HomeMy WebLinkAbout1985-1642.Union.89-04-10ONTARIO El.“LOYiS DE u CO”RONNE CROWNEMPLO”EES DE i’ONIAR,O
* GRIEVANCE C(lMMiSSION DE
1 _I SETTLEMENT REGLEMENT
BOARD DES GRIEFS
Between:
Before:
1642/05(b)
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
APPEARING FOR
THE GRIEVOR:
APPEARING FOR
THE EMPLOYER:
Hearinas:
I;.>. Ver: ty Vice-Chairperson
3 . blCN,anuS Member
L. Turtle Member
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DECISION .
On February 10, 1986, the Union filed the following grievance:
The Union grieves that the Ministry of Transporation and
Communications has violated the Collective Agreement with
respect to Working Conditions and Employee Benefits. The
violation arises as a result of the employer's refusal to
negotiate the salary range for the new/revised classifications
of, but not limited to, that of the existing Highway Carrier
Inspector and Vehicle Inspector series (Enforcement Officers),
contrary to the provisions of Article 5 and Article I8 of the
Collective Agreement.
This grievance arises from a Ministry field enforcement reorganization
developed in late 1984 and early 1985 and implemented on April 1, 1986. The
reorganization included a partial integration of the duties of Highway Carrier
Inspector and Vehicle Inspector (two separate classifications) into the newly
created position of Enforcement Officer.
Although the title of the position was changed to Enforcement Officer,
there was no subsequent reclassification. The Union contended that the duties of
the new position fell outside the existing Class Standards of Highway Carrier
Inspector and Vehicle Inspector. In August, 1986 the parties agreed that the
Union grievance, affecting as it does some 260 employees, would proceed by way of
representative classification cases.
Accordingly, on September 25, 1986, Vice-Chairman Gorsky issued an
interim award with the consent of the parties as follows:
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. . e "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) The grievors, whose grievances are to be adjudicated (as
representative cases) will be selected as follows:
(i) 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 Inspection classificaiton and ten grievors
in the Vehicle Inspection classification.
(ii) 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 are to be selected from twenty names
from each classification submitted by each of the parties.
The names, so submitted, will be placed in a separate
receptacle for each classification and will be drawn by the
Registrar. The ten 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
arouins that the Board may order the Employer to create a new <
classiiication.
(iv) The Board wi
to be adjudicated,
the parties.
11 expedite the hearing dates of the cases
as above determined, in consultation with
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 5.9.
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 objection that the grievance if
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."
The present Panel was assigned to determine the appropriate classification
of two representative employees; namely, Enforcement Officer Ernest Shar:?,
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classified as Highway Carrier Inspector 3, and Enforcement Officer Charles Bodle, 5
classified as Inspector 2, Vehicle Inspection. A separately constituted Panel of
the Board chaired by Vice-Chairman Springate was assigned to hear the cases of
representative employees Couture and Kells.
Briefly, the Union alleged that Sharpe and Bodle were currently
misclassified and should be classified as Employment Standards Auditor 2
(atypical). In the alternative, the Union requested the 3oard to order the
Employer to find or create an appropriate classification. The Employer contended
that the employees are currently properly classified anti alternatively that the
classification sought was inappropriate.
Under s. 18(l) of the Crown Employees Collective Bargaining Act the
classification of positions falls within the exclusive jurisdiction of the
Employer. However under s. 18(2) of the A&, an employee is given the right to
grieve that his position has been improperly classified. The Board's first task
is to determine, on the evidence adduced, whether or not Messrs. Sharpe and Bodle
are properly classified. In that regard the Board is obliged to measure the
duties performed by Sharpe and Bodle against the Class Standards (The Class
Standards Approach) or against other employees in a higher classification
performing the same or similar duties (The Usage Approach). See generally
Ontario Public Service Employees Union v. The Queen in Right of Ontario et al
(1982), 40 O.R. (2d) 142 (Ont. Div. Ct.).
Evidence was heard under both the Standards Approach and the Usage
Approach in both representative matters. The Board was advised that the evidence
in this hearing was similar, although not identical, to iiie evidence considered by
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the Springate Panel. The Board makes no attempt to repeat the evidence in these
protracted proceedings except,in certain salient respects. The parties agreed
that the cut-off date for evidence would be December 31, 1986 despite the fact
that the grievance was filed February 10, 1986.
