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HomeMy WebLinkAbout2000-0196.UnionGrievance.01-04-04 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EAIPLOYEES 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 #0196/00 OPSEU#00U008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Emplovees Umon (Umon Gnevance) Gnevor - and - The Crown III Right of Ontano (Management Board Secretanat) Employer BEFORE Owen V Gray V Ice-Chair FOR THE Ed Holmes, Counsel GRIEVOR Rvder Wnght, Blair & Dovle Barnsters and Sohcltors FOR THE Stephen Patterson, Counsel EMPLOYER Legal ServIces Branch Mimsm of CommunI~ and SocIal ServIces HEARING October 5 and December 6 2000 Written submIssIOns February 9 and March 2 2001 DECISION [1] In November 1999 the employer IRf:med two documentR to ItR manage ment One entItled (~Ulde To Job EvaluatlOn DecIRlOn-Makmg ProceRR, pre Rcnbed a management proceRR by whIch mternal decIRlOnR about claRRlficatlOn would be vetted before bemg adopted by the employer and commumcated to af fected employeeR, to enRure conRIRtency wlthm and acrORR mmIRtneR The other entItled 'Wntmg Job DeRcnptlOnR In The Modermzed Format For OPSEU JobR, gave mRtructlOn aR to wntmg Job deRcnptlOnR uRmg formR that were m Rome Ie RpectR, dIfferent from the formR uRed prevlOuRly for that purpORe For eaRe of ref erence thoRe documentR are referred to hereafter aR the (~ Ulde document and the Wntmg Job DeRcnptlOnR document reRpectIVely [2] In reRponRe to thoRe documentR, on January '31 2000 the umon gneved aR followR The UnIon grIeves that the Employer has contravened AppendIx 7 (I) by IntroducIng a modernIzed Job deSCrIptIOn format whIch Incorporates many of the factors and structure of the BUO Job deSCrIptIOn thereby contmumg the classIficatIOn overhaul process In adchtIOn, they have re-Introduced a Job evaluatIOn decIsIOn makIng process whIch IS sImilar to the consIstenCY valIdatIOn process used dUrIng the classIficatIOn overhaul. Settlement RequITed. I A DeclaratIOn that the modernIzed Job deSCrIptIOn format and Job evaluatIOn decIsIOn makIng process IS contrary to AppendIx 7 2. An Order that the Employer Instruct all MInIstrIeS to cease and desIst usmg the modernIzed Job deSCrIptIOn format and return to the Job deSCrIptIOn format prevIOusly used In the classIficatIOn system. '3 An Order that the Employer amend the Job evaluatIOn decIsIOn makmg process so that It complIes wIth the classIficatIOn grIevance procedure and Appenchx 7 BUO IR the partIeR Rhorthand for Bargammg Umt Overhaul, whIch they URe RynonymouRly wIth the phraRe claRRlficatlOn RYRtem overhaul m the preamble and firRt numbered paragraph of AppendIx 7 to the current collectIVe agreement 2 APPENDIX 7 CLASSIFICATION SYSTEM OVERHAUL ThIs confirms the agreement reached by the partIes dUrIng negotIatIOns wIth respect to the classIficatIOn system overhaul. (1) The classIficatIOn system overhaul shall be deferred for the duratIOn of thIS collectIve agreement, and for the perIod of ItS operatIOn. Issues ['3] The umon RaYR that management R nght to wnte Job C8RcnptIOnR and evaluate JobR IR fettered by AppendIx 7 whIch Rhould be mterpreted aR an illl- dertakmg by management not to change any aRpect of the eXIRtmg claRRlficatIOn proceRR The umon RaYR that the changeR complamed of m the gnevance are con trary to ArtIcle 7 becauRe they are a change from what had been done before and are remmIRcent of elementR of the BUO [4] The employer RaYR that the umon R mterpretatIOn of AppendIx 7 IR too broad. AppendIx 7 doeR not contemplate freezmg everythmg to do wIth claRRlfica tIOn. It freezeR only the eXIRtmg claRRlficatIOn RtandardR and the valueR attached by the partleR to the outcomeR of applymg thoRe RtandardR The employer RaYR that theRe are not changed by the documentR complamed of, and that the Imple mentatIOn of the gmdelmeR Ret out m thoRe documentR doeR not amount to pro ceechng wIth the BUO or altermg the eXIRtmg claRRlficatIOn RYRtem. Background [5] For mORt OPSEU repreRented pORltIOnR the applIcable cla'-'RlficatIOn RYR tern waR and IR a grade deRcnptIOn RYRtem, m whIch the Job to be evaluated IR compared aR a whole to pre-determmed RtandardR or gmdeR wntten m narratIVe termR JobR m the Office AdmmIRtratIOn (~roup (OA(~) however are evaluated uRmg a pomt ratmg RYRtem, m whIch each compenRable factor (knowledge RkIll, Judgement, accountabIlIty and group leaderRhlp) m the Job IR compared agamRt prevIOuRly defined and weIghted factor levelR m the RtandardR '3 [6] In AppendIx 1'3 to theIr 1992 9'3 collectIVe agreement, the partleR agreed that there waR a need for a long term RolutIOn to problemR mamfeRt m claRRlfim