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HomeMy WebLinkAbout1985-0494.Fenske.87-03-30BETWEEN : BEFORE: 4 7 I, ’ \ ..’ IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EHI’LOYBES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEmNT BOARD OPSEU (Peter Fenske) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer I R.L. Verity, Q.C., Vice-Chairman I.J. Thomson, Member W.A. Lobraico, Hqber FOR THE GRIEVOR: A. Ryder, Q.C., Counsel Gowling and Henderson Barristers and Solicitors FOR THE EMPLOYER: E. Hipfner Staff Relations Officer Ministry of Government Services HARING DATES: May 29, 1986 October 2, 3 January 23, , 1986 1987 7 _i ( . -2 - Peter Fenske is a long service employee with seniority dating back to October, 1960. He is currently classified as Services Officer 1 and has been so classified since 1973. Mr. Fenske is employed in the Ministry’s Queen’s Park District. In 1983, his position title was changed from Fire Protection Systems Foreman to Fire Protection Systems Inspector, although the classification remained unchanged. On May 14, 1985, Mr. Fenske filed a grievance claiming improper classif icat~ion as Services Officer 1. He seeks reclassification to Services Supervisor 2 retroactive to March, 1985. On the first hearing date, the Board granted an Order for an adjournment to allow the Parties to hold a second stage grievance meeting to consider the Grievor’s present duties and responsibilities. The Parties were unable to agree on the appropriate classification. Generally, classification grievances proceed on two possible grounds: (i) The measurement of the Grievor’s job against the wording of the applicable Class Standards (The standards approach) ; and -3- (ii) Notwithstanding the Class Standards, upon evidence that there are other employees performing the same duties in the higher classification (the usage approach). See, for example, the Judicial Review of the Michael Brecht Decision reported in Ontario Public Service Employees Union v. The Queen in Right of Ontario et al. (19821, 40 O.R. (2d) 142. In the instant grievance, the claim for reclassification proceeded solely on the first test: namely an assessment of the Grievor’s duties and responsibilities measured against the relevant Class Standards. The Class Standards at issue read as follows: SERVICES OFFICER 1 ~ This class covers positions of employees in the Ministry of Government Services who arrange, inspect, and’supervise the installation and repair of either electrical or’mechanical systems and equipment in Government-owned buildings in all districts except, those in the Central Region whete the Manager position is classified at the Buildings Manager 5 level. These employees estimate job costs, arrange for contractors, inspect and assess the work of contractors, and recommend acceptance or rejection of claims in excess of tender. They supervise and assign work to foremen or in some districts directly to day labour forces. They may also be required to personally supervise the ongoing ‘preventive maintenance program of the electrical or mechanical services within the area, including co-ordination between areas of trade specialization. - -4 - In all ,districts, these employees prepare annual budget estimates based on their assessment of requirements for new mechanical or electrical installations and replacements, In- some districts, they may also be required to provide. budget estimates for the total operation and maintenance program. SKILLS AND KNOWLEDGE: Skills in an appropriate electrical or mechanical trade; supervisory and instructional ability; ability to lay out work assignments from plans and specifications; ability to estimate costs of materials and labour; ability to prepare reports, a good knowledge of statutes, regulations, and~by-laws governing electrical or mechanical installations. SERVICES SUPERVISOR 2 This class covers positions of employees who are responsible for ensuring the technical implementation and execution of projects concerned with the installation, maintenance and improvement of either electrical or mechanical systems and equipment in Government-owned buildings in an assigned region of the Ministry of Government Services. These employees operate either as regional co-ordinators of minor capital, maintenance, and improvement projects in all but the largest region of the Ministry, or as regional ,inspectors of major capital projects. : This class also covers the positions. of the senior electrical or mechanical inspectors in districts in the Central Region where the Manager 'position is classified at the Buildings Manager 5 level. As regional co-ord inators, they provide technical advice to district electrical or mechanical supervisors and staff. They personally prepare instructions, estimates and contract documents on the larger more complex projects. When necessary, they conduct inspections of large complex contracts and carry out investigations of the more difficult problems, providing advice and guidance to district staff. They are responsible -5 - for the implementation, operation, updating and co-ordination of the Preventive Maintenance Program covering electrical or mechanical equipment in Government buildings, arranging contract maintenance where required. They work closely with district electrical or mechanical supervisors.in the preparation of annual budget estimates. As regional inspectors, they are responsible for ensuring that electrical or mechanical systems and equipment for major capital projects are. installed in accordance with designs and specifications. They inspect work in progress, reporting on any deficiencies, interference, site problems and other conditions. They instruct contractors on Government procedures and