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Dean Review Consultation Questions

Written submission to Dean review

Submission number: DR-79

Name of organisation making submission: DR-79 Ontario Masonry Contractors' Association

Responses to questions in submission form


Section A - The Public Interest in this Review

1. What do you understand by public interest?

At a generic level public interest is that which goes beyond the immediate benefit to the proponent for change/action. It is anything that affects the rights, health, safety, and finances of the general public. However, it is interesting to note that the public is not always in agreement to what constitutes its best interests. In terms of the College’s role in serving the public interest is to ensure the public has access to competent and qualified tradespeople who can perform quality work that meets a defined standard. This includes; • health and safety for both worker and the public • ability to identify, through a certification, that the worker has the knowledge and skills to complete the work to standard It is important to have a system of training that allows the worker to perform his job safely for his own good and that of all the workers on site (as well as the public who may be in the vicinity of the worksite). The public should be safe both during the construction phase and when the structure is in use. It is in the public interest, whether it is a home repair, or a large regional hospital, to have competent work which meets building code and CSA standards. This benefits not only the individual consumer but the economy as a whole. It is in the public interest to have a healthy construction labour market, with skilled labour to be able to meet the demands of the economy. To do this requires data for planning, a good training delivery network and being forward thinking when introducing change, whether it is ratios or trade status.


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

The college has dual responsibility, both to the general public and that of the industry for which it is the regulatory body. Virtually every person is a buyer and/or user of the construction industry. Whether you are driving on a road, buying a house or condo, going to school, work, shopping, etc, it all involves construction. So at some level everyone is affected by this industry. And as mentioned earlier the public has a right to be safe and to expect that the construction will be done correctly and to existing codes and standards. There are many regulations and laws which provide a framework to achieve that, however one of the key aspects of having work done right is to have workers with the necessary skills. The College also has a responsibility to the trade workers, employers and to ensure a healthy and effective training system in Ontario, which in turn benefits the public. Decisions should be made with the principles of benefitting the industry and the general public, and these interests are not necessary mutually exclusive. Where they differ, there must be a clear and objective process to achieve the decisions on the matters put before the College.


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

Decisions should be made with the guiding principles of benefitting the industry and the general public. Where they do differ, there must be a clear and objective process to achieve the decisions on the issues before the College. To facilitate these decisions there should be factual data and independent research. As part of the request for submissions on an issues, there has to be definitive criteria of what evidentiary thresholds need to be met. One approach would be to allow the adjudicators/review panels to research and look at other information sources and existing rulings and agreements. They should not have to rely solely on submissions from stakeholders.


4. Is the College currently protecting the public interest?

It is still early in the College’s existence and activity to make a sweeping determination, but many of it mandates would support protecting the public interest. Enforcement of compulsory trades is in the public interest, as that means knowing that the person doing the job has been certified in that work. However, there does appear to be some confusion in the industry around enforcement practices, including authority, rights, overlap and duplication of authority when it comes to enforcement. These are detrimental to public interest. On the other hand, ensuring that a worker in a compulsory trade had the required certification does look out for the public good. The question become, how it’s done, who is doing it, what is the appeals process, etc. I have included a recent MOL report that speaks to this issue, there are other examples and many anecdotal accounts that speak to this concern.


5. How should the College advance the public interest?

The primary focus of the College should be to create a framework that will allow for a healthy, skilled labour market to exist for Construction. That workers are trained to do the work safely, competently and productively. Training and certification is important, it shows due diligence that the effort was made to ensure proper skills for the job. If that happens, then the needs of the public and construction industry “consumer” will be met. Speaking mostly to the ICI sector, one must also keep in mind that the design of buildings has changed over the years, with software programs and more research of systems and building science. This more exacting degree of design requires a workforce that can implement it, which in turn mandates a more skilled and knowledgeable worker. It is not in the public interest to have buildings/structures fail because workmanship and design failed to work together. Proof of trade certification is being requested by some owners, for voluntary trades as well as compulsory, which indicates that owners are looking for some assurances. Any process to change trade status needs to consider the buyer’s need as well as all of the economic/market considerations (barriers to entry, supply/demand of workers).





