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HomeMy WebLinkAbout1985-1642.Couture and Kells.89-03-23ONT.4,W3 EMPLOY& DE LA CO”RONNE cmhv EMPLOYEES DE L’ONIAR,O GRIEVANCE C$IMMISSION DE ;;y;.MENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SRTTLEMENT BOARD Between: Before: APPEARING FOR THE UNION: APPEARING FOR THE EMPLOYER: Hearinqs: Grievor - and - The Crown in Right of Ontario (Mintstry of T~,ansgortatio~!) Employer 7.. c. Sgringate Vice-Chairperson I. Thoason Member A , Stagletoe Member D. I. Wa!ieiy C. Tetersort Wink:+r , Filion and Wakely Sarristers and Solicitors June 22, 23; October 19, 26; November 23, 30; IleCelllbel- 2, 29, i9S7; Ma " c :? 2 I ii, 22, i98S AWARD These proceedings arise out of a union grievance filed on February 10, 1986. The grievance claimed that the employer had violated the applicable collective agreement by refusing to negotiate a salary range for “The new/revised classifications of, but not limited to, that of the existing Highway Carrier Inspector and Vehicle Inspector series”. The grievance alleged that this conduct was in violation of the collective agreement. The matter was listed for hearing before a differently constituted panel of the Board. At the hearing, the parties requested, and the Board agreed, to the issuance of an interim award~containing certain terms agreed to by the parties. Those terms were as follows: 1. The Union abandons any reliance upon the provisions of Article 18 of the Collective Agreement. 2. The hearing will be adjourned sine die, subject to the following directions of the Board: (a) (b (i The parties will ask the Board to appoint two panels, each panel to hear one classification grievance for a Highway Carrier Inspector and one classification grievance for a Vehicle Inspector. The grievors, whose grievances are to be adjudicated (as representative cases) will be selected as follows: Within ten days of the date of this Interim Award the Employer and the Union will exchange lists of ten grievors in the Highway Carrier :: :. (ii) - 2 - Inspection classification and ten grievors in the Vehicle Inspection Classification. If the parties are unable to agree on the grievances,to be adjudicated, either from the lists exchanged or as a result of negotiations arising after the exchange of the lists, then the representative cases for each panel are to be selected from the twenty names from each classification submitted by the parties. The names, so submitted, will be placed in a separate receptacle for each classification and will be drawn by the Registrar.. The two names first drawn by the Registrar, from each receptacle, will be the representative grievances to be adjudicated. (iii) Within ten days of the completion of the selection process, the Union will furnish the Employer with the particulars of any classification requested on behalf of the grievors whose cases have been selected for adjudication. This direction (iii) is without prejudice to the Union’s arguing that the aboard may order the Employer to create a new classification. (iv) The Board will expedite the hearing dates of the cases to be adjudicated, as above determined, in consultation with the parties. 3. The parties agree that, while the grievance purports to involve a violation of Article 5.8 of the collective agreement, there should be substituted an allegation claiming a violation of Article 5.5. 4. The above agreement of the parties be made an order of the Board. 5. That the above agreement is subject to the Employer being able to raise a preliminary i:. -3- objection that the sine die adjourned grievance is inarbitrable based on an argument that a violation of Article 5.9 cannot be dealt with by the Board in its present form but should have been brought as individual grievances. An award incorporating the above terms was issued by the Board on September 25, 1986. The instant panel was subsequently assig~ned to adjudicate the appropriate classification of two individuals, namely Vehicle Inspector A. Couture and Highway Carrier Inspector M. Kells. Evidence was led as to the job duties of a number cf other individuals who work as vehicle inspectors and highway carrier inspectors. In light of the agreement between the parties, however, we propose to address only the issue of the appropriate classification of Mr. Couture and Mr. Kells. The agreement.between the parties contemplated that the union would provide the employer with the particulars of the classifications it claimed on behalf of Mr. Couture and Mr. Kells, but that this would not prejudice the union's entitlement to argue that the Board should direct the employer to create a new classification for the two employees. On or about June 5, 1987 the union notified the employers that it was claiming that both Mr. Couture and Mr. Kells were appropriately classified as "Employment Standards Auditor 2 - atypical" or, .I in the alternative, that they did not fit within any existing - 4- classification and accordingly a new classification should be developed for them. Employment Standard Auditors are employed within the Ministry of Labour. they are responsible for ensuring compliance with the Employment Standards Ac'c and certain other statutes. The class standard for an Employment Standards Auditor 2 reads as fol,lows: EMPLOYMENT STANDARDS AUDITOR 2 This class covers the positions of fully qualified Employment Standards Auditors in the Department of Labour who ensure compliance with the Employment Standards Act, the Fair Wage Schedules, the Industrial Standards Act and the Employment Agencies Act, under general . direction. They make regular audits of books, payrolls, wage agreements and other records to ensure that the provisions of the 'Employment Standards Act are complied with by employers in relation to employee records, minimum wages, pay deductions, hours of work and overtime and vacation pay. They make on-site inspections and analyses of work performed by male and female employees to ensure that equal rates are paid for work which requires equal skill, effort and responsibility .and which is performed under similar working conditions. These employees investigate and resolve complaints of violations, interview employers and employees, assess amounts due and collect.. arrears. They settle cases by persuasion or initiate prosecution and provide evidence before Boards of Inquiry and Appeal. 