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HomeMy WebLinkAbout2002-1806.Foreman et al.05-03-31 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-1806 2002-1789 2002-1985 2002-1986 2002-1989 2002-1991 2002-1992 UNION# 2002-0104-0002, 2002-0104-0004 2002-0104-0005 2002-0104-0006 2002-0104-0007 2002-0104-0013 2002-0104-0014 2002-0104-0015 2002-0104-0016 2002-0104-0017 2002-0104-0013 2002-0104-0019 2002-0104-0012,2002-0104-0010 2002-0104-0008 2002-0104-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (F oreman et al ) Union - and - The Crown In RIght of Ontano (Mimstry of EducatIOn) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION Nelson Roland Barnster and SOlICItor FOR THE EMPLOYER Kelly Burke Semor Counsel MeredIth Brown, Counsel Management Board Secretanat HEARING October 7 2004 & March 2, 2005 2 DeCISIon The gnevors are all unclassIfied ResIdentIal Counselor 2's wIth the Mimstry of EducatIOn. TheIr IndIVIdual gnevances allege that the Employer has vIOlated ArtIcle 32 6 1 of the collectIve agreement "by faIlIng to pay me the rate eqUIvalent to the rate eqUIvalent to the cIvIl servIce classIficatIOn for the work I am performIng." ArtIcle 32 6 1 provIdes as follows 32.6 WAGES 32 6 1 The rate of the eqUIvalent cIvIl servIce classIficatIOn shall apply If there IS no eqUIvalent classIficatIOn the rate shall be set by the Mimstry and the Umon shall have the nght to negotIate the rate dunng the appropnate salary negotIatIOns The Employer has raised a prelImInary obJ ectIOn to the Board's JunsdIctIOn to hear these gnevances SpecIfically It asserts that they are dIsgUIsed classIficatIOn gnevances over whIch the Board has no JunsdIctIOn. Facts The folloWIng facts were accepted for the purposes of the Employer's prelImInary motIOn. The Mimstry operates a number of resIdentIal schools for students wIth developmental dIfficultIes and dIsabIlItIes, IncludIng deafness, blIndness, learmng dIsabIlItIes, and attentIOn deficIent and hyperactIve dIsorders One of these schools IS the Roberts/Amethyst School, located In London, Ontano The gnevors are all unclassIfied ResIdentIal Counselor 2's, employed on a seasonal basIs, at the Roberts/Amethyst School ArtIcle 32 2 1 of the collectIve agreement defines a seasonal employee as "an employee appoInted for a penod of at least eIght (8) consecutIve weeks to an annually reCUrrIng full-tIme posItIOn In the unclassIfied servIce In a mImstry " 3 It IS the assertIOn of the Umon that "contrary to ArtIcle 326 1 the wage eqUIvalency must be, gIven the real dutIes of the gnevors, that of those paid to the ChIld Care Worker (CCW 2's) employed at the Roberts/Amethyst School along wIth the gnevors " It asserts that Instead of beIng paid at the rate of classIfied ResIdent Counselor 2's, the gnevors should be paid the CCW 2 rate That classIficatIOn, In the Umon' S VIew IS the "eqUIvalent cIvIl servIce classIficatIOn" for the gnevors The Employer asserts that the "eqUIvalent cIvIl servIce classIficatIOn" under ArtIcle 326 1 for the gnevors IS the classIfied ResIdentIal Counselor 2 posItIOn. It dIsputes that the gnevors perform dutIes eqUIvalent to those of the CCW 2's In ItS partIculars to the Employer the Umon revIewed, In great detaIl, why It asserted that "the gnevors' dutIes encompass vIrtually the same dutIes of the CCW 2's" and In fact, exceeded them It extensIvely went through the respectIve dutIes of the two posItIOns, theIr mandates and purposes and theIr posItIOn specIficatIOns The Employer In ItS reply to the Umon's partIculars, vIewed the two posItIOns as sIgmficantly dIfferent, InvolvIng separate and dIStInCt programs and Job functIOns On October 1 2002, close to the tIme that the Instant gnevances were filed, a number of classIfied ResIdentIal Counselor 2's employed at the Roberts/Amethyst School filed classIficatIOn gnevances under ArtIcle 22 12 of the collectIve agreement, allegIng that they perform "[the] work ofa ChIld Youth Worker 2" That matter IS now pendIng before the JOInt System SubcommIttee (JSSC) 4 ArtIcle 22 12, ClaSSIficatIOn, provIdes that an employee who alleges that hIS or her posItIOn IS Improperly classIfied may file a gnevance, but that If