FPSLREB Decisions

Introduction

[1]   This is a set of grievances filed simultaneously by the five grievors, each of whom is engaged as an investigator/auditor by the Canada Customs and Revenue Agency (CCRA) at its Tax Services Office [TSO] in Saint John, New Brunswick. At the outset of the proceedings, Mr. Done, the representative of the grievors' bargaining agent, Public Service Alliance of Canada (PSAC) advised that Lindsay Welch sought to withdraw his grievance [166-02-32048] and, the employer raising no objection, the Board consented to its withdrawal, which it hereby confirms. These grievances were processed through directly to adjudication without prior mediation, and upon discussion between counsel for the employer, the PSAC representative and me, the parties requested that I first attempt to mediate their dispute and consented to its resolution before me as a mediator-arbitrator. Mediation talks occupied the bulk of the first day of proceedings, but despite the good faith efforts on the part of both parties, they were unable to resolve their differences through that mechanism, and so upon agreement they reverted to the adjudication mode before me for final and binding settlement.

[2]   Following a recess at the close of the hearing on May 28, 2004, I delivered the following short oral ruling, dismissing these grievances on the following terms:

Oral Ruling

In this case, the Grievors, who are engaged by Canada Customs and Revenue Agency as investigators/auditors at the Tax Services Office in Saint John, NB, allege that the employer has failed, upon request, to provide to them "a complete and current statement of the duties and responsibilities of [their] positions" as required by article 56 of the Collective Agreement binding between their Bargaining Agent, PSAC, and the CCRA (Exhibit 1). By way of relief they seek an order from the Board, directing the Employer to revise its work description for their job, PM0286 (Exhibit 3B), as submitted in evidence led before me, both by way of Exhibits 4 & 5 and the testimony of the grievors O'Neill and Currie, so as to comprise a complete and current statement of their duties and responsibilities.

Although so framed, it is common between the parties that at bottom, the grievors contest their classification as investigator/auditor at the PM-03 level, and seek to be recognized as performing their duties on an ongoing continuous basis at the PM-04 level. Their representative candidly admits that, if successful before the Board, the grievors will then request that the employer re-rate PM-0286 as revised by Board Order, with a view to its rating at the PM-04 level, failing which the grievors will pursue individual classifications grievances, alleging that the job actually performed by each falls within PM-0677, the work description for investigator/auditor at the PM-04 level.

In contrast to the norm in the private sector governed by the Industrial Relations Division of the Canada Labour Code, which leaves open to the parties the extent to which managerial rights to organize the work place are to be limited by the process of free collective bargaining, under the Public Service Staff Relations Act [PSSRA], Parliament has explicitly excluded from the reach of the legislation and the purview of the Board, the organization of the public service including the classification of positions and the assignment of duties to them [PSSRA s. 7]. Thus, although the instant dispute is framed strictly in terms of collective agreement obligation, the Board must be cautious in considering it so as not to impinge upon the employer's exercise of its managerial discretion as to classification, as this falls outside of the Board's jurisdiction.

Indeed, this approach fits within the thrust of the arbitral jurisprudence on job classification schemes generally, which commences with a presumptive right of management, here legislatively entrenched at PSSRA s. 7, to organize and reorganize the workplace, whether by the creation of new classifications and the deletion of old, or by the assignment and reassignment of duties within any classification. As stated by Professor Weiler almost 40 years ago "No one has a proprietary interest in the specific set of job functions he or she is or has been performing". [c.f. USW and Algomia Steel Corp. (1968), 19 LAC 236 at p. 239]. Job descriptions must be read within the context of that long established arbitral jurisprudence.

The jurisprudence of the Board itself, cited in argument, is indicative of that general arbitral approach. It emphasizes the broad language which characterizes generic, multi-position job descriptions which are applicable nationally, and cautions against over-reliance on the collective agreement obligation to provide "a complete and current statement of the duties and responsibilities of [the] position" so as to require "a detailed listing of all activities performed under a specific duty" [c.f. Hughes v. Treasury Board (Natural Resources Canada) (2000) PSSRB 69, per Chairperson Tarte at para. 26]. Nor need a job description "list at length the manner in which those activities are accomplished" [ibid]. Rather, it need only "adequately describe in broad terms, what are the functions and duties of the grievors" [Jeremy v. Treasury Board - Customs, Excise & Taxation (2000) 37 PSSRB 11, per Vice Chairperson Chodos at para. 24]; not "spell out in infinite detail every possible variation, combination or permutation of how a function is performed." [Fedun and Treasury Board (Revenue Canada - Taxation) (1998) 33 PSSRB 25 per Vice-Chairperson Chodos at para. 31, citing an earlier decision by Adjudicator Young Re Taylor Board File 166-2-20396].