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.

The SoPs in regulation have no impact on the daily work activities of our members. First of all, upon review of the SoP for the bricklayer, restoration mason, and restoration mason, they are too broad to be applied. But secondly, as mentioned earlier, our members operate in the unionized sector and therefore rely on trade jurisdiction to govern their activities. For training purposes we look to the training standards, NOA and the CMCA: Textbook of Canadian Masonry to guide our programs.


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

There are activities that cross trades and are certified independently. For example a forklift operator needs to be certified, but the certification is not trade affiliated. It would be detrimental in the construction industry if only one trade had jurisdiction over that work. There are other skills/trades that cross over or are complimentary to other trades, such as welding, many welders hold multiple tickets and certifications by CWB. In the case of the bricklayer trade, the apprenticeship programs has some people that come for one or two intakes and then go to work and never come back to finish – but the journeypersons that do come out of the program may work at putting up veneer on low rise residential housing which is one aspect of the trade, and the program certainly provides that level of competence and more. However, looking at the specialty areas such as refractory/industrial, restoration and ICI work – there would be cause to look for a higher level of diligence in ensuring those workers have the right skills. These skills cannot be classified as core or peripheral, but they require a different level of expertise, knowledge and competence than the basic program can cover. The concept of core and peripheral skills is difficult to apply, is a peripheral skill one that doesn’t require as much training/knowledge, or is it one that one trade doesn’t do as often. Is a core skill a highly specialized skill or one that is done on a daily basis? It appears that a concept of exclusivity is more pertinent. Many trades have some overlap, in the unionized sector if those overlaps begin to encroach on one trade’s work, the question becomes that of jurisdiction and is addressed at the OLRB. In the non-unionized sector, the lines are far more blurred, other than they need to comply with the compulsory trade 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.

For training purposes the SoP should be based on the NOA and the training standards developed from that document. Our question would be why are we duplicating a system that already exists and is Pan Canadian? Apprentices need to know the breadth of the trade as the inter-provincial (ICEMS) exams are weighted based on the NOA. Our national association – The Canadian Masonry Contractors Association – developed and published a training textbook so that bricklayer apprentices across the country had a study tool to help them pass the exam, as not all parts of the NOA are covered in each provincial curriculum. Any training standard or SoP that deviates from this national perspective undermines the Red Seal program, which then goes to being at cross purposes with the certification process. Training needs to expose an apprenticeship to a breadth of skills, depth of skills is something they will get on the job.


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

This goes back to our previous comments that the SoPs, first and foremost, need to support training. The current process is the development of the occupational analysis (NOA). This is carried out by practitioners from across the country and goes through a standardized and rigorous process for all the trades. The Red Seal exams are based on this, therefore if someone does not receive that breadth of training they won’t be able to pass the exam and become certified. Most, if not all provinces have done away with dual certification programs, where there was a provincial and Red Seal certificate available. Now it is solely based on the Red Seal. From the NOA the province develops training standards working with industry through the previous PAC system (now it would be the Trade Board). Any changes needs to be evaluated in light of what the apprentice needs to pass the Red Seal exam, and what the industry requirements are for skills. And therefore needs active stakeholder involvement.


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

The current state SoPs have little relevance to either training, enforcement of any policy type decision. The previous comments address the issue when it comes to training, however that may not fit with other uses. As mentioned earlier there maybe overlapping skills areas in the NOAs and any enforcement activity needs to take that into consideration. Also, the unionized sector has an existing set of parameters when it comes to who is doing the work and though the training curriculum is an element defining jurisdiction it is not the only element. Those also need to be considered, because some changes could be destabilizing and detrimental to have a level playing field in the construction industry.


