HomeMy WebLinkAbout1984-0558.Canning et al.85-07-05180 DUNDAS STREET WEST. TORONTO. ONTARIO M5G 1Z8 -SUITE 2100
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Before
TO THE PARTIES
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REGISTRAR
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
For the Grievors
For the Employer
Hearing
Before
OPSEU (D. W. Canning, et al)
and
The Crown in Right of Ontario
(Ministry of Government Services)
G. Brent Vice Chairman
K. O’Neil . Member
W. D. Shuttleworth Member
R. Anand
Counsel
Jack, Harris, Anand
Barristers and Solicitors
P. D. Van Horne
Manager, Staff Relations
Ministry of Government Services
February 6th, 1984
TELEPHONE: 416/598-0688
558/84
Grievor
Employer
2
There are eight classification grievances (Ex.1) before the board,
all dated June 5, 1984, and each claiming that the particular grievor is
improperly classified as Real Estate Officer 2 and should be
reclassified as A.M. 17. The grievances all allege improper
classification pursuant to Article 5.1 of the collective agreement and
section 18(2) of the Crown Employees Collective Bargaining Act. The
Employer has raised only one preliminary objection, which goes to the
Board's jurisdiction to grant the remedy sought by the grievors because
the classification claimed
is in the Management Compensation Plan
(hereinafter referred to
as MCP). The Real Estate Officer 2
classification is a classification within the "traditional
classification" system, and
it is agreed that the grievors are all
employees within the meaning of the Crown Employees Collective
Bargaining Act, R.S.O. 1980, Chap. 108. (hereinafter referred to as the
Act) and are all bargaining unit members.
Before setting
out the positions taken by the parties, it may be
useful to relate the history of the grievances which are before
us and
how they came to be before this Board
at this time. In 1983 the
grievors filed identical grievances which were processed through the
grievance procedure and filed with the Board to be set down for hearing
(GSB File 334/83). The Employer questioned the Board's jurisdiction and
the Registrar of the Board communicated this to the grievors by letter
and forwarded to them the interim decision rendered in Patrick & Baker
(GSB File 547/80). Following receipt of that letter the grievors
indicated to the Employer that they accepted that this Board lacked
jurisdiction to deal with their grievances and that the matter should be
brought before the Public Service Classification Rating Committee
(hereinafter referred to as the Committee). The Employer notified the
3
grievors that it was taking the position that the Committee lacked
jurisdiction to deal with the matter.
On March 22, 1984 a hearing was held by the Committee and a
decision was rendered on May 16, 1984 (File C-858/84). That decision
sets out the history of this case in greater detail than we have and
should be referred to if a more detailed account of the background of
this case
is desired. In determining that it lacked jurisdiction to
hear the matter the Committee said the following, at pages 11 to 13 of
its decision:
....... Throughout the whole proceeding there
is no evidence that these grievors felt frustrated
in that they were denied natural justice. Their
counsel made it clear he represented them and not
the Union. He said they agreed they were members
of the bargaining unit and that their status
was
not an issue. As management and the grievors were
agreed no contrary argument could be made to the
Tribunal. Clearly they had no desire to go there.
Likewise, they personally agreed by signing the
letter of August 9th ... that the Grievance
'Settlement Board lacked jurisdiction. It was only
after they personally took this action that the
Union withdrew the grievance. Therefore,
we must
conclude, that neither management nor the Union
combined against them to deny them justice. In
essence, the procedure provided under Articles 27
and 5 of the Collective Agreement was not waived by
anyone. The grievors simply decided not to follow
that route. In so doing they failed to distinguish
between the Grievance Settlement Board's clear
jurisdiction to decide if they were improperly
classified and its lack of jurisdiction to grant
the remedy sought i.e. reclassification into the
Management Compensation Plan. Now they wish this
Committee to assume jurisdiction to do both things
to declare they are improperly classified and to
grant the reclassification requested. As already
stated, the Brown decision is clearly based on the
actions of the
parties preventing Ms. Brown from
having her 'day in court' either before the
Tribunal or the Grievance Settlement Board. Here
it was the grievors themselves, albeit with the
concurrence of the Ministry, who readily agreed
neither to have status determined by the Tribunal
nor improper classification by the Grievance
4
Settlement Board. They cannot now be heard to say,
as Ms. Brown was able to do, that they have been
denied their 'day in court'. They agreed that
there was nothing for the Tribunal to decide as
they considered themselves members of the
bargaining unit. They also agreed that they could
not gainreclassificationas requested so didnot
go to the Grievance Settlement Board.