It IS not resolved by Stage 2, It "may be referred to the JOInt System SubcommIttee (JSSC) provIded In AppendIx 7 (ClassIficatIOn System SubcommIttee) of thIS Agreement, for final resolutIOn." ArtIcle 22 12 1 contInues The JSSC may decIde any gnevance referred to It. Where the partIes at the JSSC concur theIr decIsIOn shall be bIndIng on the partIes and any affected employee Where the partIes at the JSSC do not concur the matter shall remaIn unresolved unless and untIl concurrence IS reached. AppendIx 7 of the collectIve agreement outlInes the composItIOn of the JSSC and ItS mandate to "reVIew and decIde on all complaInts or dIfferences InvolvIng allegatIOns of Improper classIficatIOn." The partIes created the JSSC after the Social Contract Act and amendments to the Crown Employees Collective Bargaining Act (CECBA) removed the JunsdIctIOn of the Gnevance Settlement Board (GSB or Board) to decIde classIficatIOn gnevances The relevant provIsIOns of CECBA provIde as follows Section 51 Classification grievances, restriction - An order of the Gnevance Settlement Board shall not reqUIre the creatIOn of a new classIficatIOn of employees or the alteratIOn of an eXIstIng classIficatIOn. (2) Same - An order of the Gnevance Settlement Board shall not reqUIre a change to be made In the classIficatIOn of an employee Section 52(1) Classification issues - A provIsIOn In an agreement entered Into that provIdes for the determInatIOn by an arbItrator board of arbItratIOn or another tnbunal of any of the folloWIng matters IS VOId 1 A classIficatIOn system of employees, IncludIng creatIng a new classIficatIOn system or amendIng an eXIstIng classIficatIOn system 2 The classIficatIOn of an employee, IncludIng changIng an employee's classIficatIOn. 5 Positions of the Parties The Employer asserts that the gnevances are, In fact, classIficatIOn gnevances over whIch the Board cannot assert JunsdIctIOn. Though framed as a claim for wages under ArtIcle 32 6 1 the Employer contends that thIS IS a "back door" to challengIng the gnevors' classIficatIOn and wage rate It asserts that regardless of the Umon' S charactenzatIOn of the matter the substance of the claim IS that the gnevors are performIng the work of a dIfferent classIficatIOn and should be paid accordIngly The Employer argues that to uphold thIS gnevance, the Board would have to find that the gnevors are performIng the work of a dIfferent classIficatIOn. It asserts that the reqUIred analysIs to determIne the "eqUIvalent classIficatIOn" for wage purposes IS a companson of the Job dutIes of the two posItIOns, whIch IS the exact same analysIs reqUIred In classIficatIOn gnevances It asserts that no matter how the gnevance IS framed, or charactenzed, or "dressed up" -It IS a classIficatIOn gnevance The Employer submIts that the Board has no JunsdIctIOn to determIne the gnevors' classIficatIOn Issues under the collectIve agreement and CECBA The partIes' Instead, have placed such dIsputes before the JSSC In support of ItS posItIOn, the Employer cItes to OP SEU (Aiken et al.) and Ministry of Health (1993) GSB No 678/87 (Gorsky) OPSEU (Rosamund) and Ministry ofOtizenship Culture and Recreation (1998) GSB No 2086/96 (LeIghton) OPSEU (Boyer) and Ministry of the Environment (2001) GSB No 0742/00 (Abramsky) OPSEU (Wilson) andMinistlY of Transportation (2001) GSB No 0147/95 (DIssanayake) OPSEU (Knapp) and Ministry of Solicitor General and Correctional Services (2000), GSB No 3164/92 (DIssanayake) 6 The Employer further notes that the same Issue - that the ResIdentIal Counselor 2's at the Roberts/Amethyst School are performIng the work of and should be paid as ChIld Care Worker 2's - has been gneved by the classIfied ResIdentIal Counselors, and IS currently pendIng before the JSSC It submIts that through that process, the gnevors' complaInt about theIr work wIll be decIded. It submIts that the result there wIll apply to both the classIfied and unclassIfied ResIdentIal Counselor 2s FInally the Employer submIts that the purpose of ArtIcle 32 6 lIS to protect unclassIfied employees from beIng paid less than theIr classIfied counterparts It asserts that thIS provIsIOn IS not a lIcense to pIck