tIOn gnevanceR and m negotmtIOnR under what waR then ArtIcle 5 8 whIch pro vlded for determmatIOn of pay rateR when a new claRRlficatIOn waR created or an eXIRtmg claRRlficatIOn revIRed They agreed that thIR reqUIred overhaul of the bargammg umt Job evaluatIOn RYRtem then m place AppendIx 1'3 contemplated ach18vmg the needed overhaul through a Jomt proceRR, wIth a moratormm on claRRlficatIOn gnevanceR m the meantIme [7] In a Framework Agreement dated December 7 1994 the partIeR agreed to negotiate a new compenRatIOn RYRtem baRed on a pomt factor Job evaluatIOn methodology When the termR of the 1994 98 collectIVe agreement were finahzed m late March 1996 AppendIx 7 of that agreement replaced the earher Frame work Agreement It provIded that the employer would, m conRultatIOn wIth the unIOn, contmue and complete the development of the new claRRlficatIOn RYRtem, mcluchng the RIX (6) new claRRlficatIOn planR and aR much aR pORRlble of the fac tor modelR and related work already Jomtly completed [8] By the time negotIatIOnR for the current collectIVe agreement began m 1998 the employer had extended the pre-1996 Jomtly completed work to a pomt at whIch It had a claRRlficatIOn pIan for each of the RIX OPSEU bargammg umtR Each pIan Identified the factorR that would be treated aR RIgmficant m evaluat mg a Job m the bargammg umt to whIch It apphed, and a pomt RYRtemfor evalu atmg a Job on a factor by factor baRIR and arnvmg at a total pomt value for the Job The employer had not yet propoRed any pay planR by whIch a payment level or range would be aRRIgned to a Job baRed on ItR pomt value A pORltIOn deRcnp tIOn had been wntten for each Job however purportedly Rettmg out the relevant mformatIOn about the Job orgamzed m relatIOn to the apphcable factorR Each deRcnptIOn had been evaluated m accordance wIth the apphcable pIan, to arnve at an aRRIgnment of pomtR for the Job CopIeR of theRe evaluated Job deRcnptIOnR and evaluatIOnR had been gIVen to bargammg umt employeeR whoRe JobR they purported to deRcnbe About 10000 gnevanceR had been filed by employeeR, 4 each challengmg eIther the accuracy of the Job deRcnptlOn, the correctneRR of the aRRIgnment of pomtR m the evaluatlOn of the Job baRed on that deRcnptlOn, or both. A theme of at leaRt come of the gnevanceR waR there were mconRIRtencleR m the way Rlmllar JobR were deRcnbed or evaluated wlthm or acrORR MmIRtneR [9] On February 16 1999 the employer wrote to the umon aR followR February 16 1999 Ms Leah Casselman Ontano PublIc SerVIce Employees UnIOn 100 Lesmill Road North York, ON M38 3P8 Dear Ms Casselman. Re. InItIatIOn of \Va!!e Bar!!mmn!! EffectIve September 30 1998 the Employer Implemented the Bargammg Umt Overhaul (BUO) classIficatIOn system. In domg so employees were provIded wIth Job descnptIOns evaluated under the new system. It was antIcIpated that, In thIS round of bargmnmg pay plans would be negotIated for these posItIOns Mter careful consHleratIOn, and to address the concerns expressed by employees the umon and those of the Employer the Employer has decIded not to put forward pay plans related to BUO m thIS round of bargammg We propose to set aSIde the Beo for the duratIOn of the next collectwe agreement. Followmg llllplementatIOn of the system a sIgmficant number of employee complmnts were receIved regardmg the content of Job descnptIOns and InconsIstencIes m the evaluatIOn of like posItIons For example employees complamed of Job descnptIOns not beIng sufficIently detailed, and sImilar Jobs havmg cbfferent evaluatIOn results and pomt totals In conductmg the analYSIS reqUIred to prepare for wage bargmnIng It became clear that developmg reasonable and affordable pay plans would pose consHlerable cbfficultIes Salary ranges whIch would both cover most employees and be affordable m the long term would have resulted m. no across-the-board Increase for the hfe of the collectIve agreement: an mImecbate decrease m wages for 24.9% of employees no salary protectIOn for employees facIng a reductIOn, no mcrease for 50 3% of employees a one-tIme mcrease to base salary for 24.8% of employees upon llllplementatIon. Based on the above about one m four employees would have receIved pay decreases rangmg up to $11 81 per hour wIth an average of drop of $180 per hour No salary protectIOn would have been provIded. On llllplementatIOn of the BUO pay plans It would have been the Employer s posItIon that half of the workforce 50 3% of employees would not have receIved a pay Increase 5 It would have been the Emplovers posItIon that only about one In four employees would receIve a sIngle Immechate pay Increase Increases would have been lImIted