It is our view that the grievors should have
proceeded to the Grievance Settlement Board. Both
Section 19(1) of The Crown Employees Collective
Bargaining Act and the provisions of the Collective
Agreement empowered the Board to decide if they
were improperly classified. If it had decided they
were properly classified the grievance would have
been dismissed on its merits. If it had decided
the opposite, it might well have said, as it did in
547/80, Patrick and Baker,
The best solution to an apparent impasse
seems to us to be that the parties be
directed to meet to prepare an
appropriate c 1 ass if i ca t ion which
recognizes the lesser responsibilities
(here, maybe greater) resting upon the
grievors.
In conclusion, we again emphasize our comments
in the Lansey decision already quoted. The
respective routes for resolution of grievances by
members of the bargaining unit and those outside
the unit,
are, in our view, clearly defined. Those
in the bargaining unit must follow the provisions
of the Collective Agreement and the others the
procedure provided in Regulation 881 under the
Public Service Act. It is accordingly our decision
that we have no jurisdiction to entertain this
grievance so it is dismissed.
Following that decision the grievances which are before us were
filed. The parties agreed that because the issue of remedy is
fundamental to the matter they would seek a ruling from the Board before
determining how to proceed. Both of the parties made detailed
submissions to the Board in which they included the facts on which they
would be relying; as a consequence, we will set out their submissions in
much greater detail than usual.
5
Submissions
It is the Union's position that because this Board has jurisdiction
to determine whether or not the grievors are wrongly classified it
should also have jurisdiction to order that they be classified properly,
either within the MCP or in the alternative to an equivalent
classification. We have been referred to two decisions of this Board:
Hooper (GSB File 47/77 - Supplementary Award) and Patrick & Baker (GSB
File 547/80 - Preliminary Award). The Union asserts that the former is
correct and should be followed; and that the latter is distinguishable
on its own reasoning in cases where grievances are filed under the Act,
should be regarded as having been decided per incuriam because it is
based on several fundamental misunderstandings about the nature of
classification systems, and is wrong in law.
It is the Union's position that questions of classification of jobs
and the determination of the inclusion in and exclusion from the
bargaining unit are fundamentally different. It asserts that the idea
of excluded or included classifications is really an internally
inconsistent concept and that while, as a matter of fact, some
classifications may be occupied only by persons who are excluded from
the bargaining unit or only by those included in the bargaining unit,
such a result is an accident. It points out that the Act in defining
"employee" in section 1(1)(f) and "person employed in a managerial or
confidential capacity" in section 1(1)(1) makes no reference to
classification. It also argues that in determining whether or not a
person should be included
in or excluded from the bargaining unit the
Ontario Public Service Labour Relations Tribunal (henceforth referred to
as the Tribunal) ignores classification. It says this is because
classification decisions
are made using different criteria than those
6
used to determine status.
The Union
asserts that the parties have the ability to mold the
contours of the bargaining unit and refers us to the discussion in
Zuibrycki (GSB File 100/76). In the case before us the parties have
agreed that the grievors are employees, that is, that their positions
are included in the bargaining unit. In that case there was also
agreement concerning the status of the person. The Union submits that
any position within the service of the Government of Ontario is a
collection of specific duties and responsibilities assigned to an
individual who performs them. It further submits that classifications
are generalized levels of work based upon compensable factors and that
positions are then allocated to classifications and wage rates attached
to the classifications. It says that when the Tribunal looks at
questions of status it looks at the persons or positions alone.
The Union explained that until the late 1970's there was only one
system of classification used to classify all positions, whether in or
out of the bargaining unit. That
was the situation when the Hooper case
(supra) was decided. Beginning in the mid 1970's a new and more modern
system, MCP,
was instituted, and some classifications were gradually
moved over to that system. The process of moving classifications to MCP
is still occurring.
MCP was described to us as a "sub set of the traditional system".