and choose among the vanous classIfied posItIOns and assert that any gIven one IS the "eqUIvalent cIvIl servIce classIficatIOn." It argues that ArtIcle 32 6 1 does not provIde a "loophole" to gneve classIficatIOn Issues before the GSB To allow that result, In ItS VIew would lead to the bIzarre sItuatIOn that unclassIfied employees could bnng de facto claSSIficatIOn gnevances before the Board whIle the classIfied employees must go to the JSSC If successful In theIr gnevance, moreover the result would be that the unclassIfied ResIdentIal Counselor 2' S would be paid more than the classIfied ResIdentIal Counselor 2's The Umon asserts that these gnevances are not classIficatIOn gnevances at all Instead, they raise a wage dIspute regardIng what IS the "eqUIvalent cIvIl servIce classIficatIOn" under ArtIcle 32 6 1 The Issue, In ItS VIew IS what IS the "eqUIvalent cIvIl servIce classIficatIOn" for wage purposes only The gnevors do not seek to be reclassIfied or to change theIr classIficatIOn. Instead, they only want to be paid properly In accordance wIth the correct "eqUIvalent cIvIl servIce classIficatIOn." 7 The Umon agrees that the determInatIOn of the "eqUIvalent cIvIl servIce classIficatIOn" wIll Involve a companson of the dutIes and Job specIficatIOns of the two posItIOns, but asserts that thIS does not transform a wage dIspute Into a classIficatIOn gnevance It contends that It IS not takIng the "back door" but the "front door" through ArtIcle 32 6 1 ArtIcle 32 6 1 It submIts, provIdes an explIcIt nght to be paid at the "eqUIvalent cIvIl servIce classIficatIOn" rate In ItS submISSIOn, ItS posItIOn IS akIn to an argument In the alternatIve - two separate ways, two separate nghts to get the same result of hIgher pay It InSIStS that the nghts are conceptually and legally dIfferent, and that the gnevors are not seekIng a reclassIficatIOn of theIr posItIOn, or a new classIficatIOn. Rather they are seekIng equal pay for equal work. In support of ItS posItIOn, the Umon relIes on OPSEU (Barker et al.) andMinistry of the Attorney General (1993) GSB No 2476/92 (Kaplan) and OPSEU (Yole) and Ministry of the Solicitor General and Correctional Services (2002) GSB No 1004/95 (Bnggs) Decision The Employer has moved to dIsmIss the Instant gnevances on the basIs that they are In realIty dIsgUIsed classIficatIOn gnevances It IS undIsputed that the GSB has no JunsdIctIOn over classIficatIOn gnevances What IS vIgorously dIsputed IS whether these gnevances are In fact, dIsgUIsed classIficatIOn gnevances or sImply gnevances regardIng the "eqUIvalent cIvIl servIce classIficatIOn" for determInIng the gnevors' proper wage rate The Issue IS sIgmficantly complIcated by the Board's Junsprudence In OPSEU (Barker et al.) and Ministry of the Attorney General, supra, the Board was faced wIth a gnevance by unclassIfied Court Constables under then ArtIcle 3 3 1 of the collectIve agreement, whIch IS IdentIcal to ArtIcle 32 6 1 In the current collectIve agreement. Histoncally the Court Constables 8 had been paid at the OAG- 2 rate The Employer then, after new contracts were sIgned, announced that the Court Constables would no longer be paid at the OAG-2 rate but would, henceforth, be paid at the Usher and Messenger classIficatIOn rate, whIch reduced theIr hourly wage by approxImately one dollar per hour The stated reason for thIS change was a new law whIch changed the gnevors' secunty dutIes The Employer then revIewed the gnevors' remaInIng dutIes and determIned that the class allocatIOn that most correctly reflected theIr dutIes was that of Usher and Messenger The Employer raised two prelImInary obJectIOns The first was that the gnevances were InarbItrable because they purported to challenge classIficatIOn, and as unclassIfied employees the gnevors were not entItled to do so The Umon argued that the gnevances were about compensatIOn, not classIficatIOn. The Board agreed. It concluded, at p 11 These gnevors are not challengIng theIr classIficatIOn. What they are dOIng IS seekIng the reVIew of theIr compensatIOn, whIch IS determIned by management selectIng an "eqUIvalent" classIficatIOn. ThIS IS the only sense In whIch the gnevances pertaIn to