to those employees whose eXIstIng rates are lower than the nlllllmum rates In the new pay plan. The extent of theIr mcrease would have been to Increase theIr pay to the nllnImum rates of the new plan. Increases would not have been evenly dIstributed. At the same tIme consHlerable resources would have been requIred bv both the Emplover and OPSEU to address employee complamts and IdentIfied mconSI stencIes The Emplover IS comnlltted to negotIatmg a collectIve agreement whIch reflects both the mterests of ItS employees and the publIc We belIeve the best way to do so IS to retmn the current classIficatIOn system for thIs next agreement and to table a proposal for across the-board pay Increases and performance pay \Ve are confident we will be able to engage In meanmgful and productIve clIscussIOns wIth you and look forward to dOIng so Yours sIncerely Kevm Wilson DIrector EmphmuR haR been added to the portlOnR of thIR letter on whIch the umon par tIcularly relIeR m Rupport of ItR pORltlOn that AppendIx 7 amountR to agreement that the current claRRlficatlOn RYRtem wIll remam m force unaltered many re Rpect [10] The effect of management R decIRlOn not to proceed wIth the BUO and re lated IRRueR waR aldreRRed m a document that MBS clrculated to managerR to aRRIRt them m anRwermg employee queRtlOnR durmg negotIatlOnR (Although managerR were mRtructed that the document waR not to be dIRtnbuted to Rtaff, OPSEU obtamed a copy) The queRtlOnR and anRwerR Ret out m that document mcluded theRe Q3 Does thIS mean posItIons won t be based on pOInts? A3. Yes The eXIstmg classIficatIOn system will stay m effect for the duratIOn of the next collectIve agreement Q4. Does thIS mean we go back to the Job deSCrIptIOns that had already been done m the old format? 6 A4. Yes The format and content of those Job descnptIOns matches the evaluatIOn requIrements of the eXIstmg svstem. The emplover IS revIewIng the Impact on anv new/changed Jobs whIch have been described onlv m the new BUO format [11] In concluchng theIr collectIVe agreement, the partleR agreed on a wage Rtructure premIRed on the eXIRtmg claRRlficatIOn RYRtem. They amended Appen chx 7 to read aR quoted m paragraph [2] of thIR decIRIOn. After the collectIVe agreement waR concluded, there waR Rome uncertamty about what Rhould b>, come of the gnevanceR that had been filed m reRponRe to the Job deRcnptIOnR and evaluatIOnR prepared for purpOReR of the BUO In late October 1999 the partIeR agreed that thoRe gnevanceR would be held m abeyance at theIr current Rtage of the gnevance proceRR penchng reRolutIOn of the claRRlficatIOn RYRtem overhaul project (BUO) whIch haR been determmed by AppendIx 7 to be deferred for the duratIOn of thIR collectIVe agreement and for the penod of ItR operatIOn. [12] AR noted earlIer m November 1999 the employer IRRued the two docu mentR that prompted thIR gnevance [13] The current agreement provIdeR aR the preVIOUR one chd, that unreRolved mclIvldual gnevanceR about the propnety of a claRRlficatIOn may be referred to the Jomt SYRtem SubcommIttee ("JSSC") for reRolutIOn. 22.12 CLASSIFICATION 22 12 I An employee who alleges that hIS or her posItIon IS Improperly classIfied may dISCUSS hIS or her clalm wIth hIS or her Immechate superVIsor at any tune provIded that such chscussIOns shall not be taken Into account In the apphcatIOn of the tune hnuts set out In ArtIcle 22. An employee however shall have the nght to file a gnevance In accordance wIth the gnevance procedure specIfYIng In hIS or her gnevance what classIficatIOn he or she clauns 22 12 2 A classIficatIOn gnevance as provIded m ArtIcle 22.12.1 whIch has not been resolved by the end of Stage 2 of thIS gnevance procedure may be referred to the Jomt System SubcommIttee (JSSC) provIded m AppendIx 7 (Cla'lsrl'icatIOn System Overhaul) of thIS Agreement for final resolutIOn. The JSSC may decIde on any grIevance referred to It Where the partIes at the JSSC concur theIr decIsIOn shall be bmchng on the partIes and any affected employee Where the partIes at the JSSC do not concur the matter shall remam unresolved unless and until concurrence IS reached. 