As indicated previously, in classification matters the Board is obliged
to interpret the Class Standards to determine whether or not the empioyee is
improperly classified as alleged. The Class Standards are, of course, absolute
standards to be taken as read and to be interpreted as a whole. Class Standards
are of necessity generally worded. In these particular circumstances, the essence
of the Board's enquiry is to determine ,whether or not the Employer has conformed
to its own standards. In OPSEU (Betty Goobie, et al) and Ministry of Health,
240/84, the present Chairman made the following relevant general comments at pp.
28-29:
While it is true that absolute standards should be revised
infrequently, they must surely be made subject to periodic
revision if they are to serve their intended purpose in a
meaningful way. Clearly, the Board has no jurisdiction to
amend or alter the Class Standards. However, as stated by
Vice-Chairman Draper, we are required to consider them to be
"referrable to the state of the art, that is, to the current
stage of development of their subject matter" - Re Parker,
107/83 at p. 7. Sooner or later, it may occur that the words
of the standard and the nature of the work performed diverge
so completely that the incumbent is prima facie
misclassified. In the interim, this Board must treat the
standards as though drafted with the Grievor's work in mind.
It is appropriate to begin by setting out the relevant Class Standards.
Mr. Sharpe is classified as Highway Carrier, Inspector 3. The preamble to the
Class Standard and the relevant standard read 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 information available. Employees 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 weight-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.
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CONDITIONS OF WORK:
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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 qualified
Inspectors attached to the Unit by acting in the capacity of a
group leader.
This class also covers positions of employees .tiho 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 ;rhere 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.
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Mr. Bodle is classified as Inspector 2, Vehicle Inspection as follows:
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
locations 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 District Inspector in his absence.
QUALIFICATIONS:
1. Mechanic's Licence Class "A".
2. A minimum of two years experience in vehicle inspection or
automotive servicing.
3. Supervisory ability; personal suitability in dealing with
the public and representing the Department; valid Ontario
Driver's Licence and good driving record.
Both Sharpe and Bodle claim entitlement to the classification of
Employment Standards Auditor 2, atypical.
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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.
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.
KNOWLEDGE AND SKILL REQUIRED:
Demonstrated capacity for accounting, auditing and
collection work. The ability to speak and write clearly and
concisely and to deal effectively with people at all levels.
The ability to acquire a good knowledge of the administrative
and legal courses of action applicable to the enforcement of
employment standards.
MINIMUM STAFFING STANDARDS:
Secondary school education plus acceptable experience in
either business or government institutions.
Clearly, the Employment Standards Auditor Class Standard applies to
positions in the Ministry of Labour. However, the Ministry of Transportation has
classified Ministry Investigators in the,classification of Employment Standards
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Auditor 2 (atypical). In the Employer's Ontario Manual of Administration and
"Atypical Allocation" is defined as:
The allocation to a class of a position that in general fits
the 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.
The Ontario Manual defines "Class" as:
A distinct level and type of work with:
. the complexity, skill and responsibility exemplified as a
class standard; and
. a specific pay range.
Ernest Sharpe was a Metro Toronto Police Officer until he commenced
employment with the Ministry as a Highway Carrier Inspector in November 1970.
Since July 1973, he has been classified as Highway Carrier 3 and assigned to the
Niagara Area. Essentially the job of Highway Carrier is to enforce provincial and
federal legislation in a designated area at the roadside or at inspection stations
to control the safe and legal operation of commercial motor vehicles. His
previous ?osition Specification is dated January 2, 1974. Subsequent to the
reorganization in 1986 a new Position Specification was prepared and dated
September 18, 1986. This revised position form for Enforcement Officer (Highway
Carrier) contemplates three basic areas of responsibility:
1. Enforcement of legislation pertaining to vehicle weights
and dimensions (25% of allocated time),
2. Enforcement of economic regulatory legislation pertaining
to the operation of commercial motor vehicles (?O%), and
3. Enforcement of other legislation pertaining to commercial
motor vehicles and trailers (35%)
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The remaining 10% of the job is described as "Other Duties".
The assigned tasks under each area of responsibility read as follows:
1.
2.
3.
