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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-33B

Name of organisation making submission: DR-33B International Union of Painters and Allied Trades, District Council 46

Section A - The Public Interest in this Review

  1. What do you understand by public interest?
  2. The public interest in the context of the Ontario College of Trades (OCOT) must be defined as a protection of the shared common values and beliefs of a majority of the people of Ontario, alternately considered to be the common good, over the selfish promotion of the interests of smaller groups of individuals or organizations. Stated another way, the public interest should represent the greatest possible good for the greatest possible number of individuals to the exclusion of special interest groups.

    Central to this is the assertion that public health and safety take priority, followed by protection of property or protection against economic or financial loss.

  3. Who should the College serve? Who is “the public” in the public interest and what groups make up the public?
  4. The most important “public” should be the consumer. As an example, someone buying a home should be able to do so with a reasonable expectation that it is constructed professionally and capably by qualified individuals, using specified materials, and without fear that it will collapse around them or be subject to deficiencies in workmanship. This would satisfy two of the criteria mentioned previously, preservation of health and safety and prevention of economic or financial loss. The same principles apply to other consumer purchases or spending, such as for motor vehicle repairs.

    This right would supersede any rights of skilled tradespersons to earn their living at the expense of unknowing consumers. Some might argue that market forces tend to balance out both considerations, a “caveat emptor” or “buyer beware” philosophy. But this is not as simple as selecting between two consumer items of equal value but differing price. Specialized knowledge is required to make an informed decision respecting many skilled trades, of which the majority of the public cannot be expected to have. The “public” has a right to expect protection against fraudulent behavior or misrepresentation when purchasing services provided by skilled tradespersons.   

    Other secondary “publics” could be considered to be skilled tradespersons who have invested their time and money in learning their trade, or employers who have invested in cultivating new apprentices to meet their future labour needs. Individuals who have completed lengthy apprenticeships, even in voluntary trades, have a right to expect that the integrity of their trade will be protected against those who have not made a similar investment.

    There are many who operate in the underground economy in the skilled trades. The construction and automotive sectors by themselves account for a majority of a more than $40 billion underground economy. The public interest in this case would include consumers and legitimate skilled tradespersons who conduct commerce and compete fairly according to a level playing field. 

  5. How should the College make decisions in the public interest where different segments of the public may have opposing interests?
  6. Protection of the “common good” or rights of consumers should always be ranked first in priority, followed by legitimate skilled tradespeople and employers who conduct their business and compete fairly according to a level playing field.

    Those who argue against enforcement or regulatory oversight of the skilled trades are advocating, either by design or inadvertently, for an environment that would allow individuals to participate in the underground economy.

  7. Is the College currently protecting the public interest?
  8. The College is protecting the public interest when it comes to compulsory trades, but is not as effective for voluntary trades. OCOT’s team of enforcement officers are responsible for ensuring that compulsory tradespeople have the necessary credentials and qualifications to be able to perform the work that they claim to be able to. If an unlicensed electrician is wiring a house or an unlicensed automotive technician is repairing a car’s brakes, the College is protecting the public interest either by preventing the offender from continuing to provide that service to an unsuspecting consumer, or by working with the tradesperson to gain the credentials that he or she is lacking. In some cases, the unlicensed tradesperson might have completed most of the required apprenticeship training but neglected to finish or write the exam. This could be considered a case where multiple benefits may be derived from protecting the public interest.

    The Ontario College of Trades and Apprenticeship Act (OCTAA) prohibits someone from misrepresenting themselves as either a licensed journeyperson in a compulsory trade or a member of the College in good standing. Someone fraudulently misrepresenting themselves would be prevented, if caught through enforcement efforts, from taking further advantage of an unsuspecting consumer.

    For voluntary trades, however, journeypersons are not required to have a valid Certificate of Qualification (CofQ) in order to work and earn a living. If someone wishes to represent themselves as having a valid CofQ for a voluntary trade, then they must be a member of the College in good standing as the College is the issuer of the CofQ.       

  9. How should the College advance the public interest?
  10. The College should continue to enforce the requirements for the compulsory trades, should continue to maintain a public registry of members in good standing, and should continue to investigate complaints of professional misconduct, incompetence, or incapacity against its members. But the College also needs to be able to prosecute violations of the Ontario College of Trades and Apprenticeship Act, 2009 (OCTAA) by individuals or organizations who are not members of the College. As an example, the electrical trades, construction and maintenance and domestic and rural, are compulsory trades requiring Certificates of Qualification (CofQ) to practice. Because they are compulsory, membership in the College is mandatory. Yet, someone purporting to be an electrician without a valid CofQ would also not be a member of the College, yet they would still be violating the Act and must be held accountable.

