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HomeMy WebLinkAbout1982-0327.Barnard.83-03-22Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: OPSEU (D.G. Barnard) - And - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer J.W. Samuels Vice Chairman M. Gibb T. Traves. Member Member For the Grievor: P.A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: T.W. l~heeler Classification and Pay Administration Section Personnel Branch Ministry of Transportation and Communications hlarclr 7, 1963 / CONTENTS Introduction . . . . . . . . . . . . . . . . . . . . . . . . 1 The Relevant Class Standards . . . . . . . . . . . . . . . . 1 The Grievor's Job . . . . . . . . . . . . . . . . . . . . . 3 The Job of an S.I.O. 3 in another Ministry . . . . . . . . . 6 ._ Conclusions . . . . . . . . . . . . . . . . '. . . . . . . . 7 List of Exhibits . . . . . . . . . . . . . . . . '. . . . . . 10 Appendices 1. Class Standard - Safety Instruction Officer 2 . . . . 11 2. Class Standard - Safety Instruction Officer 3 . . . . 13 3. position Specificatiomof the Grievor , . . . . . . . 14 4. Position Specification of Mr. Scott . . . . . . . . . 17 The grlevor is employ& by the MinLstry as a.Staff Safet'y Officer in the Northwestern Region of the Provi~nce. He works out of an office=. in Kenora. The headquarters of the Region is in Thunder Bay, and his supervisor there is ?Ir. Carl Gaebel. The grievor is classified as a Safety Instruction Officer 2. He claims that he is improperly classified and should be a Safety Instruction ‘.Officer 3. The Union argues the improper classification on two grounds firstly, that A simole reading of the Class Standards and the Positiol Specification of the griever shows that the proper classification is S.I.O. 3; and secondly, that the grievor is doing essentially the same work as a man classified as an S.I.O. 3 by the Ministry of Government Services. THE RELEVANT CLASS STANDARDS The jurisprudence of this Board is clear that the employer has the power to establish the Class Standards, and that the Board is confined to a determination of whether or not an employee is Droperly classified according to these Standards: see, for example, Brick, 564/80, at page 48 and following. In this case, the Standards for the Safety Instruction Officer series orovide, for the second and third levels as is set Out in P.ppendices 1 and 2 to this award. ',i, This Foard has recently commented on the distinction hl?tWeCZil t>~r? t"ir St72?arcl- in L?jLt2c, 38R/R2. In Particular, the Board w.=+ of the vinw that tha "central core" or "distinctive character" Of the S.X.O. 3 classification was the supervision and coordination of rctivlties involved in the jobs so classified (see pages I.0 and 11). 'Ye do not disagree with this earlier decision, b\C. ;.: t.?ouSd h? use: 7~1 tn exp.lor? the matter further. . _ in the f?.rst place, the Safety Instruction Officer 2 is a full-time staff position with large responsibilities. According to the Class Definition., the classification covers safety promotion work in a Ninistry "Idith an extensive well-developed program of accident prevention through education and instruction". The employee may be "responsible for the implementation of the complete safety program in an assigned district", and will be "supervised by a senior officer at head office or the senior official of the region". The Class Definition and the Characteristic Duties indicate that the S.I.O. 2 will he involved in programs designed to teach employees to preve!nt accidents and to avoid occupational health and safety problems, end will undertake direct supervision of working conditions, i' with some authority to issue safety instructions; The work may involve contact with subordinates, line supervisors, and members of the public. Secondly, the Class Standard for the Safety Instruction Officer 3 is in many ways similar to the Standard for the S-1.0. 2. Both classifications are involved with "programs designed to oromote safety meacures in work habits and recreati,on activities." There .=re ma?!, similarities in the Characteristic Duties of the two l.ove1.s. The distinctions between the two Standards are more in , matt-.r.5 of tdr?orec than in sharp contrasts. From the Class Definition <or the S.I.O. 3, one develops the impression that this employee has some specializ~ed training, and, he does "specialized safety promotion l.rork'". Ilis involvement with P program extends from the L.planning, through the ewecution, to the evaluation of the results of the program. He will "co-ordinate all phases of the program including the evaluation cf eguipment, ~the development of training manuals, the instruction and supervision of subordinate officers, and the assessment of results". The employee will rely not only on prepared, pro-existing ideas and materials, but will be involved with the "constant development of original and effective promotional methods, together with re-evaluation of existing methods". The S.I.O. 3 may be responsible for a program which is in place widely in the Province. His work may extend to the recommendation of changes or additions to the legislation. Searing this in mind, grievor. let us turn to the job done by the THE GRIEVOR'S JOB In late 1082, the griever's job was re-evaluated, and a new Position Specification was developed. He had the opportunlty to comment during the re-evaluation, and it appears that his views were taken into account. His job is now described accurately in i In short, this Position Specification describes the griever's part in the implementation of the Ministry Directive conc~3~.nq occupa.tiona- 1 health and safety !Exhibit 5). which gives .