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Home My WebLink About2003-1581.Alani et al.05-05-12 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# 2003-1581 UNION# 2000-0340-0013 2000-0340-0015 2000-0340-0016 2000-0340-0017 2000-0340-0018 2000-0340-0019 2000-0340-0020 2000-0340-0021 2000-0340-0022, 2000-0599-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Alam et al) Union - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE Barry B FIsher Vice-Chair FOR THE UNION Hilary Cook Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER F ateh SalIm Counsel Management Board Secretanat HEARING March 30 2005 2 DeCISIon ThIS gnevance consIsts of 10 gnevors, all of whom are classIfied as Tax AudItor 4 (TA4) They mItIally filed separate gnevances m March 2000 The Stage 2 meetmgs were held on September 1,2001 The gnevances all refer to the fact that the gnevors allege that they perfonned the work of TA5's m that they perfonned audIts on corporate taxpayers wIth gross mcome m excess of $100 mIlhon per year All of the gnevances to some degree refer to ArtIcle 22 12 of the CollectIve Agreement and most request a change m classIficatIOn Based on tlllS the MmIstry objected to these gnevances on the basIs that the GSB has no longer has jUnSdIctIOn over classIficatIOn gnevances as set out m SectIOn 52 1 of CECBA. The Umon does not contest that the GSB has no jUnSdIctIOn If these gnevances are m fact classIficatIOn gnevances, however It alleges that the gnevances are really ArtIcle 8 Temporary AssIgnments gnevances m that the only remedy that the gnevors are now seekmg IS to be paid for when they were actually perfonnmg T A5 dutIes The Umon dId not file new gnevances after the MmIstry raised the jUnSdIctIOnalIssue at the Stage 2 meetmg, however It would have been too late to do so m any event The MmIstry dId advIse the Umon that they would not raise tImehness as an ObjectIOn If the gnevors were to now file an ObjectIOn over theIr classIficatIOn under the Jomt System SubcommIttee of the CERC The MmIstry's posItIOn IS that the pIth and substance of these gnevances IS that they are classIficatIOn gnevances and that to allow the Umon to convert them mto a temporary assIgnment gnevance would be to Improperly change the nature of the gnevance They rely on the decIsIOn of VIce Chair Abramsky m OPSEU (Boyer) v MmIstry of EnVIromnent (GSB 742/00) to say that where the pIth and substance of the gnevance IS classIficatIOn, It matters not If It IS dIsgUIsed as a temporary assIgnment gnevance, the GSB has no jUnSdIctIOn However the VIce Chair dId cautIOn at page 11 of the award that Each case must be carefully evaluated on ltS specific facts and bona fide temporary asslgnment grzevances should not be lzghtly dlsmlssed as dlsgUlsed classificatwn grzevances In tlllS case there are two dIstmct types of gnevances In 9 of the 10 gnevances the gnevances read more or less as follows 3 Statement of Grzevance I have been classified as a TA4 [formerly F04] to conduct field audzts ofsmall and medlum-slzed corporate taxpayers, or partlclpate zn audzts of larger, more complex corporate taxpayers, as a team member under the dlrectzon of a Senzor Fleld Audltor, zn order to ascertazn and maXlmlze complzance wlth the Ontarzo Corporatzons Tax Act, the Mlnzng Tax Act and the Income Tax Act [Canada] tax leglslatzon Accordzng to the standard~,' set out to by the Corporatzons Tax Branch, Fleld Audlt Sectzon, small and medlum-slzed corporate taxpayers comprzse corporate taxpayers wlth gross revenues under $100 mlllzon zn a fiscal year Larger, more complex corporate taxpayers comprzse those wlth gross revenue zn excess of 100 mlllzon dollars zn a fiscal year I have conducted field audzts of small and medlum-slzed corporate taxpayers However, I have also conducted audzts of the larger or more complex corporate taxpayers Consequently, my classificatzon as a TA4 [formerly F04}, lS zncorrect, whzle I conducted the audlt of these larger more complex corporate taxpayers I grzeve pursuant to Sectzon 22 12 Class~ficatzon and related sectzons of the ('ollectlve Agreements Settlement deslred. 