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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-70

Name of organisation making submission: DR-70 Residential Tile Contractors Association

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

RTCA agrees with, and refers the review panel to, the submissions of Labourers’ International Union of North America, Local 183 ("LIUNA 183") and its submissions under section 1(E) - "Impact on freedom of association and employee choice" in response to this question.


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

RTCA agrees with, and refers the review panel to LIUNA 183's submissions in this consultation and its answer to this question.


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

Respondent did not provide a response to this question


4. Is the College currently protecting the public interest?

Respondent did not provide a response to this question


5. How should the College advance the public interest?

Respondent did not provide a response to this question





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.

Overview Employers who are members of the Residential Tile Contractors Association (“RTCA”) will be negatively impacted by the scope of practice (the “SoP”) mandated under the Ontario College of Trades and Apprenticeship Act (“OCTAA”) to the extent that the SoPs are used to exclude uncertified workers from performing all tasks within the SoP of a compulsory trade. Introduction By virtue of a certificate issued by the Ontario Labour Relations Board (the “Board”) on May 11, 2009 (the “Certificate of Accreditation”), the RTCA became the accredited bargaining agent for all employers of Marble, Tile, Terrazzo, and Cement Masons and their respective apprentices, helpers, improvers, labourers and working foremen engaged in marble, tile, terrazzo and cement construction for whom the Labourers’ International Union of North America, Local 183 (“LIUNA 183”) has bargaining rights in Board Areas 8, 9 and 18 in the residential sector of the construction industry. In its capacity as accredited bargaining agent, RTCA is a party to a collective agreement with LIUNA 183 (the “Collective Agreement”) applicable to members of LIUNA 183 employed by RTCA members engaged in marble, tile and terrazzo work in Board Areas 8, 9 and 18. The RTCA members subject to the Collective Agreement consist of a sector of close to 30 unionized contractors of various sizes. These contractors are specialized in marble, tile, terrazzo installation and engage approximately 800-1200 subcontractors/pieceworkers at any given time to perform such work in residential properties. These specialized contractors are employed by general contractors and builders in the construction industry to perform marble, tile and terrazzo work in low-rise and high-rise residential units. RTCA members who are contracted to install flooring in the residential sector subcontract that work to one or more members of LIUNA 183 who are skilled and experienced Marble, Tile and Terrazzo Masons (“MTT Masons”). Pursuant to the Collective Agreement, LIUNA 183’s members who are MTT Masons performing work in the low-rise sector are typically paid on a piecework basis while those performing work in the high-rise sector are typically paid an hourly-rate. The vast majority of work performed by RTCA members is in the low-rise residential sector. Indeed, nearly all marble, tile, or terrazzo projects performed on low-rise residential properties in Board Areas 8, 9 and 18 are completed by RTCA members. Impact of SoPs on RTCA Members and their MTT Masons SoP of MTT Masons The nature of residential flooring work within the scope of the Collective Agreement is such that skills and tasks encompassed within the SoP of more than one trade are performed by RTCA members and their MTT Masons on any given project. More specifically, there is a longstanding practice in the low-rise residential flooring industry of RTCA members and their LIUNA 183 subcontractors installing the underlay necessary for a floor installation. This underlay work routinely involves laying and levelling cement, a task that falls squarely within the SoP of a Cement (concrete) Finisher. The underlay work may also involve laying plywood and framing floors, which falls squarely within the SoP of a General Carpenter. RTCA members and their MTT Masons are also responsible for installing cement board and applying waterproofing membrane prior to, and in preparation of, a mason, tile or terrazzo installation; tasks falling within the SoP of Drywall Finishers/Plasterers and Painters, respectively. As a result, the majority of LIUNA 183 members who practice MTT Masonry under the scope of the Collective Agreement are skilled and experienced in, and routinely perform, the above mentioned concrete finishing, carpentry, drywall and/or painting tasks. Importantly, there have been no health and safety or labour relations issues as result of the scope of work performed by MTT Masons associated with RTCA. This longstanding practice has also provided an efficient and economical answer for homeowners and builders facing an increasingly expensive real estate market. As MTT Masons in the residential flooring industry typically perform tasks which fall squarely within the SoP of up to four other trades, if one of those trades becomes a compulsory trade, there is a substantial risk that those tasks will have to be carved out of the practice of an MTT Mason. This is because the tasks falling under the SoP of a Painter, Drywaller, General Carpenter or Cement Finisher which are routinely performed by MTT Masons are not identified within the vaguely defined SoP for MTT Masonry. As a result, the third interpretation legal principle will be inapplicable to MTT Masons. MTT Masons would