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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-36

Name of organisation making submission: DR-36 Electrical Contractors Association of Ontario, International Brotherhood of Electrical Workers

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

The public interest is broad, but is the preservation and perpetuation of a just society that promotes compassion, trust and integrity. From the standpoint of the electrical trades, we believe the definition of the public interest rests on what we may call our First Principles: • Protection of public safety. • The health and safety of workers. • Environmental protection. • Economic prosperity. For the College, this public interest includes: • Promoting the trades. • Setting standards. • Compulsory certification. • Enforcement of compulsory trades. • Ratio reviews.


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

The College directly serves the trades under its umbrella; however through its actions it serves a larger public that includes all residents of Ontario. Through its enforcement mandate, the College ensures hazardous jobs are performed competently and safely by trained and certified individuals, which in turn ensures Ontario residents are living in a progressive and modern community with limited risk to their health and safety. Using our electrical trade as an example, it is easy to see that the public interest is indeed broad. The work done by our tradespeople is expansive and touches essentially every resident of and visitor to our province. If that electrical work is not done properly, the risk is significant. However, there is another level of public interest beyond these core ideas, and that is ensuring Ontario tradespeople work with integrity. To that end, it is in the public interest to ensure training, safety and certification standards are in place and enforced, resulting in quality work and a stronger Ontario. We can ensure this integrity through compulsory trades and proper certification that indicates the tradesperson has been rigorously trained and is kept abreast of new developments in technology and procedures. The College serves this public interest by enforcing the rules and regulations of the skilled trades, expanding the number of apprentices in each field and ensuring compulsory tasks are performed only by licensed tradespeople.


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

Where opposing interests exist, it is incumbent on the College to make its decision based on the greater public interest in the context of public safety, worker health and safety, environmental protection and economic well being. This can be accomplished by developing a set of weighted criteria against which all decisions will be weighed. It is also best to make these decisions as transparent as possible. We believe this can be accomplished by strengthening the representation of the trades in the decision-making process that affects their particular sector. Other professional colleges — lawyers, doctors, teachers, etc. — are set up to ensure people in the practice are making the decisions, and we believe the College of Trades should be no different.


4. Is the College currently protecting the public interest?

It is moving towards that with increased enforcement. As long as enforcement is in place, then we are moving towards better protection of the public interest.


5. How should the College advance the public interest?

A key pillar of the College is its ability to enforce the Scope of Practice of the various trades for which it has responsibility. Applied fairly and consistently, this enforcement preserves the integrity of the trades and ensures the protection of the public interest.





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.

For starters, it is vital that the difference between a Scope of Practice of a trade and union jurisdiction is understood. The SoP sets the parameters of a trade and is hugely important to what we do as electricians. Given the nature of the work we do, it is near impossible to draw a divide between different aspects of our SoP. Working with electricity is hazardous, and becomes more so if you fail to understand and respect the whole of the electrical system. It is dangerous to begin questioning whether some aspects of an SoP are more important to the work of a trade than others as it threatens to uncouple the SoP of the trade from the National Occupational Analysis (NOA). As the NOA is the basis for all aspects of the trades, including certification, it is imperative that the SoP remains consistent with its tenets. You do not want to create a situation where the NOA designates certain tasks to electricians and then have an SoP that says differently. Having an inconsistency between the SoP and NOA will also put Red Seal certification at risk.


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

Following our answer to the previous question, we do not believe that there are any peripheral elements to our SoP. For that matter, there is no such thing as a “peripheral element” in any compulsory trade. It is vital that electricians understand the whole system in which they are working. Anybody may be able to turn a screwdriver, but turning a screwdriver on a ground wire is something else entirely. This is an area where we believe the College can do more to protect the public interest by protecting the interest of the compulsory trades. There have been rulings by the Ontario Labour Relations Board that have assigned work that is in the sphere of the compulsory trades to uncertified labourers. This is where the College can, and should, step in to enforce what is a compulsory trade. Quite frankly, we feel trying to make a distinction between core and peripheral elements of a compulsory trade is little more than a distraction. If required to adjudicate on a dispute between core and peripheral elements of a trade, we suggest the decision err towards the compulsory. Furthermore, people working in the trade should make these decisions. There is an inherent risk in fragmenting the SoP of a compulsory trade. The work is either compulsory or it isn’t. A trade is determined to be compulsory to protect the public interest. To then break out pieces of that trade undermines that public interest.


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.

