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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-106

Name of organisation making submission: DR-106 The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied and Industrial Services Workers International

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

We would submit to you that there is only one public and that legislators have tasked the College to protect the public interest under subsection 10 of the Act. We would further submit to you that the public interest refers to members of the public without affiliation. It cannot be aligned with a specific segment of the population. There are competing interests with regard to professional regulation these competing interests in and of themselves do not represent the public interest. Please refer to complete submission under additional comments.


2. Who should the College serve? Who is “the public” in the public interest and what groups make up the public?

Please refer to complete submission under additional comments.


3. How should the College make decisions in the public interest where different segments of the public may have opposing interests?

We acknowledge that there are three definable sets of interests, consumer's interest for those acquiring services or products, professional interest for those practicing a trade and employer interests. If skills, standards and safety form the framework for protecting the public interest we cannot simply balance the interests of the three groups. We must place greater weight on the interest of consumers and professionals. It is clear that the College will only be able to do their work if they have the earned the trust of the public and professionals. Please refer to complete submission under additional comments


4. Is the College currently protecting the public interest?

In our view the College is not currently protecting the public interest because of the 156 prescribed trades only 22 are compulsory. We would submit that in order to fully protect the public interest all 156 trades should become compulsory. Please refer to complete submission under additional comments.


5. How should the College advance the public interest?

Please refer to complete submission under additional comments.





Section B - Issues Related to Scopes of Practice (SoPs)

6. What impact do SoPs in regulation have on your daily work activities or on the way you conduct business? What aspects of an SoP are important to the work of your trade? Please explain.

SoPs should have a major impact on the operation of the College, the daily work activities of trades people and the way in which an employer conducts their business. Unfortunately SoPs in their current format lack uniformity and a consistent level of detail that limit effective use by the College. Please refer to complete submission under additional comments.


7. Do you agree with the suggestion that trades may have core elements as well as peripheral elements?

We submit that SoPs should clearly define core elements of a particular trade as well as peripheral elements that may be performed by a particular trade. It would also be useful to define tasks that are not included in the trade such as we currently see under Section II , 24, 25, 29, 36 & 37 of Regulation 275/ II. Please refer to complete submission under additional comments


8. What should be the key elements of an SoP? In particular, should the SoP for a trade list all of the tasks, activities or functions in which an apprentice should be trained, only those that are unique to the trade, or only those that may pose a risk of harm to the public, tradespeople or other workers on the job? Please explain.

Please refer to complete submission under additional comments.


9. How should a review or change in SoP be carried out?

As highlighted in the consultation paper reviewing and amending existing SoPs will be a challenging endeavour. We would submit that it is an endeavour that needs to be undertaken. We would further submit that in order to conduct such a review the College would need to establish a standardized template for SoPs. The SoP should then be reviewed and amended by the Trade Board for each trade. Once completed they SoP would then be reviewed by the Divisional Board and when approved would become operational. Given the complex nature of the review process and changing technologies we believe it would be appropriate to review SoPs on a five year cycle going forward. Please refer to complete submission under additional comments.


10. Can or should the existing SoP provisions support the College’s diverse functions (e.g., apprenticeship training, enforcement, classification reviews)? Please explain.

In there current format SoPs cannot really support the College. However, clearly defined SoPs would assist greatly with apprenticeship training, assist the College in making determinations with regard to compliance and enforcement and be of greater assistance to review panels. Defining core elements of a trade will clearly demonstrate any overlap between trades. Defining peripheral elements of a trade would allow the College to set further parameters to eliminate "trade creep". For example, welding might be performed by an industrial mechanic millwright on a limited basis. The College could establish thresholds to assist in determining when such a task should be performed by a welder, keeping the public interest in mind. Please refer to complete submission under additional comments.


11. Should the entire SoP for a compulsory trade be enforceable or be subject to enforcement? Please explain.

Not just for Compulsory Trades. If all Trades were members of the OCOT then yes the entire SoP with Specific and Overlapping Responsibilities should be enforceable. However, the Overlapping Responsibilities will need detail and definition reflecting the logic and reason for the overlap especially for apprentice training and enforcement purposes. Please refer to complete submission under additional comments.


12. Could the College benefit from a distinct list of compulsory activities that may pose a risk of harm to the public, tradespeople or other workers on the job? Please explain.