7 2212'3 The Employer upon wntten request eIther by the employee or by the Umon shall make available all mformatIOn and provIde copIes of all documents whIch are relevant to the gnevance "Guide To Job Evaluation Decision-Making Process" [14] The Gmde document preRcnbeR procedureR to be followed wlthm man- agement m commg to management decIRlOnR about claRRlficatlOn. It IdentifieR m general termR who wIll be mvolved m the decIRlOn-makmg proceRR on behalf of management, wIth emphaRIR on conRultatlOn and commIttee procedureR to Ell Rure conRIRtency wIthIn and acrORR MIlllRtneR on Job evaluatlOn IRRueR The ID- ternal proceRR It deRcnbeR mcludeR groupR called MmIRtry ConRIRtency Team and CroRR MmIRtry ConRIRtency Team. [15] The Ulllon R wltneRR teRtIfied that the Ulllon R concern about thIR waR that the mtroductlOn of thIR Rtructure would bmld delaYR mto the employer reRponRe to claRRlficatlOn gnevanceR and complamtR It waR alRo concerned that the lP moved authonty regarchng claRRlficatlOn problemR from the local level, RO that HR locally would have to defer to another body She further teRtIfied that there had been a proceRR m the BUa that mvolved a ConRIRtency EvaluatlOn CommIt tee and the Ulllon waR concerned that the employer waR mtroducmg a Rtructure remmIRcent of a Rtructure m the BUa "Writing Job Descriptions In The Modernized Format For OPSEU Jobs" [16] The Wntmg Job DeRcnptlOnR document begmR wIth thIR Rtatement of ItR purpoRe The purpose of these gUIdelInes IS to provIde InformatIOn and gUHlelmes for- wrItmg and echtmg OPSEU Job descnptIOns m the modermzed format developed for both the 6150 and the 6150(OAG) and use of relevant Job mformatIOn In BUO descnptIOns when prepanng OPSEU Job descnptIOns The modernIzed format should be used whenever updatIng eXIstIng or preparmg new Job descnptIOns for OPSEU Jobs 8 Bua deRcnptIOnR are the Job deRcnptIOnR that were prepared for purpOReR of the BUa The document deRcnbeR the modermzed format thIR way' 2. MODERNIZED FORMAT a) Purpose of the modernized format The update IS pnmarily to facilItate a change to describmg some of the mformatIOn about Jobs m the form of factors It will make the format more consIstent WIth current Job descnptIOn wntIng practIces and more consIstent WIth how other Jobs m the OPS are described. The modermzed format IS generally very SImilar to the eXIstmg format b) Components of the modernized format The modernIzed format Includes the followIng maIn sectIOns (the InformatIOn requIred In each sectIOn IS explamed later In more detail) I POSItIon mformatIOn tItle number locatIOn, etc 2. Purpose of pOSItIon why the pOSItIon eXIsts In the orgamzatIOn '3 DutIes & responsibihtIes a senes of statements whIch charactenze the mam dutIes and responsibilItIes of the Job 4. Staffing and hcensmg reqmremen ts statutory hcensIng/certIficatIOn requIrements 5 Knowledge areas and types of knowledge reqmred to carry out the Job 6 Skills reasonIng communIcatIOn, mterpersonal and other skills cntIcal to carrymg out the Job 7 Freedom of ActIOn degree of Inclependent actIOn requIred by the Job 8 SIgnatures sIgnatures of appropnate managers approvIng the Job descnptIOn 9 Class AllocatIOn HlentIficatIOn of the class level assIgned to the Job and the ratIOnale for the deCISIOn [17] The form m URe up to thIR time form 6150 lIkewIRe began WIth tombRtone pORltIOn InformatIOn m a RectIOn numbered 1 followed by a PurpoRe of pORltIOn RectIOn numbered 2 The thIrd RectIOn of the aId form waR entItled DutIeR and related taRkR In thIR RectIOn the form aRked that the percentage of tIme Rpent on each taRk be IdentIfied m thIR RectIOn, and mORt Job deRcnptIOnR m the aId format clId mclude percentageR The heaclIng on the fourth RectIOn of the aId form waR SkIllR and knowledge reqUIred to perform Job at full workmg level (IndIcate mandatory hcenceR or credentIalR If applIcable) The aId form ended, aR the new one doeR, WIth SIgnatureR and ClaRR AllocatIOn RectIOnR 9 [18] In both the aId form and the new one contemplated by Wntmg Job DeRcnptIOnR the ClaRR AllocatIOn RectIOn IR where the Evaluator IR to record the claRRlficatIOn he or Rhe aRRIgnR and the ratIOnale for that claRRlficatIOn. In both the aId and the new form, the Evaluator RtateR m thIR RectIOn that Rhe or he haR claRRlfied the Job m accordance wIth the CIVll ServIce ClaRRlficatIOn StandardR Wntmg Job DeRcnptIOnR doeR not purport to change the eXIRtmg CIVll ServIce ClaRRlficatIOn StandardR m any way [19] The modermzed format abandonR the blanket reqUIrement that each and every duty be aRRIgned a percentage of tIme regardleRR of the relevance of Ruch mformatIOn under the apphcable claRR Rtandard In that reRpect, Wntmg Job DeRcnptIOnR RaYR thIR 3. WRITING OPSEU JOB DESCRIPTIONS d) Percentage of Time There IS no sp eCIfic reqUIrement for assIgmng a percentage of tIme to each of the duty and responsibilIty statements lIsted m SectIOn '3 of the Job descnptIOn. However In some Instances the percentage of tIme requIred to perform certam types of dutIes or responsibihtIes (e g. tune spent operatIng specrl'ic eqUIpment) IS relevant to the applIcatIOn of partIcular class standards \Vhen evaluatmg Jobs