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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-52

Name of organisation making submission: DR-52 Ontario College of Trades Construction Craft Worker Trade Board

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

Sec. 11 of the Ontario College of Trades Act set out the objects of the College. Sec 10, provides that in pursuing these objects the College has “a duty to serve and protect the public interest”. With respect to the manner in which the College pursues the objects set out in sec. 10, we believe that the public interest encompasses the following: 1. Fairness: The duty of fairness is central to how the College of Trades pursue its mandate. In the construction industry, decisions of the College can limit the legal ability of a worker (and by implication a contractor) to perform tasks for which he or she is competent in the eyes of employers or paying customers. Any public body which has the power to limit the right of an individual to earn a living must exercise that power with full consideration of the duty of fairness. That duty applies to: (1) the substance of decisions, (2) the criteria on which decisions are based, (3) the process by which decisions are made, and (4) the process by which appeals against decisions are considered. 2. Inclusiveness: All workers who are affected by the College should have an opportunity to be heard and to have their legitimate interests taken into account. It is simply a fallacy to believe that those who are not certified are unqualified. This is especially important in the construction industry where a large percentage of the labour force do not have a trade certification. Ontario’s goal of raising the skills of all workers in the construction industry will not be achieved by setting workers who are certified against workers who are not. The governance of the College needs to inclusive and the policies and operations of the College need to reflect this inclusiveness. 3. Public Safety, Worker Safety and Environmental Protection: The College has a duty to protect public and worker safety and the environment. However, the primary means for achieving these goals is not the College of Trades. Ontario has established standards and systems of inspection under a number of specialized statutes, including the Building Code Act, the Occupational Health and Safety Act and the Environmental Protection Act. It is entirely appropriate for the College to incorporate relevant knowledge of these standards into occupational standards. There is a risk, however, that the duty to protect public and worker safety and the environment also will be used as a pretext to restrict who can perform certain tasks. The College does not serve the public interest when it imposes restrictions that were judged unnecessary by those with primary responsibility for protecting public and worker safety and the environment. 4. Stable and Constructive Labour Relations: The College of Trades needs to be cognizant of the public interest in stable and constructive labour relations because of the impact that its decisions inevitably have on the labour relations environment in the construction industry. Deciding ‘who does what’ is fundamental in the construction industry. It is therefore in the public that the College should refrain from overturning clearly accepted practices or adjudicated decisions on ‘who does what’. 5. Economic Well-Being of Ontario: By establishing standards, the College promotes the development of a skilled work force. By restricting the ability to perform certain tasks, the College potentially creates unnecessary shortages of skilled labour, impairs the ability of some workers and employers to earn their living, and increases costs. The economic impact of the College’s regulations and enforcement practices must always be consistent with the economic well-being of Ontario.


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

As a statutory body, the College’s duty is to the general public of Ontario. The College was not established to enable members of a trade to pursue their economic interests at the expense of another trade or at the expense of workers who are not certified. In the case of the construction industry, “the public” comprises: owners, employers, certified tradespersons, apprentices, uncertified workers, the organizations that represent owners, employers and workers, and the general public who have in interest in the quality and cost of the construction industry’s products.