Yes, but these activities should be identified in the SoP. There are some elements of risk in all authentic Trades activities. However, these elements of risk will vary from Trade to Trade. All Trades potentially pose a risk or harm to the Public or other workers regardless of todays Compulsory or Voluntary status. Please refer to complete submission under additional comments.


13. What is your understanding of what an overlap between SoPs is?

An Overlapping Responsibility outlines activities performed by one authentic Trade that maybe Specific to another authentic Trade regardless of todays Com pulsory or Voluntary status. However there has to be enough details contained in the text of the Overlapping Responsibility such as the logic for and reason why to allow for proper apprentice training, safety & health and enforcement. Please refer to complete submission under additional comments.


14. Do overlaps between SoPs in regulation have an impact on your daily work or on the way you conduct business? Please explain.

Please refer to complete submission under additional comments.


15. Does the application of the third legal interpretation principle on overlapping SoPs pose a risk of harm to the public, tradespeople, or other workers on the job? Please explain. If so, what can and should be done about it?

Clearly defining core and peripheral elements of a trade would assist the College when applying the three principles in determining overlap between SoPs. However, we believe the third principle does pose a risk of harm to the public. The issue is not the overlap of SoPs, it is compulsory versus voluntary trades. As indicated earlier we believe that all trades should be compulsory. Please refer to complete submission under additional comments.





Section C - Classification or Reclassification of Trades as Compulsory or Voluntary

16. What makes a compulsory trade compulsory and what makes a voluntary trade voluntary?

Historically compulsory trades were designated as such because of the danger working in the trade posed for workers and those trades which could pose a danger to the public if work is not adequately performed. Automotive repair was first made comp ulsory in 1944 and certain construction trades were deemed compulsory in between 1964-1965. In 1965 there were 20 compulsory trades and today fifty years later there are only 22. Much has changed in the last fifty years with regard to technology and public safety. Please refer to complete submission under additional comments.


17. Is the current classification of trades as either compulsory or voluntary aligned with the College’s duty to serve and protect the public interest?

No, it is our view that mantaining a voluntary classification for some trades does not protect the public interest. Voluntary trades allow individuals to work in these trades without certification or apprenticeship training. This lack of training is the core issue with regard to protecting the public interest. A typical apprenticeship takes four years to complete with a portion taught in the classroom. Certification is time based to ensure there is enough time to turn basic skill proficiency into expertise. It is the time spent learning and the acquired expertise that is recognized through the certification process. It is the level of expertise that consumers and employers presume exist when they hire a licensed professional. Consumers and employers have no guarantees in a voluntary system. Please refer to complete submission under additonal comments.


18. Is it reasonable to assume that there may be elements in the SoP for a trade that are inherently hazardous or that may pose a risk of harm to the public, tradespeople, or other workers on the job?

Please refer to complete submission under additional comments.


19. Could compulsory certification be limited to either the core elements of a trade or those tasks, activities, or functions that may pose a risk of harm to the public, tradespeople or other workers on the job? What kind of impact would these approaches have on your daily work or on the way you conduct business?

Please refer to complete submission under additional comments.


20. Should the College continue to rely on an adjudicative review panel approach (i.e., the Ontario Labour Relations Board model) or should a different model be considered? Please explain.

We believe that the composition of the review panel under subsection 21(4) is appropriate and should not be changed. However, we do have some concerns with the current regulation. First, the current SoPs are to be used when determining whether a trade should be reclassified or if there is to be a change in ratio's. As we submitted earlier we believe the current SoPs do not provide the appropriate level of detail with regard to the core and peripheral elements of each trade. Therefore in our view it would be best to complete reclassifications in conjunction with the SoP review process. Second, the Regulation entertains the possibility of reclassifying mandatory trades to voluntary trades. We believe that such moves would not be in the public interest.


21. How should expert opinion be obtained?

The Trades t hemselves are the experts, most if not all information can be found there. With disputes, most if not all disputes will get resolved, however, if there is a dispute that does not get resolved the Trades involved should go before an OCOT Jurisdictional Review Panel, state their case based on their SoP, case law and Trade history. The OCOT Review Panel makes their final and binding decision and informs all the stakeholders.