For fuller reasons to be given, I am satisfied upon review of the evidence before me and the very complete and well-articulated testimony of the grievors, O'Neill and Currie, that PM-0286 effective 18-05-00 (Exhibit 3B) comprises a complete and current statement of the duties and responsibilities of their positions as investigator/auditor at the PM-03 level. That said, the grievors are entitled to the wage rate agreed to by the collective bargaining process for the work which they are in fact performing. If that work substantially comprises duties and responsibilities within the higher rated PM-04 classification as detailed in work description PM-0677, they may seek relief either by filing an acting pay grievance under article 64.07 of the Collective Agreement where such work is temporary, or where on an ongoing and permanent basis, through the CCRA classification grievance process.

These grievances are dismissed.

Fuller reasons for my Oral Ruling now follow.

Background

[3]   In addition to the exhibits filed, the Board heard testimony from three witnesses: Raymond Jones, CCRA Director General of Investigations, working out of the employer's headquarters in Ottawa; the grievor Vincent O'Neil, at the relevant time an investigator/auditor PM-03 working out of the Saint John TSO, (although as of October 2001 engaged there in the higher-rated position of auditor, AU-01); and the grievor Glenn Currie, engaged continuously through to the hearing of this matter as an investigator/auditor PM-03. All are long-time employees of the CCRA and its predecessor, Revenue Canada, and the Board's summary of the circumstances under which these grievances arose is drawn from the totality of their testimony.

[4]   CCRA was established as an independent crown agency in 1999 under the general superintendence of a Commissioner. Headquartered in Ottawa, CCRA comprises thirty-four tax services offices spread across the country, each with a Compliance Program comprising a civil audit side and a criminal investigation side. Where, following civil audit, criminal conduct is suspected whether by way of fraud, willful evasion of taxation or income obtained from criminal activity, the matter is referred from the criminal audit side to the criminal investigation side of the TSO, the latter of which itself comprises two sub-programs: the criminal investigation program [CIP] and the special enforcement program [SEP]. Within Investigations, there are two principal job types nationally: auditors [AU] and program administrators [PM] engaged in six classifications: AU-01, AU-02, AU-03, and AU-04; PM-03 and PM-04 - these latter with the job title investigator/auditor. Those engaged in the AU auditor job classification series have formal educational qualifications in accounting - the CMA, CGA, CA or B. Comm; whereas the PMs are possessed of medium-level accounting qualifications. The two groups work closely with each other in the investigation of suspected criminal activity operating across the country on the 'team model'. In Saint John, there are two teams comprising 7-9 members, each under the direction of two team leaders in a senior AU classification. Although formerly represented by the same bargaining agent, employees in the AU classification series are now represented by the Professional Institute of the Public Service of Canada (PIPSC). The investigator/auditor working level is PM-03; that of the Auditors is AU-01.

[5]   Roughly contemporaneous with the creation of the CCRA, there was an internal classification review of positions in the Investigations Division. Whereas formerly the approximately 180 Investigators in the PM group were classified at the PM-03 level, in the year 2000 the employer established a two-tier cohort of investigator/auditors with approximately 90 positions at the PM-03 working level, and some 90 at the more senior rated PM-04 level. The establishment of the two-tier PM series allowed for greater career opportunity for incumbents lacking the accounting qualifications which would allow for advancement into the AU series, as well as for greater flexibility in case file assignment. Approval of the two-tier investigator/auditor classification series was given in October 2000 but made effective on May 18, 2000 with the introduction of a revised Work Description PM-0286 for the PM-03 level (Exhibit 3B) replacing that earlier approved in December 1996 although made effective in June 1994 (Exhibit 3A). The same 2000 date saw the introduction of Work Description PM-0677 for the newly established investigator/auditor PM-04 classification. These grievances were filed prior to the approval of the revised PM-0286, and although the employer considers that revised work description to be 'a complete and current statement of the duties and responsibilities' of the investigator/auditor PM-03 position within the meaning of article 56 of the Collective Agreement (Exhibit 1), the grievors maintain that it is deficient, being neither complete nor current.

[6]   Grievances identical to these, asserting that PM-0286, even as revised, is not a complete or current statement of the duties and responsibilities of the PM-03 investigator/auditor position, were filed from various TSOs across the country, in all totaling approximately fifteen. Of these, four out of the Edmonton office were settled and withdrawn, the employer determining to staff the four positions grieved at the PM-04 level. In addition, the grievors, in concert with additional members of the bargaining unit from among the PM-03 investigator/auditor cohort - numbering in total approximately thirty-five - have filed individual classification grievances under the internal CCRA classification review process. In these, they are seeking relief similar to that agreed to between the parties in the Edmonton case: reclassification and staffing of their individual positions at the investigator/auditor PM-04 level. However, these classification grievances are being held in abeyance pending the outcome of the instant job description grievances.

