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HomeMy WebLinkAbout1998-1062.Barnier et al.00-08-24 Decision ONTARIO EAfPLOYES DE L4 COURONNE CROW'! EAfPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1062/98 OPSEV # 98B496 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Vmon (BamIer et al) Gnevor - and - The Crown m RIght of Ontano (Mimstn of Fmance) Employer BEFORE RandI H. Abramsk, V Ice Chair FOR THE Man Mackmnon GRIEVOR Bode & Mackmnon Bamsters & SolICItors FOR THE John Cocker Counsel EMPLOYER Luc, SIraco Counsel Legal ServIces Branch Management Board Secretanat HEARING January 14 1998 Apnl 26 1999 May 25 2000 May 26 2000 Plus a wntten submIssIOn by the Employer on July 4 2000 AWARD The gnevors, all semor Assessment Field Officers (AFOs) WIth the Mimstry of Finance, allege that they were Improperly demed actmg pay whIle performmg the dutIes of a NeIghborhood FunctIOnal Assessor (NFAs) for the penod of January 1 1998 through December 31 1998 The relevant contractual proVIsIOn IS ArtIcle 8 1 1 whIch states as follows ARTICLE 8 - TEMPORARY ASSIGNMENTS 8 1 1 Where an employee IS aSSIgned temporanly to perform the dutIes of a pOSItIOn m a classIficatIOn WIth a hIgher salary maXImum for a penod m excess of five (5) consecutIve workmg days, he or she shall be paid actmg pay from the day he or she commenced to perform the dutIes of the hIgher classIficatIOn m accordance WIth the next hIgher rate m the hIgher classIficatIOn, proVIded that where such a change results m an mcrease of less than three percent (3%) he or she shall receIve the next hIgher salary rate agam. Facts UntIl January 1 1999 the assessment of farm, reSIdentIal, commercIal and mdustnal property for mumcIpal taxatIOn had been performed by employees of the Mimstry of Finance After that date, the functIOn was dIvested to the Ontano Property Assessment CommISSIOn (OP AC) The gnevances m thIS matter mvolve the one-year penod before that dIvestment occurred. At the tIme the gnevances m thIS matter were filed m Apnl 1998 the gnevors were all AFOs m the London regIOn, under the dIrectIOn of the Assessment CommISSIOner London. The purpose of the office was to produce an assessment roll for all classes of property m the regIOn whIch would be used by the vanous mumcIpalItIes 2 for taxatIOn purposes The London regIOn mcluded some 210 000 propertIes m Elgm, Oxford and Middlesex countIes, mcludmg the CIty of London. The regIOn was dIvIded mto four valuatIOn sectIOns The CIty of London, ResIdentIal the CIty of London, CommercIal and Industnal Oxford and part of Elgm CountIes, all propertIes Middlesex and part of Elgm CountIes, all propertIes Each sectIOn was headed by a ValuatIOn Manager and mcluded two Semor Property Assessors, a number of NF As and AFOs, and ValuatIOn AssIstants who were hIred on a contract basIs The Semor Property Assessors, NF As and AFOs were all part of the bargammg umt. Smce at least 1997 both NFAs and AFOs were assIgned to specIfic neIghborhoods wIthm a sectIOn. In 1996-97 as a result of the "Who Does What" reVIew the provmcIal government undertook a major reVISIOn of property assessment m Ontano wIth the goal of bnngmg all propertIes to a SImIlar valuatIOn date June 30 1996 To that end, there were a sIgmficant number of admmIstratIve and legal changes to the Assessment Act, WIth 1998 bemg the first year of the changes All propertIes had to be assessed to determme theIr value as of June 30 1996 A new reVIew process was also ImtIated. The first step whIch IS optIOnal, mvolves a request for reconSIderatIOn by the taxpayer whIch IS an mformal reVIew between the taxpayer and the assessor If the matter IS not resolved then, a formal reVIew before the Assessment ReVIew Board (ARB) may be requested. Before thIS, there was no 3 request for reconsIderatIOn and a valuatIOn, If appealed, went dIrectly to the ARB and then to the Ontano MumcIpal Board. NeIther the AFO or NFA posItIOn speCIficatIOns were amended to reflect thIS change Assessment CommISSIOner SmIth stated that at thIS tIme - late 1997 and early 1998 - the "reassessment pressures were profound." Also at thIS tIme the regIOn lost approxImately ten NF As due to a vanety of reasons, mcludmg resIgnatIOns, transfers, health Issues and early retIrement mcentIves The record IS not clear as to the percentage thIS number represents, or the total number of NF As, but It was clearly a sIgmficant number Most of these NF A pOSItIOns were not posted nor were the pOSItIOns permanently filled As a result of a gnevance m the early 1990s, the NFA salary was substantIally mcreased. The pOSItIOn of AFO was created shortly thereafter to bnng more employees mto the field at a lesser cost than an NF A. Assessment CommISSIOner SmIth, who was mvolved m the creatIOn of the pOSItIOn, testIfied that the AFO Job was a "Jumor pOSItIOn" to value the more numerous reSIdentIal and farm propertIes whIch were conSIdered eaSIer and less complex than multI-reSIdentIal, commerCIal and mdustnal propertIes Of the 210 000 propertIes m the regIOn, approXImately 185 000 are reSIdentIal or farm propertIes Of the commercIal/industnal propertIes, the maJonty are m the CIty of London, WIth some m St. Thomas and Woodstock. The NFAs, who were hIghly paid, were to value the complex propertIes and defend valuatIOns on appeal, although the 4 AFOs could assIst them The AFO posItIOn replaced the Data CollectIOn Officer posItIOn, whIch was a clencal Job mvolvmg data collectIOn, not valuatIOn. The posItIOn specIficatIOn for the AFO Job lIsts the followmg as ItS "purpose" To assIst neIghbourhood/functIOnal assessors m the field and office m the areas of data collectIOn and mamtenance customer servIce and the provIsIOn of assessment mformatIOn to the publIc, valuatIOn of resIdentIal and farm propertIes and calculatIOn of assessed value of a vanety of other propertIes The "DutIes and related tasks" were lIsted as follows 1 PartICIpates m assessment data collectIOn functIOns by - revIewmg property assessment and related records such as appraisal cards, the OASYS file, bUIldmg permIts, property deeds and plans etc to famIlIanze self wIth taxpayers' property - mvestIgatmg market data such as M.L S lIstmgs, newspapers etc - acqumng and mamtammg a record of property sales, rental mcome and expenses for mcome producmg propertIes and cost data, - re-mspectmg the mtenor/extenor of propertIes and structures to venfy the accuracy of or IdentIfy changes to be made to paper or