    The College should also continue to promote professional conduct among its members, advocate for the skilled trades as a viable career option for young people, and establish and regulate the training standards and curriculum.

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

  1. 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.
  2. A scope of practice generally describes the procedures, actions and processes that an individual is permitted to perform in an occupation within the parameters of what their training, education, and experience allows. In the case of skilled trades, there is a division between trades deemed as compulsory, for which a valid CofQ is required to work and earn a living in that trade, and voluntary trades where a CofQ is available to journeypersons who have completed their apprenticeships and passed examinations, but not a mandatory prerequisite to working and earning a living in a chosen trade. 

    For the purposes of this question, and as an example, the duties of a Drywall Finisher and Plasterer are segregated from the work done by a Drywall, Acoustic and Lathing Applicator according to the SoP, and further defined by the and Apprenticeship Training and Curriculum Standards.

    Similarly, The SoPs for Hazardous Materials Workers and Exterior Insulated System Finish Mechanic are clearly defined. None of the trades overlap.

    To address the second part of the question, all aspects of an SoP are important to the work of each of the trades we represent. Each of the trades have rigorous apprenticeship training programs and each represents the basis for developing the training curriculum and each represents a unique skill set that is not transferrable to any of the other trades.

  3. Do you agree with the suggestion that trades may have core elements as well as peripheral elements?
  4. No. All elements of each trade are defined by that trade’s scope of practice and further refined by the apprenticeship training and curriculum standards.

    Tim Armstrong, author of the Report on Compulsory Certification Project which laid the cornerstone for the creation of the College, Joseph Liberman of Mathews, Dinsdale & Clark, LLP, and Alan Minsky of Koskie Minsky, LLP are widely regarded as three of the pre-eminent legal minds when it comes to labour law. In a meeting with the Appointments Council for the College, they expressed the unanimous opinion that a scope of practice will not alter jurisdiction for any trades. The only entity that may change jurisdiction is the Ontario Labour Relations Board (OLRB).

    To illustrate, a recent example of a jurisdictional dispute occurred in Windsor where members of the Labourers International Union of North America (LiUNA) claimed they were unjustly charged by College of Trades enforcement officers for doing something that historic precedent had allowed them to do for decades – laying electrical conduit. The enforcement officers correctly charged them for making electrical connections – not pulling wires through conduit – which is something that clearly belongs in the scope of practice of electricians. Yet LiUNA saw the political opportunity to criticize the College and possibly make jurisdictional gains that would ultimately benefit its broader membership going forward.

  5. 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, tradespeopleor other workers on the job? Please explain.
  6. The scope of practice should be a broad outline or umbrella statement of duties associated with a specific trade. The more intricate details of what’s involved in performing specific tasks are fleshed out in Apprenticeship Training and Curriculum Standards. And finally, the OLRB has been ruling and establishing precedent for more than 70 years where jurisdictional issues or perceived overlap in SoPs have occurred.

    For example, the scope of practice for the trade of Architectural Glass and Metal Technician (424A) includes the following:

    1. Laying out, fabricating, assembling and installing door and window frames, store fronts, wall facings, curtain wall, partitions, architectural glass fronts, auto glass and specialty glass, plastic and related products.
    2. Cutting, fitting and installing glass in frames by means of seals, sealants and fasteners.
    3. Installing window and door operators and related hardware.
    4. Reading and interpreting designs, drawings, diagrams, specifications and manufacturers’ literature relating to work described in paragraphs 1, 2 and 3. O. Reg. 275/11, s. 1.

    The scope of practice for the trade of Drywall Finisher and Plasterer (453A) should include the following:

    1. Surfacing, taping and finishing wallboard.
    2. Applying special coatings.
    3. Carrying out interior base and finish plastering.
    4. Fabricating cast cornices and mouldings.
    5. Installing cornice and ornamental plaster moulding, including prefabricated cornice and ornamental plaster moulding.
    6. Applying exterior cement plaster or aggregate.
    7. Repairing drywall taping and plaster.
    8. Installing exterior insulated finishing systems. O. Reg. 275/11, s. 10.

    The scope of practice for the trade of Exterior Insulated Finish Systems Mechanic (455A) should include installing building systems that integrate a resinous exterior cladding with a continuous layer of insulation on the exterior of a building or structure by doing the following:

    1. Preparing substrates.
    2. Selecting and applying barriers.
    3. Selecting and applying adhesive applications and mechanical attachments.
    4. Installing rigid insulation board.
    5. Preparing rigid insulation board for base coat application.
    6. Applying reinforcing mesh and base coat.
    7. Applying textured finish coat. O. Reg. 275/11, s. 13.