[7]   All those working in the Investigations Division of the CCRA, whether in the PM or the AU classification are engaged in a common enterprise: the detection, investigation and prosecution of taxpayers suspected of criminal activity and related offences prohibited under taxation legislation. Specialized knowledge and training in accounting and auditing principles is required to combat tax evasion and related criminal activities effectively. This calls for a highly trained investigatory staff, and the depth and scope of professional knowledge, expertise and ability of those engaged in this task were readily apparent to me at the hearing. The complexity of files investigated varies, and with it the level of professional training, qualifications and expertise required to bring the investigation to a satisfactory conclusion - a process which typically takes anywhere from two to four years from beginning to end. The work descriptions of the investigator/auditor group at both the PM-03 and the PM-04 levels [PM-0286 and PM-0677] contain a common introductory portion under the heading Client Service Results, which encapsulates in general terms the work of the Investigation Division and the manner in which cases are assigned for investigation in the following terms:

CLIENT SERVICE RESULTS

Detection, investigation and prosecution of individuals and corporations suspected of having committed offences with respect to the Income Tax Act, Excise Tax Act and other legislation administered by the Agency; audits of individuals and corporations who are suspected of earning income from illegal activities; and assistance to other agencies and programs.

NOTE: Investigation cases are assigned based on a complexity rating system which evaluates the investigation's scope, the legal and evidentiary difficulties anticipated, the method of evasion, the forensic accounting/auditing challenges and degree of difficulty of tax issues expected to be encountered. The rating form T20CR lists numerical weight factors that are considered when determining case complexity for assignment purposes. The sum of the numerical factors recorded determines the grade and level to which the case will be assigned. The point distribution is as follows:

Points	Complexity Code	Grade and Level	Descriptor
0-29	10/11	PM-3/AU-1	Simple/Routine
30-42	20/22	PM-4/AU-2	Difficult
43-55	33	AU-3	Complex
56+	44	AU-4	Very complex requiring a team approach

When an investigator conducts an investigation as a member of a team, the case assigned may have higher complexity rating.

NOTE: As used herein, the "taxpayer", refers to registrant, applicant or licensee as applicable under the Statutes administered by the Agency.

(Exhibits 3B & 3C, p. 2)

[8]   Typically, cases which have been referred from the civil side Compliance to the criminal side Investigation Division are complexity rated during the initial preliminary stage of the investigation - the 60-day period following initial referral during which a decision is made as to whether or not a full scale criminal investigation is required. It is expected that once assigned for full scale investigation, the same individual, whether in the PM or the AU classification range, will see the file through to completion, including any legal proceedings and subsequent appeals which may be undertaken until finalization of the matter. However, the degree of complexity of any particular file may not be initially foreseen, in which case a complexity re-rating may be warranted, often at the request of the investigator to whom the file has been assigned. In these cases, it is not uncommon to maintain the original case assignment so as to ensure continuity in the investigation process - assuming, of course, that the individual investigator is competent to handle the higher complexity rated work. As one would expect, this is not unusual within the same classification group. For example, the grievor Currie has since September 2003 to the date of hearing been handling a case rated at the 20+ complexity code level, descriptor 'difficult', and as such is being remunerated at the PM-04 investigator/auditor pay rate. It is more unusual that a file originally complexity rated at the PM grade and level and subsequently re-rated upward to the AU grade and level (where more formal accounting qualifications are required), would remain assigned to an investigator in the PM group not possessing those formal qualifications. But this is not unheard of. Thus, in 1996, grievor Currie was assigned a case given an initial complexity rating at the PM-03 grade and level which, two years later, following repeated inquiries on his part, was re-rated to the AU-02 grade and level. In that case, the employer agreed to the payment of 2.5 years' wages in back pay at the AU-02 pay-rate and the continued payment of wages on that basis for the hours continued to be worked by Currie on the file, until the conclusion of legal proceedings arising out of it in 1998-99.

[9]   The case complexity rating system has been modified over time and, since March 2000, is found in the Tax Investigation Manual chapter 11 (19) (TIM, Exhibit 6B). The case complexity rating form T20 CR (Rev.00) is completed by the team leader in consultation with management. It comprises eight complexity categories (i) Degree of Knowledge, (ii) Offences (iii) Overt-Action, (iv) Forensic Examination of Evidence, (v) Method of Investigation (vi) Third Party Evidence, (vii) Judicial Procedures and (viii) Complicating Elements - for each of which a number of factors are identified to which points are given. The T20 CR form now in use (Exhibits 7A & 7B) has been recalibrated from those earlier in use (Exhibits 7C, 7D & 7E) prior to March 2000 under the then existing Tax Operations Manual case complexity factor rating system (TOM, Exhibit 6A), now superceded by that under TIM. The only significant difference in the complexity rating code as between the TOM and TIM complexity rating systems is the introduction into the latter of a complexity rating of 20 in the newly created PM-04 investigator/auditor classification. The complexity rating code for the PM-03 investigator/auditor as between the TOM and the TIM systems is maintained at 10. However, there has been a change in the descriptors used to characterize the complexity code ranges, the language of "simple/routine, difficult, complex and very complex" found in TOM (Exhibit 6A), giving rise to the language of "minimum, medium and extensive" or "low, medium and high" in TIM (Exhibit 6B).