classIficatIOn, and In no way can they be descnbed as classIficatIOn gnevances of the kInd that frequently come before thIS Board. The gnevors are entItled, under ArtIcle 3 3 1 of the CollectIve Agreement, to be paid the wage rate assIgned to an eqUIvalent classIficatIOn, and that entItlement carnes WIth It a correspondIng entItlement to gneve the comparator classIficatIOn assIgned to them for the determInatIOn of wages where the allegatIOn IS made that It IS not eqUIvalent. The matter of eqUIvalence IS an Issue for the Board to decIde The Barker decIsIOn was more recently followed by the Board In OPSEU (Yole et al.) and Ministry of the Solicitor General and Correctional Services, supra ThIS case Involved gnevances by unclassIfied CorrectIOnal Officer l' S (CO 1) under then ArtIcle 31 2 1 whIch, agaIn, IS IdentIcal to ArtIcle 32 6 1 allegIng that the gnevors should be paid at the CorrectIOnal Officer 2 rate because they were performIng the full range of dutIes of the CorrectIOn Officer 2 9 claSSIficatIOn. The Employer dId not dIspute the claim that the gnevors were performIng the full range of dutIes of the C02 posItIOn. The Employer In Yole raised a prelImInary obJectIOn on the basIs that the gnevances were, at theIr core, classIficatIOn gnevances and therefore beyond the scope of the GSB RelYIng on the Barker decIsIOn, the Board determIned that the Employer's prelImInary obJ ectIOn must fall After quotIng the same portIOn of Barker as cIted above, the Board concluded at p 15-16 That IS precIsely the case before me These gnevors are not askIng to have theIr classIficatIOn changed or modIfied. They merely gneve that they have not receIved wages at the appropnate rate of the eqUIvalent cIvIl servIce classIficatIOn. I dIsagree wIth the Employer that a findIng of arbItrabIlIty contravenes SectIOn 52 of CECBA I am not beIng asked to amend a classIficatIOn system, create or amend a new classIficatIOn, classIfy an employee or change an employee's classIficatIOn. I am beIng asked to determIne If the wage rate of C02 IS the appropnate cIvIl servIce eqUIvalent for these gnevors HavIng found that the gnevances at Issue are not classIficatIOn matters, the Employer's submIssIOns regardIng the SocIal Contract have no applIcatIOn. In the Vice-ChaIr's VIew none of the Employer's contentIOns convInced her "that I should vary from Barker et al or that I should find It no longer applIed." The Board has also determIned, however that It does not have JunsdIctIOn over gnevances whIch, In essence raise classIficatIOn Issues, even though they are not framed or charactenzed as such. In OPSEU (Aiken et al.) andMinistlY of Health, supra the gnevor alleged that she "was Improperly placed In the pay scale of the OAG-8 schedule" and should have been placed at the top of that schedule The basIs for her allegatIOn, however was an alleged mIsclassIficatIOn at the tIme she was hIred Into the posItIOn. The Employer argued that her gnevance, though framed as a pay Issue was In substance a challenge to her classIficatIOn at the tIme of her appoIntment. The Umon asserted that the gnevance dId not concern 10 claSSIficatIOn, but placement on the OAG-8 gnd at the tIme of her appoIntment. The Board determIned that the gnevance reqUIred the Board to determIne If the gnevor at the tIme of her appoIntment, had been mIsclassIfied. It concluded at p 22 It IS dIfficult to see how a gnevance that reqUIres the determInatIOn of a gnevor's correct classIficatIOn at some pOInt IS not a classIficatIOn gnevance because the ultImate Issue for determInatIOn Involves placement on a salary gnd. If the Umon' S submIssIOn were accepted, then It would be possIble to dIsgUIse many classIficatIOn gnevance, whIch are largely dnven by a legItImate deSIre to be paid at a gnevor' S proper classIficatIOn level, by formulatIng the gnevance as raiSIng an ultImate Issue that does not refer to her havIng been mIsclassIfied, even If the ultImate Issue cannot be decIded wIthout first determInIng such an Issue We would regard classIficatIOn gnevances as IncludIng gnevances that can only be decIded If the Board must first render a decIsIOn wIth respect to the proper classIficatIOn