    The scope of practice for the trade of Hazardous Material Worker (253H) should include the following:

    1. Setting up and tearing down enclosures and decontamination chambers.
    2. Removing asbestos, lead, mould and other hazardous materials. O. Reg. 275/11, s. 16.

    The scope of practice for Painter and Decorator – Commercial and Residential (404C) includes the following:

    1. Preparing substrates.
    2. Applying coating to substrates.
    3. Applying wall covering to substrates. O. Reg. 275/11, s. 27.

    The scope of practice for Painter and Decorator – Industrial (404 D) includes the following:

    1. Preparing substrates.
    2. Applying coating to substrates.
    3. Preparing and performing work on substrates by mechanical and chemical processes. O. Reg275/11, s. 28.

    Health and safety protection should always be one of the foremost considerations, both for those doing the work, and for the public who may be impacted by the work, but these details more correctly belong in the NOA and apprenticeship training and curriculum standards. Using the Hazardous Material Worker trade as an example, the NOA and training standards would cover aspects such as:

    • apply safe working practices and procedures;
    • mobilize site enclosures;
    • pre-clean work areas;
    • build work area enclosures;
    • protect sensitive equipment;
    • set up decontamination chambers and waste chutes;
    • remove and clean hazardous material;
    • perform final clean;
    • dismantle work area enclosures and decontamination chambers;
    • perform post tear-down clean;
    • de-mobilize site enclosures;
    • protect the environment;
    • perform routine inspections.
  7. How should a review or change in SoP be carried out?
  8. A review or change in a scope of practice should involve broad stakeholder consultation taking into consideration how any change will impact the health and safety of the public, health and safety of apprentices and journeypersons working in the trade, the economic impact both on the trade and the public, the supply and demand of journeypersons in the trade and in the labour market generally, and the attraction, retention, and completion rates of apprentices and journeypersons in the trade.

    It should be a process driven by the respective trade boards as they are uniquely positioned within the industry to be far more responsive to the rapidly changing needs of the industry, as opposed to the often lethargic experiences of the past when the decision-making process has been left to successive governments. 

    Research into and deference should be accorded to past OLRB decisions that would impact the SoP being reviewed.

  9. Can or should the existing SoP provisions support the College’s diverse functions (e.g., apprenticeship training, enforcement, classification reviews)? Please explain.
  10. The scope of practice is the basis for apprenticeship training. As suggested in the Review Consultation Guide and the answer above to question 8, the curriculum and training standards should flow from the SoP. By its very nature, it outlines what a journeyperson in a particular trade may or may not do in performing the functions of that trade. It therefore follows that it must form the basis of enforcement so that enforcement officers may determine, within the context of historic precedent as determined by the OLRB, when to prosecute individuals who are violating the Ontario College of Trades and Apprenticeship Act (OCTAA) primarily by performing work that they are not licensed to do, which by definition would be outside their scope of practice.

    As a basis for a classification review, the SoP represents the only clear cut description of the work duties or criteria of a trade, which may then be evaluated for health and safety considerations to both the public and individuals working in the trade.

    So yes, the existing SoP provisions do and should support the College’s various diverse functions.

  11. Should the entire SoP for a compulsory trade be enforceable or be subject to enforcement? Please explain.
  12. The entire scope of practice for every compulsory trade should be enforced. To allow grey areas or overlap between trades will invite jurisdictional challenges particularly in the organized sector. The legislation defined by OCTAA, while considering the historic decisions made by the OLRB, should form the basis of enforcement.

  13. 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.
  14. The College of Nurses of Ontario spells out 13 activities under the Regulated Health Professions Act, 1991 (RHPA) that are considered to be potentially harmful if performed by unqualified persons and calls these Controlled Acts. There are several skilled trades that involve a risk of danger to the public and to workers if work within those trades is carried out improperly and by unqualified persons. Some obvious examples include Hazardous Materials Worker, electrical and automotive trades.

    So it is not without merit to suggest that the skilled trades could benefit from a similar distinct list of activities that must by law be carried out by someone in a compulsory trade with a valid CofQ. But central to this is the premise that trades which pose an inherent risk of harm to the public should be deemed compulsory, and currently not all of them are.

  15. What is your understanding of what an overlap between SoPs is?
  16. Overlap between SoPs is where boundaries are blurred between trades – where two different trades claim the same work to be within their respective scopes of practice.

  17. Do overlaps between SoPs in regulation have an impact on your daily work or on the way you conduct business? Please explain.
  18. The scopes of practice for the six voluntary trades that we represent are clearly defined without overlap according to the respective SoPs. The Apprenticeship Training and Curriculum Standards further define and refine what work is permitted in each trade.