As we answered in Question #6, we feel it is vital that anybody conducting electrical work be aware of the risks and dangers of the system as a whole, which necessitates ensuring all aspects of a trade are included in an SoP — without, it must be noted, any differentiation of “core” and “peripheral” elements.


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

Any review of a trade’s SoP must be conducted with public safety, the health and safety of workers and environmental protection as the key priorities. Furthermore, people working in the trade should be making any final decisions. They have intimate knowledge of the system and a better understanding of the requirements of the trade than those who are not certified in that trade. For example, when the Ontario Ministry of Health was considering regulation changes that would expand the network of healthcare professionals empowered to administer flu shots, it ensured the people working in the field were an integral part of the process. Organizations like the Ontario Pharmacists Association were actively involved in the public consultation effort that began in July 2012. The government officially announced the new regulations in October of 2012. The same should hold true for regulatory changes that will affect the trades. Whatever process is chosen — be it the College or the OLRB or another alternative — the principles of public safety, worker safety and the environment must be protected.


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

The SoP of a particular trade can certainly support the functions of the College, but if the SoP were to be expanded it should only be done if people working in that trade are the ones making the changes. They have the best understanding of the complete system in which they work and offer the best perspective in ensuring the tasks required by the trade support the College’s functions.


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

Yes, particularly for the electrical trades. Working with electricity is a hazardous job that carries significant risk. It is extremely important, for the protection of both the public and the workers, that it is conducted by people who are trained and certified.


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.

It could, but if this is simply a step towards creating classifications within the trade of “core” and “peripheral” elements we are concerned. We’ll reference the example we used in our answer to Question #7. The simple act of turning a screwdriver does not pose a risk of harm. However, turning a screwdriver on a ground wire increases that risk exponentially. As we have mentioned previously, knowledge of the complete system in which tradespeople work is vital to the safety of workers, the public and the protection of the environment.


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

There is no question that different trades have similar tasks; we recognize that. However, the nature of how those tasks are completed and the skills that are required may have subtle, but vitally important, differences.


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

No. Our tradespeople are professionals who recognize other qualifications and the work done by certified workers in other trades, as per their respective SoPs. However, we do encounter instances where uncertified workers are completing tasks that are part of the electrician’s SoP and that increases the risk and danger for the public and workers.


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?

It poses a risk if the tasks that overlap between compulsory and voluntary trades open the door to anyone, competent or not, who performs potentially dangerous tasks. The way to address this is to ensure that all tasks associated with risk are limited to the SoPs of compulsory trades. The current situation is backwards. In instances where a mandatory trade shares an element of its SoP with a voluntary trade, the third legal interpretation holds that the element essentially becomes voluntary as the tradesperson performing the task is not required to be licensed. In the interest of public and worker safety, elements that pose a risk of harm should default to compulsory trades, ensuring the work is completed by people certified in that trade.





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?

It really comes down to the First Principles: 1. Protection of the public. 2. Health and safety of the worker. 3. Environmental protection. If the work of a trade has any impact on these three criteria, it should be compulsory. However, we also recognize that there are other factors to be considered, but the criteria used to determine whether a trade is compulsory should be weighted in favour of these First Principles. We would also like to add that the criteria should be clear and attainable, and applied consistently by the College.


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?

It has to be a rigorous process, but we feel the decisions made by the college should put more weight on scientific, technical and expert evidence than it does on union jurisdiction disputes or the length of time a trade may have been doing a certain task. The challenge for the College is to establish and implement a process that does exactly that. As we experienced when we entered ratio reviews, too much of the process has become politicized. In some instances, it became a “contest” to see which dissenting union or organization could generate the most form letters. That is not a good way to make decisions when you are dealing with trades in high-risk situations. Furthermore, it does not protect the public interest to give, for example, labour mobility the same weighting in the decision-making process as environmental protection or public safety. Clearly, the latter two are significantly more important and should be treated as such when rendering a decision. All decisions in these instances should err on the side of public and worker safety — not on the side of unlicensed workers just because they have been doing a task for years.


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?

Yes. Undertaking any task of an electrician is hazardous if you do not have thorough training and certification that you understand the entirety of the complete system in which you are working.


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?

Absolutely not. As we referenced earlier in questions six to 15, we see inherent danger in designating “core” and “peripheral” elements of a trade. When working in a dangerous trade, understanding of the whole system is important. Not to trivialize the matter, but it truly is a question of life or death.


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.

