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HomeMy WebLinkAbout1985-0261.Beerthuizen et al.86-10-30IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before $ THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Beerthuizen et al) - And - The Crown in Right of Ontario (Ministry of Revenue) Before: G. Brent Vice-Chairman M. Perrin Membe’r I. J. Cowan Member For the Grievor J. Miko Classification - Grievance Officer Ontario Public Servicq Employees Union For the Employer D. Kirk Labour Relations Advisor Personnel Services Ministry of Revenue Grievor Employer Dare of Hearing: .J,““,Q’ 17. 1936 January 10, 1986 Junr 9, 1986 2 The grievers are all grieving that they are improperly classified as Clerk 3 General. The grievandes are dated July 27, 1984 and the original request was for reclassification to Clerk 5 General. By agreement of the parties the renedy'sought was amended to reclassification toClerk General, sublecttothe submissions to be made regarding the appropriate retroactivity of the remedy should the grievance succeed. The position which all of the grievers hold is known as Private sales Control Clerk. They arepartof the Retail Sales Tax Branch of the ,Ministry and are located at the!Ministry's office in Oshawa. In general terms, the work of the grievers can be described as concerning the enforcement of the Retail Sales Tax Act insofar as private sales of motor vehicles are concerned. The unit where the grievers work was established in 1982 when the district office functions ~nthis connection were centralized and the position of Private Sales Control Clerk was established. It would aoaear from the evidence that at c:he time of centralizatlon tsere xere __ no guidelines established specifically for the clerks in the unit. It would also appear that the work which they did was not exactly identical to that which was done by the clerks in the district offices. In the course of the hearing a considerable amount of evidence was tendered by both larties regaraing the duties and responsibllitias of i grievers, there are certain general background matters which we should set out. The qrievors work in a unit which has a Group Leader whd is also a bargaining unit member. There was considerable difference in the evidence concerning the function of the Group Leader in relation to the qrievors. It is likely that the Group Leader position was established, among other reasons, to perform spot checks of the qrievors' work. On the evidence nefore us it is difficult to determine the exfent to which the qrievors were allowed to perform their work sublect only to the approval and checks done by their direct supervisor, the SuperVlsOr a CentralisedPrograms; however, it would appearthatthe grievers had very little interaction with theGroup Leader in the course of their work. It is clear from the evidence before us, though, that the qrievors composed and signed form letters used in the routine correspondence connected with their Jobs. It,is also clear that one of the grievers conpiled a manual of collection procedures (Ex. 4), which was then used by the qrievors 1i-1 the course of their work. The manual qachered material from various sources. The qrievors' supervisor was aware of this work, directed one of the grievers to do it, and approved it after it was compiled. The supervisor testified that he viewed it as a tralninq exercise; however, there is no douot..that the manual was seen by him, and that he vas ailare of its use by the qrievors in the performance of :heir collection duties. 4 ;naterial'suomitredcY those issuers; check It for accuracy; check the commission calculations, etc.; and communicate with the issuers on various matters including answering their questions. The grievers were also requiredtoinvestiqatethe transfer documents submitted by the issuers to ensure that all possible cases of tax avoidance were caught. This work required the qrievors to contact potential taxpayers by letter or telephone and make inquiries regarding the nature of the transaction to ensure that the proper sales tax was paid. This work aL%! uwolved the qeneratlngoftax assessments,penalties, andrecordkeepinq. The qrievors were also required to deal with inquiries from the public and 1 motor vehicle licence issuers and to provide interpretations of legislation to thei. The above contains a very abbreviated account of the grievers' primary dutiespriorto January, 1983. In January,.1983 the unit was also assigned the duty of collecting tax owing on the deluquent files of the private.transactions with which they were concerned. This duty was performed by the Yrivdte Sales Control Clerks or. a rxa:lny beisis. In additiontothe collection duties, the clerk assigned to that work also had to perform her usual duties in relationtothe motor vehicle xsuers on a reducedbasls. By the Employer's own evidence (2% 51 the collection function comprised 20% of the lob. The collec:ion function requred the clerk to make coniact iir~h zne defauicing taxj+yer, to try to enter into an agreement iiith the taxgayer reyardixj the payment of outstanding tax, to deternune and recommend Lha appropriate legal actlon to be taken to collec: the tax, :o moni:ar :!I& ~~ro~r~ss of cnllec:lon activity, anti to Irt=r:n~z~ and Lc-i2~...