electromc assessment records - performmg routme property mspectIOns of new structures or changes to eXIstmg structures IdentIfied from bUIldmg permIts, assessment confirmatIOn forms, field observatIOns etc - measunng propertIes and structures to venfy accuracy of or IdentIfy changes to be made to assessment records - calculatmg and convertmg metnc measurements to Impenal measurements on plans etc - recordmg changes and updatmg assessment records from mformatIOn compIled dunng field VISItS etc - consultmg Manager or Semor Property Assessor for techmcal adVIce on unresolved or non-routme problems 2 ASSIStS WIth data mamtenance functIOns by - Sales - revIewmg all sales documents, determmmg nature of transactIOn, codmg as to SUItabIlIty for sales analYSIS purposes based on DIVISIOn gUIdelInes, entenng sales data and ownershIp changes m electromc and paper assessment records, 5 - Supplementary - obtammg bmldmg permIts, prepanng field documents, vIsItmg propertIes and recordmg detaIls of constructIOn, updatmg relevant paper and electromc files and records, revIewmg supplementary notIces for accuracy before forwardmg to owners, - Appeals - VIsItmg propertIes to confirm the accuracy of property assessment data and denotmg changes m support of appeals, updatmg records resultmg from the decIsIOns of the Assessment ReVIew Board or hIgher 3 ProVIdes mformatIOn servIces to the publIc by - answenng routme mqumes from the publIc provIdmg property detaIls or Assessment DIVISIOn mformatIOn by telephone, letter or m person and partIcIpatmg m "Open House" actIVItIes 4 Calculates the assessed value of reSIdentIal and/or farm propertIes by - checkmg appraisal/property cards and notes compIled dunng field VISItS to ensure all necessary mformatIOn IS avaIlable, such as bmldmg characten StI cs and dImenSIOns etc and usmg hand-held computer eqmpment to compIle records and general property values m the field, - prepanng scale outlInes of bmldmg, showmg dImenSIOn and other mformatIOn as reqmred, - referrIng to data on appraisal cards/property records and appropnate costmg manual to calculate baSIC value of structures - applymg establIshed depreCIatIOn and obsolescence tables and local modIfiers to bmldmgs, addmg land values from establIshed tables and applymg establIshed adjustment factors to determme total property values, - entenng data mto computer data bases and usmg appropnate manuals or automated techmques to determme property values - prepanng data reqmred by the appropnate neIghbourhood/functIOnal assessor to permIt hIm/her to reVIew and defend the assessment of reSIdentIal and farm propertIes whIch have been appealed to the Assessment ReVIew Board or the Ontano MumcIpal Board, - consultmg the appropnate neIghbourhood/functIOnal assessor for techmcal adVIce on unresolved or non-routme problems 5 ASSIStS neIghbourhood/functIOnal assessors m calculatmg the assessed value of multI-reSIdentIal, commerCIal and mdustnal propertIes by performmg such tasks as - checkmg appraisal/property cards and notes compIled dunng field VISItS or proVIded by neIghbourhood/functIonal assessor to ensure necessary mformatIOn IS avaIlable such as bmldmg charactenstIcs and dImenSIOns etc and requestmg mIssmg mformatIOn from the neIghborhood/functIOnal assessor responSIble for compIlmg the data 6 - prepanng outlIne to scale mdIcatmg respectIve floor SIze, basement, etc accordmg to colour codes and mformatIOn proVIded, - referrIng to data on appraisal/property cards and appropnate costmg manual to calculate baSIC value of structures, - applymg establIshed depreCiatIOn and local modIfier to bUIldmg, and addmg land value to determme total property value - forwardmg completed appraI sal/property cards to the appropnate neIghbourhhood/functIOnal assessor for reVIew and confirmatIOn. 6 Performs other dutIes such as - mamtammg vanous manual and automated office statIstIcal records (e g. affidavIts, omItted/ suppl ementary assessments) reqUIred for monthly M.B.R. and management reports by recordmg/inputtmg data, checkmg accuracy and retnevmg data, - AssIstmg In specIal projects and performmg other aSSIgnments m support of the assessment functIOn as reqUIred. Accordmg to ValuatIOn CommISSIOner SmIth, AFOs are fully mvolved In the appeals/reconsIderatIOn process except for appeanng before the ARB They may reVIew the valuatIOn, re-mspect the property re-analyze the mformatIOn and come to a value conclusIOn WIth respect to reSIdentIal and farm propertIes for whIch they are held accountable For commercIal and mdustnal propertIes, they may work up an InItial valuatIOn, but theIr valuatIOn must be reVIewed and they are not responSIble for It. They also cannot represent the Assessment CommISSIOner before the ARB whIch was referred to by the partIes as gomg to or domg "courts" ThIS was done, m hIS VIew "purposefully" because It reqUIres expenence The NF A, accordmg to SmIth, IS able to carry out valuatIOns on all types of propertIes, mcludmg commercIal and mdustnal propertIes, even though some do not do so due to the types of propertIes m theIr areas They also defend those valuatIOns on appeal He referred to them as "workmg level assessors" able to "deal WIth anythmg that 7 comes along." He stated that they work mdependently come to theIr own conclUSIOns on valuatIOn and are reqUIred to defend them The NF A, he testIfied, does all of what an AFO does mdependently plus appear before the ARB He acknowledged, however that not all NF As appear "m court" or assess commercIal and mdustnal propertIes, but unlIke AFOs, they may be reqUIred to do so The NFA pOSItIOn specIficatIOn states that the purpose of the Job IS to "perform the valuatIOn assocIated WIth a neIghbourhood and to proVIde reassessment and market value for all propertIes m that neIghbourhood." The "summary of dutIes and responSIbIlItIes" states 1 Performs a vanety of data collectIOn functIOns necessary to support neIghbourhood assessments by engagmg m such tasks as - acqumng and mamtammg a record of all property sales, rental, mcome and expenses for mcome producmg propertIes, wIthm assIgned neIghbourhood, - mvestIgatmg other sources of market data such as M.L S lIstmgs, newspapers, - remspectmg the mtenor and the extenor of all propertIes m the neIghbourhood to collect changed property and structural data, - performmg property mspectIOns reqUIred due to changes m property (addItIOns, demolItIOns, etc) or as reqUIred for tax audIts and succeSSIOn