--the. Regional Safety Offices certain responsibilities. "Each Regional Safety Office is responsible for ensuring the implementation of Ministry health and safety policies and programs by:- Providing the Occupational Health & Safety Office with input into the development of, policies and programs. Providing advice and technical expertise to Regional Managers and Joint Health and Safety Committees as required. Implementing within the assigned Region, approved Ministry health and safety programs. Providing the instrumentation and expertise to run medical surveillance and environmental testing programs. Providing training in health and safety to all employees. Regularly inspecting the work places to audit the effectiveness of the health and safety program. Developing and implementing health and safety programs to meet local needs." In the -7rea around Xenora, it is the griever who is responsible for fulfilling these responsibilities, under the supervision of Mr. Carl Gaehel. Tn nracticc, because of the distance between the griever and Mr. gaebel, the griever has very little supervision. In - - , - oarticular, when the griever inspects work sites and finds safety problems, almost invariably he is able to rectify the situation by consulting with the line supervisor (eg. a construction foreman), making appropriate recommendations, and then checking back to ensure that his recommendations are carried out. The Position Specification may not make this absolutely clear, because.it refers several times to reporting to the Regional Staff Safety Supervisor in order to deal with problem situations. The evidence of both the grievor and Mr. Gaebel is clear that almost always problems are handled by the grievor on a local level with no consultationwith his supervisor. The grievor does not supervise any subordinate safety officers. ! The griever's job does not involve any significant' contacts ' with the public. He deals almost entirely with operational staff in the Ministry. A significant part of the griever's work is in the area of audiometric testing. He has taken several one or two-day courses and is certified to do this testing, as,part of the general program to prevent hearing loss. Insofar as instruction is concerned, normally the griever uses prepared materials. It is fair to conclude from the evidence that he does not develop programs or instructional material. He is not responsible for original and effective programs or material. The gricvor.is not doing "specialized" work, in the sense that the work he does is of the same type as would be done thro]]ghout the Province. .The audiometric testing is not "specialized" work, hut can be done by anyone with the brief training that the griever has. In our view, the word "specialized" in the Class Standard for the S.i.0. 3 refers to work which would not be done widely, but . . only by a few people with special training, requiring a significant period of time. Such an employee might then be called upon to use his training over a significant geographical area, spanning several Regions, and might be called upon to teach others how to do this "specialized" work. In sum, the grievor is responsible for the implementation af the Ministry's broad program for occupational health and safety in his geographical area. THE JOB OF AN S.f.0. 3 IN ANOTHER MINISTRY -- The Union argues that the gri~evor's job is substantially the same as the job done by Mr. W. Scott, who is a Regional Safety Officer Queen's Park, in the Ministry of'Government Services, and who is classified as a Safety Instruction Officer 3. Mr. Scott testified concerning his job, and we received two versions of his Position Specification (Exhibits 10 and 11). We are satisfied that Exhibit 11 is the current one, and it is Set ollt in Appendix 4 to this award. - ‘3 - In,short, "r. Scott spends most of his time on fire safety. HP instructs the occupants of government-leased and government- owned buildings on fire precautions and emergency procedures. His contact is with building occupants, owners, contractors and other Ministries involved. He develops training materials and evacuation plans specially for each building concerned. He has the authority, under contracts between the Provincial Government and building _. owners or contractors, to issue orders to rectify hazardous situ- ations. He has completed four parts of the Ontario Fire College Fire Prevention Course --which took-eight weeks to accomplish. While Mr. Scott is currently classified as an S.I.O. 3, the evidence at our hearing disclosed that the Ministry of Government Services reviewed his position 'in 1982 and concluded that it should be classified as an S.I.O. 2. However, that Ministry is n,ow under- going a reorganization and no change in the classification has been made in fact. CONCLUSIONS - - The grievance in Maitland and the grievance.here arise out of the fast that there appears to be some difference in the waY in which the various Ministries have classified their safety officers. In the Northwestern Region, for example, the safety officer on the spct for the Ministry of Government Services is classified es an S.I.O. 3, and so iS t, he man from the Ministry of Natural Resources. The grievor is an S.I.O. 2, and so is the man from the Ministry of the Environment ( it was' this Ministry which - 10 - was involved in Maitland). There may indeed be differences in the jobs done by these various employees. However, there is a perception that the classification has not been done in the same fashion. In Maitland, the grievance was denied. Turning first to the comparison