-l.< -5 ~2s r3j_.- -,a.. ,$ su;>rr~~ilsor ~dne;hr: f;?e oe*t , inou1.ci be ~X~~Ltren Off. T.irj -or:< Ir;:,.oi-;e2 :nr -jrLe"ori contacrlny tne :axp.yer, 13CJl shrr~~r~s, etc. i: .'eil'.ll.Ce,Z them to exercise Judgment concerning the method of collecting the debt and the circumstances under which the debt should be abandoned. lrior to the compilation of the collection procedure manual (EX. 4) by one of the grievers, there was no single consolidated source of informatron and guidance concerning the collection procedures. The Class Definitions for the positions of Clerk 3 General and Clerk 4 General were filed with the ward es Exhibits 7 and 8 respectively. They are reproduced below: CLERK 3, GENERAL CLASS DEFINITION: Employees in positions allocated to this class as ']ourneyman clerks*,perform routine clerical work of some complexityaccordingto established procedures requiring a background knowledge of specific regulations, statutes or local practices. Decision-making involves some Judgment in the selection of alternatives within a comprehensive framework of guidelines. Initiative is in the forsl of following up errors or omissions and in making corrections as necessary. Doubtful matters not coveredby precedentarereferredto supervisors. Xuch of the work is reviewed only periodically, principally for adherence to policy and procedures., Typical tasks at this level include the preparation of factual reports, statements or memoranda requiring some Judgment in the selection and presentation of data; assessment of the accuracy. of statements or elisibllity of applicants, investigatiny discrepancies and securing further proof or documentation as necessary; overseeing, as a Group Leader, the vork of a small subordinate staff by explaining procedures, assigning and checking work. This is a terninal class for many positions lnvolviny the competent performance of routine clerical work common to the office concerned. #ALIFICATIONS: C d 2. About three years satisfactory. clerical experience. 3. ADility to understand and explain clerical procedures and requirements; ability to organize and com$ete work assignments within prescribedtimelimits; ability to maintain good working relationships with other employees and the public served. CLERK 4, GENERAL CLASS DEFINITION: employees in positions allocated to this class perform a~variety of responsible clerical tasks requiring a good background knowledge of specific regulations, statutes or local practices. ~? Decision-making involves Judgment in dealing with variations from established guidelines or standards. Normally, employees receive specific instructions only on unusual or special problems as the work is performed under conditions that permit little opportunity for direct supervision by others. natters involving decisions that depart radically from established practices ar,e referred to supervisors. Ta.sks typical of this level include the evaluation or a**e**OI*nt Of a variety of statements, applications, records or similar mater.ial to check for conformity vi:h specific regulations, statutes oL ad:ainis;rative orders, resolving points not clearly covered by these instructions, usually by authorizing adlustments or recommznding payment or acceptance; superns~ng a sauli group of "]ourneyman clerks" or a larger group of clerical assistants by explaining procedures, assigniny and checking work and wintaaning discipline. It is the basic submission of the Union that reference to the above class standards shows that in view of the work of the position at all relevant times the grievers are improperly classified as clerks 3 Generaland that they should be classified as Clerks 4 General. The Employer asserts that the position in question is ;?roperly classified as Clerk 3 General when reference is had to the class standards. Both parties also mde ;ubnissions concerning t:he ?rooer approach to t&e to retroactivity of remedy in view of the amendment of the remedy sought in the yrievances. In the course of their submissions on the primary question of classification both counsel made extensive reference to the evidence of the witnesses and the twenty-seven exhibits filed. They also referred us to Goobies& (Gsa Tile 240/Ba) and stocks & Hendrix (GSB Files 1320/84 (r 1325/b4) on the question of the proper classification. N2 have considered the evidence, the submissions of the parties, and the authorities citedto us, and will limit our decision to those matters which we consider to oe persuasive. arfore doing so, nowever, we xoulc like to make a few comments on the two cases cited above. i;oobie et al isupral was cited to us in part for the evidence -- presented to the Board as expert evidence. That evidence was given by a professor of Socloloyy from Vanier College 1n.Nontrea.1, and that sane1 of the 3oard naa dn opportunity to hear the opinion evidence of the expert regarding the skills required by the incumoents in the particuiar job tne c?asslfrcation of which was in issue. The ]oo in the Goobie ~ case is not the Job in ~Lhr case oafore US. The .op?