It was said that both systems can be called "grade description systems"
in that positions are compared to those above and below them, but that
neither
is a "pure grade description system" in that positions cannot be
located in a single hierarchy. MCP is said to be somewhat more
simplified than the traditional system in that it has a relatively small
7
number of series. There are five modules in MCP - Technical,
Administrative, Clerical, Operational, and Professional
- and there are
about twenty-three levels in each module. In the traditional system
there are nine categories which correspond
to those modules.
Counsel for the Union drew the
between the two systems:
1.
2.
3.
4.
5.
6.
7.
Traditional
modified grading system
categories
occupation a1 groups
titles and numbers
class standards
more generalized than MCP
with some typical positions
set out
unrelated to exclusion
criteria
compensable factors
are
complexity, variety, etc.
and are consistent only
within a class series
classification is not
negotiated
- the employer
creates
1.
2.
3.
4.
following table of comparisons
modified grading system but
purer more simplified system
than traditional
modules
o ccupational groups
abbreviated titles and numbers
evaluation standards
set out typical positions
5. unrelated to exclusion criteria
6. purer system of compensable
factors than traditional system
7. classification is not negotiated - the employer creates
The Union pointed out to us that there are classifications which
contain some positions which are in the bargaining unit and some which
are out of the bargainingunit. It says that the Employer has created
some parallel classes and class standards which indicate that the
content of the classification
is identical to another one. By way of
example the Union produced three documents (Exs. 3, 4 & 5) dealing with
Accounting Supervisor 1 (Bargaining Unit), Clerk 7, General (Bargaining
Unit) and Correctional Officer 4 (Bargaining Unit) respectively. Those
8
are examples of classifications which refer to another classification
as being identical; namely, 20230 Accounting Supervisor 1, 51012 Clerk
7, General and 50567 Correctional Officer 4. Those identical
classifications
all contain positions which are excluded from the
bargaining unit. The Union also produced a document entitled "CLASS
STANDARDS
- EXCLUDED CATEGORY PUBLIC SERVICE" (Ex. 6) which contains the
following explanation on page 1:
The Excluded Category is composed of positions
where the duties of the position are such that the
most appropriate classification would be a
bargainingunit class, but the position meets the
criteria for exclusion from the Bargaining Unit as
contained in Section 1 of the Crown Employees
Collective Bargaining Act.
The Excluded Category positions are classified separately, and the
Employer has created classifications for those positions even though
they
are positions which would be more appropriate in bargaining unit
classifications. It was the Employer's choice to create these new
classifications even though there
were classifications available into
which the positions could have been placed and designated as excluded.
The Union submitted that if there were a classification which has
been treated by the Employer as containing only excluded positions
without a parallel classification in the bargaining unit and the Union
successfully applied to the Tribunal for the inclusion of one of those
positions, then the parties would be faced with the situation of having
a bargaining unit employee for whom there was no negotiated rate of pay.
By virtue of the status determination one would have a bargaining unit
employee who was properly classified but for whom no rate of pay has
been negotiated because the classification had heretofore been occupied
only by positions which were foreign to the bargaining unit. The Union
9
submits that that is precisely the situation which the grievors would
find themselves in if they were to succeed in their classification
grievance because their status
is not in dispute, and if they were
successful they would be bargaining unit employees who would be in a
classification for which no rate of pay had been negotiated because they
would be the first bargaining unit employees to be so classified.
The Union submits that the Employer could still elect to keep MCP
free of bargaining unit positions by creating a parallel classification
within the traditional system which was the equivalent of the MCP
classification. The parties could then negotiate the appropriate rate
of pay for the new classification in any event. The Union says that it
is not asking this Board to award the grievors the AM 17 rate if they
are successful because this Board's jurisdiction only goes to the
classification and not the determination of the appropriate rate of pay.
The Union also pointed out to the Board that there are many persons
whose positions
are classified under MCP but who are treated as
bargaining unit members by the Employer by having Union dues deducted
from their pay. To this end itproduced a computerprintout (Ex. 7) to
show that the system could accommodate bargaining unit members being
classified under MCP. It was agreed that the list (Ex. 7) shows
bargaining unit members who
are temporarily acting in positions
classified under MCP.