related to these class standards It IS necessary to reflect the percentage of tIme spent on these dutIes The percentag e of tIme may be mchcated wIthm the statement about that partIcular duty For example the class standards m the HIghway EqUIpment Operator class senes are partly drl'ferentIated on the basIs of the percentage of tIme spent on operatIng a certmn type of equIpment In thIS case the Job descnptIOn should mclude a duty statement about the type of equIpment operated and Include mentIOn of the percentage of tune spent operatIng that eqUIpment. [20] Wntmg Job DeRcnptIOnR preRcnbeR a change m the other dutteR aR a'-' RIgned language almoRt mvanably found m Job deRcnptIOnR wntten m the aIder format 3. WRITING OPSEU JOB DESCRIPTIONS e) Other dutIes/responsibilItIes as reqUIred The modermzed format for OPSEU Job descnptIOns will contam, as part d' the form, the followmg message Managers have the nght to assIgn 10 adchtIOnal du tIes ThIs message will replace the prevIOuslv emploved dutv statement Other DutIes as assIgned [21] Wntmg Job DeRcnptIOnR haR thIR to Ray about the URe of mformatIOn from the BUO data to prepare operatIVe OPSEU Job deRcnptIOnR 3. WRITING OPSEU JOB DESCRIPTIONS f) ConsHleratIOns when usmg BUO mformatIOn \Vhen uSIng InformatIOn from the BUO data to prepare OPSEU Job descnptIOns the followIng should be consHlered. IS adchtIOnal Job InformatIOn requIred to evaluate the Job agmnst the relevant class standards? It IS Important to note that some class senes use very specIfic Job detail as a basIs for chfferentIatmg between class levels When evaluatmg Jobs related to these classes It IS Important to ensure that the relevant Job InformatIOn IS mcluded In the descnptIOn. The document goeR on to gIVe exampleR of RltuatIOnR m whIch adchtIOnal mfor matIon would hkely be neceRRary to determme the appropnate claRR level wlthm a claRR Rtandard. [22] The umon R wltneRR teRtIfied that the umon waR concerned about the ref erenceR In the Wntmg Job DeRcnptIOnR document to the BUO and BUO Cp RcnptIOnR The concern, Rhe Raid, waR that the language of the document ap- peared to authonze a manager to tranRpoRe mformatIOn from the BUO deRcnp tIOn to the operatIVe Job deRcnptIOn wIthout lookmg at what the employee waR actually domg currently The umon waR alRo concerned that JobR would be de Rcnbed m the form of factorR and that Job dutIeR would not be ranked by per centage or otherwIRe to Rhow whIch were key dutleR It IR concerned wIth the Rphttmg up and expanchng of the old fourth RectIOn on Knowledge and RkIllR partlcularly becauRe Freedom of ActIOn and other wordR uRed m thIR connec tIOn were uRed to deRcnbe compen7Rable factorR m the BUO evaluatIOn RYRtem. [23] The umon R wltneRR teRtlfied that changmg other dutIeR aR a,;RIgned to managerR have the nght to aRRIgn adchtIOnal dutIeR had come up durmg dIR CURRIOnR of the BUO The umon underRtood other dutleR aR aRRIgned to mean 11 dutleR related to the Job The employer had Raid the new language meant the Rame thmg Rhe Raid, but the umon Raw It aR a change nevertheleRR In thIR con- text, the umon ReeR It aR a change to Romethmg that waR part of the BUa [24] In croRR-exammatIOn, the umon R wltneRR acknowledged that whlle the factorR m the modermzed Job deRcnptIOn format were factorR common to all of the 6 evaluatIOn planR m the BUa there were factorR me ach of thoRe RIX evalua tIOn planR that are not mcluded m the modermzed Job deRcnptIOn format For example each of the 6 BUa evaluatIOn planR mcluded PhYRlcal ExertIOn and DIRagreeable and HazardouR Workmg ConchtIOnR aR compenRable factorR ThoRe are not addreRRed m the modermzed Job format [25] The employer R wltneRR teRtIfied that when attentIOn Rhlfted from the BUa back to the eXIRtmg claRRlficatIOn RYRtem, MmIRtneR were concerned about eXIRtmg Job deRcnptIOnR that were 5 to 10 yearR old wIth reRpect to pORltIOnR that had changed m the meantime and for whIch the more recently wntten BUa de RcnptIOnR were (m theIr VIew) more accurate There waR a concern about how mmIRtneR would update the eXIRtmg deRcnptIOnR partlcularly aR trammg wIth reRpect to wntmg ob deRcnptIOnR for the eXIRtmg RYRtem had not been delIvered wldely durmg the yearR m whIch claRRlficatIOn reform had been the partleR D CUR [26] The employer R wltneRR teRtIfied that whlle a lot of grade deRcnptIOnR m the eXIRtmg claRRlficatIOn RtandardR have charactenRtIc dutIeR and qualIfirntIOnR and RkIllR a lot of newer claRR RtandardR wntten between 1988 and the mId 1990R have factorR aR we 11. AdchtIOnally claRReR eRtablIRhed after CECBA reform for prevIOuRly excluded 'management pORltIOnR uRed a benchmark approach