thereafter be required to embark on a lengthy and expensive certification in four additional trades in order to continue to perform discrete cement, floor-framing, drywall and /or painting tasks. Requiring MTT Masons to hold up to five different certifications in order to perform a floor installation is an unrealistic and unfair expectation. Accordingly, in the event that any of the aforementioned trades become compulsory trades, residential flooring projects that have historically been completed in their entirety by MTT Masons would require up to five distinct trade teams to complete. This creates a multitude of issues resulting in reduced work opportunities for MTT Masons, reduced entry into MTT Masonry, and increased costs for consumers in the residential flooring industry. Unlike electrical work, for example, work completed by MTT Masons often constitutes a luxury item for consumers, not a necessity. Given the present economics of floor installation projects, there is sufficient consumer demand for MTT Masons and the RTCA contractors who engage them to maintain a steady livelihood. However, in the event that the OCTAA regime prohibits MTT Masons from completing the cement leveling and floor framing necessary for a floor installation, the aggregate labour costs of such projects would increase. The total cost of the project may therefore outweigh the desire to pursue the luxury item. The increased cost to consumers is inevitable. First, the MTT Mason may have to offset the cost of being certified in more than one trade against the cost of each project. More likely, however, a consumer will have to engage both an MTT Mason and a separate General Carpenter, Painter, Drywall Finisher/Plasterer and/or Cement Finisher, to perform the requisite tasks for the floor installation. Since the compulsory classification will create an artificial scarcity of qualified labour, those certified tradespersons will likely capitalize on that monopoly by increasing their wages. Finally, by involving multiple distinct trades, consumers risk project delays and surplus costs related to mobilizing multiple trades to evaluate and perform work on a given site. The cumulative result will be increased costs of completing a traditional floor installation such that flooring projects will become unaffordable for many consumers. In addition to added costs for consumers, the logistics of coordinating the work of two or more trades for such projects also unduly complicates and therefore makes floor installation projects undesirable. In rural areas, the labour supply may itself make a simple floor installation or renovation next to impossible to complete. As a result of the economical and logistical issues that arise when MTT Masons are restricted from performing the entirety of a flooring project, consumers may cease pursuing this luxury, or may become increasingly reliant on an underground market. The latter result is particularly likely given that MTT Masons have traditionally performed the entirety of residential flooring projects such that consumers may reasonably assume they are qualified to continue to do so. In order to combat a reduction in consumer demand for flooring installations, RTCA members and their LIUNA 183 MTT Masons would be forced to lower their wages. Reduced wages would help keep flooring projects affordable in the event those projects require multiple trades for completion under the OCTAA regime. However, if the wages for MTT Masons are reduced, the logical consequence is that the entry into the trade will decline as workers will elect to obtain certification in more lucrative trades. The potential for the OCTAA regime to require a multi-trade team for floor installation projects traditionally completely by MTT Masons therefore runs directly contrary to one of the stated objectives of the OCTAA regime: to promote the practice of trades (OCTAA, s. 11(6)). Mobility between Trades Also relevant to the issue of narrowly defined SoPs is the fact that Brick and Stone Masons (“B&S Masons”) often perform work which falls under the vague SoP of MTT Masons. This is because there are a number of key skills inherent in B&S Masonry which are easily transferrable and applicable to MTT Masonry. Indeed, B&S Masons routinely transition their practice to MTT Masonry during periods of slow work in their primary trade (i.e. the winter season). To the extent that SoPs are used to exclude uncertified B&S Masons from performing tasks within the SoP of MTT Masonry, mobility of workers between these related trades will cease. As a result, work opportunities for B&S Masons may become significantly reduced. Summary In summary, isolating trades by virtue of the current SoPs has the potential to vastly disrupt the labour market in the residential flooring industry by creating artificial jurisdictional barriers without any corresponding public interest rationale. The current SoPs and the role they play in the OCTAA regime must therefore be revised to more accurately reflect the reality of industry practices and the interests of both consumers and tradespersons. Importantly, the consequences are not unique to RTCA members and MTT Masons. Similar conclusions can be found within other construction endeavours where vague or inaccurate SoPs threaten to improperly restrict tasks which are shared by multiple trades or mobility among two different trades. In that regard, we refer the review panel to LIUNA 183’s written submissions for this consultation (the “submissions of LIUNA 183”) and its answer to question 6, which aptly summarizes the broader implications of the SoPs on the construction industry. In addition to the above submissions in response to Question 6, RTCA agrees with, and refers the review panel to, the submissions of LIUNA 183 and its answer to this question.