[10]   The work descriptions developed for the investigator/auditor job title in the PM group are national and multi-position, PM-0286 for the PM-03 investigators and PM-0677 for the PM-04 investigators. Both are extensive: in the case of PM-0286, 11 pages in length, single-spaced; in the case of PM-0677, 12 pages in length single-spaced. They are of a common format and to a significant extent identical in content, listing first, Key Activities engaged in (2 pp.), followed by Substantiating Data as to the nature of those key activities. These come under the headings of Service Delivery (4 pp.), focusing on interaction with others, thinking challenges and physical demands; care and responsibility (3 pp.), Working Conditions (1 p) and Skill and Knowledge (3 pp.), including content of the work, Acts and Regulations considered, theories and principles, techniques and practices employed and communication skills required. As one would expect, there are differences in the precise language used and the methodology of the grievors was to highlight those language differences as between the two Work Descriptions, asserting that the language found in PM-0677 more accurately reflects their duties and responsibilities as investigator/auditor than that found in work description PM-0286. The grievors identified 18 such discrepancies, all of which were minor variations in wording (Exhibit 4).

[11]   Thus, under the heading Key Activities, PM-0677 speaks of "evaluating difficult referrals" "advising and assisting of team members and taxpayers and/or their representatives" whereas PM-0286 speaks only of "evaluating referrals" "advising and assisting taxpayers and/or their representatives". Under the heading Thinking Challenge, PM-0677 indicates that, "during the course of criminal investigation the investigator is likely to encounter a number of complicating factors ." and that investigators/auditors must formulate and modify their plans "with limited intervention, supervision and/or direct guidance"; whereas PM-0286 in the corresponding sections indicates that "the investigator may encounter one or more complicating factors" ".which can generally be predicted at an early stage in the investigation"; and the formulation and modification of plans "with some intervention and supervision and/or direct guidance". PM-0677 speaks of "some consultation with a team leader" in making the decision as to whether to refer a case to the Department of Justice for prosecution, whereas the corresponding passage in PM-0286 speaks of "close consultation" with the team leader. PM-0677 speaks of unforeseeable factors requiring adaptation during the course of an investigation and characterizes the complexity of these factors and the extent of modifications required as "of a medium level according to the Investigations Case Complexity Rating System", whereas PM-0286 speaks of such factors and modifications as "generally of a low level". Under the heading Care and Responsibility, PM-0677 indicates an investigator "is frequently in charge of search locations.", whereas PM-0286 indicates that the investigator "may be in charge of search locations." Under Skill and Knowledge, PM-0677 speaks of "the investigation and prosecution of difficult tax fraud cases.", whereas PM-0286 speaks of "routine fraud cases". PM-0677 speaks of "knowledge of complex tax planning methods" under Methods Techniques and Practices, whereas PM-0286 speaks of knowledge only of "tax planning methods".

[12]   Other differences highlighted by the grievors in their comparative analysis of the two work descriptions (Exhibit 4) are the several references in PM-0677 to the impact which cases with a higher complexity rating may have on the duties and responsibilities associated with the PM-04 investigator/auditor classification. The grievors identified, as well, three instances in which a job duty contained in PM-0677 has no direct correlative in PM-0286. These are:

Advising and assisting team members in negotiating proposed (re)assessments with taxpayers and their representatives where the issues are complicated, contentious and/or involve large amounts in adversial circumstances or where there are conflicting assessing policies between provincial and federal departments.

(Exhibit 3B, p. 3)

The effective presentation of investigative findings to Crown Counsel enhances the likelihood of a successful prosecution.

(Exhibit 3B, p. 5)

As a senior staff member, the investigator has greater flexibility and decision making specific to the conduct of an investigation and operates in an environment with less direct supervision as compared to junior staff members.

(Exhibit 3C, p. 7)

The grievors also submitted a list of suggested revisions to PM-0286 intended to enhance the scope of the auditing functions exercised by the investigator/auditor in the Criminal Investigation Division. These were drawn largely from work description PM-0486 applicable to the tax auditor PM-03 classification on the civil Compliance side of the CCRA group from which referrals are made to the criminal side for investigation.