2 5- In accordance with the provisions of the Industrial Standards Act they convene conferences of representatives of employers and employees in designated industries to consider the conditions of labour and prevailing industry practices in specified areas. The Ministry of Transportation does not have any employment standards auditors on staff. The employer has, however, allocated investigators working within the Ministry to the employment standards auditor classification by way of an "atypical allocation". Presumably the employer is of the view that although they deal with diffe,rent matters, investigators within the Ministry of Transportation carry out functions similar to those performed by employment standards auditors. The employer's Ontario Manual of Administration, which serves as a reference source for line managers with respect to personnel management issues, defines an atypical all'ocation as follows: The allocation tom a class of a position that in general fits that class better than any other, but is significantly different from other positions in the class with respect to the: - function(s) carried out; or - skills and knowledge required. Section 18(l) of-the Crown Employees Collective Bargaining Actprovides that it is the exclusive right of the ._ employer to establish classifications and define their content. -6- Section 18(Z), however, entitles an employee to complain that he has been improperly classified and also provides that such a complaint can be referred to the Board for determination. Based on the evidence led before it, it is open to the Board to conclude that a griever has been properly classified. The Board may also decide that a grievor is more appropriately included within another classification. In situations where no existing classification is appropriate, the Board may direct that the employer create an entirely new classification. For a discussion of the Board’s jurisdiction with respect to classification cases see: Ontario Public Se&ice Employees Union v. The Queen (1982) 40 O.R. (2d) 142 (Divisional Court) and Angus et al., 203/84 (Brandt). When assessing the appropriate classification for an employee, the Board generally compares his/her duties and responsibilities against the relevant class standard prepared by the employer. The Board may also examine the usage or practice of the employer in relation to the class standard. As noted in Angus, where the employer has, a a.matter of usage or practice, classifiedVemployees in a way which does not accord with the appropriate standard, it is open to the Board to regard the practice. as defining the content of the classification. _~ 1 - 7 - In the instant case, the union contends that the duties performed by Mr. Couture and Mr. Kells do not come within the class standards for vehicle inspectors. or highway carrier inspectors. The union further contends that the functions performed by Mr. Couture atid.Rr. Kells are the same or-.siinikar to those performed by investigators classified by the employer as employment standards auditor 2, and accordingly on the basis of the "usage test" the two employees.should be similarly classified. In response, the employer submits that almost all of the duties performed: by Mr. Couture and Mr. Kel.ls are to be found within the relevant class standards. The employer further contends that while there is some overlap between the duties of Mr. Couture and Mr. Kells and those performed by investigators classifced as employment standards auditors, the duties of the investigators are significantly more difficult and complex. Vehicle inspectors are qualified mechanics. They have traditionally been responsible for inspecting various types of motor vehicles and for ensuring that privately owned vehicle inspection stations abide by the applicable regulations. H~ighway carrier,~inspectors, however, have generally been more concerned with ensuring that'the movement of goods by commercial carriers is done in conformity with their operating authorities and that commercial vehicles and - 8’- __. y registered and properly licensed. I their drivers are correct ,l In 1985 the Ministry<.of Transportation reorganized its field enforcement staff. It appears that the actual implementation of the reorganization continued into the early part of 1986. One result of the reorganization was that vehicle inspectors were recl,assified as “enforcement officer (vehicle inspector)“ ,in while highway carrier inspectors were reclassified as “enforcement officer (highway carrier)“. In addition, certa tasks previously performed by vehicle inspectors were also assigned to highway carrier inspectors, and vice versa. The evidence indicates that it was this change in assignments which prompted the filing of the grievance referred to above, although the union relies on a number of other factors as well. The union contends that there.has been an evolution of the two positions since the preparation of the relevant class standards sufficient to take the jobs out of the class standards. The reorganization of the Ministry’s field enforcement staff involved the elimination of two managerial classifications as well as the bargaining unit position of staff inspector. A new management position, namely that of area enforcement supervisor, was created. The union contends that certain of the functions previously performed by staff inspectors are now being performed by enforcement officers working as vehicle inspectors and highway carrier inspectors. -9- The evidence does not indicate what functions the staff inspectors performed. The evidence does, however’, suggest that any supervisory duties the staff inspectors may have had were assigned to managerial positions outside the bargaining unit rather than to enforcement officers. We turn now to consider the job functions of Mr. Couture, an enforcement officer (vehicle inspector) who works in the vicinity of Hamilton. The current position specification for enforcement officers (Vehicle Inspector 2) who work in the Hamilton-Wentworth-Brantford area was filed at the hearing. It provides that one of the functions of a vehicle inspector 2 is to enforce legislation pertaining to motor vehicle inspection stations and mechanics by performing the following tasks, namely: Attending premises and investigating applications for appointment as inspection stations; Recommending acceptance or rejection of the motor vehicle inspection station applications; informing applicants of improvements and changes required to comply with standards; Collecting and submitting prescribed application fees; --:I:. Attending motor vehicle inspection stations ‘to inspect reporting and accounting procedures and security me,asures for.safety standards certificates, observing - 10 - inspections, checking condition and calibration of equipment, ensuring the application of prescribed standards; Instructing registered mechanics in the, T.