22. Are the current criteria for trade classification reviews set out in O. Reg. 458/11 consistent with the public interest? Please explain.

No. Based on my answers to previous questions, the Public Interest or Consumer Protection will never be accomplished with the present structure of Compulsory versus Voluntary Trades and the gap in membership. The system is backwards, if we had authentic Trades that were Compulsory by default we would not have this issue to deal with. All Trades would then be members of the OCOT and fall under their jurisdiction.


23. Are the criteria specific, clear and measurable enough to inform you of what data and evidence are needed to meet those criteria?

No.


24. Are the existing criteria the right criteria?

No.





Section D - Decisions of the Ontario Labour Relations Board (OLRB)

25. Do the scopes of practice (SoPs) in regulation reflect the way in which work is actually assigned in your trade or sector?

We do not believe that SoPs in there current format their current format are that useful. If they are used they will probably cause more harm than good, thus the need to go before the OLRB.


26. Do you agree with the notion that most jurisdictional disputes arise from peripheral elements of the trades? Please explain.

We also believe that it is likely that most jurisdictional disputes arise from work performed in the peripheral elements of a trade. Clearly the current SoPs do not adequately address this issue making any dispute resolution process difficult at the present time. Therefore, the current OLRB system in the construction sector is the best solution at this time for the construction trades.


27. What consideration should the College give, if any, to the decisions made by the OLRB in jurisdictional or work assignment disputes under the Labour Relations Act? If the College were to adopt the OLRB's decisions, what impact would that have on your trade and the way you conduct business? Please explain.

We believe the College should be responsible for resolving jurisdictional or work assignments disputes. Such disputes could be handled through the establishment of a Dispute Review Panel. In our view the ORLB decisions regarding jurisdictional disputes would be useful material for a Dispute Review Panel in making decisions. However, these decisions are mostly related to work in the construction trades and would be of little use to resolve issues relating to other sectors.