Enforces 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 ,&eights and allowable gross vehicle weights;
Comparing registered gross vehicle weights with indicates
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.
Enforces economic regulatory legislation pertaining to the
operation of commercial motor vehicles by:
Comparing the nature of vehicles loads and the terms and
conditions of operating licence;
Completing detailed reports of inspection 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
ladihg or invoices, auditing the business records of
licensed operators and interviewing consignors, consignees
and users of a public vehicle service;
Initiating prosecutions and appearing as a witness for the
Crown.
Enforces other legislation pertaining to commercial motor
vehicles and trailers by:
Examining vehicle registration permits and plates;
Examining vehicle loads for security and covering;
Examining for driver licensing requirements;
4.
Mr.
described his
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Examining vehicles for seat belt requirements;
Examining vehicles for equipment requirements in
accordance with the Canadian Vehicle Safety Alliance on
and off highxay;
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.
Other Duties:
Issuing authorized permits;
Collecting fees for authorized permits issued;
Establishing :nd maintaining liaison with
municipal/provincial enforcement agencies to promote
highway safet:d;
Responding to inquiries from industry, the public and
enforcement agencies;
Acting as a Court Officer;
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.
Sharpe testified that the 1986 job specification form accurately
duties as a Highway Carrier with the one exception that the document
did not set out the complex nature of the tasks required under the Dangerous Goods
Transporation Act.
Mr. Sharpe described his duties in considerable detail and testified
that in 1986 he personally performed all of the duties set out in the revised
Position Specification Form. Given Mr. Sharpe's previous experience as a Police
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Cons'table, it is not surprising that from approximately mid-1970 to January 1986,
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while not on secondment, he served as Court Officer in the Niagara Peninsula in
addition to performing his regular duties. Essentially, the Court Officer
performs administrative and clerical functions by reviewing documentation,
attending to guilty pleas and adjournments, assisting the Crown Attorney in
prosecutions and occasionally prosecuting in the absence of the Crown. From
August 1986 to December 31 1986, Mr. Sharpe served as the Hamilton Court Officer
appearing before a Justice of the Peace or occasionally before a Provincial Court
Judge.
Highway Carriers are now "Provincial Offences Officers" required to
initiate prosecutions either by way of provincial offence notice or the issuance
of a summons.
There is no dispute that the Highway Carrier position has evolved since
1974 in terms of greater complexity and responsibility. This evolution has taken
place as a result of burgeoning provincial legislative enactments and regulations
thereunder. In 1976 changes to the Highway Traffic Act introduced dump stickers
and permitted Highway Carrier Inspectors to detain vehicles or to remove plates
for certain classes of vehicles. In 1976-77, multiple classified drivers licence
replaced the two existing categories. In 1980, Regulation 455 to the Highway
Traffic Act was enacted pertaining to load covering and in 1981 Regulation 428
came into effect regarding load security. Both Regulations increased the
complexity of the Highway Carrier position at the roadside and at inspection
stations. In 1983, legislation was introduced whereby Ontario licence plates were
registered in the name of an individual or a company. In 1984, Highway Carriers
were required to enforce the use and maintenance of seat belts. In that year,
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Highway Carriers were appointed inspectors for the Ministry of Revenue under the
FueTTax Act (1981) authorized to test samples of deisel fuel and to collect
monies for single trip permits in both Canadian and U.S. currency. In 1984 the
Canadian Vehicle Safety Alliance came into force, an interprovincial agreement
with the federal government to achieve uniformity in vehicle safety. As a result,
commercial vehicle inspector reports were amended to reflect the increased areas
of visual inspection. In 1985 Ontario proclaimed in force the Dangerous Goods
Transportation Act to address environmental concerns and to encompass some 350
explosive commodities and some 3,126 non-explosive dangerous goods. Highway
Carriers were required to take a one week training course to learn these new
duties. The duties included the identification of the product being transported,
the security of the product being hauled, whether the driver was certified in the
transportation of dangerous goods, and whether the dangerous goods were properly
identified with placards. Highway Carriers have authority to issue provincial
offence notices and detain vehicles in violation of the Act. In 1985 Ontario
entered into the Canadian Agreement Vehicle Registration (C.A.V.R.) which is a
reciprocity agreement with other provincial jurisdictions to ensure the proper
payment of fees for mileage travelled in Ontario. In 1986 Highway Carriers .were
given new duties with regard to the enforcement of drivers under suspension.