‘.” inspection procedures and application of. standards; Investigating complaints from’the public and [sic] concerning the quality of inspections and determining appropriate course of action; Compiling evidence for suspension hearing,s of licencees and registered mechanics; appearing as an expert witness and giving evidence before the License Suspension Appeal Board; Initiating and conducting detailed investigations of suspect licensees or . . registered mechanics; Initiating prosecutions and appearing as an expert witness for the Crown. Mr. Couture testified that in furtherance of the above-listed duties, when a garage or other facility applies to become a motor vehicles inspection station, he attends at their premises, checks to insure that the mechanics on staff are properly licensed, and then makes a recommendation as to whether or not the facility should be appointed as an inspection station. He also collects the prescribed application fees. Mr. Couture further testified that at times he visits inspection stations and inspects the equipment available for performing inspections. He also observes any inspections which - 11 - -a- might be under way. If he should observe any difficulties with an inspection he both makes a note of it and advises the mechanic doing the inspection of his/her errors. Mr. Couture also checks to ensure that the inspection station's safety" standards certificates, which are to be issued to vehicles which meet certain criteria, are in order. This includes ensuring that all of the certificates the station is supposed to have on hand are, in fact, accounted for. If any certificates appear to be missing, Mr. Couture requires that the station provide a letter explaining the discrepancy. If there have been a number of problems with a particular inspection station, or if it is suspected that the station is issuing certificates for more vehicles than it.could properly inspect, Mr. Couture miqhtijerform what he referred to as an audit of the station's operations. According to Mr. Couture, this involves examining the books of the inspection station and then tracking down vehicles with respect to which the station has issued safety standards certificates. He ~then examines the vehicles to ascertain whether or not they likely met'the required safety standards at the time the certificates were issued. Upon completion of this process, Mr. Couture prepares a report for his supervisors which might recommendPs,.' that the licence of the inspection station be revoked. 7 12 - Mr. Couture also investigates complaints from people concerning the mechanical fitness of recently purchased P vehicles for which a safety standards certificate had.been issued. In response to such a complaint, Mr. Couture makes arrangements with the owner of the vehicle to inspect it. Should Mr. Couture conclude that a safety standards certificate should not have been issued for the vehicle, he might either caution the inspection station or lay a charge aqainst.it. As with other situations where he lays a charge, Mr. Couture would be expected to later give evidence in Court on behalf of the Crown. As a mechanic, he is generally accepted as an expert witness. The evidence indicates that Mr. Couture’s functions discussed above have been part of a vehicle inspector’s duties since at least 1974. While the 1974 date was referred to with some frequency Bt the hearing, the only relevance of that date arises from the fact that in 1974 the employer prepared a previous job specification for vehicle inspectors in the . Hamilton area. Certain differences in the duties of a vehicle inspector since 1974 relate to the safety standards certificate program which started in 1975. Previous to this there had been a somewhat similar program involving the issuance of certificates of mechanical fitness. Unlike the certificates of mechanical fitness which were not pre-numbered and could, in certain situat standards cert be signed by a i i - 13 - ons, be...signed by a dealer, the current safety ficates are numbered sequentially and can only mechanic. These changes allow for much greater control over the program. Mr. Couture testified that another major difference between the two programs is that while the issuance of safety standards certificates is governed by detailed regulations, the issuance of the old certificates of mechanical fitness was not. Mr. Couture's evidence in this regard was clearly in error. The applicable regulations set .i;: out detailed requirements governing the issuance of certificates of mechanical fitness. Those requirements were similar in many respects to the current requirements governing .the issuance of safety standards certificates. Mr. Couture's current position specification or&ides that he is to enforce legislation and apply industry standards les and trai lers by means pertaining to commercial motor vehic of the following: Examining vehicles for equipment requirements in accordance with the Canadian Vehicle Safety Alliance both on and off highway; Examining vehicle registration permits and plates; Examining for driver licensing requirements;' Measuring the size of vehicles and loads; - 14 - Examining vehicle loads for security Andy covering; Examining for vehicle and driver seat belt requirements; Examining fuel tax registrations, taking and testing diesel fuel samples; Examining those vehicles transporting dangerous goods for, but not restricted to, placards, labels, documentation and safety requirements; Examining for "Certificate of Training" required by drivers of vehicles transporting dangerous goods; ..,+ ~_ Examining for vehicle/driver insurance requirements; Completing detailed reports of inspection; Detaining vehicles and directing corrective actions to be taken by drivers; Initiating prosecutions and appearing as an expert witness for the Crown. Mr. Couture testified that the examinations referred to above generally~involve commercial vehicles and take place at a highway inspection scale station. Vehicles are chosen at random to be inspected. The inspection is done in accordance with a form'nr. Couture is required to fill in. The items covered in the inspection have been set to meet the requirements of the Canadian Vehicle Safety Alliance. It includes items such~ as the vehicle's body, steering, suspension and brakes. If Mr. Couture finds any defects, he might simply note that they are to be corrected. If he finds a number of - 15 - defects which have apparently existed for some time, he may decide to lay a charge. He can also force an unsafe vehicle off the road by removing its licence plates. If no defects are found during the examination of a commercial motor vehicle, a vehicle inspector can place a sticker on the vehicle to signify that it has met the requirements of the Canadian Vehicle Safety Alliance. The sticker is accepted by other provinces as evidence that at the time of the inspection, the vehicle met the requirements set by the Alliance. The union. relies on the fact that the Canadian Vehicle Safety Alliance program is relatively new and was not in place when the class standard for vehicle ~inspectors was ':.