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HomeMy WebLinkAbout2005-1545.Carson.10-09-07 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2005-1545, 2007-2811, 2007-2812, 2007-2813, 2007-2814, 2007-2815, 2007-2816 2007-2817,2008-2818, 2007-2819, 2007-2820, 2007-2821, 2007-2822, 2007-2823, 2007-2824, 2007-2825, 2007-2826, 2007-3348, 2007-3517, 2007-3518, 2007-3519, 2007-3520, 2007-3521 UNION#2005-0248-0090, 2007-0248-0549, 2007-0248-0550, 2007-0248-0551, 2007-0248-0552, 2007-0248-0553, 2007-0248-0554, 2007-0248-0555, 2007-0248-0556, 2007-0248-0557, 2007-0248-0558, 2007-0248-0559, 2007-0248-0560, 2007-0248-0561, 2007-0248-0562, 2007-0248-0563, 2007-0248-0564, 2008-0248-0010, 2007-0248-0582, 2007-0248-0583, 2007-0248-0584, 2007-0248-0585, 2007-0248-0586 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Carson) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREBram Herlich Vice-Chair FOR THE UNIONJohn Brewin Ryder Wright Blair & Holmes Counsel FOR THE EMPLOYERMichelle Dobranowski Ministry of Government Services Legal Services Branch Counsel HEARINGOctober 15, December 2, 2009, February 16, March 8, July 6, 2010. - 2 - Decision [1]There are 21 individual and 2 group grievances before me for determination. They raise the same issue. The grievors were all (at least relatively) new recruits hired as ?General Duty Officers? to work on the ?youth side? of the Hamilton Wentworth Detention Centre (?HWDC?) under the auspices of the Ministry of Community Safety and Correctional Services (?MCSCS?). At the time of hire, their pay rate was set at the level associated with the classification of ?Correctional Officer 1? (?CO1?). They dispute that placement and claim that they ought to have been paid at the higher rate associated with either ?Correctional Officer 2? (?CO2?) or ?Youth Worker? (?YW?) (both of these latter rates, the parties agree, are identical). [2]The grievors all worked alongside and performed the same duties as the CO2s who were already employed on the youth side of HWDC. Further, at about the same time the grievors were hired, other individuals, who met the same newly imposed qualification standards and underwent the same training, were hired to work in ?stand alone? custodial facilities for youth, administered by the Ministry of Children and Youth Services (?MCYS?). They were paid at the YW rate. [3]As we shall see in greater detail, there is no meaningful distinction between the qualifications, formation and training required of all the new recruits. Neither is there any meaningful difference in the duties and responsibilities assumed by those working in the stand alone facilities and the grievors working on the youth side of HWDC. [4]In that context, it is not difficult to understand why the wage disparity is one which was troubling to the grievors. However, it is not the function of this Board to apply general principles of equity to establish or otherwise harmonize wage rates of employees. Indeed, as the employer forcefully reminded us in its preliminary objection to these matters proceeding, this Board does not have the jurisdiction to entertain classification grievances. - 3 - [5]However and notwithstanding the employer?s otherwise unassailable assertion, in a decision dated July 30, 2009, I dismissed the employer?s preliminary objection. The issue in this case is not the grievors? classification, but rather the application of Article 31A.2.1 of the collective agreement, a provision which applies exclusively to unclassified employees such as the grievors: The rate of the equivalent civil service classification shall apply. If there is no equivalent classification, the rate shall be set by the ministry involved and the Union shall have the right to negotiate the rate during the appropriate salary negotiations. [6]The union relies exclusively on the first sentence and neither party suggested any other portion of the article has any application to the instant case. [7]Thus, all I must determine is what constitutes ?the equivalent civil service classification?. The grievors are to be paid at that rate. The union argues that the equivalent civil service classification is either YW or CO2 (both of which would yield the same rate); the employer asserts that it is CO1. And, in the alternative, the employer claims that, on the basis of certain evidence, the union is, in any event, estopped from advancing its claim. [8]Essentially, this case arises as the result of the transfer of responsibility for the care, custody and control of young offenders from MCSCS to MCYS. That was a protracted process which, at least for our purposes, can be seen to have had 2 phases. As of April 2004, MCYS assumed responsibility for all of the stand alone facilities. New and existing employees working in those facilities became employees of MCYS. However, new and existing employees working on the youth sides of mixed correctional facilities (i.e. those which housed both adult and young offenders, but in separate ?sides? of the institution, such as HWDC) continued to be employees of MCSCS. That transitional state of affairs continued at HWDC until March 2009 when its Youth Justice Unit was closed. - 4 - [9]All new recruits, whether employed in stand alone or (the youth sides of) mixed facilities were required to meet the same newly established hiring criteria which were more demanding than those traditionally applied to corrections officers. [10]In the earlier proceedings, the parties had prepared a statement of agreed facts for the purposes of the preliminary issue. During the course of the hearing on the merits that followed the dismissal of the employer?s first preliminary objection, they prepared a revised and more elaborate set of agreed facts as follows: i.Prior to August 1, 2003, the Ministry of Community Safety and Correctional Services (MCSCS), previously named the Ministry of Public Safety and Security, was responsible for the custody of young offenders aged 16 and 17 at the time of the offense. The then-Ministry of Community, Family and Children?s Services (COMSOC) was responsible for young offenders aged 12 to 15. ii.MCSCS housed youths requiring secure custody for whom it was responsible in ?stand-alone? i.e. facilities that housed youth only or in ?shared? facilities in which adults in custody were also housed. In shared facilities, adults and youth in custody were kept separate from each other. There was no movement or interaction of offenders between the adult and youth areas in the facility. iii.From April 1985 on, with the implementation of the Young Offenders Act, there was a youth unit at the Hamilton Wentworth Detention