between the griever's '-. job, and that of Mr. Scott, we do not think that they are suffi- ciently similar to compel the same classification. In particular, Mr. Scott's primary function involves fire safety and he has had considerable special training in order to fulfil this responsibility. He must do considerable original work in the development of emergency plans and instructional materials for particular buildings. He must pull together material from a variety of sources in order to develop what is needed for the particular situation with which he must deal. In general, one is left with the sense that his job does involve greater individual initiative and special expertise than does the grievor's. Therefore, it is unnecessary for us to consider the relevance of the suggestion that Mr. Scott is improperly classified. While both the Standard for the S.I.O. 2 and the S.I.O. 3 suggest that the employee in the classification will train sub- , ordinates and deal with members of the public, it is clear that neither of these characteristics is critical. We heard no evidence about any Safety Instruction Officers who trained subordinates or dealt with the public. Doubtless there are some who have these characteristics, but clearly it is not necessary to have either one in order to be an S.I.O. 2 or an S.I.O. 3. s .’ - 11 On behalf of the grievor, Mr. Sheppard urged this Board to find that the S.I;O. 3 Standard was the "best fit" for the griever's job. With great respect, we suggest that this is not the approach to be taken. The first issue for us is whether or not the grievor is properly classified as an S.I.O. 2. If we decide that he is not properly classified as an S.I.O. 2, then we must go on to determine whether he would be properly classified in -'the classification suggested by the grievor. The Ministry argued, by means of an exhaustive analysis of the griever's Position Specification in light of the Class Standard for the Safety Instruction Officer 2, that the griever's job was encompassed by this Standard.. We agree with this analysis. The S.I.O. 2 covers positions involving the full-time administra.tion of a general safety program in a geographical area, under the super- vision of a senior official at head office, or the senior official in the region. This is precisely the case of the griever: His job does not involve the degree of individual responsibility and origi- nality which appear to be significant in the Standard for the S.I.O. 3. (, For these reasons, the grievance is dismissed. Done at London, Ontar "l~artial Dissent" (see attached) T. Trnves ~Member 5.: 2400 1. 2. 3. 4. 5. 6. . . 7. 8. 9. 10. 11. 12. 13. .- LIST OF EXHIBITS Class Standards - Safety Instructional Officer Position Specification - Staff Safety Officer Proposed Position Specification - Staff Safety Officer Extract from Application for Employment I'Administrative Safety" - Directive A-l Building Fire and Safety Inspection Report Back Care Programme, Instructor's Manual Organization Chart Memorandum,'December 7, 1982 Position Specification - Regional Safety Officer, Ministry of Government Services (date uncertain) m, 1978 Position Description - Staff Safety Supervisor Memorandum,of September 29, 1992 3 >.I - Appendix 1 SAFETY INSTRUCTION OFFIC'ER .2 CLASS DEFINITION: This class covers full-time safety promotion work in a Department with an extensive well-developed program of accident prevention through education and instruction. These programs ,are designed to promote safety measures in work habits and recreational activities. Employees in this class may be in charge of one spe- cialized activity of a program such as Hunter Training for the province with responsibility for securing compliance. In these positions, duties include the evaluation of equipment, the develop- ment and distribution of safety materials and the training of departmental personnel and members of interested groups. It may also cover technical supervision of other safety instructors. In other positions, such as those,of the Accident Prevention Organizers in the Department of Transport, the employee is responsible,for the implementation of the complete safety program in an assigned district. They publicize and promote interest in all aspects of the program by~distributing safety materials, addressing groups, arranging for any.demonstrating equipment, and inspecting areas requiring spec.ial measures. These employees are supervised by a senior officer at, head office or the senior official of the region. CHARACTERISTIC DUTIES: Train and supervise subordinate officers in all phases of the program. Contact line supervisors, educational groups, municipal councils and other specialized groups to publicize the program, promote interest and secure compliance or co-operation; provide infor- mation and material: 'address interested groups. Lecture departmental personnel and others in the fundamental ~principles and methods of accident control, first aid, resusci- tator and artificial respiration, fire prevention, driver education and traffic safety. Demonstrate the proper use of equipment and provide instruction to specialized groups such as gun clubs and sports groups. Investigate accidents and prepare analytical reports. Compile statistics on accidents; recommend changes in work methods or legislation and may revise training manuals. Inspect departmental establishments and equipment for conformance to safety standards: issue safety instructions. Prepare or assist in the preparation of bulletins, circulars, training manuals and demonstration sets. Arrange special competitions. Attend conferences and refresher