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

General Comments: The College makes policy decisions and operational decisions. Policy decisions include: occupational and training standards, scopes of practice, the classification of trades, and ratios. Operational decisions include: certification, discipline, and enforcement of restricted scopes of practice. In making policy decisions, the College should not assume that the facts needed to understand the public interest will necessarily be presented by parties with specific interests. Decisions should only be made after an investigation that is thorough, transparent and impartial as was the case when the MTCU had these policy responsibilities. The view of all stakeholders who are affected should be actively sought out. Impartial research should be undertaken. In making decisions on public and worker safety and environmental protection, the College should be deferential to the authorities already established to pursue these objectives. In making decisions on enforcement in the construction industry, the College should be deferential to the existing procedures for resolving jurisdiction, where these are applicable. These existing procedures include: the OLRB, private arbitration, collective agreements, and voluntary agreements between trades. Specific Comments: Scopes of Practice: The Scopes of Practice (SoPs) for construction trades need to be developed through a process which is inclusive, rigorous and impartial. Individual trades should not lead the process for determining their own SoP. If that is allowed to happen, the process for determining an SoP will descend into an exercise in grabbing jurisdiction and work from other trades. Re-classification of Trades: The process for considering an application to reclassify a trade needs to be rigorous, thorough, inclusive and impartial. The investigative model used under the Regulated Health Professions Act is more suitable than the current adjudicative model. Further, recommendations on restricting tasks should be made on a task-by-task basis rather than applying to all tasks in an SoP. There should also be recommendations for exemptions. If the entire industrial sector can be exempted, surely there are segments of the construction industry where exemptions are also appropriate. Enforcement: The current approach to enforcement is seriously flawed. It allows individual unions to use the College and the Provincial Courts to pursue jurisdictional gains at the expense of other trades. The College’s whole approach to enforcement needs to be re-thought. In the first place, the OLRB needs to replace the Provincial Courts as the tribunal that deals with enforcement issues. Second, the College needs an enforcement framework. The centrepiece of that enforcement framework should be a demonstrable harm test. Instead of adopting a black-and-white approach to enforcing SoPs, the College should only enforce an SoP when there is demonstrable harm to public or worker safety when task in a compulsory trade’s SoP is performed by a worker who is not certified in that trade.


4. Is the College currently protecting the public interest?

The College is failing, and has failed, to protect the public interest in a number of ways: First: the College invited applications for re-classification of trades even though a large number of the Scopes of Practice are seriously out of date, vaguely worded and in conflict with the relevant Training Standard. Second: in adjudicating the change of status for the Sprinkler and Fire Protection Installer trade, the College did not commission an economic impact study. The panel’s decision even states that “the adequacy or sufficiency of evidence is a problem and a theme that recurs throughout this trade classification review” (para 25 at p 11). As a result, this decision was made with insufficient evidence and insufficient consideration of the economic impact of changing the trade’s status. . Third: in enforcing restricted Scopes of Practice in the construction industry, the College has been utterly indifferent to OLRB decisions, to established practices, to the terms of collective agreements, and to the labour relations consequences of its decisions. The College has not applied a demonstrable public harm test, but has instead applied an entirely inappropriate black-and white reading of Scopes of Practice. The College has allowed itself to be used as a vehicle for advancing the jurisdictional interests of a particular trade. . Fourth: when enforcing SoAs, the College does not allow for appeals or for stays of implementation pending the outcome of an appeal. In fact, the College does not even give the affected party an opportunity to make representations. The requirements of fairness and due process are not respected.


5. How should the College advance the public interest?

The College needs to alter its practices in a number of ways to advance the public interest: First: The College should impose a moratorium on applications to change the classification of a trade pending a complete review of Scope of Practice and relevant Training Standards. This review should encompass all construction trades. The review should have impartial leadership and should be inclusive of all stakeholders. Second: The OLRB should replace the Provincial Court as the tribunal for dealing with the enforcement of Scopes of Practice. There should be a stay on enforcement pending a decision by the OLRB. Third: The College should develop a framework for enforcement that articulates how the College will interpret the public interest in enforcing Scopes of Practice. The framework should have three guiding principles: (1) not all elements of a Scope of Practice in a compulsory trade are or need to be restricted in all circumstances, and (2) the test for determining whether an element in the Scope of Practice of a compulsory trade will be enforced should be demonstrable harm to public safety or worker safety, and (3) enforcement activities will not overturn work assignments sanctioned by the OLRB, private arbitrations, collective agreements or voluntary agreements between trades. The College should also commission a report on the economic impact of enforcing the Scopes of Practice of compulsory trades. In its guidelines for determining demonstrable harm, the College should seek input from the relevant authorities whose primary mandate is public and worker safety. Fourth: the criteria for reclassifying trades should focus on demonstrable harm to public and worker safety and on economic impacts. There should be a high evidentiary test with clear onus on the proponents of reclassification. Fifth: the College should replace its current adjudicative approach to reclassification with an inquiry model, similar to the model used under the Regulated Health Professions Act. Sixth: panels considering applications to reclassify a trade should have the discretion to recommend that restricted status apply only to specific elements of a Scope of Practice and to recommend that certain sectors or types of construction projects be exempted. Seventh: The College should commission independent economic impact assessments to support panels dealing with ratio changes or applications to reclassify a trade.