< set. The evidence, however, indicates that prior to the Canadian Safety Alliance program the ~province had its own standards which were similar to, if not more rigorous than, those set by the Alliance. Mr. Couture's ability to actually commence a prosecution under various provincial statutes is new, apparently dating from the time he was classified as an enforcement officer. Previously Mr. Couture could only recommend a prosecution. In addition, while in the past Mr. Couture could only recommend to the police that they remove a -36 - vehicle’s licence plates, ~‘he can now remove the plates on his own initiative. In addition to examining the mechanical condition of vehicles, Mr. Couture is also called upon to perform several other tasks relating to commercial vehicles. These include duties performed by highway carrier inspectors which were also assigned to vehicle inspectors at the time of the 1985 reorganization. Mr. Couture testified that when he approaches a commercial vehicle, he first ask,s the driver for his licence as well as the vehicle’s permit. He also checks to ensure that the vehicle is properly insured and that all seat belt requirements are being adhered to. In addition, he checks to see if the vehicle is oversized and that its load is secure. If these are all not in order, or if the driver does not have the class of licence required to drive the type of vehicle in question, Mr. Couture may decide to lay a charge. The job description covering Mr. Couture’s position refers to the examination of fuel tax registrations and the taking and testing of diesel fuel samples. Mr. Couture testified that he personally has done very little with respect .I to fuel tax. Mr. Couture did, however, indicate that he has actively enforced the provisions of the Dangerous Goods Act, a relatively recent enactment. This involves ascertaining - 17 - whether a load that is being transported by a'commercial vehicle is covered by the provisions of the Act. If the Act does apply, Mr. Couture checks to ensure that the vehicle is .bearing the appropriate placard and that the driver holds a certificate enabling him to haul dangerous goods. II-I line with Ministry policy, Mr. Couture doesnot lay charges under the Dangerous Goods Act, but rather leaves that decision to his superiors. Yet another part of Mr. Couture's position specification requires that he enforce legislation and apply industry StandardsFertaining to buses, school purpose vehicles and physically disabled passenger vehicles by: Conducting mechanical examinations; Examining school bust log books; Examining the safety inspection sticker and brake inspection sticker; Completing detailed repo~rts of inspections; Detaining vehicles and directing corrective actions to be taken by drivers; Initiating prosecutions and appearing as an expert witness for the Crown. According to Mr. Couture, the applicable regulations require that buses as well as other vehi~cles utilized for school purposes or to transpor~t the disabled have a safety - 18 - inspection every six months and a brake inspection-every year. Assuming the vehicle successfully passes such an inspection; the garage or other facility,which performed the inspection is to attach a sticker to the vehicle. Should Mr. Couture come across a vehicle without a current sticker, he can require that it be' removed.'from service. Mr. Couture testified that at times he performs audits Into the validity of the inspection stickers attached to vehicles, Although this process was not explained in detail at the hearing, we gather that it involves Mr. Couture perfot-ming a mechanical inspection of a vehicle bearing a current sticker to determine whether it li~kely met the appropriate standards for a sticker to have been affixed to i t T. Should Mr. Couture discover that the vehicle does not meet the standards, he has the discretion to remove the vehicle's licence plates and/or to lay a charge. Mr. Couture. also examines school bus log books. If he discovers that;a book has not been kept up to date, her generally issues a caution to the operator. Yet another job function referred to in the relevant position specification is the enforcement of legislation and ~ the application of industry standards pertaining to automobiles, motorcycles and of the following: light commercial vehicles by means Conducting mechanical examinations; Operating inspection equipment at portable and permanent locations; Completing detailed reports of inspections; Detaining vehicles and directing correctively actions to be taken by drivers; Initiating prosecutions and appearing as an expert witness for the Crown. At one time the Ministry operated a permanent inspection lane in Metropolitan Toronto. Vehicle inspectors stationed at the lane would inspect the mechanical condition of vehicles directed there by the police or voluntarily brought in by their owners. The Ministry no longer operates such a pe.rmanent lane. During the summer months, however, the Ministry does operate a number of portable lanes. According to Mr. Couture, when he is stationed.at a portable lane he has the ,euthority to remove a vehicle's licence plates and to lay charges. Prior to the time that they were made enforcement officers, vehicle inspectors stationed at a lane could only recommend that charges be laid. In addition, they could only recommend to the police that a vehicle's licence plates be removed. '.The position specification relating to Mr. Couture's .position ~also refers to the following duty and functions: - ‘U - Enforces legislation p,+rtaining to dealers in motor vehicle and trailer dealerships, wrecking yards and automotive parts retail outlets by: Attending premises of motor vehicle or trailer dealerships and wrecking yards to examine licenses and documentation; Attending automotive parts retail outlets to examine parts and equipment offered for sale; Initiating prosecutions and appearing as a witness for the Crown. According to Mr. Couture, he audits dealerships and wrecking yards to ensure that they are complying with various regulations under the Highway Transport Act. He stated that this involves him going through books, vehicle permits and work orders. ,Mr. Couture also attends at automotive parts retail outlets to ensure that any seat belts and brake fluids being offered for salve meet C.S.A. standards. Mr. Couture’s position specification contains a heading entitled “Other duties”. Under this heading it lists 4.‘. the following duties: : Participating in or conducting meetings, seminars and training sessions for, but not restricted to, motor vehicle inspection station licensees and registered mechanics, school board transportation officers, school vehicle operators and drivers, commercial vehicle owners and drivers, bus owners and drivers etc ; ; - 21 -7 Inspecting vehicles involved in accidents for mechanical condition when directed; Maintaining liaison with municipal/provincial enforcement agencies to promote vehicle safety; Responding to inquiries from industry, the public and enforcement agencies; Acting as Court Officer; Maintaining related records and activity reports; Training and supervising casual or temporary staff; Ensuring~maintenance and repair of inspection equipment; Performing other duties as assigned. The functions performed by Mr. Couture which come under this heading include answering questions from members of the public' and school board ofEicials. He also advises the staff at new inspection stations of what is expected of them. If a vehicle has been involved in an accident, he might be asked to inspect it by the police and perhaps serve as an expert witness in any subsequent court proceedings. A number of vehicle inspectors have served as Court Officers. Mr. .