; such facts being accepted as correct as at the dates of the grievances herein: 1. The Grievors classified as Cleaner i ("the Grievors") are employed by the Ministry of Government Services and work 40 hours per week. They work eight hour shifts five days a week. Some work the night-shift,.but most work only during the day. 2. There are persons classified as Cleaner Office Building ("COB") in the employ of the Ministry who work 27.5 hours per week. They work only on the night-shift. 3. The duties of those persons classified as COB and those persons classified as Cleaner 1 are identical, except for the differences in work week and shifts set out above. Both groups are paid a shift premium under the collective agreement when they work during the night-shift. 4. The parties agree that the position specification an~ class allocation forms of the positions classified as COB and Cleaner 1 are generally accurate. 5. The partie~ agree ~hat there has been no change to the duties of those persons classified as Cleaner 1 or COB. The individuals under each classification continue to perform the same duties that they have performed for years". Thus, we have two groups of'employees performing essentially the same work, operating under different class standards, both of which accurately reflect their duties. But the COB group earns 74 cents per hour more than the Cleaner 1 group. The Cleaner 1 employees wish to fit themselves within the COB classification in order to get the higher pay. There has always, been a differential in pay between the two groups, but until February, 1990 it was reversed: the Cleaner l's earned 16 cents per hour morq than the COB's. That state of affairs was neve~ chall'enged. ~Between July, 1988 and February, 1990, the Parties negotiated a Pay Equity Plan for bargaining unit emplO~es"in which, for some unknown reason, the two Groups of cleaners were compared With different male .job classes and as a result the 74'cent differential arose and was agreed to by the parties. The union argues, that the grievors can fit themselves into the COB classification based on:the "usage" argument: that. is, 'they are performing-the same-~work as others in a high_er....~ classification'>and therefore deserve to be classified in the preferred claS~ification,'' The union says'it is irrelevant that each grOup 'fits neatly within its own class standard, rely%ng upon Beals and~Cain (GSB 30/79)i The union argues that it is an abuse of the classification system and unfair to employees where the'Posit~ions of ~mp'loYees who are performing substantially similar work are placed in-different classifications. In that case a panel' of this Board, chaired by Mr. Draper, found that the Positions Classified bas Driver 1 and'Motor Vehicle Operator were essentially the same jobs. At page 13 of the decision the Board Said: "In our view the grievor's position is improperly classified if it is not placed in the highest classification in the system hierarchy to which his work, measured against the work of employees whose positions are in related classifications, entitles him". Also, at page 12, the Board said: "It is well established that in position classification cases, the Board must direct its inquiry to the questions, first, whether or not the work actually performed by the employee is that set out in an appropriate class standard and, second, whether or not he is performing work substantially similar to that being performed by an employee whose position has been placed in another classification. In the first instance the employee's work is measured against clas~ standards and in the second it is measured against that of an employee in a position that has been differently classified. The purpose is to establish either that the employer is conforming to its classification standards or that the employer haS, in effect, modified those standards". The employer urges us to decline jurisdiction to interfere in this situation. P~rsuant to section 18(1) of the Crown Employees Collective Bargaining Act it is the exclusive function of the employer to determine classification of positions. In this unusual case the employer has created two "Darallel" classification systems, but it is entitled to do so without interference by this Board. Rates of pay are proper subjects of collective bargaining and that is where the anomalous pay differential in this case should be negotiated. It is not the ProPer subject matter of a grievance before this Board. The employer says this case is really about rates of pay and not about classification at all. The employer cites RQundin~ (GSB 18/75) as authority for the limitation of our jurisdiction in classification grievances. At page 3 of that award the Board said: - 4 - "In .reaching this latter conclusion however, it is important for this Board to set out precisely what'it conceives to he the scope of its jurisdiction in assessing the merits of a claim that an employee has been improperly classified. In the first place it is readll~ aPparent that the methods and principles by which positions are to be classified is, as a result of the most recent set of amendments to The Crown Employees Collective Bar~ainin~ Act, a bargainable issue between the various employee representatives and the employer. However, by virtue of s.17(1) (a).