  19. 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?
  20. The scope of practice in any given trade should be a broad overview of the trade, absent the more clearly defined Apprenticeship Training and Curriculum Standards. Therefore the differences between trades should be sufficient enough to prevent the need for overlapping duties as set out in the SoP. There may be overlap in the training standards, such as the criteria of working safely and keeping a clean work environment, but each trade should be distinct enough to warrant different SoPs.

    In the event of jurisdictional disputes, the OLRB should be relied upon for fair and impartial adjudication to resolve the dispute.

    Of the six voluntary trades that we represent, they all have their own unique hazards to public safety. But the three most likely to pose an obvious risk of harm to the public or to individual workers would be those of the Hazardous Materials Worker, Architectural Glass and Metal Technician and Painter and Decorator – Industrial. Precautions must be taken by workers to protect themselves from contact with or ingestion of materials such as asbestos or mould. If hazardous materials are not removed and properly disposed of by someone with adequate training and experience, there may be a significant risk of harm, or more correctly, long-term illness to those coming in contact with these materials. This is similar for the work of Painter and Decorator – Industrial as they must properly handle and dispose of hazardous materials such as solvents, chemicals, and Industrial grade coatings. Architectural Glass and Metal Technicians also handle, install and must remove large pieces of glass and cut glass and metal which can be hazardous to the public. Indeed, we saw a situation last year where large pieces of glass which were improperly installed in a downtown Toronto office tower came crashing down on the sidewalk below. Fortunately, no one was below on the sidewalk at the time. The dilemma is that, as a voluntary trade, there is no legal restriction, aside from environmental laws governing disposal, preventing someone from representing themselves as Hazardous Materials Workers, Industrial Painters and Architectural Glass and Metal Technicians and posing a risk of harm to themselves and to the public.

    Another example that comes to mind is work on the subway line in Toronto a number of years ago. Workers were removing asbestos in a dormant area of the line without proper containment of the dust and fibers. The movement of a subway train on a nearby track caused a movement of air which in turn caused the fibers to become instantly airborne and ingested by the workers. Asbestos is the most common cause of Mesothelioma, but the risk caused by exposure to asbestos fibers or dust often does not manifest itself for years or even decades after the fact.

    If the overriding determination for reclassifying a voluntary trade as compulsory is the risk of harm to public and worker health and safety, then what can and should be done about it is such a reclassification.

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

  1. What makes a compulsory trade compulsory and what makes a voluntary trade voluntary?
  2. Generally, an inherent risk of harm to public or worker health and safety, the complexity of the work in a trade, the economic impact on employers, apprentices, journeypersons, and the industry in general should be the primary considerations in classifying a trade as compulsory.

    That is not to say that these should be the only determinations. Other provinces give weight to industry support, consumer protection, and environmental impact. In most provinces, the overwhelmingly dominant criteria or consideration seems to be that of preserving public safety.

  3. Is the current classification of trades as either compulsory or voluntary aligned with the College’s duty to serve and protect the public interest?
  4. This question seems to be asking, does the College have the correct trades deemed as compulsory versus voluntary? If that is the question, then the answer is, not in all cases. The trade Hairstylist is compulsory, yet the trades of Powerline Technician and Hazardous Materials worker are voluntary. If the dominant consideration for deeming a trade to be compulsory is the protection of public and worker safety, it would seem obvious that working with high voltage wires and removing hazardous waste materials would be far more dangerous than cutting hair.

    Many hairstylists have publicly objected to their compulsory status, principally over the payment of membership fees to the College, and yet they have access to a clearly defined process for reclassifying the trade as voluntary. That they have not done so would seem to suggest that their motives for objecting are rooted in political opportunity as opposed to practical merit.

    The process works as it was intended to. Industry Trade Boards bring forward their recommendations based on their members representing a particular sector of the industry. Those members are expected to be connected and in tune with the needs of the sector, thereby making the College of Trades far more responsive and agile to the needs of the industry than government has been in the past.

    Take for example the recent reclassification of the Sprinkler and Fire Protection Installer Trade. While the College might wish to consider adding to its capacity for research and data collection, the review panel heard from affected parties that were for and against the reclassification and made its decision accordingly.

  5. 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?
  6. Yes. Many skilled trades bring with them an inherent risk to public or worker safety. Some examples have been cited in the answers to previous questions.

  7. 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?
  8. Compulsory certification should encompass all aspects of the trade. To limit certification to either core elements, activities, or functions would serve to confuse the boundaries between compulsory and voluntary trades, complicate enforcement efforts, and invite jurisdictional disputes.