courses. - ,s - Appendix 2 SAFETY INSTRUCTION OFFICER 3 CLASS DEFINITION: This class covers specialized safety promotion work in a Department with an extensive, well-developed program of accident prevention through education and instruction. These programs are designed to promote safety measures in work habits and recreation activities. Employees in this class co-ordinate all phases of the -program including the ev.aluation of equipment, the development of training manuals, the instruction and supervision of subordinate officers, and the assessment of results. The work requires constant development of original and effective promotional methods, together with re-evaluation of existing methods. In some positions employees are responsible for the implementation of a program which covers a variety of activities in a large area of the province. This 'class also includes positions of directors of programs such. as the Director of Safety Education, Department of Transport who supervises a number of field officers in assigned districts throughout the province. CHARACTERISTIC DUTIES: Train and supervise subordinate field safety instruction officers in all phases of the program.. Supervise the development and preparation of training .manuals, bulletins, demonstration sets, and methods'of presentation. Lecture departmental personnel and others in the fundamental principles and methods of, accident control, first aid, resus- citator and artificial respiration, fire prevention, driver education and traffic safety. i Contact line supervisors, educational groups, municipal councils 'and other specialized groups to publicize the program, promote interest and secure compliance or'co-operation. Inspect departmental establishments and equipment for conformance to safety standards; issue safety instructions. Advise on use of new or existing equipment to reduce accident hazards. Assess departmental accidents, compile statistics and develop preventive procedures; follow up to ensure instructions are being enforced. Recommend changes or additions to legislation. Attend conferences and refresher courses for the purpose of updating methods and manuals; assist in planning and conducting conferences. Appendix 3 Position Specification for Staff Safety Officer Northwestern Region Ministry of Transportation and Communications , . . Prepared in late-1982 Purpose of Position To organize and conduct an effective safety program of health monitoring and comprehensive safety training within an assigned area of the Region. To~ensure all work is performed in a safe manner and in compliance with applicable legislation and ministry policy to prevent injuries to employees and damage to ministry property. Summary of Duties and Responsibilities 1. Under the general supervision of the Regional Staff Safety Supervisor, plan and conducts a comprehensive Health & Safety training program for District and.Regional staff located in the assigned area by: 50% -- -- -- conducting, promoting and maintaining Health '& Safety training programs in motor vehicles and industrial accident prevention, industrial health, first aid, environ- mental hazards, etc., for attendance by assigned ~staff. preparing and giving lectures regarding the safe and efficient operation of motorized equipment ,(e.g., Defensive Driving Course) miscellaneous equipment such as chain saws, etc. and on work practices such as blasting, traffic control,'etc. u conducting courses and instructing District and occasional Regional staff in first aid. lY obtaining educational material including audio-visual ._ - I presentations and other tralnlng aids for use In tne courses. distributing training manuals to staff, recommending manual revisions as necessary to the Regional Staff Safety Super- visor. - 17 - -- -- -- -- -- 2. keeping familiar with and instructing assigned staff as to requirements and revisions to the Occupational Health and Safety Act, Highway Traffic Act, Explosives Act and other provincial and federal statutes related to accident prevention. Co-ordinating the Regional Safety Program within the assigned area and the overall Ministry program under the direction of the Regional Staff Safety Supervisor. Promotes accident prevention and safety measures within an assigned area of the Region personally by: providing on-the-job training for District staff and Regional staff located in the assigned area, and working with Supervisors to ensure they are aware of their responsibi1itie.s for the saf.ety of their employees. maintaining records for courses so that refresher courses can be conducted within pre-determined time limits. promoting accident prevention educational programs initiated by Staff Safety Section through display of posters, distribution of pamphlets, bulletins and other related materials. 20% -- -- -- ( -- 3. 