[now s.18(1)(a)] of that same Act, it is manifest that~having settled on a particular classification and job evaluation system, the actual classification of positions is within the exclusive prerogative of th~employer. In the result and for purposes of entertaining grievances under s.17(2)(a) [now s.18(2)(a)] of the Act, in which an employee · alleges that he or she has been improperly classified, it necessarily folloWs-that this Board must take as a.given and can not interfere either With.the classific~ti°n system agreed to and adopted by the parties or the application of that system to the various positions within the public service. Rather. this Board's sole function in the resolution of grievances alleging an improper classification, is to determine whether the employer is conforming to the'classification system as it has b~en 'established and/or agreed to. That. is and more particularly, when faced with a claim that 'a position is improperly classified, and assuming those classifications conform to the qeneral law of this jurisdiction, this Board is limited by the express provisions of legislation to determine whether or not on the system employed and the' classifications struck, the employee in question is actually performing the duties assigned to that position or even assuming that to be the~ case, whether that employee, is nevertheless be%Dg required to perform virtually the identical duties which, the class standard notwithstanding, are being performed by employees whose position has been 'included in some other more senior classification. In short, it w~uld, under the present statutory ~scheme,'~only be in those or analagous instances that an employee's grievance under.s.17(2)(a) would be entitled to succeed. In the result it is simply of no relevance to a determination that is being made under s.17(2) (a) that this Board is, or indeed the grievors are, firmly convinced, that there are .not sufficient~differences between two classifications to warrant their separate identities or that the difference in wages that are appended to each do not. fairly or accurately reflect the differences in skill and job duties that are required in each. Rather, and subject to such classifications conforming to the general law of this jurisdiction, to repeat, the former is by virtue of s.17(1)(a) of the Act within the exclusive prerogative of management while the latter is a matter which may properly be the subject of negotiation between the parties". The employer argues further that in order to be successful on the usage argument, the grievor must aspire to a more senior classification, not a "parallel" one. In Mont~gue (GSB 110/78) a panel of this Board chaired by Professor Swiriton said: "The Board is not direc=ly concerned with discrimination between employees in the application of the classification system, unless the differential treatment demonstrates a change in the classification system from the written standards. The Board's concern is with the question of whether the grievor's job has been improperly classified, when that job is measured against absolute standards". In this case, argues the employer, the employer's classification practices do not differ from the written classification standards. Although the two class standards under scrutiny here are worded differently, they essentially describe the same work. The difference in pay is the only real difference, and that cannot properly be attacked in a classification grievance under s.18(2)of the Crown Employees Collective Bargaining Act. Employer counsel argues that in order to succeed in a classification grievance, a grievor must show that his or her actual classification is at odds with reality. A grievor must prove first that she is wrongly classified before she can fit herself into another classification. In our view, that line of rpasoning applies to "standards" cases, but not "usage" cases, which this is. Underpinning the "usage" test of the appropriateness of a person's classification is the concept of fairness and equality of treatment, both in - 6 - status and in wages, of people Performing essentially the same work. ~mptoyer counsel asserts that Beals and Cain (supra)' was wrongly decided' if it purports to stand for the proposition that an employee can insist on being reclassified to a "Parallel" classification,(as opposed to a higher classification) if he or she can show the duties of each classification are virtually identical. ..... We are of the view that Deals and Cain was correctly decided and that it stands .for the proposition, as clearly stated at page 13, that a "grievor's position is improperly classified if it is not placed in the hi~ghest classification in the system hierarchy to which his work, measured against the work of employees whose positions are in related classifications, entitles him". We agree with the comments of that Board, at page 11, about the objectives of the ~mployer'S classification system: ~-~It may be assumed that among the objectives of the \ employer's classification system are the achievement of l uniformity in policy and consistency in practice throughout / the public service,"and equitable treatment of individual ( employees. It follows that It is an abuse of the system and · / unfair to employees where the positions of employees who are performing substantially similar work are placed In different classifications. By intervening where that condition is found to exist the Board, rather than frustrating the intent or undermining the operation of the classification system, is preserving the legitimacy and the credibility of that system". Accordingly, the grievances'are allowed and the grievors shall be re-classified as Cleaner Office Buildings effective 20 days before the date of their grievances. Each shall be compensated with full retroactive pay and benefits and interest. We will remain seized of jurisdiction for a period of 60 days following release of this award in the event there is any difficulty in its implementation. We are .also seized of jurisdiction of eleven similar Cleaner 2 grievances which may well be settled as a result of this decision. We will deem them settled and relinquish our jurisdiction 60 days after release of this award unless we hear from one of the parties that they wish to have those grievances heard. , A. B~[RRETT, ~airperson D. Clark, Member