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

The T.E. Armstrong Consulting Report, “Compulsory Certification Project” (April 28, 2001) (the “Armstrong Report”), suggests that the core elements of a trade are the essential, more complex components of a trade while peripheral elements are the less essential and non-hazardous functions of a trade (Armstrong Report, p. 3 and p. 98). The College’s duty to protect the public interest is not served by defining SoPs, and therefore the right to practice a trade, in this manner. The fact that a particular element or task is essential to, or predominant in, one trade does not mean that the task is not routinely, effectively and safely carried out by another trade, be it in a core or peripheral context. Indeed, the competencies necessary to safely and effectively perform peripheral elements of one trade may qualify a worker to perform a core element within the scope of another trade. The tasks associated with underlaying flooring or otherwise preparing a floor installation as described in answer 6 above, are indicative of how impractical it is to define SoPs on the basis of a trade’s perceived core elements. For example, while laying and levelling cement is undoubtedly a core element of the Cement Finishing trade, the practice in the residential flooring industry is such that this work is also a defining feature of residential MTT Masonry. Thus, the overlap between these trades is not confined to peripheral tasks. This is so, despite the fact that the SoP for MTT Masonry does not explicitly identify laying and levelling cement as a core element of the trade. As such, to the extent that SoPs attempt to define core elements of a trade and thereby restrict the practice of that trade, there is a risk of unnecessarily excluding workers from performing tasks which they are in fact qualified to perform. In addition to the above submissions in response to Question 7, RTCA agrees with, and refers the review panel to, the submissions of LIUNA 183 and its answer to this question.


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.

Under the OCTAA regime, SoPs define who has the right to practice a given trade. However, as alluded to in answer 7 above, restricting the practice of a trade in this manner does not adequately and effectively protect the public interest, in particular, the interests of consumers and tradespersons. Indeed, the current SoPs do not reflect the reality of industry practices and the competencies of tradespersons in the Ontario construction industry. In order to address these deficiencies in the current regime, restrictions on the right to practice must be narrowly defined in terms of specific tasks, not trades. In doing so, the concept of an SoP must be replaced by narrowly-defined tasks for which poor quality of the service could have potential severe negative consequences, including those related to health and safety of users of the service, the general public or fellow workers. These compulsory tasks are therefore those which cannot be performed by uncertified tradespersons without harming the public interest. That is to say, the public interest is better served by restricting the right to practice to individual tasks which pose a risk to health, safety and consumer interests, and which are not effectively addressed through another regulatory regime such as the Workers Safety and Insurance Act, 2007, the Occupational Health and Safety Act and the Building Code Act and their corresponding regulations. In doing so, the OCTAA regime can permit and indeed encourage entry into and mobility between trades such as Cement Finishing, B&S Masonry and MTT Masonry. The ability of tradespeople to pursue flexible practices and capitalize on those overlapping or related tasks within multiple trades creates greater work opportunities and enables more efficient and cost-effective solutions for consumers. This is of the utmost importance for RTCA’s principal consumers, those in the residential housing market, as these consumers face steadily increasing real estate prices. Pending the process of defining compulsory tasks, there should be no classification reviews and no steps taken by the College to enforce prohibition on non-members of the College. While an SoP should not define the right to practice a given trade, there is still a role for the concept of an SoP under the OCTAA regime. More specifically, SoPs should be used to improve self-regulation by informing the requirements for training, right to title and the maintenance of standards/discipline under the OCTAA regime. However, even in that context, the College must do away with artificial distinctions between core and peripheral tasks. Rather, SoPs should be amended to incorporate all competencies necessary to safely, efficiently and effectively perform the work of a given trade. In other words, the College must define occupational standards for each trade, which identify the entire scope of knowledge, skills and attitudes required for effective performance of, and broad employability in, a given trade. Even those seemingly granular competencies that are shared amongst many or all trades (e.g. safety training) should be incorporated into every applicable SoP. As pointedly noted in the submissions of LIUNA 183 and its answer to question 8, the broader an SoP is for the purpose of self-regulation, the greater the extent of self-regulation (which is supposedly the primary purpose of the College). Moreover, implementing all-encompassing occupational standards as SoPs for the purpose of training and discipline broadens a tradesperson’’ exposure to potential discipline, which advances the public interest of ensuring competent and efficient tradespersons. Importantly, unlike the compulsory task regime, defining and applying SoPs in this manner will not unnecessarily restrict tradespersons from performing tasks for which they are qualified. In addition to the above submissions in response to Question 8, RTCA agrees with, and refers the review panel to, the submissions of LIUNA 183 and its answer to this question.