Centre. HWDC continued to house adult inmates as well. iv.During this period all custodial staff in secure custody youth facilities for youth aged 16 and 17 at the time of the offense, either in stand-alone or in shared facilities, were employed with MCSCS as Correctional Officers. v.A long-standing policy known as the ?underfill policy? applied to all Correctional Officers working either with youth or adults. Under the underfill policy new Correctional Officers in both adult and youth services started at the CO1 rate. By agreement in 1998, once they had worked a prescribed number of hours, they were paid at the CO2 rate. vi.Since at least the early 1990s there have been no classified CO1s. Generally speaking MCSCS hires COs as unclassified employees. The majority of COs at HWDC become classified through agreement (MERC or Local), while some become classified through competition. This does generally not occur until COs have been employed on contract as unclassified employees for at least one year (the equivalent of which is 1912 hours). - 5 - vii.Staff working with youth in youth units in adult facilities or in stand-alone facilities were required to undergo specialized youth training. Prior to 2004 all new recruits for work with either adults or youth took the same training for the first four weeks of a six week course. For the final two weeks of training, recruits heading for employment with youth took full time specialized training in the care and custody of young offenders. viii.As of April 1, 2003, the federal Young Offenders Act was replaced by the Youth Criminal Justice Act. This resulted in significant changes in the care and custody of young persons in conflict with the law or at risk of conflict with the law. ix.In 2003 the provincial government created the Ministry of Children and Youth Services (MCYS). Among other things, the new Ministry was to provide community and custodial programs for youth aged 12 to 17 in or at risk of conflict with the law. x.On November 24, 2003 it was announced that the stand-alone facilities operated by the MCSCS would be transferred to MCYS and operated by that Ministry as of April 1, 2004. Plans were underway for additional stand-alone (youth dedicated) MCYS custodial facilities, chiefly the Roy McMurtry Youth Centre in Brampton. Until those facilities were completed and ready to house youth in the care and custody of MCYS, the youth unit at Hamilton Wentworth Detention Centre would be continued, along side the adult part of the facility, as would some other units in MCSCS facilities. Consistent with applicable legislation the Youth Unit at HWDC would eventually be closed xi.MCYS developed new policies and procedures for the care and custody of youth for whom the Ministry was responsible. The policies reflected the mandate of the new federal legislation as well as the Child and Family Services Act (CFSA), the legislation governing the provision of services to children and youth. Youth Justice Services received an exemption from the CFSA for the youth receiving services in shared sites as those sites could not come into compliance with the CFSA. Exemptions from certain parts of the CFSA were granted for the stand alone facilities as legislative changes needed to be introduced to cover the full age range and to repeal the sections of the Correctional Services Act applying to the youth in shared sites once those sites were closed. xii.(a) MCYS established a new recruitment criteria and made changes to the training program to be compliant with legislation. MCYS established a service level agreement with MCSCS for them to provide recruitment services for Youth Service Officers both for shared and stand-along youth units and facilities. Qualifications for staff working with youth in either types of facilities were differentiated than those recruited to work on with adults in correctional facilities. The criteria established for individuals working with youth in both shared sites or stand-alone facilities required: Successful completion of Post-Secondary education from a college or university of recognized standing in a related field with emphasis in behaviour - 6 - management, adolescent development, and knowledge of family group dynamics, in addition to one year of recent work experience OR Successful completion of a secondary school diploma with supplementary courses in human behaviour, in addition to three years of recent work experience. Candidatesmust have some experience in working with youth (paid or volunteer) The CO credential to work with adult is that of Ontario grade 12 or formal equivalency. (b) New staff recruited for both stand-alone and shared youth units and facilities were required to undertake the new six-week training program. The training program was created and delivered by the Ontario Correctional Services College (OCSC) of MCSCS, formerly known as the Bell Cairn Staff Development Centre. The training program curriculum was developed by MCSCS, subject to the approval of MCYS, and continued to evolve through consultation with MCYS. (c) At the end of the program all those who successfully completed the entire course, were awarded a certificate from OCSC indicating they had completed training within the Youth Services Studies Program. Completion of the program (or the youth conversion training program for employed Correctional Officers) was a requirement of both MCSCS and MCYS to work with youth, regardless of site/facility. (d) Due to the legislative exemption from the CFSA, Correctional Officers at shared sites continued to receive the adult use of force training that had been used on the Youth Unit as well as the adult escort training module. The Youth Services Officers going to stand alone facilities were trained in Understanding and Managing Aggressive Behaviour, which is a MCYS approved model of intervention. xiii.As of April 1, 2004 at the HWDC youth unit the then-current staff continued in place. Training in case management and suicide intervention was provided to all staff working with youth due to the introduction of the single case management model and recommendations from inquest. They continued to be classified as CO2s and be employees of the Ministry of Community Safety and Correctional Services. There were 89 classified CO2 staff in the HWDC Youth Justice Unit as - 7 - of April 1, 2004 when MCYS assumed its custodial responsibility for youth. At that time there were no unclassified CO1s in the Youth Unit of HWDC. xiv.The Youth Justice Unit at HWDC continued to operate until March 31, 2009, on which date it was closed. During this period it was managed by the ?Youth Unit