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HomeMy WebLinkAbout1991-2253.Campeau et al.93-05-03 ONTARIO i EMPLO¥£S DE LA COURONNE ~.. · CROWN EMPL~, ~ EES DE £ 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT 'BOARD DES ,GRIEFS 't80 DUNOAS STREET WESt, SUITE 2100, TORONTO, ONTAR,~O, M5G 1Z8 TELEPHONE/T~LC~PHONE: (4'16) 326- 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO IONTARIO), M5G tZ8 FACSIMILE/T~£~COPIE : (416) 326- 2253/91, 162/92 IN THE ~TTER OFAN ARB~TI~TION Under THE CRO~ EHPLOYEE8 COLLECTIVE BARGAINING ACT Before THE GRIEVANCB 8ETTLENENT BOied~D BETWEEN OPSEU (Campeau et al) ~r~evor The Crown in Right of Ontario (Ministry of the Environment) ,. Employer BEFORR: W. Low' Member D~ Wintermute Member D. Montrose Member FOR THE C. Dassios UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING July 10, 1992 January 22, 1993 March 25, 1993 DECISION This is a classification grievance brought on behalf of five Grievors, Ron Campeau, Don Kachkowski, Howard Mortfield, Angelo Zorzes and Christine Idansen. The Grievors are employed by the Ministry of the Environment as Senior Environmental Officers in the Northwestern Region, and are classified as Environmental. Officer 4. They hold posifons of Environmental Officer - Technician, and it is acknowledged that the position specification accurately describes their'duties. The Grievors rely, however, on a usage argument in asserting that they ought properly to be classified as Environmental Officer 5. It is the position of the Union that the Grievors do substantially similar work to work being done by rehabilitation officers classified as EO 5 working in the Ministry of Northern Development and Mines as Rehabilitation Inspectors. We heard the evidence of Mr. Campeau, whose evidence was to be representative of all of the Grievors. We also heard the evidence of Mr. Cecil Burns, a Rehabilitation Inspector classified as Environmental Officer 5 and employecl by the Ministry of Northern Development and Mines. The substance of the Grievor's job is to visit a wide variety of industrial sites at least annually to inspect the air, water and waste management aspect of the site to ensure compliance with relevant legislation. The Grievors also go to municipal locations, commercial locations and mines and take water and soil samples in order to monitor compliance _ ( with the relevant legislation and control orders as issued by the Director. From time to time, the Grievors will make recommendations to the Director that a control order be issued where legislative compliance is in question. The Grievors work with and take part in inspections with a view to enforcing a number of statutes, among them the Environmental Protection Act, the Environmental Assessment Act, the Water Resources Act, the Pesticides Act, and the Provincial Offences Act. TheY take samples, send the samples to laboratories, check to ensure that pollution control equipment is working properly, document violations, make occurrence reports and recommend prosecutions where applicable. The Grievors also participate in rehabilitation work; if an industrial site is being closed down, for example, meetings will be held with the company to identify environmental concerns and to advise the company as to the leveI of clean-up that it is expected to do. Although rehabilitation of industrial property is a matter with which the Grievors have some involvement, it does not appear to be the bulk of their job and where rehabilitation activities are. undertaken, such activities may involve any number of a variety of industrial sites in addition to mines. It Was the.view of Mr. Campeau that there was no difference from an environmental officer's point of view, be/~ween the rehabilitation of a mine and the rehabilitation of other types of property. Inspection work is approximately 70% of the Grievors' job, and in carrying out their duties, they use most of the methodologies used by Rehabilitation Inspectors in carrying out compliance reviews and non-compliance investigations. As set out in the position specification for Rehabilitation Inspector, the Grievors also use most of the methodologies used by Rehabilitation Inspectors in carrying out enforcement duties. The Grievors do not, however, prepare Crown briefs detailing findings of reviews and investigations and making recommendations for prosecution; nor do they obtain court injunctions or lay charges of contempt in conjunction with police in their enforcement duties. Cecil Burns,. a Rehabilitation Inspector, was called on behalf of the Union to testify as to the nature of his job duties in order that the Board be in a position to determine whether there was substantial similarity between the jobs of the Grievors and the job of Rehabilitation Inspector. Prior to becoming a Rehabilitation Inspector, Mr. Bums had been a Senior Environmental Officer who had held classification i~oth as an Environmental Officer 4 and Environmental Officer 5 at different times. Immediately prior to his obtaining a position as a