Before the Union had finished making its submissions, the Employer
made some remarks to the Board concerning facts which the Union had
referred to. Those remarks will be set out now before the remainder of
the Union argument is recorded. The Employer indicated to the Board
that it had established two different classification systems with one
for included positions and the other (MCP) for excluded positions. It
10
filed before us the following extract form the Ontario Manual of
Administration (Ex. 9) :
POSITION EVALUATION, MANAGEMENT COMPENSATION PLAN
Management
Compensation The Management compensation Plan
is
Plan : a classification system which
utilizes benchmark factor
comparisons in evaluating positions.
An allocation can be made to a class
level only where the class level has
been established and is exemplified
by a benchmark.
Inclusion
Criteria: Included in the Management
Compensation Plan are those
positions that
meet the:
exclusion criteria of the Crown
Employees Collective Bargaining
Act; and
inclusion criteria of the
groups established in the
Management Compensation Plan.
Management
Compensation The methods of evaluation used in
Plan, Methods classifying a position in the - of Position
Evaluation
Management Compensation Plan are:
. direct benchmark comparison; . bracketing; and . referencing.
Direct Benchmark
Comparison: In direct benchmark comparison,
allocation of the position is made
against one benchmark. The
evaluation method is :
a) Module Selection:
determining the most
appropriate module on a
best fit basis by
comparing:
the nature of the
position's job
function and its
duties and
responsibilities to
the module
definitions; and
11
. the skills required
for the position with
the modules' skill
base;
b) Group Selection:
determine the most
appropriate group on a
best fit basis within the
module selected by
reviewing:
the groups'
definitions; and
their
inclusion/exclusion
criteria;
Although there was no significant disagreement about the facts
relied on by the Union, the Employer did, make some other qualifying
remarks with which the Union did not take issue. In reference to the
parallel classifications referred to by the Union where the bargaining
unit position refers to another classification as being identical, and
using the Correctional Officer 4 (Bargaining Unit) (Ex. 5) as an
example, the Employer indicated that in the mid 1970's that was a
management classification under the traditional system. Under MCP, and
provided that the position met the
exclusion criteria, that position was
classified as OM 14. It was recognized that some ofthe Correctional
Officers 4 did not meet the exclusion criteria and so should not be
excluded from the bargaining unit; therefore, the Employer assigned
those positions to the Correctional Officer 4 (Bargaining Unit)
classification; only those which met the exclusion criteria were
assigned the OM 14 classification in MCP. During the transition from
the old system to MCP there were other similar anomalies discovered
which were dealt with in that way and which resulted in parallel
classifications.
The Employer also pointed out that there are positions which are
12
excluded from the bargaining unit not because they are managerial but
because of the nature of their duties. Those positions are dealt with
in Exhibit 6. For example, the Clerk 3 General is a bargaining unit
position, but there are people in that position who deal with
confidential personnel matters and so must be excluded from the
bargaining unit. Those people do not come under MCP, but they are
compensated according to a separate excluded salary scale.
The parties were agreed that there is no position in the MCP
classification which has been declared to be included in the bargaining
unit
or which the parties have agreed is in the bargaining unit.
The Union relied heavily on the Hooper decision (supra) which it
asserts dealt with the same facts as those which are before us. It said
that that case recognized that classification was distinct from the
determination of employee status and that an order to reclassify does
not take
a person out of the bargaining unit. It further submitted that
the case recognized that the Board's jurisdiction to determine whether
an employee is properly classified is a statutory right in addition to
any rights which may be found in the collective agreement, and the
decision to classify a position in a classification that is currently
under the MCP system could be dealt with through the creation of a
separate equivalent classification within the MCP system or in the
traditional system. The Union
views MCP as a unilaterally implemented
classification system which the Employer seeks to restrict to management
personnel and does not
see anything in the system which precludes any
employee from claiming that his position
is more properly classified
under one of the MCP classifications.