Our concern isn’t so much the adjudicative review panel model as it is the composition of that panel. But there are ways it can be refined to improve the process: • Ensure the chair of a panel is independent and sophisticated in adjudication. • Allow the panel to engage in an independent review rather than rely only on the information it is provided by the parties providing evidence and testimony. This will increase the probability that the panellists have all the relevant information required to make an informed decision that will protect the public interest. • Provide training for the panellists, with weighted criteria against which they must measure the information they have. • Strive for consistency in decisions. Too often, particularly during ratio reviews, we saw similar evidence provided in different hearings result in diametrically opposed results. • Ensure a fair and equitable appeal process is in place.


21. How should expert opinion be obtained?

Please see our answer to Question #17: science-based, technical information is more important than volume of responses. We suggest clearly defining the adjudicative review process to ensure it is primarily about data, the public interest, safety and the environment. These hearings should not be popularity contests. The criteria that were put into place when the College was founded, knowingly or not, have put an emphasis on political perspectives. It is time to review those criteria to shift the focus to the scientific and technical information. We suggested earlier that not all criteria are created equally, and we believe the same about witnesses. Some simply have more expertise and better perspective when providing their testimony. For example, in the decision designating spinklerfitters as compulsory, firefighters and the fire chiefs were given more weight than general union interests, as they should. And as previously mentioned, we also support allowing the college to do its own research.


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

They are. The current criteria emphasize the First Principles we mentioned above, which we certainly believe is in the public interest. We also believe the other criteria, such as worker mobility, economic impact and attraction and retention are in the public interest. However, while we believe all of these criteria are in the public interest, we do not believe they should be weighted equally when rendering a decision. While attracting workers is important, it is not as important as ensuring that the work is done safely, and then when complete it poses no risk or threat of harm to the public. Developing a weighted grading system for these criteria would be beneficial.


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

On this, we don’t believe it is so much the criteria that causes confusion as it is past decisions of the College using these criteria. As we mentioned earlier, in past cases, particularly during ratio reviews, we saw similar evidence result in differing rulings. We understand well enough the data and evidence that can be used to meet the criteria of compulsory certification; however, please see our response to Question #17 regarding the politicization of the process.


24. Are the existing criteria the right criteria?

Yes, but as mentioned before some deserve more emphasis than others.





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?

If they did, it would be safe to say there would be no need for enforcement from the College. Part of the role of the SoP is to maintain the integrity of the trade, and should be the standard against which work is assigned in our trade. The unfortunate reality is too often the work of an electrician is assigned to people who are not certified as an electrician. To be clear, we are not making this a question of union vs. union. Rather, the key is to ensure the people who are being used to do electrical work are certified electricians, no matter the union to which they belong, or if they even belong to a union.


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

It is not really a matter of whether we agree with this statement or not. It is ultimately a question of whether the people performing the work are knowledgeable, trained and certified in the trade. In this review, we should not be talking about jurisdictional disputes and the OLRB. This is not a question of which union represents electrical workers. It’s about whether properly trained and certified electricians are doing the work.


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.

This would be a dangerous slippery slope on which to tread. In our opinion, the OLRB and the College fulfill two very different roles and to consider the decisions of one as influential to the other is a threat to the public interest the College strives to serve. In fact, we question why the OLRB has even been drawn into this review. The original intended purpose of the OLRB was to resolve disputes under collective bargaining agreements and certify trade unions as bargaining agents. Over the years its role has evolved to include other functions, but these core tasks remain its foundation. In performing this work, we have not seen the OLRB settle a jurisdictional dispute based on the qualifications of the tradespeople. See the ruling by OLRB Vice Chair David McKee in the IBEW Local 804 v. Weinmann Electric Limited/Utility Installation Limited, where McKee stated that safety, skill and ability are not factors that are “helpful in the determination of this case.” Were the College to adopt this approach, it would significantly weaken its enforcement mandate, thereby undermining a key reason for its existence, and increasing the risk to the health and safety of Ontario residents, visitors and workers. If anything, we would recommend broader consultation between the College and the OLRB, as many decisions of the OLRB are contrary to work that has been designated compulsory by the College. We have seen OLRB rulings that assign work to labourers that is in the sphere of compulsory work, and we believe the College should be stepping in to enforce compulsory work in these instances. In the public interest, these decisions should err on the side of protecting compulsory work and ensuring the people performing tasks that are deemed compulsory are certified. As we mentioned in our answer to Question #26, the College should not be concerning itself with jurisdictional disputes between unions. Compulsory work has been defined as such for a reason, and when it comes to completing compulsory work our greatest concern is that the worker is certified. Past OLRB rulings have ignored that. The College should not.





Section E - General Response and Comments

28. Please provide additional comments below, if any.

Respondent did not provide a response to this question