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

RTCA agrees with, and refers the review panel to LIUNA 183's submissions in this consultation and its answer to this question.


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

RTCA agrees with, and refers the review panel to LIUNA 183's submissions in this consultation and its answer to this question.


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

RTCA agrees with, and refers the review panel to LIUNA 183's submissions in this consultation and its answer to this question.


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.

RTCA agrees with, and refers the review panel to LIUNA 183's submissions in this consultation and its answer to this question.


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

An overlap between SoPs exists where two or more SoPs include the same work. These overlaps include tasks which may reasonably be considered core elements of two distinct trades in the sense that they are an essential or complex component of those trades. Overlaps between two trades may also exist in regard to tasks which may be considered peripheral in the sense that they are less essential or less complex elements of those trades (see Armstrong Report, p.3 and para. 75). To use a previous example, framing floors is one of several tasks identified within the SoP of General Carpenters. However, as previously identified, MTT Masons are qualified to perform and are routinely tasked with, laying plywood in preparation of a floor installation. Thus, a task which is a core task of a General Carpenter is also routinely performed by MTT Masons. Likewise, laying and levelling cement is identified in the SoP of Cement Finishers and is undoubtedly a core element of that trade. However, this task is also arguably a core element of an MTT Mason in the residential flooring industry. MTT Masons are routinely tasked with laying and levelling cement both as a matter of convenience to the customer, and in some cases, the preference of the Cement Finishers on site. With the advent of new technologies and changing labour markets, the specific practices of each trade have undoubtedly evolved since their SoPs were originally defined. Moreover, the practice and competencies of tradespeople may vary based on their geographical location. For example, RTCA members in rural locations typically engage the MTT Masons for a broader scope of tasks than those MTT Masons working on high-rise residential units in urban areas. It is therefore arguably impossible to restrict a task, be it a core or peripheral one, to a single trade. On that basis, overlaps between SoPs as they are currently defined in the OCTAA regulations are neither a meaningful nor an accurate reflection of industry practices, standards and competencies today. In addition to the above submissions in response to Question 13, RTCA agrees with, and refers the review panel to, the submissions of LIUNA 183 and its answer to this question.


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

As identified in the answer to question 6 above, the OCTAA regime currently uses SoPs to restrict the practice of compulsory trades. SoPs thereby have the potential to negatively affect RTCA members and prospective members, and the tradespeople employed by them. In particular, to the extent that the practice of contractors performing Cement Finishing, General Carpentry, Painting, Drywall Finishing/Plastering, B&S Masonry, or MTT Masonry become restricted by the SoPs mandated by the OCTAA, the nature of the residential flooring industry as it exists today will be forced to undergo a major restructuring. This restructuring will not only reduce the number of tradespeople employed in the affected trades, but will also introduce new labour relations and jurisdictional issues, and will make residential flooring projects increasingly uneconomical for consumers. In addition to the above submissions in response to Question 14, RTCA agrees with, and refers the review panel to, the submissions of LIUNA 183 and its answer to this question.


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?