1 That my present posltzon be changed to Senzor Corporatzon Tax Audltor 2 That I be compensated as a Senzor Corporatzon Tax Audltor sznce my date of hlrzng, also the tlme that started audltzng larger more complex corporate taxpayers 3 The above salary adjustment be pazd wlth full retroactlvlty, zncludzng znterest The gnevance of Mr Ogle dId not contam Item # 1 under Settlement DesIred, but m all other respects, was IdentIcal to the gnevance set out above Only one gnevor Mr Walter Narsmgh, filed a gnevance m a somewhat dIfferent fonnat HIS gnevance reads as follows Statement of Grzevance I have been class~fied as a TA4 [formerly F04] to conduc(field audzts o.fsmall and medlum-slzed corporate taxpayers, or partlclpate zn audzts of larger, more 4 complex corporate taxpayers, as a team member under the dlrectzon of a Senzor Fleld Audltor, zn order to ascertazn and maXlmlze complzance wlth the Ontarzo Corporatzons Tax Act, the Mlnzng Tax Act and the Income Tax Act [Canada] tax leglslatzon Accordzng to the standard~,' set out to by the Corporatzons Tax Branch, Fleld Audlt Sectzon, small and medlum-slzed corporate taxpayers comprzse corporate taxpayers wlth gross revenues under $100 mlllzon zn a.fiscal year Larger, more complex corporate taxpayers comprzse those wlth gross revenue zn excess of 100 mlllzon dollars zn a.fiscal year I have conducted .field audzts of small and medlum-slzed corporate taxpayers However, I have also conducted audzts of the larger or more complex corporate taxpayers Consequently, my classificatzon as a TA4 [formerly F04}, lS zncorrect, whzle I conducted the audlt of these larger more complex corporate taxpayers I grzeve pursuant to Sectzon 22 12 Class~ficatzon and related sectzons of the ('ollectlve Agreements Settlement desired. Compensation to the extent of the salary differential between the TA4 Uormerly FO 4J and Senior Field Auditor, [TA5, formerly F05J for the time spent in conducting the field audits of the larger, more complex corporate taxpayers. ( emphasis added) The first group of gnevances are clearly classIficatIOn gnevances as thIS IS the central focus of the entIre gnevance, mcludmg the Settlement DesIred. Mr Narsmgh's gnevance, although It does refer to SectIOn 22 12 of the CollectIve Agreement, does not actually seek a classIficatIOn remedy, rather he only seeks to be paid the hIgher rate when he m fact performed the larger more complex audIts In the Boyer case, referred to above, the GSB heard eVIdence about the hIstory of the gnevance under questIOn as well as a reasonably detailed hIStOry of the surroundmg CIrcumstances It was largely based on tlllS other eVIdence that the VIce Chair found that the gnevance was really a classIficatIOn gnevance dIsgUIsed as a temporary assIgnment gnevance In tlllS case, neIther sIde sought to mtroduce any eVIdence, therefore the only eVIdence before me are the actual gnevances Takmg mto consIderatIOn the statement by VIce Chair Abramsky about not dIsmIssmg temporary gnevances hghtly on the grounds that they are really 5 clasSIficatIOn gnevances, I wIll allow thIS gnevance only m so far as It relates to the claim by Mr Narsmgh for Temporary AssIgnment pay and dIsmIss the other nme claims as they are classIficatIOn gnevances The MmIstry has asked the Umon for full partIculars of ItS claim Keepmg m mmd the tIme hmItatIOns under the CollectIve Agreement and the fihng date of the gnevance, (March 16, 2000), I hereby order the Umon to provIde those partIculars by May 15,2005 The RegIstrar of the GSB IS to set a new heanng date for the heanng of Mr N arsmgh' s case Dated at Toronto tlllS lih day of May 2005 , .>> ... , y B FIsher, VIce Chair