Representations of the parties

The grievors

[13]   For the grievors, Mr. Done emphasized the mandatory language of article 56 and its requirement that employees be furnished with a complete and current statement of the duties and responsibilities of their position. The grievance then is solely as to the accuracy of the job description for the investigator/auditor PM-03 classification i.e. work description PM-0286. A work description must be accurate so as to enable the employer's classification branch to properly assign a point rating to it in the classification exercise. As pay rates are based on classification, and classification is based upon the duties and responsibilities of a position, it is of utmost importance that these be sufficiently described so as to allow a job to be properly classified. The bargaining agent acknowledges that, if successful in its grievance, it will seek to have the work description as amended by Board order, resubmitted to the classification branch for point rating with the objective of having it classified at the PM-04 level. The bargaining agent acknowledges that it is the sole right of the employer under section 7 of the PSSRA to organize the public service, establish and classify positions and assign duties and responsibilities to those positions. The collective agreement allows for the grievors to insist that those jobs and responsibilities be accurately stated in writing.

[14]   The employer chose to lead no evidence to counter that given by the grievors O'Neill and Currie as to the duties and responsibilities actually performed by each of them. They are often and on a regular basis called for them to handle files which are complexity rated at the PM-04 level or even higher. Reliance by the employer on acting pay in such situations, on a continuous basis, is inappropriate. Its purpose is to remunerate a lower-rated employee at a higher pay rate when replacing a higher-rated employee temporarily. But here the employer is requiring on an ongoing basis the performance of the same work by employees at the PM-03 level as it does for employees at the PM-04 level. In effect it has created a single level classification for the investigator/auditor group, all of whom are performing the duties and responsibilities found in the work description for the higher-rated position i.e. PM-0677. The evidence of the grievors measured against the work description for the PM-03 investigator/auditor position clearly establishes that it does not comprise a complete and current statement of their duties and responsibilities, as these include the full range of duties and responsibilities found in work description PS-0677 for the investigator/auditor PM-04 classification. The Board should issue an order directing the employer to amend work description PM-0286 as proposed by the grievors so that it will comprise a complete and current statement of the duties and responsibilities of the investigator/auditor PM-03 group.

The employer

[15]   For the employer, Mr. McGraw acknowledges that the Board has jurisdiction to determine whether or not in providing the grievors with work description PM-0286, the employer has complied with its obligation under article 56(1) of the collective agreement to provide them with a complete and accurate statement of their duties and responsibilities. Nevertheless, he cautions that, although in form a mere job description grievance, in substance this is a job classification grievance - the grievors seeking as their ultimate objective to be reclassified to the PM-04 classification level. Although the employer does not challenge the factual basis upon which the grievances are framed, and accepts the accuracy of the evidence of the grievors O'Neill and Currie as to the duties and responsibilities required of them in the performance of their jobs, it argues that work description PM-0286 is a complete and full statement of the duties and responsibilities required of the investigator/auditor PM-03 position. To the extent that the grievors may perform work of a higher-rated classification, they are entitled to acting pay under the provisions of the collective agreement for such time as they are engaged in work of the higher-rated position. There is no reason to revise the work description of the substantive position which they occupy at the PM-03 level solely on the basis that they sometimes perform work associated with the investigator/auditor PM-04 classification level.

[16]   The jurisprudence of the Board indicates that a work description must be read in its entirety and so long as it describes in sufficient terms the nature of the duties and responsibilities required of an individual, it complies with the obligation of the employer to provide to an employee upon request, a 'complete and current statement of the duties and responsibilities of [the] position'. A review of the testimony and the several exhibits filed by the grievors establishes that the employer has met its collective bargaining obligations under article 56(1) and the grievors have failed to establish that PM-0286 is not a complete and accurate statement of the duties and responsibilities of the investigator/auditor PM-03 position. In support counsel filed the decisions of the Board in Re Hughes supra, Re Jeremy supra and Re Fedun supra.

The Law stated

[17]   As already stated, these are job description grievances in which the grievors allege that the employer has failed to provide to them the complete and current statement of the duties and responsibilities of their position as investigator/auditor PM-03 upon request, as required by the provisions of article 56 of the Collective Agreement binding between them. The article reads as follows:

Statement of Duties

56.01 Upon written request, an employee shall be provided with a complete and current statement of the duties and responsibilities of his or her position, including the classification level and, where applicable, the point rating allotted by factor to his or her position, and an organization chart depicting the position's place in the organization.

(Exhibit 1)

These are not classification grievances which the Board is without jurisdiction to entertain in light of the exclusionary provisions of PSSRA s. 7. Yet, given the close interrelationship between job descriptions unilaterally developed by an employer under a job classification regime implemented at the workplace - the two are closely intertwined - arbitral jurisprudence developing out of job classification grievances has relevance to the resolution of a job description grievance of the nature here filed.