~ Couture, however, has not. ~ Mr. Couture .is Kequired to enforce a number of statutes and regulations thereunder. He testified that he deals with the Highway Traffic Act, the Public Vehicles Act, - - 22 - the Public Commercial Vehicles Act, the Fuel Tax Act, the Motor Vehicle Transport Act, the Compulsory Auto Insurance Act, and the Dangerous Goods Transportation Act. Duties under the latter three statutes have been added to the position specification since 1974. In 1974 vehicle inspectors were required to enforce the Fuel Tax Act, although for a time during the intervening period this responsibility was taken away from them. As indicated above, vehicle inspectors are required to be qualified motor vehicle mechani.cs. Since 1982 they have also been required to hold a certificate asa qualified propane vehicle inspector. This certificate can be obtained by taking a two-day propane installation course followed by a twoiday inspector course. A document setting out the class standard for a' Vehicle Inspector 2 was filed at the hearing. On the document 'is a notation indicating that it was prepared in 1969, although ,the title of the position was changed in 1971. The document reads as follows: - 23 - INSPECTOR 2, VEHICLE INSPECTION CLASS DEFINITION: This class covers the positions of employees who supervise the operation of permanent and portable vehicle inspection lanes maintained throughout the province. Under the general supervision of a District Inspector, they direct the inspection of motor vehicles brought in for voluntary or compulsory checks. They assign subordinate inspectors to various checkpoints and ensure that inspections are carried out promptly and efficiently. They inspect personally all cases of major defects reported by subordinates and decide what action should be taken. They may recommend to police officers that plates be removed. They supervise the movement and setting-up of portable lane equipment at designated lo’cations and ensure that equipment, maintenance and repairs are carried out. These employees also undertake investigations of complaints and suspected violations of the regulations respecting the inspectional requirements for Certificates of Mechanical Fitness. They visit dealers, owners and garages to inspect,vehicles involved, gather information and prepare reports for the District Inspector. These employees may also conduct inspections of garages, service stations, used car lots and school buses to ensure that they comply with the licensing requirements of the Highway Traffic Act and Regulations. They may be required to appear as witnesses in court if charges are laid as a result of their investigations. They may perform the duties of the Distrjct Inspector in his absence. QVALIFICATIONS: 1. Mechanic’s Licence Class “A”~: 2. A minimum of two years experience in vehicle inspection or automotive ser,vicing. - 24 - 3. Supervisory ability; personal suitability in dealing with the public and L. representing the Department; valid Ontario Driver’s Licence and good dri ving record. The first paragraph of the class standard refers to vehicle inspectors who supervise the operat ion of permanent and portable vehicle inspection lanes. As already noted, the Ministry no longer operates a permanent inspection lane.. Portable inspection lanes do continue to be operated in the summer. As contemplated by the class standard, Mr. Couture does inspect vehicles utilizing the Province’s highways, although generally at locations other than at an inspection lane. Although the class standard refers to subordinate inspectors, who would be classified as vehicle inspector 1, this classification is apparently no longer utilized by the employer except for training purposes. Mr. Couture is responsible~for regularly inspecting a wider range of vehicles.than were vehicle inspectors at the time the class standard was developed. In addition, the emphasis in recent years has been away from private automobiles and towards heavier vehicles such ads trucks and buses. These inspections of trucks and buses, however, fall within the general heading of inspections of motor vehicles.and thus come -within the tasks contemplated by the class standard. The inspection of buses and other vehicles to ensure that safety - 25 - inspection stickers and brake. inspectionstickers are not being improperly issued can also be viewed as coming within the general heading of inspecting motor vehicles. One activity of Mr. Couture's which clearly falls outside the class standard, however, is the removal of licence plates from a vehicle which is not mechanically fit. This involves a degree of responsibility much greater than recommending to the police that licence plates be removed, which is what is referred to in the class standard. Certain tasks performed by Mr. Couture c.annot be viewed as coming under.the heading of inspecting motor vehicles. These include examining vehicle registrations, drive~rs'.licences, insurance documentation and school bus log books. -a_ The class standards also do not encompass the duties performed by Mr. Couture in connection with vehicles hauling dangerous goods. As noted above, he-must first ascertain + whether a vehicle is hauling dangerous goods. If it is, he then checks to see whether the vehicle bears an appropriate placard and whether the driver .is qualified to haul dangerous goods. The second paragraph of the class standard.makes reference to activities connected with the issuance of certificates of mechanical fitness, as opposed to the current - 26 L program of safety standards certificates. We do not believe that the change in name of the certificates or the fact that certificates are now numbered and more tightly controlled takes Mr. Couture’s role with respect to the certificate program outside the class standard. Mr. Couture’s activities in inspecting dealerships are also covered by the class standard. Missing from the classstandard, however, is any reference to Mr. Couture’s duties with respect to wrecking yards and automotive parts retail outlets. Much more importantly, also missing is any reference to the laying of chargers. The second paragraph of the class standard 'contemplates that charges will not be laid by a vehicle inspector. As noted, however, in many situations Mr. Couture on his own initiative can himself lay a Charge. The Union takes the position that the appropriate classification for Mr. Couture is.that of employment standards a'udito2'2 - atypical. This contention is based exclusively upon a comparison of the duties performed by Mr. Couture and ~... those performed by Ministry investigators classified as employment standards auditors. The majority of investigations performed~by Mr. Couture arise out of complaints from ~purchaseris of vehicles for which safety standards certificates have been issued. In response to such a complaint Mr. Couture examines the vehicle in question. He might also interview the - 27 - mechanic who did the initial inspection as well as the seller of the vehicle. Another type of investigation performed by Mr. Couture involves the aud~itinq of garages and dealerships authorized to issue safety standards certificates. Such audits are much less commonly done now than in previous years. AS noted above, these audits involve checking the safety .standards certificates issued to a facility in order to ensure.that they are all accounted for. Mr. Couture might also look at work orders to ensure they covered the items listed on the back of a certificate. An in-depth audit involves not only these tasks, but also Mr. .