Administrator?, an employee of MCYS. The ?Deputy Youth Unit Administrator? was also an MCYS employee. The Administrator reported to the Western Region Director of MCYS on all issues related to youth. Day to day supervision of officers in the Youth Justice Unit was by Operational Managers, who were employees of MCSCS, responsible to the Administrator either directly or through the Deputy Administrator who was accountable to the Administrator. The staff of the youth unit were expected to carry out their duties of the care and custody of the youth in accordance with the policies and procedures of MCYS and MCSCS as directed by the Administrator and the Deputy Administrator and their Operational Managers. xv.All staff in the Youth Justice Unit at HWDC came under the direction of the Superintendent of HWDC, a MCSCS employee, for matters related to the building. The Employer?s evidence is that disciplinary action was managed by the Youth Administrator in consultation with MCSCS HR and the Superintendent to ensure consistent practices throughout the HWDC. Other staff including Social Workers, Psychologists, Clerks, Operational Managers, etc. continued as employees of the MCSCS and were treated as MCSCS employees for pay and other related employment issues. xvi.Subject to the exception described in Paragraph 17, staff on the adult side at HWDC and those in the youth unit were not interchangeable. To work on the adult side, staff would be required to undergo a training program. Similarly adult staff required MCYS training to work on the youth side. Staff could not be assigned to work on one side or the other but were managed as distinct and separate employee groups. Some staff were qualified to work on both adult and youth sides but would not normally do so unless they changed home positions. xvii.From time to time staff on the youth side were required to do night rounds on the adult side when contact with inmates was minimal and vice versa. Staff on both sides could be required to respond to emergencies anywhere in the facility and occasionally were called on to do so. They generally were assigned a back-up or secondary role when that occurred on the side other than the one on which they were employed. When overtime for escorts was exhausted on the adult side Correctional Officers working in the youth unit would be offered the overtime. The escort training was the same within the facility for both COs working with adults and COs working with youth. It can be noted that restraint procedures were different in the adult side from the procedures authorized on the youth side. Correctional staff working on adult and youth units in adult facilities were trained on Use of Force for restraints. xviii.On completion of the pre-employment training at Bell Cairn, referred to in Paragraph 11, some of those who successfully completed the program were - 8 - assigned to youth units in shared facilities and others were assigned to stand-alone facilities. As of April 1, 2004 those who went to stand-alone facilities became employed with MCYS. They began as unclassified employees, were designated Youth Service Officers and were paid at the YW rate. Those who went to shared facilities were employed with MCSCS, were designated Correctional Officers and were paid at the CO1 rate. Both groups were presented with an unclassified service contract and a WIN Employee Action Request that set out their Ministry, their designation and their rate of pay. They were asked to sign it and generally did. A number of new staff at the youth unit at HWDC promptly filed grievances against the pay rate. These are the grievances that are the subject of this arbitration. xix.All new recruits (COs) to the youth unit at HWDC were provided with an orientation period which lasted approximately two weeks, during which they were given the opportunity to shadow experienced staff. xx.Upon completion of 1912 hours the ?new recruits? to the youth unit at HWDC began getting paid at the CO2 rate of pay. xxi.There is disagreement between the parties as to what, if anything, those who, from 2004 on, were recruited and who were accepted for the Bell Cairn training program, were told about their designation and rate of pay. xxii.With the announcement on November 24, 2003 of the transfer of youth justice services to the new MCYS a transition team was established by the Employer and the Union aimed at ensuring a smooth and effective transfer of programs, services and staff to the new Ministry. xxiii.During discussions amongst the transition team, the parties agreed that all staff in the Youth Justice Units in the shared facilities would continue to be employed with MCSCS and those staff in the stand-alone facilities being transferred to MCYS would be employed with MCYS. It was agreed that staff at the youth units at shared facilities such as HWDC would not be reclassified as Youth Service Workers but would remain as Correctional Officers. New hires into these facilities would be employed with MCSCS and designated Correctional Officers (see Appendix ?A? for CO class standards). xxiv.In these discussions the Union took the position that the employees at shared facilities should not be reclassified from CO to YSW. The Employer agreed. It was recognized that the youth units would eventually be closed. It was agreed that, at the point of closing, staff in the youth units would be surplused. Included in their options under this arrangement was that of staying with MCSCS and working with adults, subject to receiving the required adult training. Those staff in stand alone facilities moving to MCYS as of April 1, 2004 would be classified as Youth Workers (see Appendix ?B? for Youth Worker class standard). New staff in the shared facility youth units and in the stand alone facilities would be hired as described in Paragraph 11. - 9 - xxv.The issue of whether new recruits recruited and trained as described in Paragraph 17 and assigned to the youth units in shared facilities would be paid at the CO1 or CO2/YW rate was not discussed by the transition team. Nor was the issue decided the team. The parties were aware of the issue but there was no agreement on the part of the Union, written or oral, that their pay would be at the CO1 rate. xxvi.From April 1, 2004 on, the day to day duties of the staff in the Youth Justice Unit at HWDC were carried out in conformity with the provisions of the Youth Criminal Justice Act, as did those of the staff of custodial facilities operated from that date on by MCYS. Both groups of staff were governed in terms of their custody of young persons and the day to day work by the policies and