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.

LIUNA is the largest construction union in Ontario. LIUNA's members work in all sectors of construction. However, the majority of LIUNA's members do not hold a certificate of qualification in a regulated trade. Consequently, the members and their employers are adversely affected by any actions taken by the College of Trades which limit the performance of tasks to certified members of a trade. When LIUNA members perform construction tasks, regardless of the sector, they are performing those tasks with the full knowledge of owners, contractors, engineers, architects, safety inspectors from the Electrical Safety Authority, the Technical Standards and Safety Authority or the Ministry of Labour’s health and safety inspectors. In these circumstances, it is difficult to understand how the public interest can be served by overturning these work assignments and handing them to workers whose Scope of Practice nominally covers these tasks, but for which these workers have often not been trained. The OLRB has been adjudicating jurisdictional disputes in the construction industry for more than 50 years. The Board has indicated that its principal criteria are: — collective bargaining relationships, — skill and training, — safety, economy and efficiency, — employer practice and preference, and — area practice. We are at a loss to see why the College should overturn impartial and expert decisions made on the basis of these criteria. A canvass of OLRB decisions confirms that members of LIUNA often perform tasks that could be construed as falling within the SoP of another trade and, in some cases, a compulsory trade or a voluntary trade that is seeking compulsory status. OLRB Decision: 2443-08-JD This jurisdictional dispute was between LIUNA and the UA (plumbers) concerning piping work, namely: “The installation, which includes the placement and connection, of: six inch diameter PVC domestic watermain; eight inch diameter PVC firemain; hydrants; and valves (subject to confirmation that any were in fact installed) outside of the footprint of the building to the property line.” The OLRB ruled that “the watermain portion of the work in dispute ought to have been assigned to members of the Labourers’ Local 625” OLRB Decision: 0649-10-JD This jurisdictional dispute was between LIUNA and the Carpenters concerning form work, namely: “The carpentry portion of the concrete forming work performed at the East Hamilton Recreational Trail and Waterfront Link Pedestrian Bridge.” The OLRB rules that: “Local 837 (LIUNA) has established on the balance of probabilities that the work in dispute identified above in paragraph two ought to have been assigned to its members rather than to members of Local 18 (Carpenters).” OLRB Decision: 4046-05-JD This jurisdictional dispute was between LIUNA and the Sheet Metal Workers International Association. The dispute concerned: “the application of sealant to duct work or decking originally installed by members of the Sheet Metal Union where such duct work or decking must be sealed to other metal originally installed by the Sheet Metal workers. It is agreed that the work is done in the course of steam sealing rooms at Darlington [nuclear plant].” The OLRB ruled that: It is clear that the employer preference is that this work be done by the Labourers’ Union. It chose the Labourers’ Union to do it in 2002 and again in 2004 although in the latter instance they were joined by the Sheet Metal workers… the efficiency argument favours the Labourers’ Union’s claim.… the work in dispute was properly assigned to members of the Labourers’ Union.” OLRB Decision: 2460-04-JD This jurisdictional dispute was between LIUNA and the Carpenters. The dispute concerned a new technology used in the concrete forming sector. The essence of this technology is that modular components are assembled (rather than constructed) to receive the concrete, but that the components remain as part of the finished structure, i.e., they are not dismantled like traditional forms. The Carpenters claimed that this was forming work per their collective agreement and consistent with their SoP. The OLRB ruled that having regard to the both the nature of the work in dispute and the area practice the work was properly assigned by the contractor to the Labourers. OLRB Decision: 3349-13-JD This dispute was between LIUNA and the IBEW (electricians). The dispute concerned “The installation of pre-cast cable trench, covers and ducts including the excavation, levelling and backfilling of the trench at the Ashfield Switching Station construction project of Hydro One Networks Inc.” The sub-contractor (Optcon) assigned the pre-cast cable-trench covers and ducts (commonly known by the band-name ‘Trenwa’) to the IBEW. The IBEW argued that the Trenwa installation should be done by the IBEW based on the Scope of Practice of its trade, the Electrical Safety Code, the Electricity Act and OHSA. The Board rules that Trenwa was not an electrical installation activity and hence not covered by these statutes. Based on area practice, the work was assigned to LIUNA by the Board. OLRB Decision: 2637-94-JD This jurisdiction dispute was between LIUNA and the IBEW (electricians). The disputed concerned: “the installation of duct or trench similar to Trenwa Duct, for the exclusive purpose of housing electrical cables, including computer cables, at the Trans-Canada Pipe Lines Compressor Station near Sundridge, Ontario…” The OLRB ruled that “there is nothing before the Board which suggests that the work in dispute should have been assigned to electricians”. It is noteworthy that in a case in the Windsor area, the College of Trades inspector ruled that similar work should be undertaken by an electrician. There are many more OLRB cases that could be cited. We have attached to this submission summarizing more than 7 cases.