Rehabilitation Inspector, he had been employed at Kenora as a Senior Environmental Officer classified as Environmental Officer 4 and was doing essentially the job described in the Orievors"position specification. In 1991, he went to the Ministry of Northern Development and Mines, more or less contemporaneously with the coming into effect of the new Mining Act which creates a regime whereby closure plans are mandatory for all operating and suspended mines. The job of Mr. Burns centres on the development and implementation of closure plans. At the stage where plans are created, a large part of'Mr. Burns' duties are in the nature of acting as a team leader or co-ordinator or administrator ensuring that closure plans are created within the time periods specified by the Ministry. He acts as a co-ordinator, ensuring that relevant statutory bodies receive the closure plans for comment and co-ordinates the input of a variety of ministries and other bodies. At the implementation stage, his role is to see to compliance with the plan, and in doing so, he will perform tasks similar to those being done by Senior Environmental Officers classified as Environmenta/Officers 4. The difference, however, is that the prime concern being addressed is public safety, particularly in the cases of abandoned mine sites. There has been some training given to Rehabilitation Inspectors in the public safety area. In addition, preParation of Crown briefs where necessary is a requirement of the position of Rehabilitation Inspector whereas it is not part of the duties of the Senior Environmental Officer. As is apparent from the competition posting for the position of Rehabilitation Inspector, forensic skills are a necessary component of the qualifications for the job. It .was acknowledged on cross-examination that, as an environmental Officer, Mr. Burns had no dealings with and had no jurisdiction over safety issues whereas in his capacity as Rehabilitation Inspector, safety · . issues were of prime importance and a large portion of the regulations which he is entrusted with enforcing have to do with public safety issues. As well, these grievances were launched shortly after Mr. Bums was first installed as a Rehabilitation Officer, and the Ministry was still in the start-up phase with respect to organizing the implementation of the new legislation. Mr. Bums was part of the team developing the training plans for the staff. ( It was acknowledged on cross-examination that a large portion of Mr. Burns' duties has to do with abandoned mine sites. Ascertaining the identity of the person or persons responsible for them is a very time-consuming aspect of Mr. Btirns' duties, whereas it was not a significant portion of the duties of Environmental Officer ~ Technician. Mr. Burns acknowledged that when he applied for the position of Rehabilitation Inspector, he was looking for a change and he also acknowledged that the Rehabilitation Inspector position is different from' the Environmental Officer - Technician position. On the evidence, we are unable to come to the conclusion that the duties of the Grievors'is substantially similar to the duties of a Rehabilitation Inspector. In our view, it is necessary when evaluating a usage argument to stand neither too close nor too far away from the subject matter in order to examine it with the proper perspective and focus. It is always possible when one stands too close to the subject matter to see apparent similarities which, when viewed from a greater distance, turn out to be only similar elements in two disparate totalities. Thus it is fallacious to say that because both Rehabilitation Inspectors and Environmental Officers employ the same methodologies in their investigative duties (i.e. visit sites, conduct. surveys, take samples and the like) they perform substantially the same job. It is necessary to look at each bundle of duties as a whole, and when one does so, it is apparent that the duties and the qualifications required of the two positions are very different. Environmental Officers - Technicians are concerned with environmental issues, and are engaged in enforcing a number of statutes. In contrast, it appears that the job duties of the Rehabilitation Inspector are far more administrative in ~nature, that the subject matter is specialized to mines, but the issues addressed 6 are wider, including public safety, land use planning and aesthetic issues as well as environmental issues. There are, indeed, similarities to what these two groups of employees do some of the time, but there is not such similarity in their jobs taken in totality and viewed in focus and perspective that we can say, notwithstanding very able argument by counsel on .behalf of the Union, that there is substantial similarity as contemplated by the jurisprudence of this Board such 'that reclassification should occur. Accordingly, the grievances will be dismissed. DATED this 3th day of May, 1993. W.'LOW Vice-Chairperson "I Dissent" (dissent to follow) D. WINTERMUTE - Member D. MONTROSE - Member