procedures of the MCYS. xxvii.The new recruits working in the Youth Justice Unit at HWDC and who were designated Correctional Officers and paid at the CO1 rate performed the same core duties as the new recruits who were assigned as Youth Services Officers in MCYS custodial facilities with the exception of the components related to the exemption from the CFSA. This included a physical intervention model in compliance with the CFSA which in the stand alone facilities was Understanding and Managing Aggressive Behaviour.The Correctional Officers in the youth units of shared sites, including those paid at the CO1 rate, continued to use the adult Use of Force model. They performed the same duties as the classified CO2s in the YJU at HWDC. For all of them the core duties were different from those who worked on the adult side, including CO1s on the adult side. The relationship with those under their care and custody was different. The activities were different. These differences emerged from different legislated and policy approaches arising from the different age and characteristics of those in custody. These differences existed from the implementation of the Young Offenders Act in 1985. There were always different expectations for Correctional Officers working with youth, and specialized training provided to those staff working with youth. This existed prior to the creation of the Ministry of Children and Youth Services. [11]In addition to these facts, a number of documents were marked as exhibits. We also heard the evidence of Barry Scanlon, proffered by the employer largely for the purposes of its estoppel argument. Mr. Scanlon has held a variety of management positions over the last four years or so. He is currently the Security Coordinator for the Ministry of Government Services. Although he has worn a number of different hats during his management tenure, that by no means exhausts his OPS wardrobe. For some 22 years prior to traversing the labour- management divide, Mr. Scanlon worked as a corrections officer in MCSCS. And for the vast majority of those years he held a variety of important trade union positions. In particular, from 1994 to 2006 he was the union co-chair of MERC, a joint central Ministry labour-management - 10 - committee that dealt with various matters including policy issues, grievances, matters of broad application throughout the Ministry and other issues which could not be resolved at local levels. [12]From 2000 through 2005, issues of job security were a primary concern and area of inquiry at the highest Ministry-Union levels. In 1996 the Ministry had announced its intention to implement major restructuring, to potentially include closures, new facilities and other major changes such as privatization. The parties entered into a number of agreements and sub- agreements and established a joint implementation committee, later called the transition committee, to monitor the implementation of their agreements and deal with other issues that might arise. Mr. Scanlon was a member of the transition committee from its inception in 2001 until well into 2005. [13]There is no doubt that the primary union focus at the transition committee was on the job security of its existing members. [14]For example, Mr. Scanlon identified, from the trade union perspective, the importance of setting a single surplus date for all affected employees regardless of the actual timing of the closure of individual institutions. He explained that, for his members and, in particular, his senior members, disparate surplus dates could result in those employees being unable to take full advantage of their seniority rights. The parties negotiated what he described as a very complex agreement and conferred ongoing responsibility to the transition committee. It is also clear that, while they may not have been the primary ones, issues arising from the transfer of Ministerial responsibility for young offenders from MCSCS to MCYS were but a piece of a much larger restructuring puzzle the parties were grappling with. [15]In that context, even assuming no change in the essential complement, the ultimate result would see the transformation of COs working for MCSCS in both stand-alone facilities and the youth sides of mixed ones transformed into YWs working for MCYS. [16]The union, on the basis of its views about the resulting impact on job security, resisted these changes. As Mr. Scanlon put it, an MCSCS CO working with young offenders and facing surplus would have a "larger landing pad" than a YW working for MCYS. In any event, the - 11 - issue "fell off the table" when MCYS took over the operation of stand-alone facilities in April 2004 and the incumbent COs were reclassified to YWs. Once these reclassifications were a fait accompli the issue was of no further interest or concern to the union ? at least not to its members on the MCSCS transition team. The COs who remained on the youth side of mixed MCSCS institutions retained their classification. That residual state of affairs was consistent with the union?s job security concerns. [17]Mr. Scanlon also outlined some brief and limited exchanges that took place prior to the reclassification of selected COs and the assumption by MCYS of the operation of the stand-alone facilities. Precisely when this occurred was not clear ? Mr. Scanlon put it sometime between November 2003 and January or February of 2004. Likely in the context of discussions regarding the possible re-classification of COs working on the youth side of mixed facilities (an option the union consistently opposed), one of the employer representatives offered the observation that (presumably in the absence of such a re-classification) any new hires in mixed facilities could be paid less than those newly hired to work in stand-alone facilities. [18]According to Mr. Scanlon?s concise evidence on the point, the union neither agreed with nor challenged the propriety of the assertion. Rather, it once again identified job security as its primary concern. And there was no agreement between the parties either then or in their subsequent written and signed agreement(s) that new hires in the mixed facilities would (or would not) be paid at the CO1 rate. Similarly, despite the conversations about reclassification of existing COs working with youth offenders, there was never any discussion whatsoever between the parties of classifying (however imprecise the term may be in the context) new hires in mixed facilities as YWs ? neither party raised that issue. [19]Mr. Scanlon also provided some evidence to clarify the nature and, to some extent, history of the underfill policy