[18]   I reviewed the thrust of that jurisprudence in Arseneault and Lanteigne and the Queen in Right of New Brunswick (1980) 27 LAC (2d) 358, sitting as an adjudicator under the New Brunswick Public Service Labour Relations Act RSNB 1973 c. P-25, a statute modeled on the PSSRA. The parties there had agreed to the referral of classification grievances to the adjudication process under the PSLRA, notwithstanding the inclusion at s. 6 of the Act of provisions identical in terms found at PSSRA s. 7. There, I wrote at pp. 359-362:

. disputes as to classification are but one manifestation of the conflict inherent in the collective bargaining process between managerial rights and job security: See Re Windsor Public Utilities Com'n and Int'l Brotherhood of Electrical Workers, Local 911 (1974), 7 L.A.C. (2d) 380 (Adams). The dominant motif permeating the arbitral treatment of the issues of work assignment and job classification is that of management rights. A secondary motif is the negation of a property interest on the part of the employee in any discrete class of job functions. Simultaneously and contrapuntally stated in the jurisprudence are the fetters which express contract language or equitable principles place on the unlimited exercise of managerial rights. An oft-cited recapitulation of these interwoven strands is that of Professor Weiler found in Re U.S.W. and Algoma Steel Corp. (1968), 19 L.A.C. 236 at p. 239:

It is said that there is no implied obligation, inferred from the "climate of collective bargaining", to maintain, in whole or in part, the status quo as far as the assignment of work tasks is concerned. Management has the presumptive privilege of making changes in the organization of its work force, as long as it is exercised in good faith and for purposes of business efficiency, rather than the undermining of provisions of the agreement. No one has a proprietary interest in the specific set of job functions he is or has been performing. Yet these general statements must be qualified by looking at them in the context of the particular agreements and fact-situations in which they were made.

.

It is well recognized that the rationale of a wage schedule applied to a job-classification scheme is to ensure wage parity between workers performing the same work. The fact that a wage schedule and a job-classification structure are in existence does not freeze either the number of classifications which management may create nor the assignment of duties to each classification. Management has presumptive right to organize and reorganize the work place to ensure an enterprise responsive to the constantly changing exigencies of the business world. Arbitrators are reluctant to interfere in the exercise of such prerogative, assuming bona fides on the part of management. Needless to say management may not, by an alleged reorganization, undermine the rights conferred by a wage schedule and classification structure agreed to by the parties to a collective agreement: see Algoma Steel Corp., supra, and Re Windsor Public Utilities Com'n, supra. But an employee may often feel that he is performing work which properly falls in the scope of duties more properly assigned to a higher classification. If this were the case he is entitled to be paid at the rate appropriate for that classification. However the onus on the employee is substantial. It has been said that job classifications are not to be viewed as "completely self-enclosed, water right compartments": see Re U.S.W. and Dunham Bush (Canada) Ltd. (1969), 20 LAC 419 (Weiler). Nor are "walls" to be built around each classification which cannot be breached: see Re U.A.W., Local 1967, and Douglas Aircraft Co. of Canada Ltd. (1970), 22 LAC 269 (Brown) at p. 274. Notwithstanding the division of labour indicative of the modern enterprise, an overlap in functions performed by differently rated employees is inevitable. Thus, there is an onus on an employee seeking higher classification to establish that he was required to work outside of his classification and fully within the scope of that higher classification. In Re U.S.W., Local 2900, and John Inglis Co. Ltd. (1964), 15 LAC 126 (Macdonald) at p. 127, it was said:

Where an employee claims he is wrongly classified, the issue is to be determined by a comparison of the applicable job description, the job duties of the grievor and the job descriptions of other jobs in the bargaining unit. A grievor must not only establish that his ability and work are beyond his present job description but he must bring himself squarely within the description of the classification he seeks both as to ability and responsibility.

It may well be that work central to one classification is incidental to that of another. Thus a classification must be considered as a coherent whole. Part of it may not be carved out with the express purpose of thereby attaining a higher classification where in fact the lower classification is broad enough to comprehend the particular job: see Re Douglas Aircraft Co. of Canada Ltd. and U.A.W., Local 1967 (1973), 2 LAC (2d) 396 (Brown). Put another way, it has been said that:

". before an employee in a lower-rated of classification could be said to be doing the work of a higher-rated classification and should be paid at the higher rate of pay, he must be engaged in work that formed the central core of the higher-rated classification and not just an isolated, marginal, relatively insignificant duty".

Re U.A.W., Local 127 and Eaton Springs Canada Ltd. (1968), 19 LAC 329 (Hanrahan) [quoting from Union Carbide Nuclear Co. and United Mine Workers 31-3 ARB].

The existence of job descriptions agreed to between the parties to a collective agreement may make comparisons between job classifications easier, and it has been said that, other than providing an employee with a more effective opportunity to establish a change in job classification they serve no other purpose or function: see Re Windsor Public Utilities Com'n, supra. Clearly, in the absence of any agreed to job descriptions an employee has no proprietary rights in any particular job nor in any particular bundle of job duties: see Re Retail, Wholesale, Bakery & Confectionery Workers, Local 461, and Canada Bread Co. Ltd. (1965), 16 LAC 202 (Reville). Thus, job duties can be reassigned between classifications and indeed where distinct classifications are eliminated the job duties related to such classifications can be distributed over a number of surviving classifications: see Re Sudbury General Workers, Local 101, and Dominion Stores Ltd. (1963), 14 LAC 106 (Little); Re United Cement, Lime & Gypsum Workers, Local 364, and Consolidated Sand & Gravel Ltd. (1965), 16 LAC 174 (Hanrahan), and Re Windsor Public Utilities Com'n, supra.