of a gnevor at some pOInt In tIme AccordIngly the Board determIned It dId not have JunsdIctIOn over the gnevance The Aiken decIsIOn has been followed In other cases In OPSEU (Rosamund) and Ministry ofOtizenship Culture and Recreation) supra, the Umon charactenzed the gnevance as InvolvIng the gnevor's bumpIng nghts but the Board determIned that the claim was, In fact, about her classIficatIOn. The Employer had prevIOusly downgraded her posItIOn from an OAG-9 to an OAG-8 as part of a reVIew of classIficatIOns folloWIng a merger between two mImstnes That downgrade then precluded her from bumpIng Into the posItIOn she wanted when she was subsequently surplussed. The Board, at p 7 determIned that the gnevance "would reqUIre an eXamInatIOn of the J ob that the Gnevor was dOIng before her classIficatIOn was downgraded from an OAG-9 to an OAG-8 In order to decIde the second Issue of whether or not Ms Rosamund had been demed her [bumpIng] nghts under ArtIcle 20 " In the Board's VIew that was a complaInt about her reclassIficatIOn, over whIch the JSSC alone had JunsdIctIOn. 11 In OPSEU (Boyel) andMinistlY of the Environment, supra the gnevor alleged a vIOlatIOn of ArtIcle 8 1 1 of the collectIve agreement, whIch IS the actIng pay provIsIOn In regard to temporary assIgnments lastIng for more than five workIng days SpecIfically the gnevor alleged that the Employer had assIgned hIm to perform the dutIes of an EnvIronmental Officer 4 a hIgher rated classIficatIOn. The gnevor had also filed a classIficatIOn gnevance allegIng the same thIng, whIch was pendIng before the JSSC and had earlIer made sImIlar claims The Employer moved to dIsmIss the gnevance as a dIsgUIsed classIficatIOn gnevance The Umon asserted that It was not a classIficatIOn gnevance, but a bona fide temporary assIgnment gnevance It noted that the gnevor was not seekIng a change In hIS classIficatIOn or a reclaSSIficatIOn, nor was he claimIng that he was Improperly classIfied. Instead, he was seekIng monetary compensatIOn for the penod he was performIng the work of an EO 4 Under the specIfic facts of that case, I determIned that the gnevance was, In effect, a classIficatIOn gnevance over whIch the Board no longer had JunsdIctIOn. There was no allegatIOn of any change In hIS dutIes Instead, I concluded that the gnevance was part of "an ongOIng contentIOn that the dutIes regularly assIgned to hIm were beyond the work of an employee classIfied as an EO 2 and constItuted the dutIes of an EO 4 That IS a classIficatIOn Issue" I determIned that "[h]IS concern, though phrased as a temporary assIgnment dIspute IS that he IS not properly classIfied as an EO 2 " LIkewIse, In OPSEU (Wilson) and Ministry of Transportation, supra, the gnevance was charactenzed as a retroactIve compensatIOn matter not a classIficatIOn dIspute, SInce the gnevors were not seekIng reclassIficatIOn. The Employer had already reclassIfied the gnevors but It dId not grant any retroactIvIty to ItS decISIOn. The result was that for a penod of four years, the 12 gnevors were dOIng the same work as the hIgher rated classIficatIOn but were paid less The Board ruled that the gnevance was, In effect, a classIficatIOn gnevance It concluded The umon couched ItS claim as a claim for retroactIvIty and for compensatIOn, that It was seekIng to correct the InJustIce of employees performIng the same work for lesser pay than what was paid to other employees Even though the umon refraIned from allegIng that the gnevors were Improperly classIfied dunng the penod In questIOn, the conclusIOn IS Inescapable that the essence of the claim IS that SInce they performed the same work as CMO's dunng the penod In questIOn, they should have been paid at the same classIficatIOn as the CMO's To determIne the ments of the gnevance, It would be essentIal for the Board to compare the dutIes and responsIbIlItIes of dIfferent classIficatIOns In other words, the umon's entIre case depends on a determInatIOn as to whether or not the classIficatIOn allocated by the employer to the gnevors' posItIOn dunng the penod In questIOn was proper The key In thIS case IS to determIne whIch lIne of cases applIes - whether the gnevances, at