co-operate with them in resolving problems. They estimate labour and material costs to ensure the validity of progress billings and change orders. They conduct final inspection of completed work to ensure the proper functioning of the installation. SKILLS AND KNOWLEDGE: Skills in an appropriate electrical or mechanical trade; supervisory, instructional and ‘. administrative ability; ability to estimate costs and prepare work assignments from plans and specifications: thorough knowledge of statutes, regulations and by-laws governing electrical or mechanical installations. The Employer submitted a Position Specification and Class Allocation Form dated March 25, 1985, applicable to the Grievor’s position, which is reproduced in material parts: PURPOSE OF POSITION (Why does this position exist? State goals objectives etc.) To inspect the work of contractors or district staff engaged in the installation, testing, service, maintenance, repair of fire protection and emergency communication equipment including mechanical and electronic fire detection and alarm systems, emergency evacuation systems, sprinkler I I -6 - systems, fire hoses, fixed extinguishing systems, portable fire extinguishers, and portable rescue equipment installed in government-owned premises in the Queen’s Park District. SUMMARY OF DUTIES AND RESPONSIBILITIES (Indicate percentage of time spent on each significant function, indicate scope, equipment, working conditions unusual features etc.) 1. 50% 2. 30% Arranges for and inspects work carried out by contractors or district staff by: planning the fire alarm preventive maintenance program for all fire detection, fire extinguishing and emergency evacuation systems, in accordance with established schedules and existing legislation: assessing the nature, extent and priority of, scheduling , implementing, co-ordinating and monitoring progress of inspec,tions and service required: conducting field investigations to assess existing facilities and future requirements; determining the. safest and most economical methods of repairing defective equipment, or recommending replacement considering the length of time that equipment can be left safely inoperative: participating in the preparation of contracts by prep.aring scopes of work, sketches, estimates of labour and materials, and information regarding specific equipment; inspecting and supervising the installation of components in buildings, integrating into the total system by arranging fhe,necessary power connections and testing: conducting acceptance and functional tests of fire alarm systems and emergency communications systems prior to take over of buildings: providing inspection services for duress or other alarm systems. Monitors work carried out by the service contractors by performing such tasks as: conducting site visits with contractors and discussing project requirements:’ inspecting completed work to ensure adherence to contract documents; 3. 10% 4. 10% -7 - contacting contractor to advise of situations of non-compliance, referring unresolved matters of non-compliance to supervisor for further action; recommending for approval payment of invoices. Provides technical guidance and training to district staff as required. Provides specialized skills and knowledge in the field of fire alarm systems as and where required such as: liaising with local fire department and fire marshall's office to rectify problems identified in government buildings; interpreting legislation and codes pertaining to fire protection; preparing preventive maintenance procedures, routine and schedules: preparing fire or malfunction repprts following,all fire alarms; providing service to other districts if required: advising other inspectors on matters pertaining to the installation and repair of new fire protection systems, as requested; preparing material requisitions for repair and maintenance of equipment, and approving payment on rece~ipt of goods: as assigned. SKILLS AND KNOWLEDGE REQUIRED To PERFORM THE WORK (State education; taining, experience etc.) Valid Electrician's Certificate of Qualification (construction and maintenance). Successful completion of a recognised electronic course of study to understand electronic theory and its application. Thorough knowledge of and practical .background in installation, maintenance, repair, modification, modernisation and installation of fire alarm, fire detection, fire control and emergency evacuation systems acquired through several years related experience. Good knowledge of fire and safety codes. Planning and organizational skills to schedule and coordinate regular and irregular maintenance without unnecessary disruptions. Familiarity with engineering terminology as it relates to fire - , -8- protection systems. Ability to communicate effectively with client ministries, contractors, engineering specialists and the public. Time management skills to organise one's own work, set priorities, and handle ongoing tasks and multiple projects simultaneously. Currently, there is apparently only one Services Supervisor 2 employed with the Ministry. The Grievor testified at some length concerning his duties and responsibilities. The core duties of the position involve 'arrangements for and inspections of the work of contractors and monitoring the work of service contractors for the full range of fire protection and related services in the Ministry's Queen’s Park District. In layman's terms, he is responsible for the maintenance of fire alarm systems in all Queen's Park buildings. He is also~ responsible to ensure the maintenance of outside contractors pursuant to contract documents, and the inspection of the installation of all fire alarm systems installed through renovations or