““: Couture tracking down and inspecting vehicles for which safety standards certifj::ates have been issued so as to ensure that the vehicles met the requisite standards. Mr. Couture performs similar inspections on school buses which have been issued inspection stickers. The duties of investigators classified as employment standards auditors - atypical are dealt with in some detail later in this decision. Suffice it to say that we are satisfied that the investigations performed by Mr. Couture are not of the same depth or complexity as those perf.ormed by the investigators. Accordingly, we are not satisfied that Mr. Cout ure is entitled to the same classification as they . This brings us to the dispute between the, parties concerning the proper classification of Mr. Kel 1s. Mr. Kells - 28 - is employed as an enforcement officer - highway carrier 3 in the Regional Municipality of Peel. The current position description referable to Mr. Kells’ positions was filed at t,he hearing. It indicates that in addition to his other duties he is to enforce legislation pertaining to vehicle weights and dimensions by: ..-. Examining weigh slips, bills of lading or weighing vehicles to determine axle unit weights or gross vehicle weights;. Measuring axle configurations to compute allowable axle unit weights and allowable gross vehicle weights; Comparing registered gross vehicle weights with indicated scale weights; Measuring the size of~.vehicles and loads; Examining special permits; Completing reports of inspection; Conducting investigations in cases of suspected violations; Detaining vehicles and directing corrective actions to be taken by drivers; Initiating prosecutions and appearing as a witness for the Crown. Mr. Kells testified that to perform the above duties he will stop a commercial vehicle. He weighs vehicles utilizing a scale and also measures their axle configurations. Using a set of tables he then determines whether a vehicle has - 29 - exceeded the allowable load limits. If the vehicle,is overweight, Mr. Kells will either caution the driver or lay a charge under the Highway Traffic.Act. As with any other charges he might lay, Mr. Kel’ls would later be expected to appear in court as a witness for the Crown. Mr. Kells also measures the size of a vehicle’s load. If it exceeds the allowable limits, and the driver does not possess an oversize. permit, Mr. Kells can either hold the vehicle until the load is corrected or sell the driver a permit. Another .of Mr. Kells’ duties is to enforce regulatory legislation pertaining to the operation of commercial motor vehicles. His position specification states that this is to be done by means of the following: Comparing the nature of vehicle loads with the terms and conditions of operating licence; Completing detailed reports of inspecti0.n in cases of suspected violations;. Examining vehicles transporting passengers and the terms and conditions of operating authorities; Completing investigations of suspected violations by reviewing reports of inspections, examining bills of lading or invoices, auditing the business records of licensed operators and interviewing consignors, consignees and users of a public vehicle service; - 30 - Initiating prosecutions and appearing as a witness for the Crown. Mr. Kells testified that he checks the loads carried by commercial vehicles and then compares the load against the carrier's operating authority. If there is a discrepancy, he notes it in a report. Decisions with respect to the laying of possible charges are made by a superior. With respect to buses and other passenger vehicles, Mr. Kells determines the route of the vehicle and then checks to ensure that it is in conformity with the relevant operating authority. If not, he prepares a report with respect to the matter. Part of'the position specification set out above refers to the compl etion of inspections. We will return to this aspect of Mr. Kells' duties later in this decision. The position specification provides that a highway carrier inspector 3 is to enforce legislation pertaining to 1. commercial motor vehicles and trailers by way of the following: Examining vehicle registration permits and plates; Examining vehicle loads for security and covering; Examining for driver licensing requirements; Examining vehicles for seat belt '- requirements; ,. to be found in the position specification for J vehicle inspector 2 Mr. Kells indicated tha.t in performing these duties he examines vehicle registrations and drivers’ licences. If these are notin order he may lay a charge. He may also lay a charge if the vehicle is not properly loaded or if seat belt requirements are not being adhered to. He also ascertains ,a+ .~. - 31 - Examining vehicles for equipment requirements in accordance with the Canadian Vehicle Safety Alliance on and off highway; Examine fuel tax registrations, taking and testing diesel fuel samples; Examining those vehicles transporting dangerous goods for, but not restricted to, placards labels documentation and safety requirements;. Examining for “Certificate of Training” required by drivers of vehicles transporting dangerous goods; Examining for vehicle/driver insurance requirements; Completing detailed reports of inspection; Detaining vehicles and directing corrective actions to be taken by drivers; Initiating prosecutions and appearing as a witness for the Crown. will be noted that the tasks listed above are also whether a vehicle is transporting dangerous goods and, if so, whether it has the appropriate placards. If not, he writes a report about the matter. Mr. Kells’testified that he had never - 32 - seen a certificate of training which drivers transporting dangerous goods are required to have The relevant position spec ,i f 'ication refers to the task of examining vehicles for equip: Irn ent requirements in accordance with the Canadian Vehicle Safety Alliance. When asked about this, Mr. Kells commented that he did not know too much about the mater, which suggests that he has not been actively performing this task. With respect to the reference in the position specification to examining fuel tax registrations and taking and testing diesel. fuel samples, Mr. ..: Kells testified that he did not perform‘these tasks. The evidence suggests that Mr..Kells did not do so because he felt that they should not form part of his job duties. The position specification contains a listing of "Other duties". This list reads as follows: Issuing-authorized permits; Collecting fees for authorized permits issued; Establishing and maintaining liaison with municipal/provincial enforcement agencies to promote'highway safety; Responding to inquiries from industry, the public and enforcement agencies; . . Acting as a Court Officer; I - 33 - Participating in or conducting meetings, seminars and training sessions for, but not restricted to, commercial vehicle owners and drivers, bus owners and drivers; Maintaining related records and activity reports; Training and supervising casual or temporary staff; Ensuring maintenance of inspection equipment; Performing other duties as assigned. With