theIr core, raise a classIficatIOn Issue or are sImply a wage dIspute concernIng whIch cIvIl servIce classIficatIOn IS the "eqUIvalent" one to determIne the gnevors' proper wage rate After much consIderatIOn, It IS my VIew that the gnevances, at theIr core, assert that the gnevors are Improperly classIfied as ResIdentIal Counselor 2' Although they are not seekIng reclassIficatIOn or any change to theIr claSSIficatIOn, theIr gnevances allege that they are for pay purposes, mIsclassIfied as RC 2's They assert that they are not beIng paid In relatIOn to theIr actual dutIes, whIch are the same as the hIgher-rated classIficatIOn - not theIr own classIficatIOn ofRC 2 The gnevances reqUIre the Board to evaluate whether the gnevors are performIng the work of an RC 2 (theIr own claSSIficatIOn) or the work of a CCW 2 (the hIgher-rated classIficatIOn) As determIned by the Board In Wilson, supra' To determIne the ments of the gnevance It would be essentIal for the Board to compare the dutIes and responsIbIlItIes of dIfferent 13 classIficatIOns In other words, the umon's entIre case depends on a determInatIOn as to whether or not the classIficatIOn allocated by the employer to the gnevors' posItIOn dunng the penod In questIOn was proper The same thIng IS true here Though phrased as a matter of eqUIvalency under ArtIcle 32 6 1 the Board would have to determIne whether the classIficatIOn allocated by the employer to the gnevors' posItIOn dunng the penod In questIOn was proper That IS IdentIcal to the claim of the classIfied RC 2's presently pendIng before the JSSC If the Umon's posItIOn on ArtIcle 32 6 lIS accepted, It could potentIally create sIgmficant chaos In relatIOn to the classIficatIOn system used throughout the Ontano publIc servIce First, It nsks InCOnsIstent results between the Board and the JSSC The Board could accept that the unclassIfied RC 2's perform the work of the CCW 2s whIle the JSSC could rule the OpposIte In relatIOn to the classIfied RC 2's, or VIce versa. If that happened (or even If the JSSC made no rulIng) It could result In a sItuatIOn In whIch the unclassIfied and classIfied employees In the same classIficatIOn would be paid at dIfferent rates There IS no assertIOn that the two groups perform dIfferent dutIes On the contrary the eVIdence was that they have the same posItIOn descnptIOn. Further If allowed, any unclassIfied employee could gneve that, In theIr partIcular cIrcumstances, the true eqUIvalent cIvIl servIce classIficatIOn IS X, Y or Z, not theIr actual classIficatIOn. An employee could pIck and choose from among classIfied posItIOns theIr personal "eqUIvalent" under ArtIcle 32 6 1 ThIS could lead to unclassIfied employees In the same classIficatIOn beIng paid a vanety of dIfferent wages For example, unclassIfied ResIdentIal Counselors In a dIfferent resIdentIal school may determIne that the eqUIvalent cIvIl servIce posItIOn for them IS not the RC 2 classIficatIOn or even the CCW 2 classIficatIOn, but the CCW 3 14 claSSIficatIOn, or somethIng else entIrely UnclassIfied employees throughout the proVInce could gneve that theIr "eqUIvalent cIvIl servIce classIficatIOn" was not the classIficatIOn assIgned to them, but some other posItIOn. Clearly thIS was not the Intent of ArtIcle 32 6 1 and could not have been antIcIpated by the partIes The purpose of ArtIcle 32 6 1 appears to be to protect the unclassIfied employees from beIng paid less than theIr classIfied counterparts, and to reqUIre the employer to negotIate the wage rate for employees where there IS no "eqUIvalent cIvIl servIce" posItIOn. GIven the Importance of the classIficatIOn system and ItS sIgmficance In regard to employee wages, I cannot conclude, wIthout some clearer IndIcatIOn of the partIes' Intent, that ArtIcle 32 6 1 was meant to provIde unclassIfied employees wIth a means to challenge the classIficatIOn assIgned to them by the Employer for pay purposes Further the collectIve agreement specIfically sets out the wage rates for employees In the InstItutIOnal and Health Care BargaInIng Umt, and provIdes that those wage rates apply "to employees wIth an appoIntment status of classIfied and unclassIfied." It specIfically lIsts