valuatIOns 2 Performs the on-gomg valuatIOn of propertIes wIthm assIgned neIghbourhood by undertakmg such tasks as - placmg market values on all propertIes wIthm the assIgned neIghbourhood usmg at least one of the recogmzed valuatIOn methods ComparatIve Sales Approach- Cost Approach - Income Approach - 8 - prepanng, once every assessment cycle, documentatIOn contammg a descnptIOn of the neIghbourhood jUnSdIctIOn, sales hIstOry lease and mcome data hIstory market mfluences, the results of analysIs and m evaluatIOn of qualIty m terms of accuracy and eqUIty' - defendmg the assessment of any property m the assIgned neIghbourhood at any jUdICIal level - to proVIde aSSIstance m neIghbourhoods other than own should the need anse 3 Performs a vanety of data mamtenance functIOns by engagmg m such tasks as - Sales - analysmg and updatmg all sales mformatIOn wIthm assIgned neIghbourhood, determmmg nature of transactIOn, codmg as to SUItabIlIty for sales analYSIS purposes, entenng ownershIp changes and sales data, apportIOnIng the property value and amendmg appraisal card and file record (for splIts only) - Supplementary Assessments - obtammg bUIldmg permIts, prepanng field documents, vIsItmg the property and recordmg detaIls of constructIOn, determmmg value changes, updatmg relevant computer files and records, and revIewmg Supplementary NotIces before they are forwarded to owners, - Tax Adlustments 636(a) - recordmg and mvestIgatmg demolItIOns and busmess tax adjustments, vIsItmg the property and venfymg the change, recordmg the detaIl of any new occupant; - Appeals - updatmg records resultmg form the deCISIOns of the Assessment ReVIew Court or hIgher - ApportIOnIng values for multI-occupancy propertIes for school support, votmg pnvIleges, busmess assessment purposes 4 Performs admmIstratIve and commUnICatIOns functIOns necessary to support the neIghbourhood assessment concept such as - establIshmg and adhenng to a BI-weekly work plan wIthm the terms of the general regIOnal office schedule - supervIsmg the actIvItIes of enumerators m the neIghbourhood, venfymg and edItmg theIr work; - partIcIpatmg m open houses to dISCUSS valuatIOns made WIth ratepayers - meetmg WIth CouncIl members, town clerks, as reqUIred to explam market value reassessments 9 - respondmg to enqumes regardmg property detaIls made by the publIc, mumcIpal offiCIals, tax agents, and others as aSSIgned. Based on the pOSItIOn specIficatIOns, there appears to be sIgmficant overlap between the AFO and NF A pOSItIOns m terms of data collectIOn and data mamtenance functIOns There IS also some overlap to a more lImIted degree, m terms of valuatIOn of property The NF A places market value "on all propertIes wIthm the aSSIgned neIghbourhood" whIle the AFO "calculates the assessed value of reSIdentIal and/or farm propertIes" and "aSSIsts" the NF A "m calculatmg the assessed value of multI-reSIdentIal, commercIal and mdustnal propertIes" In addItIOn, the NF A IS responSIble for "defend[ing] the assessment of any property m the aSSIgned neIghbourhood at any JudIcIal level " WillIam SomervIlle who from 1995 untIl 1999 was a Semor Property Assessor CIty of London, m the CommercIal/Industnal SectIOn, testIfied that m 1997-98 he oversaw the actIVItIes of NF As, AFOs and ValuatIOn ASSIstants With NFAs, he would proVIde guIdance as requested and adVIce on valuatIOns, aSSIst m the preparatIOn of appeals and, m complex appeals, attend ARB heanngs WIth them With the AFOs, he would aSSIgn them work, check the work they dId and proVIde aSSIstance as reqUIred. He testIfied that one of the gnevors, James Stata, dId not make mdependent assessments on new commerCIal or mdustnal propertIes but reVIewed them WIth an NF A or Semor Assessor He estImated that on average, m hIS sectIOn, NF As spent 30 to 40 days at heanngs per year 10 The Employer also called Karen Russell, who m 1997-98 was a SenIor Property Assessor m the CIty of London, CommercIal/Industnal SectIOn. In her VIew the dIstmctIOn between AFOs and NF As IS that NF As are accountable and responsIble for the final valuatIOn on commercIal and mdustnal propertIes and to defend those valuatIOns before a tribunal The AFO she stated, had more of assIstmg role, data collectIOn and field work, versus the NF A who would spend more tIme m the office, analyzmg and prepanng final valuatIOn work. Ms Russell testIfied that e-maIls pertammg to property assessment appeals were sent to all assessment staff mvolved m the process, mcludmg AFO James Stata. She testIfied that Stata dIscussed appeals dIrectly WIth tax agents, but consulted WIth her both before and after those dIscussIOns Ms Russell also explamed an e-maIl to all staff m the London CommercIal/Industnal SectIOn dated Apnl 27 1998 regardmg "Process Controls" The e-maIl states, m pertment part, as follows EFFECTIVE IMMEDIATELY ALL ASSESSORS-AFO'S-VA'S INPUT WILL BE FORW ARDED TO THE SENIOR ASSESSORS FOR VERIFICAITON & AUTHORIZATION PRIOR TO KEYING (THEIR (SIC) IS AN INPUT BOX SPECIFICALL Y FOR THIS PURPOSE) THIS INCLUDES BUT IS NOT LIMITED TO SUPPS VALUE CHANGES PARTITIONING PORTIONING APPEALS ETC ETC CLERKS WILL NOT KEY INPUT NOT INITIALLED & PLEASE DO NOT KEY YOUR OWN WITHOUT HA VING GONE THROUGH THE PROCESS 11 Ms Russell testIfied that thIS memo was Issued near the close of the roll, whIch was around May 1 to control the changes that could be made to the roll and lImIt the possIbIlIty of "cross-foot" errors (whereby the value of the parts of a property dId not equal the whole) For thIS penod of tIme, changes to the roll had to be processed through a Semor Property Assessor At all other tImes, however NF As could mdependently change valuatIOns on any property and AFOs could do so on resIdentIal and farm propertIes but had to consult wIth an NF A or Semor Assessor on commercIal and mdustnal propertIes Ms Russell's testImony on thIS e-maIl was conSIstent WIth the testImony of both Mr SmIth and Mr SomervIlle Five of the 13 gnevors m thIS matter testIfied and the partIes agreed that theIr testImony WIth the exceptIOn of the extent that they performed commercIal/industnal valuatIOns, would be representatIve of all of the gnevors TheIr testImony IS summanzed below Jav Garton Mr Garton began workmg for the Mimstry of Finance as a Data CollectIOn Officer m 1989 and subsequently became an AFO His dutIes as an AFO at first, mvolved collectmg data on smgle famIly reSIdentIal propertIes In London whIch he would pass on to an NF A