described in paragraph v. of the parties? agreed facts. [20]In 1998 the parties entered into an agreement regarding ?rollovers?, i.e. the process through which MCSCS employees advance to classified positions. That agreement included the following: - 12 - In recognition of the fact that unclassified Correctional Officers receive the equivalent basic training as classified Correctional Officers, existing unclassified Correctional Officers who have worked at least 1912 hours as a Correctional Officer will be reclassified from CO1 to CO2 effective the signing of this Memorandum of Settlement in accordance with the principles of Article 7 (Pay Administration) of the Collective Agreement. Notwithstanding that this Memorandum of Settlement is without prejudice or precedent, the parties agree that the above paragraph, can be relied upon at the Grievance Settlement Board as being with prejudice for the purpose of determining only those previously filed grievances pertaining to the difference between CO1 and CO2 pay levels of unclassified Correctional Officers who have completed the required training. [21]I pause to note first that, despite the perhaps unfortunate use of the word ?reclassified? in the first of the above two paragraphs, there is no doubt that this paragraph relates to issues of pay not classification for unclassified COs. [22]Second and although it may be less than clear (particularly in view of the second paragraph) that this provision, signed in 1998, applies to other than (then) ?existing unclassified Correctional Officers who have worked at least 1912 hours??, it appears from paragraph 5 of the parties? agreed facts that the this practice of ?pay promotion? has continued. [23]Returning to Mr. Scanlon?s evidence, he expressed the view that, through the underfill policy, the CO1 classification had ?in effect? been eliminated and that the CO1 pay rate had become, again effectively, the bottom of the CO2 rate. Thus, one might suggest the only difference between a CO1 and a CO2 is time, i.e. 1912 hours. [24]The purpose of the underfill policy is to provide new COs with training ? an opportunity to learn different jobs, work with more experienced staff and to be paired with a mentor before becoming capable of working in virtually every area of the institution. [25]There was no specific discussion in the transition team of the application or non- application of the underfill policy to any future employees hired to work with young offenders on the youth sides of mixed facilities. The union was aware that such new hires would be hired or at least designated by the employer as COs. - 13 - The positions of the parties [26]The parties have joined issue on the question I am to determine at this stage of the proceedings. Article 31A.2.1 of the collective agreement requires unclassified employees are to be paid at the ?rate of the equivalent civil service classification?. I am asked to determine what the equivalent civil service classification is in regard to the ?new recruits? i.e. the grievors who were hired after April 2004 to work with young offenders on the youth side of HWDC. [27]The union?s position is simple and straightforward. The central focus in any determination of the equivalent civil service classification must be on the core duties of the work performed. And while that type of inquiry can, in other circumstances, be protracted and complex, such is not the case here. The parties have agreed that there is a substantial overlap, indeed a virtual identity, as between the duties performed by three groups of employees: the new recruits (i.e. our grievors) at HWDC; the classified CO2s working alongside them in the youth side of HWDC; and those persons employed as YWs working in the stand-alone MCYS institutions. And any ultimate determination is made all the simpler by virtue of the fact that the rate of pay for CO2 is the same as the rate of pay for YW. [28]The union also asks, perhaps in anticipation of the employer?s argument, to highlight a few points. At the time of the hiring of the new recruits (and, indeed, apparently since the early 1990s) there were no classified CO1s anywhere in the Ministry, let alone working alongside the grievors at HWDC. I am also asked to be mindful of the significant nature of the changes in recruitment and training of new hires to work with young offenders after the legislative changes followed by the shift of Ministerial responsibility which began in April 2004. The qualifications for hiring became far more rigorous and demanding compared to those that had previously been in place (and that remain in place for persons hired to work as COs in adult facilities); so too did the training and orientation process undergo significant change subsequent to April 2004. The rationale which underlies the underfill policy is of questionable application in these circumstances. [29]In any event, having regard to the undisputed identity of core duties, the union invites me to find that either YW or CO2 is the equivalent civil service classification. - 14 - [30]The employer?s argument is more detailed and nuanced. In summary, it asserts that there are only 3 arguably possible equivalent civil service classifications: YW, CO1 or CO2. It continues by asserting that the YW cannot possibly be viewed as the equivalent civil service classification; that even if CO2 is the equivalent civil service classification, it must be subject to the terms of the underfill policy and that therefore or in any event CO1 is the equivalent civil service classification. In the alternative, and based on the evidence of verbal exchanges (or, indeed, silence) between the parties at the transition table, the union is estopped from advancing its claim. [31]The employer begins by pointing me to the purpose of Article 31A.2.1, relying on comments of this Board in the cases such as OPSEU (Foreman et al.) and Ministry of Education (2005), GSB No. 2002-1806 (Abramsky) and OPSEU (Williams/Barber) and Ministry of Correctional Services (1991) GSB No. 1990-1448 (Samuels). In Foreman,at page 14,the Board observed: The purpose?appears to be to protect the unclassified employees from being paid less than their classified counterparts? And in Williams/Barber at page 10: The critical provision?says that ?The rate of the equivalent civil service classification shall apply?. In our view, this means that the unclassified employee should be paid the same rate as the classified employee who is doing the same work. [32]Extrapolating from those comments, the employer reminds us that the grievors have been working alongside classifiedCOs; they have not been working