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

There two arguable, but unpersuasive, reasons for distinguishing between core and peripheral elements of an SoP. The first is to restrict the training standards of trades from overlapping the core elements of another trade. The second is to provide a narrower framework for determining whether a trade should be compulsory and, if so, which of the elements of its SoP should be restricted. The attempt to distinguish between core and peripheral elements will not work for either purpose. The construction industry is continually evolving. Tasks which were associated with one trade are often affected by technology in ways that alter the economic efficiency of work assignments. The distinction between core and peripheral tasks leans too far in the direction of balkanization and protection of work. It might also be suggested that there is a connection between intrinsic hazardousness of tasks, their inclusion in the ‘core’ of a trade and their eligibility for restricted status. If a task is intrinsically hazardous, we would expect performance restrictions to be founded in regulations under OHSA, the Building Code, the Fire Code, the Electrical Code, TSSA, etc. If regulations under statutes whose primary purpose is public or worker safety do not impose a restriction, we do not believe that the College should be introducing such restrictions.


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.

The Ontario College of Trades Act is primarily a training act. Therefore the primary function of an SoP is to provide a framework for training. An SoP should be grounded in an occupational analysis and a set of occupational standards that are a current and industry-validated description of the competencies needed by workers in that trade. An SoP should describe the principal generic tasks for which a worker in that trade should be trained. It is a serious error to start with the premise that an SoP’s primary function is to support an application for compulsory status, to eliminate overlaps between trades or to provide a basis for enforcement. This is not the case. The purpose of an SoP is first and foremost to support the College’s primary mandate which is competency in the skilled trades. Classification of trades and enforcement are secondary to this primary mandate.


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

This question inverts the correct procedure. An SoP is derived from Occupational Standards which, in turn, are based on an occupational analysis. The review process starts with the Occupational. The review process should be rigorous, inclusive and impartial. Rigorous: the process for reviewing an Occupational Standard for a construction trade should follow a consistent methodology that achieves a complete description of the knowledge and skills required by someone in that trade and the duties and tasks they perform. This will require examining the trade in numerous contexts across a range of sectors. Given the inter-relatedness of construction work, it is not practical to examine trades in isolation from one another. The rreview process needs to be systematic across all construction trades. Inclusive: it is critically important that the review of the Occupational Standards for the construction trades involve a full range of industry stakeholders. It is essential that the review process not be delegated to the Trade Boards. The review process must include an active outreach to the construction industry and all of its stakeholders. Impartial: the review process should be managed and chaired by persons who are impartial and who have no vested stake in the outcome of the process.


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

The majority of the existing SoPs are out of date or too vaguely worded and therefore are not a suitable basis for anything. Relying on them for regulatory purposes is a denial of justice to those who are adversely affected classification or enforcement decisions If SoPs are properly grounded in a current and industry-validated set of occupational standards that were developed through a rigorous, inclusive and impartial process, then the SoPs will support the Colleges diverse functions.