The essense of the Highway Carrier Inspector's job is to enforce
compliance with a variety of statutes and regulations that govern commercial motor
vehicles. Obviously the enactment of new legislation in the intervening years has
added substantially to the quantity and the complexity of the work performed.
Initially on a first reading of the Highway Carrier Inspector 3 Class
Standard, it may appear that Mr. Sharpe's duties and responsibilities fall within
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that Standard. However, it is necessary to read the preamble as an essential part >,
of that Standard. The preamble of the Highway Carrier series contains a lengthy
definition of common tasks. While that definition need not be exhaustive it must,
however, be representative of the duties performed. In our opinion, the Class
Standard when read as a whole, does not represent Mr. Sharpe's current duties and
responsibilities. Clearly, there have been substantial quantitative changes to
the Highway Carrier job through the years. There comes a point in time, however,
where substantial quantitative changes become qualitative changes. In assessing
the bundle of tasks performed by Mr. Sharpe against the Class Standard, the Board
is persuaded that the Highway Carrier job is qualitatively more complex and
sophisticated than contemplated by the 1971 Class Standard. The Standard makes
reference to the position of District Inspector. That position did not survive
reorganization nor did the concept of group leader. There is no reference in
either the Class Standaro or the preamble to the duty of Court Officer which, on
the evidence adduced, forms a significant component of Ernest Sharpe's duties.
Similarly, there is no reference to recently acquired duties under the Dangerous
Goods Transport. Accordingly, we must find that the position of Enforcement
Officer (Highway Carrier) is improperly classified.
However we cannot agree that the classification sought of Employment
Standards Auditor 2 (atypical) is appropriate. Although Mr. Sharpe's one movement
type of investigation can be described as a detailed investigation, it is not the
type of-complex assignment required of Ministry Investigators who examine
secondary transportation agencies such as freight forwarders, transportation
brokers, travel agencies, lessors of commercial vehicles and employment agencies.
The evidence satisfies us that Mr. Sharpe's temporary secondments to the
investigator's position only involved one movement investigations. The Board
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accepts the evidence of Area Enforcement Supervisor Richard Auzins that although c
Highway Carriers conduct detailed investigations, they do not conduct indepth
audits as are performed by Ministry Investigators. Simply stated, the evidence
does not support the contention that Mr. Sharpe's duties are the same or similar
to those performed by Ministry Investigators in the classification claimed.
Charles Bodle has been a Vehicle Inspector since March 1975 and
currently works in the Halton South area. As a result of reorganization, his
position title changed from Area Vehicle Inspector to Enforcement Officer -
Vehicle Inspector; however, his classification remained unchanged. As licenced
mechanics, Vehicle Inspectors are responsible for the inspection of privately
owned motor vehicle inspection stations and mechanics and the inspection of
various categories of motor vehicles to ensure compliance with provincial
legislation. Mr. Bodle's previous job specification dates back to October 2,
1974. Following reorganization, a new Position Specification was prepared dated
September 23, 1986.
Essentially, there are three major areas of responsibility outlined in
the revised Position Specification Form.
1. Enforcement of legislation pertaining to motor vehicle
inspection stations and mechanics (25% of allocated time)
2. Enforcement of legislation and applying industry standards
pertaining to
(a) heavy comercial motor vehicle and trailers;
(b) buses, school purpose vehicles and physically
disabled passenger vehicles; and
Cc) automobiles, motorcycles and light commercial
vehicles (60%)
3. Enforcement of legislation pertaining to dealers in motor
vehicles and trailer, wrecking yards and automotive parts
retailers (5%)
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A further 10% of allocated time is referred to as "Other Duties".
in each
The revised Position Specification &ails the specific duties assigned
of the major categories:
1.
2.
Enforces legislation pertaining to motor vehicle
inspection stations and mechanics by:
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 submittina prescribed application fees;
Attending motor vehicle inspection stations to inspect
reporting and accounting procedures and security measure
for safety standards certificates, observing inspections,
checking condition and calibration of equipment, ensuring
the application of prescribed standards;
Instructing registered mechanics in the inspection
procedures and application of sttndards;
Investigating complaints from the public and concerning
the quality of inspections and determining appropriate
course of action;
Compiling evidence for suspension hearings of licencees
and registered mechanics; appearing as an expert witness
and giving evidence before the Licence Suspension Appeal
Board;
Initiating and conducting detailed investigations of
suspect licences or registered mechanics;
Initiating prosecutions and appearing as an expert witness
for the Crown.