In relation to Patrick & Baker (supra) the Union submits that the
grievances there were brought under the collective agreement alone and
13
not under the Act. Referring to pages 8 and 9 of the preliminary award
the Union asserts that the essence of the reasoning is to be found there
and that that reasoning cannot apply to grievances brought under the
Act. It asserts that in Re Attorney-General for Ontario and Keeling et
- al. (19801, 30 O.R.(2d) 662 (Div'l Ct.) the Court recognized that s. 18
of the Act provides individual employees with rights which are in
addition to and independent of the collective agreement and which cannot
be derogated from by the collective agreement. The Union argues that
while the collective agreement may restrict the Board to regarding
classifications where salary has
been negotiated, it cannot affect the
employees' right under s. 18 of the Act.
The Union also said that when the Patrick & Baker case is read
closely it reveals that the Board was under a fundamental
misunderstanding as to the nature of a classification system and a
misunderstanding of the Hooper decision. It says that there is no
reason why a grievance under the collective agreement should be
restricted to classifications where salary has been negotiated, because
a classification for which no salary has been negotiated is not
necessarily the
same thing as an excluded position. The Union also
relied on Re Ontario Public Service Employees Union and the Crown in
right of Ontario et al. (19831, 44 O.R.(2d) 51 (Div'l Crt.) as holding
that the collective agreement does not limit the operation of s. 18 of
the Act.
The Union also referred us to two decisions of the Supreme Court of
Canada: Canada Labour Relations Board and Nauss et al., [19831 1 S.C.R.
245 and Teamsters Union, Local 938 et al. v. Massicotte et a1 (19821, 82
C.L.L.C. 12,984 which dealt with remedial powers of specialized
14
tribunals.
The Union asks us to give s. 18 of the Act a purposive definition
given our wide remedial powers. It says that that is what is needed in
this case, where the effect of the Employer's submission is that the
grievors will have a right without a remedy.
The Employer asserts that when the extract from the Manual of
Administration (Ex. 9) is read it is clear that MCP is a system which
contains no position which is in the bargaining unit. It also says that
the so-called
parallel classifications such as the Correctional Officer
4 are the results of situations where some previously excluded positions
classified under the traditional classification system were later deemed
to be included in the bargaining unit and were not classified as OM 14
under MCP. The Employer takes the position that decisions as to status
of employees, that is whether they will be included in or excluded from
the bargaining unit, are solely the decisions of the Tribunal. It says
that if a position within the AM 17 classification were taken to the
Tribunal and found to be included in the bargaining unit then it would
respond by creating a parallel or equivalent level classification in the
bargaining unit to deal with the situation.
The Employer says that the grievors are not without a remedy within
the current bargaining unit classification system. It says that the
Board may find that the grievors should be properly classified in
another
series within the bargaining unit classifications. It says that
any classification within the traditional system would be available to
the grievors if they were improperly classified, and there would be no
need to look beyond the traditional system into MCP. It says that the
Committee in its decision (supra) found that the Board had jurisdiction
to reclassify the grievors if they were improperly classified, but not
15
to award the remedy which was being sought.
In relation to the Hooper decision, the Employer points out that
the only alternative available to the Board
was a PO3 classification,
which was a management classification under the traditional system. The
Board there
was not dealing with MCP but with the traditional system in
which both management and bargaining unit personnel could be found in
the same class series because there was only one system available.
Further, the position was an atypical position, which the Employer
asserts is an additional reason for not following the Hooper decision.
It is the Employer's assertion that before MCP bargaining unit
employees could progress within a class series such as Correctional
Officer and remain in the bargaining unit until a certain level (in the
case of Correctional Officers, C.O. 4) at which they would be excluded
from the bargaining unit. That "ladder" approach was still in effect at
the time of the Hooper decision. Since MCP the Correctional Officer is
in the bargaining unit and progresses out of the bargaining unit after
the CO 3 level to the OM 14 classification.
The Employer
asserts that Patrick Baker deals with the same
issues as those before the Board and also deals with the MCP system.
There a bargaining unit employee was also claiming reclassification into
a classification under MCP. It also says that in Patrick & Baker the
Board said that it did not consider that the result would be any
different if the grievance had been brought under s. 18 of the Act. The
Employer also informed us that there was an application for judicial
review pending in the Patrick & Baker case.
The Employer says that it has been clear to the parties that
bargaining unit employees do not have access to MCP classifications. It
16
says that if bargaining unit employees had access to MCP positions an
administrative nightmare would result and it would take several years to
sort out the intention of the parties. It says that much more strife
would be created in an issue which had already been resolved by Patrick
& Baker.