The application of the third legal interpretation principle (the “Principle”) on overlapping SoPs poses a risk of harm to the public, tradespeople, or other workers on the job. For example, the SoP of MTT Masonry, the trade employed by RTCA members, is defined as: “installing terrazzo, tile, granite and marble slabs on floors and walls” (Scope of Practice - Trades in the Construction Sector, O Reg 275/11 at s. 43). This is problematic in terms of the application of the Principle as it does not account for the specific tasks performed by MTT Masons in the residential flooring industry. As a result, to the extent that MTT Masonry remains a voluntary trade, MTT Masons have no safeguard to ensure that they may perform tasks which they typically have performed, but which might expressly fall under the SoP of a compulsory trade. By way of example, MTT Masons are routinely responsible for laying and levelling cement or framing floors, tasks falling within the core elements of at least two other trades: General Carpentry and Cement Finishing. The Principle is contingent on the College being able to identify and carve out permissible practices for each trade using the SoP. However, if General Carpentry or Cement Finishing is made a compulsory trade, there is nothing in the SoP of an MTT Mason to indicate that the MTT Masons’ prior cement/floor framing work can and should continue to be performed by MTT Masons. The Principle therefore cannot provide security for the practices of certain trades, including the MTT Masons, that have a vaguely defined SoP. As a result, the Principle permits a potential eradication of several longstanding and valuable practices of MTT Masons in the residential flooring industry, without any corresponding public interest rationale. In short, existing SoPs are wholly inadequate for enforcement with respect to non-members of the College and give no guidance where SoPs overlap. For that reason, reliance on the Principle to address jurisdictional overlaps risks harming the economics of, and labour relations in, the construction industry. While deficiencies in the application of the Principle may become irrelevant following suggested revisions to the purpose and description of SoPs under the OCTAA regime (see answers 6 and 8 above), revisions to SoPs alone will not adequately address overlapping jurisdictions and the permissible practices of non-members. Rather, it is essential that the College also revisit and indeed amend the enforcement process of the regulation of non-members. In that regard, RTCA refers the review panel to the submissions of LIUNA 183 and its answer to Question 5, where LIUNA 183 details a number of proposed changes to the OCTAA regime necessary to advance the public interest. RTCA adopts and supports LIUNA 183’s proposed changes to the regime and adds the following commentary. At present, enforcement decisions pertaining to sections 2 and 4 of OCTAA prohibit non-members of the College from working and employers from assigning work to them if the work falls under the SoP of a compulsory trade. As the size and scope of residential flooring projects may not justify delaying a project and proceeding with an appeal of an Inspector’s decision, RTCA members faced with a ticket may be forced to forfeit work traditionally performed by their MTT Masons or alternatively, reassign the disputed work and risk contravening the Collective Agreement. The significant economic cost to these contractors and indeed, to the individual MTT Masons who are the subject of the order, is entirely unjustifiable in cases where there is no apparent occupational or public health and safety risk to its continued performance of that work. As such, enforcement decisions under section 2 and 4 of OCTAA have the potential to needlessly and improperly restrict the practice of a trade during the course of an appeal of that decision. Consistent with the submissions of LIUNA 183 in response to question 5 of the inquiry, RTCA asserts that the Board is the appropriate panel to resolve the kind of jurisdictional dispute as would arise by virtue of orders made under section 2 and 4 of OCTAA. Indeed, an Inspector should not have the power to immediately change or cease longstanding practices on the basis of the current SoPs or otherwise. Rather, enforcement decisions involving trade union jurisdictional issues should be subject to an automatic stay if an appeal is filed. This will prevent front-line enforcement from becoming a de facto determination of work assignments that should in fact be settled by the Board. The sole exception to the operation of this stay should be circumstances where there is a safety concern that is sufficient to trigger an order under the Occupational Health and Safety Act or associated regulations. In the alternative, there should be a simplified process by which an individual or employer may stay an Inspector’s decision that is under appeal. Once again, the Board’s determination in granting the stay should hinge on whether there is any imminent occupational or public health and safety risk in granting the stay. Only with the implementation of an appeal to the Board and the provision of a stay (subject to safety issues), can jurisdictional disputes arising by virtue of an under section 2 and 4 of OCTAA be resolved without undue hardship and prejudice to employers and tradesperson with longstanding, uncontentious practices in the construction industry. In addition to the above submissions in response to Question 15, RTCA agrees with, and refers the review panel to, the submissions of LIUNA 183 and its answer to this question.





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?

Respondent did not provide a response to this question


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?

Respondent did not provide a response to this question


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?

Respondent did not provide a response to this question


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?

Respondent did not provide a response to this question


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.

Respondent did not provide a response to this question


21. How should expert opinion be obtained?

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


24. Are the existing criteria the right criteria?

Respondent did not provide a response to this question





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?

Respondent did not provide a response to this question


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

Respondent did not provide a response to this question


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.

Respondent did not provide a response to this question





Section E - General Response and Comments

28. Please provide additional comments below, if any.

To conclude, the RTCA wishes to emphasize that, as reflected throughout the RTCA’s submissions above, the RTCA agrees with and is in full support of the submissions of LIUNA 183.