Enforces legislation and applies industry standards
pertaining to:
(a) Commercial motor vehicles and trailers by:
Examining vehicles for equipment requirements in
accordance with the Canadian Vehicle Safety Alliance both
and off highway;
Examining vehicle registration permits and plates;
Examining for driver licensing requirements;
Measuring the size of vehicles and loads;
Examining vehicle loads for security and 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 "Certificale of Tr;.ining" required by
drivers of vehicles transporting dangerous goods;
Examining for vehicle/driver insl:rance requirements;
Completing detailed reports of inspection;
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,. Detaining vehicles and directing corrective actions to be
5 taken by drivers;
Initiating prosecutions and appearing as an expert witness
for the Crown;
(b) Buses, school purpose vehicles and physically disabled
passenger vehicles by:
Conducting mechanical examinations;
Examfning school bus log books;
Examining the safety inspection sticker and brake
inspection sticker;
Completing detailed reports of inspections;
Detaining vehicles and directing corrective actions to be
taken by drivers;
Initiating prosecutions and appearing as an expert witness
for the Crown.
(c) Automobiles, motorcycles and light commercial vehicles by:
3.
4.
Conducting mechanical examinations;
Operating inspection equipment at portable and permanent
locations;
Completing detailed reports of inspections;
Detaining vehicles and directing corrective actions to be
taken by drivers;
Initiating prosecutions and appearing as an expert witness
for the Crown.
Enforces legislation pertaining to dealers in motor
vehicle and trailer dealersnips, 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.
Other 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 oowners and drivers etc.;
Inspecting vehicles involved in accidents for mechanical
condition when directed;
Maintaining liaison with municipal/provincial enforcement
agencies to Promote vehicle safety;
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Responding to inquiries from industry, the public and _ _ enforcement agencies; 1 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.
Mr. Bodle agreed that the revised Position Form was substantially
accurate with a few minor omissions, the most significant of which being the duty
acquired in 1986 of inspecting all vehicles fueled by propane. Mr. Bodle has
performed most, if not all, of the tasks specified in the Position Specification
Form. Essentially there are two types of inspections performed; namely, motor
vehicle inspections stations and commercial vehicle inspections including buses,
physically disabled passenger vehicles, automobiles and motorcycles. According to
Nr. Eodle's testimony, these inspection duties constitute approximately 80% of his
allocated time. As a licenced mechanic, the Vehicle Inspector is required to
complete commercial vehicle inspection reports and to make detailed inspections in
those areas where the Highway Carrier lacks mechanic's qualifications. The
Vehicle Inspector is designated or appointed a Provincial Offences Officer and as
an officer under the Public Commercial Vehicles Act, the Public Vehicles Act and
as an inspector under the Highway Traffic Act and the Dangerous Goods
Transportation Act. In 1986, Vehicle,Inspectors assumed significant new duties as
propane vehicle Inspectors in view of their qualifications as Class A Licenced
Mechanics. To obtain that qualification, Vehicle Inspectors were required to
attend two - two week courses to obtain certification. Mr. Bodle performed as a
Court Officer for approximately 12 months at one point in time in the Halton and
Tee1 Regions.
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e Like the Highway Carrier position, the Vehicle Inspector's job has 3
evolved as a result of the significant legislative enactments since the Class
Standard was drafted in 1969. Mr. Bodle is required to enforce the Highway
Traffic Act and the regulations thereunder, the Public Vehicles Act, the Public
Commercial Vehicles Act, the Fuel Tax Act, the Motor Vehicle Transport Act, the
Motor Vehicle Dealers Act, the Compulsory Automobile Insurance Act, and the
Dangerous Goods Transportation Act.
in comparing the 1969 Class Standard of Inspector 2, Vehicle Inspector
to the work currently performed, it can be said that Enforcement Officer-Vehicle
Inspection is improperly classified. Indeed, the case for Vehicle Inspectors is
even stronger than for Highway Carriers. In many respects, the contents of the
first paragraph of the Vehicle Inspector Class Standard is outdated. The
permanent inspection lane is now closed to the public and portable lanes (one in
each district) operate only seasonlly between the months of May and September.