alongside the YWs they point to in the stand alone institutions, who, in any event, are both unclassifiedand employed in a different Ministry. The grievors do not and could not work alongside the YWs whose rate of pay they seek to replicate. [33]In further support of the conclusion that YW is not the equivalent civil service classification, the employer points to the relevant Class Standards which were filed as - 15 - appendices to the parties? agreed facts. The relevant document in relation to the YW classification clearly states that ?positions of employees working in adult correctional institutions and classified in the Correctional Officer class series? are excluded from the YW classification. In view of the foregoing, the employer submits that YW can not and should not be viewed as the equivalent civil service classification. [34]It follows therefore that the equivalent civil service classification must be either CO1 or CO2. And while the two CO classifications are distinct, they are part of a class series. Referring again to the class standards, the employer notes that the ?Structure of the Series? identifies the CO1 classification as ?the training level? while the CO2 classification is described as the ?fully qualified working level?. That is entirely consistent with the parties? facts and Mr. Scanlon?s evidence about the operation and purpose of the underfill policy. In the typical case, a newly hired CO spends a year at the CO1 pay rate before moving on to the CO2 rate. That policy and practice are long established and should govern in the instant case as well. [35]We were also reminded that this is not the first case where CO1s have grieved seeking the pay rate of CO2s. In both Williams/Barber andOPSEU(Moore) v Ministry of Correctional Services(1996)GSB No. 1992-0595 (Roberts), the Board recognized the requirement to complete training before advancing from the CO1 to CO2 rank. Indeed, even in the more recent case of OPSEU(Yole et al.) v Ministry of the Solicitor General and Corrections (2002) GSB No. 1995-1004 (Briggs) where the union was successful in having the pay rates of unclassified COs adjusted from the CO1 to the CO2 level, the grievors in question had all completed the training period. [36]The underfill policy has been in place for a significant period of time. There was no discussion or agreement between the parties to suggest that the underfill policy would not be applied to the grievors. By seeking the CO2 at the outset of the grievors? hiring, the union is simply asking that the policy not be applied. [37]Thus the employer submits that, even if CO2 is otherwise the equivalent civil service classification, the grievors? rate of pay, as it is for all newly hired COs, was properly placed at the CO1 level. - 16 - [38]Finally, the employer asserts that even if CO1 is not the appropriate rate of pay for the grievors, the union is estopped from advancing the claim by virtue of the discussions and effective representations the union made during the course of the transition committee meetings. Decision [39]The union?s position is attractive in its simplicity: in determining the equivalent civil service classification, there are three distinct groups of employees who merit attention: the grievors; their CO2 counterparts on the youth side of HWDC; and the YWs hired during the same recruitment drive and held to the same qualifications as the grievors. There is no meaningful distinction to be made between the core duties and responsibilitiesof these three groups of employees. There should therefore be no distinction in the level of their wages. [40]I will consider first the employer?s submission that YW ought not to be the equivalent civil service classification. I begin by noting, with some curiousity, that while Mr. Scanlon?s evidence made clear that a number of COs working in what became stand-alone youth facilities operated by MCYS were re-classified as YWs in April 2004, neither party referred in any fashion to this group of (presumably) classified YWs as relevant for the purposes of determining the equivalent civil service classification. Both parties, at least in the context of focusing their submissions on the equivalent civil service classification, referred exclusively to the unclassified newly hired employees designated as YWs in the stand alone facilities (and, of course, the CO2s on the youth side at HWDC). [41]I accept that the purpose of Article 32A.2.1 includes a unique protection afforded to unclassified employees which will prevent them from suffering the inequity of being paid a lesser wage for performing the same work as a classified employee. And, of course, the most obvious example of the type of instance in which this protection would operate would be one where 2 employees, one classified, one not, are working side by side performing precisely the same job while the unclassified employee is being remunerated at a rate associated with a lower rated classification. But while the employer used the ?working alongside? formulation in its submissions, I am not persuaded that this type of scenario exhausts the application of the article. - 17 - And it should be abundantly clear that the circumstances of the instant case are anything but ordinary or typical. [42]Indeed, I see nothing in the language of the collective agreement or the prior decisions of this Board which preclude a finding that the equivalent civil service classification may be found in a different workplace from a grievor?s or even in a different Ministry. Similarly, neither is it clear to me that the operation of that protection requires that there be actual classified employees at work in the classification to be found to be the equivalent civil service classification. If it did, then, on the facts of the instant case as argued by the parties, neither the CO1 (which has not been filled by any classified employees since sometime in the early 1990s) nor the YW (since the only employees referred to by the parties for the purposes of this issue were unclassified) would be available as potential equivalent civil service classifications. [43]Finally, on this point, neither do I see the exclusion of ?positions of employees working in adult correctional institutions and classified in the Correctional Officer class series? from the description of the YW classification in the class standards as an obstacle to a finding that the YW is the equivalent civil service classification in this case. This is not a classification grievance and will not result in the grievors? ascendance to the classified service, let alone a reclassification. The issue relates to rates