Section E - General Response and Comments

28. Please provide additional comments below, if any.

Introduction The United Steel workers represent over 70,000 workers across Ontario in virtually every industrial sector. Our membership includes not only steelworkers, mine and smelter workers but also workers in universities, light manufacturing, retail, banking, health care and private security industries. The majority of the skilled trades we represent are employed in the industrial sector in both compulsory and voluntary trades. This Review must be seen as part of a broader strategy to improve the operation and function of the Ontario College of Trades. The College is an important body that allows for the self-regulation of skilled trades in Ontario. Part of a broader strategy ensuring the future success of the College must include increasing the number of compulsory trades governed by the College. The Consultation Review Guide sought answers to twenty-seven questions on a wide range of issues broken down into four different areas. We have attempted to answer the vast majority of questions asked in our response. On behalf of our members, the USW is pleased to be providing this response to the Dean Review Consultation. The Public Interest Attempting to clearly define the public interest has eluded politicians and academics for centuries. It would therefore be an unrealistic goal for this review to attempt to define the public interest. It is even more problematic to suggest in your consultation guide there "are many publics". We would submit to you that there is only one public and that legislators have tasked the College to protect the public interest under subsection 10 of the Act. We would further submit to you that the public interest refers to members of the public without affiliation. It cannot be aligned with a specific segment of the population. There are competing interests with regard to professional regulation these competing interests in and of themselves do not represent the public interest. It is our view that legislators created the College in order to establish higher standards of competence, skill and safety thereby assisting consumers or corporations who may not otherwise be able to accurately assess the competency of an individual working in a skilled trade. It should also be noted that the College already incorporates public interest measures in its daily operation through the Colleges Code of Ethics, maintaining a public registry, responding to concerns and incidents reported by the public, investigation of complaints made against College members and its enforcement actions. The college states in their brochure "For businesses and consumers, the Ontario College of Trades work is about ensuring skills, standards and safety". We believe these are the principles on which the college should base any decisions regarding the public interest. We acknowledge that there are three definable sets of interests, consumer's interest for those acquiring services or products, professional interest for those practicing a trade and employer interests. If skills, standards and safety form the framework for protecting the public interest we cannot simply balance the interests of the three groups. We must place greater weight on the interest of consumers and professionals. It is clear that the College will only be able to do their work if they have the earned the trust of the public and professionals. Perhaps the more appropriate question would be. Does regulating skilled trades serve the public interest? We believe the answer is yes. Regulating skilled trades provides for increased consumer protection in the market place and also provides increased health and safety in the workplace. Many tasks performed by skilled trades can have catastrophic results putting both consumers and workers at risk if they are not properly performed. However, in our view the College is not currently protecting the public interest because of the 156 prescribed trades only 22 are compulsory. We would submit that in order to fully protect the public interest all 156 trades should become compulsory. Issues Related to Scopes of Practice Scopes of Practice (SoPs) are established through Regulation. As with most regulation they provide substantive direction to the College, trades people and employers. As acknowledged in your consultation paper they are currently used as the basis for training, compliance and enforcement and considered by review panels. Therefore SoPs should have a major impact on the operation of the College, the daily work activities of tradespeople and the way in which an employer conducts their business. Unfortunately SoPs in their current format lack uniformity and a consistent level of detail that limit effective use by the College. We submit that SoPs should clearly define core elements of a particular trade as well as peripheral elements that may be performed by a particular trade. It would also be useful to define tasks that are not included in the trade such as we currently see under Section 11, 24, 25, 29, 36 & 37 of Regulation 275111. Clearly defined SoPs would assist greatly with apprenticeship training, assist the College in making determinations with regard to compliance and enforcement and be of greater assistance to review panels. Defining core elements of a trade will clearly demonstrate any overlap between trades. Defining peripheral elements of a trade would allow the College to set further parameters to eliminate "trade creep". For example, welding might be performed by an industrial mechanic millwright on a limited basis. The College could establish thresholds to assist in determining when such a task should be performed by a welder, keeping the public interest in mind. Clearly defining core and peripheral elements of a trade would assist the College when applying the three principles in determining overlap between SoPs. However, we believe the third principle does pose a risk of harm to the public. The issue is not the overlap of SoPs, it is compulsory versus voluntary trades. As indicated earlier we believe that all trades should be compulsory. As highlighted in the consultation paper reviewing and amending existing SoPs will be a challenging endeavour. We would submit that it is an endeavour that needs to be undertaken. We would further submit that in order to conduct such a review the College would need to establish a standardized template for SoPs. The SoP should then be reviewed and amended by the Trade Board for each trade. Once completed they SoP would then be reviewed by the Divisional Board and when approved would become operational. Given the complex nature of the review process and changing technologies we believe it would be appropriate to review SoPs on a five year cycle going forward. Classification or Reclassification of Trades as Compulsory or Voluntary Historically compulsory trades were designated as such because of the danger working in the trade posed for workers and those trades which could pose a danger to the public if work is not adequately performed. Automotive repair was first made compulsory in 1944 and certain construction trades were deemed compulsory in between 1964-1965. In 1965 there were 20 compulsory trades and today fifty years later there are only 22. Much has changed in the last fifty years with regard to technology and public safety. We strongly believe that increasing the number of compulsory trades will increase the completion rates of apprenticeship programs. If certification is mandatory to work in the industry then both workers and employers will value certification. The end result will be increased levels of competency and improved safety. If