    Aside from the Hazardous Materials Worker trade, the core functions of many of the other trades pose a significant risk of harm to the public. Furthermore, every journeyperson in each trade, whether compulsory or voluntary, has invested considerable time and effort into completing their apprenticeships and if they are to be considered as a category of one of the other “publics”, has a right to expect protection of the integrity of their trade from encroachment by unqualified individuals.

  9. 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.
  10. The Ontario Labour Relations Board was established in the early 1940s and has been adjudicating and resolving labour disputes for more than 70 years. It has been a tried and true method for ruling on jurisdictional issues, and should continue to be the model used as the basis for determining whether to classify or reclassify a trade as either voluntary or compulsory.

    Current representation includes one employer representative, one labour representative, and a neutral adjudicator from the Ontario Labour Relations Board. Applicants before such a review panel will bring an inherent bias associated with their application. It is up to the review panel to invite input from relevant stakeholders and impartially determine a course of action based on the best arguments.

    The process must be initiated and driven by the trade boards as representatives of the trades.

  11. How should expert opinion be obtained?
  12. Establish clear criteria for determining relevant stakeholder input on a trade-by-trade basis. For example, hairstylists should not be considered experts in offering testimony on whether the Sprinkler and Fire Protection Installer trade should be reclassified as compulsory. Similarly, organizations such as the Ontario Construction Employers Coalition, which purports to represent several trades uniformly in their opposition to the College for political purposes, cannot be expected to have the requisite level of expertise in specific trades to adequately make a case for reclassification.

    Expert opinion, should, in one instance be based on experience as an employer, or journeyperson working in a specific trade, and not on anecdotal suppositions of organizations with a political agenda.

    But in another instance, relevant groups representing the public interest should not be excluded either, such as representatives from the firefighting profession who weighed in on the application from the Sprinkler and Fire Protection Installer trade.

  13. Are the current criteria for trade classification reviews set out in O. Reg. 458/11 consistent with the public interest? Please explain.
  14. The process as set out in O. Reg. 458/11 is not consistent with promoting and protecting the public interest. There is no mechanism for rejecting frivolous applications. If a trade board or divisional board requests a review, the Board of Governors must establish a review panel to receive submissions and determine whether a trade should be reclassified as either compulsory or voluntary. This can tie up the Colleges resources and become a costly process in the absence of a “veto” mechanism accorded to the Board of Governors to reject frivolous applications.

    The criteria to be considered in making a determination, as listed below, are in the public interest and are consistent with answers provided to previous questions in this review.

    1. The scope of practice of the trade
    2. How the classification or reclassification of the trade may affect the health and safety of apprentices working in the trade and the public who may be affected by the work.
    3. The effect, if any, of the classification or reclassification on the environment.
    4. The economic impact of the classification or reclassification of the trade on apprentices, journeypersons, employers and employer associations and, where applicable, trade unions, employee associations, apprentice training providers, and the public.
    5. The classification of trades in other jurisdictions.
    6. The supply of, and demand for, journeypersons in the trade and in the labour market generally.
    7. The attraction and retention of apprentices and journeypersons in the trade.
    8. Are the criteria specific, clear and measurable enough to inform you of what data and evidence are needed to meet those criteria?

    Yes, the criteria take into account all relevant stakeholders within the context of the overriding mandate of protecting the public interest.

  15. Are the existing criteria the right criteria?
  16. Yes.

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

  1. Do the scopes of practice (SoPs) in regulation reflect the way in which work is actually assigned in your trade or sector?
  2. Yes. The training and curriculum standards flow from the SoPs. Every element of each of our trades is clearly defined.

  3. Do you agree with the notion that most jurisdictional disputes arise from peripheral elements of the trades? Please explain.
  4. Yes. To again use the Windsor LiUNA example, the union attempted to make a case for continuing work (laying conduit) which had in the past been allowed by historic precedent by the OLRB. The workers were fined under the legislation (OCTAA) for making electrical connections, which clearly falls under the SoP of electricians.

  5. 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.
  6. The OLRB has had a long history of impartially resolving disputes in the organized sector. All things being equal, the OLRB represents the best model there is for fair and impartial resolution of jurisdictional disputes. With more than 70 years of experience, we view the OLRB model as the only reasonable solution to what can often become an acrimonious fight over jurisdiction. Each of the trades we represent are voluntary and already subject to OLRB decisions, and we would continue to support the OLRB as the only mechanism for resolving issues that impact the daily business of our members.

Section E - General Response and Comments

  1. Please provide additional comments below, if any.