alterations. The thrust of the Grievor's claim for reclassification arises from new work assignments which began in early 1985. The first new duty involved responsibility for preparation and negotiation of maintenance contracts for fire protection systems within the district. The Grievor alleged that prior to 1985, George Kalkounis performed that task. According to the Grievor he is now required to estimate each proJect, to write the specifics of the -9- requirements for outside contractors pursuant to current fire code requirements. According to the Grievor, he has completed one negotiation and four justifications. Approval was given to one justification. A second duty, acquired in 1985, was the co-ordination of training sessions in the use of portable fire extinguishers for district and regional staff as well as client Ministries at the Toronto Fire College. A third responsibility acquired from the Design Services Branch was for the design, costing and inspection of the installation of smaller fire alarm systems. As an example, the Grievor cited his design work in renovations to the second floor, north wing of the legislative building which accommodates the N.D.P. caucus rooms. The Grievor maintains that he ha.s designed four or five such projects. A fourth responsibility, recently acquired, was to act in an advisory capacity as consultant to property managers and client Ministries in the interpretation of the Fire Marshall's code and all municipal fire department regulations. Under this duty the Grievor is now required to meet with the Toronto Fire Chief and the Fire Marshall's office. A fifth new responsibility is to write contract documents for - 10 - the maintenance of burglar alarms by outside contractors. A sixth new duty, assigned in 1986, involved "budget information" in order to up-date existing fire alarm systems. Four witnesses testified on behalf of the Employer. Roderick McDowell, a professional engineer, is Manager of Engineering and Operations in the Queen's Park District. Mr. McDowell currently supervises all electrical and mechanical systems in the Queen's Park District. The Grievor's Supervisor, George Stiver, the district's electrical supervisor, reports directly to Mr. McDowell. Mr. McDowell testified that in March, 1985, a re-organisation took place within the. district which re-assigned "day labour forces" to the supervision of property managers. Acdordingly, the Grievor lost his supervisory responsibilities for two fire alarm mechanics. Mr. McDowell.prepared the relevant Position Specification to specify the Grievor's duties. He maintained that the position specification form was "substantially" accurate. He.did acknowledge, albeit somewhat begrudgingly, that the Grievor's job has evolved since the Position Specification was prepared in March of 1985. In Mr. McDowell’s opinion, the new duties acquired by the Grievor could arguably be included under the "as assigned" provision in the Position Specification form. Mr. McDowell was adament that the Grievor was not involved in major capital projects as contemplated by the higher class standard ,* In sum, while Mr. McDowell acknowledged that the Grievor was 'an expert" in fire alarm systems, he was not supportive of the - 11 - Grievor’s claim .for reclassification. Peter Mcliardy, a mechanical engineer, Design Services Branch, testified that he supervised 18 employees including Andrew Plumridge, a Mechanical Inspector who was the Ministry’s only employee classified as Services Supervisor 2. It was Mr. MeHardy’s evidence that a large proportion of the mechanical inspector’s duties involved inspections on a provincial-wide basis. Such inspections involve the full range of the mechanical discipline. He testified that, unlike the Grievor, Mr. Plumridge performed. no maintenance responsibilities. Ms. Marilyn Jackson, Personnel Administrator, gave evidence in support of her opinion that the Grievor was properly classified as Services Officer 1. Tim Casey, of the Ministry’s Property Management Division, testified regarding the provision of Government Accommodation and the various expenditure programs outlined ,in the Ontario Government’s Manual of Administration. In reply, Mrs. Susan Bertschinger, of the Ministry’s Design Services Branch, was supportive of the Grievor’s claim. In her capacity as Technician 4 Survey, Mrs. Bertschinger is responsible for all safety and security systems in the Ministry including the design of fire alarm systems. She has worked with the Grievor for a number of years and considers him part of the design team and the inspection , . - 12 - process. In her opinion, the complexity of the Grievor’s job does not depend on the particular funding allocation of a project, as for example whether it is a major or minor capital project. --In comparing the Grievor’s responsibilities to those of a mechanical inspector, introduced by way of a Position Specification Form, she rated the job complexities as “pretty much equal”. The Union contended that the Grievor was misclassified as Services Officer 1 but acknowledged that the higher Class Standard requested was inappropriate because of the requirement to work on major capital projects. Mr. Ryder urged the Board to exercise its authority to direct the Employer to reclassify the Grievor in a classification equivalent to that of the Services Supervisor 2 Class Standard. He contended that the new duties acquired by the Grievor were not developments of the existing position, but were rather qualitative, changes sufficient to justify a higher classification. The Employer contended that the present classification accurately reflects the Grievor’s duties. Ms. Hipfner argued that each of the Grievor’s new duties fell squarely within the