of pay which must be determined having regard to the equivalent civil service classification. [44]On the facts before me, I am satisfied that the YW is, at least presumptively, the equivalent civil service classification. The grievors do precisely the same work as the YWs, were hired as part of the same recruitment drive, were required to hold the same qualifications which were much more demanding than those typically required of newly hired COs. I am not persuaded that there is any other obstacle to a finding that the YW is the equivalent civil service classification. [45]However, if I am mistaken in this view, I am satisfied that neither is there any obstacle to a finding that the CO2 is the equivalent civil service classification. - 18 - [46]The employer?s argument against such a finding rests on the purported application of the underfill policy. Although there has been much history, development and litigation related to this policy in this Ministry, its precise status remains somewhat elusive. The caselaw of this Board is replete with decisions dealing with questions related to how unclassified CO1s are paid, i.e. when they move to the CO2 pay grade and how they become classified employees. Of course those decisions tend to deal (at least virtually) exclusively with COs working in adult institutions. No such decision was referred to me dealing with COs working with young offenders and certainly none which was decided subsequent to the shift in Ministerial responsibility, the setting of new hiring criteria and the recruitment drive which resulted in the hiring of the instant grievors and the YWs in the stand alone facilities. [47]The parties appear to share a common understanding with respect to the application of the underfill policy in adult institutions. The typical trajectory involves hiring as an unclassified CO, paid at the CO1 rate, with an increase to the CO2 rate after the completion of 1912 hours followed, sometime after that, by eligibility to be converted into a classified position of CO2. [48]The evidence and the caselaw make it clear that the purpose of the underfill policy, i.e. the 1912 hours requirement before pay promotion to the CO2 rate, is to effect the full training required to assume the full range of duties associated with the CO2 classification. [49]The union did not and is not launching any full frontal attack on the propriety of the policy as a general matter. It does, however, take the position that its application in the instant case is inappropriate and unwarranted. I agree. [50]Consideration of the class standards make it clear that while the one year training period as a CO1 (or, at least at that pay rate) is a typical pre-requisite for ascension to the CO2 level (or, at least that pay rate), it is by no means the exclusive route. The parties facts stipulate that the basic requirement/qualification for initial hire as a CO is ?Ontario grade 12 or formal equivalency?. The class standards identify the following as the ?Staffing Standards? for the CO2 Class: One year of satisfactory experience as a Correctional Officer; - 19 - Or an equivalent combination of additional education, and/or experience acceptable to the Civil Service Commission. For example: completion of a Social Science course at a College of Applied Arts and Technology; or completion of an Ontario Hospital course as attendant or hospital aide; or a Registered Nursing Aide certificate. [51]Thus and notwithstanding the general practice, there is nothing to prevent the employer, should it so choose, to hire on the basis of acceptable qualifications in lieu of the one year of satisfactory experience as a CO. [52]It will be recalled that the qualifications required of the new recruits (i.e. both the grievors and those hired to work in the stand-alone facilities) were much more stringent than those associated with either the CO1 or CO2 classes: Successful completion of Post-Secondary education from a college or university of recognized standing in a related field with emphasis in behaviour management, adolescent development, and knowledge of family group dynamics, in addition to one year of recent work experience OR Successful completion of a secondary school diploma with supplementary courses in human behaviour, in addition to three years of recent work experience. Candidatesmust have some experience in working with youth (paid or volunteer). [53] The grievors performed the same duties as the CO2s they worked with on the youth side at HWDC. There was no suggestion (with the possible exception of the 2 week orientation period, during which time there was an opportunity for the new HWDC recruits to shadow experienced staff) that the new recruits, i.e. the grievors, did not, from the outset, assume the full range of duties and responsibilities associated with the CO2 position. [54] Neither am I troubled by any asserted inequity arising from the grievors potential ?early arrival? at the CO2 rate as compared to the classified CO2s on staff at the - 20 - time of the grievors? hire. The 89 classified CO2s in the HWDC Youth Justice Unit at the time MCYS assumed its custodial responsibility for youth may well have been subject to the underfill policy at the commencement of their careers. In other words, they may well have become qualified for the CO2 positions they ultimately occupied on a classified basis by completing a training period while designated (and paid) as CO1s. The grievors (like the YWs hired as a result of the same recruitment drive) should not be required to do so. They had to meet the much more stringent and demanding qualifications set for new hires whether in mixed or stand-alone youth facilities. In other words, while the CO2s may have become qualified for their positions and pay rates by virtue of the extended training period they completed, the grievors arrived at their positions fully qualified (having met the much more stringent qualifications than those applied when the CO2s were first hired) and immediately assumed all of the duties and responsibilities performed by their classified co-workers. [55] In that context, I am satisfied that there is no need or requirement to apply the terms of the underfill policy to the grievors. I am thus satisfied that CO2 is the equivalent civil service classification. [56] This brings me finally to the employer?s alternative argument, i.e. that the union ought to be estopped from asserting its claim. [57] This claim is premised on the union?s conduct, really its silence, in the face of an employer statement at a meeting of the transition committee. Its foundation, at its highest, emerges from the