the wage rate to be paid to classIfied and unclassIfied ResIdentIal Counselor 2's What the gnevors seek, through ArtIcle 326 1 IS to have the Board determIne that a dIfferent wage rate should apply to them, not the wage rate negotIated by the partIes In my VIew thIS would result In an ImpermIssIble amendment to the collectIve agreement. The collectIve agreement also specIfies the wage rates for "classIficatIOns In the unclassIfied servIce, for whIch there are no eqUIvalent classIficatIOns In the CIvIl ServIce " It then lIsts those posItIOns for whIch there IS no eqUIvalent cIvIl servIce classIficatIOn and the negotIated 15 wage rate for those posItIOns It seems clear then, that the words "eqUIvalent cIvIl servIce classIficatIOn" under ArtIcle 32 6 1 refers to the "eqUIvalent" or counterpart classIfied posItIOn. The sItuatIOns In Barker supra, and Yole supra, are dIstIngUIshable In Barker the Employer changed the dutIes of the posItIOn and then determIned, umlaterally that the "eqUIvalent" cIvIl servIce posItIOn was a lesser paid one SIgmficantly there was no eqUIvalent classIfied cIvIl servIce posItIOn for the Court Constables In those cIrcumstances, the Board held that the gnevors could challenge the Employer's determInatIOn of what constItuted the "eqUIvalent" cIvIl servIce posItIOn for pay purposes and that theIr gnevance was not a classIficatIOn matter In Yole supra, the partIes' agreed that the gnevors, unclassIfied CO l's, were performIng all of the dutIes and responsIbIlItIes of the CO 2 classIficatIOn. In effect, the partIes agreed that the CO 2 posItIOn was the "eqUIvalent" cIvIl servIce classIficatIOn for theIr posItIOn yet the Employer contInued to pay them as CO l' S The sItuatIOn here IS sIgmficantly dIfferent. Here, unlIke In Barker the gnevors do have an "eqUIvalent cIvIl servIce classIficatIOn" - specIfically the classIfied RC 2 posItIOn. Here unlIke In Yole there IS a sIgmficant dIspute between the partIes regardIng the dutIes of the gnevors and whether they perform the work ofRC 2's or CCW 2's Although there IS some broad language In Barker (upon whIch Yole relIes) to support the Umon's posItIOn here, I cannot conclude that ArtIcle 32 6 1 allows the gnevors to In effect, challenge the classIficatIOn allocated to them by the Employer for pay purposes, for that IS exactly what they are dOIng. 16 The Umon asserts that ArtIcle 32 6 1 provIdes a separate legal nght - dIstInct from a classIficatIOn matter - to achIeve the same result of equal pay for equal work. CertaInly employees may have multIple nghts under a collectIve agreement or statute, whIch may lead to the same outcome through alternatIve means The problem here, however IS that CECBA has prohIbIted the Board from determInIng classIficatIOn Issues In my VIew even though the gnevors are not seekIng a change In theIr classIficatIOn and are only seekIng monetary relIef, they are challengIng the classIficatIOn allocated to them by the Employer for pay purposes In my VIew the argument that ArtIcle 32 6 1 allows the gnevors to assert that theIr own classIficatIOn IS not the proper "eqUIvalent cIvIl servIce classIficatIOn" for pay purposes - and that the eqUIvalent one IS another classIficatIOn - IS Indeed a "back door" to havIng the Board determIne theIr proper classIficatIOn. If accepted, It would create a loophole that would allow unclassIfied employees to bnng what IS, In effect, classIficatIOn dIsputes before the Board. Yet the partIes have agreed that "all complaInts or dIfferences InvolvIng allegatIOns of Improper classIficatIOn" are to be decIded by the JSSC The gnevors, moreover wIll not be left wIthout a remedy In thIS matter The classIfied RC 2's at the Roberts/Amethyst School have a classIficatIOn gnevance before the JSSC Any determInatIOn made by that commIttee wIll be bIndIng on the unclassIfied employees at that school as well 17 Conclusion For all of foregoIng reasons, I conclude that the gnevances, at theIr core, raise classIficatIOn Issues over whIch the Board does not have JunsdIctIOn. AccordIngly the gnevances must be dIsmIssed. Issued at Toronto thIS 31st day of March, 2005 . :fo~rrtJ1Lv ~ RartdI H. Abramsky Vice-Chair