m whIch factorR are Identified. The modermzatIOn of the format for Job deRcnptIOnR waR meant to take all thIR mto account Management belIeved that wntmg Job deRcnptIOnR m thIR new way would generally make It eaRler to apply the eXIRtmg claRR RtandardR but mmIRtneR were told that where the older more narratIVe approach waR more appropnate to an evaluatIOn agamRt the eXIRtmg RtandardR they Rhould contmue to uRe It A blanket expectatIOn that a percentage of tIme 12 Rpent would be aRRIgned to each Job duty waR not contmued becauRe m many JobR a meanmgful aRRIgnment waR chfficult to make and would not be RIgmficant m applymg the relevant claRR Rtandard. She noted that where Ruch percentageR would be RIgmficant m evaluatmg a Job that mformatIOn Rhould be mcluded [27] AR for the BUO deRcnptIOnR the employer R wltneRR teRtlfied to the effect that Job factR gathered m the BUO proceRR could be uRed m updatmg Job deRcnp tIOnR under thIR RYRtem If they were accurate ManagerR were not oblIged to URe the BUO deRcnptIOnR, Rhe Raid ManagerR were cautIOned that mformatIOn m thoRe deRcnptIOnR, however accurate mIght not be Ruffic18nt for a proper evalua tlOn nnder the eXIRtmg RYRtem. For example It waR not neceRRary under the BUO RYRtem to Rpeclfy the number of perRonR RupervIRed by pORltIOn, but thIR mformatIOn mIght be crucIal to applIcatIOn of the group leader factor m OAG po RltIOnR under the eXIRtmg OA(~ claRRlficatIOn RYRtem. She Rtated that MmIRtneR have been cautIOned not to Rlmply prmt off the BUO deRcnptIOn, that that de RcnptIOn IR not the officIal deRcnptIOn under the eXIRtmg RYRtem. She empha Rlzed that a pORltIOn deRcnbed m the modermzed format IR RtIll evaluated m ac cordance wIth the eXIRtmg OA(~ or grade deRcnptIOn RtandardR Decision [28] The umon argueR that Article 7 precludeR the employer from changmg anythmg that IR part of the eXIRtmg claRRlficatIOn RYRtem. The employer doeR not dIRpute that by agreemg to defer the claRRlficatIOn RYRtem overhaulIt agreed to retam the eXIRtmg claRRlficatIOn RYRtem. The partIeR dIRpute IR about what claRRlficatIOn RYRtem embraceR m thIR context RO aR to preclude ItR change It certamly EmbraceR the RtandardR by whIch OPSEU lRrgammg umt JobR are evaluated m order to cla"Rlfy them. That IR clearly the core of the claRRlficatIOn RYRtem. At an OppoRlte extreme no one would Ren"Ibly RuggeRt that ArtIcle 7 precludeR the employer from changmg the kmd of the paper on whIch claRRlfica tIOn decIRIOnR are wntten, or the RupplIer of that paper or the meanR by whIch the text of thoRe decIRIOnR IR Imprmted on the paper The partIeR Rurely chd not 1'3 mtend to preclude the employer from changmg thmgR that are m Rome colloqmal RenRe part of the RYRtem If the changeR could have no effect on claRRlficatlOn RtandardR or outcomeR [29] Further although thoRe who make claRRlficatlOn decIRlOnR on the EID- ployer R behalf are part of the RYRtem m a very real RenRe the partleR Rurely chd not mtend to freeze m place the partIcular mchvldualR who were makmg claRRlfimtlOn decIRlOnR on the employer R behalf when the collectIVe agreement came mto effect, RO that only thoRe mchvldualR could make Ruch decIRlOnR for the hfe of the agreement Although the IchoRyncraRleR of the mchvldualR makmg thoRe decIRlOnR may have an effect on claRRlficatlOn outcomeR m practice thIR would be deRplte the claRRlfimtlOn RYRtem rather than becauRe of It Changmg the IdentIty of the mchvldualR who make claRRlficatlOn decIRlOnR under the pre eXIRtmg claRRlficatlOnR RYRtem doeR not amount to a fmlure to defer the BUa contrary to Article 7 In RO far aR that IR eRRentmlly what the mRtructlOnR m the G mde document do the ImplementatlOn of thoRe mRtructlOnR IR not a breach of Article 7 ['30] The umon argueR that the proceRR provIded for m the (~mde document undermmeR or vlOlateR the gnevance proceRR by mtroducmg delaYR mto It The employer noteR that the decIRlOn-makmg proceRR deRcnbed m the (~mde takeR place before a claRRlficatlOn decIRlOn IR made whereaR a gnevance would neceR Ranly be m reRpect of a claRRlficatlOn decIRlOn already made Implymg that the gnevance proceRR would thuR be unaffected by the new mternal decIRlOn makmg proceRR. ['31] There IR no eVIdence before me about how the JSSC proceRR workR m prac tIce Certamly one would expect memberR of the JSSC on both RIdeR to be concerned about the conRIRtency of claRRlficatlOn decIRlOnR, and that that concern mIght contnbute to the length of theIr dehberatlOnR It IR not apparent that the employer haR conRtramed ItR repreRentatIveR on the JSSC to have any decIRlOn they mIght make on a gnevance vetted through the proceRR contemplated by