duties specified in the Position Specification and Class Allocation Form. It was the Employer’s position that since the core duties of the Grievor fell within the Services .Officer 1 Class Standard, there was no justification for reclassification. - 14 - For Ministry purposes, the Province is divided into 11 districts with each district reporting to one of three regions. The Queen's Park district reports to the Metropolitan Toronto Region, On the evidence presented, the Board is satisfied that the Grievor falis short of entitlement to the classification sought of Services Supervisor 1. The classification requested contemplates regional responsibilities within the full range of either electrical or mechanical disciplines. ,The Grievor performs his duties within the Queen's Park district and therefore cannot be deemed to be a regional co-ordinator as contemplated by the Services Supervisor 2 Class Standard. Similarly, the Grievor fails to qualify as a Regional Inspector of major capital projects. The evidence is not seriously disputed that the Grievor does not work on major capital projects. By definition, a major capital project involves a total capital expenditure of $400,000.00 or more which increases the Government's real property. Simply stated, the Grievor does not work on major capital projects. Therefore, the issue for determination is whether or not the Grievor is improperly classified as Services Officer 1. Both Parties acknowledge that the Grievor's duties have increased since March of 1985. The real issue is whether the quantitative changes to the job are also qualitative changes. In our opinion, the Grievor has become atypical of the Services Officer 1 Class Standard, even though he performs most, if not I , - 13 - Class Standards are, of necessity, generally worded statements which are intended to constitute a general outline of duties and responsibilities. These standards are absolute in the sense that the Board has no jurisdiction to alter or amend them. The Board is obliged to. treat the Class Standards in light of the current circumstances as though drafted with the Grievor’s position in mind. Initially, the composition of the class series was Services Supervisor 1 and Services Supervisor 2. As the Employer explained at the outset, the Services Supervisor 1 Class Standard is no longer in existence and has been renamed Services Officer 1. Other than the change of name, the Services Officer 1 standard was last revised on March 1, 1972. It may well be that with the passage of time, the Services Officer 1 Standard is in need of revision. Apparently, there is no Services Officer 2 Class Standard. The Services Supervisor 2 Standard is more recent and was last revised January !, 1981. Clearly, a Position Specification and Class Allocation Form is not part of the Class Standard and accordingly does not bind the Board. At best, the Position Specification Form may serve as an aid to interpretation. In classification matters, the onus is upon the Grievor to establish that he or she is improperly classified. . - 15 - all, of the core duties.of the Class Standard. .The Grievor has acquired a degree of expertise through qualitative changes in his job in the narrow electrical discipline of fire alarm systems that place him beyond a comfortable fit within the Services Officer 1 Class Standard. Bis expertise acquired over years of experience no longer justifies the junior classification. In particular, his design and advisory responsibilities, and to a lesser extent his administrative responsibilities in co-ordinating training sessions, are quantitative and qualitative changes that are not contemplated by the present Class Standard. Negotiation responsibilities can be similarly characterized-; however, these duties may not continue because of a change in government policy. In our opinion, these added tasks carry with them a degree of responsibility, independence and judgment beyond the Services Officer 1 Class Standard. These added responsibilities require the Grievor to have a thorough knowledge. of statutes, regulations and by-laws governing fire detection and alarm systems. We are satisfied that the Grievor has the required knowledge. In the result, we must conclude that the Grievor is currently improperly classified. In Ontario Public Service Employees Union and Carol Berry et al. and The Crown in Right of Ontario (Ministry of Community and Social Services), the Ontario Divisional Court, in a Judgment released March 13, 1986, determined that the Grievance Settlement Board has the power under s. 19( 1 Collective Bargaining Act, in appropriate ci Employer to find or create a classification ) of the Crown Employees rcumstances, to require the which accurately reflects - 16 - the Grievor's responsibilities. In a unanimous Judgment, Mr. Justice Reid referred to the jurisdiction of the Grievance Settlement Board at p. 13 as follows: "Its authority under s. 19 of the Act is untrammelled. It 'shall decide the matter'. Simply to dismiss the grievances when it acknowledges that the grievor6 are wrongly classified is to empty the grievance procedure of any meaning. It is a commonplace of the law that the existence of a right implies the existence of a remedy." Accordingly , the Board directs the Employer to find or to create a classification for the Grievor. The Grievor shall be compensated in accordance with the higher Class Standard selected or created from the date of the filing of the grievance herein. The Board shall remain seized in the event the Parties experience any difficulty with the implementation of this award. DATED at Brantford, Ontario this 30th day of March, 1987. c-Q---- d AZ--+ R. L. Verity, Q.C. - Vice-Chairman /A ay W. A. Lobraico - Member