who had the final say regardmg the valuatIOn. Over tIme, however hIS own valuatIOns were reVIewed less and less, untIl not at all 12 In 1997 shortly after the retIrement of NF A Weldon Westlake, he receIved an actmg assIgnment as an NF A for three months, from September to December 1997 m Middlesex County Dunng that tIme, he spent "a week or two domg courts" and he went to the propertIes to re-mspect, ensure the data was correct and attempt to settle WIth the ratepayer ThIS work, except for the courts, was SImIlar to the dutIes he performed before the actmg aSSIgnment. LIkeWIse, after hIS actmg aSSIgnment, hIS dutIes dId not change, except for courts He testIfied that he performed valuatIOns for farm, reSIdentIal, commercIal and mdustnal propertIes, although he acknowledged that he submItted hIS valuatIOns on commercIal and mdustnal propertIes for reVIew by the SenIor Assessor At tImes, he testIfied, they were revIewed, at other tImes, they were not. He also receIved mqumes from vanous mUnICIpalItIes dIrectly BegmnIng m January 1998 WIth the new legIslatIOn, he partICIpated m the reconSIderatIOn process He stated that It was "baSIcally the same" as prepanng for the ARB heanngs In hIS VIew throughout 1998 he was no longer performmg the AFO Job smce he was not "assIstmg" an NF A but domg everythmg that the NF As were domg except attend court. He was domg commercIal, mdustnal and reSIdentIal reconSIderatIOns, negotIatmg dIrectly WIth the taxpayer All of hIS settlements were SIgned off by the ValuatIOn Manager as were those of NF As JennIfer ReId 13 Ms ReId started m 1975 as a Data CollectIOn Officer then became an AFO She was assIgned to neIghbourhoods begmmng m the spnng of 1996 Before that, she proVIded general assIstance to NF As In 1997 she receIved an actmg NF A assIgnment dunng whIch she spent a lot of tIme prepanng for courts and dId all of the reSIdentIal courts m the area. In her VIew the preparatIOn work she performed dunng the actmg assIgnment was the same as she dId as an AFO and the "major dIfference" was that she "appeared before the Tribunal" She "wouldn't say It changed a whole lot." After the actmg aSSIgnment, the only dIfference m her Job was that she dId not appear before the tnbunal Mamly she dId reassessments and requests for reconsIderatIOn. In 1998 when there agam were court dates, she was gIven another actmg aSSIgnment from June through October She testIfied that she dId between ten to twelve commercIal or mdustnal assessments m 1998 a number of whIch mvolved reconsIderatIOns Some were pnor to the actmg aSSIgnment, some were dunng It and some were after the actmg aSSIgnment and only some were revIewed by Semor Property Assessor Paul Legg. She testIfied that "m theory" commercIal and mdustnal propertIes were to be valuated by NF A RIck Enns, but m realIty she dId them Lmda LIOttI Ms LIOttI began WIth the Mimstry m 1990 and became an actmg AFO m 1996 and m 1997 became a regular AFO In 1998 she was mvolved m helpmg develop a new multIple regressIOn analysIs to valuate reSIdentIal propertIes With others, she helped to develop software to faCIlItate 14 reassessment, creatmg a formula to value resIdentIal property In her VIew because of the program, she was no longer "assIstmg" but performmg valuatIOns Ms LIOttI acknowledged that a SenIor Assessor revIewed any commercIal valuatIOns m whIch she was mvolved and she dId not attend courts m 1998 Shernann Wadley Ms Wadley began wIth the MinIstry m 1988 became a Data CollectIOn Officer m 1990 and In 1993 was reclassIfied as an AFO She was assIgned to the CIty of London, ResIdentIal SectIOn, focussmg on condommlUms Her Job was to assIst NFA LonnIe Harloff In August 1997 Harloff left and she took over the assessment responsIbIlItIes on an actmg baSIS She testIfied that before thIS actIng assIgnment, she was not accountable for the values nor reqUIred to defend them, that was Harloff's Job DUTIng the actmg assIgnment, she was accountable and attended courts to defend the assessments The actmg assIgnment ended m December 1997 but she testIfied that her dutIes dId not change except she dId not attend courts Instead, m 1998 she was heavIly mvolved m reassessments and reconSIderatIOns She stated that before 1998 she partICIpated In prepaTIng for ARB heanngs only m a "mInImal" way meanIng that she prepared spreadsheets for the NF A's use she would not speak or negotIate dIrectly wIth the taxpayer She receIved another actIng assIgnment from June 1 1998 to October 30 1998 m order to attend courts In her VIew m 1998 she was no longer assIstmg an NFA, but was performmg the dutIes of an NF A and was accountable for the area. She acknowledged, however that m 1998 she aSSIsted Bob Lee an NF A, wIth multI- 15 resIdentIal propertIes and that she dId not valuate commercIal or mdustnal propertIes She testIfied that m the CIty of London, ResIdentIal SectIOn there were NF As who dId not valuate commercIal or mdustnal propertIes James Stata Mr Stata was employed wIth the Mimstry smce 1990 first as a Data CollectIOn Officer then as an AFO After NF A Donna Stevens left the office m 1997 he receIved an actmg assIgnment as an NF A from August 1 1997 through December 31 1997 Dunng thIS actmg assIgnment, he attended ARB heanngs and performed a land analYSIS, "tYPIcal NF A dutIes" Dunng thIS penod, he was assIgned to the CIty of London, CommercIal/Industnal sectIOn. After the actmg assIgnment, he stated that there was no change m hIS dutIes except that he dId not attend court. He was actIvely Involved m requests for reconsIderatIOn and met wIth tax agents to dISCUSS propertIes He was sent e- malls sent to staff dealIng WIth appeals In hIS VIew throughout 1998 he was treated the same as an NFA m terms of reVIew He testIfied that the AFO pOSItIOn specIficatIOn "underemphasIzes the level of mdependence I had." To say that he "aSSIsted" was, m hIS VIew a "gross understatement." He had hIS own neIghbourhood m a functIOnal area - commerCIal In hIS VIew the term "calculatIOn" ImplIes no Judgement when he determmed property values, subject to reVIew Further the mspectIOns he performed were not routme smce the bmldmgs were older commerCIal bmldmgs, each of whIch vaned. In addItIOn, he met WIth CIty hall staff and responded to theIr mqumes 16 Accordmg to the gnevors, when the actmg assIgnments ended m 1997 but the work dId not change, they brought up the sItuatIOn WIth management. In January 1998 a meetmg was held between the