one major exception, any of the above-listed functions performed by Mr. Kells have not been of any serious consequence. The exception relates to his acting as a Court Officer. Mr. Kells indicated that between 1981 and 1986 he served on a full-time basis as a Court Officer in Peel. He described this duty as involving the processing of charges, ensuring that charges have been properly sworn, serving subpoenas and generally preparing cases for the Crown to prosecute. On occasion he himself acted on behalf of the Crown and prosecuted the cha.rges. The current class standard for highway carrier inspectors was prepared in 1971. The standard provides for three levels of inspectors. At the time of the reorganization iti 1985, however, all highway carrier inspectors who were not already at that level were raised to the inspector 3 level. The preamble tq the highway carrier inspector series class - 34 - standard as well as the specific provisions relating to inspector 3's provide as follows: PREAMBLE HIGHWAY CARRIER INSPECTOR SERIES KIND OF WORK COVERED: These classes cover positions of employees; who check the operations of commercial highway vehicles in order to ensure compliance with conditions and restrictions imposed by a number of statutes and regulations. DEFINITION OF COMMON TASKS; Employees weigh vehicles and vehicle loads .by using either fixed or portable scales, measure axle. spacing and check registered gross weight for possible overload violations of axle unit or axle group weight. They check loads and bills of lading to determine whether the movement of goods conforms to the terms of the operating license. They check the dimensions of vehicles and loads for compliance with regulations. Employees ensure that vehicles are correctly registered and drivers properly licensed. They~ check for obvious mechanical defects affecting the safety of vehicles, such as defective lights, damaged mufflers, etc., advising drivers to take corrective action, or notifying the police if the condition appears dangerous. Employees complete detailed inspection report forms when circumstances indicate that violations have occurred. Decisions to lay charges for infractions of the Highway Traffic Act may be'~.made by Inspector 2 or Inspector 3 levels. Prosecutions under other statutes are decided upon by District Inspectors, or other officials, depending upon the complexity of the case and the informa~tion available. Employees' - 35 - swear out "informations", and present evidence in court. These employees carry out maintenance work on scales and assist with the general housekeeping at scale locations. They may occasionally participate in vehicle weight surveys, check vehicles for first aid and emergency equipment, such as ~flares and fire extinguishers, issue weight certificates ~for overweight and oversize loads, and apprehend vehicles. attempting to avoid weigh-scale stations. Employees maintain records and statistics, relating to the various tasks carried out. They provide information and answer queries on departmental programmes and related legislation. They may also be .called upon to assist the Vehicle Inspection Unit in' school bus and garage inspections. Employees are required to work irregular hours, and depending on various circumstances, such as weather conditions or equipment failure, they may occasionally be required to perform duties normally associated with positions classified at a higher or lower level in the series. SKILLS AND KNOWLEDGE REQUIRED: Ability to communicate clearly, both verbally and .in writing. Ability to deal tactfully and effectively with the public., Good powers of observation. A high degree of integrity. Thorough working~knowledge, of the Public Vehicles Act, the Public Commercial Act, the Motor Vehicle Transport Act and the pertinent sections of the Highway Traffic Act. * * * HIGHWAY CARRIER, INSPECTOR 3 This class covers positions of employees who, under the-general supervision of a District ~~ Inspector, are responsible for the operation of weigh-scale units. In some positions these employees supervise the activities of less - 36 - qualified Inspectors attached to the Unit, by acting in the capacity of a group leader. This class also covers positions of employees who patrol designated areas, to ensure that highway carrier operations comply with legislation. They conduct detailed investigations into suspected or alleged violations by questioning individuals concerned, examining records, and maintaining surveillance. They submit detailed reports of their findings to their supervisors, including recommendations for further action. These employees may also appear in court as witnesses for the prosecution in instances where Carriers have violated the provisions of any of the Acts which govern their operations. In some positions, employees carry out investigative duties on a full time basis. SKILLS AND KNOWLEDGE REQUIRED: ~, 1. As stated in the preamble. 2. Thorough knowledge of the policies and procedures of the .Highway Carrier Enforcement Unit and ability to carry out duties with a minimum of guidance. The class standard for a highway carrier inspector 3 is, in many respects, a reasonably accurate description of the duties.performed by Mr. Kells. His duties with respect to the ., wei.qhinq of commercial vehicles, examining the size of their loads and ensuring that the loads are in compliance with the relevant operating authorities are all covered by the class standard. So are the duties of checking 'for obvious mechanical defects and ensuring that vehicles are correctly registered and drivers properly licensed. The laying of charges under the Highway Traffic Act is referred to in the class standard. - 37 - There are, however, certain duties performed by Mr. Kells which are not included in the definition of common tasks set out in the class, standard. These include the examination of vehicles for seat belt requirements as well as the more complex task of enforclng the regulations governing the transportation of l‘.... dangerous goods. Mr. Kells also acted as a Court Officer. While the class standard refers to employees presenting evidence in court, this logically relates to the giving of evidence as a witness, and does not cover the preparation of a case for prosecution or acting asthe prosecutor. For Mr. Kells the responsibility of acting as a Court- Officer has not been a minor one, for he fulfilled this function on a full-time basis between 1981 and 1986. Mr. Kells should have, but did not, perform certain other tasks not referred to in the class standard, namely examining vehicles for equipment requirements in accordance with the Canadian Vehicle Safety Alliance, examining fuel tax registrations and taking and testing diesel fuel samples. With respect to Mr. Kel 1st the Union re lies heavily on the investigative role of a highway carrier i nspector; As noted above, at times a commercial vehicle will be found to be transporting a load not permitted by its operati ng authority. This alone, however, does not justify the laying of a charge: Other elements of an offence must first be established, notably - 38 - that the .carrier received compensation to haul the load. When a highway carrier inspector comes across a commercial vehicle operating outside the relevant operating authority, he prepares a report. This report, refer-red to as a commercial vehicle report, may subsequently be given to another highway carrier inspector, or to an investigator classified as an employment standards auditor - atypical, for further investigation. Mr. Kells testified that when assigned to this task his practice is to visit either ~the consignor or consignee of the load, ask .