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

No. The framework for enforcement should acknowledge that the SoPs for compulsory trades include elements which are not restricted to members of that trade and that, in any event, not all elements of an SoP are equally enforceable in all contexts. The College of Trades was not established to create protected islands of work that can only be undertaken by someone in a designated trade. The College should enforce an SoP only when performance of a listed task by an uncertified work would cause demonstrable harm to public or worker safety. In determining whether there is a risk of demonstrable harm, the College should defer to the authorities that have primary responsibility for public and worker safety. Further, the College should not enforce an SoP when doing so would upset work assignments sanctioned by the OLRB, private arbitration, collective agreements or voluntary agreements between trades.


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.

The College does not have the technical expertise to determine which tasks post a demonstrable risk to public or worker safety. The College should always defer to the authorities that have primary responsibility for public and worker safety. For example, OHSA Reg. 213/91 specifies particular qualifications for certain tasks. The regulations to the various public safety statutes also specify particular qualifications where these are deemed necessary for public safety. These and only these tasks should be restricted on the grounds of public and worker safety.


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

An overlap arises when essentially similar tasks are listed in more than one SoP. Overlap in competencies across two or more occupations is a widespread and normal feature of the workplace. It is neither feasible, nor desirable, for OCOT to demarcate where the competency of one trade ends and the competency of another trade begins. Overlap is inevitable. There should be no bar on the SoP of one trade containing tasks that are also included in the SoP of another trade when that reflects the reality of how work is undertaken. Indeed, the presumption should be that a degree of overlap is the norm, not the exception.


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

In the main, the demarcation of work responsibilities in the unionized construction industry is performed by collective agreements and the OLRB. SoPs are largely irrelevant to this demarcation of work as they do not influence the shaping of recognition clauses in collective agreements. Nor are they a factor in decisions of the OLRB, nevetheless, there have been recent instances in which the College has enforced a strict reading of an SoP for a compulsory trade and has thereby upset work assignments that were previously the historical practice or sanctioned by the OLRB. In fact, in Windsor, the College overturned the assignment of roadside electrical duct notwithstanding that a Ministry of Labour inspector had previously sanction the performance of this work by members of LIUNA.


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?

If a task is included in the SoP of a voluntary trade, then presumptively the performance of that task does not pose a risk to public safety or to safety in the workplace.





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 may be appropriate to consider an application for compulsory status if a majority of the tasks in an SoP should be restricted to persons who hold a C of Q in that trade. The test for determining whether a specific task listed in an SoP should be restricted should have four elements: 1) whether there is demonstrable harm to public safety or workplace safety when the task is performed by someone who is not qualified in the trade and the relevant safety authorities have also imposed restrictions on who can perform that task; 2) no unreasonable, negative economic consequences for other workers, employers or the Ontario economy as a result of restricting the task, 3) no inconsistencies with with OLRB jurisprudence or collective agreements; and. 4) no inconsistences with Ontario’s obligations under the Red Seal Program, the Agreement on Internal Trade, or the Labour Mobility Act.


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?

We have no quarrel with the current classification of the 22 trades that are classified as compulsory. However, we do not believe that all of the tasks in the Scope of Practice for the compulsory trades should be restricted and there should be exemptions even those for which restriction is sometimes. The College needs to undertake a task-by-task re-assessment and, in particular, for the construction industry, the College needs to take account of the provisions of collective agreements and decisions of the OLRB.


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?

Great caution must be exercised when the potential impact of a policy decision is to deny individuals the right to earn a living performing tasks for which their competence, even though uncertified, has been recognized in the market or by employers. In light of this potential economic injustice, it is dangerous to make an assumption about the hazards or risks of any element of an SoP. There must always be a burden of evidence. Public and workplace safety must bear the meanings that are found in the relevant standard and statutes.


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?

Using the distinction between core and peripheral elements to support decisions on classifying a trade is unworkable. A task could be core, but not pose any risk to public or worker safety. Moreover, there could be sectors or types of construction projects which should be exempted from restrictions on who can perform a task The only valid tests for restricting tasks are: demonstrable public harm, no economic damage, no inconsistency with OLRB decisions, collective agreements, private arbitrations, voluntary agreements between trades, or Ontario’s obligations to support inter-provincial mobility of skilled labour.