certification is voluntary there is little incentive for apprentices to complete their training and no incentive for an employer to assure that it is. This is also the finding of the Compulsory Certification Project. Mr. Armstrong states at paragraph 208 of the report that "the probability is that both registration and completion rates tend to be higher with compulsory trades". Mr. Armstrong goes on to conclude "because of the probability of increased registration and higher completion rates, the resulting overall increase in health and safety training should increase health and safety performance in the trade sector involved". It is our view that maintaining a voluntary classification for some trades does not protect the public interest. Voluntary trades allow individuals to work in these trades without certification or apprenticeship training. This lack of training is the core issue with regard to protecting the public interest. A typical apprenticeship takes four years to complete with a portion taught in the classroom. Certification is time based to ensure there is enough time to turn basic skill proficiency into expertise. It is the time spent learning and the acquired expertise that is recognized through the certification process. It is the level of expertise that consumers and employers presume exist when they hire a licensed professional. Consumers and employers have no guarantees in a voluntary system. We believe that making trades compulsory protect the public interest on three levels. First, as noted earlier increasing the number of compulsory trades will increase health and safety in the workplace. Second, the quality of work performed will increase as only a fully qualified individual will be performing the work. Third, increasing the number of compulsory trades will increase the monitoring and enforcement provisions of the College thereby increasing consumer protection. Regulation 458/ II sets out the rules with regard reviews of classifications and ratio's through Review Panels as defined under subsection 21( I ) of the Act. We believe that the composition of the review panel under subsection 21 (4) is appropriate and should not be changed. However, we do have some concerns with the current regulation. First, the current SoPs are to be used when determining whether a trade should be reclassified or if there is to be a change in ratio's. As we submitted earlier we believe the current SoPs do not provide the appropriate level of detail with regard to the core and peripheral elements of each trade. Therefore in our view it would be best to complete reclassifications in conjunction with the SoP review process. Second, the Regulation entertains the possibility of reclassifying mandatory trades to voluntary trades. We believe that such moves would not be in the public interest. As we have indicated previously we believe all trades should be mandatory. However, we also recognize that such action would have to be directed by legislators and that failing such intervention the review process contained in Regulation 458/1 1 will need to be followed. Decisions of the Ontario Labour Relations Board (OLRB) We believe the College should be responsible for resolving jurisdictional or work assignment disputes. Such disputes could be handled through the establishment of a Dispute Review Panel. In our view the OLRB decisions regarding jurisdictional disputes would be useful material for a Dispute Review Panel in making decisions. However, these decisions are mostly related to work in the construction trades and would be of little use to resolve issues relating to other sectors. As we have indicated previously we believe a review of SoPs needs to be done. Given the lack of uniformity and the lack of detailed information regarding core and peripheral elements of each trade we do not believe that the current SoPs accurately assigns which work is done in a trade in many cases. We also believe that it is likely that most jurisdictional disputes arise from work performed in the peripheral elements of a trade. Clearly the current SoPs do not adequately address this issue making any dispute resolution process difficult at the present time. Therefore, the current OLRB system in the construction sector is the best solution at this time for the construction trades. We believe a contributing factor in the future regarding jurisdictional or work assignments will be the number on trades currently listed in Ontario. Of the 1 55 trades currently listed 95 only exist in Ontario, most have no certificate of qualification or red seal designation. The lack of qualifications severely limit mobility for workers in these trades. We would also submit that the limited mobility curtails members from practicing these trades. At some point the College should consider harmonization and move to a list of core compulsory trades that will provide workers with a certificate of apprenticeship, certificate of qualification and a red seal designation. Clearly such harmonization would have to transition over time with options available to those worker affected . As an example some options could be: I . Be assessed by the College and provided training opportunities to achieve full competency in the trade. 2. They could choose challenge the respective trade test. Or 3. They stay where they are with designation they currently have. However any new apprentice would be licensed under the harmonized trade. Clearly not all trades can be harmonized. In some instances it may be necessary to classify some trades currently listed as "Certified Occupations". If the College could establish through harmonization core compulsory trades it would significantly improve the operation of the college by streamlining educational and licensing requirements. Conclusion The Compulsory Certification Project first recommended was that the College of Trades be "established to consider applications for compulsory certification and to provide advice the Minister; to engage in certification enforcement; to raise the profile and status of trades; and provide for periodic review(s) of ratio provisions." Clearly one of the primary objective of the College is to consider compulsory certification. We do not believe this objective should be lost in this review. As we have stated earlier we believe that all trades should be compulsory. Furthermore, in an effort to improve the operation of the College we believe it would be advisable to harmonize a large number of trades as previously noted. Compulsory certification will require all trades and apprentices to become members of the College and fall under the provisions of the Act. Currently voluntary trades can opt not to take their certificate of qualification and not join the College. The option of voluntary participation in the College undermines the operation of the College and potentially places the public at risk. Clearly this cannot be the Colleges long term objective. We would submit that the College should develop comprehensive SoPs for each trade outlining the core and peripheral elements of each trade. Developing these SoPs would greatly assist the College in developing training and enforcement. As noted earlier we believe improved training through compulsory participation will improve health and safety in the workplace and provide greater consumer protection by ensuring that any work done is performed by a licensed skilled trade. The Steelworkers are thankful to participate in this open call for consultation. Expanding skilled trade participation through increased apprenticeship opportunities and enrolment in the College is a priority for our union. The positions outlined in this submission are in keeping with those goals.