~ ~' about the movement in question, obtain copies of relevant bills of lading and cancelled cheques and the,n prepare a report. For approximately two years Mr. Kells was assigned to perform this type of investigation on a fully-time basis. When being cross-examined by employer counsel, Mr. Kells acknowledged that he haps only infrequently gone to the premises of a licensed carrier and that he had not examined a number of different types of business records, including sales journals.,payroll ledgers and customs manifests. Mr. Kells also acknowledged ~. that he had never audited a carrier's records in order to ascertain whether it was engaging in a pattern of operating outside of its-operating authorities. The Union~contends that the investigations performed by Mr. Kells fall outside class standard for a highway carrier, .inspector 3. We disagree. The class standard expressly refers - 39 - to employees conducting I)... detailed investigations into suspected or alleged violations by question~ihg'individuals, examining records . ..". It also refers to.employees carrying out investigative duties on a full-time basis. The investigat+ons perf'ormed by Mr. Kells comfortably fit within this language. The Union further contends that the duties performed by Mr. Kells "better fit" the position of an investigator classified as an employment standa:rds' auditor - atypical than they do a highway carrier inspector. There is no question but that investigators also perform the type of "one movement" investigations performed by Mr. Kells. As part of their regular dutie's, however, investigators are also assigned to perform general audits of a carrier's records. This is generally done if a number of single movement violations have been discovered or if the Ministry for some other reason suspects a pattern of breaches of the carrier's operating authorities. Unlike the investigations performed by Mr. Kells, where documentary evidence is sought to confirm a suspected violation‘of an operating authority in connection with a single movement of goods, an audit involves a review of a carrier's records.in an attempt to find possible new violations and to ascertain whether the carrier has been engaging in a general ~pattern of breaching its operating'authorities. Prior to - 40 - performing such an audit, an investigator must familiarize himself/herself with all of the carrier’s operating authorities, the scope of the carrier’s operations and any past infractions of operating authorities. The inspector must then develop a plan or strategy concerning what to look for and how to perform the audit. In the course of performing an audit a variety of documents will generally be reviewed, including le, invoices and sales journals, accounts receivable and~payab waybills. The investigator will then prepare his/her fin~dings. a report of In addition to their other duties, investigators also ,.~ ,... ,L conduct investigations into the operations of secondary transportation agencies such as traffic consultants, freight forwarders, lessors of commercial vehicles and driving pool .. agencies. They do so in order to ascertain whether the firms in question are carrying on business as unlicenced carriers. The issues involved may be quite complex. For example, while a firm is permitted to lease vehicles to carry its own product and to obtain drivers from a dciver pool agency to operate the vehicles in question, the leasing company and driver pool agency cannot cooperate to provide an unlicenced trucking operation. An investigator will accordingly check to ensure that the leasing company and driver pool agency sent separate’ invoices to the shipper and that the shipper made two separate.’ - 41 - payments to them which did not end up in the same bank account. An investigator might also check the corporate records of the officers and shareholders of the leasing company and driver pool to ensure that they are not’the same. There is nothing in the evidence to indicate that Mr. Kells has conducted these types of investigations. Although, as already noted, Mr. Kells performs investigations of the same type as those performed by investigators classified as employment standards auditors - atypical ,- the investigators are also responsible for the performance of other, more complex, investigations of a type that Mr. Kells does not perform. Given this fact, we are not satisfied that on the basis of the “usage test” Mr. Kells is entitled to be classified as an employment standards auditor - atypical. In summary, the Union has failed ..toz:, establish that either Mr. Couture or Mr. Kells is entitled to be classified as an employment standards auditor - atypical. The Union has, however , demonstrated that a number of Mr. Couture’s duties and responsibilities are outside the class standard for a vehicle inspector 2. These include the duties of examining vehicle registrations, drivers’ licences,~ and school bus log books. Also outside the scope of the class standard are the - 42 - requirement that he check to see if vehicles are hauling dangerous goods and, if they are, ensuring that the vehicle bears the appropriate placard and that the driver is qualified to haul dangerous goods. In terms of responsibilities beyond, those contemplated in the class standard, Mr. Couture now has the discretion to lay charges and to take a ve,hicle off the road by removing its licence plates. In these circumstances, we have no difficulty in directing the employer to either find an existing classification, or develop a new one, which more accurately reflects Mr. Couture’s:full range of duties and responsibilities. The situation with respect to Mr. Kells is less clear. Most of his duties and responsibilities fit comfortably within the class standard for a highway carrier inspector 3.~ There are, however, exceptions, most notably his assignment to serve as a Court Officer and his duties in enforcing the :;.,, regulations applicable to the transportation of dangerous goods. On balance, we are satisfied that these duties are .‘_... sufficient to take him outside the relevant class standard. We nq,te that had Mr. Kells been performing the full range of duties assign’ed to him,~, the decision that his job did not come within the class standard would have been an easier one to make. The employer is directed to find an existing ” - 43 - classification, or develop a new one, which more accurately reflects fir. Kel 1 s' full range of duties and responsibilities. DATED AT TORONTO THIS 23rd DAY OF '!.;Tr~Y, , 1989. Ian Springate, Vice-Chairperson I. Thomson, Member A. Stapleton, Member