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.

The current adjudicative model has strengths and weaknesses. The strength of the model is that evidence and argument must be presented in an open forum where they can be challenged. The practice of drawing adjudicators from the OLRB is sound and should continue. Using the Chair and Vice-Chairs of the OLRB ensures that decisions are being made by persons who understand the requirements of due process, appreciate the nature of evidence, and are experienced in weighing the merits of competing claims. The Chair and Vice-Chairs of the OLRB are also cognizant of the realities of the work place and the need for administrative law to respect those realities. There are, however, significant weaknesses in the ‘OLRB model’: First: the current review process presumes that informed and well-resourced parties will present all of the relevant evidence to the review panel. The current process therefore excludes those who are not well-resourced since there is no active outreach or consultation component. Second: as was evident in the ratio hearings and also in the Sprinkler and Fire Protection Installer case, the parties cannot be relied upon to present all of the relevant evidence to the review panel. Indeed, the Sprinkler and Fire Protection Installer decision commented that: “the adequacy or sufficiency of evidence is a problem and a theme that recurs throughout this trade classification review” (para 25 at p 11). The flaw in relying on the parties to present all of the relevant evidence is especially apparent in regard to economic impact. Moreover, we question why a panel would prefer to receive economic impact analysis that has be filtered by a proponent, rather than a report that was impartially prepared. Third: the OLRB model essentially asks an adjudicator to make a finding based on the evidence presented. An inquiry model asks a chair to make a recommendation based on all information obtained, whether through submissions, consultations or commissioned research. The reclassification of a trade is more suited to the inquiry model than the OLRB model. Fourth: consistent with the OLRB model, the current process is highly prescriptive in setting out how submissions should be made. The time limits for making submissions appear to be motivated by the OLRB’s general desire to expedite proceedings. An inquiry process typically allows parties to make submissions in the format they deem appropriate. It also affords a longer time period to make a submission. Fifth: the current model allows a review panel to recommend only whether a trade’s SoP should be made compulsory in toto. The recommendation from the review process for a construction trade should indicate which elements of an SoP should be restricted and which should not be restricted. The recommendation should also indicate which sectors or types of construction projects should be exempted. Sixth: the purpose of having labour and employer ‘sidepersons’ on a review panel is to bring an informed workplace perspective to bear on the decision and to draw on their experience of how construction work is actually undertaken. Sidepersons should draw on their experience both to contribute to the panel’s interpretation of submissions and also to contribute to the panel’s appreciation of the broader work place implications of the case. Seventh: the current process binds the hands of the Board of Governors of the College. Recommendations of the review process should go directly to the Minister. Eighth: the current process appears to presume that the Minister and Cabinet will implement the regulation prepared by the Board of Governors on the basis of the review panel’s decision. The ultimate authority of the Minister and the Cabinet to review, reject or modify a recommended regulation should be explicit. While we value the impartiality and labour relations expertise of the current OLRB model, we believe that the public interest would be better served by adopting an inquiry model, similar to the process used under the Regulated Health Professions Act. This type of process offers more rigour, greater thoroughness and substantially more inclusiveness.


21. How should expert opinion be obtained?

Any party making a submission should be allowed to submit expert opinion in whatever manner it deems appropriate. The College or the panel should commission an independent economic impact assessment prior to the commencement of proceedings. Parties submitting to the panel should be allowed to comment on that assessment. Applicants for compulsory status could be charged an application fee that would be approximately commensurate with the cost of commissioning an economic impact assessment.