.

Although the employer does make use of job descriptions which are formulated in its personnel policy division, such descriptions are not the subject of bargaining between the parties. It may well be that it would be advantageous to make job descriptions a subject of collective bargaining, and this is naturally a long-term objective of the Union. However, the fact that job content can never remain static, but rather must be constantly changing to meet the particular requirements precipitated by technological and other changes, means that the task of setting job descriptions is an ongoing one not amenable to being bargained definitively at any one point in time. Accordingly, it is equally natural for management to desire to retain a maximum degree of flexibility in the setting of such job descriptions as an integral aspect of its right to "manage and direct its operations". Needless to say, there must be a sufficient degree of continuity and uniformity in the formulation of job descriptions so as to permit the rational correlation of those duties to the classification and wage structure fashioned by the parties in bargaining. It is only by such rational correlation that the parties can ensure adequate remuneration to employees in the bargaining unit for work performed.

[19]   It is readily apparent that in a job description grievance such as those here before me, this jurisprudence is, with slight modification, fully applicable. However, rather than focus upon whether the grievor can be said to fall within the description of the higher-rated job classification sought, one focuses upon the job description of the classification in which the grievor works, to determine whether it is sufficiently capacious to encompass the particular duties and responsibilities which the grievor seeks to have there included. The jurisprudence of the Board earlier referred to in my Oral Ruling establishes clearly that the onus on a grievor to establish that he or she is required to perform duties and exercise responsibilities which fall outside the work description for the position to which the employee has been assigned is a heavy one. Job descriptions are to be read expansively, not narrowly, and so long as they enumerate the duties and responsibilities of the position in a manner which allows for a rational correlation between duties actually performed and responsibilities actually assumed on the one hand, and the duties and responsibilities so enumerated on the other, they will meet the "complete and current" standard required by Article 56 of the Collective Agreement.

The Law applied

[20]   Here, the grievors are faced with a dual challenge - one horizontal, the other vertical. The horizontal challenge is the more unusual one. In the ordinary classification grievance, the duties and responsibilities of a particular position are measured against a general standard, the object being to establish that the particular meets the requirements of the general. Relief is obtained by reclassifying the particular position from a lower- rated to a higher-rated classification corresponding with the latter's job description, i.e. the general standard. In a job description grievance, the opposite is sought. The job description - the general standard - is measured against the particular position to determine whether or not, as framed, it is capacious enough to encompass the duties and responsibilities actually exercised by the incumbent. If not, relief under Article 56 is by way of expanding the duties and responsibilities contained in the job description i.e. the general standard is amended to accord with the particular position as performed.

[21]   However, where, as here, multi-position generic job descriptions are in place applicable nationally across the employer's enterprise - approximately 90 positions in 34 TSOs - this becomes an almost insurmountable barrier. For the evidence heard here before me is referable solely to the particular positions occupied by the grievors; they can speak only of the duties and responsibilities they each perform. Without agreement on the part of the employer that their testimony is to be considered representative of each PM-03 investigator/auditor position across its entire enterprise, the effect of any relief granted could only be the development of a position-specific Work Description which comprises "a complete and current statement of the duties and responsibilities" of each individual grievor's position: in short, balkanization of the employer's generic work descriptions. Such would undermine the integrity of the employer's classification system and with it the stability of the collective bargaining relationship between the parties. It is not surprising then that the jurisprudence of the Board sets a high standard of proof where, as here, grievors assert that the employer's generic work descriptions do not comprise that "complete and current statement of the duties and responsibilities of [the] position" which must be submitted upon written request to any employee as stipulated at article 56 of the Collective Agreement. It is a standard which has not here been met, the grievors having failed to overcome this 'horizontal' barrier to their grievances.

[22]   The vertical challenge to these grievances is one more commonly found in the arbitral jurisprudence. Job functions in a modern enterprise tend to overlap, and this is particularly so with respect to related jobs within a single classification series. Problems arise where, as here, there are related jobs and associated job descriptions falling within a single classification series, for it is natural that there will be some degree of overlap in the duties and responsibilities assigned to the particular jobs within the series. The functional interrelationship arising between such job classifications and their corresponding job descriptions makes it inappropriate to view them as distinct and independent units, or as 'watertight' compartments. As already noted, the onus on the grievors to establish that the work description of the higher-rated classification more accurately comprehends the duties and responsibilities of their positions than does the work description of the lower-rated classification is a heavy one. It is simply not appropriate to that end to carve out of the higher-rated work description particular duties and responsibilities which arguably fall within the work description of the lower-rated job classification, when the latter is capacious enough to comprehend those duties and responsibilities. That is precisely what has occurred here.