AFOs and Mr SmIth, regardmg "Actmg AFO PosItIOns" the purpose of whIch was to dISCUSS the AFOs' "short and long term prospects for movmg to PA3's [NFAs] " At that meetmg, accordmg to Mr Stata, Mr SmIth acknowledged that there had not been any NF A competItIOns for some tIme and that he would attempt to rectIfy that sItuatIOn. In addItIOn, accordmg to Mr Garton, a number of AFOs had spoken to theIr managers about actmg NF A assIgnment and were told that at tImes, It would be possible By Apnl 1998 when no changes were forthcommg, the gnevances were filed. Accordmg to Mr Stata, by Apnl, the gnevors' patIence had run out and the mstant gnevances were filed. The Stage 2 response by the Employer dated October 14 1998 states m pertment part as follows As the Deputy Mimster's desIgnee, I am replymg to the gnevance whIch you filed on Apnl 22, 1998 allegmg that you have been Improperly paid for domg the dutIes of a NeIghbourhood/FunctIOnal Assessor I understand your posItIOn to be that you have been performmg the full dutIes of a NeIghbourhood/FunctIOnal Assessor and, therefore, should receIve actmg pay to cover any penod between January 1 1998 to present, that was not covered by a temporary aSSIgnment to an Assessor pOSItIOn. The Job speCIficatIOn for your Assessment Field Officer pOSItIOn at a P A2 level mdIcates that your role IS one of assIstmg. The Job specIfIcatIOn for the Assessor pOSItIOn at a NeIghbourhood/FunctIOnal Assessor level clear shows that there are dIfferent responSIbIlItIes The mam dIfference IS that a NeIghbourhood/FunctIOnal Assessor can attend court, whereas you cannot carry out thIS functIOn as a P A2 It IS my pOSItIOn that you have been properly paid whIle workmg m your home base pOSItIOn and that there has been no VIOlatIOn of the CollectIve agreement. Your gnevance IS, therefore demed. 17 Positions of the Parties The Umon asserts that the gnevors were Improperly demed actmg pay throughout 1998 when they performed the same work ofNFAs but receIved sIgmficantly less pay It asserts that gIven the legIslatIve changes that had occurred, the huge demand for reassessments and reconsIderatIOn's, and the sImultaneous drop m the number of NF As m the regIOn, the AFOs were aSSIgned to neIghbourhoods and to perform dutIes preVIOusly performed by NF As They no longer aSSIsted the NF As as set out m the PosItIOn SpeCIficatIOn, but actually dId theIr work. In the Umon's VIew the gnevors performed the same work as the NF As m prepanng for ARB heanngs, negotIatIng WIth taxpayers but only receIved "actmg pay" when scheduled for courts Yet, It submIts, the eVIdence showed that some NF As also dId not attend court and yet receIved the hIgher pay throughout the year Further It argues that, at most, attendance at court represents only a small portIOn of an NFA's Job As a result, the Umon argues that SImply because the AFO was not m court does not mean that they were not dOIng the same work as an NFA. ThIS was done, m the Umon's VIew to aVOId postmg the NFA Jobs Instead, It contends that the Employer had the AFOs perform theIr work yet reaped the finanCIal advantage of paymg the gnevors sIgmficantly less The Umon submIts that the Employer should not be allowed to argue that the gnevors dId not perform Independent commercIal and mdustnal valuatIOns smce that was not raised m ItS Stage 2 response to the gnevances It contends that the Employer should not be allowed to change the grounds of ItS defense from the Stage 2 proceedmg. 18 AlternatIvely It contends that some of the gnevors dId perform commercIal/industnal assessments and that some NF As, dependmg on the area assIgned, also dId not perform commercIal/industnal valuatIOns The Umon also argues that the eVIdence demonstrates that the gnevors were performmg theIr valuatIOns mdependently Although they were submItted for reVIew It argues that there was no eVIdence that reVIew actually took place Further It submIts that the same type of reVIew occurred for NF A valuatIOns The Umon also submIts that any relIef should be retroactIve to January 1 1998 because of the attempts the gnevors made to resolve the Issues and the response of management to be patIent. Under these CIrcumstances, the Umon contends that the gnevors' delay m filIng the gnevances untIl Apnl should not be held agamst them. In support of thIS pOSItIOn, the Umon CItes to OPSEU (Bauder et al.) andMinistlY of Health, GSB No 2198/90 (Gray) The Employer submIts that, m realIty the gnevances are actually claSSIficatIOn gnevances over whIch the GSB no longer has JunsdIctIOn. Umon's pOSItIOn IS that after 1997 the gnevors responsibIlItIes have been altered to mclude some of the dutIes of the NF A pOSItIOn - not for a week or two but for a full year It notes that the December 31 1998 end-date IS the date of dIvestIture to OP AC or presumably the alleged breach would be ongomg. ThIS demonstrates, m ItS submISSIOn, that what occurred was not a "temporary aSSIgnment" wIthm the meamng of ArtIcle 8 1 1 but a classIficatIOn Issue 19 over whIch the Board has no JunsdIctIOn. In support of Its posItIOn, Employer cItes to Re OPSEU (Oyston) and Ministry of Transportation GSB No 2149/86 OPSEU (Rosamond) and Ministry of Citizenship Culture & Recreation GSB No 2086/96 (LeIghton) In terms of ArtIcle 8 lIthe Employer contends that the gnevors dutIes were consIstent WIth theIr own pOSItIOn specIficatIOn and dId not mvolve the core or full dutIes of the NFA Job m two areas (1) the level of mdependence m regard to commercIal/industnal valuatIOns and (2) attendance at court to defend the assessments It submIts that whIle there was a lot of overlap between the Jobs of the AFOs and NFAs, they dId not overlap m these two cntIcal areas The Employer argues that the onus IS on the Umon to establIsh, on the balance of probabIlItIes, that the dutIes they performed were not wIthm the AFO pOSItIOn specIficatIOn and were part of the hIgher rated NFAJob It submIts that the eVIdence falls short smce none of the gnevors attended courts m 1998 appeal preparatIOn work was part of the Job of AFO and any ImtIal work on commercIal or mdustnal valuatIOns were reVIewed by a Semor Assessor and thus wIthm the Job speCIficatIOn of an AFO The Employer acknowledges that reconSIderatIOns are not part of the AFO pOSItIOn speCIficatIOn, but pomts out that It IS also not part of the NF A pOSItIOn specIficatIOn because the dutIes arose after the pOSItIOn specIficatIOns were created. It 20 submIts