Gmde To Job EvaluatlOn ProceRR Even If :It: haR the eVIdence doeR not eRtab- 14 lIRh that thIR wIll neceRRanly delay the proceRR by companRon wIth whatever took place before the proceRR contemplated by the G mde document waR Intra duced Fmally I note that the collectIVe agreement prOVIRIOn for mnRlderatIOn of gnevanceR at the JSSC doeR not Rpeclfy tIme frameR for ItR proceRRmg of gnev anceR In the abRence of bad faith, of whIch there IR no eVIdence here I am not perRuaded that any delay that IR the conRequence of bona fide effortR by eIther party to enRure conRIRtency m claRRlficatIOn outcomeR would be wIthout more a breach of that gnevance reRolutIOn proceRR or of the agreement to defer the BUa ['32] I accept the employer R argument that for purpOReR of aRReRRmg whether It haR changed the claRRlficatIOn RYRtem, forma 1 Job deRcnptIOnR are properly thought of aR mputR to the claRRlficatIOn RYRtem rather than aR an element of the RYRtem ItRelf. StandarchzatIOn of the form m whIch Job deRcnptIOnR are wntten for mput mto the RYRtem hopefully contnbuteR to efficlencleR m the creatIOn and evaluatIOn of the deRcnptIOnR, but wIll not change the claRRlficatIOn RYRtem ItRelf unleRR It reRultR m the deRcnptIOnR bemg mcomplete or maccurate It IR not clear from the umon R eVIdence or argument how the changeR of form complamed of would affect claRRlficatIOn outcomeR If the content of a Job deRcnptIOn IR accu rate and complete the form m whIch It IR preRented Rhould not affect the apph catIOn or outcome of the eXIRtmg claRRlficatIOn RYRtem. ['33] Havmg regard to the Wntmg Job DeRcnptIOnR document and the em- ployer R eVIdence and repreRentatIOnR about It m thIR proceechng the modermzed Job deRcnptIOn format only makeR and waR only mtended to make changeR of form, not RubRtance ThoRe who wnte the Job deRcnptIOnR mURt RtIll mclude the mformatIOn neceRRary to apply the eXIRtmg claRRlficatIOn RYRtem. It IR that RYR tern, not the RYRtem contemplated by the BUa that IR to be applIed to the Job de RcnptIOn. Nothmg m the eVIdence RuggeRtR that there are any ClrcumRtanceR m whIch a Job deRcnptIOn wntten m accordance wIth the gmdelmeR m Wntmg Job DeRcnptIOnR would be dIfferent m RubRtance from one wntten m the older for mat, or by deRIgn reRult m a dIfferent claRRlficatIOn decIRIOn under the eXIRtmg claRRlficatIOn RYRtem. When all the explanatory matenal m that document IR 15 taken mto account nothmg about the newer format IR lIkely to caURe mIRdeRcnp tIOn of a Job m Rome reRpect that would be matenal to the outcome of a claRRlfica tIOn deClRIOn. ['34] The umon IR concerned that the mRtructIOnR m Wntmg Job DeRcnptIOnR wIll encourage managerR to take Job deRcnptIOnR prepared for the BUa and tranRcnbe them wIlly mlly onto the new form wIthout regard to whether they are an accurate and complete baRIR for a claRRlficatIOn decIRIOn under the eXIRt mg claRRlficatIOn RYRtem. Properly reacl, the mRtructIOnR do not encourage that behavIOur they dIRcourage It If despl.te management R mRtructIOnR managerR do what the umon fearR and feed maccurate and mcomplete Job deRcnptIOnR mto the current claRRlficatIOn RYRtem on the new formR, then that wIll be caURe for complamt, JURt aR It would be If they chd that uRmg the old formR ['35] The umon IR alRo concerned that the change from the old other dutleR aR aRRIgned language to the new managerR have the nght to aRRIgn adchtIOnal du tIeR language haR Rome RubRtantlVe effect In adchtIOn to the repreRentatIOn re ferred to m paragraph [2'3] above the umon haR the benefit of the employer R repreRentatIOnR m thIR proceechng that none of the changeR provIded for m the Wntmg Job DeRcnptIOnR document makeR or IR mtended to make a RubRtantlVe change to the claRRlficatIOn RYRtem The Rame 10gIC applIeR to the new language aR to the old neIther phraRe could be relIed upon to relIeve the employer from the RtnctureR of the claRRlficatIOn and pay RYRtem contemplated by the collectlVe agreement ['36] I am RatIRfied that the ImplementatIOn of the mRtructIOnR m Wntmg Job DeRcnptIOnR IR not a change of the eXIRtmg claRRlficatIOn RYRtem or a breach of Article 7 ['37] My finchngR that the employer haR not changed the claRRlficatIOn RYRtem or breached ItR agreement to defer ImplementatIOn of the BUa are logIcally Ruf fic18nt to dIRpoRe of the gnevance From a labour relatIOnR perRpectlVe however I thmk It IR Important to deal WIth one other IRRue that arORe m argument 16 ['38] One of the concernR expreRRed by the umon aR a reaRon for filmg and pur RUIng thIR gnevance waR that the employer Rhould be held to the bargam It made m ArtIcle 7 of the collectIVe agreement In the alternatIVe