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

This question assumes that there is no overlap in SoPs and that every element in a SoP for a compulsory trade is exclusive to the trade. It also depends if the question refers to the current SoPs or to a future version that would be consistent across all trades and reflect a breadth of skills. Assuming that the SoPs are improved and standardized and cover a breadth of skills, there will be overlap and therefore those elements may show up in more than one trade. So even though the entire compulsory trade is “enforceable”, if another trade has an overlapping practice, they too can do the work. However, in addition there will be the jurisdictional decisions made by the OLRB which will impact the unionized sector. All of these need to be considered when defining what is “enforceable”. There is also the risk that by creating a “silo within a silo” for the enforceable skills, there will be an impact on the training regime. How will that correspond to what defines training for the compulsory trades. There is a common misconception that compulsory trades are equivalent to union trade jurisdiction, most people assume compulsory means a unionized, and that is not true. OMCA does not support creating skills sets and that is why for any areas of specialization in the masonry trade, the training is post certificate. We believe it is important for workers to have a breadth of skills.


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.

To the best of our knowledge this information does not exist in any quantifiable or approved format. There would have to be a process to arrive at this list. However, first the College would need to have the full scope of the trade defined. Which currently, it does not. There are also other organizations, government agencies, etc., that have a primary role in dealing with health and safety concerns.


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

As mentioned in previous comments there are tasks that overlap in the work that trades perform. In some cases the overlap can be in more basic tasks, however there are examples of scope creep where more specialized tasks are undertaken. What the overlaps are, and the extent of overlap varies depending on whether you are looking at a voluntary trades or a compulsory trade and whether or not they are performed in the union or non-union sector. This goes back to the concept mentioned earlier about exclusivity – is the practice in question exclusive to one trade or do other trades do it as well.


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

OMCA members are unionized and therefore their work is defined by their collective agreements, OLRB decisions and the designation held by the EBA. The SoPs have not active role.


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 depends what tasks are being done and what is the rationale as to why more than one trade is undertaking a specific practice. This is about exclusivity and does it preclude a practice being part of more than one trade. If the practice is exclusive to a compulsory trade then it stands to reason that no one who is not certified in that trade should be doing the work.





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?

The following elements should be considered. • whether there is harm to public safety or workplace safety when the task is performed by someone who is not qualified in the trade or the relevant safety authorities have also imposed restrictions on who can perform that task; • where is evidence that indicates that a higher skill level is required to meet the standards for construction, so the work is done correctly • no unreasonable, negative economic consequences for other workers, employers or the Ontario economy as a result of restricting the task, • no inconsistencies with OLRB jurisprudence or collective agreements; and. • 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?

There is no issue with the current trades designated compulsory. However, the SoPs for these trades need to be updated and standardized


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


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?

Great care needs to be taken with definitions such as core and peripheral, as mentioned earlier there are various applications depending on trade status, market segment and between union and non-union sectors. What also needs to be considered is how the enforcement and training aspects would work together, if only elements of a compulsory trade where to be considered enforceable. Breaking up a trade into components is not in the best interest of the public, worksite practices, workers or the training and certification regimes. However, some trades do have endorsements or other post certificate programs. More relevant SoPs could alleviate some of the issue by including competencies that overlap between trades.


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.

There are other submissions that go into great detail on which model the College to use. We believe no matter the approach the elements should include; - Clear criteria and detail on the evidentiary thresholds - The opportunity of the “panel” making decision to undertake independent research or look to sources beyond the submissions - Look at broader economic impact and public interest - The implementation process proposed to effect the change requested. How will it be managed? A key piece of this puzzle is to have SoPs that standardized, look at historical practices and other decisions, and address the overlapping versus exclusive trade practices.


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.

We believe the current criteria do meet public interest, however establishing ‘exclusivity’ of a practice maybe something to consider. There should also be a reference to the Red Seal program and Ontario’s obligations under 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?

No, there needs to be more clarity on what the threshold is for making a case. And if the data is not available a process for including independent research.