The Employer also argues that in Lansey (GSB File 419/82) it was
found that the Board lacked jurisdiction in matters dealing with the
filling of vacancies outside the bargaining unit and that there
is a
parallel to the situation before us. It says that just as bargaining
unit employees cannot grieve regarding the filling of management
positions, they should not have access to MCP, which is reserved for
management positions.
The Employer submitted that it has been its clear intention to
establish a classification system which is exclusively for members of
management and that the Union
is trying to upset that classification
system and the system presently in place. It asserts that the Union is
trying to move into an area of determination which is made exclusively
by the Tribunal and that to find that the Board had jurisdiction to
award the remedy sought would be to throw the current classification
system, the Tribunal, and management's rights into serious disarray, as
well as adversely affecting the relationship between the parties.
The Union's reply
was that calamity was predicted in Hooper. It
says that there would be no greater inconvenience to the Employer if the
employee claimed the MCP classification than there presently exists in
the
case of the parallel classifications. It would be up to the
Employer to choose whether it wished to keep the MCP free of bargaining
unit personnel and to
create the appropriate classification for the
grievors if they were successful. It says that it is simply asking that
17
there be no impediment to its ability to try to show that the best fit
for the work done by the grievors is a classification other than the one
they are now in.
Reasons
We accept the general proposition that there is a distinction
between a person's job classification on the one hand and status under
the Act on the other. Quite clearly we have absolutely no jurisdiction
to determine the status of any person since that is a function which is
reserved for the Tribunal. We do have jurisdiction under s. 18(2) of
the Act and the collective agreement to consider whether an employee's
position has been improperly classified. In the case before us everyone
is agreed that the grievors are employees under the Act, and it is clear
that their grievances allege that they have been improperly classified.
Further, everyone concerned seems to agree that we have jurisdiction to
determine whether or not the grievors
are improperly classified.
Clearly the Employer has the discretion to create a system of job
classification which is reserved exclusively for persons who are
excluded from the bargaining unit. The fact that a person does a job
which is classified according to that classification system does not
mean that the person is by reason of that fact alone excluded from the
bargaining unit. If the person's status were to be challenged, the
Tribunal would still have to examine the situation and determine status.
Should the Tribunal determine that the person was an employee under the
Act, the Employer would then have to determine how it was going to react
to a situation where it had an employee whose job was classified
according to a system which it wanted to reserve for those who were not
considered to be employees.
It is, of course, possible to definebargainingunits in terms of
18
employee classifications so that a claim to be classified in a
classification other than that set out as part of the bargaining unit is
in fact a claim to be removed from the bargaining unit. This bargaining
unit is not so defined. Had the parties defined the bargaining unit in
that way, then the Employer's arguments would have been more persuasive.
In this case Article 1.1 of the collective agreement defines the
bargaining unit
as follows:
In accordance with The Crown Employees Collective
Bargaining Act, the Ontario Public Service
Employees Union is recognized as the exclusive
collective bargaining agent for all public servants
other than persons who are not employees within the
meaning of clause f of subsection 1 of Section 1 of
The Crown Employees Collective Bargaining Act.
The Act provides the following definitions in section l(1):
(f) "employee" means a Crown employee as defined
in the Public Service
Act but does not
include,
..........
(iii) a person employed in a managerial
or confidential capacity,
..........