5% ~-- i motivating supervisors and employees to follow safe working practices. conducting' audiometric testing of all employees and conducting back fitness tests of all assigned employees and giving advice to seek medical assistance when necessary and reporting findings to Head Office. acting as,adviscr in all matters of safety to the Area Joint Health and Safety Committee and District supervisory staff and Regional supervisory staff located in the assigned area. maintaining liaison by meeting and reviewing specific problems with the O.P.P. detachments, municipal police departments and other public and private organization interested in accident prevention. enforcing through supervisory staff applicable safety regulations imposed by outside authorities and those of the Ministry. Investigates major accidents by: providing advice and assistance to the District and Regional staff located in the assiqned area in the investigation of all Ministry fatal accidents and other major mishaps in- volving Ministry personnel and equioment. - 16 -- -- -- 4. reviewing accidefit reports prepared by supervisors to ensure that,corrective measures are taken to prevent accidents. maintaining a standard record system for all District accidents and related material. ensuring that supervisors take corrective action to prevent recurrences. reviewing resulting W.C.B. cases and visiting injured employees to discuss and advise on their proper course of action. Inspects all assigned buildings, trailers, patrol offices, other construction and maintenance operations and installations within ass.igned area for potentially unsafe conditions involving fire and first aid protection, machine guarding, electrical wiring, tools and equipment, contamination from fumes, dust, paint, noise, etc. 15% -- conducting sound level surveys in buildings, equipment and the environment. -- ensuring that fire protection equipment is suitable and in good operating order, conducting yearly physical inspections and auditing monthly visual inspections of all fire extinguishers. -- reporting to the Regional~Staff Safety Supervisor and appropriate supervisors on completion of inspections with recommendations as to how unsafe conditions can be elimi- nated. 5. 5% Submits report,s as requested on accident experience and the status of preventative measures in the assigned area ,to the Regional Staff Safety Supervisor: recommending any changes in legis- lation or Ministry policy to the Regional Staff Safety Supervisor deemed necessary to improve accident prevention methods. 6. Performs other related duties; .such as: 5% -- assisting Districts in conducting their Annual District Roadeo competitions. -_ attending coursesofinstruction to up-date knowledge on preventative measures as assigned. -- assisting the Regional Staff Safety Supervisor periodically. Appendix 4 Position Specification for Regional Safety Officer Queen's Park Ministry of Government Services Prepared in April 1978 Purpose of Position To administer a regional program of safety inspection and instruction for all MGS construction sites and provincially owned or leased buildings. To assist Safety Supervisor in co- ordination of Provincial Safety Programs. Summary of Duties and Resoonsibilities 1. Administers the regional safety .inspection and instruction programs covering fire, construction and any other areas which may constitute a safety hazard by performing tasks such as: - 40% -- -- -- -- 2. assessing requirements, reviewing and assessing results to facilitate program improvements; conducting investigationsof all significant ~accidents; developing regional safety instructional programs, including the provision of job safety meetings, lectures, etc. and devising appropriate lecture methods for the various special regional courses including the determination of educational literature and visual aids; arranging and conducting meetings with officials of municipalities and other government departments to co- ordinate safety activitiesanddefine areas of responsi- bility. Inspects regional buildings and construction sites to ensure conformity with safety requirements: 55% -- issuing comply orders to building superintendents, owners of leased premises, M.G.S. supervisors and contractors' representatives, directing the discontinuanceof safety violations and arranging' for appropriate remedial measures -- issuing stop work orders when necessary. 3. Performs other auxiliary duties such as: 5% -- preparing and submitting reports to supervisor: . -- as assigned. - 20 - While I concur in the final decision to deny the grievance and the general grounds advanced for this decision, I wish to enter a partial dissent respecting two parts of the award. First, I do not accept the interpretation placed upon the term "specialized work" at p.6 of the award. On the basis of the evidence advanced I see no reason to accept the proposition that "specialization" entails a consideration of the nu+er employed in a task or the geographical extent of the area in which the service is offered. A lawyer, for example, performs specialized work and neither the numbers pursuing this vocation nor the extent of their practice detracts from the validity of what I would take to be a widely held view that this is a specialized occupation. Furthermore, I am disturbed that the emphasis upon "special training, requiring a significant period of time" is imprecisely worded and is therefore susceptible to misinterpretation in. future grievances of a similar character. what constitutes "special training", and what is a "significant" training period? We did not hear evidence or argument On these points and under the circumstances I do not feel that this Board is in a position to offer any views on the subject. Second, I would go beyond the conclusion advanced on p.8 that "it is uimecessary for us to consider the relevance of the suggestion that Mr. Scott ~, l&e S.I.0.3 to whom the grievor was compare27 is improperly classified". In my view, the practice of discrediting class .comparisons by claiming that the higher ranked employee is misclassified is too frequently advanced as an argument in cases such as this. Given the Employer's acknowledged right to classify its employees, it seems to me to be a most curious and completely unacceptable argument to advance the claim that such comparisons are invalid on the basis of .so-called past err& by the hnployer in this area. Board Member td 17/3/P3