24. Are the existing criteria the right criteria?

We believe the current criteria do meet public interest, however establishing ‘exclusivity’ of a practice maybe something to consider. There should also be a reference to the Red Seal program and Ontario’s obligations under the Labour Mobility Act. As part of any status change application there should be information on how the training system will handle the demands and how the change will be implemented.





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 how work is assigned in the unionized construction industry.


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

Jurisdiction disputes arise when the competence, historical activity or training to perform a task is not limited to a single trade and there is a dispute over which trades or trade unions have historically performed the task, or 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 an another union. The idea of whether a practice is peripheral or not is not the appropriate measure.


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

We are a voluntary unionized trade. For our purposes following the ORLB decisions eliminates confusion and duplication.





Section E - General Response and Comments

28. Please provide additional comments below, if any.

The Ontario Masonry Contractors’ Association (OMCA) represents the interests and welfare of its contractor members. Our contractors employ bricklayers, restoration masons and refractory masons. The majority of the work OMCA contractors undertake is in the ICI sector. All OMCA contractors are unionized, employing both members of the Brick and Allied Craftworkers Union and LIUNA. Both Bricklayers and our Mason Tenders (Labourers) are voluntary trades. OMCA also operates the only employer funded training centre. The Ontario Masonry Training Centre is funded with seat monies from MTCU, donations from our supplier members, and significant annual contribution by OMCA. OMTC operates a training facility in Mississauga, and has two joint ventures to deliver apprenticeship training, one in Waterloo with Conestoga College and the other in Ottawa with La Cite College and Algonquin College. Our bricklayer apprenticeship program was augmented when MTCU approved 3 post-certificate specialization programs, one for refractory work, one for restoration and the third which is not yet developed for the ICI sector. These are 6 week modules that require a Red Seal as a pre-requisite to entry. Needless to say, OMCA strongly believes the College of the Trades’ focus should be on apprenticeship training and promotion and creating a strong framework for the system to work. This would include: • the development of standards, training curriculum, • program enhancement (identifying gaps or additional material supplementary requirements) • promotion of the trades • undertake research • management of the training system, this would include; o oversight on TDA’s, and o collecting and providing timely and accurate data/statistics • review of ratios (however for the unionized sector that is defined in the collective agreements) • maintain up to date and relevant scopes of practice as they pertain to training • have a transparent framework for any process involving changing status, ratios, curriculum for the trades, including clear definition of the supporting data that will be required. There are many comments about the lack of factual information included in submissions, and that is for the good reason that this data does not readily exist. For years it was virtually impossible to get basic apprenticeship data from MTCU, such as how many apprentices are in the system. In many cases independent research would have to be undertaken to provide statistically significant results to support the work the College is tasked with. We would like to highlight, is that a Scope of Practice as it currently exists has little value in either, the training aspect or as the work definition used for enforcement purposes. Training is based on the National Occupational Analysis, from which the province develops training standards, and then curriculum. The NOA is also the foundation to the Red Seal and the exams which are required to obtain that certification. However, for the “work definition, or scope of practice” in the voluntary trades there are two scenarios. One for the non-union sector which is not bound by any framework as to what a worker in the voluntary trades can do, and the union sector which is bound by jurisdiction. As for compulsory certification, it is not the requirement that a worker must have training and proof of that training to carry out certain work, that should be an issue. Nothing serves the public interest better that having a skilled workforce, whether from a health and safety aspect, an environmental one or an economic one. Training to be on a job site is a positive, no matter what work a person is doing. As far as being a barrier to entry, anything that “raises the bar” can be considered a barrier, that doesn’t make it wrong. In fact have compulsory status also attracts individuals to those trades, they have a certain pride in doing work that “not everyone can do”. It also does not mean compulsory status is required for all work in construction, but where there is a case for it, it is just as important to consider; • the short and long term supply and demand implication • the regional differences how work is done across the province, particularly between large urban centres and more rural or remote areas. • training capacity and management of the roll out • overlap with other regulation, decisions, agreements etc.