(1) "person employed in a managerial or
confidential capacity" means a person who,
(i) is employed in a position
confidential to the Lieutenant
Governor,
a Minister of the Crown,
a judge of a provincial court, the
deputy head of
a ministry of the
Government of Ontario or the chief
executive officer of any agency of
the Crown,
(ii) is involved in the formulation of
organization objectives and policy
in relation to the development and
administration of programs of the
Government or an agency of the
Crown or in the formulation of
budgets of the Government or an
agency of the Crown,
19
(iii) spends a significant portion of his
time in the supervision of
employees,
(iv) is required by reason of his duties
or responsibilities to deal
formally on behalf of the employer
with
a grievance of an employee,
(v) adjudicates or determines claims
for compensation which are made
pursuant to the provisions of any
statute,
(vi) is employed in a position
confidential to any person
described in subclause (i), (ii),
(iii), (iv) or (v),
(vii) is employed in a confidential
capacity in
matters relating to
employee relations including a
person employed in a clerical,
stenographic or
secretarial
position in the Civil Service
Commission or in
a personnel office
in a ministry or agency of the
Government of Ontario or,
(viii) is not otherwise described in
subclauses (i) to (vii) but who in
the opinion of the Tribunal should
not be included in a bargaining
unit by reason of his duties and
responsibilities to the employer;
It would be unrealistic topretend that there is no relationship
between the classification and status under the Act. Both are dependent
upon the job or work which is done, but in each case the job is examined
using different criteria and for different purposes. Leaving aside
those people who are excluded from the status of employee because of the
confidential nature of their work, there are people excluded from the
status of employee because their jobs involve those duties set out in
s. l(l)(l)(ii), (iii), (iv) and (v). The job descriptions and
classifications in which those people are placed will reflect the very
duties and responsibilities which were also relied on to determine their
20
status. If a bargaining unit employee claimed the same classification
as the excluded person, then, assuming that the status of everyone
involved was properly determined,
it might be unusual for such a claim
to succeed. However, where the bargaining unit employee could show that
he did the
same work as the excluded person who occupied the
classification claimed, or that his work was virtually identical to that
done by those who occupied the classification, or that it was virtually
identical to the work of the classification claimed, or that the core
functions of his job fit within the classification claimed, in other
words if he could meet the test for reclassification into the
classification claimed, then the claim would have to succeed. In any
event, we consider that the bargaining unit employee is entitled to have
us adjudicate the claim which he is making.
We consider that the reasoning in the Hooper case is persuasive in
that it differentiates, correctly in our view, between questions of
classification and those of status. We do not consider that the fact
that the Employer's MCP classification system was not yet in existence
changes the rationale of the Hooper case because the Employer was taking
essentially the same position there which it takes before us today, that
is, that there are some classifications which it has reserved
exclusively for non-bargaining unit personnel.
As stated earlier, we consider that the Employer's action in
creating the MCP classification system for management positions is one
which is clearly within its prerogative as an employer, and there is
nothing which we can or would wish to do to interfere with that exercise
of discretion. The creation of such a system does not mean either that
the Employer has properly classified the grievors, or that in the
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classification that the grievors claim the Employer has in fact created
a classification exclusively limited to management personnel.
It is our jurisdiction under s. 18 of the Act and under the
collective agreement to determine whether the grievors are properly
classified. Given that the thrust of the decisions concerning the
exercise of our jurisdiction under s. 18(2) is that it confers rights on
employees which are in addition to those under the collective agreement,
we consider that those rights under s. 18(2)(a) must include the right
to give an appropriate remedy if the grievors can show that they are
improperly classified. In granting an appropriate remedy, we cannot
affect their
status, but we can order that they be reclassified into the
proper classification, whatever they can show that to be. It is
therefore theoretically possible that the grievors could show that they
should be properly classified in the AM 17 classification and that we
could
so award. If the Employer wished to establish a new and distinct
classification for bargaining unit employees equivalent to the AM 17
classification of a management job in order to keep the MCP system free
of employees, then it could do so. We could also award that the
grievors should be reclassified into some other classification outside
of the MCP system if that were the most appropriate determination based
on the facts before us. We do not consider that our determination of
remedy should be limited by an assertion that a particular system, in
which the classification sought is found, is not used or intended to be
used to classify jobs in the bargaining unit when we have before us
employees who claim that they
do the work of that classification, who
are still employees, and who claim to be improperly classified.
We should point out that we have no idea yet what the substance of
the dispute between the parties
is. That is, we do not know whether the
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Employer is taking the position that the grievors are properly
classified or that they
are improperly classified but should be
reclassified in something other than the classification which
is
claimed. Whatever the nature of the dispute, if the Employer wishes
to
make submissions that some classification other than AM 17 is more
appropriate in this
case, then we will consider those submissions when
formulating
a remedy if we find that the grievors are improperly
classified.
DATED AT LONDON, ONTARIO THIS 5th DAY OF July , 1985.
G. Brent, Vice-chairman
K. O'Neill, Member
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