The position of District Inspector was abolished as a result of reorganization.
The use of subordinates no longer applies. Vehicle Inspectors no longer make
recommendations to the police with regard to the removal of licence plates and
have directly assumed that responsibility. In sum, in large measure the first
paragraph of the Standard is now redundant.
The second paragraph of the Class Standard, although applicable in some
respects, is riddled with inaccuracies and omissions when compared to the current
duties and responsibilities. Certificates of mechanical fitness have not been
used in Ontario since 1974. The current Safety Standards Program is more complex
and sophisticated. There is no reference to Mr. Bodle's duties under fuel tax
registrations, propane inspection, physically disabled passenger vehicles,
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*
$wwr"ecking yards, and automotive parts retail outlets. Of greater importance,
however, is the fact that the Class Standard makes no reference to the
requirements of the Vehicle Inpsector to lay charges and to initiate prosecutions,
a task which has been performed since the mid 1970's and further enhanced by the
enactement of the Provincial Offences Act in 1979. Similarly, there is no
reference to the task, described as a priority duty, acquired in July 1985 under
the Dangerous Goods Transportation Act.
We are mindful of the Grievance Settlement Board's jurisprudence as
stated by Vice-Chairman Brandt in OPSEU (Angus, et al) and Ministry of
Correctional Services, 203/84 where the following statement was made at p. 60:
. ..the class standards are to be read as general descriptions
of generic functions and are not to be treated as a Position
Specification which contains a more detailed job description
and which, unlike the class standards, is frequently revised.
As general descriptions of the type of work required at designated
levels, the Class Standards cannot be expected to cover every assigned duty;
nevertheless, the significant elements of the job must be encompassed in the
standard. In assessing the Vehicle Inspector 2 Standard against the bundle of
tasks currently performed, the Board finds that the .Class Standard is outdated,
inaccurate and is notable primarily for its omissions. In sum, we find that Mr.
Bodle is improperly classified in his present classification.
The Union's position is that he would be properly classified as
Employment Standards Auditor 2 (atypical). We do not agree. On the evidence
adduced we are not persuaded that Mr. Bodle performs investigations that can be
characterized as the same or similar to those performed by Ministry
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I?Gestigators. Nor for that matter, does Mr. Bodle have the necessary six months ?
training to qualify himself for the job of Ministry Investigator. Simply stated,
the nature of the investigations performed by f4r. Bodle are not comparable in
depth and complexity to those performed by Ministry Investigators.
The remedy for improper classification is proper classification. In the
Judicial Review of the srievance Settlement Board Decision in OPSEU (Carol Berry,
et al) and Ministry of Community and Social Services, 217/83, the Judgment of Mr.
Justice Reid released March 13, 1986 makes it clear that the Board's obligation
under s. 19(l) of the Crown Employees' Collective Bargaining Act is "to decide the
matter" with a remedial mandate "to effect a proper classification". The
authority to classify employees remains, of course, with the Employer. The Board
can go no further than to order the Employer to find or create an appropriate
classification in both representative classification matters.
It may well be that the Highway Carrier series and the Vehicle Inspector
series are deemed appropriate classifications with significant changes in both
Class Standards to reflect current duties and responsibilities. Alternatively,
the Employer must create a new Class Standard or Standards. In our opinion, this
is not the appropriate case to place either Bodle or Sharpe in an atypical
classification.
Once the classification issue has been resolved, Highway Carriers and
Vehicle Inspectors will be entitled to full retroactive compensation to April 1,
1986, the effective date of the reorganization of the Ministry field staff.
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.i 2%
is The Board shall retain jurisdiction on xe proper classification of
Enforcement Officers, both Highway Carriers and Vcnicle Inspectors, on the
appropriate quantum of compensation payable, and 'I the event that the parties
encounter any difficulty on the interpretation or implementation of this Award.
DATED at Brantford, Ontario, this 10th rzy of April
, A.D., 1989.
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R,. L. VER:'Y, Q.C. - VICE-CHAIRPERSON
J. McMANU. - MEMBER
L. TURTLE - MEMBER