that management has the nght to assIgn the work to both AFOs and NF As and argues that reconsIderatIOns were not AFO or NF A work, per se The Employer argues that It IS not a questIOn of the gnevors' abIlItIes The Issue, mstead, IS whether the dutIes they were assIgned fall wIthm the AFO Job or the NFA pOSItIOn. In ItS submISSIOn, there was a sIgmficant overlap between the two Jobs but what the gnevors were reqUIred to do falls wIthm AFO Job speCIficatIOn. It argues that the fact that some NF As, because of geographIc area, dId not exerCIse each duty whIch could be reqUIred does not mean that the AFOs were domg NF A work, where, as here, the dutIes fell wIthm theIr own pOSItIOn. Further It contends that to the extent that any of the gnevors may have acted beyond theIr Job management dId not sanctIOn It. In support of ItS contentIOns, the Employer cItes to Re OPSEU (Collins) and MinistlY of Solicitor General, GSB No 0807/85 (KIrkwood) Re OPSEU (Decarrie) and Ministry of Consumer & Commercial Relations, GSB No 910/93 (Gray) OPSEU (Nichols) and Ministry of Health GSB No 778/89 (Knopf) Noon and Ministry of Community & Social Services GSB No 111/81 (McLaren) OPSEU (Farrelly) and MinistlY of Correctional Services GSB No 424/86 (Draper) OPSEU (Bullock et al.) and Ministry of Transportation, GSB No 699/87 (FIsher) OPSEU (Gervais) and Ministry of Health, GSB No 392/89 (DIssanayake) Finally the Employer contends that It IS not barred from raIsmg the commercIal/industnal valuatIOn Issue It argues that the "dIfferent dutIes" of the NF A 21 was raised m Its Stage 2 response, and that Its response dId not lImIt the dIfferences to attendmg courts It further submIts that It provIded full partIculars of thIS Issue to the Umon so there was no surpnse at the heanng and the matter could be fully addressed by the partIes Plus, It contends that ItS response to an alleged contractual vIOlatIOn IS not lIke ItS decIsIOn to Impose dIsCIplIne where It IS lImIted to the reasons stated It contends that It IS free to raise addItIOnal legal arguments at arbItratIOn. In support of ItS posItIOn, the Employer cites Re Toronto Transit Commision and Amalgamated Transit Union, Local 113 (1989) 6 LAC (4th) 129 (Spnngate) Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees Local 43 (1975) 10 LAC (2d) 247 (Adams) Re Dominion Castings Ltd and United Steehwrkers of America, Local 9392 (1998) 73 L.AC (4th) 347 (Levmson) Re McMaster University and Services Employees International Union, Local 532 (1993) 31 LAC (4th) 257 (Brunner) DECISION 1 May the Employer Raise the Issue of Commercial /Industrial Valuations? I conclude that the Employer may properly raise the Issue of whether the gnevors performed mdependent commercIal/industnal valuatIOns at the arbItratIOn heanng. The Employer's Stage 2 response was broad enough to mclude all of the "dIfferent responSIbIlItIes" of the NFA and was not lImIted to attendmg court. The sentence "[t]he mam dIfference IS that a N eIghbourhoodlFunctIOnal Assessor can attend court, whereas you cannot carry out thIS functIOn as a PA2" does not lImIt the precedmg sentence whIch states that the NF A pOSItIOn specIficatIOn "clearly shows that there are dIfferent responsibIlItIes" To read It as statmg that attendmg court was the "only" dIfference IS an 22 unduly narrow readmg. The word "mam" means pnmary It does not mean "only" or "exclusIve" To read It m that manner would not be an appropnate constructIOn of what was wntten, nor would such a narrow contractIOn be appropnate m the context of the gnevance process Because I conclude that the matter of "dIfferent responsIbIlItIes" was raised at Stage 2, I need not address the more general questIOn of whether the Employer may "change" ItS legal defenses to an alleged contractual vIOlatIOn. 2. Did the Employer Violate Article 8.1.1 of the Collective Agreement? ArtIcle 8 1 1 states as follows Where an employee IS aSSIgned temporanly to perform the dutIes of a pOSItIOn m a classIficatIOn WIth a hIgher salary maXImum for a penod m excess of five (5) consecutIve workmg days, he or she shall be paid actmg pay from the day he or she commenced to perform he dutIes of the hIgher classIficatIOn m accordance WIth the next hIgher rate m the hIgher classIficatIOn, proVIded that where such a change results m an mcrease of less that three percent (3%) he or she shall receIve the next hIgher salary rate agam. There are a sIgmficant number of GSB deCISIOns mterpretmg thIS proVISIOn, the substance of whIch (except for the number of consecutIve days reqUIred to tngger It) has not changed m many years One of the leadmg cases IS OPSEU (Collins) andMinistlY of the Solicitor General GSB No 0807/85 (KIrkwood) In that case, the gnevor as Mechamc 2, sought actmg pay for a one-year penod dunng whIch he alleged he was aSSIgned as actmg foreman. The Board set forth the onus reqUIred at p 4 23 [T]he onus IS upon the umon to prove that the gnevor was assIgned to do a Job temporanly' that the Job was to perform dutIes of a posItIOn m a classIficatIOn wIth the hIgher salary maXImum, and that the Job performed was for a penod m excess of eIght consecutIve workmg days If these three elements are proved the gnevor IS entItled to actmg pay The first element that the umon had to prove was that the gnevor was aSSIgned to aJob whIch was not part of hIS own. The Board held at p 8 that to receIve actmg pay as a foreman, "the Job he has to perform has to mclude the functIOns that go beyond that whIch were reqUIred for mechamc 2 and fall wIthm the standards of a foreman." Thus the Board carefully reVIewed the expectatIOns and reqUIrements of the Mechamc 2 Job as well as the foreman posItIOn. It noted at p 8 that the "essence of the foreman's Job standards whIch specIfically dIStIngUIsh It from a mechamc 2 IS the necessary functIOn of supervIsmg all the mechamcs m the shop" In contrast, a mechamc 2 could "supervIse the work of one or two qualIfied mechamcs performIng on routIne repair or mamtenance work." Under the specIfic facts of the case, the Board determmed that the gnevor may "have dIrected work to some of them from tIme to tIme but not suffiCIent to fall outsIde the scope of a mechamc 2 and wIthm the scope of a mechamc/foreman." (p 8) Accordmgly the Board was unable to conclude that the gnevor's supervIsory role "went beyond the supervISIOn referred to wIthm the class defimtIOn" of Mechamc 2 and consequently dIsmIssed the gnevance In OSPEU (Nichols) and