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

The current criteria for trade classification reflect some aspects of the public interest, but are not well focused. Nor do the current criteria communicate the central importance of the public harm and economic harm tests. We will comment on each of the seven criteria set out in Reg. 458/11: i. The scope of practice of the trade. The scope of practice is not a criterion. It is the subject of the review process. ii. How the classification or reclassification of the trade may affect the health and safety of apprentices and journeypersons working in the trade and the public who may be affected by the work. Criterion (ii) is fundamental to the public interest. However, OCOT does not have the expertise to determine whether restriction of tasks is necessary for public or worker safety. The test should be whether performance of a task by an uncertified worker poses a demonstrable risk of harm to public or worker safety and whether performance of the task has been restricted by the authorities with primary responsibility of public or worker safety. iii. The effect, if any, of the classification or reclassification of the trade on the environment. Criterion (iii) is in the public interests, but OCOT does not have any expertise in environmental protection. Tasks should only be restricted for reasons of environmental protection when the relevant authorities or regulations also restrict performance of the task. iv. The economic impact of the classification or reclassification of the trade on apprentices, journeypersons, employers and employer associations and, where applicable, on trade unions, employee associations, apprentice training providers and the public. The economic impact of reclassification is relevant to the public interest. The phrasing should be more general. The current wording appears to omit the impact on other workers who, may be performing the subject work, but could be prohibited from doing so following reclassification of the trade. v. The classification of similar trades in other jurisdictions. This is an appropriate criterion, but the reference should be to Canadian jurisdictions. This is an important qualifier since all Canadian jurisdictions have broadly similar industrial relations systems and codes, standards and regulations for public and workplace safety and for environmental protection. This is not necessarily the case in non-Canadian jurisdictions. vi. The supply of, and demand for, journeypersons in the trade and in the labour market generally. This criterion is central to the public interest. vii. The attraction and retention of apprentices and journeypersons in the trade. Criterion vii is not relevant to the public interest. If a trade is having difficult recruiting or retaining members then the occupational or training standards are out of sync with the needs of the economy. OCOT should be addressing this problem, not trying to fix the attraction or retention problem by making the trade compulsory. We believe that there should be a task-by-task assessment and that compulsory status should only be conferred on a trade when a majority of the tasks are appropriate for restriction. Further, restriction should only apply to those task. Within that framework, we propose that the criteria for assessing individual tasks should be simplified and more clearly stated. We propose: 1) whether there is demonstrable harm to public safety or workplace safety when the task is performed by someone who is not qualified in the trade and the relevant authorities responsible for public or worker protection have also restricted performance of the task, 2) no unreasonable, negative economic consequences for other workers, employers or the Ontario economy as a result of restricting the task, 3) no inconsistency with OLRB jurisprudence, private arbitrations (e.g., Chestnut Park Accord arbitrations), collective agreements or voluntary agreements between trades, and 4) no inconsistency with Ontario’s obligations under the Red Seal Program, the Agreement on Internal Trade, or the Labour Mobility Act.


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

The current criteria, in some cases, need redrafting to make clear what the nature of the test is and therefore what type of evidence speaks to that test. i. The scope of practice of the trade. Criterion (i) should be deleted. The scope of practice is the subject of the review process, not a criterion for review. Alternatively, criterion (i) could be redrafted to read: “how the scope of practice of the trade overlaps with other trades.” ii. How the classification or reclassification of the trade may affect the health and safety of apprentices and journeypersons working in the trade and the public who may be affected by the work. As drafted, criterion (ii) is too vague to guide parties as to what type of evidence is relevant. The test needs to be clearer and should parallel the test used in similar contexts such as the demonstrable harm test used in reviews under the Regulated Health Professions Act. Also there should be explicit reference to regulations or directives from authorities with primary responsibility of public and worker safety. iii. The effect, if any, of the classification or reclassification of the trade on the environment. Criterion (iii) is too vague to guide parties as to what type of evidence is relevant. There should be explicit reference to regulations or directives from authorities with primary responsibility of public and worker safety that address the performance of tasks. iv. The economic impact of the classification or reclassification of the trade on apprentices, journeypersons, employers and employer associations and, where applicable, on trade unions, employee associations, apprentice training providers and the public. Criterion (iv) leaves out the potential impact on other workers, especially those who would be barred from performing certain tasks if those tasks were restricted. Aside from this omission, the types of evidence that are relevant are clear and available. v. The classification of similar trades in other jurisdictions. The evidence required by criterion (v) is clear and readily available. However, criterion (v) should be redrafted to read: “the classification of similar trades in other Canadian jurisdictions.” This is an important qualifier since all Canadian jurisdictions have broadly similar industrial relations systems and codes, standards and regulations for public and workplace safety and for environmental protection. This is not necessarily the case in non-Canadian jurisdictions. vi. The supply of, and demand for, journeypersons in the trade and in the labour market generally. The types of evidence that are relevant to criterion (vi) are clear and available, although they may require the use of economic modelling and forecasting systems which may not be accessible to all proponents, especially as some of these are proprietary. vii. The attraction and retention of apprentices and journeypersons in the trade. Criterion (vii) should be omitted. When a trade has difficulty attracting or retaining apprentices and journeypersons, it is because there is some fundamental asymmetry between the occupational and training standards and the actual needs of the economy. The solution to the attraction and retention problem is to address the asymmetry, not to make the trade compulsory.