-nion s‘Jl2ance Of tne expert presentsa oy fn.2 ilnion deal: x:rn her spiz~~3n sf :x2 3 2042lLVll9lC~t1** SklllS Of Z.282 job 1.3 LjS;* I.7 :::I? GSODl? i-S*?, 3::s 3i32 gave opinon eviaence of a general nature regarding "Invisible skillS" which she considered to be undervaluedin "female-dominated clerical occupations". This panel cannot accept or re3ect evidence which was not tendered before it. In evaluating the evidence before us we cannot apply the opinion evidence of experts called in connection with another matter. The Goobie case did set out some general principles whrch have arisen frown the XaA"s ]urisprudence (see aages 28 ff.). we ayree ;iit!l the general proposition which has been set out in previous cases Defore this Board that in viewing the Clerk 3 Genergl and Clerk 4 General 100s what is significant is the degree of "responsibility, complexity, knowledge, authority, ]udgment, autonomy and discretion" (Goobie at p. 29) which is required to be exercised by the person performing the lob. asserts, the Job in question meets the Clerk 4, General class stanaard .a* se: out in EX.-.l31~ 3. in co!134rl.,g tne e'*o ss2naar;s ;i 323 32 sz2?8 that the ClerX 3 General is required to aerfsrm "rou?ine clerical ,work af some complexity according to es-ablished procedures requiring a oackground knoxledge of specific regulations, statutes . .." while the Clerk 4 General's work is described as "Variety of responsible clerical tasks requiring a good neckground kno;rledqe of speslflc regnlatlons, st3tutes . ..I'. There arz aspects of ihe ]ob before us which clearly fall into the uroutlne" category. In particular, most of the xork .d-r.;ch ? good background knowledge of specific regulations, statutes . ..'I. In addition to their "routine" duties the grievers are called upon to make determinations concerning exemptions from t&xation in areas' where the legislative intent may not be clearly defined and where there are no established procedures, such as the cases of settler's effects, for example. They are also-requiredto attempt to collect taxes owing by entering InLo agreements iiith individual t%u?ayers, to Investigate the various avenues of collecting the dent, and to make recommendations to tie supervisor regarding the method of collection. This requires them to be aware of matters which are not r'elated to retail sales tax but which are related to methods of collection, agencies used in collection, etc. We consider that the ability to deal 'with taxpayers directly and to enter into negotiationsand agreements with those taxpayers regarding the payment of taxes owing is ,t responsiole tax. we alsO c3nsi~~er t.hat the ability to remmrnend -tie paper nethog sf sollection or the :rrice ]udyment required of a Clerk 4 General is greater thaa :hat re;uired of a Clerk 3 General. In reviewing the degree of ]udyfnent re.;ilired in decision making requiredof the grievers in doing their Job, 'we would have ta agree that for the mostpart they are dealing with situations xhere they are requred to select Ero!n alternatives w:zhin TA&lines. The exception to this is again in the area of collections, xhere they are required to exercise mdependent Judgment III deterxxn;ng XQW beat :S collect aeuts from tamavers .who are In defsult, and ;f2re ::>e:i d:3 wt _ - ai>paar tO b2 ,3i’Jerl any llr2Ct ;Uid2Ll>rS resjdLZ;linj t.?? ndC’AT+ Sf C’?.? d j r 2 e A2 n c ‘4 n 1 :: : I t 2 e >, can -’ r, c 5 r i.TLJ riltn i3.<?3y2T* far z>?J;,‘=e:i;. 3 0 supervrsory ai)2rovai appears to nave 5een necessary of any agreements which the clerks made ,with taxpayers regarding the payment of taxes It would appear from the evidence that the grievers performed their work by and large in a situation where there was little direct supervision. In viewing the typical tasks set out in the class definitions, it can be seen that the lob does rnvolve the sort of preparation of reports, etc. and the other tasks contemplated in the Clerk 3 Generai . description. It can also be seen that the ]ob requires a review of exemptions claimed to determine if they conform with the statute and regulations. In the course of this they may have to resolve questions regarding settler's effects claims, for example, which are not clearly determined by legislation or regulation, and recommend a course of a.zsisn ~~SS'J on iheir o.