Ministry of Health GSB No 778 89 (Knopf), the Board relIed on Collins threefold test. In that case, a number of RegIstered Nurses were claImmg actmg pay as Head Nurses dunng theIr temporary aSSIgnments as Charge Nurses Based on Collins the Board stated at p 15 that "[t]he Issue we have to deal WIth 24 IS whether the Umon has succeeded m provmg that the gnevors were assIgned to Jobs whIch were not part of theIr own." It determmed that when the gnevors were assIgned as Charge Nurses they were expected to do more and were responsible for more than when they acted m the posItIOn of RegIstered Nurse - they oversaw wards, assIgned tasks, coordmated actIVItIes and were the first level of response for theIr co-workers But all of these functIOns of the Charge Nurse, the Board found, "were fully contemplated m the Nurse 2 and RegIstered Nurse posItIOn and level" (p 16) It determmed that a RegIstered Nurse not only proVIdes nursmg care, but "IS also expected as a core functIOn or essentIal element of hIs/her duty to proVIde admmIstratIve dutIes on the ward such as relIevmg a Head Nurse, provIdmg mstructIOns to other nurses and other clImcal staff, momtonng nurSIng efforts, reportIng unusual occurrences and partIcIpatmg as part of the clImcal treatment team" (p 16) In addItIOn, "part of the Job standard IS that a Nurse 2 General may' supervISor the assIgnment of dutIes and check the work of subordmate staff on the same shIft' and that they 'may on occaSIOn, relIeve supervISIng nurses'" (p 16) Thus, the dutIes of a Charge Nurse were "clearly part of a Nurse 2 General's essentIal responsIbIlIty to be able to and to act m the role whIch has been aSSIgned to a Charge Nurse at thIS facIlIty" (p 17) As a result, the Board concluded that "we have not been satIsfied that the gnevors perform functIOns whIch go beyond those expected of a Nurse 2 General or RegIstered Nurse" The Board m Nichols also concluded that even If It was wrong about that, the gnevance faIled under the analYSIS found m Re OPSEU (Farrelly) and MinistlY of Correctional Services GSB No 424/96 (Draper) In that case, a gnevance for actmg pay 25 was demed because the gnevors had not taken on the same level of responsIbIlIty and accountabIlIty of the posItIOn they were seekmg. In Nichols the Board found that the gnevors were not assIgned to the posItIOn of Head Nurse smce "they dId not share the same level of responsIbIlIty accountabIlIty or overall functIOns of the Head Nurse" (p 17) Instead, the eVIdence showed "a large number of cntIcal functIOns of the Head Nurse are not undertaken or expected from a Charge Nurse" A SImIlar conclusIOn was reached m OSPEU (Noon) and Ministry of Community and Social Services GSB No 111/81 (McLaren) The gnevor whose responsIbIlItIes mcluded teachmg sWImmmg to developmentally and physIcally dIsabled students, actmg as lIfe guard and performmg dutIes related to the maIntenance and operatIOn of the pool, was put "m charge of the pool" dunng hIS supervIsor's absence and sought actmg pay for thIS aSSIgnment. The Board dIsmIssed the gnevance concludmg at p 3 The Gnevor IS not exercIsmg the core of the responsibIlItIes of the supervIsor those bemg the acceptance and use of authonty m the course of dIrectmg other employees For those reasons, It cannot be Said that the Gnevor IS "performmg the dutIes of a pOSItIOn" as reqUIred by ArtIcle 6 1 He IS dOIng some of the tasks but does not have the supervIsory authonty or responSIbIlIty Collins was also followed m Re OPSEU (Bulllock) and Ministry of Transportation, GSB No 699/87 (Fisher) In that case, It was determmed that approXImately 40% of the gnevors' tIme as Heavy EqUIpment Operator (REO) Ills was spent performmg the same task, mght patrol, as a general foreman, and the questIOn was whether they should be compensated as general foremen for the penod of tIme they performed that Job functIOn. RelYIng on Collins the Board held that "the Umon can only 26 succeed If m fact the dutIes perform by the REO III as Night Patrolmen, dId not constItute the Job of an REO III." Based on both the class standards and the posItIOn specIficatIOn for the REO III posItIOn, It was clear "that mght patrol dutIes are an mtegral part of the Job" Accordmgly the Board concluded that "they have not passed the first test m Collins, that IS, they have not shown that the work were domg was not already part of theIr own Job "(p 4) Finally m OPSEU (Decarrie) and MinistlY of Consumer & Commercial Relations GSB No 910/93 (Gray) the Board stated as follows m regard to actmg pay at p 11 It IS clearly not enough to show that the dutIes aSSIgned were not ones whIch the gnevor ordmanly performed. Nor IS It enough to show that the dutIes aSSIgned fell outSIde the descnptIOn m the POSItIOn SpeCIficatIOn for her home pOSItIOn and must therefore have been the dutIes of some other pOSItIOn. The Umon must show that that other pOSItIOn was "a pOSItIOn m a classIficatIOn WIth a hIgher salary maXImum," and that the gnevor was aSSIgned "the dutIes" of that pOSItIOn. In terms of what "the dutIes" wIthm then ArtIcle 6 1 meant, the Board concluded at p 21 as follows The thrust of all of the deCISIOn cIted to us IS that an employee cannot be Said to have been aSSIgned "the dutIes" of a pOSItIOn (or claSSIficatIOn) unless he or she had been aSSIgned all of ItS sIgmficant dutIes We agree WIth that approach. A Job whIch mcludes some but not all of the sIgmficant dutIes of a partIcular pOSItIOn mayor may not fall wIthm the same classIficatIOn as that partIcular pOSItIOn, but It wIll not be that pOSItIOn. (emphaSIS m ongmal) 27 My task IS to apply these standards to the facts m thIS matter At the outset, however I want to state that It IS qUIte understandable why thIS gnevance was brought. The eVIdence showed that 1997-98 was an mcredIble tIme m the Assessment Office for everyone The office was under a mandate to reassess all propertIes m the proVInce as to theIr value as of June 30 1996 an enormous undertakmg m the best of CIrcumstances But CIrcumstances were not the best m the London regIOn SInce approxImately ten NF As left the office at that tIme As a result, the more semor AFOs were called upon to do more mdependently than they had done before They often worked sIde-by-sIde wIth NF As Instead of Just "assIstmg" them TheIr work dId not seem to be at a "Jumor level" as ongmally envISIOned wIth the AFO Job But all of that does not mean that the gnevors are entItled to actmg pay as