fact that the union successfully, in part, resisted the employer?s suggestion that (in anticipation of the transfer of ministerial responsibility) COs working with youth at both stand alone and mixed facilities should be reclassified from COs to YWs. As we have seen, the COs at the stand alone facilities were reclassified at the time MCYS assumed operational responsibilities for those institutions. At the union?s behest, however, no such reclassification occurred in respect of the COs working in mixed facilities. Had the union taken a different position, it may well be that the instant grievances might have been unnecessary as new recruits may have been designated and paid as YWs rather than as CO1s. - 21 - [58] During the course of a discussion on this point, an employer representative opined that continuing resistance to the reclassification might result in new recruits at mixed facilities being paid at the lower CO1 rate as compared with those hired at the stand alone facilities who would receive the higher YW rate. The union did not directly respond to that but emphasized its primary concern was job security. Beyond that tangential comment, the subjects of rates to be paid to new recruits in mixed facilities and the application of the underfill policy were not the subject of discussions, negotiations or agreement between the parties. [59] In that context I am asked to conclude that the union knew full well that the employer intended to pay new recruits at the CO1 rate and (perhaps a different manner of expressing the same point) intended to apply the underfill policy to those recruits. The union, by failing to challenge that announced intention must be taken to have acquiesced and should not now be permitted to challenge its application. [60] An estoppel requires a representation, by words or conduct, intended to affect the parties? legal relations. Generally, the import of the representation is an indication that a party will not insist on its strict legal rights. That, of course, is not sufficient to establish an estoppel. The party asserting that it would be inequitable to permit the other to insist on its strict legal rights must also establish some detrimental reliance on the representation to establish the equitable claim. No doubt the typical type of detrimental reliance relates to loss of bargaining opportunities. [61] In my view, the facts of the present case fall well short of establishing any estoppel. [62] At the outset, it is important to recall what the parties were discussing and what the union?s objective was. These discussions arose in the context of massive restructuring activities announced and ongoing at the Ministry. Understandably, the union?s focus was on job security and ways to insure no or limited job losses. The main subject of these discussions was not hiring. The union was tending to the rights and security of its members, i.e. existing employees not new hires. Indeed, although Mr. Scanlon could not be precise about the timing of events, it is - 22 - clear that the discussion relied upon occurred well before the transfer of ministerial responsibility and the recruitment drive that resulted in the grievors? hire. The parties were engaged in a discussion whose primary focus was on the management of the impact of restructuring on existing employees. [63] More importantly, there was no explicit representation on the part of the union that it would not be relying on the terms of the collective agreement or any particular portion thereof. At best, that conclusion is to be inferred from its response or lack thereof to a comment which was perhaps somewhat incidental to the main focus. But even if one were inclined to infer the message the employer asserts it received, I am unable to conclude, whether the communication is assessed objectively or subjectively, that there was any intention on the union?s part to affect the legal relations between the parties. The issues that underlie the grievance before me were not the subject of any meaningful discussion or agreement between the parties. [64] And finally, even if the above obstacles to the establishment of an estoppel could be overcome, I am at pains to see what possible detrimental reliance the employer suffered as a consequence. There is no evidence of any. Certainly there was no lost bargaining opportunity. All of the relevant events (from the ?discussion? to the implementation of the ministerial change to the hiring of the grievors and to the first grievances filed) occurred during the currency of the same collective agreement. (In fairness and to be more precise, the stated term of the agreement terminated on December 31, 2004 and the first grievance was filed in June 2005. However, the next agreement was not entered into until August 31, 2005 ? so to the extent the union might have been seen as resiling from its representation, the employer was not ?robbed? of any opportunity to address the matter in bargaining. But, in any event, there was no evidence of any such detrimental reliance.) [65] The highest case to be made for detrimental reliance (again without any supporting evidence) is that the union, effectively said it would not grieve the pay rates of new hires at the mixed facilities who were paid at the CO1 rate and should be held to that representation. That does not constitute detrimental reliance. The employer has not established any evidentiary foundation in that regard. Indeed, the irony of course is that the employer is at pains to assert - 23 - what it might have done differently. Perhaps it might have insisted on the general reclassification of the entire group of COs in all youth facilities ? had that been their response to a union protestation, the instant grievances would not have had to have been filed. [66]In any event, I am not persuaded that the facts before me give rise to any estoppel. [67] In view of the foregoing I am persuaded that YW is the equivalent civil service classification. Alternatively, the equivalent civil service classification is CO2 (which, with respect to the associated pay rate, is identical to YW). [68] I hereby remit these matters to the parties so that they may attempt to finally resolve them in view of my determination. I will remain seized with respect to issues of remedy or implementation and with respect to any other issues which remain outstanding between the parties in respect of these matters. I note as well that the employer has specifically reserved its right to raise timeliness issues with respect to at least some of these grievances. th Dated at Toronto this 7 day of September 2010. Bram Herlich, Vice-Chair