to argumentR that I have eRRentIally accepted, the employer argued that If It chd breach paragraph 1 of Article 7 or otherwIRe purport to change the eXIRtmg claRRlficatIOn RYRtem, the (~SB would be wIthout ]unRchctIOn to remedy the breach becauRe of par agraph 1 of RectIOn 52 of the Croll'n Emplovees Collectwe Ba.rga.unng "4ct, 199'3 S 0 199'3 c '38 aR amended ("CECBA) The employer R aRRertIOn that that Rtatute permltR It to umlaterally alter the claRRlficatIOn RYRtem wIth totalImpumty IR certam to have adverRely affected the partIeR labour relatIOnR, and unneceRRanly RO If It IR untrue The IRRue waR argued by way of Rupplementary wntten RubmIRRIOnR Havmg concluded that RectIOn 52 of CECBA doeR not have aR broad a reach aR the employer RuggeRtR I thmk It IR Important to Ray RO m thIR decIRIOn. ['39] SectIOn 52 of CECBA mURt be read together wIth RectIOn 51 Part \ GRIE\ ANCE SETTLEMENT BOARD 51 An order of the Gnevance Settlement Board shall not reqUIre the creatIOn of a new classIficatIOn of employees or the alteratIOn of an eXIstIng classrl'icatIOn. (2) An order of the Gnevance Settlement Board shall not reqUIre a change to be made In the classIficatIOn of an employee PART VI MISCELLANEa US General 52. (I) A prOVISIOn m an agreement entered mto that provIdes for the deternllnatIOn bv an arbItrator a board of arbItratIOn or another tribunal of any of the followmg matters IS VOId. I A classIficatIOn system of employees Incluchng creatIng a new classIficatIOn system or amenchng an eXIstIng classIficatIOn system. 2 The classIficatIOn of an employee Incluchng changIng an employee S classIficatIOn. [40] The Rcheme of CECBA IR that nghts dIRputeR - that IR, dIRputeR anRmg from the mterpretatIOn, applIcatIOn, or alleged vIOlatIOn of a collectIVe agreement 17 - are to be referred to the Gnevance Settlement Board ("GSB") for final and bmdmg Rettlement by arbItratIOn. CECBA RubRectIOn 7('3) In the reRult, the GSB IR the only tnbunal to whIch Ruch nghtR dIRputeR may be referred. MatterR relatmg to the GSB'R ]unRchctIOn m Ruch matterR are addreRRed m Part V of the Act, where RectIOn 51 IR found SectIOn 51 ImpOReR hmltR on the remecheR that the (~SB may order If It findR that the employer haR breached the prOVIRIOnR of the colle ctIVe agreement It doeR not otherwIRe preclude enforcement of collectIVe agreement prOVIRIOnR concermng or Involvlng claRRlficatIOn ma tterR [41] SectIOn '3 of CECBA provIdeR that the partleR may agree m wntmg to vol untary lnterest arbItratIOn - that IR referral to an arbItrator or board of arbltra tIOn of all matterR remammg unRettled m collectIVe bargammg for final and bmchng determmatIOn. ArbItratIOn to RettIe the termR of a collectIVe agreement (aR oppoRed to arbItratIOn to mterpret or enforce the Rettled termR of a collectIVe agreement) IR the only Rort of arbItratIOn m whIch an arbItrator a board of arb tratIOn or another tnbunal other than the GSB could be engaged I therefore conclude that determmatIOn m RectIOn 52 referR to the Rort of determmatIOn that an mtereRt arbItrator or arbItratIOn board makeR when Rettlmg the termR of a collectIVe agreement SectIOn 52 makeR unenforceable any agreement to confer on an arbItrator a board of arbItratIOn or another tnbunal" the ]unRchctIOn to RettIe IRRueR that the partIeR have been unable to RettIe themRelveR m collectIVe bargammg concernmg a claRRlficatIOn RYRtem of employeeR mcluchng creatmg a new claRRlficatIOn RYRtem or amendmg an eXIRtmg claRRlficatIOn RYRtem. It doeR not prohIbIt collectIVe bargammg on thoRe Rub]ectR nor doeR It purport to make unenforceable any prOVIRIOn about whIch the partIeR come to agreement on thoRe Rub]ectR m collectIVe bargammg (other than a prOVIRIOn to refer the IRRueR to Hl tereRt arbItratIOn) [42] Accordmgly I agree wIth the umon R RubmIRRIOn that neIther RectIOn 51 nor RectIOn 52 of CECBA would preclude the GSB from makmg an order reqmr mg that the employer comply wIth ArtIcle 7 If Ruch a remedy were warranted. Enforcmg the partleR own agreement on a claRRlficatIOn RYRtem doeR not amount 18 to determmatlOn of a claRf:nficatlOn RYRtem m the RenRe mtended by RE'C tlOn 52 of CECBA. Subject to RectlOn 51 and to the prOVIRlOnR of the collectIVe agreement tRelf, the GSB doeR have JunRchctlOn to enforce prOVIRlOnR that the partleR have made m theIr collectIVe agreement preRcnbmg the claRRlficatlOn RYRtem to be uRed m determmmg compenRatlOn for bargammg umt employeeR [43] Smce I have concluded that the employer conduct complamed of chd not contravene the collectIVe agreement, thIR gnevance IR dIRmIRRed Dated at Toronto thIR 4th day of Apnl, 2001 ~v~ Owen V (~ray VIce-Chair 19