NF As for 1998 The nght to actmg pay under ArtIcle 8 1 1 depends on whether the dutIes the gnevors were reqUIred to perform were not part of the AFO Job but were Instead NFA dutIes and responsIbIlItIes It also depends on whether the gnevors were assIgned to perform all of the sIgmficant or core dutIes of the NF A pOSItIOn. As set out m Collins supra, the first element that the Umon must prove IS that the gnevors were "assIgned to a Job whIch was not part of [theIr] own Job" The eVIdence shows that some of the gnevors' responsIbIlItIes - mdependent valuatIOns and reassessments of reSIdentIal and farm propertIes - were part of the AFO Job Indeed, accordmg to Assessment CommISSIOner SmIth, the assessment of the less complex, but more numerous, reSIdentIal and farm propertIes was the pnme reason the AFO pOSItIOn 28 was created. The eVIdence also shows that AFOs may make the InItIal valuatIOn or reassessment of multI-resIdentIal, commercIal and mdustnal propertIes, subJ ect to reVIew What they cannot do IS mdependently valuate such propertIes That IS the work of an NFA. The eVIdence of the gnevors IS that the commercIal/industnal valuatIOns they performed were submItted for reVIew to a SenIor Assessor It may well be, as they testIfied, that a reVIew was not always done gIven the enormous pressures on the staff at the tIme But the fact that they were submItted for reVIew IS Important. It means that the AFOs were not dIrectly accountable for the final number AccountabIlIty would rest wIth the SenIor Assessor Nor m my VIew does the lImIted penod of tIme m late Apnl to early May 1998 when all assessment staff m the CIty of London, CommercIal/Industnal SectIOn - NF As, AFOs, and V As - had to submIt theIr valuatIOns to a SenIor Assessor for "venficatIOn and authonzatIOn" change the result. ThIs control process was only for a very lImIted tIme and was adopted shortly before the presentment of the roll to lImIt the potentIal number of cross-foot errors It dId not change the level of reVIew of the NF As or AFOs, or equate them It IS somewhat more dIfficult to determme whether reconsIderatIOns were part of the AFO Job A great deal of the gnevors tIme, as well as some NF As, was spent Involved m reconsIderatIOns There IS no mentIOn of It m the AFO or NF A posItIOn specIficatIOns 29 smce reconsIderatIOns were new m 1998 Part of the reconsIderatIOn process, ensunng that the valuatIOn was correct, was work that the AFOs had prevIOusly done Another part, negotIatmg WIth the taxpayer and commg to a settlement, subject to reVIew was a new and added responsIbIlIty The fact that reconsIderatIOns mvolved a new added responsIbIlIty does not mean that the gnevors are entItled to actIng pay as NF As If the work assIgned was beyond the class standard for a P A2 - and I make no rulIng on that Issue - It could mean that they were no longer properly classIfied. But the GSB no longer has jUTISdIctIOn over such matters See OPSEU (Rosamond) supra To receIve actmg pay the work mvolved In reconsIderatIOns must be consIdered NF A work. The eVIdence, however falls short of establIshmg that It was NF A work. Clearly It was NF A work to "defend the assessment of any property m the assIgned neIghbourhood at any jUdICIal level " ReconSIderatIOns were a new process mvolvmg an mformal dIscussIOn WIth the taxpayer to see If a dIspute about the assessment could be resolved mformally before formal reVIew Moreover It was optIOnal The formal reVIew mvolves a heaTIng before the ARB and that IS what the partIes' referred to as "domg" or "gOIng to courts" That process - formally defendmg the assessment before the ARB - dId not change WIth the new legIslatIOn. ReconSIderatIOns were assIgned to both the NF As and AFOs I cannot conclude that It was stnctly NF A work. 30 But even If reconsIderatIOns could be consIdered NF A work, as part of defendmg an assessment, the eVIdence does not establIsh that the gnevors were assIgned "all of [the] sIgmficant dutIes" of an NF A as set out m Decarrie supra They dId not mdependently valuate commercIal and mdustnal propertIes and they dId not defend valuatIOns before the ARB These are core dutIes of the NFA pOSItIOn, whIch the gnevors dId not perform The fact that some NF As also dId not do these thmgs IS not relevant legally although It clearly gave nse to the gnevors' belIef that they were domg the same work as some NF As for less pay I have no doubt that thIS occurred. But the assessment under ArtIcle 8 1 1 looks at whether an mdIvIdual employee IS "assIgned temporanly to perform the dutIes of a pOSItIOn m a classIficatIOn WIth a hIgher salary maXImum " It IS the "dutIes of a pOSItIOn" that matters, not what an mdIvIdual m that pOSItIOn may or may not be domg. Clearly some NFAs m the London regIOn, whIch outSIde of the CIty of London IS largely rural, may not perform many or Indeed, any commercIal valuatIOns LIkeWIse, some may not, m any gIven penod, attend court. But It IS the dutIes of the NF A pOSItIOn that matters under ArtIcle 811 and those dutIes mclude mdependent commercIal/industnal valuatIOns and attendIng courts, dutIes whIch the gnevors were not aSSIgned to perform For these reasons, I cannot conclude that the onus of establIshmg that the gnevors were entItled to actmg pay as NF As was met. Much of the work they were aSSIgned m 1998 was part of theIr Job as an AFO some appears to have gone beyond what they had done In the past but cannot be Said, on the balance of probabIlItIes, to be "NF A work." 31 Further they were not assIgned all of the core dutIes of an NF A, mcludmg mdependent commercIal/industnal valuatIOns or attendmg courts Accordmgly I cannot conclude that the gnevors were "assIgned temporanly to perform the dutIes of a pOSItIOn m a classIficatIOn WIth a hIgher salary maXImum " wIthm the meanIng of ArtIcle 8 1 1 In terms of Ms LIOttI, I also cannot conclude that she meets the reqUIrements for actmg pay under the collectIve agreement. Her work on the multIple regressIOn analysIs, as Important as It was, clearly falls wIthm the AFO pOSItIOn specIficatIOn m terms of "assIstmg m specIal projects and performmg other aSSIgnments m support of the assessment functIOn as reqUIred." It dId not constItute NF A work, nor dId the assessments she performed usmg that analysIs render her an NF A. For all of the foregomg reasons, the gnevances are dIsmIssed. Dated at Toronto thIS 24th day of August, 2000 {-/, i.brn?tEJ(j RandI Hammer Abramsky Vice-Chair 32