24. Are the existing criteria the right criteria?

Two additional criteria need to be added: 1) Consistency with Ontario’s obligations under the Labour Mobility Act, the Agreement on Internal Trade or the Red Seal Program. This criterion is important because inter-provincial mobility of skilled labour has been accepted as a public interest by the government of Ontario through its participation in the Agreement on Internal Trade and the Red Seal Program as well as its adoption of the Labour Mobility Act. 2) Consistency with the assignment sanctioned by decisions of the Ontario Labour Relations Board, private arbitrations (e.g., arbitrations under the Chestnut Park Accord), voluntary agreements between trades and collective agreements. This additional criterion is essential if decisions of OCOT panels are to avoid overturning established practices in the unionized construction industry and thereby detracting from constructive and stable labour relations.





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?

No. The current SoPs do not reflect current practice in the unionized construction industry. Many of the SoPs are seriously out of date or too vague to be a useful basis for the College's Regulatory functions.


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

Jurisdiction disputes arise when (a) the competence to perform a task is not be limited to a single trade and there is a dispute over which trades or trade unions have historically performed the task, or (b) a regulated trade makes a generic claim to work based on its expansive interpretation of its Scope of Practice, notwithstanding that this work is often performed by other workers or by members of another union. .


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.

Both in reclassifying trades and in enforcing SoPs, the College should defer to OLRB decisions, private arbitrations (e.g. the Chestnut Park Accord), to voluntary agreements between trades, and to the terms of collective agreements. This would ensure that work assignments that have been sanctioned by past practice are not overturned by College orders or College decisions that take no account of how work is actually performed. There are well established in the unionized construction industry for assigning work to trades and adjudicating disputes. Those procedures have served Ontario well. It is a serious error to undermine these procedures by allowing the College of Trades to override decisions of the OLRB or long-established provisions of collective agreements. The OLRB should replace the Provincial Court as the tribunal to address Scope of Practice enforcement issues.





Section E - General Response and Comments

28. Please provide additional comments below, if any.

LIUNA is the largest construction union in Ontario. A large proportion of LIUNA's members are workers who immigrated to Canada and do not have a recognized trade qualification. For many of our members, English is a second (or third) language. The skills which the members bring to the job may be uncertified, but they are nevertheless real and are essential to the economy of this province. The members of LIUNA are profoundly affected by decisions of the College of Trades and yet they have virtually no representation on the College’s decision-making bodies. This is a serious governance deficiency which must be addressed. Similarly, when we look at the governing bodies of the College of Trades, we do not see the public interest represented, except to some degree at the Board of Governors. There is no public interest representation on Trade Boards. Almost everyone who is selected is chosen to represent a particular set of interests. In this stakeholder model, the public interest is under-represented. As a result, the College has a bias towards intrusive regulation and enforcement that serves the particular interests of individual trades but at the expense of other workers and the Ontario economy. It is our submission that the College of Trades has a serious governance problem that must be addressed if the intent and potential of the College are to be realized. As as result of the strong connection between LIUNA, its membership and the LIUNA TDAs, the CCW Trade Board believes it is our best interest to submit this position paper and response to address the issues that we have identified as a Trade Board for consideration in the Tony Dean Review.