*tdrnrnation. "hey 3153 are r*;"ired :., ae=L with debt collec:ion, enter into aqreenents with taxpayers, d n -i rezo.xineni a cw~rse sf a..;tion to 02 cs-;.en ;:I r*iari.or, 2,3 ;~*.:-=ic-lir debts. In summary, it can be seen t:hat in this case, as in ai:;lsst every other classification case which coines before thi1s aoard, the class definitions are not "watertight conpartments". The lob must be assessed in order to determine in .x.hich classification it Troperly oelsngs. Tile deyrea of overiap always makes for a difficult aetereUnation. in this CaS2, 'were ;t not for tne collection responsibilities and t?.e amount of responsibillfy ana ]udg!nent xiich tne grievers are requirsd ta exer=~se rn connection with colle~r~ons, t .'I 2 n '3 n 5 ..< a ?I L -' n a" e t3 a ;ree .;,>a: :T.z ,73 is grsoaoiy inore ~ro~eri:, 313:.3,1 I.2 tne c1er:r 3 ;s2.2ri; c?asslElcatlon, e.ve.-: rnouyh r.berr aa:, 3e j*:!i2 ;tjUZ-‘fj 3f t12 j,j~ '~:~;C,~ 7) ?$. 11 could be cnaracterized as being an overlap into the Clerk 4 General. However, when the ]ob is looked at as a whole, including the collections responsibility, then the deyree of )udgme&, responsibility and decision making required of the grievers on the whole appears to be beyond that required of a Clerk 3 General as set out in the class definition. Accordingly, we must agree with the grievors that at the time of the grl*Vanca cilelr ,130 xas n3C properly ciassified a.5 ClerX 3 Gener.51. :i e consider that the appropriate classification must therefore be Clerk 4 General. In the course of the hearing we happened to learnthatthe lob no Longer reqilires the clerks to perform the collection function. That information, quite properly, was not pert of the case or the ,submissions of the parties since it is irrelevant to the issue before us, which deals rrth t.le ]ob du‘ci?s as of the date of the grievance. since the inforsation did slip out, though, k'e sirn2ly m:* ~c and un&eriine cn2.t ‘?: ‘. 45 12 (G;Sd File 23/dl) and Iyyers et al (GSB Flies lti7/84, 188/?4, ld$/84, 190/84 and 220/84). The Union referred us to the decision of the Divisional Court in Ontario Public Service Union and Carol Serrv 2t al v, The Crown in Right of Ontario (Minrstry of Connunitv and Social Services) (unreported Iudgment released March 73, lY861, and argued that the Board's remedial powers are not limited when the grievers have been improperly classified, end also argued that the employer was not prejudiced by the change in rem$dy requested. In a grievance where it is alleged that a 3oD has beeniolproperly classif+d, the essence of the complaint, as in our vie,x the Court emphasized iwthe Berry case (supra), is the alleged imp:oper classification. In that case the Board determined that the grievor* were improperly classified but that they did not merit the classification set *ut as the remedy sought 12 ihe grievance. The Jivisronal C3vrt sai:z, et ?ar* 13, "if tile So3rd con,Zl'dtiPd CLlsC til? clas*iEication was wrong, its :nanda:e was t3 effect a Iroser ~:13sslflcatlon. Its Jurisdiction is unros:riztrA its nanda:? 29 remedial." In so deciding, the Court considered the ?uriidic:ion of this Board as compared to that of a board of arbitration under a collective agreement governed by the Labour Relations Act and concluded - that this Board had a statutory obligation to decide the matter of an . . alleged improper classification and grant a re.aedy 1f it coul. oe skioji~ thaf there was ari improper classification. AS we read this decision, it is Probably not necessary for someone alleging an improper classification to allsge 32ytr?xlg nor? tnar. char. i f tne yr12vancr 5ilcceec.3, tnrn tno:e 13 .?a r>slL;;ls;sn r.2 ZL35SIT... Eke *grl?"or iorrk?ct1,. If Lnat 1s the 3;s:~ of r:le II:;, <*es iz x12.2 se352 co prejudice a ,r;e-ior ,iio s?ec~fies ,:3 rr-ned:, L.? :.-,e jl-;?'~a?.ce ad t;?e:. informs the Employer that it is no longer seekinq'the specific remedy stated? Clearly, given tbe m decision, the grievers need not have amended the remedy which they sought, and were entitled to Succeed so long as they could show that they were improperly classified. AS a consequence, even though there is authority which predates the Divisional Court's decision in the ferry case, we believe that such authority is no longer persuasive in view of the aerry decision. we find, therefore, that the grievers' Job was improperly classified as of the date of the grievance and that as of that it should have been classified as Clerk 4 General based cn the duties which were required as of the date of the grievance. We therefore order the lob to be reclassifiedas a Clerk 4, General effective Ju.ly 1, 19d4 and order that the grievers be cornsensated at the appropriate level as of July 1, 19d4. We will leave it to the parties t? ceternine the ar?oilnt Of compensation to be pa-d to the qrievors and willrenain seizedof cha matter in the Iwent that they cannot agree. DATED AT LONDON, ONTARIO THIS 30th DAY OF Cctober , 1’3%. - CT. arent, Vice-Chairman