[23]   I say this because, by focusing upon particular terminological usage in work description PM-0677 for the higher-rated PM-04 classification, the grievors fail to acknowledge that this usage is driven by the principal feature which distinguishes the two work descriptions and their correlative position classifications: the complexity rating of the files assigned to employees engaged as investigator/auditor. It is the complexity-rating scheme which drives the two work descriptions and is central to their understanding. It is critical to read them within the context of the opening two paragraphs of the Key Activities associated with each. PM-0286 reads as follows:

Investigating routine domestic and international tax fraud schemes, complexity 10, that require minimum or medium accounting knowledge, through the analysis and evaluation of information and allegations from numerous sources to ascertain whether available facts indicate fraud in order to ensure compliance with the Statutes administered by the Agency.

Planning and conducting routine investigations, including searches and seizures under the Income Tax Act, Excise Tax Act, Excise Act and/or the Criminal Code.

(Exhibit 3B, p. 2)

PM-0677 reads:

Investigating difficult domestic and international tax fraud schemes, complexity 20, that require minimum or medium accounting knowledge, through the analysis and evaluation of information and allegations from numerous sources to ascertain whether available facts indicate fraud in order to ensure compliance with the Statutes administered by the Agency.

Planning and conducting difficult investigations, including searches and seizures under the Income Tax Act, Excise Tax Act, Excise Act and/or the Criminal Code.

All else in the two job descriptions must be read within the context of those two paragraphs as these establish that it is the complexity rating code together with its associated descriptors which dictates the duties and responsibilities of the positions associated with each of the work descriptions.

[24]   The use of the descriptors associated with the different levels of the complexity code throughout the remainder of the two work descriptions is thus fully explainable. It draws the reader back to the initial complexity rating of the files which will be assigned to employees in one or the other of the two classification levels of the PM group holding the position of investigator/auditor as appropriate - either a PM-03 or PM-04. Throughout the two work descriptions, there is repeated reference in each to the fact that the work requires knowledge "congruent with the complexity level of the assigned cases". In this regard, it is apposite to contrast the introductory paragraph found under the heading "Thinking Challenge" in each of the work descriptions. That for PM-0286 reads:

All investigation cases involve some degree of complexity of many of the factors outlined below. Cases with the complexity rating of 10 contain less factors than do cases with a complexity rating of 20, and many of the factors which are present have a lesser degree of complexity. The thinking challenge is less difficult when there are fewer factors and when they have a lower degree of complexity.

(Exhibit 3B, p. 6).

The equivalent paragraph in PS-0677 reads:

All investigation cases involve some degree of complexity of many of the factors outlined below. Cases with the complexity rating of 20 contain more factors than do cases with a complexity rating of 10, and many of the factors which are present have a higher degree of complexity. The thinking challenge is more difficult when there are more factors and when they have a higher degree of complexity.

(Exhibit 3C, p. 6)

In a similar vein, under the heading "Skill and Knowledge", the two work descriptions can be conveniently contrasted. PM-0286 reads:

All investigation cases contain some degree of the elements of skill and knowledge as outlined below. Cases with a complexity rating of 10 likely require less skill and knowledge than do cases with a complexity rating of 20. The existence of fewer skill and knowledge factors produces a less complex environment. In total this environment could be classified as routine.

(Exhibit 3B, p. 9)

The corresponding provision in PM-0677 reads:

All investigation cases contain some degree of the elements of skill and knowledge as outlined below. Cases with a complexity rating of 20 likely require more skill and knowledge than do cases with a complexity rating of 10. The existence of more skill and knowledge factors, many of them having a higher degree of complexity produces a more complex environment. In total this environment could be classified as difficult.

(Exhibit 3C, p. 9)

Conclusion

[25]   In their testimony the grievors sought to import terminological usage found in PM-0677 into PM-0286. They approached that usage - words such as "routine", "difficult", "complex", in the colloquial sense and viewed from that perspective could indeed make an arguable case, for the nature of their investigative work is indeed difficult and complex, not routine as those terms are generally understood. But in the two work descriptions, this terminological usage is not colloquial; rather, terms of art are employed - the specific descriptors associated with the different levels of the complexity rating system. The work descriptions in their entirety must be read, in a sense, as commentary upon the initial case assignment to an investigator/auditor at level 03 or level 04 of the PM classification series as appropriate, as determined under the complexity rating system. In so reading them, I conclude on the basis of the evidence before me that work description PM-0286 comprises "a complete and current statement of the duties and responsibilities" of the grievors, each of whom is engaged in the position of investigator/auditor PM-03, and this within the meaning of the article 56 of the Collective Agreement.

[26]   For all of the foregoing reasons, these grievances are dismissed.

Thomas Kuttner, Q.C.
Part-time Member

Fredericton, New Brunswick, this 29^th day of June 2004.